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.

 

The British Columbia Supreme Court has delivered a precedent setting decision on a subject we recently blogged about in Ontario: The ordering of a child to be returned from one parent in Canada to another parent overseas.

In S.C. v. H.S., 2017 BCSC 277, the British Columbia Supreme Court ordered a child who was abducted by her mother and brought to Canada to be returned her father in Taiwan.

The Background

The parties in the case had two children together, the youngest being their daughter, who was born in Taiwan after the couple divorced in 2011. The mother moved herself and their son and daughter to Hong Kong. There was litigation in Taiwan as to whether the father in the case was actually the father of the couple’s daughter. However, the mother would not comply with court orders to provide DNA samples, which would have allowed them to determine whether the girl’s father was her genetic parent. In 2015 a Taiwanese court awarded the father with sole custody of both children. While the mother returned their son to Taiwan, she fled to Canada with their daughter and her new husband.

The Hague Convention

Taiwan is not a signatory to the Hague Convention (just as the UAE was not a member in Daji v. Alnaser), which provides member countries with an expeditious method through which to settle cases of international child abduction. As such, the case had to be decided according to B.C.’s Family Law Act, which has only been on the books since 2013.

The mother argued that their daughter had not seen or had contact with her father in over five years, and as such it was in her best interest to continue to live with her mother. However, the mother did not suggest that there was any unfairness in the Taiwanese orders, and admitted that was wrong to disobey them. As such the British Columbia Supreme Court had to refer to the Family Law Act to reconcile the matter.

The Family Law Act

Section 77 of the B.C. Family Law Act allows for a party to petition for the return of a child to another country under certain conditions. The Act states:

(1) This section applies if a court

(a) may not make an order or declines to make an order under section 74 . . . or

(b) is satisfied that a child has been wrongfully removed to, or is being wrongfully retained in, British Columbia.

[13]        Subsection (2) sets out a number of orders that the court may make, including:

(c) order a party to return the child to a place the court considers appropriate . . .

The Court was not asked to, and did not, make an order under Section 74, which pertains to the recognition of extraprovincial orders. The Court went on to find that the child had been wrongfully removed to Canada, satisfying Section 71(1)(b) and ordered that she be returned to her father in Taiwan.

Judicial Comity

In its decision, the Court stated that it would not be in keeping with the intent of the Family Law Act to allow the child to stay in Canada. With no claims of unfairness in the Taiwanese courts and the mother’s admittance of her unilateral decision to disobey those courts’ decisions, the British Columbia Supreme Court applied the principal of judicial comity, the practice of respecting the laws and judicial decisions between one political entity and another.

If you have questions about child custody or abduction, please contact Jason P. Howie, online or at 519-973-1500. We can help answer questions such as: what is the child’s habitual residence? Does an existing custody arrangement permit relocation?  Can a relocation be blocked or disputed?

In a dispute over the habitual residence of a child, an Ontario court recently ordered the return of a child to her mother in the United Arab Emirates (UAE) after the father had abducted the child and brought her to Ontario. The court condemned both the abduction and the father’s subsequent actions.

What Happened?

Both the mother and father were born in Aleppo, Syria and are Syrian citizens. The mother has resided in the UAE for her whole life on a series of visas, and the father has also resided (and worked) in the UAE for at least ten years. Neither party could become a UAE citizen, but could remain there by renewing their visas.

The parties were married in the UAE in July 2013; their daughter was born in August 2014. In July 2015 all three immigrated to Canada, where they obtained permanent residency cards. The parties returned to the UAE in September of that same year. The mother claimed that the family had agreed to return to the UAE indefinitely, whereas the father claimed that the family returned to sell their home, and get other affairs in order.

All three parties remained in the UAE until August 2016. On August 15, 2016, the father abducted the daughter from the family home, hid the mother’s passport, and boarded a rushed midnight flight to Canada. The mother attempted to track the father and child down, and was informed by the father’s family that he would be returning to the UAE at the end of September. In late August, the father finally contacted the mother and provided her with the address of where he and the daughter were living. He did not return to the UAE in September as suggested by his family.

The father filed an application for custody in an Ontario court in October 2016. The mother filed a divorce and custody application in the UAE on the day she was served with the father’s application, claiming that she had not done so earlier as she had understood that the father would be returning, and he had continued to pay the lease on the home where they had all been living prior to the abduction. Once she had been served with his application she understood that he would not be returning and that she had to take legal action.

The father retained UAE counsel and opposed the mother’s application. He was granted six adjournments in a short period of time claiming, among others things that both his and the daughter’s passports had been stolen and they could therefore not fly to Dubai.

The father maintained that the daughter could not be returned to the UAE because she had no permanent status there.  The daughter would only be able to stay in the UAE if the mother was able to renew her visa; however, the mother could only do so if she was employed, or was married to an employed person, and that she had only been able to live in the UAE because he had been working there. Since he had left, she would not be able to renew her visa, and therefore, neither could the daughter.

The Hague Convention and the Children’s Law Reform Act

The UAE is not a signatory to the Hague Convention, and therefore it did not apply in this matter. Rather, the relevant legislation was the Children’s Law Reform Act (the CLRA).

Using the CLRA, the three issues that the Court analyzed were:

  • Where was the child “habitually resident” when she arrived in Ontario in August 2016?
  • If the child was not habitually resident in Ontario at that time, does an Ontario court have jurisdiction over this matter?
  • Should an Ontario court exercise its jurisdiction to make a custody order in order to prevent serious harm to the child?

Where is the habitual residence of the child?

With certain exceptions, an Ontario court can only assume jurisdiction over a custody application if the child in question is habitually resident in Ontario.

Here, the onus was on the father to establish the habitual residence of the child. He argued that the daughter is a permanent resident of Canada and lived in Ontario from July to September 2015. The parties only returned to the UAE to put their financial affairs in order with the intention of returning to Ontario to reside. He further argued that since the child obtained permanent residency status in Ontario, she became habitually resident in the province, and did not abandon that habitual residence during the “transitional period” the family had following their return to the UAE. He further argued that he had left the UAE with the mother’s permission and that this was not an abduction.

The mother argued that the child was habitually resident in the UAE since, at the time that the father left with her, all three of them had been living in the UAE. Yes, the parties had immigrated to Canada in 2015, but after less than two months, they decided to return permanently to the UAE. She stated that all objective evidence supported this position: the father was still employed in the UAE, he had rented a fully furnished home on a one year lease starting in March 2016, left all furnishings behind in the apartment when he left for Canada in August 2016, and also left all of the child’s clothing and belongings. Further, there had been no joint plan to return to Canada and there was no evidence, other than the father’s statements, that the mother had ever intended to return to Canada with the child.

The Ontario court found the father’s position “untenable”, and agreed with many of the mother’s arguments.  Therefore, the habitual residence of the mother, the father, and the child at the time that the child was abducted was deemed to be the UAE.

Should the Ontario court accept jurisdiction even if the child is not habitually resident here?

The child was in Ontario when the father’s application for custody was filed. However, all evidence about the child was in the UAE, where she had lived with both parents for almost the entire duration of her life. Prior to the abduction, she had only spent two short months in Ontario in 2015.

The child had no real and substantial connection to Ontario prior to arriving here after she was abducted from the UAE.

Should the court accept jurisdiction to prevent serious harm to the child?

According to the father, the mother had a terrible anger management problem, which had resulted in her physically disciplining the daughter on repeated occasions. He argued that there were no protections against hitting children in the UAE as there were in Ontario, and if the child was returned to the UAE, the mother would beat her with no consequences.

The mother denied any corporal punishment, stating that there had been no evidence of any physical abuse while the child had been living in the UAE. Similarly, there was no evidence that the father had ever complained to anyone about the mother’s alleged physical abuse. Rather, the evidence had established that the mother had cared for the child while the father worked long hours outside the home, and that the child had never been alone with the father until after he kidnapped her. Further, there was a child protection system in the UAE with a similar mandate to children’s aid societies in Ontario.

The court found that the only evidence of the probability of serious harm befalling the child was through covertly made recordings of phone calls the father had with the mother following the abduction, as well as coached videos of the child.

The court warned that there was a “strong public policy” purpose behind not admitting taped phone calls in family law cases. In any event, even if the court were to consider the tapes made by the father, the contents of those tapes were not helpful to his position. The father had made the tapes for the sole purposes of inducing the mother into making an admission that she beat or otherwise hurt the child. This was done at a time when the mother was emotionally desperate and wanting any contact with her child. On the tapes, the father asked the mother leading questions and made her repeatedly insist that she would no longer beat the child. The court found that “if [the mother] had never hit her child before it would not be difficult for her to commit to never doing it again especially if such a statement held out the promise of contact with her child”.

The court ultimately found the father’s actions in creating these tapes “very telling” and condemned his behavior:

He claims not to have abducted the child but he knows that the circumstances of her travel points to abduction. Within a few days after arriving in Ontario, and before telling the mother where her daughter is living, he started to work on building a defense to his actions. He purposely tried to manipulate the mother to create evidence that he thought he could use to argue that there would be a probability of serious harm to the child if she was returned. He knew that he had no such evidence before he made those taped calls. The transcripts show that he is determined to obtain an admission from the mother. The videos, which were described in the parties’ affidavits, show clear evidence of manipulation of this young child. This father removed his 2-year-old daughter from her mother’s primary care and then used his daughter to try and create evidence of physical abuse. I find as a fact that the mother did not physically abuse the child. I find that the father’s actions in manipulating both the mother and the child to be unconscionable and deserving of censure from this court.

The court ordered the child immediately returned to her mother, who would then return her to her “place of habitual residence” in the UAE, and gave Peel Regional Police, the OPP, the RCMP, and Border Services jurisdiction to enforce the order if necessary.

If you have questions about child custody or abduction, please contact Jason P. Howie, online or at 519-973-1500. We can help answer questions such as: what is the child’s habitual residence? Does an existing custody arrangement permit relocation?  Can a relocation be blocked or disputed?

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.

A Saskatchewan judge recently dismissed a separating couple’s request for a decision over the “custody” of their dogs, stating that “to consume scarce judicial resources with this matter is wasteful” and saying that “such applications should be discouraged”.

This decision confirms many others that have recognized that dogs, and other pets, are considered property for family law purposes, and will not be recognized as children by courts, therefore precluding custody, and similar, decisions.

The Separation

The parties in question, Suzanne and Kelly, were married in 2000. Prior to marrying, they had lived together and had a cohabitation agreement which provided that the property that each owned prior to the marriage remained their property, as did any property each solely acquired during marriage. Only property that was specifically designated as joint property was to be shared.

Suzanne and Kelly did not have children, but did have three dogs which became the focus of their love and affection: Willow (age 2), Kenya (age 9), and Quill (age 13).

Following the couple’s separation, the dogs were staying with Suzanne’s parents, as the family home had been sold. Both parties were regularly seeing the dogs at this time.

Kelly commenced a court petition claiming unequal division of the home and other family property, as well as exclusive possession of either Kenya or Willow (Quill was quite elderly and ill at the time of the petition, and the parties previously agreed he would live his remaining says with Suzanne). His position was that the court ought to decide which dog was to go with which party on an interim basis, based on possession of property rules under Saskatchewan’s Family Property Act.

In response, Suzanne filed her own petition requesting something that was more akin to an interim custody decision rather than a division of property order. She requested that all three dogs ought to reside primarily with her, and that Kelly could “exercise reasonable access” to Kenya or Willow as long as he gave her advanced notice, and as long as his access was no longer than 1.5 hours. Suzanne also wanted to be solely responsible for all decisions pertaining to the health and well-being of the dogs, including their day to day needs as well as decisions about their health and nutrition.

The parties differed in their opinions on which of them had taken better care of the dogs while they were still together, and which one of them had taken more responsibility with respect to caring for the dogs, including, for example, in taking them to vet appointments and obedience training classes.

Dogs are Property

The first thing that Justice Danyliuk had to consider was the current state of the law on pets following the demise of a relationship, and whether pets were to be treated as property, or whether they were to be dealt with as children would be dealt with.

Justice Danyliuk commented that:

I say without reservation that the prospect of treating pets as children would be treated holds absolutely no attraction for me. I say this cognizant that many dog owners, perhaps most of them, choose to treat the family dog not as property but as family. Certainly that is what these parties did. But that choice does not alter the law that pets are property. My present task is not to act with emotion or to validate the personal perspective of pet owners within the legal context. Rather, it is to interpret and then apply the law. And for legal purposes, there can be no doubt: Dogs are property.

Waste of Court and Other Resources

Justice Danyliuk also questioned the apparent willingness of the parties to spend money and tie up court resources in order to resolve their dispute over their pets. He pointed to an earlier Saskatchewan decision about dogs in a divorce, in which a different judge had stated that:

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.

It must be stated that, as both counsel acknowledged, a dog is a dog. Any application of principles that the 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.

Dogs are Not Children, Therefore No Custody Decision

Indeed, in support of his position that dogs were to be treated as property, and not as children, Justice Danyliuk pointed to a number of key differences in the way in which people treat dogs and children, namely:

  • “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 have their lives ended to prevent suffering.”
  • “When our children act improperly, even seriously and violently so, we generally do not muzzle them or even put them to death for repeated transgressions.”

In making his decision, Justice Danyliuk did not disregard the strong emotions that people have with respect to their pets. He recognized that pets are treated much differently than other personal property, and that legal protection exists to, for instance, prevent them from being neglected or treated with cruelty. He noted that in other decisions dealing with pets after a divorce, judges had acknowledged that having a long history with property, or the fact that property had sentimental value for one spouse would be important and even determinative factors in making final division of property decisions.

Ultimately, however, he urged the parties to resolve this on their own without the need to engage court resources:

Simply put, I am not about to make what amounts to a custody order pertaining to dogs. I will be more blunt…and state that this sort of application should not even be put before the court.

I urge both parties to attempt to resolve this matter prior to the necessity of a pre‑trial conference and trial. Both parties should bear in mind that if the court cannot reach a decision on where the dogs go, it is open to the court under the legislation to order them sold and the proceeds split – something I am sure neither party wants. Both should consider the admonitions within this ruling and from the other cases…and do their best to come to an agreement that obviates further court action and the attendant delay and expense.

If Not Custody, Then What?

Justice Danyliuk noted that Kelly had brought his application for the dogs under the provisions of the Family Property Act requesting under s. 6 of that Act, the exclusive possession of one of the dogs as part of the general household goods and/or, under s. 26(1) (2) and (3) of that Act, for the court to make any “directions and orders that are necessary” with respect to family property.

In response, Justice Danyliuk stated that:

In the particular circumstances of this case, I am not disposed to make an interim order of any description. I strongly suspect these parties had other personal property, including household goods. Am I to make an order that one party have interim possession of (for example) the family butter knives but, due to a deep attachment to both butter and those knives, order that the other party have limited access to those knives for 1.5 hours per week to butter his or her toast? A somewhat ridiculous example, to be sure, but one that is raised in response to what I see as a somewhat ridiculous application.

He additionally stated that he did want to encourage any interim or final applications about pets to the court in the future.

The Cohabitation Agreement

Justice Danyliuk noted that the decision on any final property division would rest on a) the terms of the cohabitation agreement and b) factual determinations as to how the dogs were acquired, cared for, and treated during and after the relationship. However, both of those matters were not something that he was inclined to deal with.

Justice Danyliuk ultimately stated that he was not going to disturb any existing arrangements that the parties had with respect to the dogs, and that they were to remain at the parents’ home for the time being.

He cautioned the parties not to waste any more court time or resources.

An experienced family lawyer can help parties make decisions and come to a mutually satisfactory decision with regards to a pet.

If you have questions about making decisions about pets following a divorce or separation please contact Jason P. Howie, online or at 519-973-1500.

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