We have recently posted a number of blog articles on the struggles of the judicial system in dealing with access difficulties in the face of a stubborn parent who wishes to sabotage access between the other parent and child(ren).  In the recent very important Ontario Court of Appeal decision of A.M. vs. C.H. the three Judge panel weighed in on this matter.  On a personal note, Justice Zarnett has taken part in these decisions.  Justice Zarnett, despite having little to no experience in the family law world prior to his appointment directly to the Ontario Court of Appeal, has dived into the deep end.  Proof positive that an excess of brain cells can compensate for a lack of experience.  In this decision, the Court picked up the ball thrown by Justice Audet in Leelaratna and confirmed that the Court indeed does have the power in custody and access cases to make therapeutic Orders. 

A therapeutic order is one requiring a party or one of their children to participate in therapy.

The facts in A.M. vs C.H. dealt with a mother of a 14 year old whom she had successfully alienated from the father.  The child became one with the mother’s views and adamantly refused to have any contact with the father with no valid justification.  The Court is loathed to interfere, but does so from the precept of the best interest of the child.  The Court wants to enhance a child’s self-worth so that they appreciate that they are worthy of being loved and valued by both parents. 

In Leelaratna, the Court felt that the only appropriate course of action was to change custody from mother to father, temporarily bar the mother from having any access to the child and ordering that the father and child attend therapy together so that a relationship could be re-established. 

There were a number of legal hurdles and in A.M. vs. C.H. the Office of the Children’s Lawyer (“OCL”) became involved.  The OCL advocating for the child’s wishes, argued that the Trial Judge’s order (being appealed to the Ontario Court of Appeal) would have catastrophic consequences in separating the child from his mother and failing to give heed to the child’s wishes.  The OCL further argued that there was a lack of expert evidence of the effect of such a dramatic step.  Lastly, the OCL argued that in the absence of the child’s consent, the Ontario Health Care Consents Act was an absolute bar.  That Act stipulates that a patient’s consent is required before treatment can be provided. 

The Court of Appeal bolded ahead and said nonsense.  The Court started by stating that a large and liberal interpretation of its powers allow it to make a wide variety of Orders with respect to parenting, including therapeutic Orders.  The Court of Appeal repeated that experts’ reports at times can be very valuable, but are not necessary for the Court to make decisions.  The final decision always rests with the Court to do, based upon the evidence before it, to make an Order in the best interest of the child. 

The Court noted “some expert assessment may be very helpful to a Trial Judge, but they are not a prerequisite to making the Order the Judge thinks is in the child’s best interest based on all of the evidence at the end of the Trial.  In fact, Trial Judges are obliged to make an Order regardless of whether expert evidence is adduced.  There is also no legal requirement for therapeutic support when custody reversals are contemplated, although it might be helpful in some cases.  Here it would be of doubtful utility given the mother’s refusal to participate in that process”.

The bottom line is that there are judicial remedies blunt and almost nuclear in their severity.  What perhaps is not clear to the casual reader is the many tens of thousands if not hundreds of thousands dollars that had been spent by the warring parties to get to this point.  I have no doubt that for senior counsel to be involved, at least a quarter of a million dollars would have had to been expended to get to the point for the Court of Appeal to make the decision that it did.  Yet again, this author harps upon his own prejudice that these type of custodial fights are almost always a symptom of at least one of the parents having their own mental health challenges.   

This is an extremely important case as it deals with numerous and weighty legal issues such as whether or not a 14 year old is old enough to refuse to provide their consent under the Health Care Consent Act and accordingly, refuses to participate in therapeutic treatment.  The Ontario Court of Appeal felt that the child was so immature that they were not capable of giving consent.  This tale does not end here and a subsequent blog ACCESS DIFFICULTIES- WHEN THE CHILD REFUSES TO SEE A PARENT, which I strongly recommend my readers look at as this legal drama takes a very unhappy turn. 

Another example of the incredible difficulty of the Court managing access in the face of one or both difficult parents is outlined in the case of Elliott vs. Filipova.  In this Superior Court decision by Justice Abrahams, the relationship between the parents of two children aged 8 and 10 had deteriorated into complete chaos.  The children lived with the mother and the father desperately tried to get access in the face of the mother’s open hostility, not only towards the father but any Orders made by the Court. Irrespective of the Orders that had been made, the mother found some methodology by which to frustrate the father’s access.  Justice Abrahams notes exposure to conflict has been called the single most damaging factor for children in the face of divorce.  The mother’s behaviour became so bad that the father sought a change in custody based upon the mother’s inability to foster a positive relationship with both parents.  The mother’s lack of respect and the level of hostility that she showed to the father was such that the Court felt that it’s “visceral response would be to Order a change in custody based solely on the conduct of the mother”.  However, that is not the test but rather what is in the best interest of the children.  Justice Abrahams warned the mother repeatedly that he was close to making such a change and he adjourned the father’s motion seeking a change in temporary custody on very strict terms.  The Judge admonished the mother by warning her that failure to abide by any of the conditions he was now placing upon ongoing access and residence of the child on the part of the mother, may very well lead to such a temporary change in custody.  One of the children had their own mental health issues and a change in custody would have moved the children from Brockville to Ottawa.  Will the mother look at this as a warning bell to be heeded or will she continue to ignore yet another Order of the Court blinded by her hatred towards the father. Again, evidence of the difficulty in managing human contact by the judicial system.

This author has opined on numerous occasions about situations in which access is not being encouraged and facilitated between separated spouses.  More often than not it leads back to mental health difficulties on the part of at least one of the contestants.  In the decision of Justice Trimble, in Janowski vs. Zebrowski, the judge had clear evidence that the mother had repeatedly disobeyed Court Orders with respect to access.  She had put forward that it was detrimental to the child to see the father and had proffered evidence from a therapist.  The Court looked at the therapist’s evidence with considerable skepticism for various reasons. 

The Court reviewed the numerous recent decisions on the issue of contempt in the family law area.  These principles are set out Haywood², Stuyt², Geremia vs. Harb and Godard².  In the last decision, the Ontario Court of Appeal stated that a parent’s obligation is do what is reasonable and necessary and to actively require the child to comply with the Order for access by exhortation and the threat of execution of discipline.   Reasoning with a child is insufficient and is a breach of the access Order.  There is a positive obligation to ensure that a child complies with the Order.

However, what the Court giveth it taketh with the other hand.  The Court of Appeal in Ruffolo vs. David, a 2019 decision of the Ontario Court of Appeal, found that the Courts contempt powers are exceptional and are rarely to be applied.  Justice Trimble resorted to a common judicial tactic of giving the mother yet again one more firm warning and made a very detailed access Order.  Justice Trimble warned the mother that if the access Order was not followed, then in the absence of the mother’s cooperation, the matter could immediately be brought back before Justice Trimble.  Justice Trimble also sought further information from the Children’s Aid Society and the Police. 

This decision is another example of the almost impossible inability of the court to deal with humans unlike their money.  The Court is very good at moving money from one party to another, but controlling human behaviour is far more challenging and at times impossible. 

We have recently posted a number of blog articles of the difficulty of the Court in dealing with access difficulties in the face of a stubborn parent who wishes to sabotage any access between the other parent and child(ren). In the recent very important Ontario Court of Appeal decision of A.M. vs. C.H. the three Judge panel weighed in on this matter. On a personal note, Justice Zarnett has recently taken part in these decisions. Justice Zarnett, despite having little to no experience in the family law world prior to his appointment to the Ontario Court of Appeal, seems to have dived into the deep end. Proof positive that an excess of brain cells can compensate for a lack of experience. In this decision, the Court picked up the ball thrown by Justice Audet in Leelaratna and held by the Court indeed does have the power in custody and access cases to make therapeutic Orders.

The facts in A.M. vs C.H. dealt with a mother of a 14 year old whom she had successfully completed alienated from the father. The child became one with the mother’s views and adamantly refused to have any contact with the father with no real justification. The Court is ____________ to interfere, but does so from the precept of the best interest of the child. It is in the child’s best interest important to develop its own sense of self-worth that it appreciates that both parents love and value them.

In Leelaratna, the Court felt that the only appropriate course of action was to change the custody, bar the mother from having any access to the child and ordering that the father and child attend therapy together so that a relationship could be re-established.

There were a number of legal hurdles and in A.M. vs. C.H. the Office of the Children’s Lawyer (“OCL”) became involved. The OCL advocating for the child’s wishes, argued that the Trial Judge (an appeal from whose decision was before the Ontario Court of Appeal) would have catastrophic consequences separating the child from his mother and failing to give heed to the child’s wishes. The OCL further argued that there was a lack of expert evidence of such a dramatic step. Lastly, the OCL argued that in the absence of the child’s consent, the Ontario Health Care Consents Act was an absolute bar. That Act indicates that a patient’s consent is required before treatment can be provided.

The Court of Appeal bolded ahead and said nonsense. The Court started by stating that a large and liberal interpretation of its powers allow it to make a wide variety of Orders with respect to parenting, including therapeutic Orders. The Court of Appeal repeated that experts’ reports at times can be very valuable, but are not necessary for the Court to make decisions. The final decision always rests with the court to do based upon the evidence before it to make an Order in the best interest of the child.

The Court noted “some expert assessment may be very helpful to a Trial Judge, but they are not a prerequisite to making the Order the Judge thinks is in the child’s best interest based on all of the evidence at the end of the Trial. In fact, the Trial Judges are obliged to make that Order regardless of whether expert evidence is adduced. There is also no legal requirement for therapeutic support when custody reversals are contemplated, although it might be helpful in some cases. Here it would be a doubtful utility given the mother’s refusal to participate in that process”.

The bottom line is that there are remedies blunt and almost nuclear in their severity. What perhaps is not clear to the casual reader is the many tens of thousands if not hundreds of thousands of thousands dollars that had been spent by the warring parties to get to this point. I have no doubt that for senior counsel to be involved, at least a quarter of a million dollars would have had to been expended to get to the point for the Court of Appeal to make the decision that it did. Yet again, this author harps upon his own prejudice that these type of custodial fights are almost always a symptom of at least one of the parents having their own mental health challenges.

This is an extremely important case as it deals with numerous and weighty legal issues such as whether or not a 14 year old is old enough to refuse to provide their consent under the Health Care Consent Act and accordingly, refuses to participate in therapeutic assessments.  The Ontario Court of Appeal felt that the child was so immature that they were not capable of giving consent.  This take does not end here and a subsequent blog which I strongly recommend my readers look at this legal drama takes a very unhappy turn. 

When couples separate and there is a significant disparity between their incomes, it is a knee jerk reaction to assume that the person earning more will have to pay spousal support to the other.

This should not be the automatic default and requires a close consideration of the facts of each case.

In the decision of Demers, a relatively recent Ontario Superior Court of Justice decision by Justice Gauthier, Ms. Demers struck out on her motion for interim support. This is despite the fact that her husband of seven years income was almost triple hers – $40,000.00 versus $109,000.00. The wife took the position that she had a need for support and was suffering a financial hardship as a result of the separation. Relatively boiler plate pleadings, and one would have thought would have been self-evident upon the separation of a couple earning different incomes.

However, upon closer examination, the court examined the facts and it appeared that the wife throughout the relationship continued to be financial self-sufficient. She had alone paid for all of her expenses, had alone paid for her 17 year old child living with the parties. There was little in the way of pooling of incomes or expenses. They were responsible for their automobile expenses. The court looked not only at the provisions of the Divorce Act, but also that of the Family Law Act. The court relied on numerous earlier decisions.

The court came to the conclusion that save and except for the pooling of funds for a specific household expense, each party was responsible for his or her own needs, including personal care costs, loan payments and debts. The wife’s children’s needs were entirely borne by the wife without contribution from the husband. There is no evidence that either party contributed a disproportionate share of the cost of the household. There was no evidence that either party subordinated his or her career for the benefit of the other. There was also no evidence of economic merger for joint goals or projects save except for a cottage renovation. Also there was no evidence that either party suffered a disadvantage as a result of the relationship.

The court in the end advised that the wife was not likely to succeed at Trial and as such refused an Order for temporary spousal support.

While the author has some difficulty with this conclusion after a seven year marriage, this is clear evidence that the granting of spousal support is not an automatic right and needs careful attention to detail.

One would think that being in jail and obviously not working would be a pretty strong argument as to why one should not have to pay child support due to a lack of income.

The court often does not abide by that rationale and, in many circumstances will find that one’s misbehaviour leading to incarceration is simply a self-imposed limitation and should accordingly not be recognized. However, the court is not blind (generally) to common sense. Where one is jailed, and that is a derivative of mental health issues with a background of limited employment whether in or out of jail, the court has the discretion to deny this dynamic. An example of this on an interim motion was exhibited by Justice Minnema in Sheridan v.Cupido. A cautious approach to income is appropriate on temporary motions for child support. Imputation may not be appropriate if a parent is unable to work for mental health reasons. That is what Justice Minnema held in this case.

One of the basic compondentsof a Separation Agreement that will withstand a later attack is having made full financial disclosure of ones’ income, assets and debts as of the time of the agreement.

It is foolish to hide assets or income from ones’ soon to be former spouse in the hopes that they will be tricked into accepting less than that which they are entitled to.

It is one of the basic precepts of fairness and a statutory condition contained within the Family Law Act.

There are many ways of satisfying that disclosure, however the more extensive the disclosure, the greater the likelihood of making the agreement bulletproof.

Some lawyers regularly insist upon sworn financial statements being exchanged. For persons of more modest means, our office will often attach a schedule detailing those assets, debts and liabilities right into the very agreement.

Often a dissatisfied spouse will attempt at a later date to set aside an agreement on the basis that there had not been such disclosure. This often starts a fishing expedition in not only finding investigating the assets and debts at the time of separation, but even as of the date of the attack.

The attacking party should understand that their own lawyer’s file as of the date of separation is fair game to be opened up and reviewed.

If your own lawyer warned you either that the agreement you were about to sign was unfair and/or that the disclosure provided was insufficient, then this can be fatal to such an attack. As the Court of Appeal stated in Butty, a 2009 decision, one cannot sign an agreement in the face of clearly insufficient disclosure, which you are well aware before you sign the agreement yet chose to sign it nonetheless.

By analogy, the same applies with respect to strong warnings from your own lawyer that an agreement is against ones’ own best interest.

The Family Law Act for married couples (not common law) contains a formula for the division of property upon separation. Sometimes simply applying that formula, especially when one person brought into the marriage the matrimonial home, can produce an extremely unfair result. The Family Law Act does provide a provision for a division other than strict adherence to an equalization of the parties’ net family property (at times this can result in simply an equal division of everything). In grossly simplistic terms something other than an equal division.

One of the factors pointed out in the Family Law Act is cohabitation of less than five years. Note the Act uses the word cohabitation and not marriage. So if you are only married for a single year, but that follows four years of living together, one would fail to meet the five year period.

So then what does the court do when you are faced with a relationship of less than five years?

While the law, as stated at its judicial highest, such as by the Ontario Court of Appeal in Serra holds that there is no formula, this often is an impractical and far too expensive a process to abide by. The court has a wide discretion and there are numerous cases applying that discretion in many different ways.

However, the practical solution often is to simply use a percentage in this sense that if five years equals 100% of an equalization payment, every year short of that reduces it by 20%. There are numerous cases that exercise that such as Gomez v. Mchale,Sarcino,Kucera, and Kruschenske.

The law states that the process is subtle,variable and sensitive to numerable factors. However, few of us can afford to have those factors explored at the end of a long hearing. Lawyers in the best interest of our clients frequently look to use the crutch of a mathematical formula that has some judicial legitimacy.

In the recent decision by Justice Lococo of the Ontario Superior Court of Justice in St. Catherine’s, he rendered a decision after a 14 day hotly contested Trial. Numerous issues were percolating on the Judge’s stove, including retroactive child/spousal support, the income of the ex-husband, access and costs.

This couple were together for less than six years and bore two children. The husband’s income was found to be in the range of $300,000.00 to $600,000.00 per year, yet the couple felt that it was appropriate to settle matters between themselves without the assistance of lawyers and using an online Separation Agreement.

This case Witt v. Witt in which the wife largely acted for herself at the Trial could not have been more contentious, more fractious and quite frankly more destructive.

The failure of having a properly drafted Separation Agreement left open many a question that the husband certainly thought had been finally resolved when the homemade agreement was signed. This is not a matter in which one party attempted to trick the other, but the lack of specificityand terms that one would normally find in a professionally drafted agreement were completely absent in the homemade one.

This leads to the frequently asked question, are homemade Separation Agreements valid? The answer lies in whether or not they are ever challenged. In the absence of a challenge, these agreements generally survive. But quite frankly, this is nothing more than a reflection of the level of cooperation between separating spouses in which an existence of a written agreement is almost academic. Parties made a bargain and are abiding by it. However, if the real goal is to have finality, a homemade agreement is far down on the list of how one should obtain that desired result.

One can only imagine the costs that the Witts found themselves incurring. The Witt Trial included expert reportson income, and custody/access, along with attacks on property division and numerous complicated issues.

It also featured a frequent dynamic observed by the author. An enlightened and children first approach by separating spouses rarely survives when a former spouse publically begins a relationship with another. Frequently all rational thought evaporates and emotions previously checked are unharnessed.

In the Witt case, rational priorities as to the best interest of the children gave way to secondary feelings that are not beneficial and indeed became quickly destructive.

One would have thought in a family in which the relatively modest legal fees surrounding a properly drafted agreement should not have been a problem would have indeed been incurred. Perhaps the Witts thought that the less formality the more amicable the atmosphere would have been surrounding the separation. A dangerous assumption, especially when one intends on starting a new relationship.

The case also featured highly contentious access exchanges being videotaped, which in turn were described as being counterproductive by Justice Lococo, yet admitted and taken into account in the Judge’s decision. The case also featured another frequent dynamic in which disciplinary steps being taken in one household is fuel for the other parent to allege child abuse involving outside authorities such as the Children’s Aid Society. Children lose their real position within a family structure and are empowered at far too young an age.

As the author has expanded in other blogs, custody and access disputes that reach as far as the courts are often the reflection of mental health on the part of one or both of the parties involved. I have no idea whether or not this applies in the Witt case, but that is my own personal observation.

It was necessary for the Judge to produce almost nine pages of directions on how child care was to be treated. One must appreciate that nine pages of rules and regulations imposed by a court are guaranteed to produce future problems down the road. No set of rules can meet all of the contingences of life. What is needed is rational thought and behavior on the part of parents, even if they are separated, that place the best interest of the children first and foremost. Any Judge will readily concede that a settlement, especially with respect to children, is far preferable to one imposed by the court.

This decision is a ready example of the wonders of family law. Emotion meets money meets children. Why would any lawyer or Judge chose to be part of such a process unless they feel on some level that they are helping the parties that they represent or are adjudicating over?

Spousal support while still solely at the discretion of the courts has a statutory starting point, namely the Spousal Support Advisory Guidelines (“SSAG”).

The courts have held that the SSAGs should always be the starting point and a Judge must indicate why he or she is diverging from that perspective.

The SAGGs not only provide a range of spousal support, but a suggested duration taking into account a number of factors, including the age of the parties, the length of their relationship and whether there are any children of it.

After a lengthy marriage, the separating parties often agree to indefinite spousal support appreciating that it will be a long term obligation with no specific end date.

The agreement, if there is a Separation Agreement, would be the launch padfor determining whether or not and under what circumstances support should end. If the Separation Agreement simply contains a standard clause referred to as a material change in circumstances clause, then one must prove that there has been such a change. A material change is one in which the status quo has changed to a significant degree and one asks the parties and in absence of an agreement for the courts to come up with a new Order for support.

The issue of retirement often is looked upon as such a material change in circumstances. It stands to reason that when one stops working with a commensurate severe reduction in incomethat should be a material change in circumstances. In the recent decision of Justice Horkins in Angulo, a husband upon obtaining the age of 68 sought an end to spousal support that he had been paying for 17 years. His former wife had little in the way of income and the husband’s second wife was gainfully employed earning in excess of $100,000.00 per annum.

There was nothing medically pressing that was forcing the husband to retire, he simply felt that enough was enough and that continuing to work was too physically and mentally demanding.

The court ultimately agreed with the reasonableness of the husband retiring at age 68 from his job at a bank and there was no obligation for the second wife to contribute towards the first wife’s spousal support.

There are lessons for many and for once it would appear that common sense has prevailed at the judicial level. One cannot help but feel empathetic to the first wife living on a meager income, but support often cannot be looked upon as a permanent pension except when separating from a person of great financial means.