"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....

"Normal" or "usual" access schedule

We are frequently asked by parents about a "standard" or "normal" access schedule. Is there such a thing?

Not really ~ access schedules vary with families, the parents' work commitments and the child's/children's needs but there are some patterns (assuming parents are not sharing the children's residence), for example:

1. Alternating weekends, with a mid-week visit. Here, there may be variations as to:

a. the beginning and end of the weekend access (eg: Friday after school or Saturday morning (for the start) and Sunday evening or Monday morning at school (for the end);

b. the duration and frequency of the mid-week access - it may be an overnight or just dinner, for example. It may also be limited only to weeks which do not end with the access parent's weekend.

2. alternating Saturdays and Sundays (with the parents sharing each weekend but alternating as to the day);

There are a number of other variations of the above themes, depending on each family's needs.  The keys to making any access arrangement work, for the children and the parents, are:  open minds, good faith, patience and a recognition that children must never be caught up in disputes between their parents.

Amedeo Modigliani - Seated Woman in Blue Dress - 1918

Your child is watching....

Children are very much in tune with the moods of their parents. They frequently follow by example and this is particularly true in cases of separation, when a child is stressed and unsure how to feel.

The point is that your child is watching you and is likely to mimic your behaviour and your attitude towards the other parent. If you are hostile, the child, especially when very young, is likely to perceive that as the expected reaction. If you are cooperative with your spouse, the child is likely to "buy into" a schedule, for example, or a plan proposed by both parents. Access is a classic example. If you are opposed to access and speak negatively about your spouse, the child is likely to pick up those signals and act accordingly: ie: refuse access. If you are encouraging of your child's contact with the other parent, your child is likely to follow by example.

Remember, you child is watching!