Tag: family

First Major Changes to Divorce Act since 1985

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On May 22, 2018 the Federal Government introduced Bill C-78, which proposes changes to the Divorce Act. The proposed amendment would be the first significant revision to the Divorce Act since its enactment in 1985.

The changes to the Divorce Act are designed to implement a more “child-focused” approach to family law disputes, rather than an adversarial approach. By removing language like “custody” and “access,” and encouraging dispute resolution, the Act is designed to better promote the interests of the child.

The Minister of Justice, Jody Wilson-Raybould, summarizes the changes as follows:

(a) replace terminology related to custody and access with terminology related to parenting;

(b) establish a non-exhaustive list of criteria with respect to the best interests of the child;

(c) create duties for parties and legal advisers to encourage the use of family dispute resolution processes;

(d) introduce measures to assist the courts in addressing family violence;

(e) establish a framework for the relocation of a child; and

(f) simplify certain processes, including those related to family support obligations.

If this Bill passes in the House of Commons, the legislation will likely come into force in 2019.

Thus far, most family law practitioners and commentators view the proposed changes positively. However, some state the impact of these amendments will depend on how courts across Canada would apply the new provisions. We note that the common-law in Canada already requires the courts to apply a “child-centric” test and only consider the “best interests of the child” when making decisions regarding custody and access (or “parenting time” rather) (Young v. Young, [1993] S.C.J. No. 112). However, the proposed changes to the terminology should help reduce the “win/lose” mentality of many individuals involved in family law disputes.

To view Bill C-78 in its entirety, check out the link below:

https://www.parl.ca/DocumentViewer/en/42-1/bill/C-78/first-reading

To view the Divorce Act (1985), check out the link below:

https://laws-lois.justice.gc.ca/eng/acts/D-3.4/page-1.html

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Curious Case: Bruni v. Bruni – A “how not” to behave in a family law dispute by being “one dimensional problem solvers”

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In this week’s installment of our Curious Case series, we take a look at the Ontario Superior Court of Justice case of Bruni v. Bruni, 2010 ONSC 6568. As stated in our last curious case post here,  real life is often stranger than fiction. This is one of those cases where even the Judge in this case could not withhold his frustrations with the ways in which these parties interacted with one another. While entertaining, the Judge’s comments throughout this case serve as a stern warning to family law litigants to have some modicum of respect for one another.

Background:

Catherine and Larry Bruni separated in 2010 after an 11 year marriage. While in committed relationships with other people, the two separated individuals absolutely loathed one another. There was nothing out of bounds for this couple, from death threats to alienating their children, B and T, against each other.

Details:

Larry sought to set aside the child support provisions in their separation agreement because he felt that Catherine’s partner, Sam, was able to support her and the children. Larry also sought an equalization of net family property. As later stated by the Judge, Larry neglected to read the entire Separation Agreement resulting in disadvantages such as, property rights, rights to his children, and even the rights to independent legal advice.

Catherine responded by requesting variation of the separation agreement by amending child support and access provisions, seeking spousal support, and acquiring contributions to extraordinary expenses.

Catherine would often threaten Larry by stating that “the Hell’s Angels would be knocking on his door at any moment” or that” her family members were on their way to kill him”. She even took matters into her own hands by trying to run him over with her vehicle.

On the other hand, Sandra, Larry’s significant other, refused to allow B to contact her mother while in the care of her and Larry, stating that Larry’s time with his children was his and not Catherine’s.

Furthermore, Justice Quinn noted at paragraph 70 of his decision that “[o]n 14 occasions, within 18 months, the parties drew the police into their petty disagreements — a sad commentary on their inability to get along and a shocking abuse of the Niagara Regional Police Service.”

During their trial, Catherine and her partner, Sam, continuously uttered threats in the court room directed towards Larry.

Outcome:

The Judge dismissed Larry’s requests and partially allowed Catherine’s requests by making small changes to the Separation Agreement including typographical errors and the amendments to the amount of child support Larry had to pay.

The judge felt that it had been Larry’s responsibility to read the entire Separation Agreement before signing, and it is due to his own neglect that he is now facing these misfortunes.

JUDGES NOTES WORTH READING:

  1. “A finger is worth a thousand words and, therefore, is particularly useful should one have a vocabulary of less than a thousand words.”
  2. “When the operator of a motor vehicle yells “jackass” at a pedestrian, the jackassedness of the former has been proved, but, at that point, it is only an allegation as against the latter.”
  3. “I confess that I sometimes permit a lengthier hiatus than the schedule of the court might otherwise dictate in order to afford the parties an opportunity to reflect on the trial experience, come to their senses and resolve their difficulties like mature adults. It is touching how a trial judge can retain his naivety even after 15 years on the bench.”
  4. It takes a special level of audacity to utter threats under the roof of the Court House.
  5. I gather that this is Larry’s version of the Big Bang Theory.
  6. My personal favourite excerpt, which is quoted in full:

[15] Some family trees have more barren branches than others.

[16] Larry testified about the many death threats he received from Catherine and members of her family around the time of, and in the months following, separation. I will mention some of them.

[17] In September of 2006, Larry went to live with his father “for a couple of days” to “clear my head”. When he returned to the matrimonial home, the locks had been changed. Larry stated in evidence: “Catherine didn’t want me on the property and her family threatened to have me killed.” [page260]

[18] Larry gave evidence that, less than one month later, Catherine “Tried to run me over with her van.” [See Note 6 below]

[19] On November 21, 2006, Catherine demanded $400 from Larry or her brother was “going to get the Hells Angels after me”. [See Note 7 below]

[20] On February 9, 2007, Catherine told Larry that she wanted him to sign adoption papers so that Sam could adopt their children. [See Note 8 below] Said Larry, “She threatened me with her brothers and Hells Angels again.”

[21] On August 13, 2007, Catherine’s niece (Donna), telephoned Larry “and told me I will get a bullet in my head if I don’t sign the adoption papers. She called back later and told me I’m as good as dead.” She called a third time, “to tell me her father and uncles are coming to kill me”. [See Note 9 below]

[22] The next day, Catherine telephoned Larry and said that she “wanted my truck or her brother and the Hells Angels are coming to get it and me”.

[23] On October 18, 2007, a nautical theme was added. According to Larry, “Donna Taylor, Catherine’s sister-in-law, yelled out her window that I was going to be floating in the canal dead.”

[24] As can be seen, Catherine and her relatives are one- dimensional problem solvers.

If you’re interested in taking a look at this curious case for yourself, here’s the link to the full decision!

https://www.canlii.org/en/on/onsc/doc/2010/2010onsc6568/2010onsc6568.html

 

 

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Amendments to Family Services Act in NB Considers Grandparents in Custody Matters

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The New Brunswick Government recently amended Section 129(3) of the Family Services Act to consider other parties, including grandparents’ access to their children. Section 129(3) of the Act used to state that “upon application the court may order that either parent or any person shall have access to a child”.  The New Brunswick Court of Queen’s Bench referred to this section in cases such as, G.G. v. J.W., 2008 NBQB 338 and Morecraft v. Morecraft (1991), 122 NBR (2d) 271 regarding whether grandparents have rights to access their granchildren. In GG, supra, Madam Justice D’Entremont referred to Morecraft, which stated “[t]here is no automatic right of access to third parties“. In an earlier post (see here), I noted the difficulty the wording of section 129(3) posed to questions regarding grandparent’s access to their grandchildren.

On May 5, 2017, the New Brunswick Government passed the bill–An Act to Amend the Family Services Act. This Act essentially replaces the current section 129(3) with the following:

129(3)Repealed: 2017, c.22, s.1

129(3.1)On application, the court may order, on the basis of the best interests of the child, that either parent, a grandparent, another member of the child’s immediate family or any other person shall have access to a child, whether or not an order for custody has been made with respect to the child.
129(3.2)An order under subsection (3.1) shall be made subject to the terms and conditions that the court determines.
129(3.3)On application by a grandparent or another member of the child’s immediate family, other than a parent or guardian, the court shall take into consideration the willingness of each parent or guardian of the child to facilitate access and the need for making an order for access.
129(3.4)An order under subsection (3.1) may provide that access be exercised in the form of visits, oral or written communication or by any other means of communication.
129(3.5)The court may vary or discharge an order under subsection (3.1) at any time.
These amendments broaden the items a judge must consider when making an order for access to a child to “grandparents” and “another member of the child’s immediate family.” In addition, section 129(3.4) specifies that access may be through visits or other means of communication (likely email, Facetime, Skype, etc.) These are likely welcomed changes for grandparents who have, until now, not been explicitly mentioned. As stated in my post <a href=”https://www.purvisculbertlaw.ca/proposed-changes-to-family-services-act-in-new-brunswick-to-consider-role-of-grandparents/”>here</a>, however, how these amendments affect grandparent’s access to their grandchildren will depend on how courts in New Brunswick interpret and apply these provisions in future
Here are some links to more information on these amendments:
– Copy of An Act to Amend the Family Services Act: https://www.gnb.ca/legis/bill/pdf/58/3/Bill-49.pdf
– Link to status of the bills in NB Legislature: https://www1.gnb.ca/legis/bill/print-e.asp?legi=58&num=3&page=4
– Link to current version of the Family Services Act: https://www.canlii.org/en/nb/laws/stat/snb-1980-c-f-2.2/latest/snb-1980-c-f-2.2.html

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She doesn’t want to go on access visits. Do I still need to send her?

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Like all family law issues, the question of whether to send a child on an access visit when the child expresses she does not want to go is fraught with difficulties. Courts have determined that the answer is ultimately fact specific. In Geremia v. Harb, 2007 CanLII 1893, Justice Quinn held that a custodial parent must do everything possible, even physically forcing the child, to ensure that the child attends access visits. He stated at follows at paragraph 44:

[44]   Mr. Wilson argues that our law does not require a parent, who wishes to avoid a contempt citation, to physically force a child to go on an access visit. I respectfully disagree with that argument as a general legal principle. Whether a child should be physically forced by the custodial parent to go on an access visit depends upon the facts of the case. Certainly, the force used should not be such as to cause physical harm to the child. And, although the specter of emotional harm is far more problematic, a custodial parent would be advised to ensure that the evidence supports such a risk before declining to physically force the child to abide by an access order for that reason. Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

(emphasis added)

At paragraph 38 in Germania, Quinn J. quoted Zuber J. in Singer v. Singer regarding situations where a parent is not actively denying access but the child does not wish to go and the parent is not forcing the child to go with the other parent:

[38]   What about cases where the custodial parent insists that he or she did not wilfully refuse access to the other parent but, instead, the child refused to go on the access visit? Two cases were cited by Mr. Wilson on this issue. The first one is Singer v. Singer (1974), 17 R.F.L. 18 (H.C.J.), where a father complained that the mother refused to comply with the terms of an access order. Zuber J. commented, at p. 19: [Counsel] has cited me an American authority, but it sounds very sensible to me and I would be prepared to follow it, that the mere whim of a child, that the child’s preference cannot be the governing factor in these matters.

 In L.C.M. v. B.A.C., 2010 NBQB 127 (CanLII), Walsh J. of the New Brunswick Court of Queen’s Bench quoted paragraph 44 of the Germania case and stated, “In my opinion those comments have application to the modified circumstances in the present case. It cannot be forgotten that S. is only 7 years old. ” However, Walsh J. noted that while the mother’s failure to send the child would normally be of great concern, given the father’s behaviour (unsubstantiated allegations of sexual misconduct) and the mother’s contributions to the alienated situation, an order for contempt was not appropriate. Walsh J. considered the best interests of the child and granted sole custody of the child to the mother but with unsupervised access to the father.

What stands out in these cases is that there are no “hard and fast” rules about whether to send a child on access visits or not. However, absent satisfactory reasons for not sending a child, Justice Quinn’s comments in Germania are instructive: “the job of a parent is to parent.” (emphasis added) In other words, both cases stand for the proposition that custodial parents should not refuse to send children on access visits based on the mere whims of the children in stating that they do not wish to go, unless there are substantiated reasons for refusing to do so. Another key takeaway from these cases is that parents who do not make reasonable attempts to ensure that children attend access visits may face allegations of contempt of court. (see for example, Cashman v. Cashman, 2014 ONSC 3581 (CanLII), distinguishing Germania but providing an instructive discussion of civil contempt in family law matters).

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Do grandparents have access rights to their granchildren?

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In contrast to some other provincial statutes, the Family Services Act in New Brunswick considers a child’s relationship with his/her grandparents as part of the definition of “best interests of the child”:

“best interests of the child” means the best interests of the child under the circumstances taking into consideration

(a) the mental, emotional and physical health of the child and his need for appropriate care or treatment, or both;

(b) the views and preferences of the child, where such views and preferences can be reasonably ascertained;

(c) the effect upon the child of any disruption of the child’s sense of continuity;

(d) the love, affection and ties that exist between the child and each person to whom the child’s custody is entrusted, each person to whom access to the child is granted and, where appropriate, each sibling of the child and, where appropriate, each grandparent of the child;

(e) the merits of any plan proposed by the Minister under which he would be caring for the child, in comparison with the merits of the child returning to or remaining with his parents;

(f) the need to provide a secure environment that would permit the child to become a useful and productive member of society through the achievement of his full potential according to his individual capacity; and

(g) the child’s cultural and religious heritage;

 Section 129(3) of the Family Services Act allows for a parent or “any person” to apply to the Court for an order for custody or access on the basis of the best interests of the child test.

Since the Supreme Court of Canada case of Young v. Young, [1993] 4 S.C.R. 3, [1993] S.C.J. No. 112, courts in Canada have recognized that the “best interests of the child” test is the only test applicable to child custody disputes. Therefore, it’s technically incorrect to think of parent’s or grandparent’s rights, as they do not have rights to access; children have rights to contact with both parents and their family, as determined through the lens of the “best interests of the child” test.

In G.G. v. J.W., 2008 NBQB 338, Madam Justice d’Entremont dealt with the sole issue of whether a grandparent is entitled to specific access to a grandchild. At paragraph 26, Justice d’Entremont referred to the case of N.F. v. H.L.S. (1999) 127 B.C.A.C. 66, in which the British Columbia Court of Appeal stated at paragraph 8:

  1. The onus in on the applicant to demonstrate that the proposed access in in the child’s best interests.
  2. The custodial parent has a significant role. The courts should be reluctant to interfere with a custodial parent’s decision and should do so only if satisfied that it is in the child’s best interests.
  3. It is not in the best interests of a child to be placed into circumstances of real conflict between the custodial parent and a non-parent. While the court must be vigilant to prevent custodial parents from alleging imagined or hypothetical conflicts as a basis for denying access to non-parents, in cases of real conflict and hostility, the child’s best interests will rarely, if ever, be well served by granting access.

Justice D’Entremount also referred to the Decision of the Court of Queen’s Bench of New Brunswick in Morecraft v. Morecraft (1991), 122 NBR (2d) 271 at paragraphs 26 to 29. Paragraph 26 states:

[26] While the “best interests” must remain paramount, the considerations revolving around the issue of access to third parties, including blood relatives, are far different from those involving natural parents. There is no automatic right of access to third parties. Great weight must be given to the wishes of the custodial parents and care must be taken not to unduly interfere with the parents’ inherent right to determine the course of their child’s upbringing.

 Given the facts of the case—being a relationship characterized by friction and animosity between the parents and grandparents—Justice d’Entremount decided that the grandmother, G.G., had not met the onus set out in the N.F. case of proving that the proposed access was in her grandchild’s best interests.

The approaches of Justice d’Entremount in the G.G. case and the Court in Morecraft underscore a tension between the rights of parents to make decisions for their children (i.e. not to see their grandparents) and the interests of children to have a relationship with their grandparents. Given these conflicting interests, Canadian courts have decided cases regarding grandparents’ access to their grandchildren on a facts-specific basis. In “Grandparent-Grandchild Access: A Legal Analysis” (Paper Presented to the Family, Children and Youth Section, Department of Justice Canada, Her Majesty the Queen, 2003)< http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/2003_15/pdf/2003_15.pdf >, Dan L. Goldberg outlines at pages 17-21 four classifications of cases in which courts have decided on grandparents’ access to their grandchildren:

  1. Intact families in which access was denied;
  2. Intact families in which access was granted;
  3. Single-parent families in which access was denied;
  4. Single-parent families in which access was granted;

In the cases in which access was denied, the courts typically acknowledged that the parents were adults and had rights to parent their children as they saw fit. Where access was granted, the courts usually noted the grandparents were responsible individuals with strong relationships with their grandchildren, which were beneficial to the children’s development. Absent abuse or neglect, courts are hesitant to interfere with parents’ rights to make decisions regarding their children. Thus, grandparent access is best facilitated through the parents. Admittedly, this is a “perfect world solution”, which may not always exist within many family dynamics.

 

 

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