The Courts Need To Be Run Like A Business

Date: 14 May, 2019

I am a lawyer that has practiced in Brampton Ontario for 40 plus years.

While the judicial system is a fundamental pillar of our democracy, that is no reason for a businesslike approach not be applied to it.

The Government for shortsighted economies has starved the support staff of the courts of funding, which in turn has led to a shortage of qualified clerks able to promptly deal with court filings.

I would propose that except for those litigants that are unable to afford the appropriate fees, that every filing should be accompanied by a fee that properly identifies the true cost to the court for the processing of that document. The Province should retain the services of a cost consultant to determine the proper cost of the processing of the filings that require the court’s attention. That cost should be all inclusive, not only of the clerk required, but the hard facilities that are needed to support that individual. That is the fee that should be charged. Like any business, there must be a cost benefit analysis and the proper burden upon the Province should be alleviated by the fee paid by the individual seeking that relief.

As a result of Government cutbacks which I believe are completely unnecessary and detrimental to all concerned. There are huge backlogs on the processing of mundane applications that my office is involved in.

The processing of an uncontested divorce can literally take months to obtain. We have heard reports of stacks of mail received by the courts that have not been opened as they do not have the manpower to deal with them.

Most egregiously from the Provinces’ financial prospective, the Province is not negotiating cheques that have been submitted. As a specific example, an Application for “Probate” at one time was processed within a reasonable four to six weeks within Peel Region.

That has now climbed to generally exceeding six months. Our office has submitted the appropriate documentation and the government’s estate tax in excess of $9,000.00. Again due to the lack of sufficient staff, the Application has not even been looked at and the cheque has not be negotiated. What business would sit on income of $9,000.00 from a single file without negotiating that cheque? Indeed this has come to my specific attention as our accounting department has pointed out that the cheque is now likely stale dated. The Government is losing vast amounts of money unnecessarily.

I repeat, determine what the true cost is and charge it. At the very least this is a transaction that should be a neutral expenditure.

One must also consider the ripple effect upon the economy. People need to wait hours to file documents, which is a great financial burden to the economy. Similarly, various financial transactions such as selling a home cannot take place until the courts are able to attend to what is often a routine transaction. Again, the Government is losing its land transfer tax that would obviously be earned as a result of such a real estate transaction.

I urge the Government to take a businesslike approach to this problem. If the Province indeed is open for business, then let it at least apply this principle to its own house.

Forcing Your Spouse To Have An Expert Determine Their Income

Date: 14 May, 2019

The court does have the authority to order a party to obtainan expert’s report to determine their income for support purposes.

Recently, Justice Tremblay in the case of Sargalis foundin limited circumstances the court does indeed have the authority to order a party to obtain an expert’s report determining the potential payors income for the purpose of calculating support.

Justice Tremblay believed that this should only happen when the cost (and that cost can be very substantial) should only be incurred where the burden on the disclosing party does not outweigh the importance of the information. If there is a more financially reasonable way of determining income that should be pursued before a formal income analysis is to be ordered.

A sensitive hand at the tiller is needed to guide a client through these murky legal waters.

Settlements Far More Flexible Than Court Orders

Date: 14 May, 2019

On a practical basis, there is frequently a give and take in negotiations between spouses in which less of a property settlement is paid or received in return for an equivalent reduction or increase in a property settlement.

However, in the event that the parties cannot settle, it is not within the courts’ jurisdiction to offset a property settlement, formally known as an equalization payment against a right to future child support. This was clearly stated by Justice Shaw in the recent decision of Plimmer vs. Burke. The court does have the ability to stretch out an equalization payment for as much as ten years if the court finds it is too onerous to make an equalization payment in a single lump sum.

Moral, what one can do by way of negotiated settlement and formalized in a separation agreement is far wider than a court imposed solution.

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

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.