Sarah Dargatz, Author at LawNow Magazine
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Sarah Dargatz

About Sarah Dargatz

Sarah Dargatz has been practicing family law since 2009. She is currently a partner at Latitude Family Law LLP.

FAMILY | When is Shared Parenting Appropriate?

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When the parents of a child separate, they must make decisions about where the child should live on a day-to-day basis. Many parents prefer some form of “shared parenting” which usually means that each parent has day-to-day care of the child at least 40% of the time. However, shared parenting is not right for all families. In some cases, it’s best for one parent to care for the child more of the time.

Under Canadian family law, decisions about a parenting schedule are based on what is in the best interests of the child. The new Divorce Act, likely coming into force in March 2021, will include a list of factors that judges must consider when determining what is in a child’s best interests. Many provincial family laws, such as Alberta’s Family Law Act, already include a list of factors.

Factors that a judge must consider when determining what is in a child’s best interests include:

  • a child’s needs, including their need for stability
  • a child’s nature and strength of relationship with each parent and other significant people
  • the history of care
  • a parent’s plans for the future
  • the child’s view, where they can be ascertained, and where appropriate to consider given the child’s age and maturity
  • the child’s cultural and religious upbringing
  • a parent’s willingness and ability to support the child’s relationship with the other parent
  • a parent’s willingness and ability to communicate and cooperate with the other parent about the child and
  • any family violence.

What the legislation does not do, however, is dictate how a judge will weigh each of these factors. The law does not say what outcome is appropriate given a certain factor or constellation of factors.

Under Canadian family law, decisions about a parenting schedule are based on what is in the best interests of the child. Judges consider the factors of a particular case and what outcome the judge considers to be in the child’s best interests, based on those factors. These decisions published by the court establish “caselaw” and “precedent” that other judges apply to subsequent cases.

Recently, Justice Lema of the Court of Queen’s Bench of Alberta (in CAS v NPC, 2020 ABQB 421) reviewed the Alberta caselaw regarding factors that tended to support an order of shared parenting and those factors that tended to demonstrate when shared parenting would not be in a child’s best interests. His survey of factors is helpful. The case is worth a read for those struggling with this question.

Some of the factors that judges have determined support shared parenting include:

  • both parties being capable and engaged parents
  • good communication between the parents
  • each parent loving the child and “no evidence that [the child] will not be properly cared for with all their needs being met in the care of each parent”
  • adequate proposed work and child-care arrangements from the parents, even if one parent’s plan is less developed than the other’s
  • a history of shared parenting
  • parents having different and important interests and capabilities to pass on to their children
  • shared parenting would enhancing a child’s contact with a parent’s cultural or linguistic background
  • children have spent significant time with, and have strong attachments to, both parents
  • children prefer shared parenting
  • increased contact with half-siblings and other family members
  • practical considerations such as manageable driving time between parental residences and school and the availability of child care and
  • where there is a parenting assessment from a qualified psychologist recommending shared parenting.

The law does not say what outcome is appropriate given a certain factor or constellation of factors.Factors signaling against shared parenting include:

  • parents’ inabilities to put their children’s interests ahead of their own to such a degree that regular cooperation and coordination in scheduling is impossible
  • the parties being and having been in “substantial conflict” and lacking a “genuine willingness to work together to ensure the success of a shared-parenting arrangement”
  • where separation of the child from their primary caregiver, particularly at a young age, may be emotionally and developmentally disruptive for the child
  • one parent’s possible serious alcohol dependency
  • medical evidence suggesting no major changes to routines of seriously disabled child
  • a parent’s frequent violence and angry outbursts against child
  • child at risk of serious psychological problems
  • one parent’s residential and new-relationships instability
  • the absence of definite plans for where the parent would live with the child or where they would go to school
  • the opposed-to-shared-parenting opinions of the child, ascertained by a parenting expert
  • one parent’s move making it “impossible to continue with the alternating week parenting schedule” and
  • practical considerations such as the distance between parents’ residences making shared parenting impractical.

Justice Lema notes that determining what is in a child’s best interests is not a “box-checking exercise”. He writes:

Determining a child’s best interests is not simply a matter of scoring each parent on a generic list of factors. Each case must be decided on the evidence presented. The listed factors [in one case] merely serve as indicia of the best interests of the child. By their very nature, custody and access applications are fact-specific. The listed factors may, therefore, expand, contract, or vary, depending on the circumstances of the particular case as manifested by the totality of the evidence. Courts must approach each decision with great care and caution.

FAMILY | What COVID-19 Caselaw Tells Us about Parenting

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This column is coming out during the COVID-19 pandemic. Health authorities across Canada, and the world, have issued protocols for limiting the spread of the virus. Many family courts are only hearing “urgent” matters.

The court has heard cases during this time that speak to a specific set of circumstances in our history. However, the court’s decisions also speak to principles that parents, and legal professionals, can apply at any time.

The Cases

One of the first parenting cases to come out was Ribeiro v Wright, 2020 ONSC 1829. Justice Pazaratz of the Superior Court of Justice in Hamilton, Ontario, heard an application shortly after the government implemented pandemic protocols. The mother wanted to suspend all of the father’s court-ordered parenting time due to the pandemic.

Justice Pazaratz spoke of the balancing act that parents and courts must achieve. On the one hand, we must follow and respect current parenting orders based on the presumption that those orders reflect the child’s best interests. And on the other hand, we must respect the health directives during an extraordinary time. In other words, parents and courts have to balance competing “best interests”: having a relationship with both parents vs. preventing the spread of a deadly disease. This balancing act will not be the same for every family. The court will deal with each family Parents must make good faith efforts to communicate.on a case-by-case basis. The court noted that the existence of the pandemic and the resulting change to our day-to-day routines does not, in and of itself, necessarily justify changing the parenting schedule. However, there may be some cases where parents have to forego time with their children. For example, where a parent must quarantine, where family members have a heightened risk or where a parent is not complying with health protocols. Parents must make specific and realistic time-sharing proposals to address all COVID-19 considerations, with their primary focus being the children.

In Le v Norris, 2020 ONSC 1932, Justice Conlan of the Superior Court of Justice in Milton, Ontario heard an application from a father who was being denied his court-ordered parenting time by the mother. Justice Conlan noted that “responsible adherence” to the existing court order could address the mother’s concerns related to COVID-19. This means “being practical and having some basic common sense”. The parents could follow the order while still following the protocols set out by the health authorities.

In Skuce v Skuce, 2020 ONSC 1881, Justice Doyle of the Superior Court of Justice in Ottawa, Ontario heard another application by a father who was being denied his in-person parenting time set out in Minutes of Settlement signed only a couple weeks before. By unilaterally cutting off the father’s visits, the mother had engaged in what courts often refer to as a “self-help remedy”. Justice Doyle noted:

The Court cannot be seen to condone this type of behaviour. Without citizens obeying existing court orders, the whole justice system would be turned over on its head.

Parents should follow the orders and agreements already in place, to the extent possible.The court went on to note: “children need and deserve stability, comfort, and predictability in their routine. Despite the current world events, this can be accomplished.” Children already cannot see their friends, teachers and extended families. They should see still see their parents, unless for their safety they should not.

In SR v MG, 2020 BCPC 57, Judge Bond of the Provincial Court in Vancouver, British Columbia heard an application from a mother seeking the return of the children from their father. The father was withholding the children because the mother works as a Licensed Practical Nurse. The mother was taking every recommended precaution. Judge Bond noted that the following factors are relevant:

  • whether or not the child, the parents or other members of their households are at an elevated risk;
  • the parties risk of exposure and the steps they are taking to mitigate that risk;
  • the usual factors we consider when determining what is in the child’s best interests, such as their need for stability, their relationships with both parents, their history of care, etc.; and
  • society’s need to maintain access to services such as health care.

Judge Bond found that the mother was doing what she could to mitigate her risk and following the recommended precautions. Therefore, she should still have parenting time.

In TC v RE, 2020 BCPC 65, Judge Bond heard another application where a father applied to reinstate and increase his parenting time. The father would not communicate with the mother about the steps he was taking to comply with the recommended health protocols until they were in court. Judge Bond noted that:

[I]t is incredibly important that separated parents communicate effectively in co-parenting their children. That commination should not focus on the rights of the parents to see their children, but rather on the rights of their children to have parents that can share important information about the children’s safety and welfare respectfully and effectively.

The court was “appalled” that the father had not made full disclosure about his intentions and behaviours to the mother until he had brought her to court.

Courts will not condone self-help remedies except in exceptional circumstances.Hundreds of other cases have followed the principles set out in these cases, including in my home province of Alberta. In SAS v LMS, 2020 ABQB 287, Justice Graesser of the Court of Queen’s Bench in Edmonton followed the reasoning in Ribeiro v Wright when considering a father’s application to reinstate his parenting time. The mother had cut if off because she believed he was not following the recommended precautions. The court balanced the need for the children’s safety versus the need for them to see both parents. The court also discouraged self-help remedies. Justice Graesser provided guidelines to the parents and gave them time to work out an agreement, which they were able to do.

Justice Graesser also warns parents not to look for “loopholes” in the guidelines issued by the public health authorities. In this case, the father tried to avoid physical distancing from others by invoking the concept of “cohorts”. The court wrote:

Looking for “loopholes” or exceptions is too frequently an attempt to justify an unwillingness to comply, or an attitude of dismissiveness towards the risks acknowledged by medical professionals. Courts should be slow to permit anything that puts a person or the community in an unreasonable risk.

The Take-aways

These cases, and the many other cases issued during the COVID-19 pandemic, give us principles that we can apply at any time:

  • Parents must remain focused on their children and work to find realistic solutions. Parents need to be practical and exercise common sense.
  • Staying healthy is important. The court will defer to public health authorities and expect strict compliance with health orders. It is also important for children to have a relationship with both parents. Parents should mitigate risks.
  • Parents must make good faith efforts to communicate.
  • Parents should do what they can cooperate and stay out of court.
  • Parents should follow the orders and agreements already in place, to the extent possible. Courts will not condone self-help remedies except in exceptional circumstances.
  • Every family is unique and must be assessed on the facts of their particular situation.

FAMILY | The Legal Status of the Spousal Support Advisory Guidelines

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The Divorce Act sets out the factors that a judge considers when ordering one ex-partner to pay spousal support (also knows as “partner support” or “spousal maintenance”) to the other ex-partner. The factors in provincial family law legislation that applies to unmarried couples, such as Alberta’s Family Law Act, often mirror the Divorce Act.

Before spousal support is ordered, one ex-partner must show that they are entitled to spousal support. Entitlement is a big topic that we might cover in another issue. You can find basic information on entitlement in CPLEA’s Financial Support booklet.

If one ex-partner is entitled to spousal support, the next question is how much should they receive (the “quantum”) and for how long (the “duration”). Lawyers, judges and ex-partners often use the Spousal Support Advisory Guidelines (the “SSAGs”) to help determine the quantum and duration of spousal support.

Two law professors, Carol Rogerson and Rollie Thompson, developed the SSAGs based on how courts were practically applying the Divorce Act factors. The Federal Department of Justice published the SSAGs. The SSAGs include a set of calculations used to determine quantum and duration of spousal support as well as a User Guide to provide practical assistance in using the calculations. The SSAGs provide consistency and predictability to spousal support awards. They focus on income sharing rather than analyzing each partner’s budgets. The Federal Department of Justice released a draft proposal in 2005 before releasing a “final” version in 2008. The User Guide was updated in 2010 and 2016.

There is good reason to believe that the Court’s comments in Wild will lead to greater confidence in the use of the SSAGs in Alberta.Unlike the Federal Child Support Guidelines, the SSAGs are truly guidelines. They are not law. They are not part of any piece of legislation or regulation. So what are they? Does a judge need to follow them?

When making a decision, a judge must follow the applicable legislation and regulations. Judges must also consider the decisions that other judges have made, particularly the decisions of judges at higher levels of court. This is what we call “precedent” or “caselaw”. Judges are also welcome to consider other helpful resources, such as textbooks written by respected legal academics. However, these other resources should not override the judge’s discretion and application of the legislation and caselaw.

From early on, appeal courts across Canada referred to the SSAGs as a “useful tool”, just like a well-researched textbook. However, there was inconsistency on what weight courts would give to the SSAGs. Appeal courts across Canada had to decide if it was an error for a judge to put too much, or too little, weight on SSAGs calculations.

When the SSAGs were still only in draft form, the British Columbia Court of Appeal released its decision in Redpath v. Redpath, 2006 BCCA 338:

Now that [the SSAGs] are available to provide what is effectively a “range” within which the awards in most cases of this kind should fall, it may be that if a particular award is substantially lower or higher than the range and there are no exceptional circumstances to explain the anomaly, the standard of review should be reformulated to permit appellate intervention.

In other words, if a judge did not use the SSAGs, or put too little weight on them, it could give rise to an appealable error. Given this decision, the SSAGs are used consistently in British Columbia as a starting point to determine the quantum and duration of spousal support.

All cases point out that the SSAGs calculations should not be used blindly without consideration for what makes a particular family unique.On the other hand, in the early days of the SSAGs, the Alberta Court of Appeal said that a judge was only required to consider the factors set out in the Divorce Act (see Sawatzky v. Sawatzky, 2008 ABCA 355 or Taylor v. Taylor, 2009 ABCA 354). The Court said judges should use the SSAGs as merely guidelines, a “starting point” or a “cross-check”, and such use should not “fetter a judge’s discretion”. The Court noted that “there remains more than one route available to trial judges in arriving at an appropriate result.” In Alberta, lawyers and litigants did not have confidence that their assigned judge would consider SSAG calculations. It was much more difficult to predict spousal support outcomes.

This is not to say that the Alberta Court of Appeal rejected the SSAGs altogether. Rather, they used the SSAGs as that “useful tool” and a “cross-check” to measure the appropriateness of spousal support awards. But using this tool was not considered a required starting point.

However, in January 2019 the Alberta Court of Appeal wrote that the SSAGs “have developed a certain strength in this jurisdiction over a period of time” (in Thompson v. Thompson, 2019 ABCA 7). And then, in April 2019, the Court went a step further and encouraged lawyers to provide SSAG calculations to judges and to think carefully about the appropriate inputs to the calculations and the relevant considerations under the Revised User Guide (in Wild v. Wild, 2019 ABCA 159). And, for the first time, the Alberta Court of Appeal affirmed the decision of the British Columbia Court of Appeal in Redpath. The Court said that a judge not explaining why their award falls outside of the SSAGs could be a basis for appellate review.

Lawyers, judges and ex-partners often use the Spousal Support Advisory Guidelines (the “SSAGs”) to help determine the quantum and duration of spousal support.Since the release of the Wild decision, several subsequent Alberta Court of Appeal decisions have cited it. There is good reason to believe that the Court’s comments in Wild will lead to greater confidence in the use of the SSAGs in Alberta. Though the SSAGs are still not law, they are something more than a respected textbook. They are a required starting point.

All cases point out that the SSAGs calculations should not be used blindly without consideration for what makes a particular family unique. The calculations should not used without reference to the considerations in the Revised User Guide. The calculations provide a range of amounts and durations. Consideration must be made for which numbers within that range are most appropriate.

Most people want to avoid court and settle instead. However, an ex-partner needs to know what the alternative to settlement (i.e. going to court) might look like. If it is difficult for a lawyer to predict what a judge would order for spousal support, it is difficult to advise their clients about how to settle. If we can have confidence that the court will start with the SSAGs, it is much easier to predict a likely outcome and therefore, much easier to reach an agreement outside of court.

Common Misconceptions about Family Law

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It’s not unusual for someone to come see me and have some misconceptions about how the law or the legal process works. Previous articles and columns in LawNow have addressed many of these misconceptions. In this article, I’ll address a few others.

1. I can trade “parental rights” for the obligation to pay child support.

Some parents suggest that the other parent give up their “parental rights” in exchange for not having to pay child support. By “parental rights”, they usually mean the rights, responsibilities and entitlements of guardianship and parenting time with the child. This exchange might seem practical in some cases, but it is not in line with the law.

A child has a right to benefit from child support regardless of their relationship with their parents. Even if the child does not have a relationship with one parent, or if that parent is no longer a guardian, the parent should still financially support the child based on the parent’s income.

And a child has the right to have a relationship with both of their parents, along as it is in their best interests and regardless of whether or not that parent pays child support.

Parents cannot bargain away their child support or purchase their relationships. Some parents agree to this. However, it’s very unlikely that a judge would enforce this kind of agreement.

For more information related to child support, see Part One and Part Two of LawNow’s “Brief Primer on Child Support”.

2. My child can decide where they want to live when they are 12 years old.

Often parents what to know when their child can decide which parent they want to live with. Many have heard that this happens when the child reaches the age of 12. Family lawyers often refer to this as the “Myth of 12”.

Children do not have the legal authority to decide where they live until they are adults. In Alberta, this occurs when they are 18 years old. Children do not have the ability to decide if they go to school, if they can eat their vegetables, if they can go on dates or if they can wear make-up. In the same way, they do not get to make such a major life-changing decision as who they want to live with.

Children do not have the legal authority to decide where they live until they are adults.As children get older, they develop the ability to make better decisions for themselves. Parents start to give children more independence and decision-making powers in line with their level of maturity. In the same way, children’s views have more weight as they age. If they have strong views, a judge may want to know what those views are and what might be influencing those views. However, children don’t have the authority to make a final decision. Their views are only part of the assessment about what is in their best interests.

Some parents will choose to empower their children to make this decision. Most psychologists who work with children and parents will caution against this. If you empower your child to make the decision of where they live, they will likely feel empowered to make other major decisions. This erodes the important roles of parent and child. And this can often backfire against the parent who empowers their child in this way: if they can choose to live with you, they can also choose to not live with you when you do something they don’t like.

3. We have to be separated for one year before we can file for divorce.

In Canada, you are eligible for a divorce if there has been a “breakdown of your marriage”. There are three ways to show a breakdown:

  1. living separate and apart for at least one year;
  2. the other person has committed adultery; or
  3. the other person has treated you with physical or mental cruelty so that it is intolerable to continue to live together.

The vast majority of people (95% in most recent data available) get divorced based on being separated for a year. Even in cases of adultery or abuse, many people find it simpler to use separation as the basis of the divorce.

“Living separate and apart” does not have to mean living in separate houses. Many people decide that they no longer want to live as a married couple but choose to live in the same house (for example, because of finances). However, it is important for the former couple to act in a way that is consistent with this intention to be separated. For example, they do not sleep together, they no longer combine finances and they do not do chores for each other, etc. As long as at least one of the spouses has decided and communicated that they want to live separately and follows through with their actions, the spouses are separated.

“Living separate and apart” does not have to mean living in separate houses.Often, settling a divorce involves more than just the divorce itself. It also involves settling parenting and support (the Divorce Act refers to this as “corollary relief”) and dividing property. You can deal with these other issues in the same court action. Many couples cannot wait for one year to address these other issues. So, you can start the divorce action and you can deal with these other issues on an interim (temporary) basis before you have been separated for one year. You can start the divorce process by filing a Statement of Claim for Divorce at any time after the separation has occurred. You will have to wait one year for the court to grant the Divorce Judgment and Certificate. You cannot remarry until you receive these documents.

Most divorces do not require going to court, as people are able to settle all the issue themselves. In these cases, filing a Statement of Claim for Divorce to get the Divorce Judgment and Certificate is straightforward and uncontentious.

4. If I don’t have a lawyer, I can’t talk to the other person’s lawyer.

Many people are unable to, and some people choose not to, hire a lawyer to help with their family law matters. We refer to people without lawyers as “self-represented”. They are their own lawyer.

When the other person has hired a lawyer, many self-represented people avoid talking to that lawyer. This is often counter-productive. Most family law matters settle. But you can only settle a matter if you communicate! Self-represented people should communicate how they propose to resolve the dispute.

… communicating with the other person’s lawyer can save time and money.Also, communicating with the other person’s lawyer can save time and money. For example, if a lawyer schedules a court application on a certain date, a self-represented opposing party should let the lawyer know in advance if they will be asking for an adjournment of the application. The lawyer may agree beforehand so that the application can be adjourned online or via letter to the court. In this case, both parties can avoid going to court on the originally scheduled day. If you don’t communicate in advance or try to work out an agreement and then you are not successful in court, the judge can award costs against you for failing to try to work things out.

Many lawyers prefer to communicate with self-represented people in writing so that there are no misunderstandings of what was said. This is a good idea for both the lawyer and the self-represented person.

The National Self-Represented Litigants Project has resources for self-represented litigants on its website.

5. I can call the police about any kind of family law dispute.

You should call the police if you believe a crime has been, or will be, committed or if you fear for your immediate safety. However, many people involved in family law disputes will call the police even when a crime is not being committed. This is usually not an effective use of police services.

For example, where parents are separated but don’t have a Parenting Order in place, the police cannot determine which parent should have parenting time at any given moment. The police do not have the power or training to make decisions about what parenting arrangement is in a child’s best interests. That task is left to the parents themselves, or a judge.

Even in cases where there is a Parenting Order, the police will usually not get involved in enforcing that order unless there is a “police enforcement clause” in the order. If there is a police enforcement clause, the police must do what they can to ensure the parents follow the order. Parents should use these clauses only when absolutely necessary. Many judges do not like police enforcement clauses as they can heighten conflict between parents or teach children that parenting time is frightening. However, these clauses are sometimes necessary when one parent refuses to follow a court order.

Another example: where a couple is fighting about who should live in the family home, the police cannot decide for them. That is, unless a crime has been, or will be, committed. In cases of reported family violence, the police may assist in separating the couple for a short period or a judge might order one person not to return to the home. However, in the absence of a crime, or suspected crime, both people have property rights to the home and the police do not have the power or training to make decisions about property division. Again, that task is left to the parents themselves, or a judge.

Conclusion

There are many misconceptions out there about the law and legal processes in family disputes. It’s best to turn to a lawyer for advice about your specific situation. Many lawyers offer consultations and ongoing coaching to clarify the law and process. Various legal clinics offer these services to low-income individuals. Online resources offer a varying level of accuracy – look for reliable sources such as Legal FAQs, LawCentral or other CPLEA resources.

Alternatives to Court: Mediation

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Family Law ColumnIn the first column in this series, John-Paul Boyd introduced basic alternatives to resolving family law disputes in court. In the second column, I wrote about the Collaborative process. In the last issue, John-Paul Boyd explained arbitration. In this column, I’m going to talk about mediation.

Mediation is a process where you and the other person involved in a dispute meet with a neutral third-party, a mediator, who assists you to reach an agreement. The mediator’s role is to help you and the other person communicate civilly, express ideas in different ways, stay on track, and explore and consider options. You can think of a mediator as a guide, a translator, a coach, or a referee. The goal of a mediation is for you and the other person to reach an agreement. A mediator is not empowered to impose a solution on you and the other person. You are the decision-makers and responsible for the outcome.

Mediators can take a variety of approaches:

  • In facilitative mediation, the mediator makes informed suggestions to you and the other person to help you problem solve and assess various proposals. The mediator will focus on maintaining a fair process so you and the other person can communicate effectively.
  • In evaluative mediation, the mediator can give their opinion to you and other person about your positions. If the mediator is a lawyer, they might tell you if your suggestion does not align with the current law and predict the outcome if you took your case to court.
  • In transformative mediation, the mediator attempts to help you and other person find new ways of communicating and to develop skills to work together. The mediator helps you and the other person transform your interactions from destructive to constructive.

Mediators can have a variety of backgrounds. Many come from a social work or counselling background; others are lawyers. Each background brings a different skill set and you may want to give this some consideration when choosing a mediator. For example, if you are trying to reach a resolution about what kind of parenting schedule is best for your children, you might prefer someone who has training in child development or interpersonal relationships because the law is not complicated in this area; it is to do what is in your child’s best interests. However, if you are trying to sort out an issue that does involve more of a legal analysis, such as how to divide matrimonial property, it may be helpful to have a mediator with a legal background who understands the law in this area.

The mediator’s role is to help you and the other person communicate civilly, express ideas in different ways, stay on track, and explore and consider options.  You can think of a mediator as a guide, a translator, a coach, or a referee. Usually mediation is “closed” and done on a “without prejudice” basis, meaning that whatever is discussed in mediation cannot be raised in court. This allows for you and the other person to explore ideas and suggest compromises without being held to them if you do not reach an agreement. Your mediator should confirm whether or not you are proceeding on this basis at the start of your meeting.

Generally, mediators will not have private discussions with you or the other person. This ensures that the process is fair and transparent. However, sometimes it may be beneficial to take time away from the joint session to meet with the mediator to clarify an issue, reflect on the consequences of a decision, or vent your emotions. In this case, the mediator might decide to “caucus”, which means to have a private confidential meeting with you or with the other person. You might be concerned that caucusing could be used to sway a mediator to the other person’s “side”. However, since a mediator cannot make decisions for you, there is little advantage to having a mediator on “your side” or risk that they are on the other person’s side. The only person you have to convince is the other person in your dispute. Caucusing is simply one tool to help move forward. If you have concerns with caucusing, you can raise them and discuss the benefits or risks of using this tool.

As John-Paul Boyd noted in the last issue’s column, mediation can be combined with arbitration. An arbitrator can start by mediating, but if you cannot reach an agreement, they can make a final and binding decision that you both must follow. You and other person would have to agree to this process in advance and set out the “rules” that the mediation-arbitration process (sometimes called “med-arb”) would follow.

Mediation is usually a voluntary process. However, many courts require that you and the other person attempt at least one alternative to court before you can bring a court application or schedule a trial. So, you might try mediation to satisfy this requirement, without being fully invested in the process. This is missed opportunity. Reaching an agreement via mediation would not only save you time and money, but as with any alternative to court, it also usually leads to better outcomes. When you reach an agreement that works for you, and for your children, rather than leaving it to a stranger (a judge), it is much more likely to meet your needs and other interests. If you and the other person are the parents of children, it is important to preserve your relationship and learn how to communicate in the long term.

There are some situations that are not recommended for mediation. Family violence, substance abuse, poor mental health, or limited cognitive functioning will limit how successful mediation can be. In some cases, mediation may not be safe. Mediators are trained to screen clients to ensure that mediation is appropriate.

In Alberta, free mediation for parenting matters is available through the provincial government so long as one of the people earns less than $40,000 a year. If you do not qualify for this, or have other issues to address, you can hire a private mediator. Anyone can present themselves as a mediator. When choosing one, you may want to ask questions about their background and training. The Alberta Family Mediation Society and the ADR Institute of Alberta both provide a list of their members who have a minimum level of education and designations for those with more experience.

Alternatives to Court: The Collaborative Process

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Family Law ColumnJohn-Paul Boyd explained why people might want to find an alternative to court to reach a resolution about their family law disputes in the November/December 2018 issue of LawNow.

One alternative to court is the Collaborative process.  Many processes, such a negotiation or mediation, can be “collaborative”, meaning cooperative or amicable.  However, here I am writing about the big “C”, Collaborative Divorce process.

In this process, the people involved in a family dispute sign an agreement to be forthright and transparent in providing relevant information, negotiating in good faith, and to not go to court.  Each person has a lawyer who is trained and registered in the Collaborative process.  Other specially trained professionals, such as financial and mental health specialists, may also join the team to help the couple find solutions to their disputes.  The process, unlike court, is private and confidential.

The process can feel slow at the start.  The first few meetings will be focused on building a foundation based on sharing information and discussing what is important to each person.  However, once that foundation is built, solutions can come quickly. Through a series of meetings, the separating couple and their lawyers identify what is most important to them and explore options to satisfy their interests.  This is often referred to as interest-based negotiations.  The goal is to find solutions that work for everyone.  It allows a separated couple to come up with creative solutions that work for them and their children.  The process works because everyone is playing by the same ground rules.

If the separated couple needs more information about the value of a company or one person’s income in order to set child support, they can jointly retain a neutral financial specialist who will provide an objective analysis to both of them, and their lawyers.  If the separated couple needs more information about how their actions might affect their children, or what decision might be in their child’s best interests, they can jointly engage a child specialist who can educate them or provide their professional opinion.  If one, or both, people are having a hard time moving forward or processing the separation, they can hire a divorce coach to give them the best tools to manage stress, communicate with their former partner, and fully participate in the process.

The lawyers continue to have the same professional obligations they would have to any family law client such as to advise on the law and provide opinions of likely outcomes.  Each lawyer owes a duty to their own client and is not neutral.  Once an agreement is reached, the lawyers will draft a legally binding agreement and provide independent legal advice to their own client, separate and apart from the other person.  Any necessary court documents to finalize the divorce or separation will be submitted with the consent of both parties.

Many people have found the Collaborative process very satisfying for resolving family disputes.

If the separating couple is not able to reach an agreement, either one can withdraw from the process.  In that case, each person would need to find a new lawyer.  The discussions that took place during settlement meeting are without prejudice and cannot be repeated, or relied on, in court.

A Collaborative process is not suitable for everyone.  Some disputes are relatively simple and a separating couple may be able to reach an agreement on their own, so that all they need from a lawyer is independent legal advice.  Or, a separating couple might be well-served by a mediator.  In these cases, the Collaborative process may be more than what is required to reach an agreement.

On the other hand, the Collaborative process may not be suitable where one, or both, people are not willing to negotiate in good faith or to be open and honest about their financial situation.  In these cases, a court application might be necessary.  Where there is a power imbalance, such as in cases of family violence, or where one person has a mental health concern that prevents them from fully participating, it may not be appropriate to use a Collaborative process.  Lawyers who are registered in practice in this area are trained to screen clients for their suitability for the process.

The Collaborative process is sometimes criticized as being slow and expensive.  It can be expensive relative to mediation or a quickly negotiated settlement.  However, when compared to a full litigation, it will usually be more cost effective and the outcome will be more satisfying for everyone involved.

The process can feel slow at the start.  The first few meetings will be focused on building a foundation based on sharing information and discussing what is important to each person.  However, once that foundation is built, solutions can come quickly.  If an immediate remedy is required, or if one person is intentionally delaying, the Collaborative process may not be the best choice.

For more information on the Collaborative process, or to find a registered professional in Alberta, visit www.collaborativepractice.ca and for the Edmonton Association, visit www.divorceseparation.ca.

Enforcement of Family Law Orders When Parents Live in Different Places: Part 2

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Family Law ColumnGenerally, Alberta court orders are only enforceable in Alberta.  And, generally, Alberta judges can only grant family law orders about people who reside in Alberta.  However, families are mobile and many relocate from province to province or even from country to country.  Therefore, Alberta has entered into agreements with the other Canadian provinces and territories, and with many other countries, to recognize, enforce, and change each other’s family law orders.  Agreements or orders that have effect across political boundaries are usually referred to as “interjurisdictional”.

In Part 1, the Interjurisdictional Support Orders Act (ISOA) will be discussed. In Part 2, we will discuss the Extra-Provincial Enforcement of Custody Orders Act (EPECOA) and the Hague Convention.

Extra-Provincial Enforcement of Custody Orders Act (EPECOA)

EPECOA states that the court of a province, state, territory, or country generally has the authority (or “jurisdiction”) to make an order about the custody of a child if that child has real and substantial connection to that place.  A “real and substantial connection” usually means that the child lives or has lived in that place but other factors may be relevant.

If a court outside of Alberta granted a custody order regarding a child that did have a real and substantial connection to that place, EPECOA states that the Alberta court can enforce that extra-provincial custody order if Alberta has the jurisdiction to grant orders regarding that child.  An Alberta judge can make any order to give effect to the extra-provincial custody order as if the order had been made in Alberta.   An Alberta judge who now has jurisdiction over a child can also change the extra-provincial custody order just as it would vary an Alberta order.

If an Alberta judge believes that the extra-provincial court did not have a real and substantial connection to the child when the order was granted, they may decline to enforce or vary the extra-provincial order.  In this case, the Alberta court would proceed as if there was no custody order for the child. A person applying for custody would have to bring an application under the relevant Alberta legislation such as the Family Law Act.

In some cases, more than one place could take jurisdiction over a child, for example, if a child had recently relocated with one parent. This could result in different courts hearing competing custody applications.  The judge must make a decision about which place should take jurisdiction and which court will grant an order or which order will be enforced.  This can involve complicated legal arguments and advice from a lawyer should be sought in these cases.

The Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention)

Several countries have agreed to follow the Hague Convention which is an international treaty regarding the return of a child who is internationally abducted.  The Hague Convention does not set out how custody decisions should be made.  It is intended to help maintain the status quo until the custody of the child can be properly determined by the court of the place where the child usually lived.  For example, if a child usually lives in Alberta and is abducted to the United States, the Hague Convention provides that the child should be returned to Alberta so that an Alberta court can make a decision about who should have custody of the child.  The Alberta judge may ultimately decide under the Family Law Act that the child should live with the parent in the United States. if that is what is in the child’s best interests.  The Hague Convention is intended to ensure this decision is made in the appropriate court.  Currently, 98 countries have signed onto the Hague Convention.

A child is “wrongfully” removed or retained from their home country if they are removed in breach of a person’s rights under the law of the place where their child usually lived.  If two (or more) people have joint decision-making powers for a child and that child is removed from their home country without the consent of one of the parties, this is usually considered to be a wrongful removal and the child would be returned.

A court can decline to order that a child be returned to their home country under the Hague Convention in a few circumstances:

  • where the person asking for the return of the child wasn’t actually exercising their custody rights at the time the child was removed or they had consented to or hasn’t protested to the removal of the child;
  • where more than a year has passed since the child was removed;
  • where the child objects to being returned and is old enough and mature enough that the court should consider their wishes; or
  • where returning the child would put that child in grave risk of physical or psychological harm, place them in an intolerable situation, or violate their basic human rights.

Parents who wish to relocate with their child should first seek the consent of the other parent or get a court order allowing the relocation.  Where safety is an issue, other steps can be taken to mitigate risk while a custody application is before the court.

Parents who are concerned that the other parent will abduct their child can find some comfort when the other parent has connections to, or proposes travel to, a country that is a signatory to the Hague Convention.  If that parent does not return the child, there is an established process to have the child returned.  The process may take time and money to implement but it exists.  Parents may wish to research a country’s history of actually complying the Hague Convention. In cases where parents have connections to, or propose travel to, a country that is not a signatory to the Hague Convention, likelihood that an abducted child will be returned is much lower.

Enforcement of Family Law Orders When Parents Live in Different Places: Part 1

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Family Law ColumnGenerally, Alberta court orders are only enforceable in Alberta.  And, generally, Alberta judges can only grant family law orders about people who reside in Alberta.  However, families are mobile and many relocate from province to province or even from country to country.  Therefore, Alberta has entered into agreements with the other Canadian provinces and territories, and with many other countries, to recognize, enforce, and change each other’s family law orders.  Agreements or orders that have effect across political boundaries are usually referred to as “interjurisdictional”.

In Part 1, we will discuss the Interjurisdictional Support Orders Act. In the following Part 2, the Extra-Provincial Enforcement of Custody Orders Act and the Hague Convention will be explored.

The Interjurisdictional Support Orders Act (“ISOA”) applies to situations where one party lives in Alberta, the other party lives in a “reciprocating jurisdiction” and a child support or partner/spousal support order is sought.

The “reciprocating jurisdictions” are provinces, states, or countries that have matching legislation and will follow the same process as in Alberta.  These include all the provinces and territories of Canada, the United States of America, Australia, the United Kingdom, and several others. A list of these regions is set out in a schedule to the accompanying Regulations.

A similar process to vary the child support terms of a Divorce Judgment where parties live in different provinces is set out in sections 18-20.1 of the Divorce Act of Canada. Let’s use an example where a parent, who lives in Alberta, wants to bring an application for child support order against the other parent, who lives in Ontario. To bring an application for a new order or vary an existing support order, the parent who lives in Alberta would bring the application to court in Alberta using the required forms.  (Depending on the rules of the reciprocating jurisdiction, an Alberta judge may make a provisional order, meaning the order is not actually effective until it is confirmed.)  The application (and the provisional order, if one is granted) is then sent to the court in Ontario.  The Ontario court will contact the other parent and let them know an application has been made.  A judge in Ontario will review the application, take evidence from the other parent and will either grant a support order, grant an interim support order, confirm the provisional order granted in Alberta, refuse to grant or confirm the support order, or send it back to Alberta more evidence.

The same process applies, in reverse, for applications that are brought in a reciprocating jurisdiction and forwarded to Alberta for confirmation.

This process allows parties to address support issues without having to agree on a jurisdiction or to travel.  The process can be quite slow and can take several months, or even over a year, to resolve.  If a party wants to deal with a support issue quickly, they have the option to simply agree to bring the application in the other party’s home jurisdiction.  In our example, the parent who wants support could hire a lawyer in Ontario and have them bring the application there.

The Interjurisdictional Support Orders Act (“ISOA”) applies to situations where one party lives in Alberta, the other party lives in a “reciprocating jurisdiction” and a child support or partner/spousal support order is sought. 

A similar process to vary the child support terms of a Divorce Judgment where parties live in different provinces is set out in sections 18-20.1 of the Divorce Act of Canada. In this case, a judge will grant a provisional order in the province where the person applying to change the support order lives.  The provisional order will then be sent to the province where the parent who is responding to the change lives to be confirmed, confirmed with a variation, or refused to be confirmed.

The Alberta Government’s website has detailed instructions on how to make an application under the ISOA.

Alberta will also enforce support orders granted in reciprocating jurisdictions and vice versa.  Extra-provincial or foreign orders can be registered with a clerk of the court and then sent to the Maintenance Enforcement Program.  The enforcement programs of both jurisdictions will cooperate to ensure support is paid.

If one party believes a foreign order should not be enforced in Alberta, they can apply to the court for a determination.  The court may not allow the registration if the judge believes:

  • the other party did not have proper notice or a reasonable opportunity to be heard in the foreign court when the order was made;
  • if the foreign order is contrary to public policy in Alberta; or
  • the foreign court did not have the jurisdiction to grant the order.

In cases where the other party lives in a country that is not a reciprocating jurisdiction, a party who wants to obtain or enforce support order should seek legal advice from a lawyer in that country who will likely have to bring a court application in that country.

Self-Employment and Family Law: Calculating Income for Support

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Family Law ColumnIn most cases, the amount of child support a parent has to pay is determined by their income.  For an employee, this is generally simple to calculate and is usually set out at line 150 of the employee’s tax return.  However, many Albertans earn income from self-employment.  It can be complicated to assess that parent’s income for the support of their child as line 150 may not accurately reflect how much money that parent actually has available.

Once the value of a business is determined, the divorcing couple must then decide how they will split the value.  Under our tax laws, a self-employed person is allowed to deduct business expenses from their total income.  Recently, the Alberta Court of Appeal, in Cunningham v. Seveny, 2017 ABCA 4, stated that people who have an interest in a business bear the burden of proof to demonstrate that certain business expense deductions are reasonable for the purposes of calculating income for child support. A self-employed parent must provide full financial disclosure to the other parent along with explanations of their compensation and benefits.  The reasonableness of an expense is not necessarily determined whether the expense is allowable under the Income Tax Act.  The court will look at the personal benefits the parent receives such as the personal use of the business’ vehicles, computers, cellphones, travel, and entertainment expenses.  Expenses that are not reasonable can be “added back” to their income.  The court then “imputes” the new income on the self-employed parent and uses it to calculate child support.

If a self-employed parent does not provide adequate disclosure of their compensation, benefits, and explanations for their expenses, a judge can draw an “adverse inference”.  This means that a judge can make a presumption that the evidence was not provided because it would hurt that person’s own case.  For example, if information about an expense is not provided, a judge can assume a high percentage of the expense was for the parent’s personal benefit and add most of it back to their income.

As with all matrimonial property, the person who owns the business has a positive duty to disclose all relevant information about the business so it can be properly valued.In some cases, it may be necessary to have an accounting professional review a business’s financial statements to provide an opinion of what the self-employed parent’s “guideline income” should be set at to calculate child support.

The same evaluation of a self-employed person’s income can be done to calculate spousal or partner support as well.

Dividing Matrimonial Property

When married people separate, all property (except for a few exemptions) that the couple has accumulated throughout the marriage is divided equally between them.  If a self-employed person runs an unincorporated business (ex. a sole proprietorship), the equity in the business assets they own under their own name are also matrimonial property to be divided.  If a self-employed person runs an incorporated business, the value of the shares in that business are matrimonial property.  The value of the shares is determined by the equity in the business assets along with other considerations that affect the value such as long-term contacts or name recognition.

If a self-employed person runs an incorporated business, the value of the shares in that business are matrimonial property.  One way to think of the value of a business is consider what a third-party would pay to buy that business.  For example, if one party owned a restaurant as an incorporated business, the value of that restaurant would be determined by the equity in the physical assets (such as the equipment, furnishings, and building), the debts owing to creditors (such as the bank, suppliers, and Canada Revenue), and the expected earnings (which would be affected by how well known it is, where it is located, whether it has regular customers or events, how long it has been in operation, etc.)  These kinds of factors all come in to play when a buyer considers how much to pay to buy that restaurant.

Since many business owners are unlikely to actually sell their business when they divorce, it may be necessary to have a professional business valuator provide an opinion on the value of the business.  As with all matrimonial property, the person who owns the business has a positive duty to disclose all relevant information about the business so it can be properly valued.  In the very least, this includes providing copies of financial statements, tax returns, bank account statements, copies of cheques issued to the business owner, and information about other benefits the business owner or their family members have received.  It may be necessary to provide additional records.

A self-employed parent must provide full financial disclosure to the other parent along with explanations of their compensation and benefits.  Once the value of a business is determined, the divorcing couple must then decide how they will split the value.  One person can buy the other out with cash, they might transfer other property (ex. the matrimonial home) equal in value, or they might transfer their shares in the company.  Whenever transfers are made it is important to consult a tax expert and review the business’ incorporating documents to ensure the transfer is advisable and allowable.

There are many benefits to being self-employed.  However, self-employment should not provide an opportunity for a parent to pay less than what is appropriate in child support or to shield a spouse from receiving their share of matrimonial property.  Rather, the benefits of self-employment should extend to the whole family.

Dispensing with a Parent’s Consent for Counselling for Children

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When parents go through a separation, the effects on children can be harsh.  Often, children benefit from counselling.  Usually, both parents agree and provide their consent for this to occur.  But occasionally, one parent will not consent.  This leaves the other parent, and the child, in a difficult spot.

Unless a court order says otherwise, both parents are most often the joint guardians of their child.  This means that they both need to provide their consent for their child to participate in activities such as counselling.   If a counsellor cannot get the consent of both parties, they likely are not able to proceed.

In any application for a custody and access or parenting order, the only consideration the Judge makes is what is in the child’s best interests.

There may be some situations where counselling is not appropriate given the needs of the child. There may be legitimate concerns about the cost of counselling, whether the proposed counsellor is qualified, or if the type of counselling is appropriate.  Most parents can work together to determine what is in their child’s best interest.  However, there are situations where counselling is in a child’s best interests but one parent will not consent to it for reasons that are less legitimate.  This is particularly troubling in cases of family violence.  The perpetrator of family violence may not consent to counselling because they do not want the counsellor to discover more about what they have done or they do not want to admit that violence is a real issue in their family.  What can the other parent do?

The parent who believes the counselling should occur can apply to the court to dispense with the other parent’s consent for counselling.  There are two main routes to obtaining such an order: (1) as part of a custody and access or parenting order; or (2) as part of a Queen’s Bench Protection Order.

Parenting orders, or custody and access orders, can deal with all parenting issues in dispute between separated parents, including decision-making for children.  A parent can apply for an order as part of a custody and access order under        s. 16 of the Divorce Act, or a parenting order under s. 32 of the Family Law Act.  A parent can apply for whatever terms are required such as:

  • with whom the child will live;
  • what access or parenting time schedule the parents will follow; and
  • who makes decisions for the child, including decisions about “health-related treatment”. Generally, counselling is considered “health-related treatment”.

The perpetrator of family violence may not consent to counselling because they do not want the counsellor to discover more about what they have done or they do not want to admit that violence is a real issue in their family.  The perpetrator of family violence may not consent to counselling because they do not want the counsellor to discover more about what they have done or they do not want to admit that violence is a real issue in their family.  If there is already a custody and access or parenting order in place, a parent can apply to change, or vary, that order to include a term who can consent to health-related treatment, or more specifically, counselling for the child.

In any application for a custody and access or parenting order, the only consideration the Judge makes is what is in the child’s best interests.

A Queen’s Bench Protection Order (“QBPO”) is granted under the Protection Against Family Violence Act (“Act”).  An Emergency Protection Order can turn into a QBPO or it can be applied for on its own.  QBPOs can provide protection to claimants and their children where there has been family violence.  In this Act, family violence is defined specifically as:

  • any intentional or reckless act or omission that causes injury or property damage and that intimidates or harms a family member;
  • any act or threatened act that intimidates a family member by creating a reasonable fear of property damage or injury to a family member;
  • forced confinement;
  • sexual abuse; and
  • stalking

If there has been this kind of family violence, a Judge may grant a QBPO which may include no contact conditions, area restrictions, and other terms including “a provision authorizing counselling for a child … without the consent of the respondent”.   The parent (or “claimant” in this case) must prove the underlying family violence to be granted this kind of order.

Unless a court order says otherwise, both parents are most often the joint guardians of their child.In either situation, the Judge will need evidence to support why it is necessary to dispense with one of the parents’ consent.  For example, there should be evidence showing that that someone has made reasonable efforts to get the parent’s consent and that it has been refused.  There should be evidence indicating the child would benefit from counselling, for example, that they are struggling at school or have made concerning disclosures about what they have seen or feel. There should also be some information about what kind of counselling is being proposed including who will provide the counselling and their qualifications.  The issue of who will pay for the counselling should also be addressed.

It is ideal if parents can speak to a lawyer to get individualized advice about their situation and what kind of application, if any is right for them.  It is also ideal to have a lawyer assist in bringing any court application.  If a parent cannot afford to speak to a private lawyer, they may be able to access brief advice from an organization such as the Edmonton Community Legal Centre or Calgary Legal Guidance.  Parents can get procedural information from Resolution and Administrative Services throughout the province.

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