We all have deep-seated fears.  Spiders (my wife).   Heights (me).   Eating meat (my vegan daughter).

There is one deep-seated fear in all newly separated fathers: he will not be an important part of the lives of his children.

I can’t tell you how many times I have heard this worry.  Sometimes it is the very first thing that a client tells me.  Even some of the best and most involved fathers have openly raised this issue as their greatest fear.

So, I am sending out this post not to reassure fathers.  That is like trying to convince someone who is afraid of flying that air travel is statistically safe.  The fear is real, whether realistic or not.

I am sending out this post to the mothers who may be dealing with their first separated Father’s Day.  I have some tips:

  •  Try to find the time to craft a handmade Father’s Day card.  I still keep mine, including the paper necktie!   Your former spouse will know that the kids did not come up with this on their own.  You are sending a very important message that you value his involvement in the life of the children;
  • This may be the first Father’s Day with you in a new relationship.  But the father of your children is worried about being replaced.  A short card or note from you reassuring your former spouse that he will always be their  father will create long-lasting goodwill;
  • If, by any chance, the kids are waking up with their father in a different residence, then have the children face time their father.  The earlier in the morning, the better.
  •   That being said, there is no reason why Father’s Day should not be spent between the children and their father.

These are a couple of tips that I think will help.  But I wasn’t born in La-La Land.   Some of these things may be hard to do, especially if Mother’s Day was not respected.  But we have been told time and time again that nothing is more damaging to children than a less than respectful relationship between mom and dad.  So, bite your tongue, and it may bleed.  But take the step.

If you have questions about child custody and access, or about managing family dynamics following a separation or divorce, call 519-973-1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.

 

In Cosentino v. Cosentino¸ Justice Pazaratz was asked to make a temporary order in a dispute between two parents who were fighting over what city their three-year old child would attend junior kindergarten.

What Happened?

The parties started living together in 2011, and were married in July of 2012. Their only child, Christian, was born on December 16, 2012.  They separated three years later, in July of 2015.

The father continues to live in the matrimonial home on Hamilton mountain whereas the mother moved to Niagara-on-the-Lake, where she resides with her new partner.

Within a month of their separation, the parties executed a detailed, five-page separation agreement which included provisions for shared 50/50 custody of Christian, various provisions dividing expenses equally, with each parent responsible for the child during their portion of the shared time, as well as the following clause which became the subject of the dispute:

Preference for schooling will be discuss (sic) as needed & French Immersion options as he will attend either the school beside the condo (Annunciation) or St. Peter & Paul for French immersion (Sept 2016).

The Mother’s Request

The mother brought a motion requesting a temporary order be made, and requested the following:

  • That Christian be enrolled in junior kindergarten at St. Michael’s Catholic Elementary school in Niagara-on-the-Lake, commencing in September 2016
  • That in the alternative, Christian was to commence school in Niagara-on-the-Lake beginning in January 2017
  • That, if Christian were to attend school in Niagara-on-the-Lake, the father was to have timesharing weekends on three weekends per month one mid-week visit one day per week until 7:30pm, with the mother transporting the child for the start of the father’s weekends, and the father being responsible for transportation at all other times.

The Father’s Request

In response to the mother’s request, the father requested:

  • That Christian be enrolled in junior kindergarten at Annunciation of Our Lord School in Hamilton, commencing in September
  • That the parents continue to share time with Christian on a 2-2-3 rotation
  • That, in the alternative, Christian to reside primarily with the father, and the mother to have three weekends per month, and whatever mid-week evening access she could accommodate.

The Court’s Comments on Temporary Orders

 As always, Justice Pazaratz made some insightful and illuminating comments about the decision he had been asked to make:

At first glance, a motion about junior kindergarten might appear quite straightforward.  Almost innocuous. Niagara-on-the-Lake or Hamilton?  Sounds simple enough.

But in reality, deciding where a three year old starts school has the potential to impact – and perhaps even determine – the long-term outcome of what is rapidly turning into a bitter custody dispute.

Indeed, the decision about Christian’s schooling was an important one, for a number of reasons:

  • Once Christian was enrolled in school he would inevitably remain there for the entire duration of the school year
  • Enrollment in a school in either city would mean that his primary residence would shift in favour of the parent who lives in that city. The equal parenting/equal time format would not be viable given the distance between the two cities
  • Once Christian becomes used to a particular school, there will be inevitable concerns about disrupting his routine, his familiar surroundings, and his relationships with teachers and other kids.
  • After a primary residence was established, the likelihood of reverting back to equal time, not to mention the reversing of the primary residence, would be “quite remote”. As long as the parents continued to live about one hour away from one another, equal time and mid-week transitions would be problematic.

Justice Pazaratz noted that:

Temporary orders can have a huge impact on final orders.  Effectively, they can have a forever impact on children.  As a result, motions judges must be mindful of both short-term and long-term dynamics, to ensure that the maximum contact principle is not undermined by the unilateral action of either party…

Justice Pazaratz went on to say that even though this was a request for a temporary order, it was necessary to take a cautious approach in order to safeguard the best interests of the child, and avoid the “reckless creation of a new status quo”.

He criticized the mother’s request, pointing out that:

  • The parents had shared equal time with Christian since their separation, which had been beneficial to him
  • The reason this status quo was now in jeopardy was because the mother decided to move one hour away
  • Despite assurances from the mother’s lawyer that the father would be given “make up time” with Christian on weekends and holidays, granting either parents 100% of time on weekends was not a desirable or sustainable arrangement.
  • Depriving the father of any involvement in Christian’s schooling represents a “fundamental departure” from the agreement the parties had entered into
  • Christian had been born and raised in Hamilton, with extensive family supports in that city, as well as doctors, dentists and other professional connections
  • Christian had been Hamilton based since before the separation, had has been Hamilton based since. Through her request, the mother is now trying to unilaterally make Christian Niagara based.
  • This is not just an issue of where Christian is to attend school, it would entail a number of fundamental changes, including a diminishment of his relationship with his father, as well as changes to general custody and mobility issues.
  • The mother had not presented any evidence with respect to why she had to relocate to Niagara-on-the-Lake, or why she and her new partner could not relocate to Hamilton, or closer to Hamilton.

Justice Pazaratz also stated that major changes that had mobility implications for children should not be made on a temporary basis, except in rare or compelling circumstances, of which this was not the case.

He clarified that:

The issue is not whether a parent should ever be allowed to relocate a child’s residence an hour away.  The abundant caselaw on mobility makes it clear that in appropriate circumstances – after thorough consideration of all of the evidence — much greater moves have been approved as being in the best interests of the child.

The issue is whether a parent should be allowed to unilaterally impose a change to a child’s routine which will subvert a successful status quo, and create an entirely self  serving new status quo in the middle of a custody dispute and in the middle of a section 112 investigation.

The Court’s Final Decision

 Justice Pazaratz issued the following temporary order:

  • The father is entitled to enroll Christian at Annunciation of Our Lord school in Hamilton
  • There is a presumption that the parents will share equal time with the child, including alternating weekends
  • The mother will be responsible for transporting Christian to and from her residence in Niagara-on-the-Lake
  • The mother will ensure that Christian does not miss any school while in her care
  • If the mother is unable to maintain an equal time sharing arrangement (including alternate weekends and some weekdays), she will have the option of having Christian three our of four weekends and one overnight mid-week visit, with advance notice to the father.

If you have questions about child custody or support arrangements, or changing the status quo, call Windsor family lawyer Jason P. Howie at 519-973-1500 or contact us online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors and other professionals.

In Nicholson v. Nicholson, the Ontario Superior Court of Justice recently explored the issue of whether a payor parent was responsible for child support during a defined block of access time, finding in the affirmative.

The Context

The parties were separated in 2012 after 24.5 years of marriage. They have three children, Amber (27), Aryn (25) and Dale (21).

The two older children are financially independent. At the time of hearing, Dale was still a dependant.

Issues in dispute between the parties included:

  • Whether the father was responsible for paying child support for Aryn while she was in his care during the summer visitation
  • When the child support for Dale should commence and end?

Is the Father Responsible for Child Support During Summer Visitation?

Both parents agreed that Aryn was residing with the mother between May and September 2015. During these four months, the father had summer parenting time with Aryn.

The father argued that while he had Aryn for the summer he was not obligated to pay child support to the mother.

Justice Sutherland disagreed, and determined that the father was responsible for paying child support for Aryn between May and August 2015:

The support being paid by [the father] is for the benefit of the Aryn.  The [father’s] time with Aryn during the summer was the agreed upon summer parenting time schedule.  This on its own, in my opinion, does not vitiate the obligation to pay child support for Aryn during the time [the father] had Aryn.

Duration of Child Support for Dependent Child

Dale was expected to graduate from a Paramedic program in August 2016.

The father requested that child support not end until the end of 2016 to permit Dale to obtain employment and because he paid child support for Aryn for four months after she graduated from nursing school.

Justice Sutherland agreed with the father’s argument. The mother had not disputed that he had paid support for Aryn until she got on her feet after graduation, and Justice Sutherland saw “no reason why that agreement should not apply to Dale”. The mother was ordered to pay support for Dale until December 31, 2016.

To speak with an experienced Windsor lawyer about child custody or support, call 519-973-1500 or contact us online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors and other professionals

Bill 34, also known as An Act to amend the Children’s Law Reform Act with respect to the relationship between a child and the child’s grandparents, was recently given royal assent after being re-introduced by NDP MPP Michael Mantha (Algoma-Manitoulin) in fall of 2016.

Grandparents and Access to Grandchildren in Ontario

Advocacy groups have been pushing for change for over a decade. Six previous versions of the bill were previously proposed, but never passed.

Grandparents’ rights groups estimate that 75,000 grandparents in Ontario have historically been denied access to approximately 112,000 grandchildren, which the rights groups say causes “needless alienation, pain and suffering”.

In some circumstances, grandparents are not able to see their grandchildren following a separation or divorce, as custody and access arrangements leave the children primarily with one parent who then denies grandparents and other family of their former spouse access to the children. In other situations, a grandparent is alienated from his or her adult child or children and, consequently, is not given permission to see their grandchildren.

Indeed, during the debate about Bill 34, Mr. Mantha acknowledged:

Some people assume that these issues arise out of divorce, but this is not necessarily the case for most…Sometimes the root cause is found in sibling jealousy over money, over disputes, people innocently speaking out of turn, or sons and daughters exercising their control. Most often, it just occurs with seemingly no logic, no reason — and it’s happening

What Does the Bill Change?

The Bill brings Ontario in line with Quebec, Nova Scotia, Saskatchewan, Manitoba, and Yukon, which all previously passed legislation affecting grandparents’ rights.

While Bill 34 does not automatically grant grandparents the right to their grandchildren, it provides them with a chance to make an argument for access during custody disputes, and it means that courts will have to consider grandparents in custody cases, while considering what is in the best interests of the child or children in question.

Best Interests of the Child

As with parental access, courts will consider the merits of each individual case, and will ultimately, make a decision based on the specific circumstances. In order to do so, courts consider the following, per section 24(2) of the Children’s Law Reform Act:

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.  2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.

If you have questions about access or custody of children following a divorce or separation, or if you are a grandparent who has not been able to see your grandchildren but would like to have access to them, call Jason P. Howie at 519-973-1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.

We’ve previously blogged about the unfortunate phenomenon of parental alienation, which frequently occurs during high-conflict, contentious divorces. This week, we discuss two recent decisions in which an Ontario judge awarded sole custody of three children to one parent as a result of the other parent’s deliberate alienation of the children, and also ordered the family to attend the Family Bridges Program in order to rebuild their relationships.

The first decision provided helpful commentary on the nature and common features of alienation, while the second decision provided an excellent overview of the Family Bridges Program.

The Background

The former couple, X (the father) and Y (the mother), met in February 1998, and were married in May 1999. They had three children, A (born in 2002), B (born in 2005), and C (born in 2007). X worked as a Director of Marketing in the pharmaceutical industry, earning approximately $300,000. Y stayed at home caring for the children. The marriage lasted about 14 years, after which the couple separated, in January 2014.

The Positions of each Parent on Parental Alienation

Parent X- The Father

Throughout the custody proceedings, X claimed that A had withdrawn from him following the end of the marriage, due to a determined campaign of parental alienation carried out by Y. According to X, Y consistently cast him in a negative light, undermined his authority with the children, and eliminated any respect the children had for him. This occurred despite previous intervention by therapists.

Parent Y- The Mother

Y’s position was that A was jurtifiably estranged from her father, and suffered from PTSD resulting from the divorce, but was not alienated. Y further claimed that any negative views that A may have had towards her father arose from witnessing Y get arrested by the police after X phoned for them following an altercation in the home. A’s PTSD had been misdiagnosed as alienation, and she had been subject to a “misguided” reconciliation program as a result. Y denied, generally, that she had done anything to alienate A from her father. A was simply reacting to the divorce, as well as Y’s subsequent arrest, as any child would.

Alienation

Justice Trimble found that Y had, in fact, alienated A from her father.  The Judge’s decision was based on a number of factors, including the opinions of two expert witnesses: Ms. Geraldo (an experienced family counsellor), and Mr. Hurwitz (a section 30 assessor).

Differences between Alienation and “Justified Estrangement”

At trial, Mr. Hurwitz defined parental alienation as “a child’s complete rejection of a parent and uncritical favouring of the other, without justification”. He explained that, in such instances, the “favoured parent” encourages the child’s behaviour. The child’s rejection of the one parent also generally extends to rejection of that parent’s family. Alienation can be contrasted with justified estrangement, a situation in which there is some justification for the child’s rejection and no involvement by the other parent in fostering that rejection.

Common Clinical Features of Alienation

According to Mr. Hurwitz, some clinical features of alienation include:

  • A “campaign of denigration” towards the rejected parent;
  • “Weak, frivolous rationalizations” for the campaign of rejection;
  • A child’s strong feelings towards both parents: one parent is idealized without recognition of any negative qualities, while the other parents is devalued without any regard as to positive qualities;
  • Claims by the child that the thoughts towards the parents are his or her own, and not influenced by a parent;
  • Support for the alienating parent in any conflicts between the parents;
  • An absence of guilt over behaviour towards the rejected parent,
  • A spread of the rejection to the rejected/alienated parents extended family and friends.

The experts testified that all these clinical factors were present in this case, and that, as a result, A had rejected her father and his family, sided with her mother, and had been encouraging her siblings to do the same.

Common Behaviours in Alienation

In addition, the experts identified 16 behaviours common in alienation cases, which were:

  •       Bad mouthing the other parent;
  •       Limiting contact with the other parent;
  •       Becoming angry if the child expressed positive feelings towards the other parent;
  •       Telling the child that the other parent does not love him or her;
  •       Forcing the child to choose one parent and reject the other parent;
  •       Telling the child that the other parent is dangerous;
  •       Confiding in the child about adult relationships with the other parent;
  •       Limiting photos of the other parent;
  •       Cultivating the child’s dependency on the favoured parent;
  •       Asking the child to spy on the other parent;
  •       Telling the other parent that the child does not love him/her;
  •       Referring to the other parent by their first name rather than mom or dad;
  •       Referring to another individual as mom or dad,
  •       Asking the child to keep secrets from the other parent,
  •       Changing the child’s name.

Eleven of these 16 behaviours were positively identified by the experts in Y and A’s conduct.

As a result of this alienation, Justice Trimble ultimately ordered the remedy of “last resort” and awarded the father sole custody of the three children. Y and her family were to have no access to the children until an additional court order was made. The family was also ordered to participate in the Family Bridges Program, intended to assist them in restoring a healthy relationship. Additionally, Y was ordered to continue counselling, with regular updates provided by her counsellor to Family Bridges.

The Family Bridges Program

Participation in the Family Bridges Program is sometimes ordered in situations where there has been alienation of a child/children following a separation or divorce. The Program’s goal is to provide all relevant family members with “the tools to re-form healthy, loving, respectful bonds between children and both of their parents, and teaching parents that they can parent children in a parallel way without denigrating the other parent”. The Program is intended to be non-litigious, but rather, educational. It provides written, visual, and oral materials to participants so that they can understand their motivations and actions, and the subsequent effect of such motivations and actions.

The professionals providing Family Bridges programs are specially and extensively trained in the Family Bridges process, and ensure that the messages and information given to every member of the family, and the assessment of every member of the family in the program is uniform and consistent. That professional, having been involved with all members of the family, is in the best position to determine whether all parties have actively and whole-heartedly participated in the program and met the milestones required.

The Program provided some milestones that Y was required to meet:

  • A demonstrated knowledge of parent-child alienation and insights into her own alienating behaviors.
  • A demonstrated compliance with Court orders;
  • Willing acceptance and compliance with the Parallel Parenting Model.

The Family’s Progress in the Program

Upon receiving the first report from the Program, Justice Trimble noted the family’s positive progress.

A was initially resistant to the Program. Additionally, the Program identified the fact that B and C were more alienated than had originally been noted at trial. However, after about two days in the program, A began to change her behaviour towards her father. Overall, the children’s progress in the Program was described in the report as “nothing short of remarkable”. All three re-formed bonds with their father, settled into his new home in Toronto (their family home had previously been in Oakville, where the mother continued to reside), were excelling in their new school (which they had not been doing at their former Oakville school), and were making new friends. All three were participating in the extra-curricular activities they had participated in prior to trial.

Y stated that, under careful guidance of the professionals in the Program, she had “progressed remarkably”, becoming aware of her alienating behaviours and learning how to address and deal with them. She further stated that she is ready to begin a new relationship with her children while respecting X and encouraging loving, mutually respectful relationships between the children and their father.

Justice Trimble reflected:

At the time of [the custody decision], it was in the best interests of the children that the Family, including Y, participate fully and unreservedly in the Family Bridges process. Therefore I ordered that Y participate in the Family Bridges process, and comply with the directions of Family Bridges.  It is still in the best interests of the children that all of the X/Y family members participate in the Family Bridges Program.

Not all judges are proponents of the Family Bridges Program, and participation in the program is not always ordered where there are instances of alienation. This family, however, had a positive experience with the Program, and participation in it was clearly beneficial and in keeping with the golden rule in family law of “best interest of the children”.

If you have questions about parental alienation, high conflict divorce, child custody and support or any other family law matter, please contact Jason P. Howie, online or at 519-973-1500.

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