Having practiced child protection law for over 30 years, I am extremely alarmed by the abuse crisis that has emerged during the pandemic that has been permitted to remain unchecked.  The pendulum has swung to the extreme of keeping stressed parents together with their children, at all costs. This, at a time, when it is a fact that during times of parenting stress, there is an increased incidence of abuse.

The pandemic has brought about financial stress, mental illness, increased substance use, social isolation, over-crowding in the home,  and negative interactions with children. Many families are experiencing the trauma of severe illness or the loss of loved ones, including friends and family members due to COVID-19. This trauma is compounded by the cancellation of rituals, such as funerals, and the reduction and suspension of religious gatherings and grief support groups.  There is more on-line activity by children, increasing the risk of online sexual exploitation and bullying.

Yet, statistic will show that there is actually a decrease in reported cases of abuse.  The statistics are misleading. The decrease in reported cases is a direct result of minimized contact for children with individuals who could protect them. (e.g. school teachers, day care providers, sports coaches, community groups, doctors, neighbours, grandparents, friends).  Social workers, along with other health professionals, have been advised to minimize nonessential services that involve direct contact with families. Far too many children are being left with their abusers.

Child protection agencies are experiencing strained resources with fewer workers available, making them unable to conduct home visits in areas with stay-at-home orders. Since children are not going to school, teachers and school counselors are unable to witness the signs of abuse and report to the proper authorities. Also, many at-risk families may not have access to the technology children needed to stay connected with friends and extended family.

Exacerbating the situation, the conditions brought on by COVID-19 has increased the possibility of separation, isolation, and reduced social support, education, mental, and physical health services. Thus, children are at heightened risk for abuse.

If you are a grandparent, the legal system does afford you the opportunity to take legal action to assume custody of your grandchild, whom you suspect is being physically, emotionally or sexually abused.

The same holds true for a non-custodial parent who seeks to obtain custody of their child who is suspected of being abused by the custodial parent/step-parent.

The time is to act now!

To book a consultation, please press here.

By Farah Sidi, Lawyer, Galbraith Family Law

Just a case of buyer’s remorse…or, something more? Challenging domestic contracts in Ontario are becoming commonplace

Court proceedings dealing with setting aside a domestic contract, or a part thereof, are very common today. In fact in recent years, a significant amount of family law litigation has arisen solely as a result of these types of cases. Although many family lawyers find themselves dealing with these issues on a regular basis, it is important to be aware that ultimately it is very difficult to succeed in having a domestic agreement set aside, as the Courts will aim to respect the decision made by parties to engage in binding settlements reached by negotiation.

A domestic contract may arise at various stages of a parties’ relationship. They include binding agreements made between two spouses or separating spouses such as (1) a cohabitation agreement (2) a marriage contract and (3) a separation agreement. A domestic contract may also include a paternity agreement or a family arbitration agreement. In order to be considered binding, a domestic contract must meet certain technical requirements, namely that they must be in writing, signed and witnessed.

A cohabitation agreement is a contract made between two unmarried parties that are cohabiting or intending to cohabit together.

A marriage contract is made between two parties who planning to get married or who are already married. A separation agreement is a contract made between two separating spouses, including both married and unmarried parties.

In some cases, parties to a domestic contract later come to realize that the terms they agreed to may be unfair based on different factors.

Although a domestic contract may be properly drafted, signed and witnessed, pursuant to section 56(4) of the Family Law Act, the Court has wide authority as follows:

(4) A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

A domestic contract can also be set aside if the Court finds that it contravenes the objectives of the Child Support Guidelines.

The most common grounds for setting aside a domestic contract include,

  • duress
  • unconscionability
  • lack of financial disclosure; and,
  • failure to understand the terms and consequences of the agreement.

The party challenging the domestic contract bears the burden of proving their claim.

The Ontario Court of Appeal in Levan v Levan, set out a two-part test for setting aside a domestic contract:

  • First, the court must consider whether the party seeking to set aside the agreement can demonstrate that one or more of the circumstances set out within the provision have been engaged.
  • Once that hurdle has been overcome, the court must then consider whether it is appropriate to exercise discretion in favour of setting aside the agreement.

 

Section 33(4) of the Family Law Act, also provides the Court with authority to set aside waivers of spousal support:

(4) The court may set aside a provision for support or a waiver of the right to support in a domestic contract and may determine and order support in an application under subsection (1) although the contract contains an express provision excluding the application of this section,

(a) if the provision for support or the waiver of the right to support results in unconscionable circumstances;

(b) if the provision for support is in favour of or the waiver is by or on behalf of a dependant who qualifies for an allowance for support out of public money; or

(c) if there is default in the payment of support under the contract at the time the application is made.

The Supreme Court of Canada decision in Miglin v Miglin is an important decision. In that case, although Mrs. Miglin was not making a claim to set aside the parties’ Separation Agreement, she was successful in making a claim for spousal support despite the fact that the Separation Agreement contained comprehensive releases.

It is extremely difficult to succeed in having a domestic contract set aside by a Court. In the recent case Caparello v Henkenhaf, Justice Gray stated the following, “Where an agreement has been negotiated under impeccable circumstances, and each party has had access to competent legal and other expert advice, it should only be a rare case where an agreement will be set aside.”

Challenging a domestic contract can be complicated. For more information and assistance with respect to your family law matter, click here to book a consultation.

By Farah Sidi, Lawyer, Galbraith Family Law

Although legislation may seem quite uninteresting to many, it does have a very significant impact on families separating in Canada and the outcomes of family law matters. Legislation reflects how the family structure is viewed in society and when laws are not updated or modernized in the way Canadian families have changed over the years, it can create big issues. Gone are the days where dad was considered the breadwinner and mom was the stay-at-home wife. These stereotypes have been thrown out the window for many years now and it is time that the outdated legislation in Canada change to align with the modern family structure.

Times have changed and we must celebrate these changes in legislation.

On June 21, 2019 the federal government passed Bill C-78 to implement changes to the federal Divorce Act. The changes to the Divorce Act will come into force on March 1, 2021.

Following suit with the changes made by the federal government, it was only a matter of time before Ontario also brought long-awaited change to the Children’s Law Reform Act, and other legislation affecting families, by way of Bill 207 which came into effect on September 24, 2020.

Ontario Attorney General, Doug Downey stated, “we’re proposing common-sense changes to simplify Ontario’s family law system, allowing parents and guardians to spend less time on paperwork and court appearances and more time making plans to support and care for their children…families encounter the family law system in some of life’s most difficult moments, and the changes we are proposing will make the process easier to navigate and understand for parents and their children.”

Bill 207 is important because if passed, it will ensure that the provincial legislation will be aligned with the recent changes to the federal legislation, meaning that families will be governed by similar laws notwithstanding whether their claim is being brought under the federal legislation in the case of married spouses, or provincial legislation in the case of unmarried spouses.

With the federal and provincial legislation being aligned, separating spouses can take comfort knowing that children of both married and unmarried spouses would be treated in the same manner, under either legislation.

What is Bill 207?

Bill 207 also known as the Moving Ontario Family Law Forward Act is provincial legislation which has been designed to simplify the justice system for families and to protect children.

The Moving Ontario Family Law Forward Act, 2020 aims to accomplish three significant objectives which will make the family law process easier, faster and more affordable for litigants:

  1. make the family law appeals process clearer and easier to navigate by
  • clarifying when and how family law cases can be appealed,
  • help families reach final decisions faster in difficult cases; and,
  • make the appeals process more consistent no matter where their trial is heard.2. align Ontario’s family laws with federal changes to the Divorce Act. Changes include modernizing language around the terms custody and access, so they are consistent, clear and streamlined.
    • previously used terms such as “custody”, “decision making responsibility” and “access” will be replaced with more child focused terms like “parenting time”, “parenting order”, and “contact order”3. allow parents and caregivers to obtain certified copies of child support notices from the online child support service so support amounts can be more easily managed or enforced outside the province.

Some other notable changes that will be implemented by Bill 207:

  • a clear emphasis on the direction and promotion of alternative dispute resolution (ADR) methods to settlement of family law matters (i.e. negotiation, mediation or collaborative law)
    • In order to achieve its objective of resolving cases in an easier, faster and more affordable manner, Bill 207 provides an active directive requiring both legal professionals and families to engage in ADR methods to achieve timely and more cost-effective resolutions of matters when appropriate
    • “to the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Part through an alternative dispute resolution process, such as negotiation, mediation or collaborative law” Section 33.1(3)
  • a wider definition of family violence
  • the definition of “family violence” in the new legislation, means “any conduct by a family member towards another family member that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour, or that causes the other family member to fear for their own safety or for that of another person, and, in the case of a child, includes direct or indirect exposure to such conduct”
  • a detailed list of various types of conduct that would fall within the new definition of family violence
  • the act of violence “need not constitute a criminal offence” in order to fall within the definition of family violence in the Act and includes physical abuse, sexual abuse, threats to kill or cause bodily harm to a person, harassment including stalking, failure to provide the necessaries of life, psychological abuse, financial abuse, threats to kill or harm an animal or damage property.
  • a new rebuttable presumption of joint decision making
  • Bill 207 creates a presumption that parties are equally entitled to decision-making responsibility with respect to the child, unless otherwise provided for in the Act. This is new and a very significant change to previous legislation surrounding decision making
  • providing a framework to deal with change in residence and relocation issues
    • The Bill creates a detailed framework for parties seeking to make a change in residence as well as a relocation, and it creates a rebuttable presumption that the parents with primary care of the child can move with the child
    • There is also a difference identified between a basic change in residence and a relocation which is defined to have a significant impact on another person with decision making responsibility, parenting or contact under a contact order

The provincial government’s news release in relation to Bill 207 can be found here: https://news.ontario.ca/en/release/58519/ontario-introduces-legislation-to-simplify-justice-system-for-families-and-protect-children

For information and assistance with respect to your family law matter, click here to book a consultation.

When you marry, any existing Will is automatically revoked. In the situation of this, the rule of law takes charge in deciding how your assets are divided, until the parties involved in the marriage contract renew their Wills to effect their new status. Mostly, this would mean your entire estate would go to your wife, husband or civil partner – which may not be what you precisely want.

Making a Will before marriage is important and safer than avoiding making a Will, but there can be complications. If you have clear ideas about the management and distribution of your estate, seeking advice at an early stage is a vital step.

Alternatively, a Will can remain valid after a marriage takes place if it is made beforehand in contemplation of marriage. This creates a whole lot of opportunities for fiancés or fiancées. Both parties can now make Wills and assert as such that it is made in anticipation of their upcoming marriage.

Importantly, it is not enough to expect to marry in general, or sometime in the future – you must expect to marry a specific person, and in a reasonable amount of time. Making a Will in contemplation of marriage or a registered civil partnership should help your loved ones re

ceive as much of your estate as you would like them to.

What does it mean when your Will is not Valid?

A person who dies without leaving a will is called an intestate person. When a person dies without leaving a valid Will, their property (the estate) must be shared out according to certain rules. These are called the rules of intestacy.

Intestacy

It is important that every person above the threshold age of eighteen take their Wills seriously. If you make a Will that is not legally valid, the rules of intestacy will decide how the estate will be shared out, not the wishes expressed in the will.

The legal standpoint in the case of an invalid Will is as though there was no will, to begin with.

Now without a Will, the rules around intestacy are complex, differing between the regions. Fundamentally, the issue is that you do not have control over who may receive what, making the period even more stressful and emotional for the surviving spouse.

Naturally, only married or civil partners and some other close relatives can inherit under the rules of intestacy. There are general guidelines to interstate laws like, for instance, if there are no surviving children, grandchildren or great-grandchildren, the partner will inherit the whole estate of the deceased.

However, if you have a spouse and children, chances are your spouse will not be your sole beneficiary. It’s best to avoid the hassle of intestacy if you can. In the unfortunate event of death, your loved ones will be less bothered for it.

Will after marriage

Marriages are legal contracts that have repercussions on many other legal aspects of your life. These include your federal income taxes. If you want to revise a Will that was made before marriage, it has to be done right to avoid worst-case scenarios. A popular incentive is that married couples or civil partners may leave everything to one partner and be exempt from inheritance tax.

Good advice, when making a Will usually is to get professional legal help. Your lawyer will help you make sure all the I’s are dotted and the T’s crossed as required by your province’s legal codes.

Mirror will and Joint will

Mirror Wills are simply separate Wills that are nonetheless virtually identical, leaving the estate to the same beneficiaries. This is a common solution when both parties want the same will.

A joint Will is another way this can be achieved. A joint Will is a single Will that applies to both parties of the union. The problem with mirror wills is that although the wills themselves are legally binding, there is no legally binding contract between the husband and wife.

Everyone is free to decide how their estate is gifted, and there is nothing to stop someone from revoking a mirrored Will without his or her spouse knowing, or changing the will at a later date (for example on remarriage after the death of the spouse).

After divorce

Wills made prior to divorce remain valid. However, it is considered a healthy practice legally to review your will whenever your personal situation changes. In the case of divorce, your spouse ceases to be an executor of your will. Depending on the situation, this may not be what you want. Sorting this out is paramount to avoid future hicks. You can make a new Will at any time after separation before the divorce to avoid these issues occurring at all and do not have to await the decree absolute.

Remarriage

In the situation of a remarriage just like a newly-wed couple, the will of the parties involved becomes null. Similarly, in the case of remarriages, only Wills made in contemplation of the marriage to a specific person retain validity after the marriage.

Conclusion

When it comes to the issues of important binding legal documents such as wills you should not think of making them as a once-in-a-lifetime event. You should always have a Will in place that reflects your current situation. You should write your first will as soon as you are an adult, and then update it throughout your life as your circumstances change.

 

To book a consultation, please press here: Book a Consultation

By: Brian Galbraith

A hot issue debated by parents is whether to send their children to school or have them do home-schooling. Once the school year has begun, you may be wondering if you made the right decision. If you are separated or divorced, it may be an even more difficult issue to resolve. You both wish the best for your children but disagree about whether that means attend school or stay at home. We can help.

It may be best for your both to attend mediation to discuss the issues. You and the other parent would meet with a mediator who would help you discuss the issues in a civil, respectful and productive way. In many cases, this will result in an agreement. The benefit of mediation is that the mediator will help you have a full discussion of the issue, considering every option and every possible creative resolution.

Another option is called “Collaborative Practice”. In this process each of you hires a lawyer and together you hire a Family Professional. This is a social worker or psychologist and has special training regarding the needs of children whose parents are separating or who have already separated. The Family Professional will meet with both of you and engage you in conversations about why you are taking your position regarding the children attending school. A meeting with the two lawyers, the Family Professional and the two clients will result in a robust discussion about the issue and most often result in an agreement. In about 95% of cases an agreement is reached. It works and is efficient.

Another option is Family Court. A judge will hear the merits of both sides and decide. The courts will soon be full of cases regarding this issue. Each case has to be decided based on its own merits.

When considering the issue of whether to send your children to school the question a judge must ask is “What is in the best interests of your children?”  During this pandemic, you must consider the risks of your children becoming sick or transmitting the virus to others in your family or community. What is the rate of infection in your community? Are there any special health considerations for your children or people in your home that makes them especially vulnerable? What alternatives are available, such as home schooling? What will be better for your children’s emotional and psychological wellbeing – going to school or homeschooling?

At the time of writing this blog, I am aware of just one published court case regarding this issue. The case is called Chase v. Chase, 2020 ONSC 5083 (CanLII). The parents share joint custody and the child is living in each parent’s home about 50%. One parent wanted the child to be homeschooled using the government’s online learning platform. The other parent wanted the child to attend school. In this case, the judge said that it was not the role of the court to determine whether the plan to open the schools was safe. The judge stated, “There are experts on all sides of the Covid-19 debate, however, the decision to re-open schools and the steps being taken to protect children and staff fall within the purview of the

Ontario government.” In other words, the judge did not want to second-guess the government’s decision but that did not end the issue. The judge then asked “If [the child] returns to school will he, or anyone in either parent’s home, be at an unacceptable risk of harm?” The judge concluded that the risk was not unacceptable and so ordered that the child attend school and not be homeschooled.

This is just one judge’s opinion and does not mean every judge will reach the same conclusion in other cases. It is up to the individual judge to determine what is in the best interests of the child based on the circumstances of each family.

I can imagine many circumstances where the judge will determine that the risks to the child or to others in the parent’s home are unacceptable and the child will be ordered to be educated in the home. It will just depend on the facts of the case.

Raising children is hard work. Deciding what is best for them during normal times is tough enough but it is even harder during the pandemic. As parents, we personally struggled with this decision too. I recently heard the Prime Minister of Canada say that he and his wife were considering what was best for their children and they were undecided. Everyone struggles with this important decision and we will continue to second-guess our decision as time progresses.

If you need help resolving this difficult issue, or any parenting issue, you are not alone. Please contact us at Galbraith Family Law. We have Toronto, York Region and Simcoe County family law lawyers ready to help you now. That’s what we do every day. Help families resolve conflict.

PDF format, sync.com, Zoom, email, screen-sharing, host, co-host, muted, video feed.  These words are now part of the parlance of the new and improved court system…at least in some Ontario jurisdictions.  However, in other Ontario jurisdictions, Jurassic park is still alive and well and unfortunately for the people that we, the legal profession serve, dinosaur judges still rule the planet in those jurisdictions.

Just prior to the strike of Covid19, permission to attend by teleconference, any court appearance, was unheard of.  Out of necessity, teleconferences have now become the norm.  However, Zoom is not the norm. But, this is changing in some places.

For example, a very enlightened judge in Ottawa, Justice Audet of the Ontario Superior Court of Justice, scheduled a trial to be conducted entirely by video conference. Here is what Justice Audet did to manage the use of technology:

Every witness to be called at trial swore an affidavit of their testimony and if that witness was to be cross-examined then they would do so by Zoom conference. Wow!

The court registrar was to be the host and the judge was the co-host of the Zoom conference. That makes perfect sense!

To manage documents, the sync.com document sharing platform was used. All affidavits were to be assembled in on

e searchable PDF document called “Joint Brief of Affidavits” and all other documents were to be assembled in one searchable PDF document called “Joint Brief of Documents”.  A table of contents and bookmarks was used to organize each affidavit/document and uploaded to the sync.com platform.  Nice and neat and tidy!

In case of technological difficulties, phone numbers were to be provided to the court’s registrar and counsel of every witness and every witness was to have the phone number of the court’s registrar and counsel. You never know when technology might fail!

In the case of a witness who is uncomfortable with the technology, a third party could provide assistance only if permission is sought beforehand. Don’t worry grandma, we’ve got you covered!

Each witness is to receive a copy of the OntarioBar Association’s Best Practices for Remote Hearings: “On-Screen Tips for Counsel, Parties and Witnesses” at least two business days before the commencement of the trial. Don’t wear your pyjamas’s to court!

A witness can’t use the internet or review any documents or rely on notes unless permitted by the court.  Don’t cheat!

 

A witness is permitted to refer to their own affidavit, those documents that might be shared on their screen with them, or documents referred to them by counsel during their cross-examination and emailed to them in PDF format. Don’t worry, you don’t have to memorize everything!

During witness examinations, the video feed is restricted to the trial judge, the witness, the examining lawyer and opposing counsel. Other than those individuals, and the registry officer, all other participants would be muted and would have no video feed (their faces would not be shown on the screen) during the time they are giving their evidence. No peeking!

During breaks, participants are to be muted and turn off their cameras for the duration of the break, rather than disconnecting from the Zoom session. At the appointed time, participants shall turn on their cameras to signal that they have returned from break. Remember to come back!

During these breaks, while the witness is giving evidence and until the completion of such evidence, the witness shall not communicate with any other persons about the substance of their Examination.  The witness may communicate with counsel or another person while on a break prior to the commencement of their cross-examination, provided that any such communication is consistent with counsel’s professional obligations and applicable rules of the Court. Don’t compare notes with other witnesses!

Technology made simple.  More Zoom, please!

I have had several clients ask me if their case is truly “urgent” and if it can be heard by a judge during the COVID-19 crisis. Right now, since Family Courts in Ontario are all closed, only the most urgent cases are being heard by the Courts. However, the legal definition of “urgency” is different than that used by people in their daily lives. What you or I may see as “urgent” may be different than what a judge deems “urgent”. My job as a lawyer is to help people determine whether their specific case is ‘urgent’ or not. It’s also important to know that there are legally required steps before you can apply to the Court for a judge’s input.

There have been a number of custody and access cases since the closure of the Courts. I strongly recommend that you consult with a lawyer about your individual circumstances to see if your own special circumstances could be considered “urgent”. Many people automatically assume that having a (former) spouse who is in the healthcare field (such as a nurse or doctor) may stop that person from seeing your child during the COVID-19 crisis, and this is not necessarily true! I will provide some guidance below on cases that may assist you, and that may be comparable to your situation. Please note that this is not legal advice, only legal information.

To start, on March 15, 2020, the Office of the Chief Justice issued a “Notice to the Profession”.

Part of the Notice to the Profession specified:

Only urgent family law events as determined by the presiding justice […] will be heard during this emergency period, including:

  1. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
  2. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
  3. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
  4. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings. [Emphasis in original.]

The onus is on the person applying to the Court (the applicant) to convince the judge that his/her case falls within the above categories and is therefore “urgent”. I will discuss some cases below to illustrate how a Court may determine urgency.

Parenting Cases

  • Ribeiro v. Wright: One of the first cases released during COVID-19 that was an ‘urgent/emergency motion’ case was Ribeiro v. Wright on March 24, 2020. The parties had joint custody of their 9 year old son since a Final Order in 2012. Primary residence has always been with the mother. The father always had access on alternate weekends from Friday to Sunday. The mother brought a motion to suspend all in-person access because of COVID-19. The mother was concerned that the father would not maintain social distancing for the child during his parenting time. She did not want her son leaving the home for any reason, including seeing his father, as she is practicing social isolation.

The judge decided this matter was not urgent. He sympathized with the mother’s anxiety and said this is a stressful time for everyone. However, there is a presumption during COVID-19 that all court orders or separation agreements must be respected and complied with. Meaningful and personal contact with both parents is assumed to be in the best interests of the child. Justice Pazaratz said that we cannot place all children’s lives “on hold” indefinitely without risking important family relationships. Children have to continue to see both parents, now more than ever.

The judge clarified that there may have to be a temporary hold on seeing the other parent if that parent is self-isolating for 14 days as a result of recent travel, personal illness or exposure to the illness. However, access is supposed to go ahead as planned until there is some reason, such as the above, for not proceeding with access for a temporary period.

The judge said that the Courts will deal with COVID-19 parenting issues on a case-by-case basis. He also gave the following recommendations:

  1. The parent bringing the urgent motion will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.
  2. The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing, use of disinfectants, compliance with public safety directives, etc.
  3. Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner.
  4. Both parents should spend as much time with their child at home, at this time.

Although this was not specifically mentioned in this case, it is important to note the rule that applies to emergency/urgent motions: If there is a dispute, before bringing the matter to the Court, both parents must attempt to negotiate the matter between themselves or their legal counsel, or mediate the dispute with a mediator. In other words, Court should be the last resort wherever possible. There are a few exceptions to this rule in some limited cases of urgency (such as a child abduction case, the risk of immediate harm to a child, or a domestic abuse situation where you are unable to speak with the abuser and may need to urgently apply to the Court). However, Courts urge wherever possible, you should try to negotiate outside of Court with the other parent. If you do not do that, the Court may reject your case as not being truly urgent, because you did not do this first step.

  • Skuce v. Skuce: This was a motion argued over a telephone conference in Ottawa and the Court found the matter was urgent. The 3 children (ages 3, 5 and 7) reside with their mother. After the parties’ separation in May 2019, the parties agreed that the Father would have supervised visits with the children, supervised by his mother or her husband. In November 2019, the parties signed a Parenting Agreement which stated that the Father’s access with the children would be supervised by the Mother for 2.5 hours each Saturday or Sunday and 15 minutes at the children’s school on Tuesday mornings.

The Father is a recovering drug and alcohol addict and states that he has been free from drugs/alcohol since November 2019. Prior to that time, he indicated he was sober from 2010 to May 2018. He outlined all of his recovery plans, including his stay at the Bellwood Rehabilitation Centre in Toronto for a 6-week program in the fall of 2019. He returns to the Sobriety House in the evenings for therapy. The Sobriety House has a number of measures to comply with COVID-19 protocol, but the mother was still concerned that he was staying in a house with many people from different households. The Mother wanted to suspend in-person access visits.

The Father requested that he have face to face contact with the children, but that his parents supervise the visits. The Mother requested all contact with the children and their father be over Facetime or video conferencing.

The Court decided the matter is urgent and noted that the Father intends to move out of the Sobriety House and have his access supervised by his mother. The judge found this to be reasonable and ordered access to return to normal, as per the parties’ agreement. The judge recommended access occur at the paternal grandmother’s home. He also noted that parents are to maintain the children’s routine and scheduling as much as possible to give a sense of normalcy and maintain relationships.

Justice Doyle ruled that given the exposure by the Father to at least eight other residents and staff members, it is prudent to limit his risk to the children until the Father has returned home to his parents and has not been in contact with other people. The judge recommended that the Father not have in-person visits with the children between March 28th until April 11th, and the children could see their father on April 11th. Until then, the children could have visits with their Father over Facetime or video conferencing.

Financial Distress

  • The third case does not concern ‘urgency’ with respect to access-related issues, but rather urgency due to financial distress. The case of Thomas v. Wohleber concerns a matter where the husband, Jeremy, removed $775,643.48 from the parties’ joint line of credit, thereby draining the entire account. The line of credit (LOC) was secured against the parties’ matrimonial home in Oakville. The wife, Barbara, requested the return of those funds, the freezing of the LOC account, a non-dissipation order and financial disclosure from Jeremy.

Justice Kurz recognized Barbara’s concerns regarding Jeremy’s unilateral removal of a significant sum of money. This can create an urgent situation for Barbara and the parties’ children. The judge acknowledged that this case meets the high test of urgency. Justice Kurz ordered the immediate return to the LOC of the removed funds by Jeremy, and the account’s freezing once the funds are returned. He also ordered that funds should not be dissipated going forward.

Justice Kurz outlined the following factors as being necessary to meet the urgency requirement:

  1. The concern must be immediate; that it cannot await resolution at a later date;
  2. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of the parties and/or their children;
  3. The concerns must be definite and material rather than speculative. It must relate to something tangible (a spouse or child’s health, welfare or dire financial circumstances) rather than a theoretical possibility.
  4. The concern must be one that has been clearly described in evidence and with examples that describe how the matter is urgent.

The judge recognized that Jeremy’s depletion of the entire LOC may deprive Barbara of necessary resources to support herself and the children during these difficult times. Barbara is also jointly and severally responsible for repaying all funds that Jeremy removed. She would be unable to pay off the LOC if the bank, RBC, were to call the loan.

These among other factors described by Justice Kurz led the judge to see this was an urgent situation.

Spousal and Child Support

The recent case of Theis v. Theis is one of the first cases to discuss urgency as it relates to spousal and child support. In summary, the parties separated on June 1, 2015 after a twelve-year marriage. Their children spend equal time with each parent.

Ms. Theis owns a small business providing esthetic services. She has been unable to operate her business since March 25, 2020 due to the Ontario government ordering the closure of non-essential business. She stated that she had not worked much in the weeks previous to the mandatory shutdown. Ms. Theis continues to be obliged to pay rent and utilities for her business, as well as personal expenses for herself and for the children when they are in her care.

Ms. Theis will apply for the Canada Emergency Response Benefit (CERB) which she anticipates will provide her with $2,000 per month. However, she does not expect this to cover all her expenses and even after her business re-opens, it will take a while to rebuild her client base.

Ms. Theis also stated that Mr. Theis is presently in arrears of child support in the amount of $4,682.26. The monthly child support amount is $1,348.00.

Ms. Theis stated: “I am experiencing dire financial circumstances and am seeking an order for the release of $85,000 from the sale proceeds which is the majority of my share from the matrimonial home.” She also said that from that amount she requires is almost $30,000 for legal fees (fees owed plus retainer).

However, despite the circumstances being difficult for Ms. Theis, the judge found that the evidence does not conclude that Ms. Theis is in dire financial circumstances. Justice Madsen clarified that Ms. Theis may be experiencing dire financial circumstances, but she has not made out her case to the Court. She needs more evidence, including the following:

  1. Ms. Theis’ previous income before the COVID 19 situation;
  2.  Ms. Theis’ total income now from all sources;
  3.    Ms. Theis’ personal and business expenses; and
  4.    The extent of Ms. Theis’ resources more generally.

No financial statement was provided to the Court with Ms. Theis’ motion. Given that part of the test is “dire issues related to the parties’ financial circumstances”. the judge stated that an up-to-date financial statement showing all her expenses and income, along with her current assets and debts, would be essential.

Justice Maden urged the parties to try to resolve the issue for negotiation. However, in the event they could not negotiate a settlement, Ms. Theis has the right to bring the case before the Court again, with better evidence.

Summary

These cases provide you with some examples of how judges have viewed and judged “urgency” in both parenting and financial distress cases. However, every case is different. We always advise people going through separations to consult with lawyers to receive the best legal advice pertaining to your individual situation. If you are wondering whether your situation qualifies as urgent or are looking for any legal advice during COVID-19, feel free to call our office at 705-727-4242. We are always happy to assist and are taking on new clients at this time. We look forward to meeting clients over phone or video-conferencing (Zoom or Skype) at this time.

Article by: Livia Jozsa

Livia Jozsa often assists clients with custody and parenting issues, along with division of property and finances. Please see her biography here: https://www.galbraithfamilylaw.com/barrie-divorce-lawyers/livia-jozsa/

Cases referenced in article:

In the Canadian commercial law context, electronic trials (paperless trials), while not the norm, have been embraced by some members of the judiciary as early as 2014.  For example, Justice D.M. Brown, in Bank of Montreal v Fabish, a commercial litigation case, called upon members of the judiciary and counsel to make greater use of modern information technologies in court.  Justice Brown ordered an electronic trial over the objection of counsel.  In another commercial litigation case of the Ontario Superior court of Justice, Chandra v CBC, Justice Graeme Mew in 2015 held an electronic trial, in that all documents referred to at trial were stored on a database managed by the registrar and displayed on video screens in the courtroom.  Witnesses testified remotely by video conference and were shown trial documents displayed on a screen both in the courtroom and in the room in which the witness was present.  In the courtroom was seen a split screen with one frame displaying the document and the other frame showing the live witness. According to Justice Mew, sound quality was excellent, counsel and registrar were able to efficiently manage the process, and the flow of testimony was not markedly less spontaneous than it would have been if the witness had been present in court. The entire experience was, from the perspective of Justice Mew, “entirely satisfactory.”

Paperless trials and for that matter, paperless motions, reduce court time, because counsel, witnesses and the judge don’t have to search through volumes of documents to find the correct document. Instead, the document is viewed by all on a screen in the court room. Documents can be easily located in an electronic document brief stored and managed by the court clerk.   Documents that are presented to a witness during trial can be scanned at the end of each day and downloaded and marked as a trial exhibit in a separate Trial exhibit folder. Lawyers and the trial judge don’t have to transport huge boxes of documents and instead                                                  can simply carry multiple documents on their laptop, tablet or USB key.

Internet access and video monitors could be easily set up in courtrooms. There are already some courtrooms at particular courthouses that are wired for internet connectivity and are equipped with monitors. For example, a courtroom at the Barrie courthouse, used in criminal trials is equipped with this technological capability.  There is the risk of technological failure but this can be remedied by backing up regularly and ensuring that documents can be printed in case the internet is interrupted.  Document management software already exists and is being used in commercial litigation cases.  Trial decisions could be made quicker as the judge can click on a hyperlink referred to in a factum or submissions to go directly to the case and paragraph that is being referenced. In Ontario, The Guide Concerning e-Delivery of Documents in the Ontario Superior Court of Justice, provides the protocols in place and format requirements for electronic court documents in the Ontario Superior Court. Most judges already have laptops that they use in the courtroom. Scanners could be made available to clerks to download any documents presented during the course of a trial or at a motion.

In 2014, The Supreme Court of Canada stated in Hryniak v. Mauldin that a culture shift is needed to ensure a just adjudication of disputes that is proportionate, timely and affordable. In the family law context, The Ontario Family Law Rules and the Ontario Rules of Civil Procedure permit videoconferencing. E-filing of documents is permitted in a limited way but with the Covid- 19 crisis, use of e-filing of documents has been expanded. In family law mobility cases, Video link up with courts in other jurisdictions, together with e-filing of documents would make family law cases much timelier and affordable.  The technological capability has been proven in the commercial law context.  It is now time to use this know how in the family law context.

 

 

With Covid-19 our family courts have virtually ground to a halt. Yet, Skype has been readily available for many years and Zoom meetings are now routinely being used by members of the public in this time of social distancing.

In 2014, Justice D.M. Brown, in Bank of Montreal v Fabish, a commercial litigation case, had this to say about the Canadian legal system:

Let me express my profound frustration as a judge who has tried to encourage both counsel and fellow judges to make greater use of modern information technologies in our Court. Those who make up the public court system – be they the judges adjudicating the cases or the counsel pleading them – provide a service to members of the public who face legal problems…As a service it must be alive to the way in which the community it serves handles and communicates information…Our community has undergone radical changes in the way it handles and communicates information.  Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?   Our Court must choose: are we a Court of the Past or a Court of the Future? I vote for a Court of the Future…

In the commercial law context, electronic trials have been conducted resulting in a paperless court. Witnesses have been permitted to provide testimony by way of video conference.  Such evidence is given orally, under oath or affirmation and is observable “live” as it would be with the witness present in the courtroom.  Questions are asked and answered in the usual way.  The witness can be closely observed. Findings of fact can be made, and credibility assessed.  Indeed, in its June 2015 report, Best Practices for Civil Trials, a Task Force of the Advocates Society, video technology was recommended by the Advocates Society and recognized by the courts to have technologically advanced such that courts found that it is possible to make findings of fact and decisions about credibility based on video conference evidence.

Criminal courts have permitted witnesses to testify outside the courtroom and in a location other than the courthouse where the trial is taking place by means of closed-circuit television or otherwise. Many modern courthouses have witness rooms linked to a courtroom by a closed-circuit television system (CCTV).

In the family law context, Justice Ellen Murray, in the 2015 case, Paiva v. Corpening permitted the mother who was residing in Denmark to testify by Skype.

In 2014, The Supreme Court of Canada stated in Hryniak v. Mauldin that a culture shift is needed to ensure a just adjudication of disputes that is proportionate, timely and affordable.

The Ontario Family Law Rules and the Ontario Rules of Civil Procedure permit video conferencing.

However, despite, the “go ahead” to use technology, the family law courts, have all but shut down because of Covid-19.  Why not use Skype or Zoom to conduct first appearance court, motions, conferences and in fact trials? Instead, all family law matters have been indefinitely adjourned. The backlog of cases will be unfathomable.   Meanwhile, the risk of children remaining in abusive households, increased incidence of domestic violence during this period of isolation and of children being alienated from parents because of this pandemic goes unchecked.  Only extremely urgent matters will be heard by teleconference and there are not enough phone lines to handle all these matters.

Task Forces are now being initiated to study the issue.  In the meantime, the public, whom the legal system is supposed to service, is waiting and has been waiting for many years for reforms, including technological reforms, to be implemented.

Covid-19 is a wake-up call to the legal profession in general but it is even more important in the family law context to provide a better response to this pandemic then to close the family courts indefinitely without any real-time solution for the families that we serve.  I, too, like justice Brown, vote for a court not of the past but of the future.  With Covid-19, we all have now been propelled into the future and we can no longer wait for technology to take hold and be accepted by the judiciary and by lawyers.  The public deserves a better and more immediate response.

 

 

 

 

 

 

 

 

 

 

By Rod Grierson, lawyer at Galbraith Family Law

1986, oh what a year. Oprah was just starting her decades-long reign as the queen of television, Tom Cruise thrilled audiences with his plane maneuvers in Top Gun, people thought parachute pants were fashionable, and the government of Canada passed a progressive piece of legislation named the Divorce Act. Like parachute pants, and unlike Oprah and Tom Cruise, the Divorce Act has not aged well. In recent years there has been growing consensus among legal scholars, lawyers, judges, and individuals going through the divorce process that the Divorce Act is in need of some freshening up. The Liberal government must have been listening, because in 2018 they passed Bill C-78, which contained many meaningful changes to the Divorce Act. It is anticipated that the changes will come into effect in the summer of 2020. This blog post will provide a few of the most impactful changes to the Act.

 

Replacing “custody” and “access” with terminology related to “parenting”

The 2019 amendments to the Act represent a paradigmatic shift in thinking about parenting for divorced couples with children. Possibly the most noticeable change is a shift away from the archaic concepts of “custody” and “access” to more child-focused terminology relating to “parenting”. Having their roots in property law, “custody” and “access” connote meanings of possession and ownership. Those in the legal community have long argued that these terms have contributed to the adversarial nature of family law and have created winners and losers in custody disputes. Under the amendments, courts will now make “parenting orders” that allocate or schedule “parenting time” and “decision-making responsibility.”

Similar to access, parenting time refers to the time a person in the role of the parent is responsible for a child, including time when the child is in school or daycare. Parenting time will be incorporated into parenting plans that are intended to be living documents that may be revised as children grow older and circumstances change. Most importantly, the amendments allow for parenting plans to be revised without court involvement, encouraging parents to work together to amend parenting plans as

necessary.

It is important to note that the amendments do not presume equal parenting time between the parents. The only consideration when allocating parenting time is the best interests of the child test. Courts will only provide equal parenting time if it is convinced that it is in the best interests of the child.

Decision-making responsibility mirrors custody in that it relates to significant decisions about the child’s health and education. However, unlike custody orders, courts will now be able to allocate different decision-making responsibility to each parent. This may be helpful when joint decision-making would not work in all instances, but the parties are able to agree on decisions relating to particular subject matters.

It is hoped that the terminology changes will reduce conflict between the parties, focus on the well-being of the children, and provide greater flexibility to changes in parenting plans.

 

Promoting the best interests of the child

The best interests of the child has been a longstanding guiding principle in Canadian family law. There is virtually universal consensus that the best interests of the child is the appropriate basis upon which to make decisions related to children. Despite the primacy of the best interests of the child standard, the Act did not offer courts any best interests factors. The 2019 amendments provide a non-exhaustive list of best interests factors and a framework for approaching those factors, namely, that courts shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

 

Contact orders

Special people in a child’s life, such as grandparents, will now be able to seek “contact orders” to be able to spend time with the child. Additionally, the amendments will recognize that when determining the best interests of the child, the relationship of grandparents and other important people in the child’s life shall be considered. There is no presumption, however, that grandparents or other important people in the child’s life will have contact with the child. A person seeking contact with a child must seek leave of the court to make an application for contact or parenting time.

 

Changes of residence and relocation

 One of the most contentious and heavily litigated issues in separation and divorce is residence changes and relocation of children. There has been a great deal of criticism that the current legal framework does not provide sufficient certainty to parties dealing with relocation. The 2019 amendments set out a framework for changes of residence and relocation that includes three broad components:

  1. Notice of a proposed change of residence or relocation,
  2. Additional best interests criteria for relocation cases, and
  3. Burdens of proof that will apply in certain relocation cases.

When applying these principles the court must consider any significant impact the move would have on the relationship with a person with parenting time or decision-making responsibility.

A person with parenting time or decision-making responsibility will be required to provide notice to any person who also has parenting time or decision-making responsibility of their impending move. The move is considered a relocation if it has significant impact on the child’s relationship with others. The relocating person will be required to provide 60 days notice in advance of the proposed move and provide a proposal about how the parenting arrangements could be changed. The notice provisions apply whether or not the person is intending to move with the child.

If a person objects to the move, they will be required to attempt to resolve the issues out of court first. If resolution fails, a person can object to the move by use of a standard form or by filing a court application. If an objection is brought through the standard form, the person proposing the move will have to bring a court application to seek permission to move. If there is no objection 30 days after the notice of move was received, the person proposing the move will be entitled to move on the date stipulated in the notice.

In addition to the best interests of the child criteria, there are seven additional criteria that a court shall consider when faced with a relocation request. In its analysis a court is no longer to consider whether the person would move if they were not allowed to move with the child.

The burden of proof of relocation depends on the circumstances. If parents have equal time with the child, the person proposing the move would have to demonstrate why the move is in the child’s best interests. Alternatively, if one parent has primary responsibility of the child, the parent opposing the move would have to demonstrate why the move is not in the child’s best interests.

 

Family violence

The 2019 amendments make explicit reference to the deleterious effects of family violence on children and include several provisions to address family violence. The definition of family violence is defined as any conduct that is violent, threatening, or a pattern of coercive and controlling behaviour, or that causes a family member to fear for their safety. The definition recognizes that incidences of family violence do not necessarily constitute a criminal offence.

The court will be under a duty in any divorce proceedings in which a party seeks a parenting order or child or spousal support order to consider any civil protection, child protection or criminal proceedings involving the parties. When making determinations of the best interests of the child, the court shall consider the presence of family violence and its impact on the ability of a person engaged in family violence to care for and meet the needs of the child.

 

Access to justice

The federal government has made access to justice a priority in the amendments. One of the ways they have chosen to promote access to justice is by encouraging the use of alternative dispute resolution mechanisms, such as mediation, negotiation, and collaborative law. Parties will now have an obligation to attempt alternative dispute resolutions to the extent that it is appropriate to do so.

 

Conclusion

This blog post has attempted to provide a brief overview of the upcoming changes to the Divorce Act. The changes are a welcome update to the Act and will hopefully provide individuals seeking a divorce greater certainty in the process and assist in facilitating greater cooperation between the parties throughout the process.