Complying with Financial Disclosure in Family Law Proceedings

Date: 03 Nov, 2015

Thumbnail-LogoThe obligation to comply with financial disclosure orders in a family law proceeding is a serious one. It may seem obvious that full and frank financial disclosure is the starting point with respect to any discussion or negotiation of issues arising out of separation such as child support, spousal support, and equalization of property. However, not all family law clients are open and honest with their lawyers, making it difficult to comply with such disclosure orders.

This important issue was raised before the Ontario Court of Appeal in Roberts v. Roberts, 2015 CarswellOnt 9247 (Ont. C.A.). In this case, the husband did not comply with three court orders for financial disclosure. The lower court struck his pleadings and allowed the wife to proceed with an undefended trial. The husband appealed, and much to his surprise, the Court of Appeal upheld the lower court’s decision.

Justice Benotto, on behalf of a unanimous Court of Appeal stated:
The most basic obligation in family law is the duty to disclosure financial information. This requirement is immediate and ongoing.
Failure to abide by this fundamental principle impedes the progress of the action, causes delay and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled. Financial disclosure is automatic. It should not require court orders – let alone three – to obtain production.

The power to strike out the pleadings is to be used sparingly and only in exceptional cases. This is such a case. The appellant’s conduct in ignoring court orders and failing to follow the basic principles of family law litigation put him in the exceptional category of cases where the judge’s discretion to strike his pleadings was reasonably exercised.

Recently, the Ontario Family Law Rules have been amended to provide for the production of immediate financial disclosure to the opposite party via the requirement to file a Certificate of Financial Disclosure. The Roberts case teaches us that a court will not look favourably upon a party who is not upfront and honest when it comes to financial disclosure. Moreover, it is counsel’s duty to make it clear to their clients that they cannot play hide and seek when it comes to providing relevant financial disclosure. The repercussions of not doing so can be significant and expensive.

Do Grandparents Have Automatic Rights to See Their Grandchildren?

Date: 13 Jul, 2015

Thumbnail-LogoAccording to the Ontario Family Law, a grandparent does not have an automatic right to see a grandchild. It is generally up to the child’s parents to decide whether the child will see a grandparent or other extended family members. Although there have been efforts to make grandparents’ rights a priority for the court, the law maintains that a grandparent is legally in the same position as any other non parent who has a close relationship with the child. The rights of the child’s parents, including their right to decide who has access to the children, are assumed to be much greater than grandparents’ rights.

In a recent case before the Ontario Superior Court of Justice, namely, Nichols v. Herdman, 2015 CarswellOnt 9262 (Ont. S.C.J.), the grandparents sought access to their young grandchild aged two. Prior to the conflict, the grandparents had a close relationship with the child and helped care for the child regularly. However, a conflict escalated between the mother of the child and the grandparents, which resulted in the mother cutting off all ties between the parties.

Justice Stevenson found that although the grandparents had a positive relationship with the grandchild, and while the decisions of the parents had jeopardized the relationship between the grandparents and the grandchild, the parents did not act arbitrarily or not in the child’s best interests.

It is quite clear that these kinds of cases do not belong in a court room. These matters belong in the capable hands of a family therapist and/or mediator who can understand and work with the conflicting views, whilst trying to maintain some kind of a relationship between the grandparent and the child without shattering all the relationships involved.

CAN MY CHILDREN SPEAK TO THE JUDGE

Date: 29 Oct, 2014

30 years ago, it was not uncommon for a Judge to ask to speak to the children directly alone in his office.  We are of course speaking in the context of an access or custodial fight.

This went out of favour and was replaced with the children having either independent lawyers representing them (rare and expensive) or a Government Agency called the Office of Children’s Lawyer (“OCL”).  The OCL may appoint either a social worker or a lawyer to represent their views.  This insulates the children from the judicial process.  Recently, the trend has reversed and some judges are indeed asking for an opportunity to speak to the children.  In a recent decision by the highly experienced Justice Perkins of the Ontario Superior Court of Justice, he spoke to the 15 and 13 year old children in his office only in the presence of a lawyer from the Office of the Children’s Lawyer.  The issue at hand was whether or not the mother could move with the children and the judge was pleased with the opportunity he had to speak with the children directly and the information that he gleaned.

This is not the most common of outcomes, however in the appropriate case, this is a step that can be explored.  Justice Perkins interviewed the children in the presence of their lawyer and while the meeting was recorded, the children were told that their views would be kept confidential unless they authorized the judge to release the information to the parents.  The judge stressed to the children that they were not the decision makers, but that the responsibility to determine the children’s best interests rested in the hands of the judge.  Another discretionary step.

A Parent’s Actions Cause the BCSC to Cancel Child Support Obligations

Date: 07 Mar, 2014

Child support is the right of the child. The obligation to pay child support is an obligation the parent paying support owes their child. This is based on the idea that parents have a responsibility to pay for their children. A parent with custody of the child is typically already paying for the day to day needs of the child. A parent without custody can expect to pay child support in line with their income and the number of children they have. Generally speaking, the situation of the other parent is immaterial in determining whether a child support obligation exists and how much is owed.

In Hughes v Hughes[1], the BC Supreme Court canceled a father’s child support requirements because of the actions that the child’s mother took. This circumstance is very unusual because it seems to fly in the face of the idea that child support is the right of the child. In Hughes, the father was appealing a decision on his application to have his accumulated arrears of child support canceled. At the time of the appeal, the father owed over $32,000 in accumulated arrears of child support. He stopped paying after the mother took the child to Italy, denying him the reasonable access he was entitled to. Throughout 2009 the mother failed to return the child to Vancouver. She was found in contempt of court twice, ordered to pay $1500 in fines and costs, ordered imprisoned for 10 days and a warrant for her arrest for breaching the custody order was issued. However, she never returned, paid the fines or spent time in jail.

In 2010 the father stopped paying child support and the amount owing began accumulating. The mother remained in Italy and repeatedly refused to return the child to Canada. The BC court awarded the father sole custody of the child even though the mother was still in Italian. For this reason, the BC court still required the father to pay support. Child support is, after all, an obligation to pay for your children. The idea was that the child support would prevent the child’s mother from saying she couldn’t afford to return the child to Canada. This never happened and the father refused to pay. The mother continued to show contempt to the BC courts. Therefore, the BC Supreme Court took the unusual step of canceling the child support obligations because of the actions that the mother had taken.

This case highlights an unusual set of facts that led the court to cancel child support payments because of the actions of the parent. This contradicts the idea of child support being an independent responsibility that the parent owes to their child. This case is noteworthy because it is so unique. The lesson that the BC Supreme Court is trying to send is that repeatedly showing contempt for court orders and not complying with decisions can lead to a loss of child support.

Child support matters are often complex and emotionally charged. This reality is only increased when one parent decides to violate a court order on custody and access rights. The lawyers at Dale Streiman Law LLP have over three decades of experience dealing with these issues. They are experts in all facets family law. They can help you with your child support issues in an effective and efficient manner.

For information on child support in Canada, please visit the Ministry of The Attorney General’s Child Support Page at http://www.attorneygeneral.jus.gov.on.ca/english/family/divorce/support/default.asp or the Dale Streiman Law LLP section on child support at child-support-and-changing-the-amount-of-supportm

IN A DIVORCE CAN CHILDREN TESTIFY IN COURT?

Date: 06 Mar, 2014

There is no legal prohibition, rather only a strong judge made tradition that children do not give evidence at trials, motions or even case conferences. This trend has strongly existed for the last twenty years, however, when I first began practicing in the stone age, it was not that rare. A judge would bring the child(ren) into their private office for a little chat, to get a better sense of the issues directly relating to the children such as custody, access and summer plans.

However, this has been poo pooed by the court for many years. There are very good reasons for doing so. If a child is forced to take a side, there may be unfair repercussions to that child at the hands of the parent they may have spoken badly about. It forces a child to make a choice when the vast majority of children of separated parties do not want to get in the middle and what they want are their parents to make the decision and for everyone to be happy.

Another strong reason for not having direct interviews by judges of children, is that there already is a formalistic process for the children’s evidence to be put forward. There is a large underfunded government agency under the umbrella of the Attorney Generals Office, known as the Office of the Children’s Lawyer. It is funded by the tax payer and upon the Order of the court and the approval of the Office of the Children’s Lawyer, it can appoint a lawyer and/or social worker to interview the children and put forward their views before the court. The Office of the Children’s Lawyer is only able to operate because of lawyers and social workers who sacrifice their normally much higher hourly rates to work in this field, generally because they feel strongly about advocating for children and are willing to accept far less than the normal hourly rate to perform this important function. The problem with the Office of the Children’s Lawyer is that that very lack of funding causes systemic delays. From the date that the court orders the Office of the Children’s Lawyer to become involved, until a report is actually available, can translate into a process of six to nine months. The Office of the Children’s Lawyer can say no.

An investigation and report by the Office of the Children’s Lawyer almost always end in a disclosure meeting. That is a process whereby all of the parties, their lawyers and the lawyer and social worker from the Office of the Children’s Lawyer meet, and their report is provided. A disclosure meeting often can take two to three hours.

Contrasting all of that in some rare circumstances, one could envision a process whereby a judge would merely meet with the children in his or her office, ask their views and preferences on an issue and be able to render an opinion. This makes sense if the issue is straight forward but can suffer from many pitfalls, including a snap decision by a judge after meeting with the child for only a few minutes.

There is a small murmur of a trend whereby judicial interviews with children has resurfaced, however, it is still very much so the exception rather than the rule.Frequently, the clients at Dale Streiman Law LLB, especially in alleged parental alienation cases, complain bitterly of the inability of their children to speak to the judge.It is not a simple process or question, and requires an experienced hand to guide what is in the best interests of an individual client.

By:Fred Streiman

Fathers fighting for custody of their young children give up, it can be

Date: 06 Mar, 2014

In family law matters, we are met frequently with the commonly held assumption that fathers have no chance of obtaining custody of their children, particularly those under the age of 5. Dale Streiman Law LLP has extensive experience in this area and is home to highly qualified family law lawyers.

The January 5th, 2012 Ontario Superior Court of Justice case of Hong v. Rooney, a decision of Justice McGee is an illustration of the opposite.At the time of separation, the parties had one daughter 20 months old and at the time of trial, 4 ½ years old. The child lived with the mother up until the time of trial.The father presented evidence as to the inadequacy and indeed the irrationality of the mother. The only parties who gave evidence at the Trial were the parents themselves and the husband’s brother.

The court made its decision based upon the particular facts of that family dynamic and interpreting the appropriate sections of the Family Law Act and the Children’s Law Reform Act. The court based upon the individual facts of that case found the mother not acting in the child’s best interest and that she would not foster a relationship between father and child, and that indeed she was dismissive of the father’s role as a parent. The court went on to say that this was not a matter for which joint custody was appropriate, as the mother clearly in the court’s view would not collaborate in decision making or consult with father.

The mother was a terrible witness. The Judge found her to be completely unreliable and non-believable. The mother made extreme allegations against the father, including child sexual abuse and spousal violence. The court held that none of this was true and it was part of the mother’s attempt to manipulate the situation.

Family law Trials are relatively rare. However, when met with a psychologically unstable opposing spouse, there rarely is an alternative. The father was granted sole custody and was permitted to enroll the child at a school of his choosing. The mother was granted access on alternate weekends supplemented by other times throughout the year. The father was to retain the child’s passport. This case is an illustration of the court deciding what is in the best interest of the child and turning a blind eye to the gender of the parent that can best provide it.

By: Fred Streiman
Fred-Streiman

The Right to Name a Child

Date: 06 Mar, 2014

This issue arises frequently after a brief relationship or marriage which results in the birth of a child. An example of this conflict is a mother seeking at the outset after separation trying to expunge any reference to the birth father’s surname. The law with respect to this is governed by the Vital Statistics Act and highlights the importance of the Statement of Live Birth required thereunder.

Some mothers have registered their children in this fashion excluding any reference whatsoever to the birth father. At one time, the law appeared to be that such a registration was final. In a recent Ontario Superior Court decision Garland v. Brouwer, the court had to deal with such a situation to determine the appropriate surname of the parties two year old child. In that case, the mother unilaterally completed the Statement of Live Birth and made no reference to the father and had given the child her surname. The father who had remained active in the child’s life both financially and by way of access, asked for a hyphenated surname to be imposed. Nonetheless the court for various reasons including exercising its Parens Patriae Jurisdiction 1ordered that the child’s surname be amended to include a hyphenated surname.

Another important law is the Change of Name Act. Pursuant to section 5 of that Act, a person with lawful custody of a child may apply to the Registrar General to change the child’s surname, unless a court order or separation agreement prohibits the change. Only if the separation agreement requires the consent of the other, need the sole custodial parent seek the consent of the other. In other words, if you were concerned that your now estranged spouse who is about to be granted sole custody may change the surname of the child, you should attempt to have included in any court order or separation agreement a provision that bars this.

Parens Patriae Jurisdiction – the state in its capacity as provider of protection for those who are unable to care for themselves. Alternatively, the state is the ultimate parent.

Child Support for Adult Children

Date: 06 Mar, 2014

Many people may not know that child support obligations can, and often do, continue after the child reaches the age of 18. The concept of an adult child may seem like an oxymoron to some parents. They may think a child over 18 should support themselves financially. Other parents will continue to financially support their children well into their 20’s and perhaps even longer. The law of Ontario has recognized a need for child support for children over the age of 18 who are enrolled in full time school, they are adult children.

For the purposes of this blog post, I will only be looking at children who could become self sufficient but have chosen to remain in school even after they turn 18. Children who are handicapped by some disability that prevents them from ever being able to be completely self sufficient is another issue to be addressed in a future blog post. Adult children, therefore, are children over the age of 18 that are enrolled in post secondary education.

The recent decision in Kinshella v Kinshella by the Alberta Court of Queens Bench is useful to highlight how the court will deal with adult children for child support purposes. In that case there were two children, one over the age of majority and the second was turning 18 within a year. The first child, a son, had receipts for post-secondary education but never actually attended. The judge easily dismissed this claim for child support because he wasn’t really attending post-secondary education. The second child, a daughter, was hoping to enroll in a non-degree granting program after high school. This is the most interesting element of this case. The judge looked at program the daughter wanted to enroll in and found that it was largely for personal and spiritual development. It was not a program that would lead to a career. When looking at an adult child’s proposed program of study, the court will evaluate it based on whether it is achievable, realistic, and legitimate in relation to achieving a career goal. Programs for personal development may be important but they are not related to a career goal. Therefore, there is no obligation to continue paying child support for an adult child that is not enrolled in a course of study that will lead to a career.

Child support for adult children is an interesting field of family law that is still developing. Claims for child support for children over the age of 18 are certainly possible but it must be supporting a post-secondary education that is achievable, realistic and legitimate in relation to achieving a career goal. If you have questions about child support or how support obligations change over time, contact the lawyers at Dale Streiman Law LLP. They can help you resolve you child support issues in a timely and cost effective manner.