The Many Basic Principles Of Custody

Date: 03 Feb, 2019

The following is an effort to provide a non-exhaustivelist in the most basic and summary of fashions of the laws that apply to custody and access in Ontario.

  1. The primary principle, the primary directive if you wish, is incorporated in section 24 of the Children’s Law Reform Act, the best interest of the child.
  2. Joint custody: one should look at the Ontario Court of Appeals decision of Kaplanis 2015 and Giri v. Wenteges One needs:
    • Evidence of historical communication between parents.
    • Not ordered in the hope joint custody will improve communication.
    • Just because both parents are good, does not mean joint custody is correct.
    • Just because one parent says we cannot communicate is not a bar to joint custody.
    • The younger the child,the more important communication is.
  3. Note in these circumstances, joint custody can also be referred to asshared custody.
  4. The child should have maximum contact with both parents; Gordon v. Goertz 1996 Supreme Court of Canada.
  5. Presumption: regular access by noncustodial parent is in the child’s best interest. It is the child’s right to visit and have an attachment to the noncustodial parent and this right is so important that it is only to be lost in the most extreme of cases; Dadar 1996 New Brunswick, QB.
  6. Supervised access is not supposed to be a long term arrangement for the child. Helpful if require reintroduction to parent or temporary safety concerns; Najjardizaji v. Mehrjerdi 2004 Ontario Court of Justice.
  7. A report by the government agency: The Office of the Children’s Lawyer is not an expert report. The author of an OCL report is a fact finder.  The OntarioCourt of Justice Act, section 112 on behalf of OCL may make recommendations, but these are only a starting point, not the last word. Ganie v. Ganie 2015 Ontario Court of Justice.
  8. Even an assessor’s views under section 30 of the Children’s Law Reform Act is not the last word, but simply one piece of evidence for the court to consider. The court is the final determiner, no assessor or expert is; Woodhouse v. Woodhouse 1996 Ontario Court of Appeal.
  9. Access is right of the child: responsibility of custodial parent to facilitate that access; Scrivo v. Scrivo 2012 Ontario and Tran v. Chen 2012 Ontario.

Parental Alienation Reconciliation Counseling

Date: 30 Aug, 2018

The law is influx on this point. The author would not be surprised if within a year that the courts’ views will shift again.

The courts continue to throw a substantive resources at a problem that defies solution, namely the alienation between child and parent following separation.

When the whole of a family is torn apart, the ragged edges of the division chew up emotions, goodwill and family cohesion. Scars are left on all concerned, including the children.

Those scars can leave for various reasons difficulties in a continuing relationship between parent and child. The trust that the child had in the family unit is completely disturbed and at times children, who can be very moralistic and judgmental,will find one parent wanting. At times, with the prompting of one parent or another, the children may have extremely strained or completely alienated relationships from one of their parents.

This leads to finger pointing. Is it alienation on the part of the custodial parent or as often responded is the alienation actually caused by the other parent’s conduct?Is it alienation or is it estrangement?

Extremely difficulty to rectify. The courts are driven by what is in the child’s best interest and the primary belief that the child should have a strong relationship with both parents for their sense of self-worth. One clumsy solution is reconciliation counseling. The concept is a multi-day therapy intervention program such as Families Moving Forward. This is a Toronto based program that attempts to repair relationships where there has been alienation.

This is an expensive process and its results are uncertain. The question is whether or not the court has the authority to force a parent to attend such a program. The decisions are all over the map. A senior judge in Thunder Bay, D.C. Shaw in Barrett vs. Huver felt that there was limited authority for the court to order attendance and participation inreconciliation counseling. In another decision E.T. vs. L.D., a court of equal seniority held a contrary view. In the Williamson case of the British Court of Appeal it felt that only with expert evidence would the court order family reunification therapy. We also have Justice Jarvis’ decision in Testani, who felt that there was such jurisdiction within the court. The Ontario Court of Appeal weighed in on inKaplanispointing out the absence of any specificlegislative authority. However, there remainsthe courts inherent jurisdiction, as parenspatriae, also known as the court remaining as the ultimate parent of all children within its jurisdiction.

Another wrinkle is whether or not participation in a reconciliation therapy program is a medical treatment, which requires one to consent to under the Health Care Consent Act, Section 10.

We conclude with now retired Justice Quinn, whom in this author’s view is the Canadian Lord Denning. For those who still have all of their hair and eye sight, I explain who Lord Denning was. Lord Denning was a senior English judge, famous for broadening the law in many different areas and writing insightful and ground breaking decisions. Lord Denning had an almost cult following amongst lawyers throughout the Commonwealth. While Justice Quinn does not enjoy similar fame, his numerous illuminating decisions especially in the area of family law are legendary. Justice Quinn in the Brunie decision, pointed out the limitation of the courts in dealing with parties in high conflict custodial and access problems. “The function of family court is not change people, but to dispose of their disputes at a given point in time. I preside over a court not a church”.

If I may paraphrase Justice Quinn, the judicial system is severely hobbled in dealing with human problems of desire, conduct and goodwill. It is good at moving money around, not so good in adjusting one’s soul and temperament.

Capital Reserve and its effect on determining Income for Support Purposes

Date: 12 Aug, 2018

A capital reserve can be described as a portion of a businesses’ capital/income that is needed to sustain the business itself and is not available for the purpose of funding support. This is touched upon in both Section 12 and Section 18 of the Child Support Guidelines. As readers of this blog are aware, the Child Support Guidelines are a federally mandated method of determining the amount of child support to be paid. This was an effort by Parliament to eliminate the wide variety of child support being ordered across the country. Simply put, if you make this much money, you will pay this much in child support. That of course is a vast over simplification and there are many exceptions and factors to be taken into account. One of those factors is for individuals who are self-employed or earn their income from a business, what money is available to be taken from that business to fund support.

Support payors can attempt to shelter profit by leaving it in their company and not drawing it and declaring it in their personal hands. The courts have the ability to go beyond what is simply being declared to determine what income realistically is available. One of those considerations is monies needed for a capital reserve. Alternatively what is needed to sustain the company as a viable enterprise. Often companies need to qualify for operating lines of credit from banks. Those banks may impose a term that the borrowing company maintain a minimum amount of cash reserves on hand.

As is usual with family law, that which appears to be simple,can actually be far more complicated.

Changes to Divorce Act Proposed – No More Custody

Date: 29 May, 2018

On May 22, 2018 the Federal Government introduced Bill C-78.

It’s most important provision is removing the term “Custody” and “Access” from a court order replacing them with “Parenting Orders” in which parenting time and decision making is allocated between the parents.

As always, the only factor for the court to take into account is the best interests of the children.

This is both a symbolic and superficial change.

We have long advocated that the terms “Custody” and “Joint Custody” are largely superficial gift wrapping and that the real power lies in the details of any court order or agreement that follows. The actual division of time and who bears responsibility to make important decisions regarding the child/children’s schooling, the ability to move and making health decisions are where the real power lies in any agreement or order.

Of course, all of this should be completely irrelevant. In an ideal world, parents who recognise that they can no longer be together should work co-operatively in advancing the best interests of their children. Life produces many immediate changes and demands for the care and upbringing of children. Common sense should prevail in what is best for a child without having to look at the terms of a separation agreement or court order. But, this is not an ideal world and, in an ideal world there would be no such thing as a family law lawyer.

The proposed amendments to the Divorce Act also encourages the use of facilities outside of court to resolve problems, such as family mediation but alas there needs to be enabling legislation by the Province of Ontario which as of yet does not exist.

Another important area that the proposed law deals with is the area of “mobility rights” or simply put, moving the residence of the child and the custodial parent. The Supreme Court of Canada in Gordon v. Goertz provided some guidance however, the new bill proposes a set of uniform rules to assist the court in determining whether or not a parent may move with a child/children. There are important requirements for notice to be given to the other parent when a move is anticipated.

The reason for the proposed move becomes a paramount consideration for the courts in determining whether or not such a move is to be permitted.

The proposed Act also provides for a new Judicial power namely, “Contact Orders” for non-spouses and Grandparents. This has been a mine field for the courts when Grandparents’ find themselves simply shut out from the close bonds they have formed with their grandchildren.

What the Act does not do, to the disappointment of fathers’ rights groups is insert the presumption of shared parenting.

Shared parenting as a starting position may not always work or be in the best interests of the children. However, in this writer’s view, the courts have been promoting ever more frequent and extensive contact between the non-custodial parent and child, often the father.

Of course, all of this is only proposed and we will know by the end of the year what the actual Act will look like.

Hague Convention – Habitual Resident International Custody Disputes

Date: 29 May, 2018

The “Lion” of family law Mr. Philip Epstein publishes a weekly Family Law newsletter. This essential reading is a critical resource for family law lawyers in Canada seeking to keep up to date on the latest judicial developments.

Mr. Epstein, in his recent newsletter took the Supreme Court of Canada to task and especially now retiring Chief Justice McLachlin, for their recent decision in Office of the Children’s Lawyer v. Baled.

As readers of this blog may be aware, a number of countries are signatories to the Hague Convention dealing with custody disputes that cross national borders. Most countries of the western world are signatories. One of the starting points of such custody disputes is determiningin which country the custody contest be waged. This in turn revolves around the determination of the child’s “habitual residence”.

The courts across Canada have until now used the “parental intention” approach. In essence, where had the parties intended the primary residence of the children to be? As an example a move by one parent to another country for one year for schooling did not meet the parental intention approach.

However, as a result of this decision, the Supreme Court of Canada has now manufactured the “hybrid” approach.

In OCL v. Baled, the family had lived in Germany and the mother then brought the child to Canada for the purpose of a one year visit. The mother refused to return the child and that began a lengthy custody fight. Even though the child did eventually return to Germany before this matter was finally decided by the Canadian courts, the Supreme Court of Canada decided that it was important to weigh in with their view.

Justice McLachlin, writing for the majority felt that this “hybrid” approach requires the trial court to not simply look at what was the parent’s intention, or whether or not the child was now happy in the new jurisdiction but throws the matter open to all relevant considerations that apply to the child and the child’s best interests.

Under the “hybrid” approach, no single factor rules but rather it converts the test to a child’s best interest approach and looks at the child’s habitual residence from that sole perspective.

Mr. Epstein rails lengthily and eloquentlyon how this approach manufactures projects for lawyers and takes relatively settled and predictable law and opens it to endless argument.

For family law lawyers, the most important point to remember is that the law has changed. Depending upon the financial resources of the parties involved this can change that which might have been simple, into a best interests contest.

Lump Sum Pension – Is It Income Or Property?

Date: 29 May, 2018

Recently Justice Trousdale in the case of Hewett v. Rogers had to struggle with how to treat a lump sum tax free payment of $345,000.00 to a veteran of the Canadian Forces.

This money was labelled as a lump sum payment as compensation for all the serious injuries and disabilities Mr. Hewett suffered as a result of his service.

The wife argued that this money should be treated as income spread over a 10 year period and as such would have a significant effect,increasing the quantum of support owed by Mr. Hewett.

Justice Trousdale rejected this and decided to simply spread out the $345,000.00 over the balance of the recipient’s life expectancy. The net effect was a relatively small increase in the quantum of support. While this case is statute driven, it represented an interesting approach as to how to deal with lump sum disability payments. These payments are the subject of numerous cases and judicial interpretation as well as a treatment under the support guidelines.

Seeking Retroactive Child Support

Date: 01 Mar, 2018

We have discussed this issue elsewhere on this website.

Of course, the leading case is the 2008 Supreme Court of Canada decision in B.D. vs. G. The court set out four factors:

  • Is there a reasonable excuse for the delay in bringing the application for retroactive support?
  • What was the conduct of the payor parent?
  • What are the circumstances of the children?
  • Will there be any hardship associated with the retroactive award?

In the interesting recent decision in McBean of the Alberta Queen’s Bench, a husband whose income had apparently risen dramatically was able to escape paying, what appeared to be a claim of more than a million dollars in retroactive child support.

The children at the time of the application were adults but were still dependent children and as such met the definition of children of the marriage under the Divorce Act. The wife lost.

She waited too long. The court looked at many different factors including the affluent lifestyles that all enjoyed.

In this legal mine field, nothing is simple and the courts need to weigh many counter balancing interests.

The main theme for all of this is, do not delay in pursuing child support when you believe the payor’s income has increased. If you delay it may very well be at your own jeopardy.

Support Vs. Costs

Date: 01 Mar, 2018

Seeking a Reduction in Support. Be Very Very Careful

One of the penalties of losing a court case are not only the legal fees you will have spent but a strong likelihood that the court will order you to pay a substantial portion of the winning side’s fees.

This becomes even more complicated in a family law contest. What if you have won significant costs against your spouse who brought a worthless court case against you? While you may be required to pay that losing spouse child and spousal support, he or she is otherwise penniless.

Are you able to set-off the costs that your losing spouse owes you against the child and spousal support that you owe?

The short answer appears to be, Yes, against spousal support and absolutely, No, against child support. It appears to matter very little that the net effect of this is that you will never collect the court ordered costs.

Often, the courts have stated that child support really belongs to the child and not the spouse even though they are the actual recipient.

This intersection of child support/spousal support and costs ordered against a losing recipient parent was reviewed by Justice Sheard in the Uriu case. There are a number of other cases on this point including Bemrose v. Setter of the Ontario Court of Appeal.

As always, the courts have a discretion to do whatever they wish but generally observe the guidelines set out above.

The Tort of Conspiracy

Date: 05 Feb, 2018

In very complicated files, it can sometime pay to seek help from the court by bringing in a civil claim, formally titled the tort of conspiracy. A Tort is a civil wrong such as negligence or breach of contract. One would ask the court in their application that various additional persons are jointly and severally liable to pay damages to the Applicant as they all conspired and/or were involved in some wrong. Often that wrong is sheltering or concealing the other party’s, ie. husband or wife’s income and/or assets to deprive the other spouse and her children their respective support entitlements or equalization payment.

If one thinks about it, it is not that uncommon for people with some money who participate in a family business to have intertwining business interests. Often, the family will rally in support of their family member in the event of a divorce. The ex-spouse will be portrayed as greedy or threatening of the family business. There can be a strong temptation to hide or minimize the involvement or wealth of their sibling or relative.

Conversely, it is not difficult to envision that such a suspicion, even if unfounded will arise. It is always remarkable that the trust and love between spouses that was intense enough to create a human life, upon separation dissolves into animosity, a complete lack of trust and a conviction that the other at all times is lying.

The facts that one would allege would be something along the lines that x alleges that y conspired with his parents or other family members to structure their business interests and income from the businesses, both just prior to separation and post separation with the intention of concealing, diverting and sheltering y’s assets and income to defeat and hinder x’s claims and entitlements to both child and spousal support. In particular y and his family members use various devices, trusts and corporate vehicles to conceal y’s true interests and entitlements to assets and income from an adjudication of support in favor of x. Further, through the structuring and creation of various trusts and after separation and through subsequent transactions between the corporations and trusts, they concealed and diverted significant assets and income that would otherwise be accounted for in the determination of y’s obligation to x for both the support of the children of the marriage and his or herself.

Allegations such as these are relatively easy to make, extremely difficult, complicated and complex to prove.

The standard defence to such allegations if that they were made in the normal course, or for estate planning purposes, and there was no malevolent intent.

One could look at a couple of important cases as to what needs to be proved for a successful claim of conspiracy. One is directed to the case of D’,Agone v. D’, Agone, a 2017 decision of theAlberta Court of Appeal and obviously following the Superior Court of Canada case in Canada Cement LaFarge Limited v British Columbia Lightweight Aggregate Limited. The tort of conspiracy requires the Defendants to have an agreement to engage in a course ofconduct with a predominant purpose of injuring the Plaintiff or if the conduct of the Defendants is unlawful, to have acted knowingly or having ought to have known that injury to the Plaintiff is likely to result. The scope of the tort of conspiracy is far from clear and it may be found where the parties combine and effect loss in the following manner:

1. Whether the means used by the Defendants are lawful or unlawful, the predominant purpose of their conduct is to cause injury to the Plaintiff or where the conduct and the Defendant is unlawful, the conduct is directed toward the Plaintiffs and the Defendants should know in the circumstances that injury to the Plaintiff is likely to result. If the action is unlawful, there must at least be evidence that the conspirators knew or ought to have known that their action would injure the Plaintiff. This has been described as constructive intent.

The Alberta Court of Appeal went further in Maraiche Investment Corp. v Paul in a 2012 decision which summarized the tort as being:

1. An agreement between two or more persons;
2. Concerted action taken pursuant to the agreement;
3. If the action was lawful, there must be evidence that the conspirators intended to cause damage to the Plaintiff;
4. Actual damage suffered by the Plaintiff.

The agreement may be inferred and need not be in any specific form or even constitute a binding contract. Proving an agreement to a conspiracy is often dependent on circumstantial evidence. However, to be party to a conspiracy, more than mere knowledge that a conspiracy exists is required. The facts that the alleged agreement must be known and intention to be part of the alleged agreement must be found. There must be intentional participation with a view to furthering the common design and purpose.

An unlawful conspiracy requires the alleged co-conspirators to do something contrary to law to further their agreement. This can include fraud, perjury or breach of a court Order.

The third characterization of civil conspiracy includes knowing, assistance and breach of trust. This requires that there be a trust and that the trustee perpetuate a dishonest and fraudulent breach of the trust and that the Respondent participate in actual knowledge of the trustee’s dishonest and fraudulent breach of trust. The knowledge required for this type of liability is actual knowledge, recklessness or willful blindness will also suffice.

Our office has been involved in many cases in which friends and families of the other spouse have actively assisted in hiding and concealing assets. The downturn to all of this is the incredible legal fees that are involved. In the recent Ontario Superior Court of Justice decision of Justice Faieta in Leitch v Novac, no less than seven lawyers were involved in acting for the numerous parties involved in the lawsuit.

Clearly, this particular case involved millions of dollars. However, in Justice Faieta’s decision, which arose from a motion dealing with what emails and evidence should be produced, but having no real substantive impact. In other words there was no decision that money move from one person to another, nor was any support or division of property decided. This was simply on a preliminary point as to what documents were to be released. That process involved seven lawyers, produced a many foot high column of paper for the court to digest, and legal fees that this author estimates well in excess of $100,000.00. I would not be surprised if it was $200,000.00. This was war by attrition.

The husband, who was at the receiving end of the wife’s rath, clearly had acted like an absolute idiot. When the wife asked the husband after separation to pay for a $354 dental bill for one of their children, he in a scrooge like response indicated that he did not have the money, that he had less than $1,000.00 in his bank account. However, later bank records show that he had almost three quarters of a million dollars in his account on that day. A little bit of generosity can often avoid the trench warfare that this insane court action makes obvious.

As evidence of the voracious appetite for legal fees that these complex cases can produce, the wife told the court that even though she received one million dollars from the sale of the matrimonial home, the vast majority of that was gone to pay her living expenses and to pay for her legal and accounting fees in chasing her husband.

Despite the inference that the husband and his family were wealthy people and that a relatively fat target was being hunted, the court basically pleaded with the parties to settle their differences and offered to make arrangements for judicial assistance in providing in essence mediation.

So what have we learned, aside from the usual repetition by this author of how in absence of common sense, grafted to an ill motive by one of the parties, can lead them down the path of financial destruction or a war of attrition. Perhaps indeed that is the husband’s motive in the case at point.

We have also learned about some of the technical factors involved in making an allegation of the tort of conspiracy. However, one’s lawyer needs to be careful before pulling the trigger on such an allegation. It will by definition increase the numbers of lawyers that are involved, the legal fees that that will engender for all and cast a very wide net by way of disclosure and the paper trail that is being chased.

Justice Faieta’s decision is an excellent summary of what is relevant documentation, how is to be provided and also, some tips in dealing with electronic discovery. The issue of search terms became an important tool in the review of over four hundred thousand emails that were hoped to be produced and synthesized in this case.

This fish net would have hauled up as many discarded rubber boots as prime cod and one can imagine the effort that would be required in actually reviewing even a few thousand emails, let alone the four hundred thousand that were being pursued in this case.

Be careful what one wishes for and choose one’s potential spouse carefully. It is a life long obligation whether or not the marriage succeeds or not.

Seeking a Reduction in Support. Be Very Careful.

Date: 25 Jan, 2018

We are frequently consulted by clients seeking a reduction in either child or spousal support. They may come armed with the fact that a child is no longer attending school or the other spouse is now living with a new partner and seek a reduction in support.

It is not that simple and, one needs to be careful what they wish for.

What our clients frequently ignore, and we counsel them to be extremely careful about is the big picture. Once you open Pandora’s box of support that has been and should be paid, all the factors between the parties come into play.

Has the payor’s income increased since the date of the original order or agreement?

In light of the payor’s present pay, what type of support would the Child Support and Spousal Support Guidelines trigger? If one has, what in hindsight is a better than what the courts would normally grant deal, trying to shake the tree so as to have the last apple fall from it, can be a short-sighted effort.

You need an experienced family law lawyer to examine the big picture before deciding whether or not to pull the trigger on seeking a variation from the courts.

This scenario was played out in spades in the recent Ontario Court of Appeal decision in Slnogo. Mr. Slnogo, quite legitimately felt that his entitlement to pay child support for a 20 year old that was no longer attending school on a full time basis and was obviously over the age of 18 should come to an end.

On that legitimate basis, Mr. Slnogo ate the poisoned apple. He sought to eliminate child support. He also attempted to rely on the fact that he had received a lucrative early retirement package at age 53.

While Mr. Slnogo found an empathetic judge at the motion level, he did not do nearly as well on appeal. Mr. Slnogo took a circumstance in which he was required to pay spousal support of $2,650.00 per month and, by the time that the appeal was finished it was retroactively cranked up to $20,000.00 per month and then a percentage of his income from 2014 onwards.

In this case we have the intersecting issues of early retirement and whether or not that is a material change in circumstances sufficient to justify a change in support. This has been spoken of in other blog articles.

Mr. Slnogo not only received his early pension payout which exceeded a million dollars but was also able to continue to work for his former employer as a consultant at $150.00 per hour.

Who gave this gentleman advice to actually pull the trigger on seeking a variation?