She’s seeking sole custody? Is she trying to alienate me from my kids!

Jack is furious that Jill is seeking sole custody of their two children. He regards himself as a father who has always been involved with his children, and believes that he has much to offer his kids, both in terms of decision-making and in terms of the time they spend together.  Jack views Jill’s actions post- separation as an overt attempt to cut him out of the children’s lives, and “alienate” them from him. But is this the proper use of the term, “parental alienation?”

A parent who engages in alienating behaviour deliberately and actively campaigns to estrange his or her child from the other parent. Specifically, an alienating parent will talk negatively about the other parent or treat that parent disparagingly in the child’s presence; he or she may tell false stories and lie about the other parent directly to the child. Such parents will not allow their children to speak openly about the other parent in positive terms, or relate positive experiences they have had with the other parent. Moreover, alienating parents may subject their children to interrogation immediately following their return home from access visits, or create divided loyalties by refusing to allow the child to wear clothing purchased by the other parent or bring gifts home from the other parent.

 

Such behaviour on the part of the alienating parent typically occurs over extended periods of time. In response, a child who is alienated will consistently express negative feelings about a parent, or outright reject a parent, for reasons which are unjustified given the child’s past relationship with that parent and given the rejected parent’s conduct itself.

Courts must assess allegations of parental alienation on an individual basis, in order to determine whether a child’s fear or rejection of a parent is reasonable and justified given the circumstances of that particular case.  Was this child previously abused by her parent? Does the parent routinely miss or cancel access visits? What type of relationship did the child have with her parent prior to separation? If a child has valid reasons for exhibiting fear of his parent, or if there is a history which explains why the child refuses to attend access visits or engage with his parent, then it is inaccurate to claim that the child is alienated. If, on the other hand, a child who used to enjoy a loving and meaningful relationship with her parent is now truly fearful of that parent, or outright hostile toward that parent, then parental alienation may be at issue.

The court’s role in custody and access cases is to determine what is in the child’s best interests; it is not the court’s objective to reward or punish parents for their behaviour. Therefore, how courts respond to cases where parental alienation exists is not uniform. In certain cases, reunification or reintegration counselling may be recommended; a complete change to the existing custody and access regime may be ordered. In other instances, courts may find that to order any change to the status quo would cause further harm to the child.

So if you believe that your ex-spouse may be engaging in an alienating behaviour, don’t jump to conclusions.  Seek the assistance of a mental health professional who will be able to guide you through this process and make proper recommendations as to an intervention plan which may, or may not, involve hiring a lawyer.

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.

Child Support – Why should I support my wife’s shopping addiction?

Following many discussions, Jack and Jill have finally agreed for Jill to have the children in her primary care (equal to 70% of the time) and Jack, because of his work obligations and difficult schedule, will have them in his care every second weekend including one or two evenings in between (or 30% of the time).  As a result of this arrangement and because he earns a substantially higher income than Jill, Jack’s monthly child support payment will increase.  Jack is concerned about Jill’s love for shopping. While he financially supported it during the marriage, Jack is convinced that a good chunk of the child support he will pay will not be spent on the children. Jack spoke to colleagues at work who used all sorts of strategies to reduce their child support payments. He wonders whether he should have insisted to have the children 50% of the time and whether it was a good idea to accept the long-awaited promotion handed out to him at work, resulting in a higher income… and higher child support payments.

Both of these options are not advisable.  Firstly, a parent should never make parenting decisions based on financial considerations (i.e. with a view of reducing child support).  The court would readily see such a decision for what it is and the parent would lose credibility before the court (or a mediator).  Decision-making authorities assess parenting arrangements based on what is in the best interest of the children, and nothing else.  Rights and obligations regarding children are the same whether you are married or living in a common law relationship.

In the same way, it is a terrible idea for a parent to take steps to quit a well-paying job or to voluntarily reduce his/her annual income to avoid paying child support.  If a court finds that the payer parent has voluntarily reduced his/her income, it may impute an annual income that is greater than the one shown on the income tax return.  The amount of the imputed income will be based on what the court believes the payer parent has the capability to earn.  Following the court decision, that parent will be obligated to pay the higher basic child support amount imputed.  

Many payer parents are concerned with the way basic child support is being used by the recipient parent. While this may be frustrating in some circumstances, the payer parent has no control over the money once it has been paid to the recipient parent. What payers need to understand is that basic child support is not meant to cover strictly expenses that directly benefit the children themselves (such as food and clothing).  It also serves to cover expenses which benefit the children indirectly (although it also has the effect of benefitting the parent as well), such as the mortgage and utilities (for the home in which the children live), the car (which is used to travel them around) and, yes, even the brand new porch…

The payer parent should also keep in mind that in the Federal Child Support Guidelines, basic child support amounts vary for each Canadian provinces and territories and are set based on the amount that an individual parent, with a specific income, is expected to spend to provide for his/her children.   It is simple, the higher the income, the higher the child support amount will be.  Although a payer parent may feel that it would be « cheaper » not to pay child support and to have the children half the time instead, let’s remember that raising children is extremely expensive (many little things, which you may not think about, result in considerable costs when pulled together; haircuts, school lunches and activities, birthday parties, toys, personal care items and, yes, those LuLu Lemon pants…).  In the vast majority of cases, the basic child support amount will not be sufficient to cover that parent’s share of the children’s expenses (both direct and indirect) and the recipient parent will often have to modify his/her current standard of living to support the children financially.

For more helpful information about basic child support and or extraordinary (special) expenses, subscribe to our full library of recorded programs (Study Box) at

www.familylawinabox.com.  (click here to be directed to our Study Box)

Life insurance to secure child support: There’s no way I’m leaving you this money!

Since the separation, Jack has never stopped paying the monthly premiums for the life insurance policy that he and Jill bought during their marriage.  As there is no chance of reconciliation, Jack wonders whether he should stop paying for Jill’s portion of the monthly premiums.  After all, why isn’t Jill paying for her own premiums? Jack’s friend Dave also told him that he should immediately remove Jill’s name as the beneficiary of his insurance policy and put the children instead.

 

If Jack was well advised, he would do neither.  When parents separate and there are dependent children to care for, it is very important for both parents to maintain life insurance coverage sufficient to provide for the children should the unthinkable happen.  As long as the children remain dependant financially, both parents have a continued obligation to provide financial support –child support – whether they are paying it or receiving it.

In most cases, when a parent dies, the children move in full-time with the surviving parent who is left with having to financially support the children, without any financial contribution from the other parent, unless proper life insurance coverage is in place.  Even if the deceased parent has made a Will and named the minor children as beneficiaries of part or all of his or her estate, the reality is that it often takes months, if not years, for an estate to be administered and the gifts to be distributed.  Furthermore, the Will may prevent the children to have access to the money until they are 18 years of age or even older.  In the meanwhile, the surviving parent struggles and the children suffer unnecessarily. 

 

Here are some additional reasons why separated parents should maintain life insurance coverage naming the other parent as irrevocable beneficiary in trust for the children AT ALL TIMES:

1. If you die and have made no provisions for the other parent to receive money for the support of your children, the surviving parent may very well sue your Estate to obtain that support.  This is bound to delay the administration of your estate considerably, in addition to forcing your executors to engage significant legal fees to defend the action and settle the issue, leaving less money for the children in the end.

 

2. If your child is a minor at the time of your death, he or she will not be entitled to receive any monies directly (from your Will or your insurance policy).  The monies will have to be administered by the person you named as trustee for your children.   If no one was named, the monies will be administered by the Office of the Public Guardian (OPG), a governmental institution who will step in to administer your financial affairs and decide what is best for your children.

 

3. Having your ex-spouse as beneficiary in trust of the life insurance proceeds for your children with specific directions as to how the funds may be used by him or her, and what is to be done with any leftover once the children cease to be dependent, will insure that the monies are used properly for the benefit of your children.

 

4. Your children will have immediate access to funds to maintain their standard of living after you are gone.  They will be able to pursue their activities or schooling, and there will be no gap between the time of your death and the time they have access to the fund they need to pursue their daily life.

 

5. Proper life insurance simplifies the lives of everyone involved if one of the parents dies, and the cost to maintain relatively large amounts of temporary life insurance coverage is quite minimal - depending of course on your age and health condition. 

Making sure your children are provided for in the event of your death is a part of being a responsible and loving parent.