The courts are generally very unhappy when its orders are being ignored.  However, in the face of an intransigent spouse, it requires a persistent and a skilled hand to force a difficult party to reach a judicially imposed finish line.  The court has many tools, not all of them completely effective in motivating a reluctant target of a court order.  As an example, if specific access is being frustrated, the court as an alternate remedy can change custody.

Or the court can impose a penalty, such as a fine.

One remedy is to seek an order finding a party in breach of a court order and thus in contempt.  Family law lawyers out of a sense of eagerness, will often make such threats, but the Ontario Court of Appeal has stated that a contempt order should not be granted where there are other alternatives and a great caution should be exercised.  Justice Quigley a Superior Court judge in Brampton in the recent decision of Szyngiel vs. Rintoul set out the appropriate principles.

1. The relevant order must be completely clear and unambiguous.
2. The breaching party knew of the court’s order.
3. The breaching party intentionally did or failed to do anything that was in contravention of the order.
4. The breaching party was given proper notice to the terms of the order.
5. The order must be extremely expressed and clear, certain and unambiguous language.

If you are alleging contempt against your spouse, the onus to meet all of the points lies with you.

The person effecting the order should know with complete precision of what he or she is required to do or not do.  Implied terms do not count.

The contempt power is used with great restraint and only in exceptional circumstances.  The contempt order must be the only reasonable means by which to send a message to the breaching party that the court orders are not be flaunted.  A contempt order should only be use for serious breaches which justify serious consequences.

The court has the power after a finding of contempt to impose many strong penalties, including fines, jail and dismissing the breaching party’s case in its entirety.  After this learned and lengthy analysis of the law of contempt as it applies in family law cases, Justice Quigley applied a relatively light sentence to simply finding the breaching party being in contempt with no further penalty because by the date of the motion, the contempt had been purged i.e. whatever was ordered, he had provided.

While it may seem that the judicial process is a potentially ineffective one with a toothless bite that is not always the case.  However what it is, is at times extremely cumbersome and I liken it to a moving an ocean liner.  It can take a huge and sustained effort, with repeated attempts to actually accomplish your stated goal.  There are clearly extensive legal fee consequences arising from that.

This is why if at all suitable, Dale Streiman Law LLP encourages the parties to look alternate means resolution, including four way settlement meeting and matters being referred onto mediation/arbitration if appropriate.

The writer believes that litigious custodial disputes or access fights between separating parents is almost always a function of at least one of the parents having their own psychological issues.  When both parents are mature, they should be able to place the children’s interests first and recognize that they both have to play important roles in the children’s lives.

One terrible example of a lack of parental maturity being visited upon the children is when one parent uses the child as a weapon against the other.  Children can be very susceptible to being molded by a wounded parent.  They can identify with one parent or another for many reasons or children can display a sense of moral outrage in the face of a parent who has left the marriage for another person.

Parental alienation can develop when one parent either overtly or covertly convinces children that the other parent is bad and spending any time with them is to be avoided.  A loving parent can quickly find themselves on the outside of what was a strong parental bond.  It is destructive when a child takes a strong position that they do not want to see the other parent.  Often the offending parent will protest that they never interfered and indeed are attempting to encourage a relationship between child and estranged parent.  In the face of such a position (often being taken by a young teenager), there can be serious difficulties in attempting to have the court impose a solution to this most insidious of child and parent problems.   We are not talking about a parent who has been cruel or has ill-treated a child, but rather a parent who is blameless in their capacity as parent.  They may be guilty of no other sin than not being the primary custodial parent.  Good luck to the parent who has decided to leave the marriage even with good reason to live with another person.

There are a limited number of therapists who specialize in remedying parental alienation.  Dale Streiman Law LLP has been successful in the face of such parental alienation in getting the court to exercise the ultimate remedy, which is to reverse custody and to cut off any contact between the offending parent and the alienated child.  Such efforts require great skill, expertise, martialing of competent outside experts and unfortunately significant financial and emotional effort by the wronged parent.

The courts are very attuned to the importance of an ongoing relationship between both parents and child and that it is detrimental to the child’s healthy upbringing should one parent be frozen out.

One must tread very carefully when your marriage is coming to an end and more often than not, the strong advice that the author gives to his clients is to put any other adult relationship on hold until the dust has settled and a significant time has elapsed for all concerned to become adjusted to the new reality.  The law in no way discourages or on its face takes into account fidelity or its absence.  However, we all live in a real world filled with emotions and motivations that are not always in everyone’s best interests either financially or emotionally.

It is sage advice that before any steps are taken, to consult with one of the experienced family lawyers at Dale Streiman Law LLP before taking that first step.

Double dipping is a reference to a future revenue source being shared more than once with your former spouse.  The prime example of that is a future pension which is treated as property at the time of separation and is equalized as part of the property settlement.  Later once the pension is actually being received, should that same pension/asset, which has already been equalized, be available as an income stream which your ex-spouse can look to for support.

As an example, if you are an employee of Chrysler and had worked at Chrysler for some 10 years during the course of the marriage, when you separate, that future pension even though you have not received it by the time of separation, is an asset which is equalization.  Using the services of a fancy mathematician called an actuary (and now this is a service provided by the pension administrator) a family law lump sum value is obtained.  That value is taken into account when there is a property settlement. 

That pension can be easily worth in excess of $100,000.00 and in return for you keeping all of your pension, you may give up all of your interest in the matrimonial home to your ex-spouse.  10 years later, you retire and start to receive $2,000.00 per month under your Chrysler pension.  Your former spouse’s financial situation has gotten worse and now your total income, including a $2,000.00 per month Chrysler pension is $3,000.00 per month.  Your wife wants spousal support and she wants as part of that spousal support the court to assume that you are earning $3,000.00 per month, even though two thirds of that comes from a pension that has already been shared with your former spouse.  This is an example of double dipping. 

The leading case on this is the Supreme Court of Canada’s decision in Boston vs. Boston.  The court held that this is generally not to be allowed, but this is not an absolute prohibition.  In the recent Manitoba Court of Appeal decision of Senek vs. Senek, the husband applied to reduce the amount of support as he had retired.  His pension had already been equalized when the parties had separated.  Quoting other decisions, the court stated that “the challenge is to avoid double recovery when it is fair to do so, but this is not to say that in all cases double recovery will be eliminated because of some cases double recovery may be the only fair way to continue support.”  In the Senek case, the court was moved to permit double dipping because in the absence of the former husband’s ongoing support, the ex-wife’s income would have fallen so low that she would have been placed below the poverty level.  When there is a strong need for spousal support, the court will tip the scales in favour of the recipient’s needs.  

The Ontario Court of Appeal recently in the decision of Stevenson vs. Smit, upheld an agreement in which the husband had signed and in which he undertook to pay 50% of all of the children’s lifestyle expenses, such as camp and private school despite the fact that he had minimal income and was just in the midst of starting a new company.  When things did not go well for him, he attempted to convince the court that the amount of support should be reduced down to something in accordance with the Guidelines, which would have caused a significant reduction in the child support that he was paying.

Despite his best efforts, the Ontario Court of Appeal rejected his attempt.  What sabotaged the husband’s argument was a finding by the court that there had been no material change of circumstances.  When he had agreed to this significant financial obligation, he had no income and had agreed that he would fund this out of his capital.  Nothing had changed in the intervening years and the court, while it is willing to set aside a spousal support arrangement that is less than the Guidelines, was far less willing to do so from the other side of the room.  If this is the deal you are going to make, beware as here the court would not allow the husband to avoid the responsibilities that he had undertaken.

Careful what you promise with your heart.  Your wallet may fail you and the courts may not help.

Domestic contracts are legally enforceable agreements concerning spousal relationships. The Family Law Act sets out rules for domestic contracts including subject matter and enforceability. There are three basic types of contracts that fall into the domestic contract category.

1. Marriage contracts: An agreement between a married couple or a soon to be married couple (pre-nuptial agreement or pre-marital agreement). These contracts can deal with a variety of financial and property related issues but they cannot address child custody or access upon separation.
2. Cohabitation agreements: An agreement between partners who intend to or are currently living together. This type of relationship is often referred to as a common-law relationship. These contracts can cover the same issues that marriage contracts can address.
3. Separation agreement: This agreement is different from the first two because it is entered into when the marriage or cohabitation has already broken down. These agreements can address financial, property and support issues. They can also address custody and access for children, which the first two agreements cannot do.

For over ten years, the courts have been endorsing the merits of domestic contracts as a means for couples to make their own deal. Domestic contracts allow couples to control the settlement process rather than have a court impose a settlement upon them. The contract can address one or more issues and it is not uncommon for single issue contracts to be used. Generally speaking, the court will enforce the terms of a domestic contract unless there are grounds not to. These grounds are rare but there are specific public policy reasons that may apply. A properly drafted domestic agreement will avoid these pitfalls.

When considering a domestic contract, you should be aware of the continuum of enforceability. I deal with this topic in more detail in another blog post , but for the purposes of this post I will summarize it. The continuum of enforceability is a practical consideration in domestic contracts. It involves the increase in enforceability weighed against the increase in complexity and compliance of the contract in relation to legal requirements. A simplified example is the effectiveness of a perfectly drafted contract that considers the tiniest of details but is not signed versus a poorly drafted contract that is signed. The broad spectrum of enforceability must be weighed against the individual needs of the couple to determine what a properly drafted domestic contract is for that specific person. This concept requires a number of considerations. Legal advice from trained lawyers is required.

Importantly for marriage contracts, these agreements can perform dual functions. They are road maps for how the spouses intend to manage their married life and how they intend to separate, if they ever have to. The act allows couples to waive certain rights that they would normally be entitled to. This is especially important in terms of financial and property rights that spouses typically gain. A clearly worded marriage contract can allow one spouse to waive their rights to the other’s spouse’s property. There is, however, an exception as it relates to the matrimonial home. The Family Law Act says that any marriage contract provision that limits a spouse’s rights under part II of the act to the matrimonial home is unenforceable. The major right involved is the right to occupy the house.

Once a contract is created, a party can attack a domestic contract on four grounds.

1. Validity: Allege that the domestic contract was not made correctly
2. Enforcement: a specific provision violates the Family Law Act or some other statute
3. Overriding Domestic Contract: The court has residual power to override agreements for certain reasons, generally public policy grounds.
4. Interpretation of agreements: The interpretation of the agreement can be attacked if there is ambiguity or unclear terms.

Generally speaking though, domestic contracts will be respected by the court. Where they are challenged, the court can choose to remove one or more provisions from the contract or declare the entire agreement invalid. Contract law principles will form the basis for how the court evaluates a domestic contract. A critical factor in a domestic contract being upheld by the court is the simple concept of fairness. It does not need to be a reflection of a humanitarian award, but the contract cannot be shockingly unfair.

If you are interested in a domestic contract you should be aware that they are not simple or cheap to prepare. The starting cost for an agreement is $3,000. This expense provides an effective means for couples to set out their legal obligations. The lawyers at Dale Streiman Law LLP have been drafting domestic agreements for over 30 years. They will ensure that the contract meets all the legal requirements to be a valid and enforceable expression of your legal objectives while at the same time keeping costs down.

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[1] Link to “Domestic Contracts and the Continuum of Enforceability”

Post-separation, parents often find it difficult to travel alone with their children. These difficulties often lead to expensive last minute court applications and significant stress as parents scramble to make all the last minute arrangements. In extreme cases, there is the threat of parental abduction to either another part of Canada or internationally. This blog post will address some of the simple solutions available to parents to allay their fears and make traveling with children after a separation much easier.

Getting a Passport

The simplest way to facilitate efficient travel is by obtaining a passport for the child. Children over the age of 16 can apply for their own passport. Children under 16 years old can obtain a passport through the application of a parent, the custodial parent or the legal guardian of the child. There is an Order in Council, titled Canadian Passport Order ,that covers most of this information. It is available online for easy reference. The passport application also has a number of useful tips and checklists on it. Parents who have separated will need to submit all the documents relating to custody, access and mobility of the child with the completed application. These documents are extremely important in determining whether or not a passport will be issued.

Passport Canada pays special attention to access, custody and mobility of the child because of the legal significance that attaches to these terms. A parent with sole custody may not need the non-custodial parent’s signature to get a passport, provided they comply with all the requirements. Equally, non-applying parents in a joint-custody scenario need to consent to the passport being issued before Passport Canada will give the child a passport.

If you or your ex-suppose intend to travel with your child internationally after separation, you should advise your lawyer of this at the time of separation. That way they can incorporate specific language into the separation agreement or court order clarifying how and when a passport can be obtained. This will make the process much simpler when it comes time to get or renew a passport for the child.

Restricting Travel
In situations where conflict is high between the parents, they may want to restrict the ability of the other parent to travel with the children and obtain a passport. Once again, proactive steps at the time of separation are important to simplify the process later on. If there is a court order that requires both parent’s consent for the issuing of a passport, Passport Canada will not issue a passport unless there is a revocation or variation of that court order. Where warranted, mobility restrictions can be incorporated into the court order or separation agreement. This can restrict international and domestic travel with the child. In situations of extreme conflict, you can even obtain a court order completely prohibiting the child from having a passport.

Another option that won’t necessarily restrict travel but is a useful tool offered by Passport Canada is the passport system lookout. It does not prevent the issuance of a passport but it will generate an alert if an application is submitted under the child’s name. A parent can send a letter to Passport Canada and request that the child’s name be added to the list. However, where the parent is non-custodial, has no specified access and there is no court order or mobility restrictions on the child, Passport Canada may not add the child’s name to the list.

Finally, if there are real concerns about abduction parents can consider the use of Our Missing Children. This is a program run by Canadian law enforcement and other government agencies that helps find and return abducted children. It involves Canada Border Service Agency, therefore they can verify immigration information and manage national lookout reports on missing or abducted children. Similar to the passport system look, this program can issue an alert once a passport has been issued to the child. This tool is another method that does not prevent a passport from being issued to the child but rather serves as a warning system. It is mainly tasked with locating and returning children after they have been abducted (either by a parent or someone else).

Consents
Finally, outside of questions surrounding issuing or restricting passports for children, travel consents are a common method of facilitating one parent’s travel with their children. Consents are not official and there is no set requirement. A good example can be found at https://www.dalestreimanlaw.com/travel-consent-form.  This form consent has an official look to it that helps lend credibility to the document. An additional benefit is to fill out the standard form and then have a lawyer notarize it for you. This should help facilitate travel by lending the document more weight. It also may be beneficial to place a clause in any separation agreement or court order that requires either parent to provide a consent when requested. Parents should be wary, though, of consent request to countries that have not signed on to the Hague Convention. In a previous blog posting I addressed the Hague Convention at length. For clarity though, the convention is an international treaty that provides parents with a legal recourse to have their children returned to them. Non-signatory countries will not abide by the Hague Convention’s rules.

Traveling with children is a common problem that separated parents face. There are a number of elements at play. If you are looking to travel with your children but are not sure what to do about your uncooperative spouse, contact the lawyers at Dale Streiman Law LLP.

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For more information on the Order in Council see http://canlii.ca/t/lhhk
pptc155.pdf
Child Abduction in a Family Context