Caught in the Middle – Children’s Voices in Disputes About Parenting

Without a doubt, one of the most frequently asked questions I receive from clients is “When can my child decide who they want to live with?”

At a certain age, children’s views and preferences about their parenting arrangements are given more weight and consideration. There is no magic age at which this occurs.  Some children are very mature and articulate at 11 while there are some 14 years old who may be less mature and unable to state clearly his or her views and preferences.  Every child is different – there is no one size fits all answer to this question.

Regardless of the child’s age or maturity, I always tell my clients that children have a voice, not a choice. Certainly from a legal perspective, if a matter is before the court, a child’s wishes, as articulate as they may be, are not determinative of the outcome but simply one factor out of many that will be considered in determining what parenting plan is in the child’s best interests.  From a psychological and developmental perspective, many professionals warn against the burden placed on children if they feel that they are the ones to decide the parenting schedule and they have to choose between their parents.

If you are involved in a dispute over parenting and you believe that your child’s voice should be heard, there are a variety of ways to independently ascertain views and preferences of children. This will help to ensure that the views presented are the true wishes of the children and not a reflection of the influence of a parent.  Some of these options include:

  • Requesting that the Office of the Children’s lawyer be appointed to represent the child;
  • Privately retaining a lawyer to ascertain the wishes of the child; or
  • Obtaining a Voice of the Child Report.

It is important in any separation that parents don’t lost sight of what’s in the best interests of their children – even when that may not be what an individual parent wants. Further, while it’s important that children’s voices are heard, it must be done in such a way that it does not place them in the middle of the dispute between the parents

If you have questions about parenting after separation, or any other family law matter, please do not hesitate to contact our Family Law Service Group.

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Special and Extraordinary Expenses and How They’re Paid

All parents know that raising children can be expensive. Clothing, food, daycare, extracurricular activities, medical and dental expenses and post-secondary education are costly for many families.  How these costs are shared after parents separate is an issue that should be addressed in a Separation Agreement or Court Order. There can be many expenses that need to be sorted out between parents and between households.

In family law, expenses generally fit in two categories: those that are covered by child support payments, and those that are extras or add-ons, regularly called special or extraordinary expenses. A roof over your child’s head, food, clothing, and basic necessities tend to be covered by child support payments. Other expenses though, the extras, can be classified as a special expense. Two questions need to be answered though: how does an expense get dubbed a special expense and if it is a special expense, what does this mean for how it’s paid?

What is a Special Expense?

Whether an expense is treated as special or extraordinary depends on a number of factors. These include:

  • What is the expense;
  • Is the expense is in your child’s best interest;
  • Is the expense reasonable in relation to the parents’ (and child’s) ability to pay; and,
  • What was your family’s spending like before separation.

There are set expenses that, by law, are understood to fall into the special expense category. Notably, these are:

  • Daycare and childcare as a result of the parent being unable to provide care due to work, illness, school;
  • Medical and/or dental insurance premiums;
  • Health related expenses exceeding insurance coverage;
  • School or special programs a child needs to take;
  • Post-secondary education; and,
  • Extracurricular activities.

Each of your child’s expenses needs to be looked at through this lens to see if it’s a special expense. What is a special expense for one family may not be a special expense for another.  Not all activities, for example, will necessarily be considered a special expense.

Of course, these still need to be in your child’s best interest and be reasonable.

What about other extras for your child that don’t fall in these categories? Common ones are cell phones, travel for competitive sports, driving lessons, or tutoring. How these are treated is fact specific and can vary from case to case. Parenting arrangements may also impact what is considered a special expense, particularly if the parents have shared parenting and there is a child support set off or the parent’s incomes are relatively equal.

If it’s a Special Expense, How Does it Get Paid?

If an expense is deemed a special expense:

  • The cost of it is shared by both parents. Usually, this is determined to be in proportion to each parent’s income.
  • These contributions are on top of child support payments. This is an extra and, because it’s in your child’s best interest, both parents need to pay towards it.

To ensure contribution and consent, it’s recommended that you and your former partner/spouse have a written agreement to this effect. This is best done via Separation Agreement or, if the matter is in court, via Court Order. An Agreement or Order would set out what’s considered a special expense, how it will be shared, how this will change if incomes change, and how to deal with future expenses.

If you need assistance with your child’s special expenses and with preparing an Agreement, please don’t hesitate to contact any one of our lawyer in the Family Services Group.

School Registration

As the school year draws to a close and children and parents alike are thinking about time off, summer vacation and ice cream, preparing for the next school year is probably not at the top of anyone’s list. However, now may be the best time to prepare for your children’s school registration for the next year.

Deciding on your child’s school is an important decision. Most parents agree on where their child will go to school. However, for separated parents, agreeing on which school your child goes to can be challenging and a difficult conversation to have. The first step is to look at your Separation Agreement, Parenting Agreement or Court Order, if applicable. If you do not have one of these documents in place, you should seek the advice of a family law lawyer.

School registration

If a parent has sole custody or final decision making authority on educational issues, that parent alone can decide the school issue. That decision must be communicated to the other parent as he/she has the right to know. If parents share legal custody and important decisions affecting the children must be made jointly, then parents must agree for a decision to be made. If they do not, neither parent can make a unilateral decision.

It is wise to discuss the school issue with your separated spouse well in advance of a school registration deadline. If you delay the discussion to avoid an anticipated disagreement, the problem will be much bigger when there is no agreement and the school registration deadline looms or has passed.

If you and your separated spouse cannot agree on the school issue, review the Dispute Resolution section of your Separation Agreement. It likely sets out what steps you must take to resolve an outstanding issue. Most Agreements require parties to discuss the issue themselves, with or without the assistance of lawyers. If unsuccessful, mediation is often the next required step. With the assistance of a skilled mediator or other qualified professional, many parents can resolve the school issue and come to an agreement and decide what is in their child’s best interest. If parents still cannot agree, Court litigation or Arbitration (if agreed by the parents) will be required to resolve the issue.

Consider the benefits of a timely discussion and decision on the school issue. The high cost of litigation could otherwise be put towards your child’s education costs. Furthermore, because of delays in the Court system and the time it takes to have your matter heard in Court, most often there is not enough time to have a Judge hear the matter before the school registration deadline. Oftentimes parents lose sight of the emotional harm done to children when they see parents argue. Moreover, Court is public and your dispute is available for all to see and hear.

If you and your spouse do not see eye to eye on which school your child should attend, discuss the issue early and in a child focused manner. If necessary, seek assistance from a skilled neutral professional, like a mediator, who will help you make the decision that is in your child’s best interest.

If you would like to discuss your matter with a family law lawyer, our Family Department is more than happy to assist you. If you would like to pursue mediation, Caspar van Baal is a trained mediator and is prepared to guide you through this process.

Securing Support with Life Insurance: The Dagg v. Cameron Estate Case

life_insuranceWhen negotiating a Separation Agreement, a client’s primary concern centers often around the payment of child and/or spousal support. If there is support to be paid, it is important to ensure that there is a plan in place for that support to continue in the event of the death of the person who is paying support, called the “payor”, prior to the termination of support obligations.  This is often done through life insurance.  It is common practice to include provisions in Separation Agreements or Court Orders that the payor of child and/or spousal support will maintain the recipient of support as a beneficiary of a life insurance policy in order to secure the payor’s support obligations.  For example, if the husband is required to pay support, he may also be required to obtain a life insurance policy and name his spouse as irrevocable beneficiary of the policy so that if he dies, the spouse will have sufficient funds for his or her support.

The issue of security for support was raised in the case of Dagg v. Cameron Estate.  In particular, the question was where a support payor owns a life insurance policy and is required to name the support recipient as irrevocable beneficiary of the policy, what rights does the support recipient have to the policy proceeds in the face of a competing claim of another dependant of the deceased payor brought under the Succession Law Reform Act (“SLRA”). In this case, the first wife had an Order for support and the payor was required to maintain her as beneficiary of a life insurance policy to secure his support obligations.  The payor also, however, had a second wife who made a claim as a dependent after the death of the payor.  In the face of competing claims, the court was left to interpret the provisions of the Succession Law Reform Act.

This case has made its way from the trial level, to the Divisional Court and finally to the Ontario Court of Appeal. The decisions of the courts at the trial level and Divisional Court caused great concern for family law practitioners on how to properly advise clients on security for support obligations.  On May 5th, 2017, the Ontario Court of Appeal released its decision, which has helped to alleviate some of that concern.

Here are the facts of the case:

The deceased person in this case was Stephen Cameron. Stephen died on November 23, 2013 at the age of 48 years old after a brief battle with cancer.

In January 2012, Stephen had separated from his wife, Anastasia. Stephen and Anastasia had been married for 8 years and had two children together.  Shortly after his separation from Anastasia, Stephen began a relationship with Evangeline Dagg, who was the Applicant in the Court case.  In April 2013, Evangeline became pregnant with their child.

In February 2013, Anastasia had obtained a temporary order on consent for child and spousal support. The Order required that Stephen maintain Anastasia as irrevocable beneficiary on any life insurance policy.  A final Order was eventually issued, with the requirement for Stephane to maintain Anastasia as irrevocable beneficiary to continue.

Sadly, in November 2013, Stephen was diagnosed with pancreatic cancer. On November 15, 2013, Stephen changed his life insurance so that on his death, Evangeline would be entitled to 53.6 percent of the insurance money and Anastasia, Derek and Meaghan (the children) would be entitled to the combined total remaining 43.6 percent.  Anastasia became aware of the change to the designation and on November 20, 2013, obtained an Order requiring the insurance company to restore her as the sole beneficiary of Stephen’s life insurance policy.  Stephen died on November 23, 2013.

Under the Succession Law Reform Act, amounts from an insurance policy can be taken back, or “clawed back”, into the estate for the support of a dependant.  Evangeline, in making her application for dependant’s relief, included a request that the proceeds of Stephen’s insurance policy be clawed back into the estate and be available for the claim for support.  Anastasia opposed the claim and argued that she was a creditor of the estate with respect to the insurance policy, given the Order for support and that as such, the claw back should not be permitted.

The trial judge and Divisional Court held that Anastasia could not be characterized as a creditor, given that Stephen was the owner of the life insurance policy. As such, the claw back provisions of the SLRA applied.  This was extremely concerning for family law practitioners given the numerous agreements and Orders in which support obligations were secured by an insurance policy.

Fortunately, the Ontario Court of Appeal overturned the decisions of the lower court and held that Anastasia was a creditor with respect to the amount required to satisfy the deceased person’s support obligations. The Court of Appeal did not have to determine what that amount would be in this case as the parties had settled and the Court’s decision was only with respect to the correct interpretation of the provisions in the SLRA.

It should be noted that while in this case, the support and insurance provisions were in a court order, the decision should equally apply to terms of a Separation Agreement.

So what does this mean for parties who are negotiating support? First, the decision makes it clear that where there is a requirement to maintain a life insurance policy to secure support, that policy will be protected from the claw back provisions of the SLRA, insofar as is required to satisfy the support obligation, either arrears or for future support.  Secondly, in its decision, the Ontario Court of Appeal noted that it is open to parties to structure their affairs in a manner that will avoid the claw back provisions of the SLRA, by transferring ownership of the policy to a dependent spouse or a trustee or by transferring the ownership to joint names.

Family Law on Gifts and Inheritances: Yours to Keep or Yours to Share?

It’s not uncommon for a spouse to get a gift or inheritance from his or her family. Someone will get a sum of money for a down payment towards a first home. Others will get a car gifted to them or an inheritance under a will. But what happens to these assets in a separation? Does an asset given to you stay yours or do you have to share its value with your spouse?

Special Treatment

Upon separation, and if parties are married, all assets and debts accumulated during the marriage are equalized essentially meaning that everything the parties own solely or jointly is pooled together and split equally. Gifts and inheritances, however, are treated in a special way. If you or your spouse receive a gift or inheritance during the marriage, it can be excluded from any division of assets. However, a gift or inheritance needs to be treated a certain way in order for a spouse to be able to claim the exclusion.

Excluding a Gift or Inheritance

You must be able to prove the gift or inheritance still exists at separation. With something like a gifted car or other item, this can be easy – you have the physical item. With money though, this becomes difficult. If you’ve put gifted or inherited money into a joint account or mixed it into your personal savings account, you now won’t be able to show what portion is the gifted or inherited amount. In other words, you can no longer show the gift or inheritance in its original form.

To avoid confusion, keep your monetary gift or inheritance separate. If this money is in its own separate bank account or investment, it’s pretty clear and hard to dispute otherwise.

Tracing

What happens though if you’ve used your gifted or inherited money to buy something else, like a boat or stocks? As long as you can trace the purchase back to the gift or inheritance, this too can be excluded. If only a portion of your purchase was covered by the gifted or inherited funds then only this portion is excluded. Remember though, without a paper trail, excluding an asset is difficult and will likely not be accepted by your spouse and his or her lawyer.

His-Hers

Gifts or Inheritances and the Home

People commonly use gifts or inheritances to purchase or pay down the mortgage on the Matrimonial Home. The money may also be used towards renovations. While it appears innocent, the treatment of gifts and inheritances used for a home is very different. If a home is gifted to you or you use such funds towards the Matrimonial Home, the law will not allow you the exclusion. The value of the home is shared between the spouses upon separation.

Growth on your Gift or Inheritance

While the date of separation value of the gift or inheritance is excluded, any growth is included. This means if your inheritance gained interest or you’ve received other income from it, this would be shared by you and your spouse. This is also true of gifts or inheritances received before you got married – the growth in value will be included in your division of assets.

Protecting your Gift or Inheritance with a Domestic Contract

A Domestic Contract – either a Marriage Contract or Cohabitation Agreement – lets you and your partner or spouse to protect any inheritances or gifts you may have. If a home has been gifted to you that you and your spouse now live in, a Contract can protect this asset. You can also protect any gifted or inherited funds put into your home or any gains to inheritances or gifts. So long as you both agree, these will be excluded and will not be shared upon separation.

If you have received a gift or inheritance, protecting it in case of separation is important. Please don’t hesitate to contact us and we can review the options best suited for you. If you have any questions about gifts and inheritances, or any other family law matter, please do not hesitate to contact our Family Department.

 

 

Social Media and Family Law

We’ve all heard stories about the use of social media gone wrong – a politician tweets something inappropriate, an embarrassing photo of a celebrity goes viral, a business person gets caught in a compromising situation. Social media has changed the way we communicate; sometimes for the better, sometimes for the worse.  Concerns around privacy and retention of data are something we should all be thinking about if we engage with social media platforms.

Social media is playing an ever increasing role in family law disputes as litigants use information obtained from social media to support their claims. For example, social media posts may be used to support a claim that someone is not a fit parent because they allow a child to partake in dangerous activities or it may be used to demonstrate that someone’s income is higher than claimed based on the lifestyle they post about.  More generally, parents may disagree about what information is shared about their children on social media, which can lead to disputes.  If you are involved in a family law dispute, here are some social media tips to consider:

Discuss What Content is Acceptable to be Shared

Many parents’ Instagram and Facebook feeds are full of pictures and videos of their children. Parents don’t always agree, however, about how much of their children’s lives should be shared online.  Discuss with your former spouse what is acceptable and not acceptable to share as well as appropriate privacy settings for your social media accounts.  If both parents are on the same page, there is less likely to be a dispute in the future.

Be Aware of Who Your Followers Are

It’s not uncommon for parents to be “friends” with their children’s friends on Facebook or for their children’s friends to follow their Instagram or Twitter accounts. Be mindful of who is following you and what information you are putting out there.  While you might be cautious about not sharing information about your separation directly with your children, if you are posting about it on social media and you have friends and family members following you, there’s a good chance it will get back to your children.  Subtle comments and digs without naming names are off limits too – kids can read between the lines.

Remember that Social Media Posts Can Be Used As Evidence

Requests to obtain documentation regarding an individual’s social media posts are becoming more common as our use of social media permeates our day-to-day life. While a person’s social media profile may be set to private, that doesn’t mean that they won’t be ordered to provide that information in the course of litigation.  Furthermore, posts cannot simply be deleted if there is a concern about the content – that may be considered spoiling evidence.  Ultimately, if you wouldn’t want a judge or the other parent to see it, it shouldn’t be on social media.

Think Twice Before Posting

I always advise my clients to think twice about hitting send on that email that they’ve written to their spouse in a moment of anger and frustration. If you need to vent, write your feelings down and then take a break.  Usually when you come back with a clear head, you can express your feelings a manner that is more respectful and productive.  The same rules apply to social media.  Take a moment to think about what you are posting and what the ramifications might be.  Never post out of anger.  If you have doubts about whether the post is appropriate, it’s probably not.  If you need to air out your feelings of frustration, find a trusted friend and discuss the issue in private.  There’s nothing to be gained by putting the information out there for the world (or your 500 “friends”) to see but there may be a whole lot to lose.

When Parents Can’t Agree – What Next?

divorceOne of the most challenging aspects of a separation can be coming to an agreement about custody and parenting time: where the children will live, how decisions will be made, where they will go to school, how holidays will be spent and the list goes on. When parents don’t agree about how decisions should be made or what living arrangements should be in place, the conflict can take over and take hold. With each parent firmly believing he or she is right, positions can become entrenched and it can be difficult to move past a stalemate.  When this happens, what options are available to parents to help them move forward?

Below are some of the options available both in and out of the court process. Every situation is unique and will require its own solution based on all of the factors in the case but hopefully these suggestions can provide a starting point for frustrated parents looking for a way through.

Office of the Children’s Lawyer

If your matter is in court, you can ask for the Office of the Children’s Lawyer (“OCL”) to be appointed. If the court agrees, both parents will have to complete an Intake form for the; the OCL will review the Intake and decide if the Office will become involved.

If the OCL does elect to become involved, they will either provide a clinical investigator to conduct a family assessment or a lawyer to represent the views of the children, depending on the ages of the children and the issues of the case.

If an assessment is to be completed, the investigator will meet with both parents and the children, if appropriate. The investigator may also seek information from others involved with the children, such as school officials, medical professionals, daycare providers etc.  Once the assessment is completed, the investigator will hold a disclosure meeting and will review the information collected and his or her recommendations about custody and access.  If no agreement is reached, a report will be prepared.  The report will be provided to the court and the investigator can be called to give evidence.

If a lawyer is appointed to represent the views of the children, the lawyer will meet with the parents and children as well as others involved with the children. The lawyer will attempt to determine the wishes of the children and make recommendations to the parents on ways to resolve the issues.  If the matter cannot be resolved, the lawyer will take a position before the court that will consider the children’s wishes and other information about the family.  No report is filed with the court.

More information can be found here about the Office of the Children’s Lawyer:

https://www.attorneygeneral.jus.gov.on.ca/english/family/ocl/

Custody and Access Assessments

If the parents are not in court or the OCL does not become involved in the matter, they can hire someone to conduct a private custody and access assessment. This can be done by a social worker, psychologist or other mental health professional.  The parents will be required to pay the fees of the assessor, which will vary based on the assessor’s background and the scope of the assessment to be completed.  It is important that the assessor who is hired has the appropriate skills and expertise to deal with the issues involved in the particular matter.

The process of a private assessment will be similar to that undertaken by a clinical investigator with the OCL. The assessor will meet with the parents and children, along with other individuals involved with the children and family.  He or she will seek information that will be helpful in determining what custody/access arrangements are in the best interests of the children.  The assessor will prepare a report with his or her recommendations about custody and access.  If the parents cannot agree, the report can be filed with the court as evidence.

 Collaborative Family Law

 Collaborative Family Law is a process which is aimed at resolving the issues in a non-confrontational, constructive, and healthy way. This suggestion may seem counter-intuitive; I’ve described a situation in which the parents are fighting, not communicating and clearly not collaborative. If, however, each parent is willing to participate, the collaborative process can have the effect of de-escalating the conflict.  With the use of family professionals to assist the parents communicate about difficult situations, parenting schedules and arrangements that haven’t been considered may be discovered.  Options that have been discussed and rejected can be adjusted into a workable solution.  The Collaborative process is not just for parents who “get along” and may in fact be even more important in cases where the parents are in conflict.

For information about Collaborative Lawyers in Ottawa, please visit:

http://www.collaborativepracticeottawa.ca/en-lawyers.html

Mediation and Arbitration

Mediation is a process during which a neutral third party will assist parents to reach a negotiated solution. The mediator will listen to both parents to understand their point of view and help the parties to find a solution that both parties will agree to.  It is important to note that the mediator does not make the decision.

In Arbitration, the parties will hire a trained Arbitrator to resolve the dispute. Each parent will put forward his or her case, similar to the way they would in a court process.  The Arbitrator will then make a decision.  This may be a particularly helpful process if the parents aren’t in agreement over a particular aspect of custody or access, such as where a child will attend school.

Parenting Coordinator

In cases where parents are having difficulty implementing a parenting plan in a Court Order or Separation Agreement, a Parenting Coordinator is an individual who can assist to resolve disputes around parenting. Generally, the use of a parenting coordinator is appropriate when other methods of dispute resolution have been unsuccessful and communication between the parents is difficult.  The role of the Parenting Coordinator is to assist parents to successfully implement their parenting plan and to help the parents become more effective communicators and problem solvers.  If the parents cannot agree about a particular aspect of the Parenting Plan, for example, a holiday schedule, a Parenting Coordinator will try to mediate the dispute.  If the parents still can’t agree the Parenting Coordinator will make the decision.  Parenting Coordinators usually are retained to work with parties for a specified time period.

 Please note that the above is not legal advice, and is only meant to provide you with general information. If you have questions about custody and access, or any other family law matter, please do not hesitate to contact our Family Department.