Surrogacy in Canada

Jack’s sister, Jannika, and her husband Bill always wanted to have a child. They have now been trying for more than 5 years, but nothing seems to be working. A good friend of theirs, Rachel, who already has 3 children, has offered to carry their child. Jannika and Bill are really excited at the idea of having a close friend carrying their baby. The plan is for Jannika and Bill to provide their gametes (sperm and egg) and for Rachel to act solely as a carrier. Rachel will be carrying the baby without compensation. They are thinking of going through an agency to carry on with the project.

There are two types of surrogacy: commercial and altruistic. In Canada, “commercial surrogacy”, which sees surrogate mothers receive money for carrying a couple’s child, is illegal. Likewise, it is also illegal for would-be parents seeking a surrogate to advertise that they are willing to pay a woman for the service. However, it is legal to reimburse a surrogate for the expenses she incurs as a result of the pregnancy. This is what is called “altruistic surrogacy.

The expenses that an altruistic surrogate mother may incur and can obtain reimbursement for, include:

•  Medication
• Maternity clothes
• Travel costs
•  Pre-natal supplements and vitamins
•  Loss of work if bed rest becomes necessary

Though it is illegal to compensate a surrogate mother for carrying a child, surrogacy is still a very expensive process. According to the surrogacy support website Surrogacy in Canada, the typical cost for a gestational surrogacy varies between $32,000 and $76,000. These costs take into consideration the in-vitro fertilization, the expenses before and during pregnancy as well as the legal expenses. Since not many young couples have that kind of money, it is more and more common for them to enter into “underground” surrogate arrangements, thus avoiding the need to go through an agency and allowing them to use other methods of fertilization. A child is always a wonderful gift of life, but you may end up with a different deal than what you bargained for, during the pregnancy and after the baby is born.  Surrogacy is a complex process so before you have recourse to it, you should absolutely seek legal advice to fully understand  the rights and obligations that result for all parties involved. 

School is about to start! Can I move with the children in a few weeks?

Jill has a new spouse who lives in Kingston. They have been in a long distance relationship for two years and Jill is ready to move on with her life and move in with him.  Jill has had primary custody of the children since the separation (Jack has them every other weekend as well as every Tuesday and Thursday, from after school to 8 p.m.), and feels that since she has all the parenting responsibilities, she should be able to take the children with her.    After all, Kingston is only a two hour drive from Ottawa, and Jack has not been consistent in taking the children with him every Tuesdays and Thursdays due to various work commitments.  However, when Jack heard that Jill wanted to move the children to Kingston, he went through the roof! He told her that he would not consent to the move and that he would take whatever action is necessary to stop her. Time is pressing, as Jill has committed herself to the purchase of a home in Kingston and school starts in September. However, she knows from speaking with a friend that it can take months, if not years, for a family case to be heard by the court and a final decision made by a judge. She wonders if there is a quicker way to proceed…

The court process is usually long and issues such as the relocation of children away from one parent (called a “mobility case”) are very hard to decide fairly without a full hearing by way of a trial. However, in situations of urgency like Jack and Jill’s, the court can be asked to make an interim order allowing the children to move, before a trial is held.  The proceeding is called a “motion” and the mobility issue may be determined by a judge based on written evidence only (affidavits), if the circumstances justify it.

 

In the context of an interim mobility motion, the judge will try to determine what is in the best interests of the children, from the perspective of the children (and not the parents) The relocating parent will have to establish that there is “compelling circumstances” justifying the move on a temporary basis, and that there is a “strong probability” that he/she will be successful at trial. However, when the evidence provided by the parties does not show a clear trial outcome in favour of one parent,  it is very unlikely that the motion judge will authorize the move on an interim basis.  As such, moving with the children away from one parent is not a last minute decision to be made.  It is important to plan ahead to avoid heated and costly court battles!

Should I go back to school as an adult student?

Jill is always struggling to make ends meet and she does not really like her job.  More than anything else, she hates to be financially dependent on Jack.  Since the separation, she is longing for a new exciting career with a higher income and better advancement opportunities.  Her greatest challenge is juggling home life, work and school.   Jill’s parents have agreed to help her out with the children during the school year.  However, they have a well-deserved retirement and Jill does not feel comfortable with imposing her family responsibilities on them.    Jill wonders if she should go back to school part-time or full-time, where she will take the money, the energy and the time to tackle this new life project. 

Here are four tips that can make an adult student life a bit easier:

1. Get Financial Help - Unless you have won the lottery or received an inheritance, money is the number one issue for adult student returning to school.  Ask your school for the various scholarships, grants and loans available in Ontario.   Often the applications must be sent several months prior to the beginning of the school year.  Make your budget, understand the debt repayment options available, as well as, the interest rates.  No sense accumulating a $50,000 debt that you will only pay off in 25 years!  Plan this out while you are at the negotiation table with you ex.  For example, you could try to negotiate a lump sum spousal support payment (one larger payment now rather than lower monthly instalments over a longer period of time).  You could also  ask for higher support payments but for a shorter period of time than the law would allow, which would give you the extra cash flow you need while attending school. 

 

2.  Plan study time in your busy schedule - Unless studying becomes your full-time job, you will have to juggle studies, children, and (maybe) a new relationship.  Managing your study time will be pivotal to your success.   Decide what hours/days you need. Making a date with yourself will help you stay focused and disciplined when something comes up during that scheduled time. Try to negotiate with your ex a parenting plan (access schedule) with the children that will give you the time you need to study.  You ex could be more than happy to help out with the children if, in the end it, your income is larger and you become less financially dependent on him or her.

 

3.  Reduce Test Anxiety – It is sad but true, with age and a surcharge of family responsibilities, our memory is not what it used to be when we were young and carefree students.  No matter how hard you study, tests are usually stressful.  Try to organize a special parenting arrangement with your ex during the weeks when you have exams.  School schedules are usually fixed a year in advance.  This gives you ample time to sort out, in  advance, a parenting arrangement for those weeks.  Being organized is the first way to reduce test stress, manage your anxiety and avoid last minute study cramming. When all fails, remember to breathe!

 

4. Create your support system -   Getting help from friends and family will be crucial during this very stressful and hectic time of your life.  Many schools offer group help and day-care facilities.  Friends and family may be more than happy to take the children for a meal and to special activities to help you out.  Don’t be shy and ask for help.  Get ideas from other adult students in your group. You might be surprised to see how many other single parents return to school and how resourceful they are when it comes to organization, household management and child care arrangements!

All I need from my mom and dad after divorce

It is almost the end of the school year and the children have been coming home with their backpacks full of assignments that they completed in class with their teachers.  As Jack is sifting through the pile of papers on the kitchen counter, he found a wrinkled piece of paper written by his teenage daughter entitled: “All I need from my mom and dad”.   This is an assignment that was completed in English earlier in the year.  It broke Jack’s heart… Here’s what it said:

 

« All I need from my mom and dad »

•   I need both of you to stay involved in my life on a daily basis.  Please write emails, text me, make phone calls, and ask me LOTS of questions about school, my friends, my interests, my fears, my dreams and ambitions.  When you do not stay involved, I feel like I am not important and that you do not care about me anymore.
•   When you say you will visit me, make sure you show up because I feel so sad and lonely and often I feel the rejection over and over again.  I just want to spend time with you!
•   I want and I need to love both of you.  Please support the time that I spend with each of you and also with my step-parents.  If you act jealous or upset, I feel like I need to take sides and love one parent more than the other. 
•   Stop making me the messenger!   Communicate directly with my other parent. I often feel like the bearer of bad news and my stomach is in knots until I deliver the message. 
At my age, I don’t need this constant stress.

•   Always remember this:  I want both of you to be a part of my life on a daily basis. I count on my mom and my dad to raise me, to teach me what’s important, and to help me when I have problems.  I want to confide in you but before I do that I need to be constantly reassured that I can TRUST you and that you ARE there for me at all times!

As a parent, it is normal to feel uncertain about how to support your children during – and especially after – your divorce because often you simply do not know what to say to them.   Being a step-parent is even harder because you seem to be living in this grey zone – should I hug his/her children?  Tell them I love them?  Although they are not the parents, often step-parents are more involved in the children’s daily lives then the access parent.   The divorce is a transitional time that cannot be without some measure of hardship, but you can powerfully reduce your children’s pain by making their well-being your top priority.   If your children do not live with you primarily, do not fall into the trap of buying your children’s love with presents.  Give them the gift of time…

 

In the end, no matter their age and no matter the circumstances, all children want the same thing from their parents and step-parents such as reassurance, a listening ear, stability, routine and structure.  But most of all, children want to be part of a family that loves them and shows them every day by being present in their lives.  They want parents and step-parents to participate in their activities, to give them hugs and high fives and to take the time to cook and enjoy a nice family diner.  Simply said, your children need your presence more than your presents!

I want my share in your business!

 

Jill’s sister has been living in a common-law relationship with her boyfriend for 11 years.  They have two children together, they own a home jointly and they have invested in a rental property through a company belonging to her boyfriend.  In all aspects (except for the very expensive wedding), they are like a married couple.  As of late, things have been rocky in their relationship and her sister has sought Jill’s guidance with regard to their rental property. She thought that since Jill is going through a separation herself, she would know the answer to her questions. However, Jill herself was married and she wonders if the same rules would apply to common law spouses.

 

The answer is NO. When it comes to property rights, things are very different for common law spouses than for married spouses. If you are married, Ontario laws very specifically set out how your family property is to be shared.  The rules are clear and will be strictly followed by lawyers and judges (unless you and your spouse agree to share your property differently).  However, this property division scheme does not apply to common law couples in Ontario.

 

It does not mean that non-married spouses have no legal remedies when it comes to property. To rectify what courts often saw as a terrible injustice, Canadian courts have created some legal principles which, if some conditions are established, allow common-law spouses to share in the value of a property owned by the other spouse following a separation. The main legal principle applied by Canadian courts to split assets between unmarried spouses is called “unjust enrichment”.

 

In simple terms, “unjust enrichment” may be established when one spouse made a contribution (financial or otherwise) towards the acquisition, maintenance or improvement of an asset (for instance a piece of property) which is owned by one spouse only, resulting in a financial benefit for the other party, to the first party’s detriment.  In the case of Jill’s sister, it would be profoundly unjust if she did not get to share in the value of the property held in her boyfriend’s company name given that they contributed an equal amount of money and efforts towards its purchase and maintenance.

 

This said, proving unjust enrichment can be quite a challenge sometimes, and the cost of making this claim before a court of law can be out of reach for many people.  For that reason, prevention is always better than cure, and many of the challenges associated with unjust enrichment claims can usually be avoided from the outset with careful family planning through cohabitation agreements and other legal contracts. For more information about this subject listen to our program:

 

«Protecting Your Finances: Marriage Contracts and Cohabitation Agreement (“prenupts”)»  http://www.familylawinabox.com/info/study_box.php

What? You moved away with the children!

Jill and Jack have been arguing for quite a while now.  For Easter, Jack took the children on holidays to his family in Toronto.  On Easter Monday, Jack sent Jill a text message saying the children would not be returning home that night as he had decided to permanently move to Toronto with the children in order to be closer to his immediate family.  Jill is in a state of shock and her first instinct is to call the police and charge him with kidnapping! All Jill wants is to get the children safely home as quickly as possible. Does Jack have the right to move out of town without telling her?

 

While Jack may certainly move, he cannot do so with the children and most importantly without speaking with Jill who has legal options available to her.  The very first thing that Jill should do is to IMMEDIATELY speak with a family lawyer as in custody matters of this kind, acting with all speed is absolutely crucial.  Every hour and every day that Jill delays in taking court action works against her chances of getting back the children quickly.

 

Under no circumstances should Jill consent to Jack’s removal of the children or sign any agreement that deals with custody and access matters until she and her lawyer have reviewed it.  Similarly, nor should Jill say or write anything to Jack that could be interpreted as agreeing with his removal of the children from the family home.  Jill will also be required to start an urgent court proceeding against Jack for the children's return. Custody proceedings are very fact-specific and to save time and legal fees, Jill will need to provide her lawyer with the following information:

 

1. the family’s background (names of the parties and their children, dates of birth, length of relationship, employment, income, etc.);

 

2. Short timeline of the main events leading up to Jack's removal of the children;

 

3. List of family members, daycare providers and friends who can help her care for the children if the court orders their return to the family home;

 

4. why it would be in the children’s best interest to be in your care until the matter is sorted out, and;

 

5. what access, if any, do you propose the other parent to have.

 

The reason for the parent's moving is irrelevant to the court unless it helps to determine the parent's ability to provide for the children's needs. When making parenting decisions, the courts sole concern is the child’s best interest – what are the child's needs and the ability of each parent to satisfy those needs. Of course, the relationship that the child has with each parent will also be examined. Courts do not like to introduce instability into the children’s lives, nor do they want children to remain in environments that leave them vulnerable to emotional and physical harm. Thus, the trend in the Ontario courts has been to disallow the removal of the children from their family home if there is no compelling reason to show that such a move is in their best interests. In Jack’s case, for instance, the court could order for example that he return the children to Jill or have the police apprehend him and return the children to Jill.

 

Moving away with the children without proper discussion and agreement between both parents will not only disrupt the children’s lives, it will create lots of fear and unnecessary anxiety. Speaking to a family law professional and with the other parent before making such a move is a must!

Leaving the country with the children for March Break? Bring a Consent Letter!

Jill is planning to take a boat cruise with the children this March Break.  She is fed up of the cold winter, she is exhausted with the separation process and feels that a good family vacation would do some good.  Jack, however, does not feel the same way.  Jill has so far refused to cover her fair share of the mortgage and if she does not have money for that, she shouldn’t spend thousands on a luxurious vacation south. Jill doesn’t know what to do.  There is no way she can be in court before the scheduled trip and she is afraid that custom authorities will not let her through with the children if she does not have a consent letter signed by Jack… Or should she try anyway?

 

Traveling with children is always a challenge for parents, whether or not you are still together. If you travel with your children and the other parent is not part of the trip, you will need to get the other parent to sign a consent letter giving you permission to leave the country with the children.   A consent letter is normally required by customs whether you have sole custody or joint custody of your children.  It does not matter whether your custodial rights come from a separation agreement or a court order.  If you do not want any surprises at customs, make sure you pack your passport, the children’s passports and an original consent letter in the prescribed form.  The Department of Foreign Affairs and International Trade Canada provides an example of a consent letter that you may use to create your own letter.  For your convenience, you may access this consent letter directly from our FREE Toolbox (click here). However, it is advisable to have the consent letter notarized by a lawyer (or someone having authority to swear an oath such a doctor, legal assistant, city officials, etc.) to make sure that the validity of the other parent’s signature is not questioned by customs.

 

Most separation agreements provide that the other parent’s consent must be sought in advance, and that such consent cannot be unreasonably withheld.  But what happens if your ex-spouse refuses to sign the consent letter?  Unfortunately, this happens too often – but sometimes for very valid reasons (health or safety issues) but sometimes simply as a means to engage the other parent in conflict.  If your ex-spouse refuses to sign a consent letter for no valid reason, you may have to bring the matter to court to obtain the court’s authorization to travel with the children outside of the country.  If the court finds that your ex-spouse’s refusal was unreasonable, it can order your ex-spouse to pay for all of the legal fees you had to incur to obtain the court order.

 

This is of course an expensive – and extremely stressful – way to begin a vacation with your children.  You may also need to book an extra week of vacation just to recuperate!  To avoid these unfortunate situations and to keep having fun in the sun, make sure that your separation agreement or divorce order includes well-drafted and comprehensive travel provisions setting out clear expectations when traveling abroad with the children.

The next step... our children

Jack is relieved that he finally told Jill the truth about his decision to separate, which had been weighting on him for quite some time.  He did not expect Jill’s reaction when he dropped the bombshell.  When Jack got married, he never planned to get divorced but now he realizes that they had problems in their relationship which were more obvious to others than to them.  He is hurting too and he is afraid of all the changes that lie ahead. His biggest fear is how the children will react to this, but he feels confident that the children will adapt with time.  Even if he and Jill are separated, Jack plans to continue to live with her in the home for a while until the children “adapt” to the idea of living into two separate homes.  Jack understood from his lawyer that there is no need to make rash decisions.  Jack believes that once Jill comes to terms with the separation, they will make this transition work for the sake of the children.  After all, they have always made a great team when it came to the children.

Ex-spouses living together after separation are much more common than you think. Some want to minimize the disruption in the children’s routine, others cannot afford to financially separate until some event takes place (like the sale of the home or the settlement of support issues).  When both parents continue to live in the same home, there is no physical separation and, in the eyes of the children, the separation is not truly happening. Whether you remain in the same home for a time, or whether the physical separation takes place right away, here are a few tips that you might want to consider before breaking the news to your children:

• When they are told about their parents’ separation, children often go “into shock” and in complete denial themselves. The children often maintain the dream that their parents will get back together.    Explaining the separation to your children is never easy. Sometimes you may not know what to say as you may be having a hard time yourself accepting the separation and all its realities. Tell the truth, as much as you can, and never promise your children something you cannot deliver such as “you will see daddy as much as you want”. 
• At the news of the separation, some children believe that the breakup is their fault.  Parents need to help their children understand that the separation is a problem that exists between Mom and Dad and that their actions or behaviour had nothing to do with the separation.  Your children know more than you think.  They have been feeling the tension and they have heard your conversations even if they were held behind closed doors!  Keep your children away from conflict and avoid speaking negatively about the other parent. 
• Children want to love both parents and the separation may create a sense of abandonment.  Children often feel like they have lost one parent and that they might lose the other one.  As a result, they tend to cling to their parents.  Reassure your children that you are not leaving them but only the relationship with their mother or father.  Show them lots of love, patience and understanding as they are filled with fears and anxieties about their own future.

Our marriage is over? This cannot be happening to me!

Jill is in complete shock. She never saw this coming.  Less than a month ago they went on a trip together and everything was great.    Jill had noticed that Jack was acting strangely for the past few months, that he was growing more distant, but never suspected that he wanted out.  Yes, they had their arguments, and yes, life was not always perfect, but they were still a happy family or so she thought.  When Jack told her he wanted to separate, Jill stormed out of the house and went to see her friend Sue.  She could not breathe anymore, she did not sleep that night and she could not stop crying.  In the morning, Jill came back to the house to get the children ready for school.  She put on a brave face for the children and pretended everything was fine while Jack kept on walking through the house as if nothing had happened.  Jill thought that maybe it was just a bad dream.  Maybe Jack was just upset and did not really mean it.  It would not be the first time.  She knew he was stressed out with work and had been spending lots of time at the office lately.  Jill had never felt such emotional pain and her mind was racing with fear.  Jack was really upset and seemed to mean it.  Could this be really happening?  What will happen to the children, the house, to their family relationships?  Their friends?  What will people say?   Jill felt like a complete failure and started doubting herself:  “What if I had not started the argument last night?  What if I had listened to him more?” In complete denial, Jill started to think that they could still work this out, it could not be the end of their marriage.  All she had to do was to convince Jack to attend marriage counselling.  Surely, he would realize that he was making the biggest mistake of his life! 

If, like Jill, your spouse just announced that he or she wants a separation, you are probably going through an emotional roller-coaster.  This is a very tough time for you.  Don’t do it blindly, and don’t do it alone. Here are a few tips to consider:

• Get support: You cannot go through this alone.  Call your best friend, a family member or someone that you trust.  Talk about it.  Let it out.  You have nothing to be ashamed of.
• Take time off work: You cannot function in this state of mind.  If you can, take a few days off.  Most employers will understand if you explain the situation to them.  
• Take care of yourself: Taking care of yourself is hard to do when your world is crumbling down.  But during the next few months, you will need to do just that because no one else will do it for you.  For some people, it can be as simple as taking a few minutes to take a hot bath each night, going for a massage, or asking your parents or friends to babysit the children one evening per week to give you some alone time.   Don’t hesitate to ask for help, now is the time.
• Get reliable information: Maybe you will not separate, but if it does happen, at least you will know what you are dealing with. You are possibly consumed with fears at this time.  Finding out about your rights and obligations can alleviate some of these fears.  Participate in one of our teleconferences, listen to one that is offered in replay on the subject that concerns you (children, support, family property), call our helpline, attend our Divorce Straight Talk seminars or spend an hour with a good family lawyer to get the basic information that you need.  

Do I leave or do I stay?

Jack had made his decision.  Unbeknownst to Jill, he had been through months of personal counselling to figure out whether or not his marriage was over.  It was now crystal clear to him that their long relationship (they started going out in University) was at an end.  After fifteen years of marriage, he was utterly unhappy and he felt that he and his wife had absolutely nothing in common anymore, except their two beautiful children Adam (age 10) and Eva (age 3), whom they both loved dearly.  After another endless evening of fighting over petty issues, Jack made an impulsive decision and announced to Jill that he wanted out.  He thought that she felt the same way as he did (she’s been so distant lately), but let’s just say that the announcement did not go as planned.  Jill stormed out of the home without saying where she was going.  She came back this morning before the children woke up, and has not spoken to him since.  Jack has tried to speak to her this morning after the children were gone to school and daycare.  He told her that he did not want to argue anymore, he just wanted a simple separation.  He was not leaving the home until both of them calmed down and figured out what would happen next.

Before Jack made his decision to leave, he consulted a family lawyer to find out what his rights and obligations were.  Jack wanted to make sure that his rights towards the children were protected, that he was not putting himself or the children at risk financially, and that he would not take any steps that might increase the conflict between him and Jill. His lawyer gave him the following advice:

•  Make sure that your marriage is over.  If in doubt, try marriage counselling.  It is readily available and relatively inexpensive, and you want to make sure you don’t regret your decision later;
• Don’t make hasty decisions.  Take the time to think this through with your partner.  Now is NOT the time to:
• Cancel your life insurance policies or change the beneficiaries on your health plan
• Sell the home or move out of the home (at least not before an agreement, even temporary, has been reached with respect to their care)
• Take out all of the money in the joint bank account, close all your bank accounts, or cancel your spouse’s credit cards.  This is the best way to insure years of litigation
• Create more debts (i.e. load your credit cards or buy yourself a new car with the joint line of credit)
• Remove all of the furniture from the home
• Protect yourself.  While you do not need to “rock the boat” the day after you announced your intention to separate, make sure that you are well informed and keep your eyes open.  Among other things:
• Pay attention to joint credit and debts.   If you see unusual or large withdrawals on the line credit, react!
• Put important belongings (family heirlooms, jewellery, insurance policies) in a safe place
• Make photocopies of important documents (income tax returns, home purchase documents, insurance policies, bank statements, passports)

Separation is usually a long and painful journey, take the time you need to think it through carefully.