Parenting After Separation

• The Truth About Children and Divorce: Dealing with the Emotions So You and Your Children Can Thrive (Emery, R.E.)
• Keeping Kids Out of the Middle: Child-Centered Parenting in the Midst of Conflict, Separation and Divorce (Garber, Benjamin D.)
• Listen to Me! Your Child and Your Divorce (Gottlieb, Daniel)
• Mom’s House, Dad’s House (Ricci, Isolina)
• Mom’s House, Dad’s House for Kids (Ricci, Isolina)
• Parenting After Divorce: Resolving Conflicts and Meeting your Children’s Needs (Stahl., Phlip)
• Parents are Forever: A step-by-step guide to becoming successful coparents after divorce (Thomas, S.)
•  In the Name of the Child: A Developmental Approach to Understanding and Helping Children of Conflicted and Violent Divorce (Johnston, J., Roseby, V., Kuehnle, K.)
• Helping Your Kids Cope with Divorce the Sandcastles Way (Neuman, G., M)

Separation/Divorce generally

• Surving Your Divorce: A Guide to Canadian Family Law (Cochrane, M. G).

Parenting generally

• Kids are Worth It: Giving Your Child The Gift of Inner Discipline (Coloroso, B.)
• Raising Your Spirited Child: a guide for parents whose child is more intense, sensitive, preceptive, persistent, and energetic (Kurcinka, M.K)
• Kids, Parents, and Power Struggles (Kurcinka, M.K.)
• 7 Things your teenager won’t tell you: and how to talk about them away (Lippincott, J.M. & Deutsch, R.M.)
• How to Hug a Porcupine: Negotiating the Prickly Points of the Tween Years (Ross, J.A.)
• The Whole-Brain Child: Revolutionary Strategies to Nurture your Child’s Developing Mind (Siegel, D. J., & Bryson, T. P.)

In Hincks v. Gallardo, the parties entered into a civil partnership in the UK. As they were a same sex couple, they were not eligible to marry in the UK. A civil partnership in the UK provides the parties with essentially every material right and responsibility arising from marriage, but the parties are not married.

The parties moved to Ontario. They did not marry here. They then separated. One party started an application for divorce and equalization of net family property. In Ontario, these remedies are available only to married spouses.

However, in Ontario, both same sex and opposite sex couples may marry, and there is no difference in any rights or obligations arising from marriage.

Previously, in Halpern v. Toronto, the definition of marriage as “the voluntary union for life of one man and one woman to the exclusion of all others” was found to violate the equality guarantee in the Canadian Charter of Rights and Freedoms and was reworded to “the voluntary union for life of two persons to the exclusion of all others. This has since been codified in the Civil Marriage Act.

The issue before this court was whether the couple should be treated as married or common law, for the purpose of divorce and equalization of family property.

Both the Attorneys General of Canada and Ontario intervened. The Attorney General of Canada stated that the question of whether parties are married is to be determined by the law of the place where the ceremony took place. As the UK does not recognize the parties as married, Canada should not recognize them as married.

The Attorney General of Ontario stated that the couple should be treated as married, as the definition of “married spouse” in the Family Law Act must be given a broad and liberal interpretation.

The judge found that the parties should be treated as married in Ontario, therefore the claims for divorce and equalization of family property may proceed. She stated:

Failing to recognize this UK civil partnership as a marriage would perpetuate impermissible discrimination primarily because in the UK these parties could not marry because of their sexual orientation, but had to enter into a civil partnership instead.

So, although this couple is not married in the UK, the couple is married in Ontario. This may not be the end of the matter, given the broad-reaching impact of this decision, an appeal would not be surprising.

Film, Refreshments, Appetizers, & Discussion of Family Law Dilemmas For:

SOCIAL WORKERS, JUDGES, PSYCHOLOGISTS, MEDIATORS, LAWYERS AND COUNSELLORS

Wednesday November 21^st, 2012
5:00pm – 7:00pm
Oakville Conference Centre
2515 Wyecroft Road Oakville, Ontario L6L 6P8

NO CHARGE TO PARTICIPANTS
Lawyers are eligible for 1.5 substantive hours towards CPD requirements.

 * AFCC Vision: A justice system in which all professionals work collaboratively through education, support & access to services to achieve the best possible outcome for children & families.

PLEASE REGISTER BY NOVEMBER 12^th, 2012.  There is no registration fee for this program.

To register, please contact Stacey Leger at 905-845-4314 or stacey@oakvillemediation.com

In this case, the parties had agreed in their separation agreement that if there was an issue with the amount of support, they would address that issue first through mediation, and then if there was no resolution, through arbitration with a named mediator/arbitrator.

The husband’s income had decreased. He asked for a reduction in support. The parties attended mediation, but there was no settlement. An arbitration was scheduled, but did not go ahead.

The husband stopped paying support. The wife then filed the separation agreement with the court, so that the Family Responsibility Office (FRO) would enforce the support payments.

The husband filed an application with the court to reduce support. FRO notified the husband of an intention to suspend his drivers’ license because he was in arrears. The husband then brought a motion to stop that suspension of the license. The court allowed that motion, on terms that the husband pay a certain amount of support.

The wife then brought a summary judgment motion, stating that the husband’s application to reduce support should be dismissed, because the parties had an agreement that their disputes were to be resolved through mediation/arbitration. That motion was dismissed.

The Ontario Court of Appeal allowed the wife’s appeal, finding that the Family Law Act and the Enforcement Act, when read together, allow parties to opt out of litigation and submit to private mediation/arbitration for future disputes. The enforcement provisions, allowing parties to file agreements with the court for enforcement by FRO do not invalidate provisions in separation agreements requiring mediation/arbitration and do not give the court jurisdiction to decide changes in support in the face of such provisions.

This is an important decision, because it shows that the courts will show great deference to decisions that individuals make about how their future disputes will be resolved.

Parties agreeing to mandatory mediation/arbitration clauses must realize that they will not have recourse to the court. They are bound by that choice, and cannot count on having the court as a last resort, even if the court is used for enforcement of their agreement.

Mediation/arbitration can be a very effective way to resolve disputes. It is private, and can be faster and better tailored to the parties’ circumstances. However, parties need to consider carefully whether it is and will be appropriate for them in all circumstances. An example of a case where there was such a concern, arising from power imbalances, is Wainwright v. Wainwright, set out in the previous blog post. If recourse to the court may be needed, a mandatory mediation/arbitration clause should not be included in a separation agreement.

In the recent case of Wainwright v. Wainwright (2012 Ont. S.C.J.), the judge was quite concerned about the inclusion of such a clause in a final order, even though both parties consented to it.

The parties were the parents of a four-year-old girl. They separated when she was one year old, following an incident when the father was charged with assault. He subsequently pleaded guilty.

Both parties had been having significant time with the child since separation. They had not spoken since separation. They had very different views regarding the child’s schooling and other major issues. The judge said that this case was characterized by

an overwhelming lack of trust of the other one on the part of both parties, significant level of fear on the part of Mrs. Wainwright in relation to Mr. Wainwright and an inability to communicate with each other directly on any issue.

The parties’ attempts to use a communication book were not successful and there was no communication by text or email.

At trial, the parties consented to a clause whereby any parenting issues where there was no agreement would be resolved through a process of mediation, followed by arbitration if necessary.

The judge had concerns about the extent of the mother’s fear of the father and the father’s difficulty in focusing on the needs of the child when they conflicted with his own needs. She ordered that the parties consult with each other regarding any major decision regarding the child’s health, education or welfare. With respect to where the child was to attend school, if there was no agreement, the mother was given final decision-making authority.

However, if the parties were unable to agree on other parenting issues, they were required to attend an intake for mediation. If mediation did not proceed, or if it did proceed and was unsuccessful, the parties could either proceed to arbitration or commence a court process.

Despite the fact that the parties had agreed to a dispute resolution clause requiring them to mediate and then arbitrate any disputes, and that they reached such an agreement through experienced counsel, the judge found that she was not bound to include that dispute resolution clause in her order, as such a clause was not in the best interests of the child in these circumstances.

The inclusion of such a clause could stop the parties from going to court to deal with disputes involving the child.

The evidence in this case regarding the power imbalances left the judge with serious concerns about whether it was appropriate to include mandatory mediation and arbitration. The power imbalances could lead to the case not being appropriate for mediation or arbitration.

Mediators accredited by the Ontario Association for Family Mediation (OAFM) are required to screen for power imbalances, and either adjust their processes accordingly, or decline mediation where indicated. Arbitrators are required by the Ontario Arbitration Act to screen for power imbalances.

It was appropriate to require an intake for mediation, but if the power imbalances at that time or about that issue indicated that mediation was not appropriate, the best interests of the child required that the parents have recourse to the court process.

The judge struck a balance between the parties’ expressed desire to address issues through alternative dispute resolution processes and the child’s need to have decisions made, in the event that power imbalances made such processes inappropriate.
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As we frequently tell our children, watch what you post online, it can come back to bite you.  Many recent cases contain references to facebook posts that are admitted to evidence and help or hurt one party.  In Scrivo v. Scrivo (2012 Ont. S.C.J.), the mother posted her unflattering assessment of the father and his new partner on facebook.  These posts were admitted in evidence, and contradicted her testimony that she encouraged a relationship between the children and their father. The judge rejected her oral testimony on that point.  In the same case, the children’s facebook posts, stating that they felt that they were in a war zone between their parents were also admitted into evidence and referenced in the judge’s decision.

An Ontario Superior Court judge, in hearing an application to seal a court file, considered the mother’s concerns that the nature of the pleadings may result in embarrassing and damaging situations to the children. The mother believed that the children were especially vulnerable to bullying on facebook.  Based on this, and other factors, portions of the file were sealed and the parties were identified by their initials. (C.M.G. v. R.G. (2012 Ont. S.C.J.))

This issue is also alive in child protection cases. In Children’s Aid Society of St Thomas (City) & Elgin (County) v. D. (E.) (2012 O.C.J.), based on concerns over a history of lack of supervision of two young girls, the judge ordered that the father

shall forthwith remove from his home all desk-top and laptop computers whether presently operable or in parts. (He) is entitled to have in his home his existing NetTop device and cellular telephone provided he removes from them any application allowing access to any form of computer game or Facebook account. …(He) shall not access in his home or, while the children are in his care from any other location, any application on any device that allows computer gaming and Facebook use.

However, it is not all doom and gloom.  Facebook has been proposed in a number of cases as a way for a parent to have access to children when there is physical distance between them, or for children to maintain relationships with their friends if they are moving as part of their parents’ separation.

In addition, a New Brunswick Court allowed service of court documents by facebook, when the father was found to be evading service (P. (J.R.) v. D. (D.)) (2012 N.B.Q.B.).  This allowed the case to move forward.

In some family cases, facebook and other social networking sites can be an opportunity.  However, in many others they are a serious problem.  Parties using these sites need to consider their posts carefully, knowing that venting one day may cause regret in the future.

Negotiation between the parties without outside assistance
Mediation
Collaborative Law
Negotiation through lawyers
Third party decision-making (arbitration or court)

Even if a tentative agreement is reached in the first two processes, it is extremely important that each party receive independent legal advice prior to finalizing a separation agreement.

Many clients prefer mediation or collaborative law to traditional processes, as it gives them greater control over the process and the outcome.

A recent survey by the International Association of Collaborative Professionals considered clients’ satisfaction with outcome and process.

About three-quarters of clients were satisfied with the collaborative process. Only 7% were dissatisfied with the process. Clients indicated the following aspects as positive:

Respectfulness of the collaborative process
Having freedom to express themselves
Having meetings scheduled to accommodate their scheduled
Disclosure of information
The opportunity to address concerns directly with the other participant
Restructuring of the family in a collaborative way
Efficiency in reaching resolution
How well the process focused on concerns important to the client
Maintaining a constructive/healthy relationship with the other participant

Approximately three-quarters of all clients were extremely or somewhat satisfied with the outcome of their case. Thirteen percent were dissatisfied. It is important to note that of the cases in the survey, 90% settled and 10% terminated prior to the settlement of all issues. Client satisfaction was higher among cases that settled than in cases that terminated.

Clients were most satisfied with outcomes relating to children, and particularly with their relationship with their children following the collaborative process, and in how well the children’s interests were served in the process.

Collaborative law offers many benefits over traditional processes, as reported by participants. Other aspects of this approach to resolution of family issues will be explored in future posts.

This week, the Court of Appeal for Ontario released its decision in Wodzynski v. Wodzynski (2012 ONCA 272).  That decision is one that any person considering representing himself or herself at trial should read and consider.

In this case, the wife represented herself at trial.  She was, however, represented on appeal.

The wife sought to appeal the decision of the trial judge based on the conduct of the trial.

She had numerous objections to the trial process.

• She stated that the judge should have asked her if she wanted an adjournment before the trial started, as she was self-represented.  However, she did not ask for an adjournment.
• She stated that the court should not have accepted document books provided by the husband at trial.  However, she was asked at trial if she objected, and she said that she did not.
• She stated that the trial judge allowed her presentation of her evidence to become “nearly incomprehensible”, however, she did not say what he should have done to change her presentation of the evidence.
• She stated that the trial judge did not explain what was involved in making final submissions in advance.  However, he did so prior to the lunch break, and she gave her submissions after the lunch break.  There is no indication that she asked for more time.
• She stated that the judge erred in influencing what evidence she called. However, the Court of Appeal found that he was assisting her in focusing her evidence on the relevant points.

The Court of Appeal found that the objections about the judge’s conduct of the trial were without merit, and that throughout the trial, the judge tried to help the wife as needed and ensure that the trial was conducted in a fair manner.

There is no doubt that a trial is a confusing and overwhelming experience for a self-represented litigant.  The stakes are high and the process is foreign.  As a person who will be directly affected by the outcome and who has been involved in the issues at trial, the self-represented litigant is at a distinct disadvantage.

Any judge who presides over a case with a self-represented litigant walks a very fine line.  He or she must maintain respect for the legal process, and not favour (or appear to favour) one litigant over the other.  When one party is self-represented and the other is represented by a lawyer, there is an inherent imbalance, and the judge is open to criticism for either helping the self-represented party too much, or not enough.

In Ontario, a party may represent himself or herself in family cases.  However, he or she is still required to follow the Family Law Rules, and adhere to the rules of evidence and court process.   While the court may provide some assistance as to the process, this varies according to the judge, and the judge must be balanced between the litigants.  Each party must come to court prepared, whether represented by lawyers or self-represented. He or she must accept the consequences of the decision to be represented or not. As shown here, a self-represented litigant cannot count on hiring a lawyer to successfully appeal an unfavourable trial decision.

The bottom line is that there are always costs.  It is very important to consider the unseen costs, such as the cost of an adverse decision, cost of appeal, cost of time to prepare and learn court process, and emotional cost from added stress before deciding to represent yourself in family court.

The court adopted the description set out in the Restatement (Second) of Torts (2010) by Professor William Prosser:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

In this case, Tsige and Jones both worked for the same bank.  Tsige was in a common law relationship with Jones’ ex-husband.  She accessed Jones’ bank records at least 174 times over four years without Jones’ permission.

Tsige apologized and was disciplined by the bank.  However, Jones brought an action for damages of $70,000 for breach of privacy, and $20,000 for punitive damages.

Jones’ claim was dismissed on a motion for summary judgment, as there was no such cause of action in Ontario.

The Ontario Court of Appeal allowed Jones’ appeal.  It found that:

…it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion.  Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.

With advances in technology, privacy has become a pressing issue.  The law needs to evolve to respond to the exponential increase in data that is being collected about each person.

The Court considered legislation in other provinces, as well as the law in England, Australia, New Zealand and the United States in deciding that the cause of action needed to be recognized in Ontario.

The Court’s view was that this would not open the floodgates for litigation as there were significant limitations to the tort.  Only intrusions that would be found by a reasonable person to be highly offensive would be actionable.  Additionally, the right to privacy is not absolute, and may give way to competing claims, such as the right to freedom of expression.

Proof of financial loss is not required.  Damages for cases where there is no financial loss will be modest but sufficient to mark the wrong that has been done.  The upper end of the range is $20,000, unless the case is exceptional and would call for aggravated or punitive damages.

In this case, Jones was awarded $10,000 because of Tsige’s deliberate and repeated actions.  There were no aggravated or punitive damages.  Relevant to the award were the fact that Tsige had apologized and Jones had not suffered public embarrassment or harm to her health, welfare, social, business or financial position.  However, because this was a novel issue, each party paid for her own legal costs.

The legal costs to bring such a claim to trial on its own would make it unlikely that people would claim for all but the most egregious acts.