In a decision reminiscent of those written by Justice Pazaratz here in Ontario, Master Muir of the B.C. Supreme Court recently decried what should have been a straightforward matter that ended up being exceptionally prolonged.

What Happened?

The parties in question began living together in 2009 and were married in 2011. They had two children before separating in September 2016. Following the separation, they continued to live under the same roof for six weeks.

In October 2016, the mother left the home with the children without informing the father, following which the father did not see the children for several weeks. As a result, the father requested imputation of income and filed motions for interim child and spousal support and an order that the matrimonial home be listed for sale.

By the time the matter got to court, the mother was living in the matrimonial home and the parties had approximately equal parenting time.

Imputation of Income

The father asserted that various admissions, expenses, and evidence of cash receipts together pointed to a higher income than the mother declared to the CRA. He brought a huge amount of affidavit material to court to convince the Master that the mother earned or was earning substantial money through illegal means.

Conversely, the mother also brought a huge amount of evidence intended to bolster her credibility and convince the Master that she was not involved in any illegal activities.

Master Muir noted:

This application, which would normally be a relatively straight forward matter, required more than a day-and-a-half of court time over three separate hearings. That there is an unhealthy and abusive climate to this litigation is highlighted by the fact that the parties presented more than two boxes of materials containing perhaps 160 affidavits and that there have been 26 affidavits filed by the respondent and 15 by the claimant.

… This approach to family issues is counter to the fundamental basis of our present family system which encourages negotiation, not litigation. This is not supposed to be a war. It is supposed to be a civilized allocation of rights, responsibilities, and assets following a family break-up. This type of litigation is unnecessary, it is damaging to the parties and to the children, and it wastes family assets on litigation costs. I ask that counsel convey those sentiments to their clients in the hope that this can be reined in and the parties can refocus on resolving this in some other way.

The Master went on to note that most of the significant assets that the couple had divested themselves of following their separation (almost $700,000) had been used to fund the litigation.

In addition, with respect to the income earning potential of both parties, the Master stated:

The continued depletion of the parties’ capital is not in anyone’s best interests. The fact is that both parties are capable of working and experienced in fields that should allow decent opportunities for income-earning activities. The children will both be in school this year. The [father] appears to have a closely-knit family and community. I see no reason why he cannot arrange afterschool care for the children on his parenting time. There is no reason that both parties cannot be working full-time. It is obviously in the children’s best interests for their lives to be normalized and for them to be properly supported by parents who are working to that end and not depleting family assets for day-to-day support.

Income in the amount of $95,000 was imputed to the husband and $25,000 to the wife. Child support was ordered with a set-off to account for the equal parenting time shared by the parents, and the wife was awarded spousal support in the mid-range of the Guidelines. The application for the sale of the matrimonial home was dismissed.

For questions that only a family law lawyer can answer, contact Windsor family lawyer Jason P. Howie, at 519-800-1039 or contact us online.  Jason has been a fixture of the family law community of Windsor and Essex County for over 25 years, and, many prospective clients come to the firm through referrals.

The Canadian Centre for Men and Families opened in Ottawa earlier this month. This is the third location of the organization, which aims to connect men in crisis with both legal support and mental health support programs. The other two locations are in Toronto, where full services are offered, and Calgary, where the centre is open one day a week.

The Canadian Centre for Men and Families

The three centres are run by CAFE (Canadian Association for Equality), a registered educational charity and bills itself as the “first facility of its kind”. The centres bill themselves as “open, inclusive and safe space[s] dedicated to the health and well-being of boys, men, fathers and their families”.

The centres provide workshops, counselling, discussion groups, and special events. Programming includes sessions on fathering, trauma and abuse support, suicide prevention, tutoring and mentoring. They also provide advocacy, research, outreach, and public education about a variety of issues affecting men.

Services Geared Towards Men with Family Law Issues

Patrick Wright, the centre’s Executive Director, told The Lawyer’s Daily that:

A lot of the men that are coming into our centre are going through issues related to custody, or divorce and separation. Sometimes they’re victims of domestic abuse or sexual abuse, so we want to have a resource that they can rely on to provide them with…advice.

We want to provide space where men can come and get help. I think in our society it’s hard for men to be able to ask for help. Sometimes we, as men,  feel alone and we don’t know where to go when we do need assistance.

Wright said that in the first month of operation, 15 to 20 men came into the Ottawa location seeking services and assistance. The most common issue most men have questions about is child custody, but there are other serious issues that generally go hand in hand with such discrete questions, including mental health issues or a need for trauma support.

Wright notes that there are many support centres related to family that are geared towards women specifically. In his opinion, it is just as important to include men in the dialogue about family law, since men also go through situations and experiences in which they require guidance and direction.

Wright says that:

We definitely want to be a place where men can go to get started. A lot of people come in and they don’t know where to start. So being able to provide them with some guidance…I think is really important.

It is unclear whether the centre plans to open any other locations, whether in Ontario or otherwise.

The Centre Has Sparked Controversy

When the first centre originally opened in Toronto it drew some controversy. Gender equality advocates opposed the opening, fearing that CAFE and the centre would propogate what the advocates viewed as misogynist and anti-feminist agendas.

Women’s rights advocates disagreed with CAFE’s methods of solving the hardships facing men, stating that the philosophy behind the centre seemed to be rooted more in frustration about woman’s rights being protected and women’s equality being promoted, rather than men’s rights being violated, and stating that this is not a means of building a society marked by “compassion and equality”.

The centre denies “launching a war on womankind”.

It remains to be seen whether any additional centres will open, but this is certainly an interesting development that we will continue to monitor.

If you are a father and have questions about your rights with respect to custody and support or any other family law matter, contact Windsor family lawyer Jason P. Howie at 519-973-1500 or online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors, and other professionals.

 

We’ve previously blogged about what happens to pets following a separation or divorce. It is clear that, while recognizing the special place that pets hold in the hearts of their owners, Canadian courts treat pets as property, and any principles applicable to determining custody of children are not applied to pets.

A recent case out of British Columbia has recognized this legal tradition, but also taken a unique approach to the issue of sharing a pet following the end of a serious relationship.

What Happened?

The pet at issue in this case was a 3-year old Korean Jindo dog named Luna.

Luna’s owners are both 25 years old. They began living together in 2014 and arranged to adopt Luna as a rescue dog from South Korea. Luna arrived in Canada in early 2015.  Both owners shared expenses and were generally equally involved in looking after her. In September 2015, the parties stopped living together and Luna’s “mom” moved to a new apartment that did not permit pets. In June 2016, she received permission from her landlord to have a pet, and contacted Luna’s “dad” about sharing possession of Luna.

The Position of Each Pet “Parent”

Lunas “mom” eventually filed a claim seeking possession of Luna. She requested that, in the alternative, Luna should reside with her on a week on/week off basis, or in the further alternative, that she be paid $475 for her half-share of the $950 the couple paid to adopt Luna.

Luna’s “dad” sought to maintain his possession of Luna without granting Luna’s “mom” any of the visitation rights she wanted. He argued that he had paid Luna’s “mom” $2,500 when she moved out to adjust certain matters between them, and he had believed that ownership of Luna was one of those matters.

The Law on Pets

As previously noted, the Canadian legal system treats disputes over pets the same as a dispute over property.

In this case, Justice Cowling noted some principles outlined in previous decision addressing the issue of pet possession following the end of a relationship:

 [3] The love that humans can develop for their pets is no trivial matter, and the loss of a pet can be as heartbreaking as the loss of any loved one.

[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 Custody and Maintenance Act or the Divorce ActObviously 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.

[5] As such, slightly distasteful as it may be in the case of two loving and devoted pet owners, I must consider which one has the better property claim.

[6] The worst result of all would be a conclusion that the dog is joint property.

[7] Jointly owned property presents a peculiar problem for the law.  In the case of land, the Partition Act may be used to force jointly owned real estate to be divided or, if division is not practical, sold.

[8] In matrimonial cases, parties often agree to sell jointly owned assets (whether realty or personally) 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.

[9] Where there is a desire not to allow the asset out of the family, matrimonial parties will often hold a private auction or bidding war and the person willing to pay the most will acquire the asset, paying half the highest bid value to the other.  This may be fair in the case of financial assets, but not in the case of something of intangible value.

[10] None of these mechanisms would do any justice in the situation before me.  As such, the only practical and humane thing is to do as I propose to do and attempt a principled analysis of the legal ownership.

Building upon these principles, Justice Cowling noted as follows:

  • pets will not be treated in a manner such as children;
  • courts are unlikely to consider interim applications for pet possession;
  • Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt;
  • that pets are a variant of personal property.

Justice Cowling also noted that there is a legal requirement in Canada that animals, and especially cats and dogs, be treated “humanely” and not like just any inanimate personal possession.

Property, Partnership, and Pets

Justice Cowling further stated that if you were to apply personal property principles to a pet, where someone owns a pet and brings it with them into a relationship or living arrangement, or where someone is gifted a pet during a relationship then, unless there are exceptional circumstances at play, that pet remains their property when they leave that relationship.

In this case, however, Luna was acquired by the parties in what Justice Cowling said “might be characterized as a partnership or joint venture”.

Basic partnership law, generally applicable in the business context, provides for an equal division of assets where a partnership (usually a business partnership) dissolves and requires that partners deal with one another fairly and equitably. Many partners make partnership agreements (similar to prenups) that stipulate what will happen to the business assets if the partnership ever fails. In this case, while the parties could be considered partners there was no such agreement.

One of the basic principles of equity is that “equity presumes that to be done which ought to have been done” (i.e. what should or ought to be done in a given situation). Justice Cowling stated that in this case it could be assumed that if Luna’s “parents” had, at the time they were adopting Luna, thought about what would happen to her if they split up, they would have agreed that any decision about her continued care should take into account her best interests and her humane treatment.

In making his final decision about Luna, Justice Cowling noted the characteristics of the Korean Jindo breed, including the fact that they are incredibly intelligent, exhibit unmatched loyalty, and require strong training, patience, and plenty of long walks and activity.

Justice Cowing noted that, other than the caselaw that suggests joint ownership of a dog is not a good idea, the evidence about Luna and about Korean Jindo’s in general suggests that “time-sharing” of Luna would not be best. There was clear evidence presented that Luna had “cemented her bond” with her “dad” since the parties separated and had been well-cared for by him. In addition, there was no evidence that the parties had intended to include Luna in their $2,500 “property settlement”.

Justice Cowling ultimately did not grant either sole or joint ownership of Luna to Luna’s “mom”, but did grant her the $475 requested in the alternative, as well as costs of $110.

Deciding what to do with a family pet following a separation or divorce can be emotional and stressful. An experienced family lawyer can help parties make decisions and guide them into coming to a mutually satisfactory decision. 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.

An Ontario court recently assessed what impact a report from the Office of the Children’s Lawyer can have on a request for temporary custody.

What Happened?

The parents in question have two children together. In 2015, the parents agreed to an order that granted the father access to the children every Sunday, with the condition that the access could not take place at the paternal grandmother’s home.

In 2016, the court requested that the Office of the Children’s Lawyer (OCL) become involved in the ongoing dispute. The OCL’s subsequent report made seven recommendations including:

  • the mother should have sole custody of the children;
  • the father’s access be limited to once per week with professional supervision (either through the Supervised Access Centre or a private agency);
  • the father should be able to call the daughters on Mondays and Thursdays for 5 minutes each to inquire about their week;
  • the father should have the right to get updates as well as school and medical information about the children by calling the children, not attending their school or doctor’s office;

Following their receipt of the report, both parties requested a change to the original 2015 custody order.

The mother requested that the original order be set aside so that the recommendations by the OCL be implemented.

The father brought a motion to expand his access and to remove any conditions on that access. He argued that the issues the OCL identified should be addressed at trial, and that, in any event, the report was biased and could not be used to make a determination about the best interests of the children.

The Court’s Decision

Justice Parent had to determine what weight and relevance should be given to the OCL report in making his decision as to temporary custody.

In support of their respective positions, each parent had relied on the well-established principle that an assessment report should only be considered in exceptional circumstances where immediate action is deemed necessary and should not be relied on in interim/temporary proceedings (i.e. without a full trial) since there would be no opportunity to cross-examine the author of the report on critical elements such the author’s credentials, as well as his or her observations and recommendations.

Justice Parent noted that the OCL report would be seriously considered by the trial judge. The question on the interim custody motion was whether the concerns about the father raised n the report merited the acceptance of all, some, or none of the seven recommendations made. The Justice recognized that the OCL report was very thorough and highlighted the position of each parent vis-à-vis their marriage, the events leading to the separation, their post-separation relationship, their parenting abilities, the children’s adaptation post separation, and mental health issues, among other matters.

Justice Parent also noted that his knowledge about the assessor was limited to the fact that she was an accepted OCL clinician, but had no evidence about her training, experience, or knowledge about crucial issues such as child development, parental alienation and mental health. The Justice further noted that the father’s counsel had not raised any issues regarding the assessor’s qualifications, nor had they sought an adjournment to allow the assessor to the cross-examined, nor was there any indication that cross-examination had been requested before the motion hearing (all of which the father could have done).

Justice Parent found that the assessor had seriously considered the concerns raised by both parents and investigated them. In addition, Justice Parent found that the father had not specifically addressed his actions despite being fully aware of the concerns raised by the assessor in the OCL report. Rather, the father simply maintained his view that his actions were being “blown out of proportion”.

On review of the entire evidentiary record, Justice Parent noted that a serious basis for concern for the children existed and accepted that the OCL’s recommendations for continued supervised access as well as conditions on telephone access were required to protect the best interests of the children. Justice Parent was ultimately satisfied that the mother had met the threshold of establishing that “exceptional circumstances” existed so as to implement some of the OCL’s recommendations. The Justice stopped short of ordering sole custody to the mother at this stage.

If you have questions about child custody, or how to protect the best interests of your children following  a separation, contact experienced Windsor family lawyer, Jason Howie at 519-973-1500 or contact us online

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.

 

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