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BenchPress – Vol 41-3

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  1. Intolerable Delay, 5 Years: Case 1

Barrett Jordan was charged with a criminal offence in 2008 and his trial ended with his conviction in 2013. He alleged that his Charter right to trial within a reasonable time had been breached and the Supreme Court of Canada agreed.  It set out a new standard for unreasonable delay: a ceiling of 18 months for cases tried in provincial court and 30 months for cases in superior courts such as Queen’s Bench. The ceiling is presumptive, meaning that it can be set aside in exceptional circumstances. Also, delays caused or waived by the defence do not count in measuring the time. “Exceptional circumstances” mean matters that lie outside the control of the Crown in that they are reasonably unforeseen or avoidable, and they cannot be easily remedied. The majority of five justices issued a rebuke to all parties in the judicial system. “All the parties were operating within a culture of complacency towards delay that has pervaded the justice system in recent years. Broader structural and procedural changes, in addition to day-to-day efforts, are required to maintain the public’s confidence by delivering justice in a timely manner. Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. Timely trials are possible. More than that, they are constitutionally required.”  They ordered that Mr. Jordan’s convictions be set aside and entered a stay of proceedings against him.

However, a minority group of four judges disagreed with the majority decision and wrote a rather stinging rebuke of their own to their colleagues. Noting that creating fixed ceilings is a task better left to Parliament, they concluded: “Ultimately, the majority’s new framework casts aside three decades of the Court’s jurisprudence when no participant in the appeal called for such a wholesale change, has not been the subject of adversarial scrutiny or debate, and risks thousands of judicial stays. In short, the new framework is wrong in principle and unwise in practice.”

R v. Jordan, 2016 SCC 26 (CanLII)

  1. Intolerable Delay, 131 Years: Case 2

Between 1885 and 1889 the Government of Canada unilaterally withheld $5.00 per person in Treaty 6 annuities from members of the Beardy’s and Okemasis Band in what is now Saskatchewan. This was because it deemed them to have been disloyal to Canada during the North-West Rebellion.  The Specific Claims Tribunal, which settles legal disputes between First Nations and the federal government, ruled in 2015 that the federal government was wrong to do so, and ordered it to pay equitable compensation. In December 2016 the Tribunal met again to determine the amount of compensation.  It stated that equitable compensation means a remedy applied by courts when there has been a breach of fiduciary duty. It aims to restore the beneficiaries to the position they would have been in had the breach not occurred. This assessment is made at the time of the trial, not at the time of the breach. After considering arguments from both sides, the Tribunal set the compensation to the band members at $4.5 million – 131 years after the event that triggered the legal action.

Beardy’s & Okemasis Band #96 and  #97 v. Indian Affairs and Northern Development, 2016 SCTC 15

  1. Demeaning, malicious, hostile.

A gay Toronto man convicted of aggravated sexual assault and forcible confinement took his convictions to the Ontario Court of Appeal. One of his grounds for appeal was that the jury foreman’s conduct gave rise to an appearance of unfairness.  While the trial was underway, the jury foreman was a guest on a “shock-jock” radio show. He and the show’s hosts made derogatory comments about sexual activity between men and made fun of the juror’s oath.  The jury foreman appeared on the same show after the accused was convicted and, again, laughed at the participants in the trial and made derisive comments about the lifestyles of the participants. The Crown alleged that a reasonable person would know that the juror was just joking.  Madame Justice Benotto retorted: “This submission presumes that jokes of this type are innocuous. They are not. They have a destructive side. They target marginalized groups often based on race, gender, gender identity or sexual orientation. They promote – and risk normalizing – negative stereotyping. They are demeaning, malicious, hostile and encourage prejudice.” The Court set aside the convictions and ordered a new trial.

R v. Dowholis, 2016 ONCA 801 (CanLII)

 

  1. No Custody Orders for Pets

Justice R. Danyliuk of the Saskatchewan Court of Queen’s Bench was asked to take a “custody approach” in a hearing about a divorcing couple’s two dogs. He declined to do so.  He cited a previous decision where the judge wrote “A dog is a dog. Any application of principles that a court might normally apply to the determination of custody of children are completely inapplicable to the disposition of a pet as family property. Any temptation to draw parallels between the court’s approach in this case to the principles applied to settle child custody disputes must be rejected.”  Justice Danyliuk noted the differences between how we treat our pets and our children:

  • In Canada, we tend not to purchase our children from breeders;
  • We tend not to breed our children with other humans to ensure good bloodlines, nor do we charge for such services;
  • When our children are seriously ill, we generally do not engage in an economic cost/benefit analysis to see whether the children are to receive medical treatment, receive nothing or even to have their lives ended to prevent suffering;
  • When our children act improperly, even seriously and violently, we generally do not muzzle them or even put them to death for repeated transgressions.

He concluded that he would not make what amounts to a custody order for dogs and that such an application should not even be put before the court. He dismissed the application for interim exclusive possession of the dogs and urged the parties to move along.

Henderson v. Henderson, 2016 SKQB 282 (CanLII)

See also: LawNow’s Family Law columns on “Dealing with Pets after Separation” written by our family law columnist John-Paul Boyd:

  1. http://www.lawnow.org/dealing-with-pets-after-separation-part-1-understanding-the-law-on-personal-property/
  2. http://www.lawnow.org/dealing-pets-separation-part-2-going-court/ 

Dealing with Pets after Separation, Part 2: Going to Court

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Family Law ColumnIn the first half of this article, I wrote about the laws on personal property that might apply when a couple can’t agree on how they’ll manage their pets after they separate. In this half, I’ll talk about the sorts of orders you can and can’t ask the court to make about pets, assuming you and your ex haven’t been able to settle the problem.

If you’re not the pet’s owner, or the court isn’t likely to decide that you are, but you still put money into buying the pet, you can ask to be repaid for what you paid toward its purchase.

If you must go to court about your pet, remember that because pets are personal property, the “best interests” of your pet aren’t relevant the way they would be if you were asking for an order about a child. Nor is who loves the animal more or, usually, who would provide the pet with a better home. What counts is ownership. As the adjudicator put it in Hawes v Redmond, a 2013 decision from Nova Scotia:

“[26] I have no doubt that the dog currently has a good home with Dr. Hawes and her family, but that is not the point. This case is not about the best interest of the dog; it is about who has the better claim to legal ownership. The analysis is no different than it would be if we were talking about a bicycle.”

Here are the orders you can and can’t ask the court to make about your pets.

You can’t ask for custody of the animal.

“Custody” is a Divorce Act term that applies to children. Human children.

What you’re probably looking for instead of a custody order is an order that gives you the right to have the animal that’s enforceable against your ex; more on this a bit later.

You can ask the court to make a declaration about who owns the animal.

If you do this, you’re asking the court to decide who the animal’s owner is. This is helpful when there are doubts about who owns the animal. Besides, being the pet’s owner usually lets you say where the animal lives… like, for example, with you.

If you lose, however, the court will most likely declare that your ex owns the animal. The court isn’t likely to refrain from making a declaration about who owns the animal once the issue has been brought up.

You can’t ask for access to the animal.

“Access” is also a Divorce Act term that only applies to human children.

The closest I can put the idea of access into an order about property is an order that would give each person the right to possess a pet on an alternating basis. Although there’s nothing stopping anyone from agreeing to that in a contract like a separation agreement, and the court would probably make an order like that if everyone agreed to it, the idea of a right to the possession of property on a periodic basis doesn’t fit well with the law on personal property, or the general principle that court orders should resolve, or at least decrease, the conflict between litigants.

First off, if you’re not the owner of the animal you don’t have the right to possess the animal, on a periodic basis or otherwise, unless you’ve got a contract with the owner. Second, if you’re the owner and you don’t have a contract requiring you to let someone have the animal from time to time, there’s nothing I can imagine that could oblige you to do so.

Third, if the two of you both own the animal and can’t agree to share it, the court won’t make you share it. Here’s what the court said about it in C.S. v D.S., a 2005 case out of Newfoundland and Labrador:

“The dog is a matrimonial asset but it is, without being facetious, indivisible.”

Accordingly, the court’s options are these:

  • decide which of you will be entitled to own and possess the animal, and possibly require the person keeping the animal to pay compensation to the person who doesn’t get to keep the animal; or,
  • make you sell the animal, and then divide the sale proceeds between you.

The compensation potentially payable in the first case would likely be based on the current fair market value of the pet – what a neutral stranger would pay to buy the animal from you, at its current age and in its current health.

You can ask the court to make an order about who should possess the animal.

Owning something is sometimes different than the right to have something. Landlords, for example, own the apartments they rent out but don’t have the right to possess apartment they have rented; the right to possess the apartment is what they sell to their renters. Orders for the possession of things are useful because they say that you have the right to have those things with you, whether you’re the legal owner or not.

If you’re asking the court for a decision about who owns the animal, you could ask for an order for the possession of the animal at the same time and kill two birds with one stone. (My apologies to bird owners.) This will be especially useful if you’re the owner and your ex is keeping your pet from you.

You can’t ask for an order that you jointly own the animal, or that you continue to jointly own the animal.

Although you and your ex can make an agreement that you’ll continue to jointly own the pet, and the court would probably make an order that you jointly own the pet with your agreement, the court is not likely to make an order that you jointly own the animal over someone’s objection. This would create, or perpetuate, pointless conflict. If you can’t agree that both of you will continue to own the animal together, the court’s options are to:

  • decide which of you will be entitled to own and keep the pet, and possibly require the person keeping the pet to pay compensation to the person who doesn’t get to keep the pet; or,
  • make you sell the pet, and then divide the sale proceeds between you.

Again, the compensation potentially payable in the first case would likely be based on the current fair market value of the animal.

You can ask that you be compensated for the money you spent feeding and taking care of the animal.

If you don’t own the pet, you can ask the court to make a declaration that the owner of the pet was “unjustly enriched” by your contributions to the care and maintenance of the animal, as I described in the first part of this article. If the court decides the owner was unjustly enriched, and you can somehow prove what you spent on the pet and what your non-monetary contributions were worth, the court might then make an order that you be compensated for your contributions. “Non-monetary contributions” might include taking the animal for walks, bathing it, grooming it and so on.

If you’re asking the court for a decision about who owns the animal, you could ask for an order for the possession of the animal at the same time and kill two birds with one stone. (My apologies to bird owners.) Proof of your spending on the pet might include grocery bills and receipts from the vet, but few people take the trouble to keep all of these receipts and you’ll likely be out some money. It will be difficult to establish the value of non-monetary contributions, but you can get some idea by looking at what commercial services charge for things like dog-walking, grooming and so on.

You can ask that you be compensated for the money you put into buying the animal.

If you’re not the pet’s owner, or the court isn’t likely to decide that you are, but you still put money into buying the pet, you can ask to be repaid for what you paid toward its purchase.

This isn’t an unreasonable order to ask for, but I’d imagine that most animals are depreciating assets. The amount you’d pay for a very young dog with years of life ahead of it is not what you’d pay for a middle-aged or elderly dog. If you’re arguing about an eight-year-old dog, should the person keeping it be obliged to give you back your original investment or a proportion of that investment based on the dog’s current commercial value? The current value might be fairest, especially if you also enjoyed the dog while you were together.

You can ask for an order that the animal be sold, and that the money from the sale be split between you.

This is the scorched-earth option. It’s saying “fine, if I can’t have the dog, you can’t either.” It reflects your strong emotional bond to the dog and how upset you are at not being able to keep it, but also disrespects your ex’s attachment to the animal. It also comes across as rather petty and vindictive.

The adjudicator in Gardiner-Simpson summarized the problem with this sort of approach as follows:

“[8] In matrimonial cases, parties often agree to sell jointly owned assets (whether realty or personalty) and split the proceeds. The problem would take on a Solomonic quality, where splitting the asset (be it a dog or a child) destroys the thing for both of them. Selling the dog to an outsider would only double the pain.”

I can’t imagine too many judges making this sort of order. In fact, I can really only imagine this order being made as a way of signaling the court’s frustration with the behaviour of everyone involved.

You might also be able to ask for orders about the animal under your province’s or territory’s legislation on family property.

“The dog is a matrimonial asset but it is, without being facetious, indivisible.”

Your pet may qualify as divisible property under your province’s or territory’s laws about the division of matrimonial property. In British Columbia, property bought after a couple began to live together is “family property” that the court can divide under that province’s Family Law Act. In Alberta, a pet that both spouses enjoyed is a “household good” that the court could award to one spouse under the the Matrimonial Property Act. Under Ontario’s Family Law Act, a pet could qualify as part of a spouse’s “net family property.” You get the idea.

Now, just because pets may qualify for division under the family law legislation doesn’t mean they should be. In Ireland v Ireland, a 2010 case from Saskatchewan, the parties’ lawyers agreed that a labrador retriever was “family property” and divisible under that province’s Family Property Act, however the court commented that:

“[9] It is an unacceptable waste of these parties’ financial resources, the time and abilities of their two very experienced and capable legal counsel and most importantly the public resource of this Court that a dispute of this kind should occupy all in a one-day trial involving three witnesses, including an expert called by one of the parties. It is demeaning for the court and legal counsel to have these parties call upon these legal and court resources because they are unable to settle, what most would agree, is an issue unworthy of this expenditure of time, money and public resources.”

“[10] Except in the most compelling of circumstances (perhaps to avoid a breach of the peace or potential harm that parties may do to one another), the court should not be engaged with interim applications or the trial of an issue such as this.”

Really, the judge’s observation in this case goes beyond dividing pets by application under the family law legislation; the point that arguing about such claims in court is a waste of litigants’ financial resources seems to me to apply to all court claims involving pets. As the court said in Warnica v Gering, a 2004 case from Ontario:

“[19] … Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised [as property orders] or otherwise. …”

Dealing with Pets after Separation, Part 1: Understanding the Law on Personal Property

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Family Law ColumnFamily law is about how serious cohabiting relationships start and end, how children are cared for after separation, how the bills are paid after separation, and how the property and debts that accumulated during a relationship are split when it ends. Despite the folks who’d very much like to apply for custody of or access to their pets after separation, the law on custody, guardianship and access only applies to human children. In the eyes of the law, pets are personal property, like a coffee cup, a cow or a car. I’m not saying this is right, mind you, just that this is how it is; no matter how attached you might be to your pet, your pet is property. As the adjudicator said in Gardiner-Simpson v Cross,, a 2008 case from Nova Scotia:

“[4] Emotion notwithstanding, the law continues to regard animals as personal property. There are no special laws governing pet ownership that would compare to the way that children and their care are treated by statutes such as the [statutes on family law]. Obviously there are laws that prohibit cruelty to animals, but there are no laws that dictate that an animal should be raised by the person who loves it more or would provide a better home environment.”

In this, the first half of two-part article, I’m going to talk about the laws on personal property that might apply when a couple can’t agree on how they’ll manage their pets after separation. In the second half of this article, I’ll describe the sorts of orders you can and can’t ask the court to make about pets.

Before continuing, however, I need to emphasize the importance of remembering that pets are property, or, to put it another way, that pets are not people.If you have an issue about a pet following separation, it will probably help to make a point of mentally substituting “the toaster” for “the dog” when you’re thinking about the problem. Unplugging your feelings from intentionally emotional problems like these can often make it easier to work your way through them.

Here are the general rules about owning and co-owning personal property.

Most of the time, the person who bought the pet owns the pet.

There are some exceptions to this rule, like if you found the animal wandering the streets or you bought the pet as a gift for someone else. However, in general and as with other kinds of personal property, if you bought it, you own it.

If you bought the animal, you can provide evidence of the purchase, and your ownership, through a sales receipt, or a bank statement or credit card statement, showing the details of the purchase. If you don’t have paper evidence of the transaction, you may be able to demonstrate ownership by being the person:

  • who is listed as the owner at the vet’s office;
  • whose name is on the city ownership licence; or,
  • who is identified on a kennel club registration or breeder’s certificate.
In general, a person who receives a pet as a gift owns the pet.

…it’s important to know that more than one person can own a pet, just like more than one person can own a car or a house.Making a gift of something is one of the more common ways, along with selling or trading things, that an owner of property can transfer ownership of the property to someone else. Someone who buys a pet, and then gives it to someone else, loses the right to have and enjoy the pet; the person to whom the pet is given, on the other hand, becomes the owner of the animal, and, with ownership, gains the right to have and to enjoy the pet.

If you received the pet as a gift, you may be able to prove that ownership of the pet was gifted to you by providing:

  • letters, notes or cards that might have accompanied the gift;
  • evidence of what the giver said to you about the gift, like “happy birthday, I bought you this ferret;”
  • evidence of what the giver said to others about the gift, like “I bought Sandra a ferret for her birthday;” or,
  • evidence that the giver has given similar gifts in similar circumstances, like “I give all of my children ferrets for their sixteenth birthdays.”

Proving that something was a gift is about proving the intention of the owner to make a gift. The transfer of ownership isn’t a gift without that intention!

Say your boyfriend stops caring for or feeding the dog, stops taking it for walks and stops taking it to the vet, and say you’ve started doing all those things. Although it’s true that you’re doing all the work, it doesn’t mean he’s necessarily given the dog to you unless he actually says, “take the dog, it’s yours.” However, there are some exceptions to this. Read on.

You might be able be able claim ownership of animals that are stray or abandoned.

The basic rule is that an owner’s rights in personal property are never lost unless the owner intends to get rid of the property. But what if the owner of a stray animal can’t be found? What if the animal’s owner has abandoned it?

I won’t say much about owning stray animals, since this article is about property rights between couples who are separating. I’ll just say that you may be able to keep animals that you find, as long as you don’t know who the proper owner is and never find out who the proper owner is. If, over time, you become the person who normally cares for the animal you might gain a right to have the animal that is enforceable against everyone else… except the proper owner.

Now it might be possible for you to argue that the proper owner has abandoned the animal, especially if the owner has stopped caring for or feeding the animal, stopped taking it for walks and stopped taking it to the vet, and you’ve taken over all those chores. Arguing that your partner has abandoned a pet can be challenging, however, and it’s up to you to prove that she’s abandoned the animal.

Here’s how an adjudicator from Nova Scotia described the law of abandonment in the 2014 case of Chiasson v Kennedy:

“[16] … Abandonment occurs when there is ‘a giving up, a total desertion, and absolute relinquishment’ of private goods by the former owner. It may arise when the owner with the specific intent of desertion and relinquishment casts away or leaves behind his property … abandonment involves … an intention to relinquish title, ‘that is, an indifference as to the fate of the chattel, coupled with sufficient acts of divestment’…”

And that, in a nutshell, is what you have to prove to show that your partner has abandoned her pet.

“Chattel,” by the way, is another term for personal property.

If you can’t claim ownership of the pet even though you’ve been the only one caring for it, you may be able to claim compensation for your contributions.

If you’ve wound up doing a lot of the day-to-day work associated with the pet or paying for a lot of the animal’s expenses, like food, vet bills and grooming costs, and you can’t find a way to claim that you own the animal, you can ask for the next best thing: compensation for your contributions to the maintenance of the pet. This is called an “unjust enrichment” claim.

Although we normally see unjust enrichment claims in the context of someone’s contributions to real property – houses, condominiums and cottages and so forth – I don’t see any reason why the claim couldn’t be made with respect to personal property. The idea behind claims like this is that you’ve made contributions to property owned by someone else for which you’d normally be paid in some way.

There are three things you have to prove to establish unjust enrichment:

  • the owner was enriched because of your contributions to the animal (for example by not having to buy pet food or pay for someone to walk the pet);
  • you lost something as a result of your contributions (like the money you spent feeding the pet or the money you could have made walking someone else’s pet); and,
  • there is no legal reason for the owner to be enriched by your contributions (like a contract which required you to care for the pet).

If you’re successful, you’ll then have to prove the amount by which your efforts enriched the owner. Although you won’t get to keep the animal unless there’s no other way for the owner to pay out what he or she owes you, at least you’ll be partially repaid for the time and money you’ve spent on the beast.

More than one person can own an animal.

Finally, it’s important to know that more than one person can own a pet, just like more than one person can own a car or a house. This might happen if both people put money into buying a pet, if the pet is bought using money from a joint account or if the pet is bought using money borrowed from a joint credit card. It might also happen if the person buying the animal intended that both people would own it.

Ideally, you’d prove joint ownership with a sales slip that demonstrates a joint contribution to the purchase by saying something like “received for the purchase of Sam, the four-month-old purebred daschund, $100 from Sandra and $100 from Kaitlyn.” This would create a presumption that both of the buyers own the pet. However, sales slips rarely say anything so useful, and most buyers never think of asking for it. Absent this sort of proof, you’ll need to demonstrate that you both intended to jointly own the animal. Just like gifts, intention is everything.

If you have an issue about a pet following separation, it will probably help to make a point of mentally substituting “the toaster” for “the dog” when you’re thinking about the problem.Things like sales receipts that show both names (“Sam, sold to Sandra and Kaitlyn for $200”), city licences in both names, statements from joint bank accounts and credit cards showing the purchase all tend to support the argument that both of you meant to jointly own the pet, but none conclusively prove that this was your shared intention. You might be able to prove that you both had this intention through:

  • letters, notes or cards that you might have exchanged around the time of the purchase;
  • evidence of what your partner said to you about the purchase (“I’m so happy we bought Sam together”); and,
  • evidence of what your partner said to others about the purchase (“Sandra and I bought Sam together”).

However, it’s not always an advantage to co-own a pet, as we’ll see in the next part of this article.

Options for the court

Okay, these are the important parts about the law on personal property that apply to pets. Assuming this information doesn’t help you and your ex come to an understanding, you may find yourself having to go to a mediator, an arbitrator or a judge. In the second part of this article, I’ll write about the the sorts of orders you can and can’t ask the court to make about pets after separation.

 

Responding to Children’s Refusal to Visit After Separation – Part 3

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Family Law ColumnIn the first part of this article, I wrote about the research on children who refuse to visit a parent after separation and how children’s relationship with a parent can sometimes break down for reasons other than the interfering actions of the other parent. In the second part, I talked about the warning signs that suggest a child is at risk of becoming alienated from a parent, about how few claims of alienation are actually proven in court and about how the courts tend to respond to alienation claims that are proven.

In this, the final part of my article, I’ll talk about the options that are available when alienation is suspected or established, and offer some suggestions for how cases involving claims of alienation and estrangement should be handled when they go to court.

Understanding why the child refuses to visit

A child may refuse to visit a parent for a variety of reasons including estrangement, alienation and reasons that are appropriate to the child’s age, maturity and gender. These can include separation anxiety, fear for an emotionally vulnerable parent or a simple preference for one parent over the other, and suggest neither estrangement nor alienation. The steps that are best suited to address a particular child’s refusal to visit a parent depend on why the child is refusing to visit the parent. The interventions appropriate in cases of alienation aren’t necessarily going to be appropriate in cases of estrangement, and children who have distanced themselves from a parent for reasons that are age- and gender-appropriate may need no intervention at all.

Unfortunately, understanding a child’s refusal to visit will usually require the assessment of a mental health professional like a psychologist. It can be very difficult, if not impossible, for the parents to figure it out themselves. No one likes to think that their parenting skills need to be improved and few people who are trying to damage the child’s relationship with another parent are going to admit it.

This assessment should be performed as soon as possible, which may require applying to court for an order if the parents can’t agree. Professor Nick Bala and psychologist Barbara Jo Fidler say that:

“The success of legal and mental health interventions depends on establishing, as early as possible, the reasons a child rejects a parent, and responding before parents and children become set in their attitudes and patterns of behaviour. … Bitter, protracted litigation may transform ‘reasonable’ alignment with one parent into outright rejection of the other, and some cases of severe alienation may be effectively impossible to reverse during childhood.”

This assessment should also identify the intervention most appropriate to the child and the circumstances; this intervention is something else that should be started as soon as possible.

Counselling

Psychologists Joan Kelly and Janet Johnston write that the child and each of his or her parents have different needs that might be addressed through counselling.

In cases of alienation, the favoured parent may need counselling aimed at reducing negative comments about the rejected parent, helping the parent avoid unconscious and indirect expression of negative feelings about the rejected parent, and educating the parent about the harmful effects alienation has on children. In cases of estrangement, the favoured parent may need help supporting the child’s relationship with the rejected parent and responding to the child’s negative statements about that parent.

Rejected parents may need counselling about their reactions to the breakdown of the parent-child relationship, managing conflict with the favoured parent, and avoiding counter-rejecting the child and withdrawing from the parent-child relationship. Counselling may also help to address any parenting or personality deficits that may have contributed to the alienation or estrangement and provide the parent with guidelines for responding to the child’s negative comments.

The first objective of counselling for children will be to shore up the child’s relationship with the rejected parent and ease the child’s resistance to spending time with that parent. Counselling may help children address any traits, such as being anxious, fearful or passive, or having low self-esteem, that increase their vulnerability to alienation.

Therapeutic programs

A number of programs exist in Canada and the United States that are aimed at rebuilding broken parent-child relationships. These programs are run by mental health professionals who specialize in dealing with separation and divorce. They may take place in a camp or resort setting, or they may involve multiple meetings with a team of counsellors with no residential requirement.

Some of the better known programs are the Family Bridges program run by psychologist Richard Warshak, the Overcoming Barriers Family Camp run by psychologists Matthew Sullivan, Peggie Ward and Robin Deutsch, and the Family Forward program run by counsellor Alyson Jones. Unfortunately, to my knowledge none of the therapeutic programs aimed at alienated children, including these, have been evaluated by independent experts and it is hard to say how successful they are or how long-lasting the improvements are when program succeeds.

Options for the court

Warshak writes that the basic options available to the court when a child refuses to visit a parent are:

  • award or maintain custody with the favoured parent, with court-ordered psychotherapy and, in some cases, case management;
  • award or maintain custody with the rejected parent, in some cases with court-ordered or parent-initiated therapy;
  • take the children away from the daily care of either parent; and
  • accept the child’s refusal of contact with the rejected parent.

Although there are variations and nuances, those are the court’s essential choices. However, when an order or agreement about parenting is in place, the court may also:

  • change the parenting order or agreement on a temporary basis, to support the child’s relationship with the rejected parent or give an intervention time to work;
  • make the parenting order or agreement more specific, to remove any opportunity for a parent to make decisions that interfere with the child’s time with the other parent;
  • enforce the order or agreement through things like ordering a parent to pay the other parent’s legal costs, finding a parent in contempt of court or ordering the police to enforce the order; and

appoint a parenting coordinator to work with the family and implement the parenting order or agreement.

There isn’t a lot of research on how well these orders work either. The job of the court does not include policing its orders or following up on the outcome of its decisions; our justice system leaves this to the people involved in a court proceeding.

Handling alienation claims in court

If a court proceeding is underway, or if a court proceeding is inevitable because the parents can’t agree on what should be done, a few things should happen as soon as possible. First, there needs to be an assessment to figure out why a child is refusing to visit a parent. Second, if the assessment recommends an intervention, it’s generally best to get that intervention started sooner rather than later. Letting things slide risks making the damage to the parent-child relationship worse and allowing the child’s feelings to become entrenched and harder to change in the future.

Third, Matthew Sullivan and Joan Kelly recommend asking for close case management of the court proceeding right from the start. They say that getting the case under the control of a single judge can help to:

  • preserve the relationships between lawyers and clients, clients and mental health professionals, and clients and parenting assessors;
  • ensure the continuity of parenting time between the child and the rejected parent; and
  • enforce orders for parenting time, counselling and assessments.

I see three other important benefits of case management:

  • controlling the favoured parent’s efforts to delay and hinder the progress of the case toward resolution;
  • ensuring that applications are heard expeditiously and the case proceeds to trial with a minimum number of delays and interruptions; and
  • providing a way for the mental health professionals to report back to the court on the parents’ compliance with the intervention and its progress.

In my opinion, case management meetings should be scheduled in advance, every two or three months, for example, rather than be left for the parties to schedule when the need arises. Regularly scheduled meetings gives the court the opportunity to check on the parents’ compliance with parenting plans, hear from any counsellors and psychologists who may be involved in the court proceeding and make any orders necessary to get things back on course. They give parents the continuous oversight of a single judge who is familiar with their case. Parents also have the opportunity to check in with each other and the court, and to discuss problems and concerns that might otherwise be too trivial to justify a hearing.

The process of asking for case management changes depending on the court. In some jurisdictions, you can ask for case management by writing a letter to the Chief Justice. In other jurisdictions, you need to need to apply for an order for case management. Although case management can be difficult to arrange at times, when a family law proceeding involves issues of alienation, and even estrangement, case management can be critical the success of mental health interventions and the speedy resolution of the case.

How is property divided at the end of a relationship?

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Family Law ColumnThe property rights that you have at the end of a relationship depend on what kind of relationship you had in the first place. Are you married? Living together? If you are married, then the property rights that you have come from Alberta’s Matrimonial Property Act. If you are living together but are not married, then there is no law that sets out how to divide the property.

The Matrimonial Property Act divides property into three different categories: property that will be divided equally, property that will not be divided, and property that will be divided based on what is fair. All of the property from the relationship will fall into one of these three categories. This chart sets out some examples of the different kinds of property.

Common examples of MPA property; click image to go to PDF of booklet that includes charts

For unmarried couples, property division is not as clear because there is no law that sets out how to divide the property. Property that you own with your partner is usually divided equally, while you get to keep the assets that are in your own name, and the other person gets to keep the assets that are in their name. If it would not be fair for you to keep all of the assets that are in your name, then your ex can make an application to divide the property based on a claim for unjust enrichment. For example, if you owned the house in your name, and your ex lived with you for ten years and helped you with major renovations, yard work, and other maintenance, then it might not be fair for you to be able to walk away with the entire value of the house when your ex contributed to the value of that asset.

Here is a chart that sets out the process of property division for unmarried people.

Flowchart of how property is divided for unmarried people; click image to go to PDF of booklet that includes charts

The charts in this article are from a new series of booklets, Families and the Law, which was developed by the Centre for Public Legal Education Alberta, in partnership with the Edmonton Community Legal Centre. Each of the five booklets in the series addresses a different area of family law.

 

Co-parenting: Doing your best for the kids during separation and divorce

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child standing between parentsSeparation or divorce is one of the most emotionally taxing situations a person may face. On top of that, a parent is usually trying to maintain some semblance of normal life for their children. Some guidance in the midst of this can help.

Family Justice Services offers Parenting After Separation seminars all across Alberta. You can learn more about the effects of separation and divorce on children, techniques for communication and legal information that affects parents and children. Follow the link for a course description, locations, and phone numbers for registration information. You can even download the course manual.

For more resources on supporting your children through this time, see our article Helping Children and Teens Deal with Separation and Divorce.

You also may be interested in our latest issue Birth & the Law.

 

Update: Helping Children and Teens Deal with Separation and Divorce

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girl daydreamingIn LawNow’s most recent issue, a very popular article has been “Helping Children and Teens Deal with Separation and Divorce“. Here is another resource to add to the list!

The Public Legal Information Association of NL has recently released material for children and youth living in Newfoundland and Labrador, ages 10 to 15 years, dealing with parental separation and divorce. It aims to provide some basic information about family law and give them an idea of the processes that parents may go through when they separate or divorce. The booklet My Parents Live Apart (PDF) is accompanied by short online videos to fit with each of the sections: Money Matters, Home Matters, Safety Matters, Emotional Matters, Help Matters, and Language Matters.

Helping Children and Teens Deal with Separation and Divorce

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onlinelawIn 2008 Statistics Canada estimated that 41% of Canadian marriages would end in divorce before the 30th year of marriage. Most agree that the divorce of parents has a profound impact on the emotional well-being of children. The legal system has recognized this issue and family justice services across the country offer parent education programs (sometimes on a mandatory basis, sometimes voluntary) to help families adjust (Inventory of Government-based Family Justice Services).

Beyond this, there are a variety of interesting online resources to help children and teens navigate this difficult passage in their lives. Note that because the issues addressed are general in scope and because divorce is governed by federal legislation, resources produced in one province can be useful in any part of the country except for sections listing support services, which tend to have a more local focus.

The Department of Justice Canada provides “What happens next? Information for kids about separation and divorce”. The text can be read as web pages while the downloadable PDF version is colourful with appealing illustrations. The booklet aims to help children between the ages of nine and twelve learn about family law, and realize that it is normal for them to have an emotional response to their parents’ separation.

From the Public Health Agency of Canada comes a guide for parents called “Because Life Goes On – Helping Children and Youth Live with Separation and Divorce”. Again, it is available in either a webpage version or as a PDF. Topics addressed include: strategies for co-operative parenting, tips for communicating effectively with children and specific suggestions for supporting children at various ages and stages of development. The resources section includes a list of books and videos for parents, children and youth.

Families Change is an attractive and colourful suite of websites developed by the Justice Education Society of B.C. in partnership with the British Columbia Ministry of the Attorney General. It is available in both English and French and is divided into four sections. The Kids’ Guide to Separation and Divorce is aimed at children aged five to twelve. Using clickable images, a cast of characters and simple text, it addresses the law, changes, feelings, tools for coping, and the question of why. The Teen Guide to Parental Separation and Divorce deals with similar issues using more advanced text and appropriate photographs. The Parent Guide to Separation and Divorce looks at these same issues from the perspective of the adults who are trying to cope with their own feelings while supporting and communicating with their children. It also provides a section to help parents make an agreement about child support without going to court. Finally, the Parenting After Separation section presents an online course in a choice of three languages: English, Mandarin and Punjabi.

For children ages six to twelve, the interactive website Changeville (also from the Justice Education Society of B.C.) offers an interesting way to explore the changes that divorce and separation can create in a family. The user creates an avatar who can visit the Park, Legal Street, Break Up Street and the Mall, gathering information and doing activities along the way.

“Family Law Handbook: Don’t Get Lost in the Shuffle” is a publication from the Alberta Civil Liberties Research Centre and the Children’s Legal and Educational Resource Centre. The question and answer format of this 33-page PDF allows young people to zero in on the issues that concern them the most.

Also using a question and answer format is a small booklet from the Ontario Ministry of the Attorney General, “Where Do I Stand? A Child’s Legal Guide to Separation and Divorce”. Answers are short and to the point. Attractive pastel illustrations make the PDF version appealing.

The turmoil of divorce is a challenge for anyone. Children, and teens in particular, need information and support during this stressful time.

To Move or Not to Move – that is the Question

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Family Law ColumnIn 2005, Patrick and Serena signed a Separation Agreement that said they would have joint custody of their 4-year old son, Jason (not his real name). Jason would live primarily with Serena and Patrick had specified access. Neither parent would move out of B.C.’s lower mainland without the consent of the other parent or a court order. Serena then married Steven, and they had two children of their own.

Steven lost his job in 2009. Without informing Patrick, he accepted a new job in Edmonton. Serena phoned Patrick and announced they would be moving four weeks later. Patrick objected and got a court order to keep Jason in B.C. Serena cross-applied to vary the Separation Agreement and relocate to Alberta.

The trial judge said no. He said the parents were equal in some respects – both had fine parenting skills, Jason had a strong relationship with both parents and both locations offered good schools. A couple of factors were in mom’s favour – the move would keep Jason with his half-brothers and the Edmonton house was more desirable. But the largest number of factors favoured dad – he had better job security, all of the extended family was in B.C., and moving Jason to his dad’s house would be less disruptive than a move to Edmonton. Mom offered lots of access – in fact, a completely unrealistic amount, the judge said. She expected Dad and the extended family to make frequent trips to Edmonton. Mom testified that the move would have absolutely no effect on the relationship between Jason and his other family members. The judge rejected this out of hand and concluded that it was in Jason’s best interests to stay in B.C.

Serena appealed. On exactly the same facts, the Court of Appeal let Jason move with his mom. How does this happen?

The primary fault, experts agree, lies with the Supreme Court of Canada in its 1996 decision in Gordon v Goertz. The judges said relocation cases must be individualised “best-interests-of-this-child” decisions, without any presumptions and with a “full and sensitive inquiry.” Although they set out some principles, the case is long on apple-pie statements (“the ultimate and only issue when it comes to custody and access is the welfare of the child whose future is at stake”) and short on real legal guidance. The most heavily-criticised principle is the judges’ assertion that the reason for the move is generally “irrelevant.” Almost every Canadian court has ignored this direction and scrutinized the reason for the move. Unfortunately, this means judges just end up concealing the real reasons for their decisions. So, reading judgments won’t necessarily help parents (or lawyers) figure out where they stand. Because outcomes are unpredictable, settlements are harder to negotiate.

A more helpful way to approach the problem is to review the cases and look for patterns. Nicholas Bala, a leading Canadian legal scholar, summarised his findings in a recent article in the Canadian Family Law Quarterly (Nicholas Bala & Andrea Wheeler, “Canadian Relocation Cases: Heading Towards Guidelines” [2012] 30 CFLQ 271). He observed:

  • Success rates for mothers (51%) and fathers (55%) are similar.
  • Reasons matter. The three most frequent reasons are:
  1. economic, usually for a job transfer or a better employment opportunity – 52% of applications succeed.
  2. to establish a new relationship – 48% succeed.
  3. to have better family support, particularly for a custodial parent who wants to move “back home” – 53% succeed.
  • Proven spousal violence, particularly when children witness it or are directly affected and the judge believes the move will protect them – 81% succeed.
  • Distance — travel time, distance, available resources and the moving parent’s willingness to maintain contact are all important. Some provinces are more likely to permit moves (P.E.I. 70%) than others (Newfoundland 38%). Interestingly, international moves are the most successful overall, with a 62% success rate.
  • Custody status is important, but not in the way you might think. How a court order or separation agreement is worded is of little importance. What matters is how much time the child spends with each parent and the quality of that time:
  1. ‘Joint legal custody’ means both parents have a say in parenting decisions. This can be preserved even over long distances and is not a strong predictor of success – 50% of applications succeed, 50% fail.
  2. ‘Joint physical custody’ means each parent has the child at least 40% of the time. The non-moving parent is more involved and their parent-child relationship is usually stronger. Only 30% of the applications succeed.
  3. Sole custody cases are the most successful – 64% succeed.
  • Age of the child – these cases are complicated when there is more than one child. The only significant age effect was when the only child (or the youngest child) was aged 0 to 5 years – 49% succeed.
  • The child’s wishes – where a child is mature enough to have a clear view and is willing to state a preference:
  1. 76% succeeded when the child favoured the move,
  2. 24% succeeded when the child opposed the move.

What parents had to say about their children’s wishes was often conflicting and of little consequence. However, children’s wishes are influential when expressed through their own independent lawyer.

  • The applicant’s conduct is one of the most important factors. If the judge believes the moving parent is well-behaved and will support the child’s continuing relationship with the other parent, the judge is more likely to allow the relocation. Indifference to maintaining the contact is a negative factor. If the judge believes the move is in bad faith and the applicant intends to undermine the relationship with the other parent, the application will likely fail.
  • A clause in an agreement or order which requires the applicant to get court approval before the move has no effect on the final outcome – 51% succeed.
  • Expert opinions are given less weight in relocation cases than in other cases – a 67% acceptance rate, compared to a 75% – 90% acceptance rate for non-relocation cases.
  • Interim applications are harder to win. Judges are cautious about granting permission to move when not all of the relevant evidence is presented and tested in court.
  • Move first and ask permission later – judges frequently condemn these actions. Nevertheless, they take into account of all of the circumstances and 49% still succeed.
  • Appeals have about the same success rate as trial decisions.

British Columbia is the first Canadian province to enact relocation legislation. Bill 16 is expected to become law sometime in 2013. It is intended to reduce the unpredictability of outcomes and thereby encourage settlement and allow parents to plan their lives better.

For the rest of us, Professor Bala thinks we should have Relocation Advisory Guidelines – RAGs. More about RAGs in my next column.

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