"I want the Judge to speak to my child" - BlogBite

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Question: "My son, who is 6, has told me over and over again that he wants to live with me and not his mother. I want him to tell the Judge that. Judges speak to children to find out what they want, correct?"

Answer: When a Judge in Ontario considers a child-related issue (but not child support), he/she is expected by the legislation to take into account the views a child expresses as to the situation. It is important to realize that this is only one of the many factors a Judge is to take into account, and is not determinative of (does not decide) the issue.

That being said, those expressed views are to be considered having regard to the child's age, maturity, and ability to express themselves clearly and consistently. Further, the Judge must determine whether the views expressed, if any, are really those of the child and not of either of the parents, through the child.  If there is any general rule to be drawn from the legislation and related case law, it is that the younger the child, the less likely the Court is to take into consideration the child's views and preferences.

Judges rarely speak to children directly. That happens only in rare and unique circumstances. Children's voices come before the Court in a variety of other ways, which will be the subject of another post. Stay tuned.

Have more questions? Call us!

Christmas Access Tips......

(re-posting a previous Blog post, on a subject about which we receive many questions...)

With the holidays approaching, many parents are thinking of and planning for Christmas access. Here are some basic tips:

1. Plan and prepare early. Give yourself and the other parent a reasonable opportunity to propose a schedule to each other, discuss it and confirm it. Leave room and time for some negotiation.

2. Always think of your child/children first. This may sound like the most basic of concepts but, surprisingly, it gets lost in so many fights about access over the holidays. This is a special time for kids - yes, it's a special time for you as well but they, and not you, are waiting for presents and the smell of gingerbread. Make the holidays as stress-free for kids as possible - this includes not having to watch parents fight or to hear one parent making disparaging comments about the other.

3. If you plan on travelling with your child/children, advise the other parent as much in advance as possible. Draft, sign and have notarized a detailed Travel Consent so that you are less likely to be turned away at the border when travelling for your holiday. Give the other parent (and include in the Travel Consent) detailed information about your destination, method of travel and contact information.

4. If you and the other parent cannot agree on holiday access, one of you may have to ask the Court to assist. Family Courts are very, very busy before the holidays, precisely because of numerous requests for assistance with access. Try and not be the parent sitting in Court for hours, waiting to be heard by a stranger to your family, a Judge, to make a decision about your children over the holidays. Work with the other parent.

5. There are many different ways of handling the holiday access schedule. For example, you can divide the school holidays in half and alternate those two halves, year to year. Or, you can alternate just Christmas Eve and Christmas morning. Other alternatives are available. Speak to a family law lawyer to assist you and tell you about other choices.

Above all, have a safe and restful holiday season....

Parenting Plan

When family law lawyers use this term in Ontario, they are usually talking about a multi-page document which creates a "road-map" for parents on how to deal with their child(ren) and each other after a separation.

A Parenting Plan may be authored by a variety of people. Many Parenting Plans are the result of negotiations between Mom and Dad, with the assistance of lawyers. Other Parenting Plan result from the recommendations by professionals involved, for example, in a custody/access dispute. An assessor under section 30 of the Children's Law Reform Act can be one such person. Mom and Dad might also have met with a mediator to work out the terms of a Parenting Plan and if successful, that document would contain all the agreed-to terms.

Parenting Plans in Ontario can address a whole host of issues relating to children. Here are some examples:

1. who will make decisions about major issues in the children's lives (custody).
2. where the children will live (residence).
3. if the children will live mainly with one parent, much often and when specifically the other parent will spend time with the children (access).
4. whether the parents can move with or without the children (mobility).
5. what the protocol will be if a child requires emergency care when in the care of one parent.
6. what happens when access is missed.
7. what happens if one parent cannot care for the children on their time.
8. who, other than the parents, can look after the children.
9. how holidays and special occasions will be shared.

This is not a complete list of issues covered by Parenting Plans - they differ from family to family depending on the particular needs of the children and their parents.

Some Parenting Plans, particularly in high-conflict cases, include the appointment of a Parenting Coordinator (commonly known as a "PC") - usually, this person assists the parents in resolving their disputes and depending on the parties' agreement, may have arbitral powers, meaning, they can actually be empowered to break any deadlocks and made final decisions.

A thorough, thought-through Parenting Plan is an invaluable tool for separated parents. It can help immensely on the road ahead, particularly during periods, as there are in life in general, when the separated parents are not getting along very well.

Christmas access tips....

With the holidays approaching, many parents are thinking of and planning for Christmas access. Here are some basic tips:

1. Plan and prepare early. Give yourself and the other parent a reasonable opportunity to propose a schedule to each other, discuss it and confirm it. Leave room and time for some negotiation.

2. Always think of your child/children first. This may sound like the most basic of concepts but, surprisingly, it gets lost in so many fights about access over the holidays. This is a special time for kids - yes, it's a special time for you as well but they, and not you, are waiting for presents and the smell of gingerbread. Make the holidays as stress-free for kids as possible - this includes not having to watch parents fight or to hear one parent making disparaging comments about the other.

3. If you plan on travelling with your child/children, advise the other parent as much in advance as possible. Draft, sign and have notarized a detailed Travel Consent so that you are less likely to be turned away at the border when travelling for your holiday. Give the other parent (and include in the Travel Consent) detailed information about your destination, method of travel and contact information.

4. If you and the other parent cannot agree on holiday access, one of you may have to ask the Court to assist. Family Courts are very, very busy before the holidays, precisely because of numerous requests for assistance with access. Try and not be the parent sitting in Court for hours, waiting to be heard by a stranger to your family, a Judge, to make a decision about your children over the holidays. Work with the other parent.

5. There are many different ways of handling the holiday access schedule. For example, you can divide the school holidays in half and alternate those two halves, year to year. Or, you can alternate just Christmas Eve and Christmas morning. Other alternatives are available. Speak to a family law lawyer to assist you and tell you about other choices.

Above all, have a safe and restful holiday season....

What is a "nesting arrangement"?

A nesting arrangement, also known as a "bird's nest arrangement" or "bird nesting arrangement" is one in which a child or children continue to live in the residence which was their home at the date of their parents' separation.  This, in and of itself, is not uncommon post-separation but here, the parents' time with the child/children is based on their moving in and out of the home for fixed periods of time. Just like birds taking turns to look after eggs or chicks in a nest, these parents return to the home based on a fixed schedule while the children continue to live in the home without interruption.

All residential arrangements for children have their unique pros and cons. Some argue that nesting arrangements are least disruptive to children's lives.  For example, they enable the child/children to continue to attend the same school and to maintain their peer relationships and activities. On the con side, the nesting arrangement means that the parents need to obtain their own accommodations for those periods of time when they are not residing in the home with the child/children. In other words, three separate residences are involved (one for the children and two for each of the parents). The reality is that a true nesting arrangement is possible only in cases where the parents' financial means permit it. It can be expensive.

Nesting arrangements can only work in situations in which the parents remain civil and cooperative with each other. There are many reasons for this.  By way of one example, if a nanny is involved, cooperating parents will continue to have the same nanny assist the children/parents when both parents are in the home. If parents are not cooperative with each other, one parent might, for example, insist on a care arrangement for the child/children which is different than what the other parent wants (e.g. not a nanny). This creates a logistically difficult situation, for all concerned including the nanny.

In our view, nesting arrangements are feasible only on a temporary basis. It is difficult to imagine two adults (the parents) continuing to reside in two residences on more than a temporary basis.

When it comes to children's residential arrangements, there is a number of reasonable alternatives which we discuss elsewhere in this blog. If you are interested in exploring these alternatives further, we suggest you speak to a lawyer who has experience in this area.

 Park of Schunbrunn ~ Gustav Klimt (1916)

What is "custody"?

In Ontario family law, the word is generally used in reference to decision-making about a child or children.
In general terms, a parent who has sole custody of the child makes, on their own, all major decisions about that child’s health, welfare and education. Parents who are joint custodians make such decisions together. There is also the concept of "parallel parenting" which I will address in a future post.

Please note that a child’s custodial parent may be different from that child’s residential parent. “Residence” refers to where the child lives. For example, the parents of a child may be that child’s joint custodians but the child may live primarily with Dad.

The use of the phrase “shared custody” in the Child Support Guidelines (both federally and provincially) has caused some confusion. In the Guidelines, the term refers to a situation where the child essentially has two homes and spends some time with one parent and the rest of the time with the other. In this particular instance, the word “custody” is used to denote the child’s residential arrangements but this is an exception to the general rule outlined above with respect to the use of these phrases.