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Traveling with Children

Date: 14 May, 2014| Author: Fred Streiman

Post-separation, parents often find it difficult to travel alone with their children. These difficulties often lead to expensive last minute court applications and significant stress as parents scramble to make all the last minute arrangements. In extreme cases, there is the threat of parental abduction to either another part of Canada or internationally. This blog post will address some of the simple solutions available to parents to allay their fears and make traveling with children after a separation much easier.

Getting a Passport

The simplest way to facilitate efficient travel is by obtaining a passport for the child. Children over the age of 16 can apply for their own passport. Children under 16 years old can obtain a passport through the application of a parent, the custodial parent or the legal guardian of the child. There is an Order in Council, titled Canadian Passport Order ,that covers most of this information. It is available online for easy reference. The passport application also has a number of useful tips and checklists on it. Parents who have separated will need to submit all the documents relating to custody, access and mobility of the child with the completed application. These documents are extremely important in determining whether or not a passport will be issued.

Passport Canada pays special attention to access, custody and mobility of the child because of the legal significance that attaches to these terms. A parent with sole custody may not need the non-custodial parent’s signature to get a passport, provided they comply with all the requirements. Equally, non-applying parents in a joint-custody scenario need to consent to the passport being issued before Passport Canada will give the child a passport.

If you or your ex-suppose intend to travel with your child internationally after separation, you should advise your lawyer of this at the time of separation. That way they can incorporate specific language into the separation agreement or court order clarifying how and when a passport can be obtained. This will make the process much simpler when it comes time to get or renew a passport for the child.

Restricting Travel
In situations where conflict is high between the parents, they may want to restrict the ability of the other parent to travel with the children and obtain a passport. Once again, proactive steps at the time of separation are important to simplify the process later on. If there is a court order that requires both parent’s consent for the issuing of a passport, Passport Canada will not issue a passport unless there is a revocation or variation of that court order. Where warranted, mobility restrictions can be incorporated into the court order or separation agreement. This can restrict international and domestic travel with the child. In situations of extreme conflict, you can even obtain a court order completely prohibiting the child from having a passport.

Another option that won’t necessarily restrict travel but is a useful tool offered by Passport Canada is the passport system lookout. It does not prevent the issuance of a passport but it will generate an alert if an application is submitted under the child’s name. A parent can send a letter to Passport Canada and request that the child’s name be added to the list. However, where the parent is non-custodial, has no specified access and there is no court order or mobility restrictions on the child, Passport Canada may not add the child’s name to the list.

Finally, if there are real concerns about abduction parents can consider the use of Our Missing Children. This is a program run by Canadian law enforcement and other government agencies that helps find and return abducted children. It involves Canada Border Service Agency, therefore they can verify immigration information and manage national lookout reports on missing or abducted children. Similar to the passport system look, this program can issue an alert once a passport has been issued to the child. This tool is another method that does not prevent a passport from being issued to the child but rather serves as a warning system. It is mainly tasked with locating and returning children after they have been abducted (either by a parent or someone else).

Consents
Finally, outside of questions surrounding issuing or restricting passports for children, travel consents are a common method of facilitating one parent’s travel with their children. Consents are not official and there is no set requirement. A good example can be found at https://www.dalestreimanlaw.com/travel-consent-form.  This form consent has an official look to it that helps lend credibility to the document. An additional benefit is to fill out the standard form and then have a lawyer notarize it for you. This should help facilitate travel by lending the document more weight. It also may be beneficial to place a clause in any separation agreement or court order that requires either parent to provide a consent when requested. Parents should be wary, though, of consent request to countries that have not signed on to the Hague Convention. In a previous blog posting I addressed the Hague Convention at length. For clarity though, the convention is an international treaty that provides parents with a legal recourse to have their children returned to them. Non-signatory countries will not abide by the Hague Convention’s rules.

Traveling with children is a common problem that separated parents face. There are a number of elements at play. If you are looking to travel with your children but are not sure what to do about your uncooperative spouse, contact the lawyers at Dale Streiman Law LLP.

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For more information on the Order in Council see http://canlii.ca/t/lhhk
pptc155.pdf
Child Abduction in a Family Context

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

Date: 07 Mar, 2014| Author: Fred Streiman

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

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

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

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

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

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

Compensatory Spousal Support

Date: 07 Mar, 2014| Author: Fred Streiman

Spousal support serves three purposes:

  • To compensate the spouse with the lower income for sacrificing some power to earn income during the marriage
  • To compensate the spouse with the lower income for ongoing care of children
  • To help a spouse who is in financial need if the other spouse has the ability to pay[1]

Spousal support recognizes that spouses often make sacrifices that help the family. These sacrifices can disadvantage the spouse if the marriage breaks down. Spousal support recognizes these sacrifices and tries to correct them and avoid injustice. Spousal support is typically assessed using the Spousal Support Advisory Guidelines[2] (SSAG).[3] This is not legislation but rather it is a set of guidelines that the Department of Justice released to help address issues related support amounts and duration. They are designed to be used with divorces under the federal Divorce Act[4].

Aside from the traditional spousal support model that SSAG provides, there is another type of spousal support called compensatory support. Compensatory support is utilized to compensate a spouse upon the breakdown the marriage for contributions made during the marriage. Compensatory support has its roots in the Supreme Court of Canada decision in Moge v Moge[5]. The court said that compensatory support seeks to rectify the economic disadvantages of the marriage. In Moge, the court recognized that a wife who sacrifices her career aspirations for the family will have a decreased earning potential if the marriage breaks down. When she goes back to work, she will be at a disadvantage. Justice Dub said that a woman who stays at home can see her earning potential decrease by 1.5% for each year that she is out of the work force. This sacrifice can warrant additional support from a spouse who reaps economic advantages from it.

A case that illustrates when the court will utilize a compensatory model for spousal support is the recent Ontario Superior Court of Justice decision in Laurain v Clarke[6]. Justice Mossip outlined a series of factors that entitled Ms. Laurain to compensatory spousal support

[1] Department of Justice, About Spousal Support http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html
[2] Department of Justice, Spousal Support Advisory Guidelines http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ssag-ldfpae.html
[3] Christine Montgomery, DIVORCEmate software Inc,http://www.divorcemate.com/library/SSAG_Paper_0906.pdf
[4] Divorce Act, http://laws-lois.justice.gc.ca/eng/acts/D-3.4/index.html
[5] Moge v Moge, http://canlii.org/en/ca/scc/doc/1992/1992canlii25/1992canlii25.html
[6] Laurain v Clarke, http://canlii.org/en/on/onsc/doc/2013/2013onsc726/2013onsc726.html

    • When the parties first met, she was employed, made a decent living, was self supporting and had accumulated significant assets.
    • She moved cities and left her job at the request of her husband so he could pursue a new job.
    • She stopped working at the birth of their first child, upon returning to work she changed positions.
    • After the second child, and upon her husband’s request, she stayed home to raise the children.
    • The husband’s career advanced because of his hard work and the fact that he could devote 100% of his time to his career with the knowledge that his wife was devoting 100% of her time to the family and home.
    • She was out of the work force for roughly 10 years at the date of separation, she has a lack of formal training or post-secondary education, and her chosen profession has changed dramatically since she left it.

Ms. Laurain was entitled to compensatory support because she made significant sacrifice for the family welfare that put her at an economic disadvantage when the marriage broke down. In the same vein, her husband received a significant advantage from his wife making those sacrifices.

The compensatory model is generally used to give a lump sum payment in return for the sacrifices that one of the spouses made. It is particularly applicable to a support agreement when property division is insufficient to compensate the one spouse for those sacrifices. Finally, compensatory spousal support can be used by the courts in conjunction with the traditional support methods. In Ms. Laurain’s case, she also received support in the middle to high range of the Spousal Support Advisory Guidelines (SAGG).

The issues surrounding spousal support are complex and require careful consideration. Compensatory spousal support is a tool that can help compensate a spouse who has been disadvantaged by the breakdown of a marriage. The lawyers at Dale Streiman Law LLP have decades of experience dealing with spousal support. They would be happy to consult with you on any of your family law needs.

By : Fred Streiman & Stephen Duffy
Fred-Streiman

Survivors Pension Benefits should not be Ignored Unfair vs Unconscionable

Date: 07 Mar, 2014| Author: Fred Streiman

The Ontario Court of Appeal in its December 2012 judgment in Symmons v. Symmons reviewed a Trial decision that involved many complicated and interacting factors. In that case, the parties first lived together for almost 6 years, married in 1999 and separated 10 years later. However, the husband was 13 years older than his now estranged bride and he had retired. Because of the age gap, the pension the husband had earned at work had vested fully, including the survivor’s benefits to be enjoyed by his now former spouse. Those survivor benefits were deemed to be worth over $300,000.

The wife was very unhappy that this was being tagged as an asset that she would have to now share with her retired husband and attempted to convince the court that is was unfair and indeed it met the test of unjust enrichment or alternatively an unconscionable division under Section 5 (6) of the Family Law Act.

In the end, the Ontario Court of Appeal said no, holding that it was not unconscionable (which one might describe as being unfair on steroids), because the wife’s net worth had increased substantially during the marriage and taking into account the survivors benefit amongst other factors. The Court did equalize the survivors benefits.

I have in this article used the words unfair and unconscionable rather loosely, which is incorrect. For married parties, the property division scheme is set out in the Family Law Act. It is a very precise formula which must be followed.

A spouse may argue that to blindly follow the formula would produce an unconscionable result and therefore the court should use its discretion and order a different result.

The drafters of the Family Law Act very specifically chose the word unconscionable rather than unfair. Unconscionable means a result that would shock the conscience of the court and its threshold is exceptionally high. This area of law has been litigated many times since the enactment of the Family Law Act. To determine whether or not a fact situation has a reasonable chance of meeting that test requires a lengthy and detailed examination with a qualified family law lawyer.

By: Fred Streiman
Fred-Streiman

Family Law Unjust Enrichment Joint Venture Property Rights for Common Law vs Married Spouses

Date: 06 Mar, 2014| Author: Fred Streiman

Elsewhere I have discussed the different property rights that exist between common-law and formally married spouses. They are not the same and continue to remain very different.

Married parties are subject to the property scheme imposed by the Family Law Act. Grossly simplified, each of the spouses walk away from the marriage with an equal net worth.[1]

Common-law parties are limited to common-law rights also known as judge made law. These can arise from the way that title is held. An example are houses registered in both names and as such belong to both parties. Or alternatively, the application of judge made equitable rules which one can paraphrase as being fairness rules. One of those rules is unjust enrichment. Unjust enrichment and its close cousin, joint venture, were explored and expanded upon by the Supreme Court of Canada in its 2011 decision in Kerr v. Baranow.

For married couples, the property regime under the Family Law Act does not entirely exclude the application of the fairness rules or unjust enrichment. However, the Ontario Court of Appeal [2] has held that although the law is clear that equitable principles such as unjust enrichment have not been supplanted by the enactment of the Family Law Act in the vast majority of cases an unjust enrichment that arises as a result of the marriage would be fully addressed through the operation of the equalization provisions.

In other words, the court will rarely use these extra ordinary powers.

Survivors Pension Benefits should not be Ignored

Date: 06 Mar, 2014| Author: Fred Streiman

Unfair vs Unconscionable

The Ontario Court of Appeal in its December 2012 judgment in Symmons v. Symmons reviewed a Trial decision that involved many complicated and interacting factors. In that case, the parties first lived together for almost 6 years, married in 1999 and separated 10 years later. However, the husband was 13 years older than his now estranged bride and he had retired. Because of the age gap, the pension the husband had earned at work had vested fully, including the survivor’s benefits to be enjoyed by his now former spouse. Those survivor benefits were deemed to be worth over $300,000.

The wife was very unhappy that this was being tagged as an asset that she would have to now share with her retired husband and attempted to convince the court that is was unfair and indeed it met the test of unjust enrichment or alternatively an unconscionable division under Section 5 (6) of the Family Law Act.In the end, the Ontario Court of Appeal said no, holding that it was not unconscionable (which one might describe as being unfair on steroids), because the wife’s net worth had increased substantially during the marriage and taking into account the survivors benefit amongst other factors. The Court did equalize the survivors benefits.

I have in this article used the words unfair and unconscionable rather loosely, which is incorrect. For married parties, the property division scheme is set out in the Family Law Act. It is a very precise formula which must be followed.A spouse may argue that to blindly follow the formula would produce an unconscionable result and therefore the court should use its discretion and order a different result.

The drafters of the Family Law Act very specifically chose the word unconscionable rather than unfair. Unconscionable means a result that would shock the conscience of the court and its threshold is exceptionally high. This area of law has been litigated many times since the enactment of the Family Law Act. To determine whether or not a fact situation has a reasonable chance of meeting that test requires a lengthy and detailed examination with a qualified family law lawyer.

COMMONLAW SPOUSES PROPERTY RIGHT LIMITATION PROBLEMS

Date: 06 Mar, 2014| Author: Fred Streiman

We have discussed elsewhere the extremely complicated issue of the rights that commonlaw partners have against the other’s property in the event of a separation. Those rights are very different than those granted under the Family Law Act to married spouses. These commonlaw property rights are generally rights of equity or judge made law.

One particular heading for such a claim is that of constructive trust in which the court imposes a trust right against the others property justified on the grounds of unjust enrichment or other equitable remedies (in English, it is unfair that the other benefited from your actions).

However, this has run into limitation problems.Generally speaking in Ontario, all claims are governed by the Limitations Act which holds that any lawsuit must be started within two years of the date on which the right should reasonably have been discovered by the Plaintiff.

If such a limitation period was imposed upon commonlaw spouses, one could envision a scenario in which the commonlaw spouse who feels that he or she has a claim, must bring such a claim even before the relationship ends.

Justice Perkins in 2013, made a decision that may yet be appealed. In the case of McConnell v. Huxtable, Justice Perkins decided to use the specific limitation period under the Real Property Limitations Act which provides a ten year limitation period for claims to recover land.

This is all clearly extremely complicated and complications that the drafters of the Family Law Act hoped would never arise, but they have nonetheless courtesy of various court decisions, and most importantly, the Supreme Court of Canada in Scott v. Branow.

The lawyers at Dale Streiman Law L.L.P. have on many occasions had to grapple on behalf of their clients with thorny and competing equitable claims between separating commonlaw spouses. One should appreciate that the gender of the parties is irrelevant and indeed Dale Streiman Law L.L.P. has extensive experience in acting for same sex commonlaw parties who are separating.

Any commonlaw spouse who finds themself separating would do well to speak to an experienced family law lawyer to assist them with this thorny issue.

DISOBEYING A COURT ORDER CAN LEAD TO FINES OR EVEN JAIL

Date: 06 Mar, 2014| Author: Fred Streiman

The courts, including those having jurisdiction over family law matters are an important representation of the state. When the court makes an Order, it is not one solely between the litigants, but more importantly, is viewed as an Order by the court itself.

Failing to obey an Order of the court, can in certain circumstances lead to the court viewing the offending party as showing disrespect, not only to the other party (often an estranged spouse), but to the authority of the court itself.The court has many tools to deal with such contempt including striking the pleadings of the offending party, and its ultimate resource jailing the contemptuous party.Striking pleadings means that one is no longer a participant in the court process and the other party can proceed as if the offender had never filed any documents and was not participating in the law suit. The court would only hear one side before making its decision.

Examples of contempt are failure to pay the full amount of support that is required, not preserving assets if they had been so ordered or refusing to transfer property pursuant to a court Order.The most severe of remedies, namely jail, is rarely administered. However, this power was recently brought into sharp relief in the recent Ontario Superior Court decision of Picken v Picken.In that case, the husband had been ordered within a divorce action to preserve the sale proceeds from the sale of a property. Eventually there was to be a payment to the wife for her share of $154,000.00, yet the husband, in the face of a direct Order to the contrary, dealt with the proceeds unilaterally and had kept out of the sale proceeds of more than $400,000.00, only $77,000.00.

The court felt that this lack of respect for the court process and an Order of the court could only be remedied by a finding of contempt which included a jail sentence of thirty days.The husband was lead out of the court room in handcuffs and in an alarming twist, found himself housed for most of his sentence in a maximum security jail sharing a pod with six accused killers.At times, a litigant would be excused for feeling that the court process is cumbersome, expensive and ineffective, but occasionally the court will flex its muscle.

A finding of contempt is an extremely technical and difficult process. The lawyers of Dale Streiman Law LLP have a great deal of experience, both in bringing and responding to such an application.

By: Fred Streiman
Fred-Streiman

MAHER (or also spelt as Mehr) ISLAMIC MARRIAGE CONTRACT ARE THEY ENFORCEABLE IN ONTARIO

Date: 06 Mar, 2014| Author: Fred Streiman

Frequently, Muslims upon marriage will sign an Islamic Marriage Certificate, sometimes also titled a Marriage Contract. These are known as Mehrs. Mehrs will often contain a clause requiring the payment to the bride of a certain amount of money upon demand. These Mehrs will vary in the amount of the payment required but can contain payments that can be very substantial.

The enforceability of these Mehrs within the context of family law as opposed to simply being enforced by Islamic religious courts, has been a subject frequently debated and ruled upon by the courts.In the 2009 Superior Court of Ontario decision of Khanis v. Noormohamed, Madame Justice Backhouse, a highly experienced family law judge, upheld the validity of a Mehr which contained the following clause:

I hereby agree and undertake to pay an agreed sum of money $20,000.00 by way of Mehr to my said wife. I hereby agree, confirm and declare that my undertaking to pay the agreed sum of money by way of Mehr to my said wife shall be in addition and without prejudice to and not in substitution of all my obligations provided for by the laws of the lands,

Other Mehrs contain phrases as simple as, dower, pay on demand $20,000.00. These simple words inserted in an Islamic Marriage Certificate may be interpreted by a court as being a Domestic Contract pursuant to Section 55 of the Family Law Act. A marriage contract is a form of a domestic contract.One would have thought that the courts would have been reluctant to enter into the religious battleground when many religions have their own internal judicial systems for administering sectarian law.

However, such an assumption would be incorrect.Courts across Canada have differed on whether traditional Marriage Contracts under Muslim Law are enforceable. The Ontario Courts, as recently as 1998, in a decision of Justice Rutherford, held that the courts should not determine rights and obligations of the parties under the Mehr as it would lead the court into the religious thicket.

However, the world changed when the Supreme Court of Canada in the 2007 decision of Bruker v. Marcovitz held that the fact that a dispute has a religious aspect, does not make it non-justiciable (one has to love legal speak, non-justiciable means non enforceable or not properly before the courts). The Supreme Court of Canada went onto say that people can transfer their moral obligations into legally binding ones.Justice Backhouse then went on in the Khanis case to apply the requirements under Section 55 and 56 of the Family Law Act to determine whether or not the Mehr met the requirements of a valid and enforceable Domestic Contract. In the Khanis case, the court held that it did meet those requirements and was indeed enforceable and was a right that the wife was entitled to over and above all the other rights that she had under the laws of Ontario and Canada.

Even though the Mehr did not say when the $20,000.00 was payable, Justice Backhouse found that it was immediately payable whenever the wife simply demanded it. Indeed, Mehrs are generally interpreted within Islamic law as an on demand promissory note which the wife can call for payment at any time during the marriage and not simply upon its end.To reinforce the decision of Justice Backhouse, it was appealed by the losing husband to the Ontario Court of Appeal where on February 15th, 2011, it upheld Justice Backhouses decision specifically including and commenting upon the accuracy of her findings with respect to the Mehr.

The obvious conclusion is that one should not enter into a Mehr lightly as it is in reality no different than any other Domestic Contract. Especially upon second marriages, Dale Streiman Law L.L.P. urges its clients to undergo the emotionally difficult but essential process of having a Marriage Contract drawn up, before the marriage. It is insurance money well spent.

Child Support for Adult Children

Date: 06 Mar, 2014| Author: Fred Streiman

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

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

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

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