The answer lies within Rule 20(5) of the Ontario Family Law Rules. It gives the court the ability to order the production of privileged documents, even if there is no consent. In the recent decision of Justice Henderson of the Ontario Superior Court in the case of Raso vs. Di Egidio, he weighed carefully whether or not in a custody fight such notes or records should be released. On one hand, Justice Henderson believed that there could potentially be very important information contained within these notes, but their release must be balanced against an effort to encourage parties to attend marriage counseling and the belief that it is a confidential process. In that case, the judge balanced one motive against the other and hanging his hat on the basis that the wife in seeking the psychologist reports had waited far too long to make such a request, he refused their production at trial. So one can ask a judge to force their production, but it is certainly not an automatic result. So mark another area as discretionary.
Category: Family Law
WHAT DO I DO WHEN MY EX-SPOUSE WILL NOT OBEY THE COURT ORDER THAT I HAVE BEEN ABLE TO OBTAIN
The courts are generally very unhappy when its orders are being ignored. However, in the face of an intransigent spouse, it requires a persistent and a skilled hand to force a difficult party to reach a judicially imposed finish line. The court has many tools, not all of them completely effective in motivating a reluctant target of a court order. As an example, if specific access is being frustrated, the court as an alternate remedy can change custody.
Or the court can impose a penalty, such as a fine.
One remedy is to seek an order finding a party in breach of a court order and thus in contempt. Family law lawyers out of a sense of eagerness, will often make such threats, but the Ontario Court of Appeal has stated that a contempt order should not be granted where there are other alternatives and a great caution should be exercised. Justice Quigley a Superior Court judge in Brampton in the recent decision of Szyngiel vs. Rintoul set out the appropriate principles.
- The relevant order must be completely clear and unambiguous.
- The breaching party knew of the court’s order.
- The breaching party intentionally did or failed to do anything that was in contravention of the order.
- The breaching party was given proper notice to the terms of the order.
- The order must be extremely expressed and clear, certain and unambiguous language.
If you are alleging contempt against your spouse, the onus to meet all of the points lies with you.
The person effecting the order should know with complete precision of what he or she is required to do or not do. Implied terms do not count.
The contempt power is used with great restraint and only in exceptional circumstances. The contempt order must be the only reasonable means by which to send a message to the breaching party that the court orders are not be flaunted. A contempt order should only be use for serious breaches which justify serious consequences.
The court has the power after a finding of contempt to impose many strong penalties, including fines, jail and dismissing the breaching party’s case in its entirety. After this learned and lengthy analysis of the law of contempt as it applies in family law cases, Justice Quigley applied a relatively light sentence to simply finding the breaching party being in contempt with no further penalty because by the date of the motion, the contempt had been purged i.e. whatever was ordered, he had provided.
While it may seem that the judicial process is a potentially ineffective one with a toothless bite that is not always the case. However what it is, is at times extremely cumbersome and I liken it to a moving an ocean liner. It can take a huge and sustained effort, with repeated attempts to actually accomplish your stated goal. There are clearly extensive legal fee consequences arising from that.
This is why if at all suitable, Dale Streiman Law LLP encourages the parties to look alternate means resolution, including four way settlement meeting and matters being referred onto mediation/arbitration if appropriate.
THE HORRORS OF PARENTAL ALIENATION AND THE SEVERELY LIMITED ABILITY OF THE JUDICIAL SYSTEM TO EFFECT ANY CHANGE
The writer believes that litigious custodial disputes or access fights between separating parents is almost always a function of at least one of the parents having their own psychological issues. When both parents are mature, they should be able to place the children’s interests first and recognize that they both have to play important roles in the children’s lives.
One terrible example of a lack of parental maturity being visited upon the children is when one parent uses the child as a weapon against the other. Children can be very susceptible to being molded by a wounded parent. They can identify with one parent or another for many reasons or children can display a sense of moral outrage in the face of a parent who has left the marriage for another person.
Parental alienation can develop when one parent either overtly or covertly convinces children that the other parent is bad and spending any time with them is to be avoided. A loving parent can quickly find themselves on the outside of what was a strong parental bond. It is destructive when a child takes a strong position that they do not want to see the other parent. Often the offending parent will protest that they never interfered and indeed are attempting to encourage a relationship between child and estranged parent. In the face of such a position (often being taken by a young teenager), there can be serious difficulties in attempting to have the court impose a solution to this most insidious of child and parent problems. We are not talking about a parent who has been cruel or has ill-treated a child, but rather a parent who is blameless in their capacity as parent. They may be guilty of no other sin than not being the primary custodial parent. Good luck to the parent who has decided to leave the marriage even with good reason to live with another person.
There are a limited number of therapists who specialize in remedying parental alienation. Dale Streiman Law LLP has been successful in the face of such parental alienation in getting the court to exercise the ultimate remedy, which is to reverse custody and to cut off any contact between the offending parent and the alienated child. Such efforts require great skill, expertise, martialing of competent outside experts and unfortunately significant financial and emotional effort by the wronged parent.
The courts are very attuned to the importance of an ongoing relationship between both parents and child and that it is detrimental to the child’s healthy upbringing should one parent be frozen out.
One must tread very carefully when your marriage is coming to an end and more often than not, the strong advice that the author gives to his clients is to put any other adult relationship on hold until the dust has settled and a significant time has elapsed for all concerned to become adjusted to the new reality. The law in no way discourages or on its face takes into account fidelity or its absence. However, we all live in a real world filled with emotions and motivations that are not always in everyone’s best interests either financially or emotionally.
It is sage advice that before any steps are taken, to consult with one of the experienced family lawyers at Dale Streiman Law LLP before taking that first step.
DOUBLE DIPPING/DOUBLE DIPPING DOES NOT MEAN PUTTING BOTH OF YOUR FEET INTO COLD WATER
Double dipping is a reference to a future revenue source being shared more than once with your former spouse. The prime example of that is a future pension which is treated as property at the time of separation and is equalized as part of the property settlement. Later once the pension is actually being received, should that same pension/asset, which has already been equalized, be available as an income stream which your ex-spouse can look to for support.
As an example, if you are an employee of Chrysler and had worked at Chrysler for some 10 years during the course of the marriage, when you separate, that future pension even though you have not received it by the time of separation, is an asset which is equalization. Using the services of a fancy mathematician called an actuary (and now this is a service provided by the pension administrator) a family law lump sum value is obtained. That value is taken into account when there is a property settlement.
That pension can be easily worth in excess of $100,000.00 and in return for you keeping all of your pension, you may give up all of your interest in the matrimonial home to your ex-spouse. 10 years later, you retire and start to receive $2,000.00 per month under your Chrysler pension. Your former spouse’s financial situation has gotten worse and now your total income, including a $2,000.00 per month Chrysler pension is $3,000.00 per month. Your wife wants spousal support and she wants as part of that spousal support the court to assume that you are earning $3,000.00 per month, even though two thirds of that comes from a pension that has already been shared with your former spouse. This is an example of double dipping.
The leading case on this is the Supreme Court of Canada’s decision in Boston vs. Boston. The court held that this is generally not to be allowed, but this is not an absolute prohibition. In the recent Manitoba Court of Appeal decision of Senek vs. Senek, the husband applied to reduce the amount of support as he had retired. His pension had already been equalized when the parties had separated. Quoting other decisions, the court stated that “the challenge is to avoid double recovery when it is fair to do so, but this is not to say that in all cases double recovery will be eliminated because of some cases double recovery may be the only fair way to continue support.” In the Senek case, the court was moved to permit double dipping because in the absence of the former husband’s ongoing support, the ex-wife’s income would have fallen so low that she would have been placed below the poverty level. When there is a strong need for spousal support, the court will tip the scales in favour of the recipient’s needs.
CAREFUL WHAT YOU AGREE TO IF YOU ARE TOO GENEROUS, YOU MAY NOT BE ABLE TO GET OUT OF THAT OBLIGATION
The Ontario Court of Appeal recently in the decision of Stevenson vs. Smit, upheld an agreement in which the husband had signed and in which he undertook to pay 50% of all of the children’s lifestyle expenses, such as camp and private school despite the fact that he had minimal income and was just in the midst of starting a new company. When things did not go well for him, he attempted to convince the court that the amount of support should be reduced down to something in accordance with the Guidelines, which would have caused a significant reduction in the child support that he was paying.
Despite his best efforts, the Ontario Court of Appeal rejected his attempt. What sabotaged the husband’s argument was a finding by the court that there had been no material change of circumstances. When he had agreed to this significant financial obligation, he had no income and had agreed that he would fund this out of his capital. Nothing had changed in the intervening years and the court, while it is willing to set aside a spousal support arrangement that is less than the Guidelines, was far less willing to do so from the other side of the room. If this is the deal you are going to make, beware as here the court would not allow the husband to avoid the responsibilities that he had undertaken.
Careful what you promise with your heart. Your wallet may fail you and the courts may not help.
CAN MY CHILDREN SPEAK TO THE JUDGE
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.
Setting Aside a Domestic Contract: The Best Defense is a Fair Contract
Marriage contracts, separation agreements, and cohabitation agreements are the three main elements that make up domestic contracts in Ontario. This umbrella term covers large sections of family law therefore I have dealt with it multiple times in my previous blogs. Specifically, I have explained what these contracts are[i] and their enforceability[ii]. In this blog post I want to address fairness as an overarching theme that influences how the courts tend to look at these types of contracts. Fairness is often a key feature that the court looks at when considering whether to set aside a domestic contract.
Fairness is not the same as whether a deal was good or bad. Rather, when I speak about fairness in relation to a domestic contract it is more appropriate to think about it as shockingly unfair. The courts are not in a position to gauge whether any contract is good or bad. They only step in and use one of the many equitable doctrines that have developed over the years when a contract is so shockingly unfair that it offends our concepts of justice. In family law, the courts have been willing to set aside domestic contracts when they reach this level.
Two recent cases highlight the importance of fairness in domestic contracts. In Cuffe v Desjardins[iii], the wife was trying to set aside a marriage contract that formed the basis for a separation agreement between her and her husband. Both agreements were one sided in terms of property division and support obligations. The husband was clearly getting the better deal. However, the court was clear that unfairness alone is not enough to set aside a deal. Rather it was the husband’s actions in preying upon his wife’s weakness and unduly influencing her into accepting the bad deal that allowed the court to set aside the domestic contracts. The deal was unfair and the husband was taking advantage of his position to force his wife to accept an unfair deal. The fact that the wife received independent legal advice warning her about the very unfairness that she eventually accepted was not enough to overcome the husband’s deficit conduct. Consequently, the court could and did set aside the marriage contract and the separation agreement.
In the second case, Lougheed v Ponomareva[iv], the court once again dealt with the concept of fairness as it relates to setting aside a domestic contract. In that case, the wife alleged that the agreement she entered into during mediation was unfair and should not be enforced. She alleged that at the time the deal was negotiated she was on medication that inhibited her ability to process what was going on and what she was agreeing to. The court looked at the agreement and said that it is impossible to determine that the agreement was so unfair that the husband should have questioned the mental capacity of the wife. Deals generally are trade-offs between parties and sometimes the best deals leave neither party particularly happy with the result. An unfair deal is a signal that puts the other party on notice about the mental capacity of the other. Generally speaking, individuals with diminished capacity are unable to protect themselves from bad deals and the court will step in and protect them. The husband was able to establish that the deal was fair enough and should not be reopened. The wife was unhappy with the deal but it was not shockingly unfair such that her mental capacity is called into question.
These cases illustrate how the concept of fairness fills the court’s analysis of whether or not to set aside a domestic contract. It is not the sole factor and the courts are not in a position to determine whether a domestic contract is good or bad. If the facts show that the contract is shockingly unfair, the courts will look to contract law principles like undue influence, unconscionability or mental capacity and see if the contract should be set aside. Agreements between parties generally involve a give and take between competing interests. A settlement invariably contains some provisions that favor one party and others that favor the other party. The best defense to any attempt to set a domestic contract aside is to establish on the facts that the agreement, on the whole, is fair to both parties.
All the family law lawyers at Dale Streiman Law LLP have extensive experience with domestic contracts. We understand the importance of these documents and we can help you with any concerns you have about them. I encourage you to read my other blogs on domestic contracts and visit our website at https://www.dalestreimanlaw.com/.
[i] Domestic Contracts: What do they do, when are they used and how effective are they? And The Continuum of Enforceability
[ii] Domestic Contract and the Continuum of Enforceability: Or What is Wrong With Using a Separation Agreement I Downloaded?
[iii] Cuffe v Desjardins, 2013 ONSC 4044 available at http://www.canlii.org/en/on/onsc/doc/2013/2013onsc4044/2013onsc4044.html
[iv] Lougheed v Ponomareva, 2013 ONSC 4347 available at http://www.canlii.org/en/on/onsc/doc/2013/2013onsc4347/2013onsc4347.html
MOBILITY RIGHTS: What if I want to Move with My Child(ren) to Another City or Province?
In family Law, mobility refers to the decision of a parent within whom the child primarily resides, or the parent that has legal custody or even factual custody of the child, to move with the child. The move must be far enough that it will cause interference with the other parent’s rights to contact, access and active participation in the child’s upbringing. A parent can bring an application to the court seeking to prevent the other parent from moving the child. These cases tend to be very specific based on the unique facts of the parties involved. However, there are a number of general points concerning mobility that the Supreme Court of Canada outlined in Gordon v Goertz[i].
The court’s first step when looking at mobility issues is to look at the move and determine whether it constitutes a material change in circumstances of the child since the last court order or agreement was made. This is a threshold condition that must be met before the court will evaluate the merits of any application to vary an order. If the move does not meet this threshold, then the analysis will stop right there and the parent can freely move. In order to determine if the threshold is met, the judge must be satisfied that:
- There is a change in the condition, means, needs, or circumstances of the child and or the ability of the parents to meet the needs of the child
- The change materially affects the child
- The change was not foreseen or could not have been reasonably contemplated by the judge who made the initial order
Once the judge is satisfied that these conditions have been met, they can then proceed to evaluate the mobility issues under an application to vary a previous order. The analysis after the threshold is met is conducted afresh, with a focus upon the best interests of the child. Both parents will bare an evidentiary burden of demonstrating the best interests of the child. There is no presumption in favor of either parent’s position. However, the custodial parent’s view will be afforded ‘great respect’.
In evaluating the best interests of a child in the context of a move, the judge should consider a number of factors including:
- The existing custody arrangement and relationship between the child and the custodial parent
- The existing access arrangement and the relationship between the child and the access parent
- The desirability of maximizing contact between the child and BOTH parents
- The views of the child
- The custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the need of the child
- Disruption to the child of a change in custody
- Disruption to the child consequent on removal from family, schools and the community he or she has come to know.
As the Supreme Court said in Gordon v Goertz, the ultimate question in every case is what is the best interests of the child in all the circumstances, old as well as new.
Moving with your children can cause serious legal complications after parents separate. If you have concerns about a move that either you’re planning on doing with your children or your spouse is planning, you should seek legal advice in order to alleviate your concerns. If need be, you can go to court and seek either the court’s permission, through a new court order, to allow the move. Or alternatively, the court can make an order enjoining your former spouse from changing the child’s residence. In either case, the lawyers at Dale Streiman Law LLP can help you. They have years of experience handling family law matters, especially issues surrounding custody, access and mobility.
[i] Gordon v Goertz, [1996] SCR 27 available at http://www.canlii.org/en/ca/scc/doc/1996/1996canlii191/1996canlii191.html
Custody: Sole Custody vs. Joint Custody and the Rise of Parallel Parenting
Custody is basically the decision making power over a child. This decision making power can apply to anything from the books they are reading to the school they attend. Access, on the other hand, deals with the right to be with the child. A custodial parent will gain access to the child through their custody, but a non-custodial parent must have an access agreement. When a couple separates, and they have children, they will have to make decisions on both access and custody.
Traditionally, custody arrangements have been broken down into sole custody, joint custody and shared custody. As the name suggests, sole custody is when one parent has custody and joint custody is when both parents have custody. Joint custody is generally only awarded when the parents still communicate well. There is also the option of having shared custody. This is where a child lives at least 40% of the time with each parent. Shared custody works well when both parents want joint legal and physical custody of a child. The parents must be able to communicate in order for shared custody to work. In cases when there is a high level of conflict, the court has typically resolved custody through a sole custody order. The rationale is that where parents cannot work collaboratively for the child’s best interests, it is better to give sole discretion to one parent. Increasingly though, the court has turned to a another option, parallel parenting, to resolve custody disputes.
Parallel parenting is similar to joint custody and shared custody in that both parents have custodial powers. However, parallel parenting orders tend to carve out specific spheres for exercising the rights and responsibilities that each parent enjoys. This type of custody arrangement is becoming increasingly common in cases where traditional joint custody or shared custody would not work because of communication problems and sole custody is not appropriate.
The case of Bushell v Griffiths[i] is very useful for showing when and how the court will order parallel parenting. In that case, the mother had sole custody initially but she used her position to deny the father the agreed upon access. The relationship between the parents was characterized by a high degree of distrust, disrespect, and conflict. Sole custody with the mother had not work, largely because of her own disruptive behavior. Equally, sole custody with the father was not an option because he had never been the sole care provider. He was also supportive of a shared or joint arrangement, provided his access was protected. Finally, the lack of effective communication between the parents meant that a traditional joint custody scenario would not work. In the judge’s opinion, the best interests of the child could only be served by a parallel parenting regime. In the end, the judge ordered that the parents share custody and imposed 22 specific orders regarding the day to day physical care of the child. The parallel parenting regime imposed very strict timelines for when the child had to be in each parent’s care. The idea is that specific orders from the court will prevent the mother from denying the father the access he is legally entitled to.
The use of parallel parenting by the court is on the rise in high conflict divorces. The court’s concern is always with the best interests of the child, with the recognition that, when it is appropriate, it is in the child’s best interest to have a relationship with both parents.
The very word “custody” has been abandoned in some jurisdictions as too emotionally loaded. The better focus is on residence, time division and responsibility.
Custody issues are often emotionally charged and difficult to resolve. The lawyers at Dale Streiman Law LLP have decades of experience dealing with sole custody, joint custody, shared custody and parallel parenting scenarios. They can help you resolve your custody issues efficiently with an eye to what’s in everyone’s best interest.
[i] Bushell v Griffiths, 2013 NSSC 68 available at http://www.canlii.org/en/ns/nssc/doc/2013/2013nssc68/2013nssc68.htm l
Domestic Contracts: What do they do, when are they used and how effective are they? And The Continuum of Enforceability
Domestic contracts are legally enforceable agreements concerning spousal relationships. The Family Law Act sets out rules for domestic contracts including subject matter and enforceability. There are three basic types of contracts that fall into the domestic contract category.
- Marriage contracts: An agreement between a married couple or a soon to be married couple (pre-nuptial agreement or pre-marital agreement). These contracts can deal with a variety of financial and property related issues but they cannot address child custody or access upon separation.
- Cohabitation agreements: An agreement between partners who intend to or are currently living together. This type of relationship is often referred to as a common-law relationship. These contracts can cover the same issues that marriage contracts can address.
- Separation agreement: This agreement is different from the first two because it is entered into when the marriage or cohabitation has already broken down. These agreements can address financial, property and support issues. They can also address custody and access for children, which the first two agreements cannot do.
For over ten years, the courts have been endorsing the merits of domestic contracts as a means for couples to make their own deal. Domestic contracts allow couples to control the settlement process rather than have a court impose a settlement upon them. The contract can address one or more issues and it is not uncommon for single issue contracts to be used. Generally speaking, the court will enforce the terms of a domestic contract unless there are grounds not to. These grounds are rare but there are specific public policy reasons that may apply. A properly drafted domestic agreement will avoid these pitfalls.
When considering a domestic contract, you should be aware of the continuum of enforceability. I deal with this topic in more detail in another blog post , but for the purposes of this post I will summarize it. The continuum of enforceability is a practical consideration in domestic contracts. It involves the increase in enforceability weighed against the increase in complexity and compliance of the contract in relation to legal requirements. A simplified example is the effectiveness of a perfectly drafted contract that considers the tiniest of details but is not signed versus a poorly drafted contract that is signed. The broad spectrum of enforceability must be weighed against the individual needs of the couple to determine what a properly drafted domestic contract is for that specific person. This concept requires a number of considerations. Legal advice from trained lawyers is required.
Importantly for marriage contracts, these agreements can perform dual functions. They are road maps for how the spouses intend to manage their married life and how they intend to separate, if they ever have to. The act allows couples to waive certain rights that they would normally be entitled to. This is especially important in terms of financial and property rights that spouses typically gain. A clearly worded marriage contract can allow one spouse to waive their rights to the other’s spouse’s property. There is, however, an exception as it relates to the matrimonial home. The Family Law Act says that any marriage contract provision that limits a spouse’s rights under part II of the act to the matrimonial home is unenforceable. The major right involved is the right to occupy the house.
Once a contract is created, a party can attack a domestic contract on four grounds.
- Validity: Allege that the domestic contract was not made correctly
- Enforcement: a specific provision violates the Family Law Act or some other statute
- Overriding Domestic Contract: The court has residual power to override agreements for certain reasons, generally public policy grounds.
- Interpretation of agreements: The interpretation of the agreement can be attacked if there is ambiguity or unclear terms.
Generally speaking though, domestic contracts will be respected by the court. Where they are challenged, the court can choose to remove one or more provisions from the contract or declare the entire agreement invalid. Contract law principles will form the basis for how the court evaluates a domestic contract. A critical factor in a domestic contract being upheld by the court is the simple concept of fairness. It does not need to be a reflection of a humanitarian award, but the contract cannot be shockingly unfair.
If you are interested in a domestic contract you should be aware that they are not simple or cheap to prepare. The starting cost for an agreement is $3,000. This expense provides an effective means for couples to set out their legal obligations. The lawyers at Dale Streiman Law LLP have been drafting domestic agreements for over 30 years. They will ensure that the contract meets all the legal requirements to be a valid and enforceable expression of your legal objectives while at the same time keeping costs down.
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[1] Link to “Domestic Contracts and the Continuum of Enforceability”
