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Court Procedure

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The toughest of all family court decisions: life or death

Family court judges are called on daily to make difficult decisions.  The more challenging of cases often involve custody, relocation, alienation and termination of contact. However, at the far extreme are child welfare cases where the state intervenes accusing the parents of lacking the capacity to care for their own children.  Within this subset of cases are cases that involve the life and death of a child.

 

In Hamilton Health Sciences Corp. v. D.H. [2014] O.J. No. 5419, Justice Edward heard 9 days of testimony before deciding on a hospital’s application for an order protecting an 11 year old aboriginal child diagnosed with leukemia.  It was the hospital’s claim that the child had more than a 90% probability of recovery if treated with chemotherapy. The doctors that testified stated unequivocally that a child with this disease, if left untreated, would die. At the time of the hearing, the child’s mother had withdrawn consent for the continuation of chemotherapy.  She preferred traditional native medicines.

 

The court commenced its analysis by determining whether the mother’s decision, as the child’s substitute decision-maker, was in fact an aboriginal right to be respected.  He stated:

 

“In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.”

 

The court did not end its examination on this freedom.  It stated that “the aboriginal claimant must do more than demonstrate that a practice, custom or tradition was an aspect of, or took place in, the aboriginal society of which he or she is a part. The claimant must demonstrate that the practice, custom or tradition was a central and significant part of the society’s distinctive culture. He or she must demonstrate, in other words, that the practice, custom or tradition was one of the things which made the culture of the society distinctive – that it was one of the things that truly made the society what it was.”

 

After extensive oral testimony and lengthy argument from counsel, Justice Edward ruled:

 

“It is this court’s conclusion, therefore, that D.H.’s decision to pursue traditional medicine for her daughter J.J. is her aboriginal right. Further, such a right cannot be qualified as a right only if it is proven to work by employing the western medical paradigm. To do so would be to leave open the opportunity to perpetually erode aboriginal rights…I cannot find that J.J. is a child in need of protection when her substitute decision-maker has chosen to exercise her constitutionally protected right to pursue their traditional medicine over the applicant’s stated course of treatment of chemotherapy. The Application is dismissed.”

 

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It takes a village...

That was the conclusion that Justice Marvin Kurz reached in the case of Torabi v. Patterson, 2016 ONCJ 210 (CanLII) dealing with whether 4 year old Dylan could maintain a relationship with his deceased mother’s family.

 

In a strongly worded decision, the court wrote:

 

“Tragedy can be as corrosive as the sturdiest acid, eating away at the bonds that hold families together. For the parties to this motion, the illness and death of a young mother whom they all loved led only to further dissention, conflict, and ultimately this court proceeding.”

 

After Dylan lost his mother to cancer, his mother’s family made up of his grandmother, aunts and uncles applied to Justice Kurz for access to Dylan. Dylan’s father opposed that request because of a history of family conflict with his in-laws. He argued that he is best able to determine his son’s best interests and, like any parent, he wishes to choose whom his child sees, when he does so, and under which circumstances. He argued that the court should not interfere with his parental discretion.  The mother’s family argued that it is in Dylan’s best interests that he maintain his close relationship with them and that, without contact, Dylan will never truly know his mother’s family and their Iranian culture and heritage.

 

Justice Kurz carefully reviewed the law of access by extended family members. After quoting the case of Giansante v. Di Chiara, 2005 CanLII 26446 that held that when a young child loses a parent, the deceased parent’s close family members may seek access even a strong pre-existing relationship is absent. Justice Kurz stated:

 

“In sum, the case law generally requires the following elements to constitute a “positive” relationship between a relative and a child, one that may supersede the right of the parents to decide whom the child sees:

 

  1. There must generally be a substantial pre-existing relationship between the relative and child. Strong loving and nurturing ties must exist between them based on time spent together that enhances the emotional well-being of the child.
  2. That relationship must be a constructive one for the child in the sense that it is worth preserving. If relations between the parties are too poisoned, a previously positive relationship may not be capable of preservation.
  3. The determination must include consideration of the age of the child and the time since the child last saw the relative.
  4. A fourth factor may apply in the exceptional circumstance of a young child who has lost a parent. In that event, the existence of a strong pre-existing relationship may not be necessary when the relatives of the lost parent applies for access.”

 

In examining Dylan’s relationship with his mother’s family, Justice Kurz stated that “each member of the Razzaghi family before the court had a relationship with Dylan that he or she finds meaningful. Undoubtedly at some time, Dylan enjoyed spending time with each.”

 

Justice Kurz also considered what Dylan’s mother wrote 17 days before her death:

 

“I appeal to Ken and my family members to work together, to put aside any differences they may have and always act with each other in a manner that is in Dylan’s best interest. Only then will my soul and spirit truly rest in peace.”

 

In the end, Justice Kurz decided that Dylan will see his mother’s family one weekend afternoon per month for 6 hours. The order was just temporary and may be changed later.

 Couple fighting in front of child

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Can you please list the different methods used to settle the outstanding issues?

Once the issues that need to be settled are identified and each spouse has obtained legal advice, the spouses may negotiate, mediate, litigate or arbitrate the outstanding issues. That is, the spouses may negotiate an agreement amongst themselves or instruct their lawyers to negotiate an agreement on their behalf. The spouses may agree to retain a mediator to assist them in reaching an agreement, or one spouse may decide that it is necessary to obtain a court order and therefore, decide to litigate. Alternatively, the spouses may decide to submit their issues to binding arbitration.

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Now that I have decided to separate from my wife, what is the process to settle all our outstanding issues regarding our children, support and property division?

Before a spouse can decide upon the process, he should obtain legal advice to determine what his family law rights and obligations are. This is very important because the next few steps that he takes can permanently affect the outcome of his case and the legal obligations that he will assume. At this critical stage, each spouse should immediately obtain legal advise from an experienced family lawyer.

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What is mediation?

Mediation is a process whereby the spouses jointly retain a professional mediator to help them reach an agreement that they are both comfortable with. Usually, only the spouses, without their lawyers, will meet with the mediator. The role of the mediator is to help the spouses arrive at their own agreement. The mediator’s role is not to give an opinion or force one spouse to accept the other spouse’s terms. It is certainly not the role of the mediator to give legal advice.

Even when the spouses decide to mediate their issues, it is most advisable for each spouse to have a lawyer provide him or her with legal advice.

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What is arbitration?

Other than mediation and litigation, other methods that are available to settle the outstanding issues are neutral evaluation, arbitration and mediation/arbitration. An arbitration is a process similar to litigation. The arbitrator hears the evidence of each spouse, and the arguments made by each spouse’s lawyer, and then delivers a written decision that is as enforceable as a court order. An arbitration is a formal process conducted under the Arbitration Act which requires the arbitrator to comply with certain procedures. As opposed to the long wait to get a trial date in court, spouses who agree to submit to arbitration jointly select an arbitrator, sign an arbitration agreement and schedule a date for the hearing. Arbitration and the decision rendered by arbitrator are usually kept confidential. The cost of arbitration is either shared by the spouses or, if they wish to give the arbitrator the power to award costs, the arbitrator may order one spouse to pay the other spouse’s costs of the arbitration.

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What is mediation/arbitration?

Other than mediation and litigation, other methods that are available to settle the outstanding issues are neutral evaluation, arbitration and mediation/arbitration. Mediation/arbitration is a dispute resolution method that is a hybrid of mediation and arbitration. There is a debate as to the propriety of a professional acting as both a mediator (who does not give an opinion or decision) and an arbitrator (whose only role is to give a decision). Mediation/arbitration is prohibited by the Arbitration Act, however, the spouses may specifically waive that prohibition. In mediation/arbitration, the mediator/arbitrator first attempts to settle the issues through mediation. Mediation may turn into arbitration if the mediator/arbitrator determines that mediation has failed. The mediator/arbitrator then ignores all the information that had been exchanged in the mediation and hears the matter afresh as an arbitration. The mediator/arbitrator cannot mediate while he or she is arbitrating and cannot arbitrate while he or she is mediating.

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What is neutral evaluation?

Other than mediation and litigation, other methods that are available to settle the outstanding issues are neutral evaluation, arbitration and mediation/arbitration. Neutral evaluation is a process whereby the spouses jointly retain a professional evaluator, who is usually an experienced family lawyer, to provide a formal opinion of the probable outcome of the issues presented to the evaluator. This process usually involves the participation of the spouses and their lawyers. The lawyers present the evaluator with a brief that consists of each spouse’s position, the relevant evidence and the legal authorities that he or she relies on. The purpose of neutral evaluation is to assist the spouses and their lawyers to overcome an issue that prevents the case from moving forward. For example, one spouse may believe that spousal support should be paid for a period of no more than five years, while the other spouse believes that spousal support payments should not end. In neutral evaluation, unlike mediation, the evaluator is specifically retained to provide an opinion and the reasons for that opinion.

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What is collaborative family law?

This new concept originated in California. It is based on the idea that an increasing number of separating spouses want to settle their issues with the use of professionals in an inexpensive, amicable and respectful manner. Each spouse retains a family lawyer who is specially trained in collaborative family law. The spouses and their lawyers conduct a series of meetings to negotiate a resolution of the issues. The process is similar to mediation, however, in collaborative family law, if the negotiations are unsuccessful and litigation occurs, neither family lawyer can continue to represent the spouse in court and must withdraw from the case. This limitation is expected to encourage the spouses and their lawyers to use their best efforts in a productive, fair and focused manner to arrive at a resolution so that litigation is unnecessary. It is anticipated that spouses will be more committed and invested in the process to make the negotiations successful and arrive at a favourable outcome.

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What is a DRO?

A dispute resolution officer (DRO) is a lawyer who is a member in good standing of the Law Society of Upper Canada, has practiced primarily in the field of family law for a minimum of ten years, and has been appointed to assist the judges and the court system. At Toronto’s divorce court—the Ontario Superior Court of Justice, the DRO meets with separated spouses before their case proceeds to a hearing before a judge to attempt to resolve their case, or at least to narrowly define the issues and create a timetable to proceed to a hearing.

DRO’s are typically involved in cases where one spouse is applying to the court to change a child support order or to change the parenting plan. The programme has been very successful. Approximately two-thirds of the cases are settled by the DRO without proceeding before a judge. Those cases that do proceed to a hearing before a judge have benefited by the DRO assisting the parties in defining the issues and ensuring that the proper evidence is submitted to the judge.

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Parenting Coordinators: The newest in ADR for separated parents ?

A Parenting Coordinator (‘PC’) helps separated parents resolve parenting disagreements.  PC’s are usually social workers and psychologists, although there are a growing number of lawyers now working as PC’s.  PC’s receive their authority from a Parenting Plan, Separation Agreement, Court Order or Arbitral Award. That is, the types of disputes that PC’s resolve relate to the implementation of a parenting schedule – not the creation of such a schedule.  That is why section 59.7(2) of the Family Law Act refers to this service as a ‘secondary arbitration’. By definition, a secondary arbitration “means a family arbitration that is conducted in accordance with a separation agreement, a court order or a family arbitration award that provides for the arbitration of possible future disputes relating to the ongoing management or implementation of the agreement, order or award.”

Before arbitration is invoked, PC’s use a variety of tools to help parents solve their disagreements ranging from parent education, to coaching, to mediation. Only if the parents still cannot agree upon a solution, do PC’s resort to arbitration.  That is, PC’s have the power to arbitrate parenting disputes, but usually after education and mediation have failed.  The idea is that the PC attempts to enable the parents to problem-solve and develop the skills to better communicate and arrive at mutual decisions regarding their children.  However, if such efforts have been exhausted, the PC renders an arbitral decision, which must be followed by the parents, as if ordered by a judge.

The implementation of Parenting Coordination varies among jurisdictions.  In Ontario, a judge cannot order parties to use a Parenting Coordinator, as that would constitute a delegation of authority. The consent of both parties is required.

In 2012, the Ontario Court of Justice in Sehota v. Sehota [2012] O.J. No. 835, took judicial notice of PC’s and specifically the 2005 Guidelines for Parenting Coordination, which were produced by the Association of Family and Conciliation Courts.

The court stated:

The Guidelines suggest that the Parenting Coordinator has considerable authority, albeit about only minor issues.  A list of the types of issues that might be addressed by a Parenting Coordinator is as follows:

  1. Minor changes or clarification of parenting time/access schedules or conditions including vacation, holidays and temporary variation from the existing parenting plan;
  2. Transitions/exchanges of the children including date, time, place, means of transpiration and transporter;
  3. Health care management including medical, dental, orthodontic, and vision care;
  4. Child-rearing issues;
  5. Psychotherapy or other mental health care including substance abuse assessment or counseling for the children;
  6. Psychological testing or other assessment of the children and parents;
  7. Education or daycare including school choice, tutoring, summer school, participation in special education testing and programs or other major educational decisions;
  8. Enrichment and extra-curricular activities including camps and jobs;
  9. Religious observances and education;
  10. Children’s travel and passport arrangements;
  11. Clothing, equipment, and personal possessions of the children;
  12. Communication between the parents about the children including telephone, fax, e-mail, notes in backpacks, etc.;
  13. Communication by a parent with the children including telephone, call phone, pager, fax, and email when they are not in that parent’s care;
  14. Alteration of appearance of the children haircuts, tattoos, ear and body piercing;
  15. Role of and contact with significant others and extended families;
  16. Substance abuse assessment or testing for either or both parents or a child, including access to results; and
  17. Parenting classes for either or both parents.

Parenting Coordinators have become a critical component of matrimonial law, post-separation family counseling and dispute resolution. Family court judges value the work of such professionals for their help in easing many of the difficulties parents face, in a manner that protects the interests of children.
PC’s help parents put their children’s interests first, help them understand how conflict hurts children and teach them how to communicate and cooperate so as to achieve the very best outcomes for children of divorce.

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How can mediation help us?

When a marriage ends, each spouse usually wants to resolve all outstanding issues as quickly and inexpensively as possible. But at the time of separation, there may be poor communication between the spouses. Although they may both want to resolve the same issues, they require a professional to assist them in arriving at terms that are fair and agreeable. A family mediator is a professional who will work with both spouses to facilitate a resolution of the issues that need to be resolved. Although many family mediators are lawyers by training, they do not represent either spouse. It is critical that each spouse retain a family lawyer to be advised of his or her rights (before and during the mediation process) and be provided with strategic advice. At the conclusion of a successful mediation, the spouses will have arrived at terms of settlement that can be incorporated into a separation agreement. This is prepared by one spouse’s lawyer for review and consideration by the other spouse’s lawyer.

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What are the different types of mediation?

Before mediation begins, the spouses will decide whether the mediation will be open or closed. In open mediation, the mediator may be asked by either spouse to write a full report on what happened during the mediation including the reasons why it was not successful. If the mediation is not successful and the case proceeds to court, the report may be considered by the judge. Also, the mediator may be required by either spouse to testify in court. In closed mediation, the information exchanged by the spouses is confidential. The mediator’s report will only mention whether an agreement was reached, but will not provide any details of why an agreement was not reached. In closed mediation, neither spouse can compel the mediator to testify in court.

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What is the cost of mediation?

Family mediators operate as private businesses and are not regulated, therefore, their fees can vary. Some courts and community agencies offer mediation services for fees that are charged according to the spouses’ incomes. A family lawyer will be able to provide recommended names of family mediators and the availability of mediation services through the courts and community agencies.

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Do both spouses have to be in the same room for mediation?

The better the communication between the spouses, the more successful mediation can be, because the spouses will each actively participate in the mediation process. However, when the spouses are unable to deal directly with each other, mediation can still be useful. In this case, the mediator may start by meeting with both spouses to discuss the objectives of the mediation and then separate them so the mediator can meet with one spouse at a time, in different rooms. The mediator can then shuttle between the two spouses to mediate an agreement.

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Is mediation really voluntary?

Let’s be honest… Separating spouses are not running to line up for any process to commemorate the death of their relationship. The separating spouse is usually in pain, angry, confused, scared and hopeless.

She is wanting to run away from the ruins of her marriage. She is not volunteering for anything at this stage of her life.

As an aside, the most satisfied client of mine, after thanking me for providing them with excellent and compassionate legal representation, follows the compliment with “I hope I never need to use you again.”

When we use the term ‘voluntary’ we must recount the context… not from our perspective (we meet hundreds of separating spouses, whereas the client meets one Family law lawyer and we are in and out of courthouses almost daily, which does not cause us anxiety, whereas the very presence of a separating spouse in a courthouse causes tremendous stress and anxiety for her), but from the perspective of the client who never planned for this, wishes the pain would stop and feels helpless.

Can a person in this emotional state really be acting with volition and intent ?

When a spouse finds herself in this situation, she speaks to her friends and family, makes inquiries of what to do next and, eventually, lands in the office of a professional (therapist, lawyer and/or mediator) who guides her to the next step.

When this person ‘volunteers’ for mediation as a ‘process’, she is usually choosing the least of all poisons. The other alternatives are not available (reconciliation), not affordable (litigation) or impractical (doing nothing).

Another way to look at it stems from my observations on Wednesdays at the Family Court of the Superior Court of Justice in Newmarket. Wednesdays is motions day. Between 30 to 50 motions are on the docket each Wednesday. There is no limit placed on this list. There is no case management. There is no planning. It’s a free for all. Each Wednesday, separating spouses and counsel line up at 10:00 a.m. to seek judicial intervention. There is a problem in the lives of these spouses. They could not resolve them. Their lawyers could not resolve them. They are nervous, worried and anxious…but hopeful. They hope that the motions’ judge will hear their problem and declare a solution.

That can’t happen. Why ?

One motions’ judge cannot solve 30-50 domestic problems between 10:00 a.m. and 4:00 p.m. S/he may be able to help a few families. This of course starts after those spouses who have given up, failed to confirm their court attendance in advance, failed to attend court that day or have already resolved their dispute, are managed by the court. This usually takes 30 to 90 minutes. That is when the motions’ judge announces that the remaining time in the day is not adequate to help the many remaining spouses in waiting.

Now for the notion of ‘volunteering for mediation’.

The motions’ judge announces that this court location offers mediation services. It is free and available. The judge reminds everyone that, regrettably, s/he cannot help most of those in the room.

So the spouses and counsel, in utter disappointment, consider the alternatives (leaving court with no solution, coming back next Wednesday and hoping to be heard, booking a fixed motion date in 4 months or… ‘volunteering for mediation’).

It is arguable that in these situations a person is acting under duress or desperation when opting for mediation.

Don’t get me wrong. Mediation may be the very best option for this family. It may preserve the relationship… ensure mutual respect… permit the discovery of a cooperative solution… end the conflict… and save money.

But I query whether mediation was voluntary.

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What should I look for in a Family lawyer?

Going through a divorce can be one of life’s most stressful experiences. At a time of intense emotion, you are required to make critical decisions that will have a long-term impact on your future. Because the process can be so overwhelming, it is important to be guided by the right Family lawyer.

· Look for someone you can trust and talk to. You need to feel comfortable sharing information about yourself. The more informed your Family lawyer is about your situation, the more effective he/she can be in helping you.

· Rely on an expert. One reason the divorce process can be stressful is that many of your decisions will be based on information you may not have. A good Family lawyer will be able to answer your questions clearly and thoroughly.

· Expect objectivity. At a time when emotions are high, it’s important to have an impartial ally to explain your options and to help you make the right choices.

· Find a lawyer with good judgment. While some of the decisions you will make are legal, others are practical, but no less crucial. You may need to decide where to live, whether you should see a doctor, or go to the police. You may want feedback on what to tell your children and family. The right lawyer will be able to offer you invaluable advice, based on experience and good judgment.

· Look for a lawyer with connections. Many people assume that because they’re getting a divorce, they will have to go to court. In reality, divorce cases rarely go that far. There are all sorts of experts in the legal community trained to assist you in coming to a peaceful agreement with your partner long before the stress and expense of a trial is required. Specialists like mediators, arbitrators and parenting coordinators may be appropriate in your situation. A good lawyer will be able to assess your needs and connect you with the right experts.

· Find a lawyer with vision. A good lawyer understands that although your marriage has failed, your life still holds as much promise for success as ever. By helping you create a short-term plan, your lawyer will make certain that you and those you love are taken care of throughout the divorce process. A long-term life plan will ensure that you thrive in the future. For example, if you have children, you may worry about how they will adjust to their parents living in separate homes. With a good long-term plan, the children will benefit from having two parents who respect one another’s separate parenting identity, and who appreciate the importance each parent has in their lives. A lawyer with foresight will lay the groundwork for your successful future.

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What Is "Unbundled Legal Services?"

This is another way of saying that a client can hire a lawyer to handle part – but not all – of a case.  It is also called a ‘limited scope retainer’.

These terms have been around for many years.  Recently, however, the Law Society of Upper Canada decided to rewrite its Rules of Professional Conduct to formally sanction this sort of practice.

The Law Society of Upper Canada states that unbundling is the concept of dividing a matter up into discrete parts and having a lawyer (or paralegal) provide limited legal services or representation.  In this scenario, if a lawyer were to provide partial legal services, then the client otherwise represents herself for the rest of the case.

The Law Society of Upper Canada created a working group to consult with legal organizations and institutions to finalize these changes.

It was through this consultation that I became concerned with the sanctioning of ‘unbundled legal services’.

In Family law matters, unbundling can result in a spouse attending for a preliminary consultation with a lawyer and then forming the impression that she can represent herself throughout a court proceeding (such as one involving custody, access and support).  Unbundling can also permit a spouse to have a lawyer draft the court documents in that spouse’s own name (a.k.a. ghost-writing) and then use them in court, without legal representation and without even understanding the contents of those documents and how they are used in court.  Unbundling can involve spouses negotiating final terms of a Separation Agreement without legal advice, but then having lawyers provide summary legal advice at the time of signing the agreement, without having a holistic grasp of the spouse’s legal interests.  Unbundling can mean that a lawyer advises a spouse on her Family law rights, but then that spouse drafts a Marriage Contract or Separation Agreement on her own using a standard form downloaded from the internet, or purchased at a stationary store.  Another example is where a spouse retains a lawyer to argue a narrow point in court, but not to provide legal advice or guidance in resolving the entire case.

In my opinion, unbundling is a dangerous exercise and should be severely limited, if not prohibited, in Family law matters – not to protect lawyers’ fees, but to ensure that judges are able to dispense justice (not education and advice to self-represented spouses), to permit opposing lawyers to forcefully argue their client’s case (not assist self-represented opposing spouses) and, most importantly, to make sure that spouses are properly and comprehensively represented by lawyers regarding their Family law rights and remedies.

The economics (i.e. high cost) of lawyers and litigation is a subject that can (and should) be studied, addressed and resolved through law reform and improvements to the legal process.  I think that it is a mistake to invite spouses to serve as their own lawyers and to believe that the a la carte purchase of legal services is a suitable solution.

Interestingly, in the 1993 case of Logan v. Logan, Mr. Justice Wright was asked to decide whether the lawyer that appeared before him was a ‘solicitor of record’.  In that case, the client argued in court that the lawyer was retained on an ‘unbundled’ basis and was not a ‘solicitor of record’.

The judge contemplated the difference between the lawyer’s responsibility for one narrow part of the case versus the lawyer’s responsibility to the client, to the court, to the other lawyer and to the administration of justice; he considered whether that lawyer was the client’s ‘solicitor of record’.

The judge wrote:

“my initial reaction was that a lawyer could not both appear and yet avoid the duties and obligations of a solicitor of record. Having reviewed the matter, however, I have concluded that my original impression was mistaken. The rules are quite clear. A person may represent himself or he may be represented by a solicitor. The solicitor then goes ‘on the record’ and certain obligations flow therefrom. The lawyer acting for the father in this case submits that he was not retained or acting in his capacity as a solicitor, but in his capacity as barrister or counsel. Solicitors may retain counsel to represent a client. That is their traditional function. So too may a person who is representing himself retain counsel to put forward particular aspects of his case to the court. This appearance by counsel does not impose upon counsel the obligations of a solicitor of record. The barrister is free of those obligations and duties.”

And there you go.  In 1993, Justice Wright decided that ‘unbundling of legal services’ was permissible and appropriate and, in that case, such lawyers have no (or limited) duty to the client, court, other lawyer or administration of justice.

Time will tell what the Law Society of Upper Canada decides to do in this respect.

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Should spouses who represent themselves in Family Court be given special treatment by judges ?

This is a dilemma in Family Courts all over the world.  Here in Ontario, Family Court judges are faced with cases everyday where the spouses are representing themselves.  Combine that with the high stakes, high emotions and a winner-loser mentality and it is understandable that Family Court judges are often criticized and even appealed by angry litigants.

This very issue was considered by a 3 judge panel of the Ontario Divisional Court in the 2009 case of Cicciarella v. Cicciarella, 2009 CanLII 34988.

Karen Cicciarella appealed the judgment of Mr. Justice Hambly dealing with the issue of property division.  The husband had been represented by a lawyer throughout the lengthy and acrimonious matrimonial proceedings but, 3 weeks before trial, he discharged his lawyer and represented himself at trial.  The wife was represented by two lawyers at trial.

The wife alleged that the trial judge interfered with the trial process in an unreasonable and unfair manner.

The Ontario Divisional Court considered this appeal and indeed granted the wife a new trial by another judge.  However, in so doing, the appeal court carefully examined the epidemic of self-represented litigants and the role of Family Court judges.

Quoting from other decisions, the appeal judges wrote:

The role of a trial judge is often very demanding owing not only to the inherent nature of the case, but also to the particular conduct of the litigants. 

A trial judge must exercise restraint and maintain impartiality so as to act within the scope of his or her neutral role.

The increase in the number of litigants who appear without legal representation can pose special challenges for busy trial judges.

Leeway is allowed for a self-represented party, especially as it relates to procedural matters.

The extent to which judges should afford an unrepresented litigant additional “leeway” with respect to court procedures and the rules of evidence is an increasingly vexing problem for courts at all levels. It is generally recognized that the court should provide some assistance to an unrepresented litigant, as occurred in Barrett.  But at the same time this must be done in such a way as not to breach either the appearance or reality of judicial neutrality.  How to balance the sometimes competing imperatives of helping a litigant who is in need of assistance while maintaining impartiality is a recurring dilemma for both trial and appellate courts.

The judge cannot descend into the arena from the bench and advocate for the self-represented litigant.

Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer.  Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer’s familiarity with procedures and forensic tactics.  It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case.  In doing so, the trial judge must, of course, respect the rights of the other party.

The problem of unrepresented parties, who may not be familiar with law and procedure, is one which is facing courts today with an ever increasing frequency. Courts are mindful of a degree of understanding and appreciation which should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to over ride the rights of a defendant party.

Partly because of the increase in the number of self-represented litigants in Canadian courts…, in 2006 the Canadian Judicial Council adopted a “Statement of Principles on Self-represented Litigants and Accused Persons.”

This Statement of Principles is meant to be advisory in nature.  It is not a code of conduct. Its aim is to provide guidance to judges, court administrators, members of the Bar, legal aid organizations and government funding agencies in relation to self-represented persons.

The advisory Statement refers to a number of responsibilities expected of judges, such as the responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation and to promote access to the justice system for all persons on an equal basis, regardless of representation.

The Principles refer to an expectation that judges will do whatever is possible to provide a fair and impartial process and to prevent an unfair disadvantage to self-represented persons. It goes without saying that in a contested family law case, in preventing an unfair disadvantage to self-represented persons, the judge must also ensure that the legally-represented litigant is not thereby disadvantaged by the judge’s conduct.

With respect to the judge’s responsibility to promote equal access, the Principles also address behaviour in which a judge may wish to engage without offending the requirements of judicial neutrality and impartiality.

When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:

  1. explain the process;
  2. inquire whether both parties understand the process and procedure;
  3. make referrals to agencies able to assist the litigant in the preparation of the case;
  4. provide information about the law and evidentiary requirements;
  5. modify the traditional order of taking evidence; and
  6. question witnesses.

The Principles also address the responsibilities of the participants in the justice system, recognizing that “all participants are accountable for understanding and fulfilling their roles in achieving the goals of equal access to justice, including procedural fairness.”  

For judges, this translates into, among other things,

  1. A responsibility to inquire whether self-represented persons are aware of their procedural options and to direct them to available information if they are not. Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.
  2. In appropriate circumstances, judges should consider providing self represented persons with information to assist them in understanding and asserting their rights, or to raise arguments before the courts.For self-represented persons, this translates into, among other things, an expectation that they will (1) familiarize themselves with the relevant legal practices and procedures pertaining to their case and (2) prepare their own case.

In conclusion, in a trial where one party is represented by counsel and the other is not, a trial judge must balance the issues of fairness and be mindful of both parties. In doing so, a trial judge should exercise restraint and should maintain impartiality. While a trial judge may wish to exercise some leeway in procedural matters to the self-represented litigant, he or she must never become an advocate for the self-represented litigant. Finally, a trial judge must not allow assistance to a self-represented litigant to result in the represented side’s rights being overridden.

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Is a spouse representing himself entitled to an order for costs ?

This simple answer is “yes”; in fact, that was the law since 1999, when the Ontario Court of Appeal in Fong et al v. Chan et al [1999] O.J. No. 4600 established that a self-represented litigant is entitled to recover costs, including a counsel fee, at his or her own trial.  However, more recently, the case of Jahn-Cartwright v. Cartwright [2010] O.J. No. 3307 elaborated on how these costs are quantified.

In Jahn-Cartwright v. Cartwright, the spouses had three children, with the youngest child attending college.  They separated after 13 years of marriage.  After separation, they signed a Separation Agreement which required the father to pay child support and to contribute to the child’s special expenses.  The father later applied to court to terminate his support obligations. The mother opposed the court application and asked the judge to order the father to pay his share of the youngest child’s college expenses.

In court, the mother did not use a lawyer, but instead represented herself, and was ultimately successful at court. She asked the judge to order that the father pay her costs of approximately $20,000. The father argued that costs should be no more than $500.

In setting the amount of costs, the court attempted to balance indemnification of the mother with preserving the father’s access to justice.  The court stated that, on the one hand, it should not deny him the right to seek a remedy from the court by imposing an overly onerous financial burden on him.  On the other hand, the mother did lose time away from work and incurred some expenses to defend the father’s court case and to get the father to pay his share of their child’s college expenses.

Adding to the challenge in this case was the fact that the husband was represented by a lawyer while the wife was not.

In the end, the court ruled in favour of the mother and awarded her approximately $10,000 in costs.  The court accepted the rate of $200 per hour that she claimed – approximately two-thirds of the rate of the father’s lawyer. The court determined that this was a reasonable rate as the mother prepared documents of a professional caliber and displayed the standard of civility expected of lawyers.

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Do I need a lawyer to go to court?

No. A spouse may appear in court without a lawyer. However, it is not recommended. The court process is complex. It is based on rules of procedure, such as the Rules of Civil Procedure and the Family Law Rules. The relief sought is based on legislation such as the Family Law Act and the Children’s Law Reform Act. Family lawyers are educated, trained and licensed to represent spouses in court. Family lawyers are familiar with recent changes in the law and are familiar with the court process. It is critical to obtain legal advice and representation by a family lawyer when proceeding to court. If, however, a spouse decides not to retain a family lawyer, he or she will then be responsible for preparing, swearing, serving and filing all of the appropriate court documents. The spouse will also be required to make oral submissions to the judge.

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Can I change the prior court order or agreement?

Before a judge will permit a spouse to change a prior court order or separation agreement, the spouse must prove that there has been a material change in circumstances since the time of the prior court order or separation agreement. If there has been a material change, then the spouse must convince a judge of what the new order should be.

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Who gets to name a child at birth?

Past court decisions seemed to grant mothers the authority to select a child’s name. But it is obvious that this is a tense subject. So much so that Douglas Gallant felt undermined when he discovered that his newborn daughter Kiera Mary-Lynn was not given his family name. He decided to seek a remedy from the court.

In the case of Gallant v. Lewis [2008] O.J. No. 2913, Mr. Justice Quinn considered this situation and released his decision on July 14, 2008. In that case, the court heard that Douglas Gallant and Suzanne Lewis began dating each other in April 2006, began cohabit-ing in October 2006 and separated in December 2006 when they were 20 years old. Suz-anne gave birth to their daughter, Kiera Mary-Lynn, on July 1, 2007. Douglas enjoys ac-cess to his daughter almost every day. Suzanne admits that she did not inform Douglas when she went to the hospital to give birth. She says that she did so deliberately, explain-ing that she “did not want him there.” Douglas testified that it was his wish to be present.

Subsequently, Suzanne completed a Statement of Live Birth (Form 2) under the Vital Statistics Act filling out Section A (“child’s information”), Section B (“mother’s information”), Section D (“birth information”) and Section E (“certification of informant”). Suzanne left Section C (“father’s information”) blank.

Douglas asked Mr. Justice Quinn for an order changing the child’s surname to the hyphenated last names of the parties. He framed the issue to be: whether a mother has the right to arbitrarily exclude a father from the birth registration process and, more particularly, to arbitrarily use her last name as the surname for the child.

Mr. Justice Quinn felt that it would “bring the administration of justice into disrepute, be manifestly unfair to the father and not be in the best interests of the child“, if the court were to enforce the child-naming provisions of Ontario’s Vital Statistics Act. The court even re-ferred to British Columbia’s similar statute that had been ruled unconstitutional as amount-ing to discrimination on the basis of sex.

This decision demonstrates that the right of a mother to arbitrarily exclude the father in the naming of their child was an example of sexual discrimination, leaving the father without recourse and rendering him a second-class parent. The court ruled that it was not in the best interests of a child to have his or her parents differentiated in this fashion.

Mr. Justice Quinn ordered that the Registrar General amend the registration of the child’s birth to include the hyphenated surnames of the parties (in alphabetical order) such that the name of the child shall be changed from Kiera Mary-Lynn Lewis to Kiera Mary-Lynn Gallant-Lewis.

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Does it matter who starts the court proceeding?

The spouse who starts the court proceeding is called the petitioner or applicant. That spouse is the one who states what he or she wants the judge to grant and the reasons for it. The other spouse is called the respondent. He or she may either agree to some or all of the items claimed, deny and defend these claims and/or make a counterclaim against the other spouse.

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If we have settled everything between ourselves, do we still need a lawyer?

Yes. Before any agreement is made, each spouse should obtain independent legal advise from a family lawyer who will advise the spouse on his or her family law rights and obligations. This is necessary in order to recommend terms of settlement that are fair, practical and enforceable. It may not seem necessary now, but it can prevent many problems from arising in the future and reduce further cost and grief. Each spouse’s own family lawyer will protect that spouse’s own legal interests, inform that spouse of issues that he or she may not have considered and ensure that any agreement is fair, practical and enforceable.

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Which parent chooses/decides a child's name?

In the June 19, 2002 decision of Kreklewetz v. Scopel, the Ontario Court of Appeal decided that Ontario law permits the mother, not the father, to select the child’s name.

The court held that the Vital Statistics Act allows a mother to have the ultimate ability to determine the surname of her child in circumstances where the father is unknown to or unacknowledged by her. That is, a mother may admit the identity of the father, but then refuse to acknowledge him for the purpose of naming the child.

In this case, the father and the mother had been involved in a sporadic relationship ending shortly after the birth of their son in 1998. The mother was the primary caregiver to the child and the father exercised access and paid child support.

The parties had a dispute regarding the child’s name and the father applied to the court for an order to change the child’s name. After being denied this relief, the father appealed to the Ontario Court Of Appeal, where his appeal was dismissed.

The appellate court ruled that the Vital Statistics Act expressly provides that if the mother certifies the child’s birth and the father is unknown to or unacknowledged by her, she may give the child her surname. The court held that the Ontario legislature had made a policy decision to allow a mother to have the ultimate ability to determine the surname of the child. The appellate court was not prepared to override that policy.

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Why should I hire a lawyer when I can buy the court forms and fill them out myself?

Do-it-yourself kits are available. However, simply filling out forms is not the equivalent of obtaining critical legal advice and professional representation. The court system involves very serious and complex issues that will affect your life and the lives of your children. A person who fills in a blank court form is under the false impression that his or her legal rights and obligations will be properly determined by a judge. The prejudice to your case, the probable delays and the unnecessary stress is far more expensive than the cost of proper legal advice and representation.

Many clients do not understand that the information they put in court forms may be damaging to their case and can never be removed from the court record. Many clients do not understand what legal rights are available to them and what strategies they should employ to advance their legal interests. Many clients do not understand how to present their case, orally and in writing, so that they will achieve their objectives in the fastest, simplest and least costly method.

Family lawyers are educated, trained and licensed to represent spouses in court. Family lawyers are familiar with recent changes in the law and are familiar with the court process. The court process is complex. It is based on rules of procedure, such as the Rules of Civil Procedure and the Family Law Rules. The relief sought is based on legislation such as the Family Law Act and the Children’s Law Reform Act. A Family lawyer is professionally trained to prepare your court documents and make oral arguments to a judge who will decide the outcome. It is critical to obtain legal advice and representation by a family lawyer when separating.

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What happens when one spouse has a lawyer and the other spouse chooses to not use a lawyer?

The issue of self-representation in Family Court has become an epidemic.

Those spouses with very low income can obtain free legal advice and representation from Legal Aid Ontario.

Those spouses with high incomes can usually afford a private lawyer. However, the vast majority of Ontarians are middle class and simply cannot afford to retain their own lawyer, resulting in a huge number of separating spouses representing themselves in Family Court.

On one hand, the highly demanding nature of a Family Court case, coupled with the high cost of operating a law practice, render legal advice and representation from private lawyers very costly. On the other hand, every parent forced to defend a CAS proceeding or facing a child custody hearing must have legal advice and representation, and not be forced to navigate through the court system, prepare important court documents, deal with opposing counsel and make representations to judges on their own. This is further aggravated when the person needing a lawyer is a victim of domestic violence, an immigrant or the weaker party.

The absence of lawyers in such Family Court cases is a disservice to the public, to the legal profession, to the court staff, to the judges and, most importantly, to the unrepresented spouse.

In the Divisional Court decision of Cicciarella v. Cicciarella released on June 30, 2009, the 3 judge panel considered this very problem. In that case, the wife appealed a trial judgment dealing with property division.

The husband had been represented by a lawyer throughout this court proceeding and then, three weeks before the trial, he discharged his lawyer and chose to represent himself. On this appeal, the wife claimed that the trial judge interfered with the trial process in such an unreasonable and unfair manner that the trial judge precluded her lawyer from calling relevant evidence, restricted her lawyer’s cross-examination of the husband, conducted his own improper examination of the husband and refused to listen to her lawyer’s arguments.

The panel in Divisional Court stated that the increase in the number of litigants who appear without legal representation can pose special challenges for busy trial judges. They stated that leeway is allowed for a self-represented party, especially as it relates to procedural matters. The extent to which judges should afford an unrepresented litigant additional leeway with respect to court procedures and the rules of evidence is an increasingly vexing problem for courts at all levels. The panel stated that it is generally recognized that the trial judge should provide some assistance to an unrepresented litigant. But at the same time, this must be done in such a way as not to breach either the appearance or reality of judicial neutrality.

The 3 judge panel wrote that “the judge cannot descend into the arena from the bench and advocate for the self-represented litigant.”

The problem has become so grave that, in 2006, the Canadian Judicial Council adopted a “Statement of Principles on Self-represented Litigants and Accused Persons.” The Statement refers to a number of responsibilities expected of judges, such as the responsibility to promote opportunities for all persons to understand and meaningfully present their case, regardless of representation, and to promote access to the justice system for all persons on an equal basis, regardless of representation.

The panel in Divisional Court concluded that where one spouse is represented by a lawyer and the other is not, a trial judge must balance the issues of fairness, be mindful of both spouses and not allow assistance to a self-represented spouse result in the represented spouse’s rights being overridden.

In the end, the wife’s appeal was granted, the case was sent back for a new trial and the husband was ordered to pay costs of the appeal in the sum of $17,666.

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What is a motion?

A motion is a court procedure that is used to obtain certain types of orders from a judge. You can bring a motion to ask for an order to resolve an issue on a temporary basis or to change an order that has already been made. For example, a motion may be brought for an order determining support payments or visitation rights on a temporary basis until these issues are settled between the spouses or finally determined by a judge at a trial.

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When can you bring a motion?

Under the Family Law Rules (Ontario), you can bring a motion only after you attend a case conference. However, there are some exceptions to this general rule. A motion can be brought before a case conference in situations of hardship or urgency (for example, if you need to apply for a restraining order because of immediate danger to the health and safety of you or your children), or if you need directions from a judge (for example, you may need to ask for a Judge’s permission to file an answer late if you have missed the deadline for filing).

If you bring a motion before a case conference, the judge will first decide whether your case fits within one of these exceptions. If the judge decides that it does not, your motion will only be heard after a case conference and you may be responsible for paying the other party’s costs.

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Who can bring a motion?

Anyone who is a party to a case or anyone (other than a child) who is affected by the case, can bring a motion. The person who brings the motion is the moving party. The person who responds to the motion is the responding party.

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How do you bring a motion?

In order to bring a motion, you must prepare, serve the other spouse with, and file in court, a notice of motion and sworn affidavit. The moving party must get a date for the motion from the court office and include this date in the notice of motion so that the other party is notified of the hearing date. After the other party is served with the notice of motion and sworn affidavit, a sworn affidavit of service must be filed in court to establish that the other party was served with the notice of motion and sworn affidavit. In most cases, you must attend before a judge to argue the motion. If the motion deals with financial issues such as support, then you must also prepare, serve and file a sworn financial statement. After all your documents are prepared, served and filed, the other party has the right to also serve and file a responding affidavit.

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Can a judge make a final order at a Case Conference ?

Rule 17 of the Family Law Rules expressly empowers a judge to make an order at a Case Conference.  In addition to this provision, Rule 2 directs judges to actively manage cases and to dispose of cases that do not require a trial.  However, Case Conferences were created as an alternative to contested hearings and to afford the spouses an opportunity to consider self-made settlements guided by judges, as opposed to judge-imposed conclusions.

In A.B. v. N.L.A., CanLii (2013) ONSC 2990, Justice Czutrin stated that “conferences are intended to assist in getting parties to a settlement or to trial readiness and to attempt to avoid motions. Conferences are not intended to be used as venues in which to determine opposed substantive matters on a final basis. They are not meant, and could not have been intended, to prevent a person from having an opportunity to be fairly heard according to the Rules. At conferences, it may often be appropriate to make procedural orders or temporary orders to preserve positions, provide for temporary support (based on sworn financial statements and undisputed facts), ensure necessary disclosure and move the case along. However, seldom (if ever) should a final order be made at a conference when it is opposed and not on consent.”

In that case, the court was faced with an appeal by a father from an order made by a judge at a Case Conference.  In overturning the case under appeal, the court stated “the Family Law Rules enacted in 1999 sought to change the direction of what was seen as a very adversarial family process. The most significant change was the requirement of a Case Conference before evidence could be exchanged by way of affidavits. The goal was to have a judge meet with the parties, prior to the exchange of accusatory affidavits, so that a judge might assist the parties in resolving as many issues as possible prior to any motions being brought, or to avoid motions entirely. This was the birth of the required Case Conference prior to any motions or exchange of affidavit evidence.”

Justice Czutrin quoted Justice Kiteley’s decision in Robinson v. Morrison [2000] O.J. No. 2973 that addresses the appropriateness of a final order made by a Case Conference judge. The concern in Robinson was the lack of procedural fairness afforded to the party who was unaware that a Case Conference could result in an order.  By overturning another lower court ruling, Justice Kiteley stated:

“The Family Rules institutionalize conferences as vehicles for problem resolution. They do not undermine or defeat the rules of natural justice. Before any substantive order is made, a litigant is entitled to notice of the case she must meet, entitled to an opportunity to respond to that case and entitled to an opportunity to be heard. This case was not fairly and fully heard when all of the elements of procedural fairness were not present. The appellant received no notice that an important order such as this would be sought. She knew from the application what case she would have to meet at trial, but she had no notice of what case she would have to meet as to the interim access. Her counsel had an opportunity to make submissions which consisted largely of pointing out the factual differences in the material and resisting the making of an order without notice. Those submissions do not constitute the right to be heard.”

Family Court judges continue to struggle with the right balance between actively managing cases by making orders that can move cases towards a final resolution, while at the same time ensuring procedural fairness.

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Is a Family court judge permitted to direct the spouses to privately settle a case where one spouse is representing himself ?

In the case of Glaspy v. Glaspy [2011] N.B.J. No. 405, the judge did just that. However, in a decision released on November 17, 2011, a 3 judge appeal panel of the New Brunswick Court of Appeal subsequently determined that this was not appropriate.

In that case, the judge adjourned a hearing and directed the husband (who was representing himself) and the wife’s lawyer to another room in the courthouse with instructions to attempt to reach a settlement.  In the meantime, the judge proceeded to hear other cases.  About 4 hours later, they emerged from their meeting with terms of settlement that they wished to place on the court record.  The terms of settlement increased the total monthly support to be paid by the husband from $1,100 to $2,642 per month.  In addition, the husband undertook to pay all of the child’s university tuition and book expenses.

Later, the husband appealed this order and argued that he felt pressured to enter into the settlement.

The appellate court agreed and concluded that:

“Settlement Conferences are to be conducted under the direction of a judge in a fair manner.  While that direction should not be interpreted to require the judge’s presence with the parties during all of their discussions, it certainly does not permit the judge to adjourn a hearing, task an unrepresented litigant to meet with experienced legal counsel, proceed to conduct other cases and then simply endorse that which the parties subsequently agree upon.  A Settlement Conference authorized by the Rules of Court contemplates that a judge will be fully apprised of the position of both parties, assist the parties in understanding the issues, ask questions to explore potential common ground, in some cases provide his or her opinion on the potential outcome if the matter proceeds to a hearing and, generally, direct the discussions in a fair and impartial manner.  Obviously, Settlement Conference judges must be exceedingly vigilant where one party is unrepresented and the other has the benefit of legal counsel.”

In conclusion, the appellate court decided that the judge’s failure to conduct a proper Settlement Conference entitled the husband to a new hearing.  But before doing so, the appellate court cautioned that “feeling pressured to reach an agreement cannot, in and of itself, constitute a ground of appeal. No doubt, many litigants who resolve matters by out-of-court settlements feel some degree of pressure to do so by their counsel, counsel opposite and, on occasion, by judges.”

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Can a court order made on consent be appealed ?

Every day in courts all over Ontario, family law lawyers are negotiating agreements for clients by email, by telephone, by fax and even in the hallways of court.  Some of these agreements are then turned into court orders, signed by judges.  At times, these agreements are made by spouses on their own, without lawyers, or with only one spouse represented by a lawyer.

Judges are largely unwilling to later overturn a court order that the parties negotiated, especially if it was based on a complete understanding of their rights and based on full financial disclosure.  The thinking is that spouses are at liberty to consider their options and then deliberately make sacrifices and concessions to achieve a final settlement.  Final settlements are intended to be exactly that, final.  Spouses are rarely afforded “buyer’s remorse” or a cooling-off period during which they can withdraw from the agreement.

The entire body of statutory law, case-law and social science research in family law is geared towards bringing families to a final and forever settlement.  Thus, appealing a final court order, one that is made on consent, seems to be antithetical to Family law.

Having said that, section 133(a) of the Courts of Justice Act provides that a court order made on consent may be appealed with leave (i.e. permission) of a judge.

Donald Brown writes in his loose-leaf publication Civil Appeals (Toronto: Canvasback Publishing, 2009):

The underlying rationale for requiring leave would appear to be that a consent order is a contract of the most formal nature, made in the context of adversarial judicial proceedings. Accordingly, apart from orders dealing with the custody of a child (such as a consent adoption order), the same principles applicable to contracts are applied, and leave to appeal is unlikely to be granted unless the consent judgment was obtained by fraud, duress, mistake, or some other vitiating circumstance.

In the recent case of Ruffudeen-Coutts v. Coutts [2012] O.J. No. 400, the Ontario Court of Appeal dealt with an appeal from a judgment obtained on consent. The judgment dealt with custody and access to a 2 year old child. The mother sought leave to appeal a judgment granting the parties’ joint custody and ordering the parties to share primary residence.  The mother argued that she was under duress by comments made to her by the presiding judge.

After bringing an emergency motion, the mother obtained a temporary consent order providing her with primary care of the child and providing the father supervised access. The mother had provided affidavit evidence that she had taken 14 months off from her job to be the child’s sole caregiver and that the father had little interest in the child.  She claimed that the father was abusive to her and that she feared for the safety of herself and the child. The father denied the allegations and claimed that the mother had concocted them to keep him from the child.

At the father’s motion for unsupervised access to the child, the judge made it clear that he was displeased with the mother’s conduct of the litigation, her allegations against the father and her emergency motion at Christmas time. He found that she intended to alienate the child from the father.

Prior to a break, the judge indicated that he was considering changing the child’s primary residence to be with the father. After the break, the parties indicated that they needed more time to resolve the issues between them. The judge made it clear that the parties needed to reach a resolution before the close of court that day. The parties went out to draft a consent order and returned with an agreement providing for shared custody and shared primary residence.

Later, on appeal, the mother claimed that she entered into the agreement under duress.  The Court of Appeal dismissed the mother’s appeal and held that the mother’s claim of duress failed. It was found that the mother had been represented by counsel and there was no suggestion that counsel had rendered ineffective advice or assistance. Ultimately, the court felt that the judge gave due consideration to the child’s best interests in rendering the judgment and refused to grant the mother leave.

In closing, be careful what you agree to. While there is a mechanism to appeal consent orders, it is not an automatic right, and success is not guaranteed.

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What does Ontario’s Chief Justice Warren Winkler think about Ontario’s Family Court System?

Family-law reform “has been studied to death. We have to sit down with a white piece of paper and redesign the system. It has to be made cheaper, faster and simpler, without convoluted rules.”

The Globe & Mail’s Kirk Makin reported on March 25, 2011 that the Chief Justice recently made this comment and also stated:

“Everywhere I go, there is a constant refrain. The Family law system is broken and it’s too expensive…my strategy has been to get a discussion going. I’m the bully pulpit. But I get frustrated when not very much happens.”

He believes that each case should be triaged to decide which track is best suited for that family, with the same judge shepherding it along.

“We have to make the system faster, less technical and not have these convoluted rules”, the Chief Justice stated.

The type of change endorsed by Chief Justice Warren Winkler will involve the input and collaboration of many groups – the courts, government, legal aid, and yes, the legal profession.

I believe that the Law Society should be at the centre of this issue – studying, researching, partnering and solving the problem.

I am running as a candidate in this Bencher election because I hope to be instrumental in repairing Ontario’s Family Court System.

www.BenmorForBencher.com

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Who needs Hollywood when we have Family Court ?

When Ontario’s Superior Court of Justice Quinn was assigned the case of Larry Bruni v. Catherine Bruni in 2010, he was not looking for entertainment.  What he found was a family in crisis with parents feuding over their children.

After Larry and Catherine were married, they had two children, 13 year old Taylor and 11 year old Brandon.  Larry’s close friend was Sam.  They worked together.  Larry was the best man at Sam’s wedding.  A few years later, Sam separated from his wife.  This was around the same time that Larry and Catherine also separated.  Sam and Catherine are now together and live very close to Larry and his new partner.

After Mr. Justice Quinn presided over this trial (where neither parent was represented by a lawyer), he sat down to write his judgment.

In his opening paragraph, he writes:

“Paging Dr. Freud. Paging Dr. Freud.”

And then, he continues:

“This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention.  Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment.”

The following are some quotations of Mr. Justice Quinn in the judgment:

“In the midst of this social stew, perhaps it is not surprising that Larry and Catherine are having problems, serious problems, regarding the custody of, and access to, their children.  The source of the difficulties is hatred: a hardened, harmful, high-octane hatred.  Larry and Catherine hate each other, as do Larry and Sam.  This hatred has raged unabated since the date of separation. Consequently, the likelihood of an amicable resolution is laughable (hatred devours reason) and a satisfactory legal solution is impossible (hatred has no legal remedy).”

“At one point in the trial, I asked Catherine: “If you could push a button and make Larry disappear from the face of the earth, would you push it ?
Her ‘I just won a lottery’ smile implied the answer that I expected.”

“It is likely that, in the period 2004 to 2006, Larry was having one or more extramarital affairs.  Interestingly, Larry’s father was married 5 times, in addition to going through several relationships.  Perhaps there is an infidelity gene.”
“Larry gave evidence that, less than one month later, Catherine “tried to run me over with her van.”  This is always a telltale sign that a husband and wife are drifting apart.”

“On November 21, 2006, Catherine demanded $400 from Larry or her brother was “going to get the Hells Angels after me.”  The courtroom energy level in a custody/access dispute spikes quickly when there is evidence that one of the parents has a Hells Angels branch in her family tree.  Certainly, my posture improved.  Catherine’s niece is engaged to a member of the Hells Angels.  I take judicial notice of the fact that the Hells Angels Motorcycle Club is a criminal organization (and of the fact that the niece has made a poor choice).”

“On August 13, 2007, Catherine’s niece (Donna), telephoned Larry “and told me I will get a bullet in my head if I don’t sign the adoption papers.  She called back later and told me I’m as good as dead.”  She called a third time “to tell me her father and uncles are coming to kill me.”  Donna is a devotee of the literary device known as “repetition for emphasis.”  I do not know whether Donna is the niece who is engaged to the Hells Angels member.  If she is, they may be more compatible than I initially surmised.”

“Larry, who regularly drives by the residence of Sam and Catherine, often shoots the finger. A finger is worth a thousand words and, therefore, is particularly useful should one have a vocabulary of less than a thousand words.”

“On another occasion in July of 2009, Larry said to Taylor: ‘You put shit in this hand and shit in this hand, smack it together, what do you get ? Taylor.’  I gather that this is Larry’s version of the Big Bang Theory.”

“The parental alienation in this case reflects an intent by Catherine to destroy the relationship between Taylor and Larry; it is shocking conduct.  It also amounts to a hideous repudiation of the relationship between Catherine and Larry as co-parents of Taylor.  The harm here probably is irreparable.”

In his final expression of exasperation, Mr. Justice Quinn writes:

“It is touching how a trial judge can retain his naivety even after 15 years on the bench.”

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Can a Judge make a decision without giving adequate reasons?

No. At least that is what was decided on August 4, 2006 by the Ontario Court of Appeal in the case of Lawson v. Lawson.

In that case, the spouses could not agree on anything. They proceeded to trial on nearly every issue that stems from a separation, including custody of their children, child support, spousal support, property division and their matrimonial home.

The Lawson couple were married in 1990. They separated in 2002, after 12 years of marriage. At the time of separation, they had 3 young children.

Shortly after they married, the couple moved into a house on a property on the Niagara Escarpment just outside of Grimsby, Ontario. The house had been previously occupied by the husband’s parents. The husband’s father had divided his farm into two parcels, one for each of his sons. The couple lived on the property for the duration of their marriage.

The trial lasted 9 days.

There were 20 witnesses who testified at trial.

After all of this, the trial judge made a final decision, but barely gave his reasons.

The husband objected to the entire order and appealed it.

As a result, the Ontario Court of Appeal examined the responsibility of a Family Court Judge at trial. It stated:

“It is the duty of a judge to give reasons for decision; it is an inherent aspect of the discharge of a judge’s responsibilities. The appellant (husband) is entitled to reasons that are sufficient to enable him to know why issues were decided against him. The reasons need to be adequate also so that he can bring a meaningful appeal and this court is able to properly review the order. The reasons do not need to be perfect. Nor do they necessarily need to be lengthy. But, they must be sufficient to enable the parties, the general public and this court, sitting in review, to know whether the applicable legal principles and evidence were properly considered.”

In the end, the appellate court unanimously agreed that the appeal should be allowed, in part. It changed the order for child support and directed that the issues of spousal support and equalization of property return to court for a new trial.

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What is a "competent lawyer"?

The Law Society of Upper Canada, the governing body that licenses and regulates all lawyers practicing law in Ontario, is also responsible for ensuring that all lawyers comply with the Rules of Professional Responsibility which define what it means to be a “competent lawyer”.

Rule 2 of the Rules state that a “competent lawyer” is a lawyer who has and applies relevant skills, attributes and values in a manner appropriate to each matter undertaken on behalf of a client, including (a) knowing general legal principles and procedures and the substantive law and procedure for the areas of law in which the lawyer practices, (b) investigating facts, identifying issues, ascertaining client objectives, considering possible options and developing and advising the client on appropriate courses of action, (c ) implementing, as each matter requires, the chosen course of action through the application of appropriate skills, including legal research, analysis, application of the law to the relevant facts, writing and drafting, negotiation, alternative dispute resolution, advocacy and problem-solving ability, (d) communicating at all stages of a matter in a timely and effective manner that is appropriate to the age and abilities of the client, (e) performing all functions conscientiously, diligently and in a timely and cost-effective manner, (f) applying intellectual capacity, judgment and deliberation to all functions, (g) complying in letter and in spirit with the Rules of Professional Conduct, (h) recognizing limitations in one’s ability to handle a matter or some aspect of it, and taking steps accordingly to ensure that the client is appropriately served, (i) managing one’s practice effectively, (j) pursuing appropriate professional development to maintain and enhance legal knowledge and skills, and (k) adapting to changing professional requirements, standards, techniques and practices.

As you can see, a competent lawyer is not only a person with a law degree and licence to practice law, but a lawyer who possesses a long list of skills, attributes and values that will benefit the client in a time of need.

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How can communication between separated parents be improved?

Communication between separated or divorced parents can be problematic. Depending on the age, health and circumstances of the child, these parents may find it necessary to communicate with each other anywhere from several times daily to at least weekly.

For some parents, ongoing conflict can cause communication to degenerate, leading to more difficulties. With this in mind, several strategies are often suggested, such as telephone contact or a communication book. Both of these strategies pose problems.

The telephone requires hearing the emotional tone of the conversation which can easily lead to the conversation degenerating. Sometimes a parent will tape the conversation for use in court, but then it becomes questionable if this party goaded the other to increase conflict for the taped conversation. Further, clandestine taping inflames the bad feelings of the other parent who may seek retribution.

Communication books or notes have the benefit of providing a permanent record and keeps the parents apart, but poses two other concerns. The first is that parents rely on the child as courier. This places the child directly in the middle of the parental conflict by observing the parent’s emotional response as the message is read. Second, if the message is only delivered at the time of access, planning is difficult. Communication requires a dialogue to accomplish agreements as simple as access arrangements. With a communication book, the messages often take the form of directives from one parent to the other with the alternate parent left feeling controlled. So as a solution, this too can contribute to ongoing conflict between parents.

Enter email. Email provides an alternative communication tool to help parents transmit messages. It allows for a cooling off period prior to replying and provides for a permanent record. The use of email keeps the communication away from the child and removes the emotional impact carried by voice.

Because parents can respond back and forth, it also allows for dialogue and so reduces the risk of one parent just providing directives as per the communication book. The email trail can be reviewed if a parent has missed a point and also serves as a clear reference if a parent forgets the content of an agreement. The electronic record can easily be printed by either parent. As such, both are more likely to remain on good behaviour knowing the record can be used in court or be made public.

Next time separated parents in conflict need to chat where conflict exists, try email, but consider these guidelines:

As a communication strategy, email is not recommended to necessarily make a poor situation better, but it is suggested as a potential solution to keep a poor situation from getting worse. In the event that there is a court ordered restriction on face-to-face or voice contact, email may provide a reasonable solution for parents to still communicate.

Gary Direnfeld is a child behaviour expert, a social worker, and the author of Raising Kids Without Raising Cane (Secrets of the Trade 1992). Since graduating with a Master of Social Work degree from the University of Toronto in 1985, Gary has not only helped people get along or feel better about themselves, but has also enjoyed an extensive career in public speaking. He provides insights on issues ranging from child behaviour management and development, to family life, to socially responsible business development.

Courts in Ontario, Canada, consider Gary an expert on matters pertaining to child development, custody and access, family and marital therapy and social work.

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Is a person presumed innocent of a criminal charge in family court?

In the 2003 decision of C.H. v. Durham Children’s Aid Society, the family court judge decided that the father’s criminal charges demonstrated a pattern of physical altercations and anger management issues. Even though the criminal charges were eventually dismissed, they were relevant to deciding what was in the children’s best interests.

The two children had been in the care of the Children’s Aid Society since April 11, 2001. The father was granted supervised and semi-supervised access. On April 29, 2002, the father was charged with assaulting his girlfriend. He was in jail until the criminal charges were dismissed on June 20, 2002, after which time the access visits resumed. On September 5, 2002, the father was again criminally charged with assaulting his girlfriend. He alleged that she assaulted him, but she was not charged. The father’s criminal charge was dismissed on September 24, 2002.

The family court judge stated that “the father’s recent behaviour had been problematic. He had been inappropriately angry and confrontational with Children’s Aid Society. When he was granted access, he did not abide by reasonable expectations…He encouraged the children to lie about the visits. He allegedly threatened harm to one of the children’s caregivers…He increased the stress on at least one of the children by a veiled threat that he knows where their mother lives. He continues to be involved in episodes of domestic strife which result in criminal charges being laid. Although these charges are eventually dismissed, there is a pattern of physical altercations and anger management issues.”

The father appealed this decision, but the appellate court decided that the family court judge’s decision was correct.

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What happens when a spouse makes a false or exaggerated complaint of domestic assault to the police?

This is by far one of the most challenging dilemmas that face matrimonial lawyers.

The telephone call comes in over the weekend. The client was arrested by the police for domestic assault. She or he was released on bail terms that prevent her/him from returning home or having contact with her/his spouse until the criminal case is resolved (which can take months). In the meantime, her/his contact with the children is restricted.

The details come out.

The couple was living in the same home. For months, there have been arguments. Despite the tension in the home, they have been both caring for the children and meeting their daily needs. Neither spouse was willing to vacate the matrimonial home (although each wanted the other to move out). But, on this night, the couple had a bigger than usual fight. Words were exchanged. Tempers ran high. There was pushing and shoving. Eventually, things cooled down. A few days passed. Then one spouse decides to use this event to remove the other spouse from the home. That spouse attends the police station and makes a complaint of domestic assault. The police take a statement. Under pressure to ensure that reports of domestic violence are properly addressed, the police arrest the other spouse and remove her/him from the matrimonial home.

Now the divorce case begins.

One spouse is at a tremendous disadvantage. She/he is not allowed into the home. She/he cannot communicate with the other spouse. She/he has no (or limited) access to the children. She/he does not have a place of her/his own to spend quality time with the children. The court system is severely back-logged, so that the case takes months to be presented to a judge.

The spouse who was arrested is in dire financial straits. She/he needs to pay rent, while still required to contribute to the household bills and, usually, even pay child support to the spouse remaining in the home with the children. On top of this, she/he needs to pay two lawyers – a criminal lawyer and a matrimonial lawyer.

Devastating.

This really does happen.

But what doesn’t usually happen is a Family Court Judge taking charge of the situation, identifying the misconduct, especially as it affects the children, and finding an immediate and appropriate remedy.

This happened recently in the Orangeville case of Shaw v. Shaw [2008] O.J. No. 1111.

On March 19, 2008, the Honourable Mr. Justice Pugsley was confronted with the case of Stephen Edward Shaw and Alison Shaw.

The Shaws were married in 2001 and separated in 2008. They had children who were 6 and 2 years old.

On March 11, 2008, Mr. Shaw attended at the Shelburne police station and complained that his wife had assaulted him on February 9, 2008 (one month earlier) while at a social function. Ms. Shaw was arrested and charged with assault. The resulting bail conditions barred her from the matrimonial home and stripped her of her custodial rights to the chil-dren. While Ms. Shaw was in police custody, Mr. Shaw obtained an emergency court order for custody of the children. The case came back before Mr. Justice Pugsley on March 19, 2008.

In his decision released a few days later, Mr. Justice Pugsley discussed his observations of this recurring problem – how police and criminal procedures impact and pre-empt spouses’ family law rights.

He stated:

“the events after the arrest of Ms. Shaw do not, in retrospect, show the police, the Crown, counsel or the criminal judicial system in a good light, although her story is commonplace.

These events have become routine and predictable in almost every allegation of spousal assault such that there is presumably some policy guiding the police and the Crown attorney and forestalling professional discretion in all such matters, no matter how remote the assault may be in time or indeed how trivial the contact.

Spouses of every walk of life and often with completely unblemished prior character are routinely detained for a formal bail hearing for such assaults. Invariably, the defendant (not yet convicted) is excluded from his or her home and prevented from exercising custody of, or access to, the defendant’s children without any consideration of the factors that this court must apply by law before determining incidents of custody or access.

This is not for one moment to diminish the impact of spousal abuse on family members and children in Canada. Spousal assaults are by nature serious and there are very sound policy reasons to lay such charges and have them proceed through the judicial system to ultimate resolution if not diverted.

I observe, however, that the damage of which I speak is not from the laying of the charge – this will happen in any event, regardless of the manner in which the defendant is brought before the court. The way that the criminal justice system approaches the commencement of these matters, however, often wreaks family law havoc with the family unit of the defendant and the complainant, and in particular the children of those parties.

Family courts decide custody and access issues on the basis of statute and case law defining the best interests of the children. The criminal justice system pays no attention to such interests because it is not geared up to do so nor are the participants widely trained in how the actions of the system – from the officer who refuses to release the defendant at the station, to the duty counsel who allows the defendant to agree to inappropriate conditions of release out of expediency – effect the lives of the members of the defendant’s family. Similarly the Superior Court is tasked with the duty of adjudicating the respective rights of the parties to remain in the matrimonial home pending the resolution of the matrimonial litigation. Routine orders excluding a party from the common home of the parties until the end of the criminal matter without thought to the consequences thereof, and without a remedy short of a bail review, place one party in a position of immediate superiority over the other party for as long as it takes (perhaps a year) for defended criminal charges to be resolved.

Such rote treatment of all matters of domestic assault can lead, on the one hand, to con-cocted or exaggerated claims of criminal behaviour or, on the other hand, to innocent defendants pleading guilty at an early stage out of expediency or a shared desire with the complainant to start to rehabilitate the family unit.”

Mr. Justice Pugsley stated that Ms. Shaw’s case illustrated the dangers of speedy or dis-cretionless criminal procedure.

In cautioning anyone who read this decision, he stated:

“I can only hope that no licensed lawyer in this province would have advised the father that the fastest way to get custody and exclusive possession of the family home was to report the mother’s transgressions to the police.”

“I can only hope that the (police) officers whom he (Mr. Shaw) saw do not believe that complainants in criminal matters decide whether charges are, or are not, to be laid.”

In the end, Mr. Justice Pugsley acted fast to return this family to the status quo that pre-existed the criminal charge. Specifically, the children were to spend equal time with each parent on a weekly rotation.

Even though this court took the time to remedy the problem in this family’s case, there are countless other cases where one spouse is severely prejudiced by the unfair operation of the criminal court process.

Let’s hope that this decision signals a fresh look at the interplay between criminal law and family law procedures and how this affects a spouse’s legal rights.

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Do the police have the legal authority to enter your home to end an argument that turns physical?

In the April 29, 2003 case of R. v. Sanderson, the Court of Appeal of Ontario decided that they do. In that case, David Sanderson assaulted his girlfriend, Karen MacLaurin, and threatened to kill her dog and burn her property. Ms. MacLaurin fled the house shoeless and in her pyjamas in the middle of the night and went to a friend’s apartment. The police were called, and four officers accompanied Ms. MacLaurin to the house to retrieve her property. Ms. MacLaurin let herself and the officers into the house with a key. She wanted to get some of her belongings from the bedroom, but Mr. Sanderson stood in the bedroom doorway and refused to move out of the way when he was asked to do so by the police. He was arrested and criminally charged. At trial, Mr. Sanderson was convicted of a number of criminal offences relating to the alterca­tion with Ms. MacLaurin, but he was acquitted of obstructing a peace officer on the basis that the conduct of the police in the residence was unauthorized. The trial judge held that once the officers decided not to arrest Mr. Sanderson upon their arrival at the house, they ought to have left the house and pursued alternate remedies to protect Ms. MacLaurin’s property, and should have advised Ms. MacLaurin to wait and do nothing until the morning.

However, the Court of Appeal of Ontario reversed this decision and ruled that the police had the authority to enter Mr. Sanderson’s home in order to discharge their duty to preserve the peace and protect property, and their entry did not involve an unjustifiable use of police power. The appellate court stated that there is now a much greater recognition by the police of the extent and seriousness of the consequences for victims of violence when the police fail to respond. It is very much in the public interest that the police, in the discharge of their public duties, be willing and able to assist victims of domestic violence in leaving their relationships and their residences safely with their belongings. That is precisely what the police did in this case.

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Can you sue the police for failing to investigate a complaint of domestic violence?

That is exactly what 12-year-old Michelle Mooney and her seven-year-old sister Kristy did, along with their mother Bonnie, in the case of B.M. v. British Columbia (Attorney General), Bonnie’s common-law husband Roland Kruska broke into her home on April 29, 1996 and shot and killed Bonnie’s friend and wounded Michelle. He then turned the gun around and killed himself.

In 1991, Bonnie began to live with Roland Kruska. The relationship was deeply troubled. Roland had a history of serious violence. His criminal record included convictions for trafficking, breaking and entering, theft, assault causing bodily harm, unlawful confinement, sexual assault and manslaughter.

Prior to the fatal event of April 29, 1996, there were four incidents of domestic violence between Bonnie and Roland. In the last one, Roland flew into a jealous rage and choked her with his hands.

Bonnie testified that she feared Roland and felt powerless under his control, but after each incident, Roland expressed remorse, and that is why she took him back.

Bonnie did not complain to the police about the first three incidents, but she did report the last assault. As a result, Roland was convicted of assault. Even after this conviction, Bonnie was still in contact with Roland because their property division had not yet been resolved. Roland wanted $15,000 for his interest. They agreed to meet on March 11, 1996, at a park, because, Bonnie said, she felt it was safe to meet in an open public place. Soon after they met, Roland became agitated, and when Bonnie attempted to leave, Roland moved his truck into her car’s path. He then chased her through the downtown area. Bonnie drove through stop signs and red lights to evade him. Finally, she circled a block where she knew her friend lived, sounding her horn to attract attention. Roland gave up the chase at that point.

Bonnie then proceeded to the RCMP to complain about Roland’s behaviour. Bonnie provided a written statement to the RCMP. Constable Craig Andrichuk was assigned. Constable Andrichuk examined Bonnie’s written statement, questioned her briefly about her encounter and obtained a copy of Roland’s criminal record. After speaking with his commander, Constable Andrichuk determined that there were insufficient grounds to arrest Roland. He recommended that Bonnie see a lawyer about obtaining a restraining order.

Between then and the fatal event, there were a few telephone calls between Roland and Bonnie. On the morning of April 29, 1996, they had a heated telephone conversation. Later that night, Roland came to Bonnie’s home and smashed in the sliding glass door with the butt of his shotgun and entered her home. Bonnie and her two daughters were home with Bonnie’s friend. Bonnie leaped out of her bathroom window. Roland then shot and killed Bonnie’s friend. Roland then saw Bonnie’s daughter Michelle sitting on the stairs and shot her in her right shoulder. After setting fire to the house, Roland killed himself.

In this case, the trial judge was asked to award compensation to Bonnie, Michelle and Kristy. After hearing all of the evidence, the trial judge decided that the physical and emotional injuries suffered by the Mooneys were significant and assessed Michelle’s damages at $150,000, her loss of future income at $100,000 and cost of future care at $25,000. He also assessed Bonnie’s damages at $75,000 and Kristy’s damages at $15,000.

But when the trial judge was asked to find that the RCMP and Constable Craig Andrichuk were liable for these injuries, he ruled that the police failed in their duty to the Mooneys, but could not find a causal connection between this failure and the Mooneys’ injuries. The lawsuit was dismissed.

On July 22, 2004, the Mooneys appealed this decision to the British Columbia Court of Appeal to examine whether the failure of the RCMP to investigate a complaint of domestic violence can result in liability. They argued that the police’s failure to act added to the already existing risk of violence and that liability must follow.

The appellate court confirmed the trial judge’s findings that Constable Andrichuk’s investigation fell short of the required standard of care, but that this failure did not mean that a proper investigation would have prevented the events of April 29, 1996.

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Is it legal to secretly videotape your child's nanny?

When Carolyn Jamieson was criminally charged with assaulting 20-month-old Leandra, she argued that the videotape should be excluded from evidence because of her constitutional right to privacy.

On April 30, 2004, the Ontario Superior Court of Justice, in R. v. Jamieson [2004] O.J. No. 1780, dismissed the nanny’s application to exclude the videotape.

Leandra was born with multiple medical challenges. She underwent corrective surgery for a gap in her esophagus. It was not a complete success. When she was one year old, she had heart surgery. Leandra had hearing and vision limitations. She requiredtwenty-four-hour care. Several private agencies supplied nurses. Comcare was one of the agencies. Carolyn Jamieson was employed by Comcare. She became Leandra’s primary care nurse.

In March 2002, Leandra’s parents observed Leandra to have facial and other bruising. Some of her hair was found in the crib. Leandra was later found to have a fractured left leg and a swollen arm. Her parents were concerned and sought various medical explanations. They queried that the cause of these injuries might be physical abuse by one of Leandra’s nurses. They decided to install a “nanny camera.” The camera, which was concealed, was focused on the crib located in the living room.

Leandra’s parents were devastated when they watched the videotape recording Ms. Jamieson assaulting Leandra. They immediately called the police and took Leandra to the hospital.

In the end, the court ruled that the videotape would be admitted at trial because it was cogent evidence of the crime and was an accurate representation of the actual event. The court went on to say that because this was a very serious criminal charge of aggravated assault, the rights of the child had greater priority over the accused’s right to privacy and that excluding this evidence would bring the administration of justice into disrepute.

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Can a child’s personal diary be used in a family court case?

In the May 31, 2004 case of Children’s Aid Society of Haldimand-Norfolk v. C.C, Justice Thibideau found this to be a novel point of law and was forced to consider the competing arguments.

The Children’s Aid Society (CAS) wanted to rely on the information in the diary detailing the child’s fears as part of an ongoing investigation of child abuse and as part of an effort to protect the child from abuse.

The court found that, on the one hand, CAS’ mandate is protect children whom are in need of protection and, therefore, CAS needs to use the diary to prove that its intervention in the family’s life is justified. On the other hand, a 12 year old child has a right to privacy and should not have to disclose the private and confidential notes in her diary, especially if this disclosure would cause serious injury to her relationship with her parents.

CAS argued that that, if all documents of a private nature that are made by children were not usable, then children would be at a much greater risk of abuse.

In the end, since the child had disclosed to the investigating CAS worker what was written in the diary, the court decided that the diary would not be disclosed, but that the verbal evidence of what the child disclosed to the CAS worker could be used.

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Who is the voice for Ontario’s vulnerable children?

Since 1985, the Government of Ontario’s Child Advocate has the mandate to represent children and youth in the child welfare system (such as children cared for by children’s aid societies in foster homes and group homes), children in the mental health system, children with physical and developmental disabilities and children in schools for the deaf and blind.

Ontario law requires that such vulnerable children are made aware of their rights. They should not suffer any unacceptable treatment or violence in their residential settings. Children’s special needs or the unique needs of children of aboriginal descent must be respected. Such children are entitled to have privacy to contact their family, a lawyer or an advocate, and for complaints to be made to the Child Advocate.

Recently, the Child Advocate was involved in a lawsuit brought by the parents of severely disabled children who sued the Government of Ontario for being forced to give up custody of their children to the state in order to access the proper care that their children needed – estimated to cost as much as $200,000 per year for each severely disabled child.

For the past 14 years, Judy Finlay has been Ontario’s Chief Child Advocate and employs 10 Child’s Advocates across the province.

New legislation intends to make the Child Advocate an officer of the legislature, to be selected by an all-party legislative committee and to report directly to the legislature so as to ensure accountability. Currently, Ontario’s Child Advocate reports to the Minister of Children and Youth Services.

The proposed changes are based on a report called ‘A New Advocacy Model for Child and Youth Advocacy in Ontario’ that was completed in 2004.

Ontario’s Child Advocate can be reached at 1-800-263-2841 or by email to advocacy@idirect.com

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Can a Teenage Child be Disciplined With Force?

In 2004, the Supreme Court of Canada considered the constitutionality of section 43 of the Criminal Code in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) (2004) 234 D.L.R. (4th) 257.

Section 43 is the section of the Criminal Code that provides a defence to parents and teachers who use force to discipline a child. It reads:

“Every school teacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.”

Then in 2006, a father was criminally charged for assaulting his 15 year old daughter. He relied on section 43 to defend himself on this charge.

The father’s name is Barry. He was 57 years old and was married for 37 years. He and his wife raised their 4 daughters. This case related to his youngest daughter.

She was rebellious, had been sneaking out at night without her parents’ permission and was not attending school. They were most concerned about her relationship with her boyfriend. They believed him to be violent and involved with drugs. They suspected their daughter was also taking drugs.

In their own words, they ‘ran out of answers.’ They turned to the Children’s Aid Society (CAS) for help. She was placed in their care. Through the court process, orders were made restraining her boyfriend from having any contact with her.

Subsequently, CAS returned their daughter to the family home for a weekend visit. After hearing a suspicious noise in the house, Barry found the boyfriend in his daughter’s bedroom. He held the boyfriend until the police arrived. The police arrested and charged the boyfriend.

On Thanksgiving weekend, their daughter left the home, again without permission. Barry went to look for her and found her with the boyfriend. They ran away. When Barry found them, they were both visibly under the influence of drugs. The boyfriend confronted Barry.Again, the boyfriend was arrested. Their daughter returned to CAS.

On November 18, 2006, the parents met with their daughter and her social worker at the CAS office. The purpose of the meeting was to discuss the child’s return to the family home. It was agreed that she would go home for the weekend.

After leaving the office, the parents and their daughter went shopping and later went to a restaurant for dinner. After they arrived home, the mother overheard their daughter on the telephone making plans to attend a party where the boyfriend would be. The mother told her daughter that she could not go. She did not listen and left the home on her bike. When Barry arrived home, he went to look for his daughter and found her on a pay phone at a campground. He told her that she had to come home. She refused to go with him. He grabbed her by the shirt and took her to his truck. She broke loose, at which time Barry picked up her bike and put it in the back of his truck. He drove a short distance away, but decided to return.

At trial, he testified:

“I put the bike in the back and then I decided I’d head home, and then I had second thoughts. I said, no, I can’t leave her here because I don’t know where she’s going and I’m concerned, so I went back. I hadn’t drove very far. I went back and got her and then put her in the truck.”

He grabbed her by the shirt and this time put her in the truck. They argued on the way home. Upon their arrival, Barry asked her to get out of the truck, but she refused. When he tried to take her out, she kicked him in the groin. He pulled her out of the truck by the arm and both went into the home. The child began to argue with her mother and left the house again. She returned to the pay phone and arranged for someone to pick her up and take her to the party so that she could meet her boyfriend. However, by the time she got to the party, he had left. The parents stayed at home for a period of time, having decided not to try and find their child again. They changed their minds and, after the mother found out the location of the party, they drove to the house, arriving there at about 2:10 a.m.

When they arrived, a group of people swarmed their vehicle. Barry called the police, who arrived shortly afterwards. Their child was outside of the house, yelling and screaming. As a result, one of the officers placed her in a police cruiser. She told this officer that she had been assaulted by her father and, as a result, she was taken to the hospital where she was examined.

Later that day, Barry was arrested.

At trial, the judge interpreted the law to exclude the section 43 defence for assaults against teenagers. He concluded that Barry’s actions did not constitute ‘correction’ or ‘discipline’ and that the daughter was not capable of benefiting from such correction. Barry was found guilty.

Barry appealed.

Justice Robertson heard his appeal on January 28, 2008 and released judgment on March 13, 2008.

Justice Robertson stated that “the overall theme of the case is that while conflict between children and authority figures is normal, violence is not an acceptable response. Section 43 protects children from abuse yet allows authority figures, including parents, to carry out corrective duties to children. It is meant to ensure that minor matters do not result in criminalized parenting.”

The appellate court found that Barry rescued his child when she did not want to be rescued. His daughter exercised poor judgment requiring intervention and guidance. This child was in need of protection from her own bad choices. She was not injured. Despite the return home of the child by force, she continued to rebel and went to the party. Her night ended when she was placed in a police cruiser.

Justice Robertson stated that the Supreme Court of Canada did not grant immunity to teenagers for bad behaviour, or an exemption to parents from the crime of assault. It offered support for authorities and families by striking a careful balance between the rights of children to be protected, and the responsibilities of parents or authorities to provide correction and discipline.

The court also considered the concept of “being capable of benefiting from the correction”. The fact that a child will not immediately respond to correction or that the benefit of the correction is not directly visible does not mean that section 43 is not applicable. A positive benefit or consequence of correction is not always immediately obvious in children.

In the end, Justice Robertson stated:

“I find the father was justified in his use of force to correct his teenage daughter.”

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Can I sue my husband for not granting me a religious divorce?

Stephanie Bruker married Jason Marcovitz on July 27, 1969. They both considered themselves to be religious Jews. After 11 years of marriage, Stephanie commenced divorce proceedings in 1980. She was 31 years old and Jason was 48 years old. With the assistance of separate lawyers, they reached an agreement on all matters. Their agreement included terms regarding the custody of their two children, child support and spousal support. The agreement also stated that they would appear before the Beth Din to obtain a Get immediately after the civil divorce.

Under Jewish law, a wife cannot remarry unless her husband agrees to give her a Get. A Get is a Jewish divorce. Only a husband can give one. A wife cannot obtain a Get unless her husband agrees to give it. Under Jewish law, he does so by releasing his wife from the marriage and authorizing her to remarry. The process takes place before 3 rabbis in what is known as a Beth Din, or rabbinical court. The husband must voluntarily give the Get and the wife consents to receive it. When the husband does not, the wife is without religious recourse, retaining the status of his wife and unable to remarry until he decides, in his absolute discretion, to divorce her. She is known as an ‘Agunah’ or ‘chained wife’.

Any children she would have on a civil remarriage would be considered illegitimate under Jewish law. For an observant Jewish woman in Canada, this presents a dichotomous scenario. Under Canadian law, she is free to divorce her husband regardless of his consent. However, under Jewish law, she remains married to him unless he gives his consent. This means that while she can remarry under Canadian law, she is prevented from remarrying in accordance with her religion. The inability to do so, for many Jewish women, results in the loss of their ability to remarry at all. The vast majority of Jewish husbands freely give their wives a Get. Those who do not, however, represent a long-standing source of concern and frustration in Jewish communities

Stephanie’s civil divorce was granted on February 9, 1981. Stephanie then made many requests for a Get. Jason consistently refused to provide a Get. This went on for 15 years. In July 1989, nine years after the civil divorce, Stephanie began legal proceedings against Jason claiming damages in the amount of $500,000 for her inability to remarry and for being prevented from having children under Jewish law. Jason argued that Stephanie had repudiated the agreement by continually seeking increases in child support and obstructing his relationship with the children. The case was scheduled to be heard on December 6, 1995. On December 5, 1995, Jason appeared before the Beth Din and granted Stephanie a Get. He was 63 years old and Stephanie was 46 years old.

Stephanie still continued with her claim for compensation. In the end, she was awarded $2,500 per year for each of the 15 years between the civil divorce and the Get, plus $10,000 for her inability to have children under Jewish law. The total of her award was $47,500.

Jason appealed this decision to the Quebec Court of Appeal. The trial decision was reversed. The appellate court found that Jason’s obligation was religious in nature and could not be enforced by the courts.

This issue ended up in the Supreme Court of Canada.

On December 14, 2007, the Supreme Court of Canada decided that civil courts should address the gender discrimination that arises from religious barriers to remarriage. It was decided that Jason was not immune from liability for his breach by invoking his freedom of religion. The Supreme Court ruled that Jason’s claim to religious freedom must be balanced and reconciled with Stephanie’s countervailing rights, values and harm. The Supreme Court decided that, in this case, any impairment to Jason’s religious freedom was significantly outweighed by the harm both to Stephanie personally, and to the public’s interest in protecting fundamental values such as equality rights and a woman’s autonomous choice in marriage and divorce.

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What is the 'greying' of the bar and why is it relevant?"

In Ontario, 41% of practicing lawyers are over 50 years old. 34% of lawyers are sole practitioners. 29% of lawyers are in firms of 2 to 10 lawyers.

The aging of the bar in smaller centres, concurrent with the shortage of articling students and new lawyers choosing to establish their practices in smaller communities, is a growing problem facing the legal profession. Retiring lawyers are not being replaced as required by their communities. Legal services are becoming more scarce. Senior counsel are unable to engage in succession planning. Young lawyers are losing valuable mentorship opportunities.

What many articling students and new lawyers are drawn to are the salaries of large firms in the major centres. This is especially relevant because of the sharp rise in the cost of a law degree and the associated debt load new lawyers carry following graduation. What is often overlooked is the longer term benefits offered by the smaller practices in the smaller centres. Some of the benefits are mentorship, partnership, financial independence, job security, work/life balance, lower cost of living and real estate, better quality of living for young families, reduced transportation, joining a smaller bar and enjoying the collegiality of a smaller group of lawyers and a smaller population.

More importantly, the threat to sole practitioners of a sudden disability or death creates significant risk to both the public and to the professional. Such an unforeseen event can strip the sole practitioner of the firm’s equity and receivables, and may even force an involuntary sale or shut-down of the practice.

All this poses a need and an opportunity for the Law Society to craft a program for law students, articling students and new lawyers. The Law Society can, and should, create programs to promote employment opportunities with smaller firms in smaller communities. This would also assist senior lawyers with financial, succession and retirement planning to ultimately realize the value of the practice that, in many cases, took years to build.

Both senior and the junior lawyers need the support, guidance and infrastructure of the Law Society to recruit new lawyers to the smaller communities. These new lawyers need to be groomed to assume leadership positions in the practice, in the local bar and in the community. In addition, such lawyers can assist senior lawyers with succession and exit plans.

In April 2011, Ontario lawyers are electing their governing body, called Benchers. I am running as a Bencher candidate in this election and, if elected, I intend to pursue measures to address the problem posed by the greying of the bar.

For more information on the Bencher election and my candidacy, please visit www.BenmorForBencher.com.

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What’s new in family law in BC ?

On November 24, 2011, BC’s new Family Law Act was introduced.  It came into effect on March 18, 2013.  This act has wide-reaching effects on family law in the province.

Among the many changes, the new act allows judges to make a number of conduct orders. Conduct orders are court orders intended to help manage the court process, manage the people involved and encourage dispute settlement.

These orders can:

  • order a spouse to attend counseling or out-of-court dispute resolution sessions such as mediation;
  • order a spouse to follow an existing court order;
  • restrict communication or contact between spouses; or
  • order a spouse to maintain the payments on the family home.

Conduct orders also include case management orders which can:

  • cancel or dismiss all or part of a claim;
  • instruct one party not to make any more court applications without the court’s permission; or
  • direct any future applications for orders to return to the same judge.

Except for protection orders, which are enforced by the police, all orders can be enforced by the courts in various ways, such as:

  • posting a bond to guarantee compliance with the order;
  • paying a fine of up to $5,000 for not following the order; or
  • sending the spouse to jail for up to 30 days for not following the order.

BC has been the most innovative province to improve court processes and remedies available to separating spouses and children. Time will tell what impact these improvements will have on families.

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Transcripts from court proceedings: no more waiting

The Ministry of the Attorney General, Court Reporting Services has established a new court transcription model that will take effect on June 9, 2014.

By Ontario Regulation 587/91, the new regulatory amendments to the Administration of Justice Act change the process for obtaining transcripts.

According to the Ministry, this new model and fee schedule will better reflect industry standards and address current technology and formats, plus appropriately compensate court reporters.  The most critical change is the introduction of different delivery options such as same day or expedited service.

Previously, the Ministry conducted a review of its system. Court users identified various concerns including the long wait times for the production of transcripts and the delays caused to court proceedings. Additionally, the court transcript fee schedule had not been revised in 22 years. Under the new model, where a transcript is not required, authorized parties have the option of purchasing a copy of the digital court voice recording. Same day transcripts will cost $8 per page. Expedited (5 day) transcripts will cost $6 per page. Regular orders will cost $4.30 per page. While there is an increase to the per page fee for an original transcript, parties would be able to obtain an electronic copy of the typed transcript at no extra charge.

This new system for ordering transcripts will enhance and modernize court reporting and transcript production in Ontario.

For more information, you may contact courtreportingservices@ontario.ca.

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Has the era of a one-sided expert report ended ?

People enter litigation when they have been unable to resolve their affairs through other less adversarial and inexpensive means, such as negotiations or mediation.  Once litigation commences, the litigants expect a judge to use her wisdom and experience to assist them in settling their matter before trial, or rendering a decision after trial.

In many cases, there are issues that fall beyond the wisdom and experience of a judge.  In these cases, the judge may require an expert opinion.  The valuation of a pension may require an actuary.  The valuation of real estate may require an appraiser.  The valuation of a business may require a Chartered Business Valuator (“CBV”).  The determination of a self-employed person’s income for support purposes is often not based on his Income Tax Return and may also require an expert opinion from a CBV.  In Family law cases, who has custody of a child and what that child’s residential schedule will be after separation, are other areas for the involvement of an expert, such as a social worker or psychologist with expertise in child development. This is especially needed where there are clinical issues in the family such as mental illness, addictions, domestic violence or relocation.

Historically, a spouse and his lawyer would identify the issues in a case and then determine what evidence was needed to support his claims.  With the issues listed above, it was customary for an expert to be retained to provide an expert opinion to support the position of the spouse at trial.

The Family Law Rules established a protocol for the exchange of expert reports.  Rule 23(23) provides that a “party who wants to call an expert witness at trial shall serve on all other parties a report signed by the expert and containing the information listed in subrule (25)…at least 90 days before the start of the trial.” This process afforded the other spouse ample time to consider the expert opinion for the purposes of settlement or trial, or to obtain her own expert report or critique of that report.

On August 17, 2011, Rule 20.1 was introduced dealing explicitly with the expert’s duty to the court.  The Rule states:

20.1(1) It is the duty of every expert who provides evidence in relation to a case under these Rules,
(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

Rule 20.1(2) added an extra limitation that would prevent any expert from advocating for a client by stating “In the case of an expert engaged by or on behalf of a party, the duty in subrule (1) prevails over any obligation owed by the expert to that party.”  That is, the expert’s duty is to the court, not the client or lawyer.

Moreover, Rule 20.1(10) requires that every expert report contain the following information:

1. The expert’s name, address and area of expertise;
2. The expert’s qualifications, including his or her employment and educational experiences in his or her area of expertise;
3. The instructions provided to the expert in relation to the proceeding;
4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates;
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range;
6. The expert’s reasons for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion; and
iii. a list of every document relied on by the expert in forming the opinion; and
7. An acknowledgement of expert’s duty (Form 20.1) signed by the expert.

The “Acknowledgement of Expert’s Duty” form that experts are now required to sign states:

I acknowledge that it is my duty to provide evidence in relation to this proceeding as follows:

a. To provide opinion evidence that is fair, objective and non-partisan;
b. To provide opinion evidence that is related only to matters that are within my area of expertise; and
c. To provide such additional assistance as the court may reasonably require, to determine a matter in issue.

I acknowledge that the duty referred to above prevails over any obligation which I may owe to any party by whom or on whose behalf I am engaged.

This created a radical shift to the mandate and role of an expert who testifies at trial. No longer are experts permitted to be “hired guns” selling their expert testimony to lawyers and litigants.  Experts are now required to be objective, even-handed and not in any way influenced by the person who paid them.  Litigants are now faced with circumstances where the expert they retained and paid for could give an opinion that is contrary to their position.  Lawyers are required to explain to their clients that despite the high cost of expert evidence, the expert is entirely independent and could possibly give unfavourable testimony. This shift in the role and function of experts is meant to ensure that the judge adjudicating the issue has accurate, objective and reliable assistance from a professional with the expertise and knowledge that the judge does not possess.  By eliminating the battle of the “hired guns”, judges could focus on the issues, the evidence and the arguments, and not need to hear competing expert opinions, relieving judges of having to accept one expert and reject the other or both experts.  This shift also prompted the use of joint experts, or having the two experts “hot tub”.  Hot-tubbing refers to a situation where the two experts collectively consider one another’s opinion, and the reasons for arriving at such a conclusion, and either eliminate their differences of opinion or identify the different factual assumptions that resulted in the disagreement.

The movement away from a one-sided expert at trial has continued to shift. In the case of Moore v. Getahun [2014] O.J. No. 135, Justice Wilson of the Ontario Superior Court of Justice rendered a decision on January 14, 2014 involving a personal injury case.  In that case, the plaintiff’s lawyer reviewed the expert doctor’s file and discovered notes of a telephone call that took place between the defendant’s lawyer and the doctor. The lawyer reviewed the doctor’s draft expert report and suggested changes to it.

Justice Wilson ruled:

“For reasons that I will more fully outline, the purpose of Rule 53.03 [equivalent to Rule 20.1] is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable. If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.”

Given these developments, a spouse who retains an expert will need to remain at arm’s length, limit his input to the expert, provide the expert with a bilateral explanation of the case and source information, and avoid any one-sided discussions with the expert. Moreover, any communication with the expert must be fully transparent to the other party.

It would seem that the era of the one-sided expert report has indeed ended.

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Are unsworn statements admissible as evidence on a motion?

The Family Law Rules require motions to proceed by way of sworn affidavits. In fact, Rule 14(18) of the Family Law Rules states:

“An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit.”

Rule 14(19) states:

“The affidavit may also contain information that the person learned from someone else, but only if,
(a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and
(b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed.”

The court in the case of Lisanti v. Lisanti [1990] O.J. No. 3092 considered whether unsworn statements are admissible as evidence on a motion. In that case, a motion was brought by the father for interim custody of the parties’ two children. The mother left the matrimonial home and went to a women’s shelter with the children, alleging that she had been abused by the father. The mother had spoken to others and then reproduced these conversations in a document that she then attached as an exhibit to her affidavit. The father’s counsel objected to its admissibility on the grounds that it was hearsay. On this issue, the court stated:

The allegations made in the exhibit are clearly stated to be hearsay. The tone is highly pejorative and prejudicial to the husband. The exhibit is not in affidavit form. No one swears as to the source of information outside his or her personal knowledge and deposes to a belief that the statements are true. Not the subject of an affidavit, no one can cross-examine on the statements, or the source of the information.

There has been a disturbing tendency in recent months to attempt to incorporate, in motion material, renditions of statements allegedly made by parties or other sources without their inclusion as an affidavit. The rules, however, require evidence on a motion to be by way of affidavit. The basis of that requirement is obvious. Without the possibility of testing an allegation through cross-examination, there is an incentive to swell the evidence freely with unsupported statements by persons not clearly identified and, therefore, safe from inquisition. That is the situation with this exhibit.

Similarly, in the case of Kavaner v. Jancsurak [2012] O.J. No. 4040, on a motion by the father for primary residence of the child, both parties attached to their respective affidavits letters from family and friends bolstering their positions. At the outset of the motion, the court informed both counsel that it was not prepared to put any weight on these letters. The court stated that “if the contents of these letters were important for the court to consider, counsel should have prepared proper affidavits that were duly sworn.”

Technically, unsworn statements are not admissible as evidence on a motion. Despite this, some judges will allow their admission on a motion under Rule 14(19). Practically, motions to strike hearsay evidence from the record are often heard by the very same motion judge who is otherwise adjudicating on the substantive relief. The best practice is for parties wanting the judge to rely on the evidence to have the author of the letter swear an affidavit containing the information. For those parties seeking to exclude such evidence, it is best to have the motion to strike that evidence heard by another judge and, if successful, to have the motion traversed to a fresh judge.

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Divorce

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When can I ask for a divorce?

As soon as one of the following three circumstances has occurred: the other spouse has committed adultery, the other spouse has committed cruelty, or the spouses have separated. As soon as one of these circumstances has occurred, a spouse can commence an application for divorce. If separation is used as the ground to obtain a divorce, the spouses need to have been separated for at least one year before a judge will grant a divorce judgment.

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What is an uncontested divorce?

When the spouses have signed a separation agreement that has resolved all issues such as custody, access, support and property division, and they now both want to be divorced, then one of the spouses can commence a petition for divorce that consists of a request for a divorce only. One spouse has it served on the other spouse. If the other spouse agrees to a divorce, then he or she may choose not to contest the petition for divorce. That is why it is called an uncontested divorce.

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How long does it take to get a divorce?

An uncontested divorce usually takes between eight to 16 weeks. A petition for divorce that is contested usually takes much longer. There are many factors that affect the length of time it takes to get divorced. Unless the reason for the divorce is adultery or cruelty, the spouses must have lived separate and apart for at least one year.

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Do divorce lawyers help spouses reconcile?

Interestingly, divorce lawyers are required, by law, to discuss with the client the possibility of reconciliation and the availability of marriage counseling. In fact, in every application for a divorce, the lawyer acting on behalf of the client must certify that he has complied with this requirement. Then the divorce judge is required to satisfy herself that there is no possibility of reconciliation of the spouses and, if at any stage in a divorce proceeding, it appears to the judge from the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, the judge is then required to adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation. The judge may even appoint a marriage counselor to assist the spouses to achieve a reconciliation.

But does this actually happen?

» In the vast majority of cases, once the client makes an appointment with a divorce lawyer, the decision to separate has been made and is not typically open to change. But what if the lawyer insisted on having a discussion about reconciliation ? What if the lawyer caused the client to reflect?

The exercise of reflection seems to me to have certain prerequisites or ingredients. For the client to reflect, the lawyer must guide the process of reflection. That means that the lawyer is now expected to be reflective of his role at this critical stage. When approached by a client who is asking for a divorce, the reflective lawyer must be prepared to stop, listen and think before arriving at a viewpoint, opinion or advice.

To some extent, this is counter-intuitive. The client seeks counsel. Specifically, she or he seeks guidance, direction and advice. The client does not seek – or wish to pay for – reflection. However, reflection is probably the very best service that the lawyer can give the client.

This mode of response should permit the lawyer to better examine the totality of the circumstances of the family, the factors influencing the conflict, the client’s individual challenges, the stated problem, the essence of the problem (which may or may not be uncovered) and the various options that can improve the lives of this client, family and, especially, the children.

It can be argued that lawyers typically perpetuate the problem through a failure to reflect by operating within the (legal) system that places great emphasis on tradition, convention and precedent. This is undisputable. Proponents of change are seen as contrarian, ill-informed or even cavalier.

Maybe if we lawyers worked harder (or were better trained) to elicit the client’s interests, we could not only achieve satisfying solutions for the client, but improve the conditions for the entire family and even (in a modest way) cause the population of separating spouses to reconsider and reverse the decision to separate. If, in the end, divorce is inevitable, then at least the family will experience separation and divorce in a less conflictual and more peaceful manner.

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Why do people divorce?

In Canada, section 8 of the Divorce Act states:

A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a ‘breakdown of their marriage’ and then defines this to mean either a one year separation, adultery or cruelty.

But in Guatemala, a novel reason for divorcing has arisen.

The first lady, 51 year old Sandra Torres de Colom, confirmed on March 30, 2011 that she will divorce her husband of 8 years, the Guatemalan president.

When asked why, the first lady stated:

“I am getting a divorce from my husband, but I am getting married to the people…I am not going to be the first or the last woman who decides to get a divorce, but I am the only woman to get a divorce for her country.”

Guatemalan law prohibits its president’s relatives from becoming a subsequent president. Torres de Colom is seeking to divorce her husband to circumvent that law that prevents her from seeking the presidency.

Is this a twist on ‘irreconcilable differences’?

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Can you get a divorce if your husband has an affair with another man?

Historically, the answer to this question was “No.” Canadian federal law only permitted a spouse to obtain a divorce if the other spouse had an extramarital affair with someone of the opposite sex.

Indeed, Canada’s Divorce Act states that a “breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty.”

Adultery has historically been defined by the courts as voluntary sex between a spouse and someone of the opposite sex, outside of the marriage.

But this week, a Vancouver woman was granted a divorce after Justice Nicole Garson decided the woman’s husband had committed adultery by having an affair with another man.

It is expected that this decision may have a significant impact on same-sex partners who are likely to engage in extramarital affairs with persons of the same gender.

The court’s written decision is expected to be published in two weeks.

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Can a divorce based on adultery be granted on a joint application?

The short answer is no.

Section 8(1) of the Divorce Act provides that a court may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

Section 8(2) of the Divorce Act provides that a breakdown of a marriage is established only if:

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

In the case of Niyazov v. Tkatch 2014 ONSC 5143, the husband and wife jointly sought an order for divorce on the grounds of adultery. The parties had no children together. The husband filed an affidavit in which he stated that “I hereby admit that I have committed an act of adultery during my marriage …”. The Honourable Madam Justice McGee considered whether she could grant a divorce based on adultery on a joint application. Her Honour found that the relevant sections of both the Divorce Act and the Family Law Act operate to prevent a co-applicant from seeking an order for divorce based on adultery. Specifically, Her Honour referenced section 8(2)(b) of the Divorce Act which states that a divorce based on adultery can only be brought by the innocent spouse against the party that committed the adultery, and not by the guilty spouse. In a joint-application, the guilty party would be one of the co-applicants bringing the application, which is not permitted under section 8(2)(b). Her Honour went on to state that:

It has long been held that a party must not be allowed to use his or her own misconduct as the basis for a petition for a divorce. Within Keats v. Keats and Allen, is quoted the sanguine words of Scrutton L.J. in Hyman v. Hyman; Hughes v. Hughes:

“The stability of the marriage tie, and the terms on which it should be dissolved, involve far wider considerations than the will or consent of the parties to the marriage. The Court does not, as other Courts do, act on mere consents or defaults of pleading, or mere admissions by the parties.”

As a result, Her Honour dismissed the parties’ joint application for divorce based on adultery.

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A new cause of divorce: commuting long distances to work?

The Department of Social and Economic Geography of Umeå University in Sweden recently published a research paper called “On the road: Social aspects of commuting long distances to work” by Erika Sandow as part of her doctoral dissertation. Ms. Sandow holds a Masters degree in Public Administration and Environmental Studies with a major in Social and Economic Geography.

The paper states that commuting long-distances to work has caused more spouses to separate and divorce. In Sweden, approximately 11% of the Swedish workforce is long-distance commuters. The paper explains that the social costs of lengthy commuting include unfinished household responsibilities, lack of time to socialize with family and friends and reduced leisure activities. Moreover, a long commute may cause stress and health problems. Spouses are then forced to manage these social consequences.

Ms. Sandow used a longitudinal data set to measure the risk of divorcing or separating. Long-distance commuting was defined as 30 kilometres or longer each way. In total, 2.1 million spouses were analysed over a ten-year period from 1995 to 2005. The results demonstrated a clear correlation between long-distance commuting and family breakdown. Annual separation rates were higher among commuting couples than non-commuting couples.

The results indicate that couples who live a more modern lifestyle and have abandoned the more traditional gender roles are more capable of handling the social consequences of long-distance commuting and have successfully balanced work and family life.

So it would seem that commuting to work is bad for our environment, bad for our health and now bad for our marriage.

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Who is driving the divorce rate? Ask the researchers

It was once thought that the most difficult time in a marriage is after the birth of the children. During this time, the focus of the spouses shifts from being on one another to the children. Each spouse feels less attention, appreciation and love – as all their energy is directed at the children. This, coupled with the sleepless nights and the growing financial demands of the children, have typically caused acrimony leading to marital discord and, sometimes, divorce.

But now, there is a new finding that confirms that seniors are the biggest driver of the divorce rate. In The Gray Divorce Revolution: Rising Divorce among Middle-aged and Older Adults, 1990-2009*, a paper published in March 2012 by the National Center for Family & Marriage from Bowling Green State University, researchers Susan L. Brown and I-Fen Lin have revealed the newest trend.

The purpose of the research study was to document how the divorce rate among persons ages 50 and older has changed between 1990 and 2009 and to identify the socio-demographic correlates of divorce among today’s middle-aged and older adults. These researchers used data from the 1990 U.S. Vital Statistics Report and the 2009 American Community Survey to examine the change in the divorce rate over time.

These researchers found that the divorce rate among adults ages 50 and older doubled between 1990 and 2009. Roughly 1 in 4 divorces in 2009 occurred to persons ages 50 and older. The study found that the prevalence of divorced older adults has increased in recent decades. At the same time, the prevalence of widowhood has declined. The share of older adults who were divorced doubled among men between 1980 and 2008, rising from 5% to 10%. Among women, the percentage divorced tripled during this time period, climbing from 4% to 12%. In contrast, levels of widowhood among older men remained unchanged and actually fell among women between 1980 and 2008.

The study reports that marriages change and evolve over the life course and may no longer meet one’s needs at later life stages. Their qualitative research indicated that many older couples that divorce simply have grown apart and that life-long marriages have become increasingly difficult to sustain in an era of individualism and lengthening life expectancies. That is, older adults are more reluctant now to remain in empty shell marriages.

The study admits that despite these theoretical suppositions for a sustained rise in divorce among older adults, there is a paucity of empirical research on this topic and most studies are dated.

The study also illustrated some racial and ethnic variations in the risk of divorce among those ages 50 and older, with Whites experiencing the lowest rate of divorce, Blacks the highest and Hispanics in the middle. The divorce rate also differed by education. Those with a college degree experience a considerably smaller risk of divorce compared to those with lower levels of education. The researchers report that the most striking differentials are those for marital biography. The rate of divorce among those ages 50 and older is 2.5 times higher for individuals in remarriages than first marriages. During middle age, the divorce rate is about 2 times greater for remarrieds than first marrieds. In terms of marital duration, the divorce rate among individuals ages 50 and older is 10 times greater for those married 0-9 years. That is, the rate of divorce declines roughly linearly with rising marital duration. These stark differences in the rate of divorce in first versus higher order marriages and by marital duration suggest that the marital biography is central to the risk of divorce during middle and older adulthood.

With the growth of seniors experiencing separation and divorce, professional services such as legal, accounting, financial planning, counseling and eldercare must be able to properly service this segment of society in a manner that is unique and different than younger adults.

* The Gray Divorce Revolution: Rising Divorce among Middle-aged and Older Adults, 1990-2009, March 2012, National Center for Family & Marriage from Bowling Green State University, by Susan L. Brown and I-Fen Lin, located at http://ncfmr.bgsu.edu/pdf/working_papers/file108701.pdf

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How to have a profitable divorce

The old adage “a dollar save is a dollar earned” leads to the real question of how to minimize the financial cost of a divorce.

Here are 2 simple tips:

Prove it. You can’t deduct what you can’t prove. This applies to all assets that you owned when you got married and any assets that you accumulated from gifts and inheritances during marriage. You also will need to prove any debts that you have at separation if you want to deduct them. If you can’t prove the assets you owned at marriage, any assets from gifts and inheritances during marriage and any debts existing at separation, you will be parting with much more of your money at separation. Conversely, you need to uncover and prove your spouse’s debts at marriage and assets at separation. These figures too will either increase what your spouse pays you or what you collect from your spouse. So in conclusion, find and keep your records. This includes all of your tax returns and monthly bank, investment and credit card statements. A home video of your possessions at marriage can be very useful.

Be informed.
Education is power and power is valuable. Meet with a Family lawyer to know your rights and obligations resulting from cohabitation, marriage, children, death and divorce. Each event will trigger a different set of rights and obligations.

The unforeseen financial consequences of divorce can be avoided or diminished with knowledge and planning.

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Can I switch back to my maiden name?

In Ontario, a wife who wants to take her husband’s last name upon marriage has two options. She can either legally change her last name or she can choose to assume her husband’s last name (or combine both last names into a hyphenated last name). This decision will ultimately affect the ease with which she can revert back to her former last name in the event of a separation or divorce.

The difference between these two options is that legally changing a last name requires a formal change to the Ontario Birth Certificate, whereas assuming a husband’s last name does not.

A wife can legally change her last name by completing an Election to Change Surname form.  This form can be obtained from the Office of Registrar General. Once the change is made, her Ontario Birth Certificate will reflect her new legal name and previous name. There is no fee if the name change is done within 90 days of marriage. After 90 days, the fee is $25. Upon divorce, she can revert back to her original last name by completing an Election to Resume Former Surname form. This must be done within 90 days of the Divorce Order and costs $25.  If more time has elapsed, she will have to apply for a formal name change at a cost of $137.

Conversely, by assuming her husband’s last name, a wife is allowed to change her primary identification documents including her driver’s license, health card, passport, social insurance number and bank cards. In this case, her Birth Certificate is not changed. Changes to her identification are made at any Service Ontario Center, upon presenting the clerk with a Marriage Certificate. There is no cost for this service. At any time, she can revert back to her original last name free of charge. That is, she does not need to be divorced, or even separated. Again, she simply needs to attend any Service Ontario Center with her Birth Certificate, Marriage Certificate and/or Divorce Order, health card or driver’s license and a completed Change of Information form.

This latter option, namely, assuming a spouse’s last name, is the more popular option due to its relative ease and convenience.

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Revisionism: Rewriting a Separated Family's History

In every generation, there are those that attempt to rewrite history. In an attempt to re-craft the historical record, revisionists use techniques such as denial, exaggeration, understatement and hyperbole. Effective revisionists mix known and irrefutable facts with distortions. By adding a measure of credibility to their work, their revisionist ideas are more readily accepted in the public mind. The purpose of revisionism is often to achieve a political aim, demonize an enemy or create an illusion of loss. By redefining the public’s understanding of past events, revisionists are able to garner sympathy and support for their cause, and/or shift anger and disapproval towards the identified person or group.

Notable examples of revisionism include Holocaust Nazism, Soviet Communism and Serbian war crimes.

Revisionists often believe their claims. In their minds, they are not lying, but sharing with others what they believe to be true. Some of them appear credible and believable.

Separation and divorce is no exception to historical revisionism.

The breakdown of an intimate relationship often occurs over a lengthy period. Rather than an isolated event, it is more a gradual deterioration of the marital partnership. Along the way, there are actions and reactions. At any moment, one spouse may believe he or she is a victim who is simply responding to a provocation or outright attack…and the cycle continues and usually worsens. Eventually, the relationship ends. The final event is often not the cause of the breakdown, but the point when past attempts to hold the relationship together end.

After the couple is no longer together, each spouse departs with his and her own narrative of what occurred during the marriage. That is then shared with others. Family, friends, therapists, lawyers and judges (the audience) are then provided with the spouse’s explanation of what occurred during the marriage (from his or her perspective). Most of the members of the audience do not have the benefit of hearing both sides.

In family law practice, lawyers do not ever meet with both spouses. Lawyers only hear one side. Sometimes the narrative that is provided by a spouse is supported and bolstered by family and friends who accompany the spouse to lawyer/client meetings. In the higher conflict cases, these narratives often become cemented in court documents and affidavits, often with fine details to lend to their reliability.

At times, these affidavits are matched by a very different narrative from the other spouse, often interlaced with details of the other spouse’s past wrongdoings. The ultimate decision-maker of the competing narratives is the judge, who is usually perplexed by the conflicting affidavits. Although the narratives are typically irrelevant to a judicial determination in family law, it is unlikely that any reader (judges included) can entirely eliminate the impression made by these descriptions, however inconsistent. In the rarest of cases, the spouse is cross-examined on the affidavit and is challenged as to its truth, completeness and reliability.

And that is why esteemed Justice Ramona Wildman denounced the use of affidavits in the case of Rosen v. Rosen, 2005 CanLII 480 when she stated that “there is a deliberate attempt to try to avoid the damage that flows from the nasty affidavit war that accompanies the filing of a motion.”

That has not ended the business of lawyers drafting, clients swearing, and judges reading affidavits, accusing the other spouse of offenses – based on his or her perception of the relationship. These affidavits are typically presented as an irrefutable historical record. Just as with historical revisionists, a spouse’s narrative may consist of denial, misrepresentation and distortion. In high conflict cases, the spouse’s aim may be to demonize the other spouse in an effort to garner sympathy and support for his or her case, and establish anger and disapproval towards the other spouse.

And there you have it, revisionism in family law.

Did I mention that after spending 20 years drafting such affidavits, I recently launched my divorce mediation practice where both spouses meet with me…without affidavits.

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Is the family law community too close for comfort?

Soon I’ll be launching my new family mediation/arbitration practice, just after I complete my accreditation. I had intended to announce this service offering to the many lawyers, mental health professionals and other advisers that I have worked with over the last two decades as a litigation lawyer. Who better to market my new practice to than to the very professionals who know me well and trust my commitment to children and families.

But wait! Can those who know me refer their clients to me? Would the relationship that I have with the referral source preclude me from serving as the mediator or arbitrator?

The recent decision of Justice Robert Spence of the Ontario Court of Justice at North York got me thinking about this topic. Justice Spence, in his endorsement, again delivers a thoughtful, logical, fair and well-reasoned decision on the subject of bias and disqualification. But it still made me think about the many possible scenarios that can arise because of a past relationship that I had, or have, with fellow lawyers, doctors, assessors, appraisers, CBV’s, etc.

No words that I say could do justice (no pun) to the eloquence of Justice Spence in Jewish Family and Child Service of Toronto v. J.Z., 2014 ONCJ 165 (CanLII).

His Honour frames the legal issue as follows:

“During the course of argument I asked Mr. Schuman whether the nature of my familial relationship with Ms. Shneer had any bearing on his argument. In other words, did it matter that I might be very closely related to her, or that I might be only a very distant relative? He responded that it did not matter. According to Mr. Schuman, the mere fact of a relationship, any relationship, no matter how distant or remote, might cause a trial judge, perhaps even unwittingly, to either favour that witness because of family dynamics or, conversely, to go out of his way to treat that witness more harshly in an effort to demonstrate that no bias exists. In either event, Mr. Schuman argues, the judge would not be treating the testimony of that witness fairly and in an unbiased way.”

This obviously got His Honour thinking and considering the law. Justice Spence then cites the leading appellate cases including Bailey v. Barbour, 2012 ONCA 325 (CanLII), Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 and R. v. S. (R.D.), [1997] 3 S.C.R. 484.

His Honour states that “an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice.” He cited Justice Cory in R. v. S. (R.D.) as stating “in those cases where a party seeks the recusal or disqualification of a judge, allegations of judicial bias will have to overcome the strong presumption of judicial impartiality.”

But a mediator or arbitrator is not a judge. So does this really matter? I say yes. Judicial decisions are subject to public scrutiny. They occur in real time, in public, are reported and transcribed. Their decisions are subject to appeal. Conversely, the results of mediations and arbitrations occur behind closed doors and often with very little oversight. Most family law matters that proceed to mediation/arbitration settle in the mediation stage. The mediator carries a great deal of power and authority over the spouses, and even the lawyers. Bias, if it does exist, can be far more prejudicial in mediation and arbitration than in litigation.

So I can see myself, months from now, asking myself the very same question that Justice Spence asked in this case:

“Based on the foregoing, the question I must ask myself is whether a reasonable person, considering all of the circumstances of this case, would perceive that there is a real likelihood that I would be biased, or would appear to be biased, if I were to continue to preside in this trial.”

In defining some of these circumstances, Justice Spence has helped me (and countless mediators) properly manage this issue.

Here’s what I take from this case as it relates to my mediation practice:

When it comes to any hint of a possible conflict of interest or perception of bias:

1. Make full disclosure and do so on the record
2. Allow each party to privately consider this disclosure with their counsel
3. Obtain written instructions and acceptance of the retainer
4. Consider what a reasonable person would think

Whether a litigator, mediator or arbitrator, all we have is our reputation for expertise, experience, honesty and integrity. That is what clients (and even opposing counsel) have come to expect.

So you can now await my announcement. It will end with “Referrals Greatly Appreciated”.

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D is for Divorce: Sesame Street Tackles Divorce for the First Time

The classic children’s show, Sesame Street, has taken on almost every topic, from marriage to death. Now, for the first time, the show is addressing the difficult subject of divorce.

For the past two years, a capable team of writers, researchers and producers have been working on a segment that addresses the sensitive topic.

Last month, Sesame Street debuted a 13-minute segment online, part of a massive multimedia kit called Little Children, Big Challenges: Divorce, which includes a storybook and an app called Two Hug Day, a guide for parents. The segment itself didn’t air on TV, but has been made available online for parents to access at their discretion at this LINK:

http://www.youtube.com/watch?feature=relmfu&v=UXjmqfg0Iw8

The segment addresses divorce in a way producers hope is accessible and easier for children to understand.

This isn’t the first time the classic TV show has attempted to tackle divorce. A previous attempt remains unaired. In 1992, the show addressed divorce from Snuffleaupagus’ (a.k.a. Snuffy) point of view, when he told Big Bird his dad was moving out because of a divorce. The episode was tested on a group of children before it was aired, to terrible results. The children were distraught and incredibly confused at the idea of one parent leaving. Some didn’t know where Snuffy was going to live and others worried their own parents might get a divorce. Ultimately, the episode prompted more questions than answers and resulted in Sesame Street killing the segment.

For two decades since, producers have avoided the D word on air – until now.
For the past two years, producers have been working on a new version of the segment, replacing Snuffy with the pink fairy known as Abby Cadabby, whose parents have already gone through a divorce. Producers felt that a past event would be less traumatic for children and that they would take comfort in Abby confidently discussing her new family dynamic.
This time, after the screening, there was no crying. The kids knew exactly where Abby lived. They felt relieved that she was okay.

The segment is a great resource for separating parents who want to give their children an age-appropriate and accessible introduction to the difficult and sensitive topic of divorce.

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How expensive can a divorce really be?

When Marian Levitt was billed one million dollars in legal costs for her divorce, she appealed this bill all the way up to the British Columbia Court of Appeal.

On August 13, 2008, the appellate court concluded that the bill was ‘fair’ and ordered her to pay it.

By way of background, Marian married Bernard in 1958 and were married for 42 years. The divorce proceedings involved the division of approximately $12 million in assets and shares of family companies and assets.

Marian had terminated her first lawyer and then retained Irwin Nathanson from the law firm of Nathanson, Schachter & Thompson in late November 2001. Mr. Nathanson agreed to take on Marian’s case. He did not discuss the basis on which he would be charging for his services, but said that he intended to bill a ‘fair fee’. The trial lasted 29 days and then a two day appeal was heard.

The total amount that Mr. Nathanson billed for his fees was $833,400 and disbursements and taxes were $185,061.

The court registrar heard Marian’s review of the bill. The registrar even heard expert evidence on the ‘reasonableness’ of the accounts by Lawrence Kahn, a senior family law lawyer. Mr. Kahn said that the file was complicated and the matter was highly contested. He noted that there was a significant amount of work that had to be done at the outset of the matter, and in a relatively short period of time, in order to be properly prepared for trial.

The review hearing itself lasted 10½ days.

The court registrar found that the legal fees charged to Marian were very high, but that she chose to engage top counsel for a ‘carriage trade lawsuit’ and that the fees charged must be measured with that in mind.

In the result, the court registrar certified the lawyer’s fees, charges and disbursements in the total amount of $1,018,461.48.

Both of Marian’s appeals were dismissed, with costs payable by her.

Nathanson, Schachter & Thompson v. Levitt [2008] B.C.J. No. 1529 (August 13, 2008).

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Can you get a divorce if your wife commits adultery with another woman?

This just happened in Saint John, New Brunswick.

Fourty-nine year old Pascal Thebeau was been granted a divorce on the grounds that his wife committed same-sex adultery in a precedent-setting case. Although same-sex marriage has been legislated in New Brunswick, as well as in Ontario, same-sex adultery has not been included in the language of the law.

Canadian federal law only permits a spouse to obtain a divorce if the other spouse committed adultery with someone of the opposite sex. Canada’s Divorce Act provides that a “breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty.” Adultery has historically been defined by the courts as voluntary sex between a spouse and someone of the opposite sex, outside of the marriage.

Previously, a Vancouver woman was granted a divorce after the judge decided that the woman’s husband had committed adultery by having an affair with another man. Now there is a precedent for same-sex adultery being committed by a wife. Until the legislation is amended, same-sex adultery cases will be decided on a case by case basis.

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Mediation and Arbitration

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Before I enter into a second marriage, what steps should I take to protect my assets?

After having experienced the financial consequences of a separation, most people are motivated to avoid this experience again. If you intend to remarry or reside with a new partner, you need to understand the potential financial consequences of the relationship ending.

Here are a few examples:

If you marry your new partner, you may be required to pay spousal support and share the increase of the value of your assets during your marriage when you separate.

If you support your new partner while you reside together, even though you are not married, you may be responsible for spousal support when you separate.

When a couple separates, there are many issues that may arise. Many of these issues can be resolved—even before you marry or cohabit—if both spouses agree to enter into a marriage contract or cohabitation agreement. These documents are written legal agreements, signed by both spouses in the event that the relationship ends. They permit partners who cohabit or intend to marry to agree, in advance, on issues such as property division and support.

More often, people are getting married later in life or for a second time. If you own property or assets that you wish to protect, or want to avoid paying spousal support after you separate, then you may wish to consider entering into a marriage contract or cohabitation agreement.

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Can we negotiate a separation agreement?

Yes. After a couple separates, there are many questions that need to be answered. Which parent will the children live with? How much child support will be paid? How will the family property be divided? Usually, these issues can be resolved when the spouses agree to terms that are incorporated into a separation agreement. This document is a product of each spouse’s desire to settle their affairs reasonably, amicably and inexpensively. A separation agreement is one of the best alternatives to going to court because it is faster, cheaper and more complete than a court order but has the same enforceability as a court order.

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Will a marriage contract protect my assets?

A marriage contract is a written agreement that permits a couple who intend to marry to agree, in advance, on issues such as property division and support in the event that the marriage ends. More often, people are getting married later in life or for a second time. If they own property that they wish to protect, or want to confirm that they will not be expected to support their spouse after they separate, then they may agree to terms that are incorporated into a marriage contract.

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Can I enter into a marriage contract after we get married?

The best time to enter into a marriage contract is a few months before the marriage. Once married, each spouse immediately obtains family law rights which can only be waived or limited by a marriage contract that is signed by both spouses. If the marriage contract is prepared after marriage and one of the spouses refuses to sign it, these rights will not be limited or waived.

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What happens to our cohabitation agreement when we get married?

When spouses have entered into a cohabitation agreement and later get married, the Family Law Act states that the cohabitation agreement is deemed to be a marriage contract. If one or both of the spouses wish to change it, a new agreement must be prepared and signed.

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What happens to a separation agreement if you later reconcile and then separate again?

The Ontario Court of Appeal was asked to address this question in the 2003 case of Sydor v. Sydor. This couple separated in 1995 and signed a separation agreement on February 29, 1996. Some time later they reconciled, and then, in October 1998, they separated again for the last time. Under the 1996 agreement, the wife transferred her share in the family residence to her husband in exchange for $115,000. When they reconciled, the wife moved back into the family residence and resided together with her husband until their final separation. At trial, the wife argued that the agreement did not survive their reconciliation and asked that all property that the husband owned at the time of their final separation including the former family residence be equalized once again under the Family Law Act. The trial judge ruled that the prior settlement of property under the agreement remained in force and, therefore, the wife could not have the family’s assets divided again. The wife proceeded to the Court of Appeal.

The appellate court ruled that a separation agreement becomes void upon a couple reconciling. But the court went on to say that the agreement may contain a release clause that overrides this and specifically states that it is the intent of the parties that the agreement will remain in effect even if they reconcile and later separate.

The appellate court decided that, in this case, the agreement did indeed contain such a clause where the wife specifically released her rights to the former family residence. The appellate court found that the earlier transfer of the family residence to the husband to be final and binding.

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Can spouses sign a contract that penalizes adultery?

In the California case of Diosdado v. Diosdado, 118 Cal. Rptr. 2d 494 (Ct. App. 2002), a couple signed an agreement after the husband had an extramarital affair. The agreement banned each spouse from engaging in extramarital sexual conduct and specifically stated that one spouse’s infidelity could cause the other spouse serious emotional, physical and financial injury. The agreement included a clause that stated that the spouse who committed adultery was required to pay to the other spouse $50,000 in liquidated damages irrespective of any other property settlement resulting from a divorce proceeding.

When the husband committed adultery, the wife asked the court to enforce this clause. Both the trial court and the California appellate court found for the husband and ruled that the clause violated state public policy. It held that the legislature had made a social policy based on a decision to change the grounds for divorce from a fault basis to a marriage breakdown basis. Consequently, the court said, fault is generally not a relevant consideration in the legal process of divorce. Further, recovery in divorce cases is basically limited to half the community property, ap­propriate support and legal fees—with no premiums for emotional pain. The court said that the agreement here violated this policy by imposing such a premium for the emotional angst the husband’s infidelity had caused his wife. Moreover, the agreement contravened public policy by attempting to penalize one of the parties as a result of his conduct during the marriage. Only in California.

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What makes the negotiation of a Separation Agreement different than any other contract?

According to the Supreme Court of Canada, Separation Agreements are contracts that are negotiated by two people during “the most emotionally charged junctures of their relationship – when it unravels” and “are not, and should not be seen to be, subject to the same rules as those applicable to commercial contracts negotiated between two parties of equal strength.”

In Rick v. Brandsema (2009) S.C.J. No. 10, the court was asked to consider the duties owed by separating spouses during the process of negotiating and signing a Separation Agreement for the division of their matrimonial assets. In that case, the couple was married for 29 years, had 5 children and the wife was a fulltime homemaker who was “a deeply troubled person.”

In this case, even though both spouses were represented by counsel, and a mediator was involved in the negotiation of the terms of the Separation Agreement, the husband underpaid the wife by approximately $650,000. Shortly after the Separation Agreement was signed, the wife sued the husband for damages and, after a 17 day trial, the trial judge found that the Separation Agreement could not be regarded as a final and binding contract for two reasons. Firstly, the husband failed to “make full and honest disclosure of all relevant financial information” and, secondly, the wife was a vulnerable person because of her mental health and her vulnerabilities were not protected by the presence of professionals such as her lawyer, financial advisor or expert.

This decision was first reversed at the Court of Appeal and then the Supreme Court of Canada restored the trial judge’s ruling.

The guidance offered by the top court when negotiating a Separation Agreement is to take extra steps to ensure both the procedural (i.e. how it is negotiated) and substantive (i.e. what the terms of settlement are) integrity.

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Can a marriage contract really protect your assets and income?

A marriage contract (a.k.a. prenuptual agreement) is a written contract that permits a couple who intend to marry to agree, in advance, on issues such as property division and support in the event that the marriage ends. More often, people are getting married later in life or for a second time. If they own property that they wish to protect, or want to confirm that they will not be expected to support their spouse after they separate, then they may agree to terms that are incorporated into a marriage contract.

The question of whether such an contract would truly provide the protection desired had recently caused a stir in the Family law community after a British Columbia Judge decided to set aside the contract because it was unfair to the wife. This very topic was so contentious that it was appealed to the provincial court of appeal, and then to the highest court, the Supreme Court of Canada.

In the case of Hartshorne v. Hartshorne that was decided on March 26, 2004, the court ruled that Kathleen Hartshorne was bound by the terms of a one-sided marriage contract that she signed on her wedding day in 1989.

The Hartshornes were both previously married and divorced. They begun to cohabit in 1985 and had their first child in 1987. After they married in 1989, their second child was born. They were both lawyers (the wife articled for the husband’s law firm.) The husband brought assets worth $1.6 million into the marriage, including a home, two recreational properties, RRSPs, savings and his law practice, while the wife entered the relationship with no assets and heavily in debt. On the day of the wedding, the husband insisted that the wife sign a marriage contract that allowed both spouses to protect their pre-marriage assets except for their matrimonial home. In this regard, the wife was to be entitled to a three per cent interest in the matrimonial home for each year of marriage up to a maximum of 49 per cent. Both spouses consulted with separate lawyers and obtained independent legal advice. The wife’s lawyer advised her that the contract was grossly unfair. She nevertheless agreed to sign the contract with a few amendments, including a clause confirming her right to spousal support.

According to the contract, the wife was entitled to property worth $280,000 on separation, while the husband was entitled to property worth $1.2 million.

After they separated in January 1998, the wife commenced divorce proceedings against her husband for custody of the children, child support, spousal support and a division of property. The wife argued that the marriage contract should not be upheld because it was unfair and because she gave up her own law career to take care of their two children.

The husband relied upon the contract to avoid the usual legal procedure for equalizing family property upon separation. The husband further argued that, in keeping with the spirit of the contract, they managed their finances separately, there was no commingling of funds, there were no joint accounts of significant value and the assets that the husband brought into the marriage remained in his name. The husband argued that his wife knew what she was signing and agreed to be bound by its terms. Hence, a “deal is a deal.”

If the wife had been successful in setting aside the contract and receiving an equalization of the family property, she would have received $654,000, as opposed to $280,000.

In the end, the court ruled that when a couple’s circumstances at the time of separation was within their contemplation at the time that they signed the marriage contract, they both should be bound by the terms of the contract. In this case, the Hartshornes’ financial and domestic arrangements unfolded exactly as they had expected. Regarding the wife’s argument that she gave up her own law practice to take care of the children, the court concluded that it was a decision that she made prior to the marriage and it was not realistic to assume that she did not understand the consequences of this choice.

In declaring that “a deal is a deal,” the Supreme Court of Canada emphasized that the contract was indeed fair because the wife’s rights to spousal support were preserved by the contract and her husband, a successful lawyer, was in a position to pay the wife a generous amount of child and spousal support.

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Parenting Plans

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Will I get custody of my children after we separate?

The answer depends on the best interests of the children. These are based on a long list of factors that include the emotional ties between the children and each parent, the views and preferences of the children, the ability and willingness of each parent to provide the children with guidance and education, the plans proposed by each parent for the care and upbringing of the children, and the stability of the family unit. When parents separate, each parent has a right to apply for custody of the children. A judge will make a decision based on the best interests of the children and on the arrangements that were made for their care immediately after separation.

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Can I move away with the children?

This depends on a number of factors, including the children’s best interests, the current custody and access arrangements between the parents, the wishes of the children, the nature of the relationship that each parent has with the children, the reasons for the move, the distance of the move, and the financial ability of the access parent to exercise access.

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What is a custody/access assessment?

A custody/access assessment is a detailed investigation of a family’s situation by an educated and trained professional such as a social worker, psychologist or psychiatrist. The assessor will collect information relevant to the children’s relationship with their parents and then recommend a parenting plan that suits the best interests of the children. The assessor conducting the assessment will meet with the parents and the children, and sometimes with other people who are involved in the children’s life. The assessor will then write a report for the judge which contains recommendations on custody and access. In most cases, the parents are responsible for the cost of the assessment. In some cases, the judge may ask the Office of the Children’s Lawyer, a government agency, to conduct an investigation and report back to the judge with recommendations. The Office of the Children’s Lawyer may assign a social worker to conduct the investigation or assign a lawyer to meet with the children so that their wishes can be communicated to the judge.

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Can I use my personal journal to prove how poor access has been?

It is common practice to use a personal journal or day-planner to record the history of access, especially in situations of conflict. But in the decision of Hartland v.Rahaman (Superior Court of Justice, Campbell, J., November 14, 2001), the court ruled that the use of the journal was not admissible as evidence.
In that case, the mother prepared a journal related to a child’s behaviour around access visits with her father. The parties in this case were involved in an ongoing dispute regarding the father exercising his access rights. The child was exhibiting problematic behaviour around the time of her access days. The mother notified her family doctor of the situation. The doctor felt that the behaviour could be associated with the access visits and advised the mother to keep an ongoing journal of the child’s behaviour.
The mother then brought an application before a judge regarding the father’s access. At trial, the mother asked for permission to refer to her journal to help her refresh her memory of the incidents of negative behaviour exhibited by the child. The father applied to have this journal excluded from evidence on the ground that it was hearsay evidence. The court ruled that the journal was not admissible because the mother had no independent recollection of the events recorded in the journal. In addition, the court found that because the mother only recorded the negative behaviour of the child, the value of the evidence was tainted.
Nonetheless, it is recommended that separated parents maintain a written record of visitation in a personal journal or day-planner so that it may be referred to, in the event that there is a dispute as to the time, quantity and quality of access visits. The record should include as much detail as possible, such as the date, time and circumstances of each visit. The issue of admissibility of this evidence will be examined and addressed by your family lawyer.

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Is race a factor that is considered in custody cases?

The Supreme Court of Canada was asked this question in a case involving a caucasian Canadian mother and African-Canadian father in a dispute regarding custody of their four-year-old son (Van de Perre v. Edwards, 2001 S.C.C. 60.) Theodore Edwards, a former Vancouver Grizzlies basketball player, was seeking custody of his son. At the trial, the court granted custody to the mother. The father appealed this decision to the British Columbia Court of Appeal and argued that race was a relevant factor that should have been considered by the court when deciding custody. The appellate court conducted a full review of the evidence in determining the best interests of the child and, indeed, took into consideration the issue of race. The appellate court allowed the appeal and granted the father custody of the child. The mother then appealed this decision to the Supreme Court of Canada in Ottawa. The highest court addressed the issue of race by stating that “the question of which parent will best be able to contribute to a healthy racial socialization and overall healthy development of the child was a question of fact to be determined by the courts on a case-by-case basis.” In the end, the Supreme Court of Canada decided that an appellate court should not intervene in a trial judge’s decision and granted the mother custody.

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What is "supervised access"?

Sometimes, parents separate because of domestic violence, substance abuse, or because there is significant antagonism between the parents. There are also instances where there has been a lengthy separation between the parent and child. Sometimes, one parent does not interact appropriately with a child, possibly causing emotional distress to the child. There may be a risk of abduction.

In these cases, the child’s health and safety must be protected during access visits. Supervised access centres offer such parents a method to address these issues while still allowing access visits to occur. These centres provide a safe and secure setting where access visits and exchanges (pickups and dropoffs) can take place under the supervision of trained staff and volunteers. Staff and volunteers have special skills and are trained to be aware of issues such as family violence, child development, physical, verbal and emotional abuse, mental health, and substance abuse problems. Staff and volunteers are sensitive to the needs of the child, particularly children who are involved in high-conflict custody and access disputes.

Supervised access centres provide a safe, neutral and child-focused setting for access visits between a child and the access parent. Supervised access centres ensure the safety of families, staff and volunteers by staggering dropoff and pickup times, by having staff greet the child at the front door and accompany the child during the visit, and by providing enclosed play areas. Some centres record and provide factual observations of the visits.

As an alternative to using a supervised access centre, the parents may both agree to allow a family member or friend to supervise the access visits or to facilitate exchanges.

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Can a judge bar a parent from smoking around a child?

A family court judge in New York has prohibited a mother from smoking in the presence of her 13-year-old son. But what makes this visitation order extraordinary is that he banned the mother from smoking, even though the child is neither allergic to cigarette smoke nor afflicted with a disease, such as asthma, that could be exacerbated by exposure to cigarette smoke.

Justice Robert F. Julian cited scientific evidence on the generally adverse health effects of second-hand smoke and found that continued exposure to environmental tobacco smoke is not in the best long-term interests of the child. Justice Julien said courts in New York and several other states have banned parental smoking when it was directly related to a current and ongoing malady suffered by an offspring. However, the judge said he was unable to find any decision ordering parents to maintain a smoke-free environment absent an underlying diagnosis of asthma, allergy or another disorder.

The 2001 case of Johnita M. D. v. David D. D., D-0-37432 arose when the child, Nicholas, complained of smoking during access visits with his mother. Nicholas lives with his father and grandparents, who do not smoke, and has overnight visitations with his mother. In August 2001, Nicholas sought an in-camera proceeding through his law guardian to consider the complaint that his mother smokes in the bathroom and in the car during all of his visitations, and that the apartment reeks of smoke. Even though the mother argued that the father was the real cause of this complaint to reduce and avoid visitation, Justice Julian decided that the motive for the complaint was not relevant since the behaviour at issue, smoking, is demonstrably dangerous to the child. The court stated that “even though Nicholas does not presently have asthma, exposure to environmental tobacco smoke apparently significantly increases his risks of developing, either as a child or as an adult, asthma, coronary artery disease, lung cancer, and certain chronic respiratory disorders, to name the most significant conditions.”

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Does the Internet have any impact on custody and access rights?

Seems like a strange question. But like everything else in life, the Internet has even had an effect on custody and access rights to children.

For example, the right of a custodial parent to move to another province or country, and thus terminate the non-custodial parent’s visitation rights, has been a very hot area of family law called “mobility rights”.

In deciding mobility rights cases, courts have struggled with two competing interests. On one hand is the right of the custodial parent to move on with her life, move for a new job or marry a new spouse in another province or country. Should her decision to be the child’s primary caregiver be used against her in planning her life? On the other hand is the non-custodial parent’s right to maintain a close, loving and healthy relationship with the child—not to be prevented from remaining a critical part of the child’s growth and development, and weekly schedule (including weekends, school events, sports, vacations, birthdays and religious holidays).

In mobility rights cases, the courts have expressed the desirability of maximizing contact between the child and both parents and have given consideration to the trauma a child would suffer as a consequence of being removed from the non-custodial parent.
Increasingly, custodial parents seeking to move have advocated the benefits of the Internet to persuade non-custodial parents, lawyers and judges that moving away would not cause as much disruption to the relationship between the child and the non-custodial parent.
The following mobility rights cases are two examples of how judges have incorporated the Internet and electronic communication into court rulings that permitted the child to move away from the non-custodial parent.

In the New York case of Lazarevic v. Fogelquist, 668 N.Y.S. (2d) 320 (Sup. Ct. 1997), the mother wanted to relocate with child to Saudi Arabia in order to reunite with her new husband and family who were living in Saudi Arabia because of an employment opportunity. The father sought to prevent this relocation. The court decided that it was in the best interests of the child to move to Saudi Arabia with the mother, stepfather and half brothers and sisters, but required the mother to comply with specific conditions to ensure that the child’s relationship with his father be disrupted as little as possible. The court ordered the mother to hire, at her expense, a computer consultant in New York and Saudi Arabia to set up a system through which the father and son could communicate through the Internet and by fax. The computer would be for the child’s personal use only and there would also be a telephone line dedicated to communication with his father.

In the case of Sumra v. Sumra, 561 N.W. (2d) 290 (N.D. 1997), the mother sought to relocate with the children to Wales in order to be closer to her family and to pursue employment. The court allowed the move, but required the mother to ensure that the children have unlimited communication with the father by telephone, audiotape, videotape, electronic mail and regular mail.

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Can a judge prohibit a parent from consuming alcohol - even if the child is not in his care?

In Ontario, the Children’s Law Reform Act allows a judge to make orders that would be in a child’s best interest such as “prohibiting a party or other person from engaging in specified conduct in the presence of the child or at any time when the person is responsible for the care of the child.”

But in the Quebec case of D.V. v. E.W. [2013] Q.J. No. 15783, the Quebec Court of Appeal was faced with an appeal from a judgment which ordered the father to abstain from consuming alcohol at all times and to attend Alcoholics Anonymous. The father argued that “ordering him to abstain from drinking alcohol constituted a disproportionate constraint on his freedom to conduct his life as he saw fit in the absence of his children, whom he only saw a few days per month”. He argued that this order amounted to “an undue restriction on his freedom that was not justified by the children’s best interest.”

At trial, the mother presented evidence of the father’s history of alcohol dependency and that his license had been suspended for impaired driving. She felt that the father’s consumption of alcohol constituted a danger for the children. The father acknowledged his past problems with alcohol, but said that it was under control. He stated that he drinks approximately one beer per month at present.

The trial judge wrote that “even though [the father] feels his drinking is under control and the proof on the record bears this out, the court believes it advisable that a support safety net be in place, if not for his sake, then for the sake of his children.” The trial judge ordered the father not to consume any alcohol until the children have attained the age of majority.

The father appealed to the Quebec Court of Appeal and argued that this order violated his rights under the Canadian Charter of Rights and Freedoms and the Charter of Human Rights and Freedoms. He stated that a more suitable order would be for him “to refrain from consuming alcohol in the presence of his two minor children and at least one day prior to his access rights”.

In allowing the appeal and removing this restriction, the Quebec Court of Appeal ruled that the trial judge’s ruling “constituted a disproportionate constraint on the appellant’s freedom to conduct his life as he sees fit in the absence of his children. As such, he did not have a proper evidentiary justification based on the best interests of the child criterion, the sole factor relevant to the fixing of access rights pursuant to subsection 16(8) of the Divorce Act. The evidence did not reveal the [the father’s] alcohol consumption amounted to a real and present danger that would justify such a substantial limit on the exercise of his access rights.”

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Parental Gatekeeping: the latest in the lexicon of post-divorce parenting

With children being born to parents later in life, mothers working full-time and fathers being actively involved in parenting their children, coupled with a high divorce rate, it is no surprise that fathers expect to be considered custodial parents, equally with mothers, when they separate. Yet the traditional view of mothers as primary caregivers often collides with this new reality. Stemming from these historical and contemporary images of parents come values and attitudes which trigger actions and behaviours that cause post-separation conflict.

Dr. William Austin and Dr. Marsha Kline Pruett explain that ‘Parental Gatekeeping’ is where attitudes, actions and/or legal positions by one parent are designed to limit the other parent’s access, contact or involvement with their child. These restrictions are often based on assertions that the other parent’s involvement places the child at risk for harm, emotional distress, behavioural problems, adjustment difficulties, or negative developmental impact.

‘Restrictive Gatekeeping’ is where one parent, usually the mother, defines the role of the father and attempts to script his attitude and behaviour as a parent. The social science explains that ‘Restrictive Gatekeeping’ is more likely to produce lower child adjustment by producing more conflict and harm to the quality of the other parent-child relationship. On the other hand, ‘Facilitative Gatekeeping’ is more likely to produce better child adjustment through higher involvement of both parents and less exposure to parent conflict. This positive version recognizes the value of the other parent, appreciates the other parent’s social capital, invites proactive and cooperative co-parenting and generates win-win-win outcomes for families, parents and, most importantly, their children.

Some causes of Restrictive Gatekeeping are gender role beliefs, insecurity in parental identity, perceived parenting incompetence and need for control.

Most worrisome is the research that shows that the risk of harm to children by Restrictive Gatekeeping is often greater than the gatekeeping parent’s perception of harm by the other parent.

So now we have a new label for disputes where one parent attempts to limit the child’s relationship with the other parent.

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The problems with access to justice: another perspective

I recently read the paper by David E. Gruber in The Advocates Society Spring 2014 Journal called “Addressing the vanishing trial: a historical perspective”. This paper reminds us of the changing legal environment in which we currently operate, and what are the source causes of the public’s inability to access affordable legal solutions.

The paper reviews the history of civil procedure from the mid-19th century when cases went from pleadings right to trial. Most cases were tried and completed within a year. But in the last century, civil procedure has transformed with greater emphasis on procedural fairness and early stage dispute resolution. This has had the effect of adding significant time and cost to the resolutions of disputes and, in so doing, has made trials – the very end of a dispute – disappear or be a faint hope. Mr. Gruper argues that these pre-trial procedures “have developed an excess of appendages and fluff over time. Some serious pruning and housekeeping is overdue.”

The argument is compelling.

Under the old system, everyone seeking justice got it – speedy and inexpensive access to the courts, judges and resolutions.

But now the public has conferences and pretrials, documentary discovery, oral discovery, unlimited motions, mandatory mediation, strict rules for evidence, many many documents that must be prepared, served and filed in court and lots more procedure.

The cost to the public ?

Answer: Limited access to justice.

Mr. Gruper invites us to return to the former model of civil litigation. He succinctly ends his plea with “I suspect that almost anyone would prefer trial by surprise as opposed to no trial at all.”

Interesting point.

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What happens when separated parents cannot agree on anything regarding their child?

This was the dilemma that plagued six-year-old Nathan. His parents became embroiled in a nine-day trial and then a two-day appeal over this very problem.

Ultimately, on May 21, 2002, in the case of Cox v. Down, [2002] O.J. No. 2762, Mr. Justice Templeton of the Ontario Superior Court of Justice decided that the least of all evils was to decide each and every aspect of Nathan’s life for his two parents.

Nathan’s mother was a nurse and his father was a doctor. These parents had never lived together, Nathan had lived with his mother since birth. When he was 5 years old, Nathan’s father was awarded custody. His mother appealed the judgment changing custody of Nathan. The trial judge found that the mother actively interfered with the father’s access and discouraged a relationship between Nathan and his father. After a long history of litigation, it was ordered that granting custody of Nathan to his father and access visitation to his mother would be in Nathan’s best interest.

On appeal, an order was made for joint custody of Nathan using the “parallel parenting” model. The appeal court considered the many Canadian cases that concluded that parallel parenting can be appropriate in cases where parents are openly hostile and uncooperative. The concept is that the parents have equal status, but exercise the rights and responsibilities associated with custody independent of one another. A parallel parenting order is much more than a mere residential schedule where the child resides with one parent on a day-to-day basis. The concept of parallel parenting is intended to remove the power struggle between the two parents for control over the child.

The court decided that a parallel parenting order that would micromanage Nathan’s life with his two parents was in his best interest.

In the end, not only were Nathan’s parents granted equal time with Nathan throughout the school year, summer and holidays, but the rest of Nathan’s life was to be micromanaged. Nathan’s father was granted care and control of Nathan’s birth certificate and passport. Nathan’s mother was responsible for all decisions regarding his health. Each parent was entitled to select one after school activity for Nathan, provided that the activity did not fall within the time Nathan spent with the other parent. The parents were ordered to use a “communication diary” to exchange information regarding Nathan’s care.

In addition, the appellate judge was forced to decide the title of Nathan’s father. The court ruled that the mother was required to refer to the father as “Dad” or “Daddy” in the presence of, and within hearing distance, of Nathan.

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How do I avoid being criminally charged by my spouse ?

By Daniel Moore*

It is an unfortunate truth that, at times of separation, one spouse occasionally seeks to get the upper hand by making a false allegation to the police and having their spouse charged with a criminal offence. A criminal charge will usually remove the spouse from the matrimonial home and may severely restrict access to the children.

The following are some tips that may help you avoid being charged, or at least assist in your defence if you do get charged:

  • The most common criminal charges are ‘assault’ and ‘threatening’. Remember that an assault includes even the most minor touching, such as a push or a poke with your finger. So walk away if an argument starts, remembering that your spouse may be intentionally trying to upset you in the hopes that you will react. Never say (even if you don’t mean it) phrases that refer to death, bodily harm or property damage such as “I wish you were dead”, “I’m going to kill you”, “If I can’t have you, no one else can”, “I’ll never let you go”, “I’ll burn this bed before I let you sleep with someone else in it”, etc.
  • Keep a detailed daily journal recording where you are and who you are with so that if your spouse says you did something at 4:00 p.m. six weeks ago you can respond that this would be impossible as you were somewhere else and the person you were with can be a witness for you.
  • If your interactions with your spouse are hostile, avoid contact as much as possible by, for example, using a friend or relative to assist in dropping off and picking up the children.
  • Never send an email or call your spouse while angry.
  • Let your lawyers do what you pay them to do. Don’t discuss custody, access or money issues directly with your spouse.
  • Use a digital recording device or an App for your smartphone to record all your interactions with your spouse so that you can play the conversation back to the police if your spouse reports you. Recording conversations that you are not a party to is unlawful.
  • If you are a firearm owner, be 100% certain that it is properly registered and safely stored. If possible, get rid of it entirely.
  • If you are attempting to reconcile, use the professional help of a counselor or therapist.
  • Do NOT try to be an amateur detective and follow your spouse around hoping to discover infidelity, as this may be seen as criminal harassment.
  • Do NOT access password-protected emails or other data, even if it is on a shared computer.
  • Do NOT use a “keytracker” or other program to surreptitiously monitor your spouse’s computer use.
  • If there has been infidelity, DO NOT contact the other party or the other party’s spouse

*Daniel Moore is a Certified Specialist in Criminal law and is a partner with the law offices of Heller, Rubel

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How to introduce your children to a new partner

Separation and divorce provokes insecurity and fear of the unknown. The break-up of a family is an unanticipated event that changes the familiar course of family life to a series of unknowns to the children – a new residence, new routines and sometimes even new schools. It is a transitional period for each person in the family, and the change is felt differently by each person. While the parents are attempting to sort out their new lives, the children are left to acclimatise to the changes that are thrust upon them.

When a separated parent eventually finds the courage to begin dating, s/he often is considering if, how and when to reveal this to the children. There are many different perspectives and opinions on this subject, found in publications, magazines, books, academic journals, internet sources and from speaking with family and friends. Many of these sources agree that the most important factor is the child’s connection with his parent and sense of security. A child who is connected to his parents and enjoys a healthy and stable relationship will be able to better manage further changes and even unanticipated events.

Assuming that the parent-child relationship is healthy, the next important consideration is choosing the right time to tell the children about a new partner. Parents should not rush into introductions. Although it is never possible to know how certain and stable a new relationship is, delaying the introduction until there is greater confidence of its sustainability is prudent. Introducing the new partner to family and friends is a good technique to solicit objective feedback. Parents should take all the necessary time needed to ensure that the relationship between his/her companion is one that is solid and based on mutual commitment.

The next important consideration is choosing the right words. For example, using the word ‘friend’ instead of boyfriend is softer and less likely to cause a negative reaction. It is not uncommon for children to worry about their displacement, or the displacement of the other parent by a new companion. Again, that is why the strength and connectiveness of the parent-child bond is so critical.

The next step is for the children to meet the new partner. The parents should carefully plan the meeting. Make it casual and relaxed. The meeting could revolve around an activity such as bowling, hiking or fishing. This allows for everyone to be focused on the activity, while at the same time, releasing some of the discomfort through a common activity. In addition, participation in a common activity allows for casual conversation and interaction to take place. Amusement parks, sporting events or movies, on the other hand, would not be considered a smart choice. The crowds, noise and waiting lines would not create a relaxed and interactive atmosphere.

After the new companion is introduced to the children, the parent should allow for multiple and varied meetings to occur to foster a relationship and establish continuity and consistency. After a lengthy period of involvement, the children will likely adjust to this new change. But be cautious to not move too quickly. For example, do not have the new partner spend the night. Such a decision could provoke confusion and anxiety by the children. So the parent should takes things slowly and be sensitive to the signals and feelings of the children. So long as the parent has the best interests of the children in mind, the parent can navigate the journey of a new relationship with ease and comfort.

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How far is too far to go to remove children from their father after separation?

In the Criminal court case of R. v. Gettliffe-Grant released on January 11, 2007, British Columbia Supreme Court Justice Koenigsberg considered one of Canada’s worse cases of parental alienation.

The court considered the case of Nathalie Gettliffe and her husband Grant. They were married in 1989 and had two children together. Their son was born in 1993 and their daughter was born in 1995. They settled in Vancouver because Gettliffe was working on her graduate degree at the University of British Columbia.

Despite Gettliffe’s objections, Grant became increasingly active in his church. This came to be a source of stress on the marriage. Finally in July 2000, when the children were 7 and 5 years old, the couple separated. The couple then met with a counsellor and entered into an agreement providing for joint custody of the children.

In 2001, Gettliffe applied to the Family court to allow her to take the children with her to France for a 10 month academic term. Her request was denied by the court.

Surprisingly, two days after the judgment was rendered, Gettliffe left for France with the children. She did not contact Grant until several days after her arrival in France. In a subsequent heated telephone exchange, Gettliffe threatened that if Grant did not agree to her staying in France for 10 months with the children, then he would never see the children again.

Over the next few years, beginning in 2001, many court proceedings were undertaken in France through the Hague Convention to enforce the Canadian court’s orders. At least three separate French court hearings resulted in decisions ordering the return of the children to Canada.

In the meantime, Gettliffe had entered into a new relationship with another man and had a child with him.

During the ongoing court proceedings, Gettliffe only permitted Grant three or four visits with the children for a few hours at a time.

In France, this case had become publicized. Gettliffe painted Grant as a cult-crazed, violent, abusive father. She described herself to the media as a brave mother who had the courage to flee Canada to save herself and her children. Gettliffe had taken up residence in a small village in France and obtained thousands of signatures on a petition to be sent to the courts and government officials asking them for protection of the children from their father.

In April 2006, Gettliffe returned to Vancouver on her own to defend her post-graduate thesis. When she did return to Canada, she was arrested. She was pregnant with another child at the time. Before leaving France, she moved her children to an undisclosed location so that they could not be found and returned to British Columbia. Even after her arrest, Gettliffe refused to provide any cooperation to authorities or Grant for the return of the children to Canada.

By now, the children were 13 and 11 years old.

When asked for their views regarding their father, they stated that they no longer wished to see him.

The prolonged stay of the children in France for over five years caused them to lose their ability to communicate in English – their only means of communication with their father.

At Gettliffe’s criminal trial, the Crown Attorney argued that Gettliffe’s alienation of the children from their father was deliberate and prolonged, to ensure that they would never have to leave France and be in their father’s custody again.

The children were eventually brought back to Canada in July 2006 – only after the intervention of the French police who assisted Grant in locating the children.

In the end, Gettliffe was sentenced to prison for 16 months for two counts of child abduction contrary to section 282 of the Criminal Code.

In describing his outrage, Justice Koenigsberg stated that “the evil of abducting children for the purpose of depriving an available and appropriate parent of a relationship with their children is denial of the child’s right to the best possible relationship with both parents. It is a tenet of Family law recognized, in my view, in the Criminal Code sections which criminalize the conduct which deprives a custodial or access parent of care and responsibility for children that it is children’s rights that are at stake in custody and access issues. For most children, fundamental to their sense of identity is an ability to love and accept love from each available parent. Thus, the most profoundly aggravating factor in this case is the compelling evidence of persistent and deliberate alienation of these children from their father…. But perhaps the most egregious of all is the responsibility for hostility toward their father, by words and deeds, which must lie at the feet of their mother who took them from their home with the intent of depriving their father of his custodial rights. And, she then, placed them in an environment in France where the mother’s family, friends, and ultimately apparently an entire village, as well as the wider French public, came to believe untruths about the father’s conduct toward the children and the role of his religion in his and their lives.”

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What is a father to do if the mother obstructs his relationship with the child?

Judges have the power to enforce court orders for access in Family Court. Specifically, a custodial parent who willfully disregards a court order may be found in contempt of a court order. A finding of contempt is considered quasi-criminal in nature and could result in serious penalties, including imprisonment. As a result, the person accused of contempt is provided with many safeguards. The custodial parent must be personally served with notice. Contempt must be proven ‘beyond a reasonable doubt’, just like with other crimes. The custodial parent is entitled to remain silent and not testify. The access parent must prove that the contempt was a willful violation of the court order.

In many of these cases, Family court judges are interested in ascertaining why the custodial parent acted in such a way. If the parent willfully denied the other parent access to the child, the judge has the power to order make-up access, fine the custodial parent, order costs against the custodial parent, transfer custody of the child to the access parent and even have the custodial parent arrested and incarcerated. These decisions are largely dependent upon the circumstances in each case.

Even in some cases where the custodial parent acted willfully to disobey the court order, a judge may act with leniency if penalizing the custodial parent will cause emotional harm to the child. That is what occurred in a recent decision of the Ontario Court of Justice. In A. (R.G.) v. C.(K.A.) [2011] O.J. No. 2496, the judge ultimately denied the father access to his 10 year old son even though the custodial parent breached the court order for access to deny the child a relationship with his father. The case had been before the court for 4½ years without any access having occurred. This was notwithstanding the father’s protracted efforts to see his son. Throughout the litigation, the mother refused to comply with the judge’s orders and thwarted the father’s access including denying parentage, threatening criminal harassment charges and making unproven allegations of sexual abuse. The judge even assigned the child his own lawyer and directed that his doctor reintroduce the child to his father. All these efforts failed as the mother refused to bring the child to the appointments. As a result, the child’s views were unknown to the judge and the experts, who were unable to determine what was in the child’s best interest.

In the end, the judge found that the likelihood for a successful reintegration between the father and his son was very low. By then, the child had not seen his son for over 7 years and, as a result, the father was a stranger to his son. Moreover, the judge considered the adverse impact that further court proceedings or penalties would have on the child and determined that it would not be in the child’s best interests. Similarly, it noted that any orders made would likely be ignored by the mother, thereby being futile.

This case raises an important debate in high-conflict custody cases. On one hand, judges must consider what effect an order will have on the welfare of the child. On the other hand, judges cannot sanction a parent’s willful disregard of a court order regarding children.

In 1961, Mr. Justice Pearce stated in Attorney-General v. Harris:

“A breach with impunity by one citizen leads to a breach by other citizens, or to a general feeling that the law is unjustly partial to those who have the persistence to flout it.”

Disrespect for the law is a serious matter. The concern with this recent decision is that it may set a dangerous precedent by rewarding parents for taking matters into their own hands and disregarding the law.

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In custody and access disputes, what is a ‘bird’s nest’ or ‘nesting’ arrangement?

It is a universally accepted truth that separation is highly disruptive to the life of a child. Children are usually very aware of the situation at home, yet they have no control over the choices or actions of their parents. When their parents decide to separate, children are given little advance notice and almost no input into the new residential arrangement. In many cases, they are forced to move out of their home, away from their friends and sometimes to new schools.

Despite the turmoil that the parents are facing, particularly in high conflict cases, family court judges are making more creative and child-focused orders regarding custody and access. Specifically, they are making the children the main priority by considering their aversion to change and their need for familiarity, stability and permanence – all during an otherwise unstable moment in their life.

This was the situation that Mr. Justice Graham faced in the case of Bodenstein v. Bodenstein [2012] O.J. No. 996. In that case, the mother was asking for exclusive possession of the family residence (i.e. an order evicting the father from the home and permitting the mother to reside in the home with the children). The mother claimed that the circumstances in the home were intolerable and that the children needed a home, free and clear of the conflict between their parents.

The court dismissed her request and instead acted to promote the best interests of the children by maximizing the children’s contact with each of their parents, pending the establishment of a temporary or permanent parenting plan. Mr. Justice Graham ordered a ‘week about nesting arrangement’ until the sale of the matrimonial home. That is, the children were to remain living in the matrimonial home, while each parent rotated in and out of the home for one week at a time with the children.

The court gave very little weight to the fact that the mother had left the home with the children for about 7 months – a decision she made to reduce the conflict that the children witnessed. The court stated that it should be careful not to treat the decision of the moving parent as creating a status quo, or as an indication that the parent should not have an equal parental role.

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Can you use a tape recording of a child’s wishes in court?

Court cases involving custody and access of children are decided based on the law that directs judges to consider the best interests of children.

Section 24 of the Children’s Law Reform Act expressly defines the ‘best interests’ test to involve a consideration of “the child’s views and preferences, if they can reasonably be ascertained.” It therefore should follow that a tape recording of a child expressing his or her wishes regarding a parenting schedule following his or her parents’ separation is relevant and useful.

On September 11, 2012, in the case of Hunter v. Stewart, 2012 ONSC 5102 (CanLII), the Honourable Madam Justice W.L. MacPherson was asked to consider an appeal of a lower court ruling denying a father the right to introduce into evidence various tape recordings of the parents and the child.

The court relied upon the ruling from the Ontario Court of Appeal in Sordi v. Sordi 2011 ONCA 665 (CanLII) in deciding whether or not to allow taped conversations into evidence. In that case, the Court of Appeal decided that “it is within the discretion of the trial judge and, in exercising that discretion, there must be a balancing of the public policy concerns, namely to discourage the use of secretly recorded conversations in family law proceedings, as against the probative value of the evidence in relation to the issues before the trial judge.”

Justice W.L. MacPherson ruled that “in the context of a custody and access dispute, it is difficult to see how the taped conversation would be relevant to an assessment of the child’s best interests. If anything, it is more indicative of the lengths to which the appellant would go in advancing his claim for sole custody.”

Her Honour went on to state that “given the obvious opportunities for abuse and the need to discourage parents from recording conversations with young children and the limited probative value of the evidence tendered on the issues before him, there was no error in the manner in which Justice Sherwood exercised his discretion in excluding the tape recording.”

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Creating A Home For Your Children After Divorce

When a couple decides to part ways, it is often hardest on the children. They are forced to adjust to a new routine and a new or secondary home. To ease them into their new reality, parents need to create a warm, inviting and personalized space for the children so that they feel comfortable. Here are some tips on how to make a new or second dwelling feel like home:

1) Create a ‘Kids Zone’. Ensure there is a designated space for the children. Having their own bedroom will make them feel less like a guest and more like their home. If finances don’t permit, try to make the shared space special to them or designate a part of that space specifically for the children. Ensure the space has the functionality the children require such as sleep space, homework space, play space, space for friends, etc.

2) Involve the children in the process. No matter how old they are, have the children help decorate. If hiring a professional, have them consult with the children too. If they are older, set a budget and partner with the children in the design of their space. If they are younger, let them pick out their own pillows, bedding and decorations. If budget is a factor, create some DIY projects they can help with to save money. If they have a hand in creating their space, they will be more excited about it and it will be a more positive experience for them despite their parents’ separation.

3) Don’t be a hotel. Ensure they have a second set of key things so that they do not have to pack a suitcase every time they come over. They need to feel like it is their home, not a vacation. They may even want their room decorated the same way as their other home – which is fine. A second toothbrush and other toiletries, a good supply of clothing and pajamas, linens, toys, school/art supplies, etc. would be great to have. If they have a specific item they are attached to, try to purchase a second one. This way when they come over, they are coming home, rather than coming to visit.

4) No surprises. Keep a calendar visible that shows the children’s extra-curricular activities, when they will be with mom and dad, any family events they will participate in, etc. This way, they will feel more in control.

These tips will help ease children into their new environment and routine. If they are in a happy space, it will definitely help boost their mood and help them better cope with some of the feelings they may be having related to the separation. Even if it takes a small investment, it will be well worth it in the end.

By Erin Lazer, Owner of SpaceStyle Home Staging, Organizing and Design, www.SpaceStyle.ca, erin@spacestyle.ca

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What is the legal process for giving or changing my child’s name?

There are at least 2 times when this question arises – at birth and after separation.

For naming a child at birth, Ontario’s Vital Statistics Act states at section 9 that “[t]he mother and father, or either of them…shall certify the birth in Ontario…” This legislation requires, at section 10, that “[a] child…shall be given at least one forename…and a surname.”

It is the next part of the Vital Statistics Act that addresses those cases where the child’s parents do not agree on the child’s name. Section 10(3)(2)(ii) states:

“If both parents certify the child’s birth but do not agree on the child’s surname, the child shall be given…a surname consisting of both parents’ surnames hyphenated or combined in alphabetical order, if they have different surnames.”

Thus, where the parents cannot agree on a child’s last name, Ontario’s Vital Statistics Act stipulates that the child will be given a last name made up of both parents’ last names, in alphabetical order, either hyphenated or combined.

As for changing a child’s name after birth, such as after separation, section 14(1)(a) provides that a “person with lawful custody of a child under the age of 12 years whose birth was registered in Ontario may elect…to change the child’s [name]…unless a court order or separation agreement prohibits the change.”

This is followed by section 14(3) that provides that a “person who elects under subsection (1) shall give notice of the election to every person who is lawfully entitled to access to the child.”

That means that if only one parent has lawful custody of a child under the age of 12 years, he or she may apply to change a child’s name, unless a court order or separation agreement prohibits such a change. That is, provided that the parents do not have joint or shared custody of the child, the parent with sole custody does not require the other parent’s consent to change the child’s name – just notice to him or her. Such notice could lead to a court application to prevent such a change.

Ontario’s Vital Statistics Act operates alongside Ontario’s Change of Name Act.

Section 5 of the Change of Name Act states that:

“A person with lawful custody of,

(a) a child whose birth was registered in Ontario and who is ordinarily resident there; or
(b) a child who has been ordinarily resident in Ontario for at least one year immediately before the application is made, may apply to the Registrar General in accordance with section 6 to change the child’s forename or surname or both, unless a court order or separation agreement prohibits the change.”

Section 5(2) of the Change of Name Act states:

“The application under subsection (1) requires the written consent of,

(a) any other person with lawful custody of the child;
(b) any person whose consent is necessary in accordance with a court order or separation agreement; and
(c) the child, if the child is twelve years of age or older.”

Section 6(7) of the Change of Name Act states that:

“If anyone is entitled to notice of an application, the applicant shall,

(a) at least 30 days before filing the application, send notice and a copy of the application by registered or certified mail to the last known address of the person entitled to notice; or
(b) obtain an acknowledgment of notice, signed by the person entitled to notice, and provide it with the application to the Registrar General.”

In summary, there are laws pertaining to the giving or changing of a child’s name. A parent seeking to change a child’s name without the other parent’s agreement, or a parent seeking to prevent a name change, is best advised to consult a lawyer.

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Can I get a restraining order to protect me?

Yes. If a spouse or a child is in danger because the other spouse has a history of violence or has made threats of harm, a spouse may ask a judge for an immediate restraining order to protect the spouse and the children.

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Do grandparents have the right to visit their grandchildren?

In the March 2, 2001 decision of the Ontario Court of Appeal in Chapman v. Chapman, the issue was whether access by a grandparent to grandchildren who live with their parents should be imposed over the wishes of those parents and children. The application for access in this case was made by Esther Chapman, the grandmother of 10-year-old Eric Chapman and his 8-year-old sister Leanna. They are her only grandchildren. The family lives in Cobourg, Ontario, and the grandmother lives in Toronto. The grandmother had visits with the children approximately three to six times annually, usually on religious holidays. Visits with the children were almost always in the presence of their parents. The parents had increasing concerns over the grandmother’s diminished capacity to care for the children on her own.
In 1998, the grandmother applied to the court for monthly visits and weekly telephone contact with her two grandchildren.
The provincial appellate court decided that it is the children’s parents—not their grandmother—that have total and final authority to determine if and when the children visit with their grandmother. The court decided that “Larry and Monica Chapman, not Esther Chapman, are responsible for the welfare of the children. They alone have this legal duty. Esther Chapman, as a grandparent, loves her grandchildren and, understandably, wants to maintain contact with them. Nonetheless, the right to decide the extent and nature of the contact is not hers, and neither she nor a court should be permitted to impose their perception of the children’s best interests in circumstances such as these where the parents are so demonstrably attentive to the needs of their children. The parents have, for the moment, decided that those needs do not include lengthy, frequent visits with their grandmother. Although the parents’ conflict with Esther Chapman is unfortunate, there is no evidence that this parental decision is currently detrimental to the children. It should therefore be respected by the court and the children’s best interests left in the exclusive care of their parents.”

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Am I allowed to spank my children?

On January 15, 2002, the Ontario Court of Appeal ruled that section 43 of the Criminal Code of Canada, which allows the use of “reasonable force” by parents and teachers in disciplining children, does not violate the Charter of Rights and Freedoms and will remain in effect. This decision resulted from an application that was brought before the court by the Canadian Foundation for Children, Youth and the Law to remove this section from the Criminal Code on the basis that it is unconstitutional and violates the Charter. Section 43 states:

“Every school teacher, parent or person standing in the place of a parent, is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.”

In the decision of Canadian Foundation For Children, Youth and the Law v. Attorney General of Canada, (January 15, 2002), Ontario Court of Appeal, the appellate court ruled that the main purpose of this section is “to allow for the use of strictly limited corrective force on children by parents and teachers in carrying out their responsibilities to train and nurture the children.” However, family court judges believe that positive discipline can be done without physical or emotional harm to a child, and generally do not accept physical discipline as an appropriate method of disciplining children.

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Can a mother be convicted of abducting her own children?

In a March 2000 custody trial, the mother of 9-year-old triplets had lost custody of her children to the father. The custody trial was adjourned to decide whether the mother would continue to have access visits with her two boys and girl. Fearing that the family court judge would cancel the access to her children, the mother cashed in her assets and prepared to flee with the children on her next access visit. She hid the children in her car and drove to the United States and then to Mexico, where they lived for a few months until they were found and returned to their father in Ontario.

The mother was criminally charged with three counts of abduction. At her criminal trial, she argued that her children would face imminent psychological and emotional harm by living with their father. The mother relied on section 285 of the Criminal Code that provides that a person cannot be found guilty of abduction if the court is satisfied that taking the children was necessary to protect them from danger of imminent harm.

A judge and jury acquitted her of all criminal charges. However, the Crown Attorney appealed this decision and, on August 26, 2003, the Ontario Court of Appeal determined that there was neither harm nor imminence in the mother’s situation.

The appellate court was concerned that anarchy and chaos would be created in family law if a criminal court judge were to accept that a family court judge’s decision to grant custody to one parent created a situation of imminent harm to the children. The appellate court stated that parents who are unhappy with the outcome of custody proceedings would feel entitled to ignore unfavourable court orders regarding their children.

A new criminal trial was ordered.

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Can you sue for custody and support of your pet?

Maybe.

On December 17, 2004, in the Ontario case of Warnica v. Gering, Mr. Justice Timms dismissed Christopher Warnica’s claim for shared joint custody of a pet dog named Tuxedo. In that case, the judge stated that courts should not be in the business of making custody orders for pets. Although the judge acknowledged that pets are of great importance to human beings, Mr. Justice Timms stated that some people go to extraordinary lengths to preserve that relationship. That is why Mr. Justice Timms ultimately ended Mr. Warnica’s case.

As for pet support, in the Alberta case of Boschee v. Duncan, [2004] A.J. 677, in addition to seeking $1,500 per month in spousal support, the wife claimed $200 per month to support her husband’s St. Bernard dog. The wife argued that she required pet support to cover the veterinary costs and the costs of feeding and caring for the dog after her husband left the dog in her care. The court found that a St. Bernard dog costs more to maintain and feed than the usual smaller variety. The judge hearing this case ruled that $200 per month was a reasonable sum to compensate the wife for the time and expense required to look after her husband’s dog and ordered him to pay pet support.

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Can biological parents still have a relationship with their children even if the children have been made crown wards for the purpose of adoption?

Dora and Raymond are the biological parents to two young children.

Children’s Aid Society of Toronto CAS had been involved with this family since the birth of the children. CAS’s concerns related to the cleanliness of the home and the ability of the parents to meet the special needs of one of the children.

Previously, CAS had apprehended the children and later returned them to their parents. But in November 2002, the children were once again apprehended because of the conditions in the home. CAS then sought an order of “Crown wardship with no access” between the children and their parents in order to allow the children to be adopted. CAS was of the view that an order of Crown wardship with no access would ensure the children’s future opportunity for a permanent and stable home.

After a seven day trial in 2003, the trial judge found that Crown wardship was in the children’s best interests but did not make a “no access order.” Instead, it made a “silent with respect to access” order allowing the CAS to facilitate access between the parents and the children until such time as adoptive parents were found. As a result of this restrictive access order, the mother appealed this decision to the Ontario Court of Appeal.

On September 27, 2005, the highest court in the province ruled that neither parent shall have a right of access to either child in order to allow the children to be adopted.

In doing so, the court was aware that the legislation still permitted the mother to seek an access order if the children had not been placed with adoptive parents within six months. Moreover, an order giving no right of access to the parents did not prevent the CAS from permitting the parents to visit the children.

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Orthodox Judaism & Custody Disputes: What To Expect In Family Court

For the Orthodox Jewish person, the 613 mitzvot (commandments), and the scholarly commentary that followed, sets out a very defined code of conduct that guides Jewish behaviour. The Jewish code of conduct, known as Halacha, is what defines the Jewish person’s very relationship with God, their fellow person and their community. In Orthodox Jewish thought, the traditional practices, rituals and prohibitions are not optional. In fact, not observing a commandment is considered a sin that requires repentance.

Likewise, Halacha imposes various obligations upon the Jewish parent. At 12 years of age for girls and at 13 for boys, children enter adulthood as a Bat and Bar Mitzvah and are expected to begin bearing personal responsibility for their actions. In other words, until that age, Jewish parents are held responsible to God for their children’s behaviour including their sins. A Jewish parent is obligated to ensure that the food their child eats is Kosher, learns to pray, observes the Sabbath and other holy days and is educated in Judaism and Torah.

In many Orthodox Jewish families, well before children are born and, in many cases even before the spouses marry, the spouses carefully examine their religious philosophy and intended practices to ensure that they are consistent. Indeed, there are differences even amongst various factions within the Orthodox Jewish community. That is why many of such marriages are carefully orchestrated with the involvement of the spouses’ families, their Rabbis and, in some cases, a professional matchmaker. This is all done to eliminate the possibility of future disagreements over core philosophies such as family life.

Despite all such efforts and good intentions, the Orthodox Jewish community is not immune to marital conflict, irreconcilable differences and separation. Although the rate of divorce may be less than the general population, it nonetheless occurs. When it does, some couples seek to resolve their differences privately with the help of their families, Rabbi, or professional mediators and lawyers. In some cases, one or both spouses may decide to seek remedies in the Ontario courts. The purpose of this article is to chronicle some recent cases where Orthodox Jewish parents’ custodial powers and competing religious convictions were placed before the courts.

In Rosenberg v. Minster [2011] O.J. No. 3607, the mother brought a motion asking for an order that the father comply with Jewish dietary laws during his access visits with his daughter and that access be suspended during the Jewish holy days. The mother demanded that the father comply with Jewish Orthodox practices. The father described this as extreme. Much of the affidavit evidence focused on the past conduct of the parents and whether there existed an agreement to parent their children in accordance with Orthodox Jewish practice. Instead of making findings of fact in this respect, the court stated “the only question to be considered is what is in the best interests of the child. It is not for courts to choose between the religious practices of parents…The best interests of a child usually means that a child’s relationship with the other parent is more important than exclusive conformity with the religious practices of one parent.”

In Polak v. Polak [2013] O.J. No. 3295, again the court was faced with a case where Orthodox Jewish practice was at the core of the parents’ dispute. In this case, the parties had two boys, ages 6 and 4 years. The mother was not Jewish. But, after her mother (the maternal grandmother) remarried to an Orthodox Jewish man, both the mother and grandmother converted to Judaism. The mother then took steps to convert the children. She gave them Hebrew names, dressed them in tzitzits and kippahs (religious prayer shawls and head coverings), registered them in a Jewish school and had the boys circumcised. Most importantly, the mother limited the children’s contact with their father because of her Orthodox Jewish beliefs.

In expressing disapproval of the mother’s conduct, the court stated:

“I do believe that this is a situation where religion has taken on a toxic presence detrimental to the best interests of the children…Had the Applicant been more balanced in her viewpoint, or had she been able to balance her religious views with time sharing with the husband, the result today would most probably have been quite different…As such, it is my determination that the children’s best interests can only be met by placing them in the custody of their father…”

These cases demonstrate that the Ontario courts are maintaining the Supreme Court of Canada’s standard for parenting, as set out in Young v. Young, by only limiting a parent/child relationship where there is a risk of harm. Neither in Rosenberg nor in Polak were either Jewish parent able to demonstrate that the other parent’s failure to obey Orthodox Jewish practice would expose the children to a risk of harm and, as a result, their attempts to have the courts uphold these Orthodox Jewish parenting practices failed.

This is to be juxtaposed to the Supreme Court’s decision in Bruker v. Marcovitz, where Justice Rosalie Abella, writing for the majority, upheld Orthodox Jewish practice by awarding an Orthodox Jewish wife damages resulting from her husband’s refusal to grant her a Jewish divorce, called a Ghet. According to Halacha, a Jewish wife requires a Ghet to remarry and have more children. In this case, the husband deprived his wife of a Ghet for 15 years.

In this case, the Supreme Court was asked to turn its attention to the interplay of state law and religious beliefs and, in so doing, declared that the court may and will uphold Orthodox Jewish beliefs and practices.

Interestingly, Justices Deschamps and Charron, in dissent, stated that under Canadian law, the wife could have remarried and had more children. They stated that only her religious rights were in issue and that it is not up to the state to promote a religious norm.

The Supreme Court may someday address the competing interests of parents’ custodial powers and their religious convictions.

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If separated parents share custody of their children, can they both claim the Dependent Tax Credit under the Income Tax Act?

Well, that is not what the Tax Court of Canada judges have concluded. In Haynes v. The Queen 2013 TCC 84 (Canlii), Madam Justice Miller was presented with an appeal by a father who had signed a Consent Order with his former spouse that child support was payable “pursuant to the straight ‘set-off’ approach” in the Federal Child Support Guidelines. He was required to pay child support in the amount of $410.25 per month that was based on a set-off between the amount he was required to pay ($783) and the amount his former spouse was required to pay him ($372.75). When he filed his tax return, Canada Revenue Agency disallowed the claim on the basis that subsection 118(5) of the Income Tax Act (“the Act”) prevented him from receiving the credit.

Paragraph 118(1)(b) of the Act allows a tax credit in respect of a wholly dependent person. Subsection 118(5) of the Act provides that an individual may not claim a tax credit for a wholly dependent person where that individual is required to pay a support amount to his or her former spouse. Subsection 118(5.1) of the Act provides that subsection 118(5) does not apply if it would deny the credit to both parents. In such a case, paragraph 118(4)(b) would apply and the parents must agree which of them will claim the credit on an annual basis. If there is no agreement, neither of the parents will be allowed the credit for the year.

The father claimed that the children are dependents of each parent, that each parent is paying child support to the other, that each parent could therefore claim the credit and that Canada Revenue Agency cannot deny both parents the tax credit. That is, the father argued, they should both get the tax credit.

Madam Justice Miller relied on the Federal Court of Appeal ruling in Marc Verones v. The Queen, 2013 FCA 69 (CanLII) and stated:

“I am of the view that the Tax Court correctly rejected the Appellant’s thesis. The Tax Court observed that the Order of the Court of Queen’s Bench of Alberta directed only the Appellant to make child support payments, notwithstanding that his former spouse’s income was taken into consideration in determining the amount that he, as the higher income spouse, was directed to pay. It is clear that the child support payments made by the Appellant constitute a “support amount” as contemplated by subsection 56.1(4) of the Act. The mother’s contribution to the children’s needs does not meet the requirement of that subsection as there is no order or written agreement requiring her to make child support payments to the Appellant. As a result, subsection 118(5) is applicable and the Appellant is not entitled to the tax credits. The whole discussion about the concept of set-off is a mere distraction from the real issue, i.e. whether or not the Appellant is the only parent making a “child support payment” in virtue of “an order of a competent tribunal or an agreement”, as defined under the Act.”

The father in Haynes suggested that this law should be repealed. Madam Justice Miller responded by stating that “it is a matter which only Parliament can address.”

Time will tell if this provision is ultimately corrected by the government.

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Can social media be used to skirt restraining orders ?

In Ontario, typical restraining orders in Family law will say “the Respondent shall not communicate, directly or indirectly with the Applicant.” So if a husband posts messages to his wife on his Facebook page, is that considered communication and a breach of the restraining order ?

The advent of new technology, such as social media, has blurred the meaning of communication. Social media posts on sites such as Facebook, Linked-In, Snapchat, Instagram or other social media sites are unlike direct communication (such as telephone calls, letters or e-mails), where the message is directed to a particular person. But unlike public communications (such as a newspaper advertisement, radio broadcast or even a personal website on the world wide web), the audience for social media is a narrow and specific group of users who voluntarily opt in. In many cases, the person has opted-in many months or years before any order is made prohibiting communication. As a result of the above, the framework for what constitutes communication does not fit neatly into existing legal frameworks.

Contributing to the confusion is the fact that there have been no Family law cases in Canada that have addressed whether social media posts are considered communication and, if so, a breach of a court order prohibiting communication. However, recent American cases considered social media posts in other legal frameworks. For example, in the Oklahoma case of Pre-Paid Legal v. Cahill, a former employee of Pre-Paid Legal joined a new company and notified his Facebook ‘friends’ (i.e. past colleagues) of his change of employment and the benefits offered by his new employer. Pre-Paid Legal sought an injunction restraining him from communicating with their employees. The court dismissed that claim finding that his posts were not a wrongful communication. In another case, two companies, Enhanced Network Solutions and Hypersonic Technologies Corp., entered into a contract that included a non-solicitation clause. The contract prevented either company from inducing the other’s employees to leave their employment. Subsequently, Hypersonic posted a job opening on their Linked-In page. An Enhanced Network employee discovered the opening on Linked-In, applied for it and was hired. The Indiana Court of Appeal concluded that Hypersonic’s conduct was not a breach of contract.

New developments in technology have, and will continue to, challenge existing legal constructions. Time will tell how the legislatures and the courts manage these new realities.

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Tattoos, Piercings and Plastic Surgery: Children, Divorce & Custody

At the best of times, parenting a teenager is difficult. On some days, parents feel like their teenagers’ only purpose in life is to drive them crazy. Once children enter their teens, the social pressures are immense. Childhood and dependency is replaced with maturity and independence. With these changes comes self-determination which collides with parental authority. The product of all this is disagreements and conflict between parents and their teens.

For those parents also facing separation and divorce, their ability to manage their teenage children is further strained. Parents who separate are already struggling with poor communication, relationship breakdown and irreconcilable differences. So attempting to agree to uniform and consistent parenting guidelines for their teenage children often proves impossible. This then leads to a further exacerbation of the conflict between the teenager and each parent. Some teenagers develop a pattern of playing one parent against the other. In a quest to maintain a positive relationship with their child, separating parents may succumb to demands and cater to their children’s wishes in ways that would not have been indulged had the family remained together.

In an earlier era, separating parents ‘spoiled’ their children with toys, electronics and other materialism. But times have changed. Children are acutely aware of their peer group. In a global world connected by social media, children are watching their counterparts in the USA and Europe indulge in luxuries that were previously unthinkable – with their parents’ approval. So it is not surprising that teenagers are asking their parents for piercings of the nose, eyelid, lip, tongue and naval. For those more confident teens, the request is for tattoos. Although rare, some teenagers are asking for plastic surgery. The number of teens undergoing surgery for nose jobs, breast augmentation and Botox injections is rising.

The solution to the challenges posed by all children, including teenagers, is forming a parenting plan setting out rules, boundaries and limits. Residential schedules, bathing routines, homework schedules, phone, computer and TV use, and consequences for disobedience, are necessary. Moreover, it is critical that both parents abide by, and enforce, the same rules to ensure structure, consistency and discipline. Comprehensive parenting plans not only cover the basic rules, but also procedures for resolving disagreements. No longer are agreements that grant one parent custody and the other access adequate. Separated families desperately require detailed parenting plans. The time to establish such plans is when the parents separate, not when the conflict arises.

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What do you do when, to your surprise, your spouse vacates the matrimonial home with the children?

It may seem like the options are few, unfair and expensive. They are. Every day, spouses separate. Most of the time, the spouses’ separation is anticipated and foreseen. In these cases, the spouses will often make temporary arrangements for the children and finances, until more formal arrangements can be made with the benefit of legal advice.

However, it is in the rare case that one spouse returns home from work to discover that the other spouse has moved out with the children. It is in these cases that the spouse must act fast.

According to Ontario’s Children’s Law Reform Act, each parent is equally entitled to custody of the children, but that right is prejudiced where that spouse has agreed to the new custodial regime. Section 20(4) states:

“Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides.”

Thus, it is critical that the spouse who has just discovered the removal of the children from their home move quickly to seek a court order.

However, this is not so simple. It is time-consuming, expensive and its result is not guaranteed. The spouse must first retain counsel, then commence an Application in court and then bring a motion before a judge asking that the case be considered an emergency (because if it is not, then the judge cannot deal with the case until months later). All this work occurs while the children are residing with the spouse who left the home and, in some cases, while the estranged spouse is having no contact or communication with the children.

This recently occurred in the case of Tulchinsky v. Shuster (2009) O.J. No. 405, where Mr. Justice Powers decided that the mother’s removal of the daughter from her home and her father’s life was unreasonable and unjustified. In fact, he characterized the mother’s conduct as “premeditated” and an “abduction”. The mother even objected to the case being classified as an emergency – to delay the proceedings and possibly establish a status quo in her favour. She also argued that the father was abusive, although Justice Powers did not accept this and stated that, even if it were true, the mother could not unilaterally remove their daughter from her father’s life, where he was actively involved in her care and upbringing.

In this case, the judge reinstated the status quo that existed prior to the spouses’ separation. He was then asked for a ruling on costs.

Justice Powers concluded that the mother acted in “bad faith” which then entitled the father to an award of costs that would reimburse him for the work involved in seeking a court remedy to this problem.

The mother was ordered to pay the father costs of $25,000.

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Property Division

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How will our property be divided?

Ontario’s Family Law Act provides a formula for dividing the value of assets and debts that were acquired during the marriage. The method is called equalization of net family properties. Each spouse must fill out and swear a financial statement. The financial statement lists all assets that each spouse owned on the date of separation, all debts that each spouse owned on the date of separation, all assets that each spouse owned on the date of marriage, all debts that each spouse owned on the date of marriage and any gifts or inheritances that each spouse received during marriage. The financial statement will be used to calculate each spouse’s net family property. In the end, the spouses’ net family properties will be equalized.

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Will I have to share my pension?

A spouse’s pension is treated the same as any other asset that a spouse accumulated during the marriage. That means the spouse with the pension gets credit for the value of the pension on the date of marriage, but will share with the other spouse the rise in the value of the pension during the marriage. The pension will need to be valuated by a professional to determine its value on the date of separation.

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Property Division Upon Divorce: The Word On The Street

If you ask the average Joe how property is handled when a couple separates, the answer given is that everything gets divided in half.  Well Joe, that’s not the law in Ontario. Ontario, PEI and Nunavut share the same system for the settlement of property rights upon separation. In such provinces, there is no right to claim a division of assets on separation.  The right granted is called an equalization payment.  In these provinces, there is a sharing of net worth (a number), not a sharing of assets (objects).  Once the number to be shared (or debt) is determined, it can be satisfied by a money judgment or the transfer of specific assets (or a combination of both).  This should be contrasted with property division provinces where each spouse is granted a proprietary interest in marital assets.

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How does Ontario law treat debts at separation?

It is not unusual for marriages to suffer because of a family’s financial difficulties, growing debt-loads, a spouse’s loss of employment, the reduction or loss of the wife’s employment income when children are born, and many other events that may occur within a family that place undue financial stress on the marriage.

In some cases, the financial stress may cause marital breakdown and separation. It is in these situations that a spouse who turns to counsel for legal advice discovers that Ontario property law does not provide that spouses are required to share their family debt.

Section 4(5) of the Family Law Act provides that:

“If a spouse’s net family property as calculated under subsections (1), (2) and (4) is less than zero, it shall be deemed to be equal to zero.”

In effect, spouses who are separating and who have an unequal distribution of debts amongst them, or a couple where the bulk of the family assets are held by one spouse, while the other spouse holds the family debt, are likely to suffer even greater hardship than they experienced prior to separation.

To illustrate this dilemma, the next two examples demonstrate cases of financial hardship under the present legislation.

 

Example A – Both Spouses End Marriage with a Significant Debt-Load

ITEM HUSBAND WIFE
1. Assets
Car
RRSP
Wedding Rings
Household Contents
$5,000.00
$3,000.00
$500.00
$2,500.00
$0.00
$1,000.00
$500.00
$2,500.00
TOTAL 1. $11,000.00 $4,000.00
2. Debts & Liabilities
Student Loans
Credit Cards
Joint Line of Credit
$8,000.00
$6,000.00
$5,000.00
$15,000.00
$4,000.00
$5,000.00
TOTAL 2. $19,000.00 $24,000.00
3. Net Family Property (Total 1 minus Total 2)
* Calculated value was negative.
* $0.00 * $0.00
4. Equalization Payment Husband pays
to Wife:
$0.00

 

In this example, the husband in fact has a negative net family property of -$8,000.00 and the wife has a negative net family property of -$20,000.00.

Applying section 4(5) of the Family Law Act will result in each person being individually liable for the debts held in his or her name alone and be jointly responsible for the joint line of credit. In effect, this family’s debt is not equalized and will result in tremendous hardship on the wife.

If section 4(5) of the Family Law Act was repealed, then the husband would assume $6,000.00 in debt from the wife so that each spouse would equally leave the marriage with $14,000.00 in debt.

The result of section 4(5) of the Family Law Act offends the preamble of the Family Law Act that provides:

“Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children.”

Specifically, the application of section 4(5) of the Family Law Act to the facts of this case accomplish the exact opposite effect than intended by the legislation.

The result is that the spouses are not provided with an equal position, the marriage is not treated as a form of partnership and the settlement of the family’s debts is not equitable.

 

Example B – One Spouse Hold Assets – Other Spouse Holds Debt

ITEM HUSBAND WIFE
1. Assets
Matrimonial Home
Household Contents
Car
$0.00
$10,000.00
$0.00
$200,000.00
$10,000.00
$20,000.00
TOTAL 1. $10,000.00 $230,000.00
2. Debts & Liabilities
Line of Credit
Credit Cards
$150,000.00
$30,000.00
$0.00
$0.00
TOTAL 2. $180,000.00 $0.00
3. Net Family Property (Total 1 minus Total 2)
* Calculated value was negative.
* $0.00 $230,000.00
4. Equalization Payment Wife pays
to Husband:
$230,000.00

 

In this example, the husband in fact has a negative net family property of -$170,000.00, but due to the application of section 4(5) of the Family Law Act, he is deemed to have a nil value for his net family property. This would result in the wife paying him $115,000.00 as an equalization payment – one half of her net family property of $230,000.00. After for accounting for the husband’s negative net family property of -$170,000.00, he would leave the marriage with $55,000.00 in debt, while the wife would have assets of $115,000.00.

Equalizing this family’s assets and debts – without regard to section 4(5) of the Family Law Act – would result in the wife paying the husband $200,000.00 as an equalization payment. Thus, repealing section 4(5) of the Family Law Act would result in each spouse leaving the marriage with $30,000.00 in assets.

The result of section 4(5) of the Family Law Act again offends the preamble of the Family Law Act as it applies to the facts of this case in that the spouses are not provided with an equal position, the marriage is not treated as a form of partnership and the settlement of the family’s debts is not equitable.

Mr. Justice Galligan stated in the Ontario Court of Appeal ruling in Berdette v. Berdette (1) that “the intent of this legislation is to establish partnership and equal sharing of property accumulated during marriage.” This can only be accomplished if family debt is not disregarded, but evenly shared by the spouses.

Repealing this provision will not prejudice either party, as wrongful conduct by one spouse may be addressed by section 5(6) of the Family Law Act which provides the court with the discretionary power to vary the sharing of the parties’ net family properties in cases where there has been intentional or reckless depletion of family property, debts incurred recklessly or in bad faith or where one spouse has incurred a much larger amount of debt than the other spouse for the support of the family.

Is now the time to review this legislation and repeal section 4(5) of the Family Law Act?

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Selling the family home after separation: are divorce lawyers and judges really necessary?

When spouses decide to separate, joint family assets are usually liquidated and divided.  The family home is often the most valuable asset that needs to be addressed.  However, of all the assets, the home is the one that often carries the most sentimental value and triggers the strongest emotional response.  In many cases, the separation is not mutual and, in those instances, the spouse who did not initiate the separation may not be willing to vacate or sell the family home.  That is, the spouse may not want to undergo the upheaval of changing residences, changing the children’s school, leaving close neighbours or settling into a new community – all valid reasons to not want to sell the home.  Alternatively, the spouse may wish to oppose, delay or obstruct the sale of the home because of feelings of hurt and anger or other reasons not considered valid.  In some cases, one spouse may wish to purchase the other spouse’s interest in the family home. With any joint asset, because both spouses are the legal owners, neither has a superior right to purchase the asset from the other.  Thus, in cases of a jointly owned family home, if one spouse wishes to remain in the home and purchase the other spouse’s interest, the spouses must agree on a process to determine its value and buy-out.  In most cases, this is simple.  The spouses retain an accredited real estate appraiser to perform an analysis of comparable homes in the neighbourhood, assess their sales history, adjust for differing characteristics such as lot size, garages, square footage and the condition of the structure, in arriving at an expert opinion on the market value of the home.  This often is the best evidence of the value of the family home which the spouses can use to negotiate a buy-out.

But what happens if one spouse does not agree with the appraised value, or even multiple appraisals ?  Some spouses believe that the only way to determine the true market value of a home is to expose it to the public marketplace of potential buyers.  In major cities throughout Canada, homes have been sold for prices far above the listing price due to competing offers to purchase from desperate buyers.  Stories of “bidding wars” and “sold over ask” have covered the real estate section of newspapers for years.  Some realtors who are competing for new business may make exaggerated representations to home-owners to “get the listing” with promises of a high sale price.

In the field of divorce, it is not uncommon for the spouses to distrust one another and harbour suspicions that any agreement that is negotiated is unfair and otherwise favourable to the other spouse.  This emotional state makes it easy to be persuaded by a real estate agent who is eager to obtain a new listing by promising a sale price much higher than its appraised value.  In these cases, the otherwise simple process of an appraisal and buy-out is replaced with divorce lawyers, litigation and judges.  Tens of thousands of dollars can be spent on interlocutory motions to compel a sale of the jointly owned family home, including contested hearings on who the real estate agent should be, whether monies should be spent on repairs and improvements, if costs are to be incurred for staging the home, orders for home inspections, vacant possession of the home to permit open houses and showings and a protocol for the collection and acceptance of an offer.  In these cases, the spouse who wishes to purchase the home is to be treated the same as any arm’s length buyer.  That is, that spouse is not permitted to have any advantage over any other buyer in order to ensure a fair and transparent process leading to a sale at fair market value.  In the case of multiple offers, the court can order that either spouse cannot view the offers before submitting his/her own offer.  For this to operate smoothly, the sale and offer process must be firm and defined in advance.

The following are 10 tips to help counsel manage the forced sale of a jointly owned family home where one spouse wishes to buy the home:

1.  Get a home appraisal by an accredited real estate appraiser (AACI or CRA) and make an offer at, or higher than, its appraised value, minus a discounted sum for the real estate commissions.

2. If that offer is rejected, agree to a listing on the open market.  Don’t resist such a motion but rather negotiate a process to permit a purchase by one spouse.

3. Ensure that the real estate agent retained is responsible, ethical and trustworthy so that dealings with both sides are fair and transparent.

4. Negotiate the Listing Agreement to exempt or discount the real estate commission in case of a purchase by the joint owner.

5. Set a timetable for showings including a date for a real estate agent open house, a date for public open houses and a date for the submission of offers.

6. Obtain a home inspection and make the report available to all potential buyers so as to eliminate this as a condition of sale.

7. Establish the protocol for acceptance of offers and signing back counter-offers, such as only considering offers without any conditions.

8. Consult the listing agent (before being retained) for what repairs, improvements and staging, if any, are recommended and then negotiate the sharing of these expenses, either at the time incurred or at closing.

9. Maintain communication with the listing agent by monitoring the progress of sale, collecting feedback on the response from the showings and form an understanding of the possibility of competing offers.

10. Participate in the sale process by assisting the spouse to make an offer, reviewing any offers presented and advising on the signing back of any offers and counter-offers;  this may involve a real estate lawyer to also advise on terms or conditions attached to the sale such as closing dates, pre-closing viewings, chattel inclusions and exclusions, adjustments and vacant possession.

Following these steps, the sale of a family home, even in the higher conflict divorce cases, could be achieved with much less cost and aggravation than caused by a court-ordered sale.

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Do you have to share your lottery winnings with your wife?

This is the very dilemma that faced Ray Sobeski in April 2003 when he discovered that he won $30 million from Lotto Super 7.

Sobeski, a 47-year-old computer repairman, was married to Nynna Ionson. But he was not happy with his marriage, well before he became an instant millionaire. He was not sure how to handle the news. So he decided to not mention this to anyone-not even his wife. He even sought a divorce from her after learning of the winnings and before disclosing it to her. He ultimately claimed his prize 12 days before the ticket’s expiry date in April 2004-nearly one year later.

After Sobeski claimed his winnings, Ionson served him with a lawsuit seeking half of the $30 million because, she claims, the lottery draw happened long before their divorce was finalized.

According to Ontario’s Family Law Act, the increase of a married couple’s assets (after deducting their debts) is equally shared based on the values at the date of marriage and the date of separation. In fact, there is a formula for dividing the value of assets and debts that were acquired during a marriage. The method is called equalization of net family properties. In the end, the spouses’ net family properties are equalized.

In the ensuing court case, the couple’s affidavits were laced with defamatory allegations against one another. Sobeski claims that Ionson was a table dancer that he met in 1994 at a strip club where she was appearing on stage. He alleges that Ionson was violent and abusive to him throughout their relationship and was even charged by the police for her violence towards him.

Ionson denies these allegations. She alleges that she is destitute and living below the poverty line.

The Sobeski-Ionson lawsuit may drag on for months and maybe even years. That is why Ionson recently asked the presiding judge for an immediate payment of $262,000 to help cover her legal costs and level the playing field. Ionson was also seeking temporary support in the sum of $9,000 per month.

The couple, with the help of their lawyers, reached a temporary confidential agreement in this regard.

But this does not mark the end of the dispute between the couple.

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Does a wife need to bear the consequences of her husband’s early retirement?

In the 2010 case of Dishman v. Dishman, the husband accepted an early retirement buyout from General Motors which had the effect of decreasing his income from approximately $85,000 to $38,000 per year.

The Dishmans were married for 20 years later. After they separated in 2000, a final order required Mr. Dishman to pay his wife $750 per month in spousal support.

Nine years later in 2009, when Mr. Dishman was 52 years, his employer General Motors announced that it was closing its plant where he worked for 28 years. He was offered an early retirement incentive. Mr. Dishman could have continued to work for a few more years. However, if General Motors went bankrupt before that date, then the offer would no longer be available. Mr. Dishman accepted the offer and retired on June 1, 2009.

To convince Madam Justice Nolan to terminate spousal support, Mr. Dishman explained that his pension with General Motors had already been equalized with his wife when they settled their affairs in 2001. Mrs. Dishman kept the matrimonial home. The amount owed by Mrs. Dishman to Mr. Dishman for his share of the matrimonial home was off-set by the value of Mr. Dishman’s pension at the time. In calculating the amount of Mr. Dishman’s pension at that time, the parties valued it based on a retirement age of 59 years, as opposed to the 52 years when he actually retired. Stated another way, Mrs. Dishman argued that a significant portion of her husband’s pension was not equalized at the time of the agreement or court order.

Madam Justice Nolan relied on a series of past decisions such as Moffatt v. Moffatt (2003) that established that where there is early retirement that will severely prejudice the recipient spouse, the court may assign income as though the person had not retired. The judge also considered Bullock v. Bullock (2007) which held that a support payor cannot choose to be voluntarily underemployed, whether by retirement or otherwise, and therefore avoid his or her spousal support payment obligations.

Her Honour found that Mr. Dishman’s retirement was considerably earlier than anticipated, and Mrs. Dishman had good reason to rely upon support being provided for several more years. She stated that there is no reason why Mr. Dishman might not and cannot be expected to seek new employment opportunities and that Mrs. Dishman was in need and had a limited ability to earn more income.

In conclusion, the court found that this was a long marriage, that spousal support was payable because Mrs. Dishman was in need and should not be expected to bear all of the negative financial consequences of Mr. Dishman’s early retirement and, accordingly, the spousal support payments of $750 per month were to continue until 2016.

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The “family joint venture”: the new law of property division for common law spouses

In a landmark decision released on February 18, 2011, the Supreme Court of Canada made it easier for unmarried (common law) spouses to claim a share in the wealth accumulated during their relationship.

The court heard two cases together – Kerr v. Baranow and Vanasse v. Seguin.  Both cases dealt with the issue of ‘unjust enrichment’ in common law relationships.

In Vanasse, the couple cohabited for 12 years and had two children together. Michele Vanasse stayed at home with their children, while David Senguin focused on developing his business – which sold for $11 million.  In Kerr, Margaret Kerr and Nelson Baranow cohabited for 25 years.  They had no children.  They both worked until Margaret suffered a stroke, which rendered her unable to work.

Parts 1 and 2 of Ontario’s Family Law Act contain statutory provisions governing the distribution of property on relationship breakdown.  Unmarried spouses are expressly excluded from its matrimonial property sharing provisions.  That is, only married spouses are entitled to apply for a division of property after separation.

Common law spouses were forced to resort to equitable remedies such as ‘unjust enrichment’ to recover any relief.  These cases were challenging and very expensive to prosecute.  This was until the Supreme Court of Canada lowered the threshold and made it easier for spouses to advance such claims.

The decisions in Kerr v. Baranow and Vanasse v. Seguin articulated a new analysis for property division.  The court held that if a party can show that the common law relationship functioned as a marriage-like family, or as Mr. Justice Cromwell termed it – a “family joint venture” – there is no longer a need to show a specific link between that party’s contribution and the specific asset to be shared.

In order to determine whether the family functioned as a “family joint venture”, four factors must be considered including (1) mutual effort (2) economic integration (3) the intent of the parties and (4) the priority of the family.  Any other relevant and case-specific factors may also be considered.  Once established, it is up to the trial judge to award an appropriate percentage of the couple’s assets to the claimant spouse (not just a monetary award).

Ultimately, the Supreme Court of Canada refined its approach to the equitable remedy of ‘unjust enrichment’, making it easier for common law spouses to claim a share of the wealth accumulated during the relationship. It is hoped that the decision will help achieve a more equitable result for common law spouses when such relationships end.

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Is it unconstitutional to deny common law spouses the right to an equal division of property?

In the landmark decision of Nova Scotia (Attorney General) v. Walsh 2002 S.C.R. 83, the Supreme Court of Canada has ruled that excluding unmarried spouses from provincial matrimonial property laws is not discriminatory.

Susan Walsh and Wayne Bona cohabited for 10 years until 1995. Two children were born out of this relationship. Ms. Walsh applied for spousal support and child support. She also sought a declaration that the definition of “spouse” in Nova Scotia’s Matrimonial Property Act was unconstitutional because it failed to provide her with the right to an equal division of matrimonial property—a right that is available to married spouses.

In an 8-1 decision, the Supreme Court of Canada ruled that excluding unmarried spouses from provincial matrimonial property laws is not discriminatory because the distinction reflects the differences between married and unmarried relationships and respects the fundamental personal autonomy and dignity of the individual. The highest court stated that the decision to marry, or not to marry, is personal and that many common law couples have chosen to avoid marriage and its legal consequences. They are free to marry each other or take other steps if they want to enjoy the benefits available to married couples.

As an aside, this ruling is moot for Ms. Walsh and Mr. Bona. Before the appeal was concluded, Ms. Walsh and Mr. Bona settled their dispute and agreed to a 50-50 property split. In addition, Nova Scotia amended its laws in June 2001 to allow common law spouses, including same-sex couples, to register their relationships as domestic partnerships, thereby entitling them to many of the same rights and obligations as married couples, including division of assets upon separation or death.

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Does the law presume that common law spouses are entitled to the same equal division of their property after separation as married spouses?

The Ontario Court of Appeal in the May 21, 2003 decision of Wylie v. Leclair did not think so. In that case, the parties lived together from 1985 to 2000 and had two children. After they separated, they agreed to a shared custody arrangement, with the children living with each parent on alternate weeks. A trial was held on the issues of support and division of property. Regarding the division of property, the trial judge found that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship. The trial judge awarded Ms. Leclair $150,000, and calculated this amount based on an equalization of net family property—a calculation that is used when married spouses separate by calculating each spouse’s assets and liabilities at the date of marriage and the date of separation.

Mr. Wylie appealed the trial judge’s decision to the Ontario Court of Appeal. The appellate court felt that the trial judge was wrong in attempting to provide an equalization of net family property for a common law couple.

When married spouses separate, it is necessary to equalize the parties’ net family property. However, this is not the law in common law relationships. The appellate court felt that the trial judge was attempting to adjust the law to provide for an equalization of net family property for common law spouses while there is no legal authority or presumption to do so.

The appellate court did consider the fact that Mr. Wylie received the benefit of Ms. Leclair’s housekeeping and caregiving services during their relationship, but also considered that Ms. Leclair lived rent-free for the duration of their 15-year relationship.

The appellate court reduced Ms. Leclair’s award to $70,000.

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How to mitigate financial loss in divorce

The old adage “a dollar save is a dollar earned” leads to the real question of how to minimize the financial cost of a divorce.

Here are 2 simple tips:

1) Prove it.  You can’t deduct what you can’t prove.  This applies to all assets that you owned when you got married and any assets that you accumulated from gifts and inheritances during marriage.  You also will need to prove any debts that you have at separation if you want to deduct them.  If you can’t prove the assets you owned at marriage, any assets from gifts and inheritances during marriage and any debts existing at separation, you will be parting with much more of your money at separation.  Conversely, you need to uncover and prove your spouse’s debts at marriage and assets at separation.  These figures too will either increase what your spouse pays you or what you collect from your spouse.  So in conclusion, keep good records.  This includes all of your tax returns and monthly bank, investment and credit card statements.  A home video of your possessions at marriage can be very useful.

2) Be informed.  Education is power and power is valuable. Meet with a Family lawyer to know your rights and obligations resulting from cohabitation, marriage, children, death and divorce.   Each event will trigger a different set of rights and obligations.

The unforeseen financial consequences of divorce can be avoided or diminished with knowledge and planning.

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Is a property considered a “matrimonial home” when one spouse no longer lives in the home due to illness?

When calculating property division for separated spouses, Ontario law permits a spouse to deduct the value of any property brought into marriage – so long as the property is not a matrimonial home on the “Valuation Date”.  This has the effect of reducing the sum that a spouse shares with the other spouse as part of property division.

According to the Family Law Act, the “Valuation Date” is the earliest of the following dates:

  1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
  2. The date a divorce is granted.
  3. The date the marriage is declared a nullity.
  4. The date one of the spouses commences an application based on subsection 5(3) (improvident depletion) that is subsequently granted.
  5. The date before the date on which one of the spouses dies leaving the other spouse surviving.

Typically, the Valuation Date is the date the spouses separated. However, in case of death, the Valuation Date is the day before a spouse’s death.

For a property to be considered a matrimonial home, it must be “ordinarily occupied” as a family residence on the Valuation Date.

But what happens if a spouse ceases to ordinarily occupy the home due to illness ?

That was the problem faced by the court in Brash v. Brash Estate [2013] O.J. No. 2378.  The court was faced with a case where an elderly couple no longer lived together at the time of the husband’s death because the wife had moved into a nursing home a few years earlier due to illness. The question the court had to answer was whether the parties’ home was a “matrimonial home” under Ontario law in light of the fact that one of the spouses did not “ordinary occupy” the home on the Valuation Date (the date of the husband’s death). If the home was not considered a matrimonial home, then the husband’s estate would be entitled to deduct the value of the home at the time of marriage in calculating property division for the spouses.

Charles and Dorothy Brash got married in 1990 and were married for 22 years until Charles died in 2012. This was a second marriage for Charles. Dorothy moved into Charles’ home after marriage; the home that Charles had owned since 1953.  In 2012, Dorothy developed Parkinson’s Disease which gradually made it impossible for her to remain at home. She needed assistance with almost all aspects of daily living. Dorothy was moved into a nursing home as a result of her medical condition. Charles called her, visited her and remained her husband until his death.  Charles died later that year at the age of 83. Dorothy was 90 years old at the time.

Even though the factual evidence was that the matrimonial home was not occupied by the spouses as a family residence, the court held that:

“Ceasing to reside in the home in the 21st year of a 22 year marriage was as a result of [the wife’s] deteriorating medical condition and attendant care needs, not her wishes. She had no choice. She would have continued to occupy the home had she had the physical capacity to do so.”

“Where spouses have lived together in the matrimonial home, and subsequently begin to occupy separate residences, without intending to cease being a couple, the matrimonial home is deemed to have retained its character as a matrimonial home.”

In the end, the court accepted Dorothy’s position that the matrimonial home was still her family residence – even though she had been living in a nursing home.  The court concluded that the value of the home owned by Charles at the date of his death could not be deducted in the equalization calculation, but rather its total value was to be shared with Dorothy.

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How is a spouse's pre-marriage debt treated for equalization purposes if it is later extinguished by bankruptcy?

The Ontario Court of Appeal considered this issue in the case of Zavarella v. Zavarella [2013] O.J. No. 5435. In this case, just prior to marriage, the wife had total debts of $59,838, but made an assignment into bankruptcy after marriage. She was later discharged without having made any payments on her debt. At trial, the judge included the full face amount of the debt in the equalization calculation, reasoning that, on the date of marriage, that was the balance owing. The wife appealed.

The Court of Appeal considered previous rulings such as in Greenglass v. Greenglass [2010] O.J. No. 4409, where it made the following observations:

“Contingent liabilities are to be taken into consideration when it is reasonably foreseeable that they will be paid. When the courts have found that at the valuation date there is no, or a very low risk that a guarantee would be called on, the value of that contingent liability has been held to be nil. In the end, the court’s task is to make its best assessment of the reasonably foreseeable amount of the contingent liability and use that figure for purposes of NFP calculations.”

In Poole v. Poole [2001] O.J. No. 2154, Justice Heeney wrestled with the question of how to value the debt for NFP purposes and, in that case, discounted the husband’s debt to 10% of its face value.

After considering the past caselaw, the Court of Appeal ruled in Zavarella that a spouse’s debts that existed on the date of marriage should not be equalized if there was not a “reasonable likelihood it would be paid and there was a very low risk the wife would ever be called upon to pay the debt.” The debts were assigned a nil value for equalization of net family property.

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What’s the matter with a “Maher” ?

A Maher is a sum of money that a groom agrees to pay his bride in a Muslim marriage contract.  It is a compulsory gift from the husband to his wife.  The idea is to provide some financial security for the wife.  The amount is typically not paid at the time of marriage, but rather at the end of the marriage.

Courts across Canada have differed on whether traditional marriage contracts under Muslim law are enforceable.  For example, the Ontario decision in Kaddoura v. Hammoud, [1998] O.J. No. 5054 held that a court should not determine the rights and obligations of the parties under a Maher, as it would lead the court into the “religious thicket”.

Then in the decision in Bruker v. Marcovitz, [2007] S.C.J. No. 54, the Supreme Court of Canada held that the fact that a dispute has a religious aspect does not make it non-judiciable.  That is, persons can convert their moral obligations into legally binding obligations.

Recently, a Court of Appeal decision confirmed that the Maher is indeed enforceable in Ontario.

In Khanis v. Noormohamed [2009] O.J. No. 2245, the trial judge ordered the husband to pay the wife a $20,000 Maher by stating that it was a valid marriage contract under Ontario law that the parties had entered into at the time of marriage and was therefore enforceable.  The husband appealed this decision to the Ontario Court of Appeal.  On appeal, it was further held that the terms of the Maher were valid and binding under Ontario’s Family Law Act.  The husband’s appeal was dismissed.

Like with all domestic contracts, the enforceability of the Maher should be considered in light of the specific facts of each case.

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What constitutes spousal abuse in an era of electronic communication ?

For decades, Family law only provided legal remedies to victims of physical abuse.  Personal injuries were seen as evidence of the abuse suffered, and Family law responded to that with remedies such as restraining orders, supervised access to children, exclusive possession of the matrimonial home and even compensation for the pain and suffering endured from those injuries.  As jurisprudence, social science and mental health developed, the law came to recognize that people could also suffer emotional injuries, especially in intimate relationships.

Section 24(4) of the Children’s Law Reform Act states:

“In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against his or her spouse, a parent of the child to whom the application relates, a member of the person’s household or any child.”

This legislation does not limit the type of misbehaviour to only physical conduct, but also includes words, facial expressions and body language that are meant to incite fear, intimidation and threats.

Although this development addressed non-physical violence, it still did not recognize abusive behaviour via electronic means.

“Violence through words and deeds is a concept well established in both criminal and civil law.  Words may be delivered in many different forms. The facelessness and ubiquitous nature of electronic messaging imposes no variation on the usual analysis.  Violence…does not require direct physical injury.”

These were the words of the Honourable Madam Justice McGee in the case of Menchella v. Menchella, 2012 ONSC 6304.

In that case, the court was asked for an order evicting the father from the family residence because of hurtful text messages he was sending to the mother, while they were cohabiting and attempting to co-parent their child.

Section 24(3) of the Family Law Act sets out the criteria for an order for exclusive possession of the matrimonial home and included a consideration of “any violence committed by a spouse against the other spouse or the children.”

Justice McGee read the text messages, and stated “violence in my view includes psychological assault upon the sensibilities of the other spouse to a degree which renders continued sharing of the matrimonial dwelling impractical. Where, as here, the conduct of the husband in written and spoken communication to the wife is calculated to produce and does in fact produce an anxiety state which puts the wife in fear of her husband’s behaviour and impinges on her mental and physical health, violence has been done to her equilibrium as surely as if she had been struck by a physical blow.”

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Can I sue my husband for emotional distress?

In Canada, the Divorce Act permits a spouse to seek a divorce if the other spouse has committed cruelty. But this does not entitle the victim to collect compensation for emotional distress. In fact, Canadian law seems to minimize the relevance of spousal misconduct when determining the issues of custody, access, support and division of property. However, a Wyoming Supreme Court decided that extreme and outrageous conduct by one spouse that results in severe emotional distress to the other spouse can create a cause of action for intentional infliction of emotional distress and entitle the victim to collect compensation for her suffering. In the decision of McCulloh v. Drake (Wyoming, 24 P. 3d. 1162 (2001)), the court heard that shortly after the husband and wife were married, the husband began to physically and sexually abuse the wife. The trial court found that the wife had proven the abuse and the emotional distress that she suffered. The husband appealed this decision by arguing that intentional infliction of emotional distress within a marriage is not a tort (a legal wrong.) In an effort to preserve domestic harmony, courts have tried to remain indifferent when it comes to regulating behaviour within a marriage. However, courts have recently begun to distinguish claims for civil relief in marriage cases by pronouncing that a tort claim may provide a better remedy for spouses than a divorce claim. The court concluded that “emotional distress is as real and tormenting as physical pain, and psychological well-being deserves as much legal protection as physical well-being.” In preserving marital harmony as their main goal, the court held that “behaviour that is truly outrageous and results in severe emotional distress should not be protected in a misguided attempt to promote marital harmony.” It remains to be seen if Canadian courts will follow this reasoning.

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How do you put a dollar value on 38 years of physical, psychological and sexual abuse committed by a husband and father?

Mr. Justice Lofchik was asked this very question and stated that “where a husband and father preys upon members of his family, no amount of money can adequately compensate them for what they have been through.” He decided that an appropriate amount is $300,000—the highest award in Canadian history for civil damages resulting from abuse within the family.

On March 12, 2002, the court rendered its decision in the case of C.S.F. v. J.F. [2002] O.J. No. 1350 after hearing evidence from Catherine Flachs who had testified at trial that during her 38-year marriage to the defendant John Flachs, a Hamilton businessman, he regularly punched her with his fists, kicked her, pushed her, spat on her, strangled her, caused burns to her body, beat her with a cane and, on one occasion, stepped on her hand when she reached for a hearing device which had fallen out of her ear when he struck her. Over the years she had suffered injuries such as bruised ribs, broken ribs, a punctured lung, sprains, bruises and having her hair pulled out by the roots. She also testified about being raped on one occasion when she refused to have sex with her husband.

Lorraine Van Der Slyke was one of the couple’s three daughters. Ms. Van Der Slyke witnessed the continued and repetitive abuse suffered by her mother and became a victim of abuse herself. The defendant hit and punched her in the face and dragged her by the hair. He sexually assaulted her by touching her on several occasions and lying on top of her on another. Ms. Van Oer Slyke attempted suicide when she was 16 years old and stayed at a youth shelter for nine months.

In reaching his decision, Mr. Justice Lofchik stated that “the defendant here abused his position as head of the household and turned the home into a place of fear and brutality.”

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Support

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Who pays child support?

A parent who does not have day-to-day care and control of the children usually will be responsible for paying child support. The amount is based on that parent’s income and on the extraordinary expenses of the children.

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Are the Child Support Guidelines fair to the access parent?

In 1997, the federal and provincial governments of Canada decided to create a uniform and consistent approach to determining how much child support was to be paid by one parent to the other after they separated. This decision resulted in the creation of the Child Support Guidelines which include tables that set out the exact amount of child support that is to be paid by the access parent to the parent that has custody of the children.

The Guidelines’ stated objectives are to establish “a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation…and to reduce conflict and tension between spouses by making the calculation of child support orders more objective.” However, a significant void was left in this law. Specifically, the Guidelines treated all access parents in the same way when in fact there are many different economic consequences to access parents.

To illustrate this by way of an example, consider Joe, Mike and Bill. They are all separated. They each have two children who reside with their ex-wives. All three men earn $50,000 per year. According to the Guidelines, each man must pay $700 per month in child support for both children. On its face, this may seem fair. However, Joe is completely estranged from his children and does not have any relationship with them. Mike visits with his children every other Saturday afternoon for five hours. Bill has the children with him each and every weekend from Friday night to Sunday night.

As you can see, each one of these fathers spends varying amounts of time with his children and, as a consequence, spends varying amounts of money on the children during their time together. However, all three fathers are treated in the exact same way economically.

One of the only few options available to an access parent is to seek a reduction from the table amount if the children are in his care for at least 40 per cent of the time. But this does not help Joe, Mike, or especially Bill, who truly does incur significant expenses to exercise access to his children every weekend. His expenses include an extra bedroom, furniture, clothing, toys, sporting equipment, groceries, meals, and recreational costs.
There are many access parents who have been complaining about the inherent unfairness of the Guidelines and how this unfairness directly impacts the quality of care that they are able to provide to their children during access times. They complain that the Guidelines have caused the exact opposite response to their objectives. Access parents such as Bill have found that the Guidelines have ignored the importance of the relationship between the children and the access parent by making money—not the quality of the relationship—a priority. This has invariably caused conflict and tension between spouses, which the Guidelines were supposed to reduce.

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Will I be required to pay spousal support?

This is a complex question. In answering it, there are three questions that need to be considered. Firstly, is a spouse entitled to support? Secondly, what is the amount of support that should be paid? Thirdly, what is the duration that support should be paid for? When determining spousal support, the judge requires that each spouse file a sworn financial statement which contains a monthly budget. This way, the judge can see the total monthly income and expenses of each spouse. The judge will consider the financial need of the spouse that requests support, the financial ability of the other spouse to pay support and the standard of living that the spouses maintained before separation.

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When does child support end?

Child support is paid as long as the child is a dependent. Usually, a dependent child is one who is under the age of 18 years. In some instances, child support may continue past the age of 18 years if the child is not financially self-sufficient because of an illness or disability or because the child is going to school full time.

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Do you still have to pay child support if you share custody of your child with the other parent?

The Child Support Guidelines state that there is a presumption that one parent pays the other parent child support according to the payer’s annual income and the “table” amount. [To see the child support tables, go to www.benmor.com, Links, Federal Child Support Guidelines]

For example, a non-custodial father of 2 children who earns $40,000 per year would pay a table amount of $570 per month. But a family court judge is given the discretion to deviate from the table amount and reduce the amount of child support payable if the payor has the children in his or her care for 40% of the time during the course of a year. The discretion is based on section 9 of the Child Support Guidelines.

Because there is no formula that can be applied in an equitable way in all circumstances, this discretion has caused confusion.

In the 2002 decision of Contino v. Leonelli-Contino, the appellate court set out guidelines for considering a deviation from the presumption that one parent pays the other parent child support according to the payor’s annual income and the table amount. The appellate court stated that there is a presumption in favour of the table amount. However, the parent seeking a deviation may establish on clear and compelling evidence that a reduction in child support is in the children’s best interest, and also based on the circumstances, as described in section 9 of the Child Support Guidelines.

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Can a parent be forced to pay child support going back in time ?

Over the years, ‘retroactive child support’ had become such a contentious issue that 4 different separated couples recently brought this issue to court, then to the court of appeal and then to the Supreme Court of Canada.

In the 4 cases of D.B.S. v. S.R.G., L.J.W. v. T.A.R., Henry v. Henry and Hiemstra v. Hiemstra, on February 13, 2006, the highest court considered different fact scenarios to determine if a parent can expect a judge to order the other parent to pay child support for a past period of time, possibly resulting in a large sum of child support arrears.

In the case of D.B.S. v. S.R.G., the parents had 3 children in the course of their 10 year common law relationship. Shortly after the couple separated, the parents shared custody of their children and neither paid support to the other. In 2003, the mother sued the father for retroactive and ongoing child support. The first judge awarded the mother ongoing support, but no retroactive child support because their household incomes were approximately the same and because the father had contributed to the children’s support after separation. Furthermore, this judge was not satisfied that it would benefit the children to make an award of retroactive support. The mother appealed this decision. The court of appeal reversed this decision and sent the case back to the first judge to determine the retroactive sum owed by the father. The father appealed to the Supreme Court of Canada.

In T.A.R. v. L.J.W., the parents had 3 children in the course of their common law relationship. Following their separation, the children lived with their mother. The father paid child support in the sum of $150 per month. This was later increased to $300 per month. The mother returned to court asking for an increase to the amount of child support and, more importantly, retroactive child support. She was awarded child support in the sum of $465 per month. However, her request for retroactive child support was dismissed. The judge considered a few factors including the financial hardship that such an award would cause the father based on his meager income, the fact that the father had honoured his support obligations throughout, and the fact that he had incurred substantial expenses in exercising access rights to his 3 children. The mother appealed this decision. The court of appeal reversed this decision and sent the case back to the first judge to find a creative solution to the issue of retroactive child support. The father appealed to the Supreme Court of Canada.

In Henry v. Henry, the parents of the 2 children resided with their mother after separation. The father was ordered to pay $700 per month in child support. Although the father increased his support payments, the amounts he paid were substantially lower than required under the Federal Child Support Guidelines. Unbeknownst to the mother, the father’s income had increased dramatically since the divorce. At the same time, the mother was experiencing financial difficulties. When he was asked, the father refused to provide financial assistance to the mother. When the mother sought a court order for retroactive child support, she was granted retroactive child support for a period of 6 years. The majority of the court of appeal upheld the decision. The father appealed to the Supreme Court of Canada.

In Hiemstra v. Hiemstra, the parents were divorced in 1996. The 2 children lived with their father, and the mother paid child support. Later, when one child moved in with his mother, child support payments ended. By February 2004, the mother was supporting both children. She then applied to the court for retroactive child support. The judge held that this was an appropriate case for an award of retroactive child support. The court of appeal upheld the decision. The father appealed to the Supreme Court of Canada.

On July 31, 2006, the decision announced by the Supreme Court of Canada demonstrated that all 7 judges agreed that rules were required for the determination of the issue of retroactive child support.

The highest court allowed the appeals in D.B.S. v. S.R.G. and L.J.W. v. T.A.R. by restoring the first judge’s decision. That is, the mothers’ claims for retroactive child support were dismissed.

In the cases of Henry v. Henry and Hiemstra v. Hiemstra, the Supreme Court of Canada dismissed the appeals and granted retroactive child support.

In arriving at these decisions, the majority of highest court ruled that parents have an obligation to support their children in a manner commensurate with their income. The judges stated that this obligation, and the children’s right to child support, exist independently of any statute or court order. The total amount of child support owed will generally fluctuate based on the payor parent’s income. Thus, payor parents who do not increase their child support payments to correspond with their incomes will not have fulfilled their obligations to their children.

The majority of highest court ruled that child support orders should provide parents with the benefit of predictability and a degree of certainty in managing their financial affairs. The parents must continually ensure that their children are receiving an appropriate amount of support. In situations where the payor parent is found to be deficient in his or her support obligation to the children, it will be open for the judge to change the sum of child support payable and even make a retroactive order. The consequence will be that child support amounts that should have been paid earlier will become immediately enforceable.

The highest court stated that under the federal Divorce Act, a judge will not be able to make a retroactive award if the child no longer fits into the definition of ‘child of the marriage’, as defined in section 2.
Each case will be decided on the basis of its particular facts. The judge should consider the reason for the recipient parent’s delay in asking for child support, the conduct of the payor parent, the past and present circumstances of the child, including the child’s needs at the time that the support should have been paid and whether the retroactive award might entail financial hardship.

Once the judge determines that a retroactive child support award should be ordered, as a general rule, the award should be retroactive to the date that the recipient parent notified the payor parent that child support should be paid or increased.

The Supreme Court of Canada ruled that the limit of the retroactivity should not be more than 3 years.
Although the final decision regarding the 4 cases was unanimous, the minority view of the court was that parents have a free standing joint obligation to support their children based on their ability to do so, and this obligation creates a right in the child. Because the child’s right to support varies with changes in the parents’ income, the child’s entitlement to a change in support should not be limited to the date of notice. So long as income changes, the presumption is that the change in child support should start from the date of such change, not when it was disclosed or discovered. The support obligation is dictated by the increased income, and not by blameworthy conduct. In the same way, the recipient parent does not need to demonstrate that the failure to pay child support resulted in financial hardship for the child. The group of judges in the minority felt that there is no reason to deprive children of the support that they are entitled to by imposing an arbitrary 3 year limitation period on the amount of child support that can be recovered.

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Do you have to increase your child support when your income rises?

In the 2003 decision of Walsh v. Walsh, the wife asked the judge to order her ex-husband to pay a shortfall of child support in the sum of $43,000 for the past few years because his income rose.

In 1997, the court ordered her ex-husband to pay child support pursuant to the Child Support Guidelines based on an income of $175,000. In 2002, the wife discovered that her ex-husband’s income ranged between $214,000 and $376,000 per year for the past few years resulting in a shortfall of approximately $43,000, which her ex-husband should have paid in child support.

The court held that her ex-husband knew that his child support obligation was based on his income, but chose not to disclose his income voluntarily. In the court’s view, he could not now hide behind the defence that the children should not have the benefit of his increased income for this period because his wife did not request his income tax returns until 2002. The ex-husband was ordered to pay the entire shortfall in child support within 45 days.

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Am I paying too much child support or receiving too little?

Since the enactment of the Child Support Guidelines in 1997, the monthly amount of child support is primarily based on the income of the non-custodial parent, the number of children in the family and which province the children reside in. Tables are published that set out the amount that the non-custodial parent must pay to the custodial parent. The table amounts are for the children’s ordinary expenses such food, clothing and shelter. For example, a non-custodial parent of two children in Ontario who earns $40,000 per year will pay to the custodial parent a table amount of $570 per month. The custodial parent’s income becomes relevant where the children have special or extraordinary expenses such as daycare, extracurricular activities or private school tuition. In that case, the parents share these costs in proportion to their incomes.

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May I stop paying child support because my spouse will not let me see my children?

No. Child support is to provide the children with food, clothing, shelter and the necessities of life. It is not appropriate to deprive children of this because the other parent has acted unreasonably. There are other remedies available such as a change in custody or access, or a motion to find the other parent in contempt.

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Do I have to pay child support if the pregnancy was not planned?

A New Mexico appellate court ruled that a man who unknowingly fathers a child because his partner told him that she was using birth control could not argue Contraceptive Fraud to avoid paying child support. In the court decision of Wallis v. Smith (New Mexico Court of Appeal, 22 P. 3d. 682 (2001)), the father of the newborn child alleged that the mother told him she was using birth control when, in fact, she was not. He argued that she committed Contraceptive Fraud. The trial court dismissed the lawsuit, finding that it was against public policy to accept this argument. The appellate court upheld this ruling. The court relied on the child support laws of New Mexico and held that it had no jurisdiction to recognize Contraceptive Fraud as a ground for relieving a father from his obligation to pay child support.

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Do I have to pay child support if I learned that I am not the biological father?

This very issue was addressed by Mr. Justice Allan Boudreau in the Nova Scotia Supreme Court decision of Peters v. Graham (N.S.J. No. 452 (November 15, 2001)). The court ordered that a man whose wife deceived him into believing he was the biological father of twins for ten years pay child support, albeit at a reduced amount, since the children have two other fathers. Gregory Neil Peters argued that he should not have to pay support because he was misled by his ex-wife, Lisa Anne Graham, regarding the children’s paternity. The father stated that he would like to continue having a close relationship with the children, however, not as a father, but as a friend. The lawyer for the ex-wife argued that the decision should emphasize the best interests of the children and not focus on the actions of the parents. Under the Child Support Guidelines, a judge has the discretion to order a spouse or former spouse who is not a biological or adoptive parent, but who stands in the place of a parent, to pay child support.

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Were the Child Support tables changed ?

The On December 31, 2011, the federal government introduced new tables for the amount of child support to be paid each month.

The first tables were introduced on May 1, 1997. These tables were subsequently amended on May 1, 2006. This is the third set of tables in 14 years.

This change will impact hundreds of thousands of families throughout Canada where one parent pays to the other parent child support under these tables. In some cases, the child support payor will experience a reduction in child support. In other cases, the child support recipient will be able to collect a greater sum in child support.
For example, under the old tables, a non-custodial parent earning $21,300 would have paid $182 per month for one child. Under the new tables, the amount is $170 per month, a reduction of $148 per year. Conversely, under the old tables, a non-custodial parent earning $75,000 would have paid $1,098 per month for two children. Under the new tables, the amount is $1,105 per month, an increase of $84 per year.

The new tables can be found at http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/look-rech/index.asp
It is important to note that the 2006 tables must still be used to determine child support owed before December 31, 2011. However, the updated tables should now be used to calculate child support payable from December 31, 2011 onward.

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Will child support be reduced if the payor is fired from his job ?

If child support is supposed to be calculated based on income, then it is reasonable to assume that if a person’s income is reduced because of job loss, then child support should also be reduced. But in the case of Aboagye v. Sakyi [2012] O.J. No. 575, Mr. Justice Sherr ruled that if an employee is fired, he cannot avoid child support based on his own misconduct.

In this case, the parents had four children aged 13, 11, 9, and 4 years. The father worked full-time at two different jobs for at least two years prior to the parties’ separation. He had worked as a forklift operator for one employer since 1996, and as a machine cleaner for a second employer since 2007. The father’s Notice of Assessment for 2009 showed that he earned a gross income of $62,500. The father left his second job as a cleaner at the end of June 2010. He continued working as a forklift operator. The father did not pay any child support until the fall of 2011 and accumulated over $17,000 in child support arrears. The father earned $50,755 in 2012. In court, the father testified that he was fired just three days before the trial began. He stated that he was given vacation pay, but no severance payment. He claimed that this dismissal was wrongful and he planned to sue for wrongful dismissal. The mother testified that the father was a liar and that he conspired with his employer to engineer his job loss for this case.

The father’s employer stated that the father was warned twice about poor performance and was dismissed for cause. The employer listed reasons for his dismissal that included:

  1. not following company policy for signing loading lists and work orders;
  2. using his cell phone during company time;
  3. using his cell phone in the loading area and inside loading containers;
  4. being frequently late and absent;
  5. accepting money from customers to perform additional services during company time; and
  6. damaging company property.

The court held that if the employer was justified in firing the father, then the father cannot use his dismissal as grounds for reducing support. Where the loss or reduction in employment income is the result of one’s own actions or misconduct, the support obligations will not be reduced or cancelled. Moreover, the court stated that if the father is correct that he was wrongfully dismissed, he will likely receive a significant income-replacement award.

In the end, the court imputed to the father an income at $41,000 per year, and was ordered to pay child support based on this amount.

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Self-Employment Income in Family Law: To Deduct or Not to Deduct, That Is The Question

When the Child Support Guidelines (“Guidelines”) were introduced in 1997, the federal and provincial governments legislated that its purpose was “to reduce conflict and tension between parents or spouses by making the calculation of child support more objective.” The idea was that separated parents could simply look up the income of the parent paying support, and the number of children supported, and this would easily determine the exact monthly dollar amount of child support payable. This legislation was supposed to end the controversy, litigation and cost of determining the amount of child support. Not so fast.

Although this intent became true for support payors who were salaried or hourly employees, there were many support payors who owned businesses and exercised discretion as to the income they reported to Canada Revenue Agency (CRA).
According to Statistics Canada, over 15% of Canadians, or nearly 3 million people, are self-employed (Source: Statistics Canada, Labour Force Survey, April 2012). In an era where nearly half of all marriages end in separation, it is understandable why protracted litigation persists over the determination of separated parents’ income and the concomitant support obligations. Add to this the growing number of separating parents who are choosing to share custody after separation. In such a situation, both spouses could be treated as support payors, thereby necessitating an inquiry into both parents’ incomes pursuant to section 9 of the Guidelines (shared custody). Moreover, even if only one parent is the support payor and the other parent is the support recipient, the recipient’s income must also be evaluated for the purposes of proportionately sharing the children’s special and extraordinary expenses, including daycare, uninsured health care costs, private school tuition and university costs.

Indeed, the legislators were aware of this dilemma. Even though section 16 of the Guidelines directs that annual income is determined by Line 150 of the payor’s income tax return under the heading “Total Income”, section 19(2) goes on to state that “the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.” In other words, the fact that a business expense is legitimate for tax purposes does not mean that the same deduction is reasonable for support purposes (Cook v. Cook [2011] O.J. No. 4399).

Chartered Business Valuators (CBV’s) have educated the bar as to the many methods they employ to ascertain the payor’s income for the purposes of calculating support. These tools include:

    • collecting, analyzing and reporting on the payor’s financial records including the business’ Financial Statements (if incorporated) and Statement of Business/Professional Activities (if a sole-proprietorship or partnership). These records provide a good source of data that are used to add back to income any expenses deducted that were incurred for the owner’s personal benefit, deductions that are not provable, retained earnings and/or shareholder loans
    • comparing and analyzing the family’s lifestyle costs versus their reported income to demonstrate that more income than reported must exist to support the family’s historical cost of living
    • collecting records from other sources where the payor reported his/her income such as applications for loans, mortgages and credit, applications for government benefits and applications for life and disability insurance
    • public data from Statistics Canada’s Wage Book and the Financial Services Commission Wage Table illustrating wage ranges
    • public data for other similar businesses illustrating the range of income for the subject business

CBV’s do great work in the Family law arena ascertaining the true income of support payors and reducing the number of cases that proceed to trial. For those cases that do reach trial, CBV’s can provide expert testimony to the court to assist in determining a party’s income.

Ultimately, the very conflict and tension that the Guidelines sought to eliminate become revisited when a support recipient seeks to impute a higher income to a self-employed support payor. Since most recipients cannot afford the cost of a CBV, the most common approach used by lawyers is to argue that certain expenses deducted from income were incurred for the owner’s personal benefit and, despite CRA’s decision to allow the deduction, should be added back to the payor’s income in order to calculate child support, as permitted under section 19(1)(g) of the Guidelines.

Some judges will respect the findings of CRA and not impute income on the basis that the court should respect the right of self-employed persons to run their business as they see fit (Osmar v. Osmar 2000 CanLII 22530 (ON S.C.)). Conversely, some judges will question whether particular expenditures ought to be allowed to reduce a support payor’s income and thereby reduce support.

How much will judges second-guess business owners as to their reported income and expenses ? The answer is case-specific.

For example, in determining the income of a self-employed lawyer in Toronto, the court recently found that “car expenses, rent/home office, travel, meals/entertainment, phone/internet, insurance and legal expenses all represent examples of expenses that should be added back to income for support calculation purposes” (Ludmer v. Ludmer [2013] O.J. No. 699). Not only are these amounts added back to income, they are then usually grossed up for taxes (Riel v. Holland (2003), 67 O.R. (3d) 417 (C.A.)). In Ludmer, the court even admitted that “there is no scientific or absolute means of determining the right balance of expense deduction to gross revenue…but [the court] is required to determine an income level that fairly and reasonably reflects the compensation available to the respondent to pay support.”

In cases such as these, counsel can best serve clients (both support payors and recipients) by forming an understanding of the accounting principles involved in business ownership and by knowing how to read and understand corporate financial statements and income and expense statements. For the support recipient, this will assist counsel to ask the right questions – whether in written form (under Rules 13 and 19) or during Questioning. For the support payor, this will allow counsel to gather and assemble the supporting source documents to validate the reported income. CBV’s should either be consulted or engaged in appropriate cases.

In the end, unless a settlement is reached, it is up to the court to determine a party’s income (and therefore support) based on what the parties can prove or cannot prove in the context of business deductions.

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Parents Supporting Children: A Voluntary Act or Legal Obligation?

When parents are together, they can decide to stop supporting their child when he or she turns 18. But if they separate, one parent can force the other parent to pay child support under Ontario law; namely, the Child Support Guidelines.

When parents are together, they can decide on what, if any, extra-curricular activities to enroll their child in. But if they separate, one parent can force the other parent to pay a part of the cost under Ontario law.

When parents are together, they can insist that their child fund his or her university costs through employment and loans. But if they separate, one parent can force the other parent to cover a part of the cost of university including tuition, residence and meals under Ontario law.

When a parent makes a Last Will, that parent can decide to not leave anything to his or her minor child upon his or her death. But if the parents separate before death, the surviving parent can force the estate of the deceased parent to pay child support under the dependent’s relief provisions of Ontario’s Succession Law Reform Act.

When a parent makes a Last Will, that parent can decide to not leave anything to his or her adult child upon his death. But can the adult child challenge that Will and seek a payout from his or her parent’s estate anyhow ?
That was the question posed to the Ontario Court of Appeal in the case of Verch Estate v. Weckwerth, 2014 ONCA 338 (CanLII). The adult children of George Verch discovered that they were written out of their father’s Will and took legal action to collect a share of the estate. They argued that their father had a “moral obligation” to provide for them in his Will. The main thrust of their legal argument was that “a competent testator’s autonomous distribution of his or her property, as reflected in a properly executed Will, may be displaced or set aside by the courts in the exercise of their discretion based on a parent’s moral obligation to provide on death for his or her independent, adult children.”

The highest court refused to accept this proposition and dismissed the appeal.

The interplay of Family law and Estates law provides a fascinating glimpse into the evolution of societal norms regarding a parent’s financial responsibility for children, as reflected by statute and case-law.

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Child support for disabled adult children: What is the effect of ODSP on entitlement to and quantum of child support?

Parents of a disabled adult child face unique financial, emotional and social challenges. When they are divorced or separated, the immediate burden usually falls on the parent with whom the child resides. A portion of that financial burden, however, is alleviated by the government through receipt of benefits like the Ontario Disability Support Plan (“ODSP”). When a child support obligation exists for a disabled adult child, the question arises as to whether receipt of ODSP income by that child renders the presumptive Table approach to child support inappropriate, giving way to a reduction in child support.

This was the question the Ontario Court of Appeal sought to answer in the case of Senos v. Karcz, [2014] O.J. No. 2808.

In that case, the appellant father brought a motion to change the amount of child support he had been paying for his disabled adult son. He argued that his child support obligations ought to be reduced by the amount of his son’s ODSP income. The parties were parents to a 24 year old son, who was diagnosed with schizophrenia and bipolar disorder at the age of 17. The son lived with the mother, her second husband and their 10 year old daughter. As the son had a disability, the parties agreed that, for support purposes, he remained a “child of the marriage” as defined by the Divorce Act.

The framework for determining child support for an adult child is found in section 3(2) of the Child Support Guidelines, which provides that:

1) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

  • the amount determined by applying these Guidelines as if the child were under the age of majority or;
  • if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

Thus, an adult child is presumptively entitled to Table child support, unless the court considers such an amount “inappropriate”. If it is found to be inappropriate, the court needs to determine an appropriate amount, taking into account the condition, means, needs and other circumstances of the child and the financial ability of each of the parents.

In the case at hand, the father’s position was that the son’s ODSP income in the amount of $814 per month made the Table approach inappropriate. The mother’s position was that the father should continue paying full Table support, because, according to her, the ODSP payments belonged to the child, whereas the child support belonged to her.

In the end, the Court of Appeal agreed with the father and found that the Table approach was inappropriate. The Court held that the son’s receipt of almost $10,000 per year in the form of ODSP income support was, in itself, sufficient to displace the “one-size-fits-most” approach in s.3(2)(a) of the Guidelines in favour of the “tailor made” approach in s.3(2)(b). The Court of Appeal stated:

ODSP reflects society’s commitment to sharing financial responsibility for adults with disabilities. It makes little sense to calculate child support on the basis that this responsibility falls only on the parents. In my view, the assumption of some responsibility by the state and [the son’s] receipt of income support for his board and lodging make the Table approach inappropriate. These circumstances change the equation and call for a bespoke calculation based on [the son’s] unique condition, means, needs and other circumstances, including his receipt of ODSP, and the ability of his parents to contribute to his support.

As for the new amount of child support under s.3(2)(b) of the Guidelines, the Court of Appeal directed the matter back to trial stating that there wasn’t enough evidence to determine the issue. It did note, however, that “the support, care and treatment of a 24 year old with a serious psychiatric disability may require a greater financial contribution from his parents than the support of a young child or a teenager without a disability.” Thus, it is possible that the support calculation under s.3(2)(b) will not be less than the Table amount, even after taking into account the receipt of ODSP.

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No judges allowed: Adjudicating parenting disputes during marriage and after

Of all the jobs in the world, not one is more mentally, emotionally and psychologically demanding than raising a child.  There is no uniform code or rule book that dictates what is the correct action, approach or statement that is to be made in each situation and at every age and stage of development. There is no evaluation of spouses to predetermine the compatibility of parents before marriage. There is no training or testing of parents before children are conceived. No licenses are issued once parenting criteria are met.

Despite the critical importance of a parent to a child, any two persons, however different, unprepared or ill-equipped, are permitted to produce a child and serve as her life-long caregiver, teacher, leader, coach, therapist, etc. The challenge of parenting is made even more demanding when there is more than one child in the family, and is especially heightened with blended families and with disabled children. Repetition and precedent is not necessarily the road to successful parenting. A positive outcome with one child does not necessarily apply to the other children in the family, nor other moments with that same child. Despite the children having the very same parents, those two parents come from very different childhood experiences and they approach parenting with very different strengths and weaknesses.

None of the above considerations is at all relevant when the family is in a state of harmony. When everyone in the family is getting along, working well together, demonstrating mutual respect and pulling their weight, there is no need to manage conflict. But when there is acrimony – whether between the children, between a child and a parent or between the parents – it is the parents that have to control, manage and resolve the conflict.

So what happens when parents in an intact family have conflicting views or approaches to parenting ? Usually, they discuss, debate, argue and even disagree.  But in the vast majority of cases, the conflict is resolved, and the life of the family continues.  There is no state intervention, no intermediary thrusted into the family and no binding arbitration or adjudication to resolve the conflict. Parents in intact families will disagree, sometimes vehemently, about how to raise their children. But lawyers are not hired, affidavits are not sworn, evidence is not collected, witnesses are not summoned and contested hearings are not booked. Judges do not entertain child-rearing disputes between married parents.

In 1936, the New York State Court of Appeal stated:

“Disputes between parents when it does not involve anything immoral or harmful to the welfare of the child is beyond the reach of the law. The vast majority of matters concerning the upbringing of children must be left to the conscience, patience, and self-restraint of a father and mother. No end of difficulties would arise should judges try to tell parents how to bring up their children.”

Whereas married parents cannot sue each other, divorced parents can and do. Judges routinely decide what religion a child will follow, what school a child will attend, what medical treatment a child will receive and, most importantly, when the child can see each parent. Judges do this because the law permits them to determine the child’s best interests – but only where the parents have separated. So long as the parents are no longer in a conjugal relationship, judges can intercede and impose their own judgment on the parents and the child.

Today, close to half of all families break up. Historically, following separation, one parent had custody of the child – which carried the authority to make all parenting decisions. But now decision-making is routinely shared by both parents. In fact, many US states have dropped the term “custody” altogether for more family-friendly terms. According to Canadian law, parents are treated as equals – equal in role, time and authority.

If that is the case, then why does the law make a distinction between parents who are together versus those that have separated ? Should the law change to treat separated parents just like intact parents and not permit judges to intervene in the life of a family ? After all, this is how the law treats intact families, and it would seem to be working just fine.  It may even be possible that by not intervening, parents will be encouraged to reach agreement and consensus as opposed to seeking a ruling from a judge. In any event, who knows what is best for a child more than a parent. This legislative change could help parents move away from litigation and toward alternative kinds of dispute resolution that are based on parent education, consensus building, mindfulness and therapy.

The legal system is built on the expectation that parents who cohabit are the best (and only) persons who can decide what is in a child’s best interest. Maybe now is the time to recognize that divorced parents are not so different.

Steven Benmor is a specialist in family law and a father of 3.

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Can I collect child support if the payor is in the U.S.?

The Family Responsibility Office is the agency of the Government of Ontario that is responsible for enforcing the payment of support for Ontario residents.

Provided the court order, marriage contract, cohabitation agreement, paternity agreement or separation agreement is filed with the Family Responsibility Office, the support will be enforced and collected on behalf of the recipient.

When the Family Responsibility Office receives a support order or agreement, it monitors and collects support payments by garnishing the support from an income source, such as an employer, and then sending the payments to the recipient.

On July 15, 2002, the Government of Ontario and the Government of the United States established an arrangement for the reciprocal enforcement of support orders. This new arrangement between the Family Responsibility Office in Ontario and the Federal Office of Child Support Enforcement in Washington, D.C. permits Ontario residents to have their child and spousal support orders enforced no matter where the payor resides in the United States (including American Samoa, the District of Columbia, Guam, Puerto Rico and the U.S. Virgin Islands.) It also enables residents from all 50 U.S. states to have their support orders enforced in Ontario.

O. Reg. 207/02, made under the Reciprocal Enforcement of Support Orders Act, amends O. Reg. 140/94 to include this new arrangement.

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Is a woman who earns a salary of $68,000 per year and is financially independent still entitled to ongoing spousal support from her ex-husband?

In the 2003 case of Allaire v. Allaire, the Court of Appeal of Ontario decided that there was no error in law in awarding indefinite spousal support to the wife after a 30-year marriage even though she was financially self-sufficient. The wife was awarded $2,500 per month in spousal support.

During the first eight years of their marriage, the wife supported the husband while he obtained two university degrees. As a result, the husband became a successful hospital administrator, earning approximately $180,000 per year. The wife had hoped to pursue a university degree, however, this ambition was put aside so that they could start a family. Because she put aside her career ambitions early in the marriage, the wife was unable to pursue careers that required a university degree. The judge concluded that the wife suffered an economic disadvantage as a result of the marriage. The court stated that it was more appropriate to look at the choices the spouses made during the marriage and the economic consequences of those choices. The award of spousal support was designed to compensate the wife for the likely permanent economic result of having to postpone her university education, and to adjust for the economic disparity between the two households, based on the spouses’ prior standard of living.

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What is the Ontario government doing to collect unpaid support?

MPP Sandra Pupatello, the new Minister for Community and Social Services, is scheduled to announce today (February 6, 2004) her plan to crack down on deadbeat parents who do not pay their support.

The Ministry for Community and Social Services operates the Family Responsibility Office (FRO), whose mandate is to ensure that support payments flow properly from payors (people who make the support payments) to recipients (people who receive the support payments.) The Family Responsibility Office receives every support order made by a court in Ontario and enforces the amounts owed under the order. It also enforces private written agreements that include child or spousal support terms. Private written agreements can include separation agreements, other domestic contracts and paternity agreements. These types of agreements must first be filed with the Ontario Court of Justice, the Superior Court of Justice (Family Court), or their predecessor courts before they can be enforced by the FRO.

The Family Responsibility Office has the legal authority to collect support payments and arrears and to take the following enforcement actions against those who do not meet their responsibilities:

  • collecting funds from federal sources (such as income tax refunds and employment insurance benefits)
  • reporting the payor to the credit bureau
  • seizing the payor’s bank account or assets
  • suspending the payor’s passport
  • seizing lottery winnings
  • suspending the payor’s driver’s licence
  • taking the payor to court

The new measures are to include:

  • up to $40 million on a new case-management computer system
  • special teams dedicated solely to tracking down deadbeat parents and finding a way to get them to pay the money they owe
  • providing parents owed support with Internet access to their file
  • providing parents with a toll-free telephone number and to separating urgent calls from non-urgent calls with the intention of alleviating the long waiting periods
  • efforts to form alliances with credit card companies for access to information to track down deadbeats parents

Time will tell whether or not the Ontario government acts on its promises to collect the $1.2 billion in monies owing for child support in Ontario.

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What can a spouse be entitled to after an 18 month marriage?

Half a million dollars.

In the 2003 case of Tauber v. Tauber, the Court of Appeal of Ontario agreed with the trial judge that a lump sum award of $500,000 in spousal support to the wife was reasonable.

The spouses were only married for 1½ years and had one child. Before the marriage, the wife worked as a stylist and earned $60,000 per year. The husband earned $2½ million per year and had a net worth of $20 million.
The husband argued that, given the very short length of the marriage, the wife was not entitled to spousal support, and if she was entitled to support, she should receive monthly support for only three years. However, the court decided that the wife’s earning capacity was impaired by the marriage, by her parenting responsibilities and by the breakdown of the marriage. The court decided that the wife’s career continued to be affected by her parenting responsibilities, while the husband’s career was not affected. Since separation, the wife had been living in rental accommodations and had been forced to move almost annually. The court decided that this lump sum payment would enhance the wife’s economic self-sufficiency by allowing her to purchase a home, which would in turn offer the child more stability. The court ruled that, given the husband’s means and the parties’ lifestyle, the award was not so far beyond what was reasonable.

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Can a support payor take early retirement?

The Ontario Superior Court of Justice was asked to address this very question in the September 30, 2003 case of Moffatt v. Moffatt. After the couple separated in 1997, they entered into a separation agreement that placed their two children with the mother. The father was a teacher and earned $63,000 per year. In June 2001, he took advantage of a temporary window of opportunity and chose to take early retirement. He accepted the converted value of his teachers’ pension in the sum of $526,026.63 and left the workforce.

Mr. Justice Campbell decided that the father, by choice, had become intentionally under-employed as described in section 19 of the Child Support Guidelines. The court decided that the father made a decision to benefit himself and himself only. Because the father was only 54 years old when he took early retirement, and because he had an ongoing obligation to his two children, his decision had a significant negative impact on his two children.

The father was ordered to pay child support for his children in the amount of $929 per month based upon an attributed income of $70,200 per year that would continue up to the date when he otherwise would have been entitled to retire.

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Can you sue for custody and support of your pet?

Maybe.

On December 17, 2004, in the Ontario case of Warnica v. Gering, Mr. Justice Timms dismissed Christopher Warnica’s claim for shared joint custody of a pet dog named Tuxedo. In that case, the judge stated that courts should not be in the business of making custody orders for pets. Although the judge acknowledged that pets are of great importance to human beings, Mr. Justice Timms stated that some people go to extraordinary lengths to preserve that relationship. That is why Mr. Justice Timms ultimately ended Mr. Warnica’s case.

As for pet support, in the Alberta case of Boschee v. Duncan, [2004] A.J. 677, in addition to seeking $1,500 per month in spousal support, the wife claimed $200 per month to support her husband’s St. Bernard dog. The wife argued that she required pet support to cover the veterinary costs and the costs of feeding and caring for the dog after her husband left the dog in her care. The court found that a St. Bernand dog costs more to maintain and feed than the usual smaller variety. The judge hearing this case ruled that $200 per month was a reasonable sum to compensate the wife for the time and expense required to look after her husband’s dog and ordered him to pay pet support.

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When it comes to the Canada Child Tax Benefit, which separated parent is entitled to it?

Canada Revenue Agency (CRA) is responsible for administering the Canada Child Tax Benefit. The benefit is a tax-free monthly payment for children under the age of 18 and is intended to help families with the cost of raising their children.

In situations involving separated or divorced parents, CRA pays the benefit to the parent who resides with the child and who primarily fulfils the responsibility for the care and the upbringing of the child. According to CRA, this is generally the mother, and therefore in situations of separation or divorce, CRA presumes the mother to be entitled to the benefit.

In cases where both parents claim the benefit, CRA will conduct a review to determine which parent qualifies for the benefit. If it is determined that the child resides with both parents, CRA will pay one parent for six months and then rotate the payments to the other parent for the next six months.

Details of this and further information can be obtained at the CRA website at www.cra-arc.gc.ca or by calling toll free 1-800-387-1193.

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What is new with how Canada Revenue Agency pays the Canada Child Tax Benefit and the GST/HST Credit where parents share custody of their child?

In the past, the legislation only allowed one parent to receive the benefit in each month. In situations where the child’s parents were separated and the child resided almost equally with each parent, Canada Revenue Agency developed a shared eligibility policy that recognized that there could be two eligible individuals for the same child. Under that policy, in shared custody situations, the Canada Child Tax Benefit would be rotated between the two parents on a six-month basis. That is, one parent would collect the benefit for 6 months and the other parent would collect the benefit for the next 6 months, on a rotated basis.

On March 4, 2010, the Minister of Finance Jim Flaherty announced that this policy will soon change. To improve the allocation of child benefits between parents who share custody of a child, the new budget proposes to allow two eligible individuals to receive the Canada Child Tax Benefit, Universal Child Care Benefit and GST/HST Credit amounts for each child in a shared custody plan. The amount of the Canada Child Tax Benefit, Universal Child Care Benefit and GST/HST Credit payments will be equivalent to each eligible individual receiving one-half of the annual entitlement that they would receive if they were the sole eligible individual, paid in monthly instalments over the year.

It is anticipated that this change will apply to benefits payable after July 1, 2011.

Any questions about this policy change may be directed to the Canada Revenue Agency at 1-800-387-1193 or 1-800-959-1953 or at http://www.cra-arc.gc.ca/bnfts/fq_lgblty-eng.html

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How will the 2010 Federal Budget announced on March 4, 2010 change the policy for the payment of Child Tax Benefits and the GST/HST Credits where parents share custody of their child?

The legislation only allows one parent to receive the benefit in each month. However, in situations where the child’s parents are separated and the child resides almost equally with each parent, Canada Revenue Agency recently developed a shared eligibility policy that recognizes that there could be two eligible individuals for the same child. The new policy provides that, in such shared custody situations, the benefit is to be rotated between the two parents on a six-month basis. The logic was that benefit eligibility should follow the child. Thus, where the parents are equally responsible for the child’s care and upbringing, then each parent should be eligible for the benefit. For administrative reasons, Canada Revenue Agency is not able to rotate the eligibility on a monthly basis. Canada Revenue Agency is not obligated to respect court orders that make provision for a different arrangement. The only legal authority for determining benefit eligibility is the Income Tax Act and its definition of “eligible individual.”

Any questions about this policy change may be directed to the Canada Revenue Agency at 1-800-387-1193 or 1-800-959-1953 or at http://www.cra-arc.gc.ca/bnfts/fq_lgblty-eng.html#q1

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What is the Ontario government doing to collect unpaid support (...the saga continues)?

I previously reported that, on February 6, 2004, the Minister for Community and Social Services, announced the Ontario government’s plan to crack down on deadbeat parents who do not pay their support.

The government’s Family Responsibility Office (FRO) receives every support order made by a court in Ontario and enforces the amounts owed under the order. It also enforces private written agreements that include child or spousal support terms. The FRO has the legal authority to collect support payments and arrears and to take enforcement action against those who do not meet their responsibilities, such as garnishing income tax refunds and employment insurance benefits, reporting the payor to the credit bureau, seizing the payor’s bank account or assets, suspending the payor’s passport, seizing lottery winnings, suspending the payor’s driver’s license and, as a last resort to collect the unpaid support, by taking the payor to court and asking for a term of imprisonment.

With a budget of nearly $50 million, the FRO enforces support obligations on behalf of approximately 185,000 families in Ontario. According to the Family Responsibility Office’s records, as of March 31, 2006, over $1.3 billion in support arrears remained uncollected – including almost $200 million owed to the Government of Ontario as a result of social assistance (welfare) payments made to families of delinquent support payors.

On August 9, 2006, the Ontario government’s Ombudsman found that the FRO dropped the ball in collecting delinquent child support.

The Ombudsman is an officer of the Ontario Legislature and is independent of both the political process and government administration. (The Ombudsman can be reached at 416-586-3300 or at www.ombudsman.on.ca).

The Ombudsman focused on the case of one father who lost $2,422 in child support arrears for his son – which the FRO should have collected for him from the mother’s sale of a property. FRO failed to consult with the father when it registered the Writ of Seizure and Sale in the wrong name of his former wife. The Writ was issued in the name of his former wife, as it appeared on the court order for child support, but she had since remarried and used a different name to register title to her property.

The Ombudsman stated that “this case reflects the very malaise which is all too prevalent among government bureaucrats… administrators have taken a wooden view of their rules and obligations and forgotten that they are dealing with real people.”

The Ombudsman did not sugar-coat his criticism of the FRO when he reported that “the FRO was content just to sit back and lead the support recipient on. It neglected its fiduciary responsibility and displayed a cavalier attitude towards an individual it was duty-bound to serve…those charged with the enforcement of support orders must accept that they have a duty to act in the best interest of those who the support was intended for.”

The Ombudsman made recommendations including that the FRO pay $2,422 in compensation to the father – which represents the amount which he could have collected from the sale of his former wife’s home if the Writ had been enforced. He also recommended that the FRO change its policy and procedures so that support recipients are advised of the possibility that a Writ may not be enforceable if the support payor has changed his or her name or uses a different name. This would allow the FRO to attempt to obtain an amended court order and new Writ. In addition, he recommended that legislative changes be considered to ensure that Writs of Seizure and Sale can be more effectively and efficiently enforced when support payors, who are in arrears of child support, change their name or use different names.

In closing, the Ombudsman stated that “it is evident that a cultural change is required in the way that the Family Responsibility Office views its role. Its passive hands-off approach must be replaced by a proactive, common sense, and good faith attitude towards support recipients.”

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Is private school a necessary expense to be paid by a non-custodial parent?

Mr. Justice DiTomaso was faced with this question in the July 6, 2006 case of Nitkin v. Nitkin that was argued at the Newmarket courthouse.

Robert Nitkin is the estranged father of the 3 children that he had with his ex-wife Michele Nitkin. The children are now 18, 15 and 12 years old. Since August 2005, they have lived with their mother and stepfather in Albuquerque, New Mexico.

Mr. Nitkin continues to pay over $60,000 per year in child support – which is the Table amount according to his income of $350,000 per year.

Amongst the many claims made by each parent, Ms. Nitkin sought a court order that her ex-husband also pay for the children’s private secondary school costs in New Mexico. Mr. Nitikin’s argument was that this expense was neither reasonable nor necessary since public high schools in Albuquerque, New Mexico have an excellent reputation. Mr. Nitkin also argued that when they first separated they agreed that he would be responsible for private school tuition for elementary school only.

The judge decided that the expenses claimed by Ms. Nitkin must be necessary in relation to the children’s best interests. He found that there was no evidence to suggest that private school met the needs of the particular children in question and that there was no evidence that the children’s needs could not be met in the public school system. The judge stated that the mere fact that the children had attended a private primary school in the past does not mean that it is necessary for them to continue in a private secondary school.

The judge was persuaded that the public school system in Albuquerque is of an excellent reputation and that the Nitkin children would benefit and flourish in that environment.

In the end, Mr. Justice DiTomaso ruled that the claim for the children’s private school was neither necessary nor reasonable.

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Can child support be based on support that the child's father receives from his parents?

On April 23, 2007, the Ontario Court of Appeal answered this question.

Their answer was unanimously “No”.

In this case, Stephanie Bak and Mark Dobell had a 13 year old daughter named Jacque-line. She had various disabilities. Her mother Stephanie was an artist who earned less than $10,000 per year. She managed her and Jacqueline’s expenses with assistance from her mother and other family members.

Mark suffered from severe personality disorders, leaving him unable to maintain employ-ment. His behaviour improved with therapy, but his ability to work did not. Despite this, he paid Stephanie child support of $117 per month.
Mark’s father (Jacqueline’s grandfather) paid for Mark’s day-to-day expenses and bills. Mark’s father also purchased a home for him to live in.

Stephanie made an application to the court to increase the child support sum to $2,300 per month by asking the court to attribute to Mark an annual income of $164,479 based on the lifestyle he led from money he received from his father, Jacqueline’s grandfather.

She introduced evidence from a chartered accountant who estimated Mark had an income equivalent to $877,970 between 1998 and 2005 based on the financial contributions that Mark received from his father.

Although the trial judge accepted Mark’s father’s evidence that he gave money to Mark out of a sense of obligation and to prevent Mark from being a burden on the taxpayer, he de-clined to treat these gifts as income and noted the Mark’s father should not be required to indirectly pay support for an obligation that was not his responsibility.
Stephanie disagreed and appealed this decision to the Ontario Court of Appeal.

On appeal, it was decided that the gifts from Mark’s father and his lifestyle could not be in-cluded in Mark’s income for support purposes. The gifts did nothing more than support Mark’s basic lifestyle, and Jacqueline’s grandfather had no obligation to support her as this was Mark’s obligation.

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Is a parent required to pay child support for a child who is in jail?

Mr. Justice Hambly believed so. His reasons are found in his decision in the March 19, 2010 case of Cochrum v. Lyons.

That case dealt with the Lyons family. Wallace and Lisa were married in 1988. They had two children together, Laura (age 20) and Luke (age 17). Wallace and Lisa separated in 1997. The issue in this case was whether Wallace had an obligation to pay child support to Lisa for Luke.

On February 27, 2009, Luke was placed in a juvenile detention center. Lisa kept a room for Luke at her home, visited him regularly while he was incarcerated, purchased clothing for him and deposited spending money into Luke’s account. Luke was released to Lisa’s care on September 18, 2009.

So the question was: did Wallace have an obligation to pay child support to Lisa for Luke from February to September, 2009 ?

Mr. Justice Hambly applied first principles stemming from the Divorce Act. He found that Luke was a “child the marriage”, as defined by the legislation, because Luke had been, throughout this time, under the care of Lisa and had not withdrawn from her charge – even though he was incarcerated.

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Is there an “America’s Most Wanted” of defaulting support payors?

The Ministry for Community and Social Services operates the Family Responsibility Office (FRO) whose mandate is to ensure that support payments flow properly from payors (people who make the support payments) to recipients (people who receive the support payments).

The FRO receives every support order made by a court in Ontario and enforces the amounts owed under the order. It also enforces private written agreements that include child or spousal support terms such as separation agreements.

The FRO has the legal authority to collect support payments and arrears and to take enforcement action against those who do not meet their responsibilities, such as garnishing wages, income tax refunds and employment insurance benefits, reporting the payor to the credit bureau, seizing the payor’s bank account or assets, suspending the payor’s passport, seizing lottery winnings, suspending the payor’s driver’s license and, as a last resort to collect the unpaid support, by attending court and seeking a term of imprisonment.

In addition to its standard enforcement mechanisms, the FRO launched a more innovative and aggressive approach to tracking down defaulting support payors.

The FRO now posts information such as the defaulting payor’s name, photograph, physical description, approximate age, last known address and occupation on www.goodparentspay.com.

In effect, the FRO has created an “Ontario’s Most Wanted” list of defaulting support payors.

The individuals posted on this website are registered with the FRO, have not made their support payments and cannot be found. Photographs and information about these missing defaulting support payors will only be added to the website after all other means of locating them have been unsuccessful and it has been at least 6 months since the payor made his or her last support payment. The website is ultimately a plea to the public to help the FRO find missing defaulting payors so that it can enforce support and reduce the amount of support arrears that remain uncollected.

All information provided to the FRO is confidential and can be provided anonymously. The postings are made under the authority of sections 61 and 61.1 of the Family Responsibility and Support Arrears Enforcement Act and sections 42(1)(c) and (e) of the Freedom of Information and Protection of Privacy Act. A support payor can request to have his or her information removed from this website if he or she contacts the FRO to update his or her address and income source, as the objective of the website is to locate the missing support payor.

The purpose of this effort is loud and clear and is embedded in the website’s very name – Good Parents Pay. The public is given an opportunity to help Ontario children and families by assisting the FRO find missing, irresponsible parents who have defaulted on the payments owed to their children.

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Who gets to claim the Canada Children's Fitness Tax Credit after separation ?

The Children’s Fitness Tax Credit is a non-refundable tax credit which lets parents claim up to $500 in eligible fees for enrolling a child under age 16 in an eligible program of physical activity. For children with disabilities, an additional amount of $500 can be claimed if the child is under the age of 18.

To qualify for the Children’s Fitness Tax Credit, programs of physical activity must be:

  • ongoing (minimum 8 weeks with at least one session per week or, in the case of camps, run for 5 consecutive days)
  • supervised
  • suitable for children
  • include a significant amount of physical activity that contributes to cardio-respiratory endurance and to at least one of muscular strength, muscular endurance, flexibility or balance

Some examples of eligible physical activities are hockey, soccer, gymnastics, swimming, dance and other activities that require a similar level of physical activity.

For more information on the eligible activities, visit the Public Health Agency of Canada’s Physical Activity Guides for children and youth at www.phac-aspc.gc.ca/pau-uap/paguide/child_youth/index.html

To be eligible for the tax credit, fees for an eligible program must have been for the cost of registration or membership. Related costs such as accommodation, travel, food or equipment do not qualify for the credit.

So, which parent gets to claim the tax credit when parents separate?

Generally speaking, the parent who pays for the program gets to claim the tax credit.

But what happens when both parents contribute towards the same activity, sometimes in different proportions? Each parent can claim their proportionate share of the fees paid for an eligible program so long as the combined amount is not more than $500 per year. Each parent can only claim his/her proportionate share (unless agreed to otherwise). Therefore, it is advisable that separated parents agree in advance on what eligible fees will be shared and what amount each parent will claim as the tax credit in a Separation Agreement or Court Order.

For more information on the Children’s Fitness Tax Credit, visit http://www.cra-arc.gc.ca/fitness/.