Should we involve the Office of the Children’s Lawyer in our parenting dispute?

Jack thinks that Jill is unreasonable when making plans regarding the children.  She refuses to be flexible when it comes to dividing the time with the children on holidays, sharing information from the school, or letting him take the children for more than a few days here and there. Jack wants to have the children with him half the time to regain his place as a parent in their lives.  His friend has suggested that he should consider getting the Office of the Children’s Lawyer (OCL) involved but Jack is leery to engage the children in a process that he does not understand. 

The Office of the Children’s Lawyer is a government-funded organization that oversees that justice is being served on behalf of children (under 18 years of age) through the delivery of various services in the province of Ontario.  It is important to note, however, that the OCL’s involvement in custody and access cases is not automatic.  Their services may be requested by a judge in the context of a court case but there is no guarantee that the OCL will provide services.  If it does, then those services will be provided free of charge to the parents.  In essence, the OCL steps in as an objective third party to introduce some impartiality in disputes between parents.  The OCL can provide two very useful services: independent legal representation for children and custody and access assessments performed by trained social science professionals.

Independent legal representation will normally be provided when the child is older or at least sufficiently mature to express his opinion about his preferences. The child’s lawyer will be an advocate for the child and his/her role and responsibility will be to convey to the judge the child’s wishes and preferences with regards to the visitation arrangements that he would prefer.  For younger children or for families that present important challenges (such as allegations of domestic violence, substance abuse, parental alienation or where a child has special needs), the OCL may become involved by carrying out a comprehensive family assessment.  Following such an assessment, the OCL’s clinical investigators will report to the court to provide recommendations about the custody and access arrangements that would be best for the children.

The OCL’s services are very effective at helping parents make decisions that are in the best interest of their children, when they have not been able to do so on their own. Of course, it is always best for everybody when parents are able to agree between themselves as to what is best for their kids, as parents may not be happy with the recommendations made by an outsider, be it a judge or the professionals working for the OCL.

Who keeps the paws? Do I need to share the dog too?

Jack and Jill had a fight over their family golden retriever, Honey Bun.  Jill refuses to allow Jack to take the dog with him in his new apartment.  Honey Bun is Jack's dog.  He was the one who decided to buy it, against Jill's wish, but now she refuses to let Honey Bun go live with Jack.  Jill claims that Honey Bun truly belongs to the children who are very attached to their family pet and as a result, the dog should remain with them in the family home. 
 

Couples who go through separation and divorce can spend a lot of time fighting over how they will divide their personal property like the home, the pension plan and the furniture.  Often, bitter disputes arise about who will get to keep the family pet.  The family dog or cat is as much a member of the family as anyone else and it can be very difficult to part with them. 

When deciding who should get “custody” of the family pet, people focus on their own personal wants and desires and on what they feel would be best for the pet (or for themselves).  Sometimes one spouse uses the pet to try to exert control over the other spouse – and sometimes it works... When there are kids involved, the family pet often becomes a football as the parents figure that where it lands will be where the children will want to land as well.

But here is one thing you might not know:  in the family law landscape, a pet is considered a piece of property (it seems cruel doesn’t it?) and if the issue of who gets Honey Bun is ever decided by a judge, the person who holds legal title to the dog (i.e. the person who can show proof of payment) will be entitled to walk with it.  Keeping this in mind, a pet IS nonetheless a living being (unlike the chair and the RRSPs) and when deciding who should keep it, you should consider the following:

• Who originally purchased the pet?
• What was the intention of the family at the time of purchase?  That the pet be the kids’ friend?
• Who will have primary care of the children? Keeping the pet with the kids can be very important during a divorce because it provides some stability and comfort.  Maybe the pet should travel for a while?
• Who took care of the pet while you were together? Often, parents buy the pet for the children but mom or dad ends up taking care of it full time as the children loose interest in it. Who has become the dog’s Master?
• Will a change in environment result in a change in the pet’s behaviour, including unwanted ones?
• Who has the financial means to keep the pet, i.e., to pay for the food, care and vet bill (if you don’t have a pet, do know that they can become quite expensive to maintain).  Unlike child and spousal support, you cannot get “pet support”!

As with anything else, if you go to court the decision will be made according to the law (i.e. the dog follows its legal owner), but if you settle the issue outside of court, you can be as creative as you want and use a common sense approach when it is time to decide who keeps the paws.

Get a job! The truth about spousal support

Over the summer months, Jack and Jill had lengthy discussions and arguments about how they will move forward with their separation.  For the time being, Jack has agreed to let Jill live in the family home and he has rented a nice three bedroom apartment for him and the children.  This  decision will allow Jill to put some distance between them and will help reduce the conflict to which the children have been exposed to these last few months. Jack and Jill have also had several heated discussions about child and spousal support.  Jill still works part-time and she needs additional financial support, beyond the child support she is currently receiving, to pay for household expenses while the parties continue negotiating their separation. Jack feels that Jill should finally get a full-time job and pay for her own bills. 

There are a lot of misconceptions surrounding spousal support.  “Women don’t have to pay spousal support”  “I don’t have to pay spousal support if I am not married” “Spousal support is forever”… and many more.  Spousal support is a very complex topic (even for lawyers…) and to explain it properly would take many more pages than what is available for this article.  But here are a few important things to know about spousal support.

 

• Both married spouses and common law spouses may have to pay spousal support;

• Both men and women may be ordered to pay spousal support;

• Spousal support is an amount of money that one spouse pays to the other on a monthly basis, or as a one-time lump sum payment, to achieve one or more of the following objectives:

• Recognize that one spouse has suffered an economic advantage or disadvantage and compensate that spouse for that;
• Attribute fairly between the two spouses the financial consequences that one suffers as a result of caring for the children (either during the relationship or after its breakdown);
• Help a spouse who has a financial need after the separation;
• Help a spouse to achieve financial self-sufficiency.

• When determining the amount ($$) and the duration (# of years), if any, that a spouse is entitled to receive spousal support for, the following factors will be taken into account (this is not an exhaustive list);

• The number of years during which the parties have lived together;
• The parties’ respective income;
• whether the couple still have dependent children;
• the parties' age as well as their physical and mental health;
• the parties’ standard of living during the relationship;
• the parties’ current assets and financial means, including what they are likely to get in the future;
• the capacity of the recipient to contribute to his/her own support, by working or otherwise, and the amount of time it will take him/her to achieve self-sufficiency;
• the payer’s capacity to pay support;
• whether or not the recipient has helped the other spouse to build a career or a business.

It is also important to note that the fact that a spouse has cheated on the other has no impact on how much spousal support is payable, or how long.  Also keep in mind that spousal support is tax-deductible in the payer’s hands and taxable income in the recipient’s hands.

As I said previously, spousal support is complicated and there is no hard and fast rule that governs its determination. And in addition, support entitlement and/or obligations, in certain cases, can last a very long time and you want to make sure you are paying/receiving the proper amount. So before you agree on anything about spousal support, you should meet with an experienced family lawyer (even if only for an hour) to obtain proper legal advice on this topic.

Becoming a single parent doesn’t come with a manual!

Jack is doing very well as a single dad.  He is proud of his children who seem to be coping fairly well with the separation, with the exception of a few crying spells at night as they miss their mother’s kisses before going to bed.   Jack is worried, however, of the long-term effects of the separation on the children.  Research studies demonstrate that, although a separation can be tough on kids, particularly in the first few months following the break-up, what is really damaging to a child’s health, development and overall well-being is parental conflict.    Children are like sponges and they know and sense when something is wrong, no matter their age.   Babies cry when they feel tension between the parents, while teenagers will slam the doors to be heard.   Being a child of separation himself, Jack knows that what children want most is to be loved by both of their parents.  Since becoming a single parent did not come with a manual, Jack has read a few books where many professionals have provided advice on how to help children cope with separation and divorce and adapt positively to their new lives. 

Here are a few useful tips that guide Jack in his everyday life as a single dad:

1. Tell your children the truth in simple terms with simple explanations. Tell them where the other parent has gone, how the summer and Christmas holidays will be organised etc.  (It’s all in the delivery of the message.  Choose your words and tone of voice).

2. Tell your children that they will continue to be taken care of and that they will still be safe and secure.  (Even after the separation, children need to be constantly reassured).

3. Children see that parents can stop loving each other.  Reassure them that a parent's love for a child is a special kind that never stops. (Saying I love you is more important than ever).  

4. Children feel responsible for causing the divorce. Reassure them that they are not to blame.   (Showing love and understanding is more important than ever).  

5. Children often hope for years for their parents to get back together and feel responsible for bringing them back together. It is important to let them know, gently but firmly, that the breakup is final.  (It may not be easy to say especially if you are still in denial yourself.  However, giving false hope of reconciliation is not healthy for anyone involved).   

6. Avoid situations where the children must choose between parents such as:

• Using the children as a way to get back at your spouse. (Children can feel that they are being used and can be terribly wounded).

• Saying bad things about the other parent in front of the children.  (It is not always easy to remain the bigger person when you are hurting however, no one can take away your dignity).

• Saying things that might discourage the child from spending time with the other parent. (What goes around comes around).

• Encouraging the children to take sides. (All they want is to be loved equally).

7. Even though it may be the last thing you feel like doing, cooperating with your spouse during your divorce is one of the best gifts you can give your children (Cooperating responsibly with the other parent toward the growth and development of your children is an expression of your mutual love for them.)

Parenting is forever and being a single parent can be very hard at times.  When you don’t know what to do anymore because nothing seems to work anyway, just remember that the best tools you possess and to which all children react positively to are LOVE, PATIENCE and UNDERSTANDING.  

It’s his fault! He should pay more! (No-Fault Divorce)

Jill suspects Jack has a new girlfriend, possibly pre-dating the separation.  Jill wants to obtain a divorce and she is wondering what gains she can make as a result of Jack’s indiscretion…

In Canada, we have since 1986 what we call a “no-fault” divorce regime.  This means two things.  Firstly, you can ask for a divorce without having to demonstrate misconduct by either spouse, so long as you can show that you have been separated for at least one year.  It is the most common method of obtaining a divorce in Canada.  Divorce is an emotionally and financially taxing process and fault-based grounds of divorce (adultery, cruelty) require proof, which may intensify an already painful and expensive process.  Additionally, the law recognizes that family relationships are complex and matrimonial misconduct is not always the cause of the breakdown of a marriage.

Secondly, “no-fault” divorce means that your rights and obligations following a separation will be the same regardless of “whose fault” the separation is.  In other words, whether you separated amicably by mutual consent or whether you separated as a result of your partner’s adultery or other type of marital “misconduct”, the financial end result (division of property and financial support) will be the same.  Proving adultery, for instance, will not get you a bigger financial settlement.

So is there any benefit to proving cruelty or adultery within a marriage?  Beyond granting a divorce, the court will seldom (if ever) consider adultery or cruelty when making decisions regarding financial issues.  However, the courts may consider these as factors surrounding matters relating to children, if they influence the spouse’s ability to parent.  For instance, if a spouse has anger management issues resulting in domestic violence, this will obviously affect his ability to parent his children. However, it will not result in a higher spousal support (alimony) award. There is also a possibility of claiming damages as a result of an assault, but this requires a clear demonstration of injury and its

consequences. 

By choosing a no-fault basis for divorce (even if you feel that there has been some marital misconduct by your ex-spouse) you will alleviate some of the major stress of the process with regards to time, financial burden and emotional turmoil.  You may also be able to move on from the relationship without drawing out the process, particularly since there is no real advantage to be gained from the fault-based process.

Domestic Violence Court Program

Jack just received a disturbing telephone call from his sister Anna late last night.  During an argument between Anna and her husband, violence erupted and a call to 911 was made by the oldest daughter.  Since a mandatory charging policy has been implemented in Ontario to improve the system’s response to domestic violence, if there are reasonable grounds, the police must lay charges.  In light of the circumstances, the police officer also made a dual arrest as he had reasonable grounds to charge both the offender and the victim.  Both parties must now appear in court and Jack wants to be present for his sister. 

Domestic violence, also referred to as intimate partner abuse, is a crime in Canada.  Though primarily perpetrated by men against women, it can also be carried out by women against men or even in same-sex relationships.  Domestic violence takes on many forms not limited to physical violence, and the complexities of these relationships may result in victims repeatedly exposing themselves to potential violence. 

In Ontario, the Domestic Violence Court  (DVC) Program accounts for the unique relationship between offender and victim as well as other individuals affected by the violence, such as children.  The DVC deals with domestic violence cases in several ways, including, intervening early on in abusive situations, providing assistance to victims, and holding offenders accountable for their actions. 

The casualties of domestic violence are not limited to those directly involved, thus consideration is given to the safety of other family members such as children as well.  There are several components and specialized personnel that assist the operation of this program, including: police, Crown Attorneys, the Partner Assault Response (PAR) program, the Victim/Witness Assistance Program (VWAP) and other community agencies.  

The PAR program instructs and provides guidance to offenders ordered to follow the program by the court.  Its purpose is to hold offenders accountable for their abusive actions and to increase the safety of victims.  Offenders obtain the tools necessary to analyze their behaviour and to resolve conflict in a non-violent way.

The VWAP program is set-up to assist victims and witnesses of crimes by facilitating their understanding of the criminal court process and providing support as they participate in the process.  This service is not limited to domestic violence cases, as it also assists victims/witnesses of child abuse, sexual assault and homicide.  This program is meant to serve the vulnerable individuals involved in such crimes.  The services are provided from the time charges are laid to completion of the case.  Assistance offered includes: emotional support, court preparation and case information, as well as referrals to other organizations that provide support

It’s summer and kids just want to have fun!

While sipping her coffee this morning, Jill was thinking of her childhood and remembered the times when she slept ‘till noon, spent hours in front of the TV in her PJ’s and played outside all day with her siblings and friends.  Jill feels that since she and Jack separated, with the kids having to deal with two homes and the ever changing parenting schedule, they just don’t have time to “chill” anymore – as they say.  The summer vacation plans have become soooo complicated since both parents want to enjoy quality vacation time with the children.  Jill understands the need for her to recharge her batteries as well, as the school year was quite hectic with the many changes and challenges brought about by the separation and trying to keep up with the homework and extracurricular activities’ schedule.

If that sounds like your current life circumstances, here are a few tips that you might want to keep in mind when preparing summer plans for you and your kids. 

The golden rule:  KEEP IT SIMPLE and FUN! 

1. Stop pressuring yourself to create the perfect summer for your children. You're not a cruise director; you're a parent.  Ask the children to help you plan the activities. You’ll see, they have the most amazing (and simple) ideas. Remember, there is a lot to be said about quiet dinners on the patio, picnics in the backyard and ice cream cones on a hot night.  Running through the cold water sprinkler can easily replace the public pool.

2. Try to work, clean your house, or do volunteer work while your children are with the other parent.  Save the fun events for the days your children are with you. If your schedule conflicts with your ex’s, try to compromise keeping in mind that the end goal is to give your children a relaxing and fun summer.   Although it may not be easy to deal with an ex that keeps messing up your plans, patience and flexibility always make things easier in the end.

3. Friends are extremely important for children, particularly older ones, and your super-organized schedule may not fit their plans for simple play time in the backyard or at the park. If required, go the extra step and offer to drive your kids’ friends to and from your home.  Serving a glass of iced juice with homemade chocolate cookies on the picnic table can win you the award of the “coolest” neighbourhood parent.

4. Let’s face it, often you can’t spend the whole day playing with your kids. Don’t feel guilty. Just look with your children for alternatives that will keep them happy while you are busy doing other things. Again, involving your children in planning their activities gives them a sense of control over their schedule which is often taken away as a result of sharing two homes.

5. Last but not least, plan for some adult fun for the days the children are away. You also need time to enjoy your summer vacation and to regain your energy.  Take time to explore new places or simply invite family and friends and just relax and laugh in the backyard.  Remember the golden rule:  KEEP IT SIMPLE and FUN!