Can I adopt my partner’s child?

Jill's friend, Joyce, has been with her spouse Robert for over 12 years now.  Robert has a daughter, Jenny, who is 14 years old.  Joyce is the only mother that Jenny has ever known, since her own mother (Robert’s 1st wife) passed away when Jenny was only a year old.  Joyce wishes to formalize her role as Jenny’s parent and is thinking about adopting her, though she is uncertain as to whether it is possible (after all, Jenny has a birth mother) and if so, what the steps are. 

In Ontario, it is common for new partner to adopt the child(ren) of their new partners, born from a prior relationship.  It is most common when the other parent has passed or is completely absent from the child’s life.  This process is called an “adoption by a relative or stepparent” and has its own unique legal process.  In fact, it is the only legal means through which a partner can become the true legal parent of his or her partner’s child. 

To qualify for the relative adoption process, the adoptive parent must either be:

• a step-parent

• a grandparent

• an aunt or an uncle

• a great-aunt or a great-uncle

Further, the relative adoption process is only available when the adoptive parents are residents of Ontario and the child resides in Canada.

What is different and often appealing about the adoption by a relative is that it does not affect your existing relationship with your child. It simply causes your partner to become a legal parent of the child as well. If alive, the consent of the other birth parent will be required although a judge may allow the adoption without the parent's consent in some exceptional circumstances (i.e. if the parent is dead, cannot be located or for some other reason if the best interests of the child would be promoted by waiving consent of the other parent).  It is also interesting to note that a child who is 7 years of age or more must consent to the adoption for the adoption to proceed.

Once the adoption order is made, the adoptive parent has deemed to be the parent of the children and is granted the same rights and obligations as any other parent in Canada or the world. 

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!

Why does my ex need to see my income tax return?

Jack has been paying child and spousal support to Jill for over a year now, pursuant to a temporary agreement reached between them in mediation based on what they anticipated to earn in 2013.  Jack recently completed his 2013 income tax return, which confirms that his actual income for that year was higher than he had anticipated.  He wonders whether he has an obligation to tell Jill about his higher income.  The last thing he wants is for her to find out that he is making more money and, as a result, that he needs to increase the monthly support payments he is making!  

 

Normally, final separation agreements (or court orders) which contain child support obligations will provide that parties have to exchange their income information each year.  This is because the law (Child Support Guidelines) specifically says that child support may be varied each year to reflect any changes in the parents’ income.  The change does not have to be important: as a payor’s income fluctuates, so does his or her child support obligation. Thus, the importance for parents to exchange income information each year.

This is not necessarily the case for spousal support.  Usually, an ex-spouse’s obligation to pay spousal support is based on the income that the parties earned at the time of their separation.  To subsequently vary a spousal support agreement or court order, the person requesting the change  must show that there has been a “material change in either party’s circumstances” since the making of the agreement or court order.  A significant change in one’s income may (and I say “may”) justify a change in spousal support. Other circumstances justifying a variation of spousal support could include a payor’s retirement; the support recipient moving in with a new spouse; the termination of a child support obligation; a change in employment for either party; or any other such change affecting either parties’ financial situation.  Since there is no inherent right to vary spousal support each year, there is normally no positive obligation imposed on the ex-spouses to exchange their income information yearly.  However, the ex-spouses have an obligation to disclose any “material change in one’s circumstances” when it arises. As always, if the parties cannot agree on the new support amount, they will need to seek the variance through a court order.  

Stop focusing only on the negative

Jack and Jill have been separated for more than two years now.  However, Jill cannot stop talking negatively about Jack.  She cannot forget the names calling or the fact that he “lied” about his annual income to avoid paying child and spousal support.   When she feels tired, overworked, and stressed out by all conflicting demands on her time, Jill’s negative thoughts creep into her mind and play out like a movie. As a result, Jill is often depressed, she lacks energy and many of her girlfriends do not call her as much anymore.  Like many separated people, she has fallen prey to negative thinking… 

During and after a separation, people live periods of loss and grievance.  For many, separation is a failure.  Focusing only on the negative aspects of the relationship often helps a person justify to themselves and their entourage the reasons for the breakup. However, no one is served by holding onto negative thoughts indefinitely.  Getting counseling or divorce coaching is often necessary to move forward. 

 

Often those who think negatively do so out of habit.   It is a lot easier to dwell and complain about the 5% that is going “wrong” (i.e. the car that cut you off this morning) instead of focusing on the 95% that is going well (i.e. your health, job, children etc.). Studies have demonstrated that positive thinking can be extremely beneficial for improving self-confidence and psychological well-being, as well as boosting physical health.  Here are a few tips to help you maintain or develop a positive attitude:

1.      Meditate or do yoga - learn how to breathe and ease your mind;

2.      Smile – it will change your mood and relieve stress;

3.      Surround yourself with positive people –  a good friend can help you put things into perspective;

4.      Don’t play the victim even if your living situation is unbearable - there is always a way out; and

5.      Remember that no one is perfect – stop dwelling on the “what if”, learn from this life experience and move forward.

Blended families! Who pays for what?

Jill’s sister Anna went through a difficult divorce.  Everything has been settled with her ex-husband and she has been in a new relationship for the past two years.  Tom, her new beau, has two children.  They are planning to move together come Summer time but Anna is nervous about moving in with a new spouse, particularly with one who has two dependent children to take care of.  In the end, all she wants is for her new family to be happy!

Stepfamilies now make up approximately 13% of Canadian families with children. Almost half of those are blended families with children from the new and former relationships, or from which one partner brings children from a previous relationship. Blending might result in some financial challenges, particularly when one spouse has children and the other does not.  Here are a few tips to insure that financial issues do not get in the way of your happy blended family:

• Be proactive. Have an open and frank discussion about your financial position before moving in together.  Disclose your assets, your debts and talk about your budget, your lifestyle and your financial habits, goals and preferences;

• Meet with a lawyer to discuss whether or not a cohabitation or marriage contract would be necessary in your case to protect your existing assets or to determine in advance what you will or will not share financially during your relationship and in the event of a separation;

• The spouses should be clear about what they are prepared to contribute, if anything, to assist with raising the other spouse’s children.  If your understanding is that you will never be called upon to support your spouse’s children, during and/or after the relationship, put that understanding in writing (normally in a cohabitation agreement or marriage contract);

• Consult an accountant to discuss how you may be able to organize your financial affairs to minimize the tax consequences of living together.  For instance, after 12 continuous months of living together, you are required by the Canada Revenue Agency to change your marital status to common law partner.  One’s ability to claim certain tax credits and benefits may be affected by that change.

Blended families can be very successful both for the new couple and for the children who form this new family, particularly when the spouses take the time to plan ahead and discuss in an open and honest manner about what each of them expects from the relationship. Life is giving you a second chance, so start on the right foot and plan!

Could a parenting coordinator help us?

Jack and Jill have been able to reach an interim agreement about parenting issues and the care of their two children.  Unfortunately, this has not stopped them from fighting about the kids. From Jack’s perspective, Jill is completely inflexible in her thinking and she refuses to follow the agreement with regards to access, consent to travel with the children, payment of the children’s expenses and so on.  Jack wonders what is the point of having an agreement if he needs to run to his lawyer and take legal action every time Jill does not follow the rules.

In high-conflict separations or divorces, parenting issues may arise frequently even if the parents have signed a comprehensive parenting agreement. Going to court every time a dispute arises is both untimely and expensive.  However, “Parenting Coordination” could be your best option to manage those day-to-day disputes in a timely and cost-effective manner.

How does parenting coordination work?  A Parenting Coordinator is a neutral person to whom parents can turn to when they cannot agree on matters relating to their children. The Parenting Coordinator is usually a psychotherapist, social worker, family lawyer, counsellor or mediator who has a significant expertise in parenting and divorce conflict management and who has obtained a Parenting Coordination certification. The Parenting Coordinator is hired by the parents (by contract) or appointed by the family court (on consent of the parents).  His/her role is to help parents come to a successful resolution of ongoing disputes as they arise between themselves. If the parents are unable to resolve the dispute, the Parenting Coordinator is empowered to impose a decision on them. In other words, the decision of the Parenting Coordinator must be followed by the parents, as if ordered by a Court.

While the cost of the Parenting Coordinator is assumed by the parents equally (or as otherwise ordered by the Parenting Coordinator when required to impose a decision on the parties), that cost is, without a doubt, cheaper than the cost of two lawyers and months of court proceedings to resolve the dispute!  Most importantly, the matter will be resolved very quickly (sometimes in a matter of days) as opposed to taking several months through the court process.  Keep in mind that, according to a wide body of research, while separation and divorce may be a hard transition for children, in the end, it is parental conflict that is the most harmful to children.