WHAT TO DO IN THE FACE OF A DENIAL OF ACCESS #2

Date: 21 Nov, 2019

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

WHAT TO DO IN THE FACE OF A DENIAL OF ACCESS

Date: 21 Nov, 2019

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. 

ACCESS DIFFICULTIES – WHEN THE CHILD REFUSES TO SEE A PARENT

Date: 21 Nov, 2019

In an earlier blog, we examined the important decision of the Ontario Court of Appeal in A.M. vs. C.H.  If our readers will recall, a mother ensured that her 14 year old son was alienated from and refused to have a relationship with his father.  Her behaviour was so outrageous that the Court removed the child from the mother, placed the child in the father’s custody in order that the child attend therapy.  However, as is evidenced of the limited ability of the judicial system to manage human behaviour rather than monetary affairs, the 14 year old child thumbed his nose at the Courts.  Since the order changing the child’s residence to the father all hell had broken loose.  Both parties filed fresh evidence before the court.  The mother breached the Court Orders and the Police had become involved.  The child assaulted his father, the child’s friend assaulted the father, the child ran away and the Police became heavily involved in the matter.  Finally, the child was arrested and as a condition of his bail he was required to have no contact with his father.  The child was then placed in a foster home that he refused to attend.  The child then became involved in a robbery in which he was assaulted and required surgery.  As the child was approaching his 15th birthday, the Court of Appeal felt that the more appropriate venue for dealing with this matter was a Trial Judge of the Superior Court.  An absolute horrendous mess and more than once this author has seen parents have been given no alternative but to abandon their relationship with their own flesh and blood in the hope that as time evolves, they will see the errors of their ways and once they become adults, will indeed wish to reestablish a relationship with the parent from whom they had been so alienated.  

The parent authoring the alienation rarely appreciates the consequences of their behaviour and selfishly takes pleasure in their hollow victory in punishing the other parent by weaponizing the child.  Again, evidence of mental health concerns being present in custodial fights. 

However in A.M. v. C.H., the critical dynamic may very well be the age of the son (14).  In our own office after a difficult fight we were successful in almost these very same circumstances (if anything even more horrific) in moving two children aged 5 and 10 from mother to father.   The children 5 years later are still with their father and are doing relatively well.   

ACCESS ORDERS – WHEN THE 16 YEAR OLD GIVES THE FINGER TO THE COURT

Date: 21 Nov, 2019

The Ontario Court of Appeal has been extremely busy in 2019 dealing with the problem of what to do with teenage children who do not want to abide by the terms of a Court Order.  The question of course is whether or not it is the child expressing legitimately what is in their own best interests or if they are simply the unwitting tool of a manipulative parent.  Justice Shore in the Reid decision had to deal with the question of potentially forcing a 16 year old girl to live with her mother.  The father had admittedly, and so had been found by the Court earlier in 2016, worked hard to alienate the child from her mother.  The father now baldly stated that the child of the age 16 was now of an age whereby she could live where she chose.  The child adamantly stated that she wanted to remain with her father. 

Justice Shore in the Reid decision did not have the benefit of the Ontario Court of Appeal decision in A.M. vs. C.H. that we discussed in two earlier blogs.  Admittedly the child, despite adamantly insisting that she wished to live with her father, was found by Justice Shore attempting to be a peacemaker between her parents.  Justice Shore clarifies that a 16 year old child is not absolved from following Custody Orders and cannot make their own decisions.  At the age of 16, a child can withdraw from parental control, an example being set out in L.N. vs. M.R.R.  a 2016 decision of the Ontario Court of Appeal.  As Justice Shore noted, “ that does not mean that every 16 year old can dictate whether they abide or ignore Court Orders with respect to custody and access or every 16 year old can withdraw from parental control.”  The Court of Appeal debated this in G.R. vs. G.K. a 2017 decision in which they noted that “…whether the Court will follow the wishes of the child, will depend upon the age and level of maturity of the child and will be subject to the Judge’s discretion as he/she seeks to determine the child’s best interests”. 

It is not open to the 16 year old to argue that she has withdrawn from parental control unless there is credible evidence of withdrawal from both parents, which is set out in L.N. v. M.R.R.   Justice Shore looked at all of the evidence, including the views of the child.  Justice Shore pointed out the obvious that the father had failed to meet his parental obligations and that the job of a parent is to parent. 

Justice Shore quoted Justice Aiken’s decision in Stuyt.  A parent does not have the option of disobeying Court Orders that he or she does not like.  It is a role of a parent to abide by Court Orders until such time as the Orders have been terminated or varied through legal means.  It is also the role of parents to instill in their children a respect to the law and legal institutions.  The parent who does not do so, does a huge disservice to his or her child, a disservice that can have long lasting ramifications. 

Wonderful and important words, but will they be absorbed by a 16 year old and her parents. 

ACCESS DIFFICULTIES: THE COURT IS A BLUNT INSTRUMENT

Date: 21 Nov, 2019

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. 

WHAT TO DO IN THE FACE OF A DENIAL OF ACCESS #2

Date: 17 Nov, 2019

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.

WHAT TO DO IN THE FACE OF A DENIAL OF ACCESS

Date: 17 Nov, 2019

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. 

ACCESS AND THE COURT IS A BLUNT INSTRUMENT

Date: 17 Nov, 2019

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. 

Spousal support is not automatic upon separation

Date: 13 Nov, 2019

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.

Being In Jail Is Not Necessarily a Defence To Paying Child Support

Date: 24 Oct, 2019

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.