Relocation and Abduction Cases Continue to Confound Courts: Part 2

With very few family law cases receiving leave from our highest court, the Supreme Court of Canada continues to take an interest in relocation and child abduction cases with its latest pronouncement in F. v. N. [2022] S.C.J. 51.

In a 5-4 decision, which indicates the difficulty these cases pose, the court considered a child abduction case concerning a Pakistani citizen living in Dubai with his wife, who was a citizen of Pakistan and Canada. Their two children had Canadian citizenship but had lived in Dubai their entire lives and were taken by their mother to Ontario to visit their maternal grandparents.

Part one of this series examined the Ontario Superior Court and Ontario Court of Appeal decisions. Part two discusses the Supreme Court of Canada decision.

SUPREME COURT DECISION

The Supreme Court noted that in Canada the provinces treat child abduction in non-Hague cases in a manner methodologically comparable to cases under The Hague Convention on the Civil Aspects of International Child Abduction, by declining to decide parental disputes on the merits and by favouring the return of children to the jurisdiction of their habitual residence. Ontario’s provincial legislation presumes that following an abduction, a child’s best interests are aligned with their prompt return to the jurisdiction of habitual residence, unless there are exceptional circumstances. 

Focusing on the issue of “serious harm” the court said that it is not enough to argue that returning a child to his or her habitual residence would have a negative impact on the child; it must focus on the particular circumstances of the child, rather than a general assessment of the society to which they are sent back.

While the opportunities, social conditions and economic circumstances of a country may play a role in a custody decision on the merits, these issues are not a basis for finding that a child would suffer “serious harm” if returned. In deciding jurisdiction, judges should not compare the living conditions each country may offer.

The standard for “serious harm” may be usefully compared to the definition in The Hague Convention: “a grave risk of harm or an intolerable situation” provided for in Article 13 (1)(b). However, the language in The Hague Convention is not found in the provincial legislation, and it must be accepted that the provincial legislature intended a less stringent test.

With regards to the mother’s argument that a separation between her and the children constituted “serious harm,” the court said that the analysis must be individualized and that a presumption that separation between parent and child will lead to serious harm would effectively encourage parents to rely on their status as primary caregivers to circumvent due process and risk making Ontario a haven for child abductions.

Because the mother testified that she would not return to Dubai, the court examined whether a parent’s refusal to return created “serious harm” and whether this self-induced behaviour legitimately could be used as the foundation for a finding of “serious harm.” Relying on an English case, the court quoted C. v. C. (Minor: Abduction: Rights of Custody Abroad), (1989) 2 All ER 465 at p. 471:

“An obvious strategy for a primary care abductor is to state that she is not prepared to return with the child and that the consequent separation from her will cause the child psychological harm. Such claims are almost invariably rejected by most courts …
The court also considered whether foreign law could ever be a source of “serious harm,” stating that where foreign laws are profoundly irreconcilable with Ontario law it might support a finding of “serious harm;” however, where the foreign test is the best interests of the child, nuances in the law may not be sufficient to unseat this paramount criteria. In these cases, expert evidence on foreign law will be mandatory.”

The expert testimony revealed that United Arab Emirates (UAE) law provides that a mother’s custodial rights could be terminated if she remarried, or when a male child reaches the age of 11 or a female child turns 13; however, the expert evidence accepted by the trial judge confirmed that these provisions do not automatically apply and are determined through a “best interests of the child” lens.

Finally, while the mother declined to make submissions with respect to the father’s voluntary undertakings such that the trial judge did not make them part of his order, the high court reviewed the undertakings and ordered that they be incorporated into a consent order in the UAE.

Four judges of the court would have allowed the appeal, finding that the trial judge misapprehended the evidence relating to the likelihood the children would suffer “serious harm” if separated from their mother. The dissenters rejected the suggestion that the mother had “self-engineered” her claim of “serious harm” by refusing to return to Dubai, citing legitimate concerns about her status as a woman in the UAE. Those concerns included the lack of serious response by authorities to domestic violence victims; the need for her husband to consent to her obtaining a driver’s licence; her fear that her husband would override her ability to be an equal parent to the children; and her inability to obtain a residency permit as a divorced non-national.

Family law cases on the relocation of children, whether as a result of self-help measures, such as abduction, or pursuant to the provisions on relocation in provincial statutes or the Divorce Act, remain the most challenging cases for parents, counsel and the bench. This 5-4 decision illustrates the complexity and diversity of opinions by learned jurists who apply the same law but with vastly different outcomes.

Lawdiva aka Georgialee Lang

This article was originally published in Law 360, formerly The Lawyer’s Daily, a publication of Lexis Nexis Canada.

Relocation and Abduction Cases Continue to Confound Courts: Part 1

With very few family law cases receiving leave from our highest court, the Supreme Court of Canada continues to take an interest in relocation and child abduction cases with its latest pronouncement in F. v. N. [2022] S.C.J. 51.

In a 5-4 decision, which indicates the difficulty these cases pose, the court considered a child abduction case concerning a Pakistani citizen living in Dubai with his wife, who was a citizen of Pakistan and Canada. Their two children had Canadian citizenship but had lived in Dubai their entire lives and were taken by their mother to Ontario to visit their maternal grandparents.

Ontario Superior Court decision

An 11-day trial in Ontario was prompted by a mother who departed Dubai with her two young children, to ostensibly vacation in Ontario with her husband’s consent and return tickets in her pocket. Several weeks after arriving she informed the children’s father that she wished to remain in Ontario where her family resided. The father immediately initiated proceedings under s. 40 of the Children’s Law Reform Act (the Act), arguing that the Ontario court should decline jurisdiction and that the United Arab Emirates should determine all parenting issues. It must be noted that the UAE is not a signatory to The HagueConvention on the Civil Aspects of International Child Abduction.

The mother responded by seeking sole custody, alleging that the children’s father was “ill-tempered and aggressive” and that he be granted limited access to the children. She also argued that s. 40 ofthe Act offended various rights pursuant to the Canadian Charter of Rights and Freedoms.

At the same time, the father filed divorce proceedings in Dubai and was granted a divorce in March 2021. The mother did not participate in the Dubai proceedings. Prior to the Ontario court hearing the father presented a “with prejudice” offer to his wife with undertakings contingent on her returning to Dubai with the children. These included purchasing a home in her name, that the children would live primarily with her, and that major decisions would be made jointly. He suggested a consent order in Dubai and agreed that the mother would be free to contest the conditions offered by him in court in Dubai if she so wished. No response was made to the husband’s proposal.

The issue before the court was whether Ontario should take jurisdiction, and if the court did take jurisdiction, whether to order the return of the children to Dubai.The court found that both were loving and caring parents and while the mother had been the children’s primary caregiver, a nanny had provided substantial assistance. Unfortunately for the mother, the court found that she lacked credibility and did not accept her evidence of incidents of physical aggression on the part of the children’s father, and it discounted her claims of religious discrimination and social isolation.The mother also downplayed the role of the family’s nanny, which contradicted her husband’s evidence. More importantly, while testifying that she supported co-parenting, even joint custody, her draft final order provided “anything but lots of access.”

Finally, the mother’s own expert witness on the law of the UAE was “devastating” to the mother’s case, eviscerating the mother’s evidence that the law in the UAE did not endorse the best interests of the child as the paramount factor in a custody decision. The mother was invited by the court to make submissions on how the father’s undertakings could be incorporated into a court order, but she chose not to do so. The court declined jurisdiction under the provincial legislation and its “parens patriae” authority, ordered the return of the children to Dubai, and made the following findings:

a) There was no evidence of a risk of physical harm if the children were returned to Dubai;

b) There was circumstantial evidence that the children could be at risk of emotional or psychological harm if they returned to Dubai without their mother, but the harm did not satisfy the “serious harm” test;

c) There was no evidence that the court system in Dubai would not apply the best interests ofthe child test;

d) The evidence proffered indicated that the Dubai court would approve and enforce the proposed settlement offer made by the father, if agreed to by the mother.

Ontario Court of Appeal decision

On appeal to the Ontario Court of Appeal, the majority dismissed the appeal and upheld the trial judge’s order that the children be returned to Dubai, with one dissenting judge who concluded that the trial judge had erred in his assessment of “serious harm” and that the Ontario court had jurisdiction to make a parenting order under the Act. The Appeal Court also dismissed the mother’s appeal with respect to the constitutional arguments and the Supreme Court of Canada declined to grant leave on the Charter issues.

This is part one of a two-part series. Part two will examine the Supreme Court of Canada decision.

This article was originally published in Law360, formerly The Lawyer’s Daily, a publication of Lexis Nexis Canada.

Lawdiva aka Georgialee Lang

Fractured parent/child relationships: The side effects of high conflict divorce

In the case of Kudrocova v. Kronberger 2023 ONCA 26, a family in crisis agreed to a final custody order in 2016 which provided for a shared week on/week off parenting of girl/boy twins born in 2009. The order was confirmed in May 2019 and additional terms were added considering the continuing conflict between the parents, including a requirement that the parties attend coaching and counselling based on recommendations from counsellors from the “New Ways for Families” program.

The children’s mother, Claudia Kudrocova, was given final decision-making authority for the children’s education and the order was reviewable without a material change in circumstances after the counselling program was completed. Unfortunately, while the order was well-intentioned, the counselling was ineffective and the parties remained polarized, with the young boy refusing to see his mother and living with his father, Ferdinand Kronberger, in Brantford, Ont., and his sister residing exclusively with her mother in Cambridge, Ont., and refusing to see her father.

Each party brought an application in the fall of 2019. The mother sought sole custody of her now 10-year-old son with no access to his father. The father sought sole custody of his son and was content to let his daughter stay with her mother despite his misgivings. Because the May 2019 order gave decision-making on education to Kudrocova, the parties’ son lived in Brantford but attended school in Cambridge at his mother’s insistence, about 30 minutes away. This was an additional source of conflict between the parties.

A Views of the Child Report was conducted by the Office of the Children’s Lawyer in December 2019, which revealed that each child saw the parent with whom they lived as innocent and identified the other parent as the problem. The parties’ son indicated that he wished to remain with his father and attend school in Brantford, but would consider having contact with his mother every other weekend if his sister visited her father every other weekend. She expressed a willingness to do so if it was reciprocated. As it was, neither twin had seen the other outside of school since late 2018.

Kudrocova alleged parental alienation and sought to eliminate Kronberger from her son’s life. However, the court noted that she had no plan to address the alleged alienation and had not considered counselling, therapy or any other type of intervention for her son. The court determined that each parent had, consciously or not, encouraged a child to align with them and against the other parent, and reluctantly concluded that reunification therapy was unlikely to be successful without all parties and the children buying into it.

The court ultimately ordered in March 2020 that Kronberger would have sole custody of his son and Kudrocova would have sole custody of her daughter. Each parent would have sole decision-making authority over the child in their custody. The children were ordered to spend one Saturday every second weekend with the other parent. The motions judge left the door open for the parties to return to court if there was a concrete proposal for further therapeutic intervention (see Kronberger v. Kudrocova 2020 ONSC 1877.

Kudrocova appealed the court’s decision and submitted new evidence that the Saturday visits had been suspended because of incidents that erupted at her home during a visit. Her first ground of appeal was that the motion judge erred in making the orders in the absence of a material change of circumstances. This ground was quickly dispensed with as the May 2019 order specifically provided that custody was reviewable after the counselling program was completed, without the necessity of showing a change in circumstances. Her second ground of appeal was that the issue of parental alienation required a trial with viva voce evidence. However, the appeal panel pointed out that the hearing in the court below was based on affidavits and no one had requested oral evidence. Also, no one took the position that a trial was required to resolve the outstanding issues, nor was there any indication that the court below lacked sufficient evidence to make its determination.

Finally, the Appeal Court stated that the status quo at the time of the hearing in the court below was that each child lived with their preferred parent and the court’s order merely affirmed the existing situation. The new evidence was admitted, but the appeal was dismissed with costs to the father.

Lawdiva aka Georgialee Lang

**This article was first published in The Lawyer’s Daily, a publication of Lexis Nexis Canada.

SPECIAL COSTS AWARD AGAINST LAWYER REVOKED

The subject of “costs” in court cases is often an enigma to clients. What are costs? When will you have to pay the opposing party’s costs?, and other similar questions.

Costs are awarded to the substantially successful party in civil and family court cases. Judges have determined that substantial success amounts to success on 70% of the legal issues decided by the court. For example, if you go to court seeking child support, spousal support, occupation of the family home, and a restraining order and are successful on three out of the four issues, you will likely receive costs. 

These costs are called “party-party” costs and are not equal to the legal fees you have expended, but rather are a contribution by the losing party to the winner, usually representing about 30% of actual fees.

Costs are also not required to be paid during the litigation process, but are calculated according to a schedule in the Rules of Court and payable at the conclusion of a lawsuit.

Where a litigant’s behaviour in the litigation is deserving of punishment or rebuke, the court can order the litigant to pay “special costs” to the opposing party. Special costs are usually about 90% of the successful party’s legal fees. The kind of behaviour that attracts special costs is conduct described as “outrageous, high-handed,and reprehensible”.

In a few rare cases judges have ordered a litigant’s lawyer to pay costs to the opposing party. 

The recent case of Nuttal v. Krekovic 2018 BCCA 341 is an example of such a case. Mr. Krekovic was acting for a client who was injured in a hit and run motor vehicle accident outside a local pub. His client suffered significant injuries. Unfortunately, after an exhaustive RCMP investigation the driver of the vehicle, who fled the scene, could not be identified. 

Mr. Krekovic hired several private investigators but nothing further turned up. After two years of inquiries, Mr. Krekovic received vital information from a lawyer who represented the bar where the accident took place. This lawyer provided Mr. Krekovic with the name and birthdate of the alleged driver. Mr. Krekovic recognized the name of the alleged driver as it had come up during earlier investigation. After further inquiries it became obvious that the alleged driver had a common surname in the East Indian community, Dhillon, and there was some concern to identify the correct man.

Once Mr. Krekovic was satisfied that he done all the due diligence he could, he applied to the court for an order to add Dhillon’s name as a respondent in the lawsuit. He served the alleged driver with the court order and also informed the RCMP so they could re-open their investigation. Shortly after serving Dhillon, his lawyer contacted Mr. Krekovic and advised he had the wrong man. This was followed by a phone call from counsel for the bar who said he had made a mistake. Mr. Krekovic immediately advised Dhillon’s lawyer that he would discontinue the action against his client.

Mr. Krekovic offered to have his client pay party-party costs to Mr. Dhillon, but Dhillon wanted more. He sued Mr. Krekovic for special costs and convinced a judge that his actions were “indefensible and an abuse of process meriting sanction in the form of an order of special costs payable by him personally”. 

The judge found that had the judge who made the order adding Dhillon as a party to the lawsuit known there was a possibility of multiple persons with the same name and similar birthdates, she would not have made the order.

Mr. Krekovic appealed the special costs order to the Court of Appeal, who allowed his appeal and revoked the special costs order. The Appeal Court said:

“…an award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice. This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate…”

In my view, Mr. Krekovic did everything he could do to identify the correct driver, and when notified of the error, he immediately took steps to terminate the court action against him. His unintentional mistake should never have resulted in an order for costs. It has been said that to penalize lawyers for mistakes, errors, or even negligence by way of special costs would undoubtedly put a damper on lawyers zealously representing their clients. 

Lawdiva aka Georgialee Lang

Court Cannot Order Parties into Arbitration or Limit Child Support Variation Applications

In SSG v. SKG 2022 ABCA 379 Canlii, after a 26-day trial involving a high-conflict couple, the court made orders for a detailed parenting plan for two children, ages 9 and 10-years old, retroactive and ongoing child support payable by the father to the mother, and an order that the parties retain a parenting coordinator with arbitration authority to “resolve the day to day conflict that may arise related to the detailed parenting plan or in relation to any conflict over joint decisions.” The court also ordered that the parties could not bring an application to vary child support unless the father’s line 150 income deviated upwards or downwards by more than 20% and the mother could not bring a variation application based on a decrease in her income.

The parties, who had been married for 7 years, set down a 10-day trial which ballooned into 26 days and generated hundreds of pages of written submissions. Both parties indicated a willingness to have certain issues arbitrated, however, after the trial reasons were handed down on February 14, 2022, they appeared again before the court on July29, 2022 to resolve several outstanding matters. Because they disagreed on the form of order for the July 29 hearing, the trial judge drafted the order which read:

” Within 30 days of the date of this Order, the parents shall retain a Parenting Coordinator with arbitration powers, the cost of which shall be shared equally between the parties. If the parties cannot agree on a Parenting Coordinator they will remain Krysta Oswald.

When first retained, the Parenting Coordinator shall be provided with all reports, judgments, prior arbitration awards, and court orders and shall speak to Dr. PP, Ms. R. and Dr. F.”

Before the order was made the children’s mother made the following submission to the court:

” I have thought about that a lot. We have participated in parenting coordination multiple times. Everybody agrees it’s been nothing short of a disaster. It is expensive and now there is a mountain of paper that I understand the court says…before we go see somebody, they have to go through that and then they have to consult all these people. I don’t see that very likely to get a timely decision about anything that comes up.”

The mother appealed both the arbitration order and the order restricting a child support variation.

The appellate court determined that the trial judge had no authority to impose arbitration on the parties, relying on Durocher v. Klementovich 2013 ABCA 115 where the court said:

…it is a principle of access to justice that the parties can bring any dispute they may have to the Court…if would be extraordinary to decline to decide, must less compel the parties to submit to a private adjudicator….a court of competent jurisdiction does not permit the delegation of that power to private arbitrators. An obligation to arbitrate must be founded in a statute or an agreement.”

With respect to the order restricting applications to vary child support, the appeal court accepted that the trial judge was “well-intentioned” and wished to discourage litigation, but nothing in the Divorce Act or the Child Support Guidelines authorized him to limit the circumstances in which a variation application could be made.

The mother’s appeal of both issues was allowed and the orders were set aside.

Lawdiva aka Georgialee Lang

Misconduct and Lack of Contribution are not Grounds for Reapportionment of Property

In He v. Guo 2022 BCCA 355 the court considered whether a false immigration complaint levelled by Mr. He against his wife of 3 ½ years was a proper consideration for a 100% reapportionment of property owned by Ms. Guo in her favour. 

The facts revealed that after an online connection, the parties began living together in November 2014 and separated in early 2018. Ms. Guo was in Canada on a visitor’s visa with her 10-year-old son who had a student visa. She purchased a home in August 2014 where the parties resided. 

During the marriage Mr. He agreed to support her and her son’s applications for permanent residency status by giving a financial undertaking. Permanent residency was granted in December 2017. But apparently angered by their separation he filed a document with Immigration Canada titled “Immigration Marriage Fraud Report” in April of 2018 asserting that the marriage was a fraud. He also alleged that Ms. Guo had “beat him, threatened a witness and was dating some men for money”. 

The trial judge rejected Mr. He’s allegations which should have been the end of it, but the judge invoked section 95 of the Family Law Act which provides for an unequal division of property based on “significant unfairness” and found that it would be significantly unfair to condone Mr. He’s “malicious act of filing a baseless Immigration Marriage Fraud Report”. This together with the trial judge’s findings that Mr. He contributed very little to the family property led him to reapportion the property entirely to Ms. Guo. 

The factors for reapportionment in section 95 are as follows:

• The duration of the relationship;
• The terms of any agreement;
• A spouse’s contribution to the other spouse’s career or career potential;
• Whether a spouse caused a significant increase or decrease in the value of family property;
• The fact that a spouse substantially reduced the value of family property or disposed of or converted family property causing the other spouse’s interest to be defeated or adversely affected. 
• Any other factor that may lead to significant unfairness; 
• The extent to which the financial means and earning capacity of a spouse has been effected by the responsibilities and other circumstances of the spousal relationship in relation to the objectives of spousal support. 

Earlier appeal cases confirm that the “threshold for departing from equal division of property is high”. VJF v. SKW 2016 BCCA 186 and Khan v. Gilbert 2019 BCCA 80. 

The issue of using section 95 to compensate for misconduct was considered in Singh v. Singh 2020 BCCA 21 where a bad faith bankruptcy was filed to avoid paying the claimant’s costs in respect of a property. This behavior was  not characterized as “family violence”, unlike the finding in He v. Guo. However, in Singh Madam Justice Garson said:

…I must consider whether the factors the judge relied on are properly the subject of a s. 95 (2). In my view, they are. The economic characteristics of a spousal relationship would clearly…permit consideration of the costs of bankruptcy and a party’s motivation for entering bankruptcy…and the consequent impact on the value of the asset…”

The court in He v. Guo held there was nothing in section 95 that indicates that family violence should be awarded special consideration absent impact on the “economic characteristics of a spousal relationship.” Ms. Guo testified that she was emotionally shaken by her husband’s conduct but led no evidence that his report to Immigration caused any negative financial consequences or otherwise hindered her self-sufficiency. The court stated:

“In these circumstances, reliance on the malicious filing of a baseless report to reapportion property amounts to an award akin to damages for misconduct or, at the further extreme, punitive damages for misconduct. Neither, in my view, is contemplated by the applicable provisions, and is contrary to the determined attempt to eradicate general enquiries on the relative conduct of parties as a feature of family litigation, absent conduct relevant to the particular relief claimed in the proceeding.” 

With respect to Mr. He’s limited financial contribution to property as a reason to reapportion the property entirely to Ms. Guo, the court held that to find that a spouse of modest income loses the presumptive equal sharing by reason only of having made a small financial contribution is contrary to the Family Law Act and an error in law. 

The appeal court set aside the trial decision and granted Mr. He a 20% interest in the family property. 

**This article was first published by The Lawyer’s Daily, a publication of LexisNexis Canada.

SCORCHED EARTH LITIGATION: DETRIMENTAL TO CHILDREN AND A BURDEN ON SCARCE JUDICIAL RESOURCES

In a family law case that was described as a clear example of the need for judicial economy and consistency, which  invoked the integrity of the administration of justice, the court acceded to the claimant wife’s application to declare findings of fact in previous litigation between the same parties unassailable in their subsequent matrimonial litigation. This family law case, KS v. JTP 2022 BCSC 1727 included the matter of whether the children’s mother ought to be able to relocate with the children to Germany, her original home. 

 In an earlier 16-day civil trial where the wife, KS, received a damage award of almost $800,000 and special costs for multiple instances of domestic violence, the family court judge ruled that it would be an abuse of process to allow the husband to challenge the factual findings made by the civil trial judge in three separate hearings, described as the “Adjournment Decision, the “Merits Decision”, and the “Costs Decision”, despite his pending appeals of two of these orders. 

In the family litigation the parties had engaged in at least fourteen contested interlocutory applications wherein the husband had filed 29 affidavits and the wife filed 16.  The findings of fact from the civil trial included egregious incidents of spousal abuse, some in the presence of the children, leading to injuries to the wife that included a concussion, a mild traumatic brain injury, and significant psychological injuries which were the result of malicious, humiliating and oppressive behavior on the husband’s part. 

 The court also referred to the husband’s attempts to remove the wife’s civil counsel before the trial by alleging a conflict of interest. When that was not successful he reported the wife’s lawyer to the Law Society in a complaint that was summarily dismissed. 

 The civil court judge found that the husband’s testimony was not credible, but family trial judge Madam Justice MacNaughton determined that she would make her own findings with regards to the credibility of the parties and that credibility findings in earlier  litigation was only one consideration. 

She then reviewed the doctrine of issue estoppel highlighting the three necessary conditions, noting that the law was inconsistent with respect to the “finality” of a decision under appeal:

1)     that the same question has been decided;

2)     that the judicial decision which is said to create the estoppel was final; and,

3)     that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

However, Justice McNaughton decided she did not need to consider the finality issue as she determined that it was more appropriate to view this case under the abuse of process doctrine. 

Relying on Gonzalez v. Gonzalez 2016 BCCA 376 she affirmed that abuse of process engages the court’s inherent power to prevent the misuse of its procedure in a way that would be unfair to a party, or bring the administration of justice into disrepute. 

She also noted that the abuse of process doctrine is more flexible, precluding re-litigation where one or more of the requirements of issue estoppel were not met and stating that in the doctrine of abuse of process the principles of judicial economy, consistency, and finality were significant, and that proportionality and accessibility are important in family law, citing section 199 of the Family Law Act:

(1) A court must ensure that a proceeding under this Act is conducted

(a) with as little delay and formality as possible, and

(b) in a manner that strives to

(i) minimize conflict between and if appropriate, promote cooperation by, the parties, and

(ii) protect children and parties from family violence.

MacNaughton J. found that relitigating issues that were determined after a lengthy civil trial did not further the children’s interests and that JTP could cross-examine KS, make submissions, and lead evidence about any of the factors concerning the best interests of the children since the release of the Merits Decision, but could not challenge the civil judge’s factual findings regarding the assault, which he plead guilty to in criminal court. 

Typical of high conflict family cases, the facts also revealed that JTP had three different counsel throughout the family litigation and frequently was self-represented; that he stopped paying child support and the children’s counselling expenses a year before the commencement of the family trial;  that the parties had expended hundreds of thousands of dollars in litigation costs; and that JTP sought multiple adjournments of the family trial, receiving two adjournments with the last adjournment specifying that the new trial date was peremptory on him. That did not stop him from seeking a further adjournment of the trial before Justice MacNaughton, which was denied.

A clear case of “scorched-earth” litigation that despite the best efforts of a phalanx of judicial officers was nigh impossible to prevent, to the detriment of the children and a heavy burden on scarce judicial resources. 

This article was first published by The Lawyer’s Daily, a publication of LexisNexis Canada.

Lawdiva aka Georgialee Lang

Discretionary Trust Does Its Job in Family Law Case

In Cottrell v. Cottrell 2022 the BC Supreme Court addressed the subject of discretionary trusts and how and when they are divisible as family property between separated spouses. The Cottrell’s began their marital relationship in 1994 and separated in 2017. Paul Cottrell was a marine biologist while Joanne Cottrell was primarily a stay at home mom to their two children.

Prior to meeting one another and when Joanne was still in university her parents Robert and Patricia Muster struck it lucky and won $5 million from Lotto 6/49. The Musters established two trusts and over the years gifted funds to their children including Joanne. In 2010 the trusts were reorganized and two new trusts were settled by the Musters. The trusts were discretionary trusts and the beneficiaries were Joanne, her parents and her brother. Her parents were the trustees. Upon the death of Mrs. Muster in 2012, Joanne and her brother were added as trustees, however, Joanne was never actively involved in managing the trusts. At this time Joanne also received monies from the trust which she placed in a personal bank account that she maintained at the date of separation such that her husband was compelled to concede that the remaining funds were excluded property.

When the Cottrell marriage broke down, Mr. Muster asked Joanne to resign as a trustee and as a director of a related company. Mr. Muster testified that given the litigation between his daughter and her husband he wanted to distance Joanne from the corporation and the trusts. Paul Cottrell viewed this as indicating a conspiracy to deny him any alleged interest he could assert over these properties. The court did not agree.

Expert testimony at trial confirmed that the trusts were entirely discretionary, that Joanne had a “beneficial” interest within in the meaning of S. 84 of the Family Law Act, and that Joanne’s interest in the trusts were excluded property under s. 85 of the Family Law Act as she did not contribute funds to the trusts, neither was she a settlor of the trusts. However, the court noted that pursuant to s. 84(2) (g) of the Family Law Act any increase in value of excluded property qualified as divisible family property.

The expert also stated that there were several ways Joanne’s interest could be extinguished including a distribution of all the trust property to Mr. Muster or to other beneficiaries to her exclusion or Joanne could die before receiving any further trust distributions.

While Mr. Cottrell’s counsel did not object to the admission of expert evidence with respect to the law of trusts in family law, the trial judge referenced Walsh v. BDO Dunwoody 2013 BCSC 1463 where the court refused to admit expert evidence where the evidence was used to educate the court on the interpretation of domestic law and suggest what the court’s conclusions should be. Inherent in this view is that judges are deemed to know the law. The trial judge did not formally exclude the expert’s evidence but stated that he had reached his own conclusions independent of the expert’s evidence.

The issue before the court was the conceptual difficulty of reconciling an increase in the value of a discretionary interest in a trust as family property alongside the traditional notion that discretionary beneficiaries have no property rights in discretionary trusts or the assets of the trusts. Further, Joanne had no ability to compel the trustees to make a distribution to her.

Mr. Cottrell argued that the Family Law Act provided the path for him to receive an interest in the growth of the trust property which could then be quantified. He pegged his interest at $1.3 million based on financial statements and property assessments produced in the litigation.

The court recognized that there was no clear jurisprudence on this discrete issue, but that Mr. Cottrell’s claim must be analyzed by reference to the provisions of the Family Law Act. In examining the language of the Act the court stressed that when the relevant sections are read conjunctively, ss. 84(2)(g) and 85 (1) (f) provide only that the increase in value of the spouse’s beneficial interest in property held in a discretionary trust is family property. These provisions do not state that an increase in the value of the actual property held in a discretionary trust is family property.

The court concluded that the onus fell on Mr. Cottrell to establish that there had been an increase in value in the trusts and he had not met the onus. Justice Brongers held that given the uncertain nature of Joanne Cottrell’s contingent beneficial interest it could not be said that at the time of trial there had been an increase in her discretionary interests value.

With respect to Paul Cottrell’s valuation of trust property, the court noted that his valuation did not reflect the value of Joanne’s beneficial interest. Mr. Cottrell’s claim was dismissed as was his claim for a reapportionment of family property in his favour on the basis that his wife would be receiving a future “windfall” from a discretionary trust, gift or inheritance. The court reasoned that none of the factors raised by Mr. Cottrell fell within the provisions of s. 95 of the Family Law Act.

The discretionary trust is a powerful legal tool in estate planning that covers many different situations and purposes. Its use in family law permits an individual to enjoy the beneficial use of and interest in property while protecting the property from claims under the Family Law Act.

Appeal Court Considers Role of Foster Parents and Customary Care Arrangements

A six-year old indigenous girl was the focus of the Ontario Court of Appeal’s decision in ML v. Dilico Anishinabek Child and Family Care 2022 ONCA 240 where the court considered whether the child’s caregivers since she was 8-days old could bring a parenting application pursuant to the Children’s Law Reform Act. Dilico had apprehended the child and placed her in the temporary care of the appellants pursuant to a Temporary Care Agreement.

A motions judge had ruled in the appellants’ favour, however, an appeal judge overturned the decision, holding that as “foster parents” they were precluded from bringing the application.  This judge also held that there was a “customary care agreement” in place that authorized Dilico to make placement arrangements with no need for judicial oversight. 

The young girl, JT, was a special needs child whose biological mother, DC, was a member of the Berens River First Nations of Manitoba. Her father, BT, was not indigenous. Both parents resided in Thunder Bay Ontario, as did JT’s caregivers, ML and DL.  JT had a loving relationship with her biological mother, but DC had never parented her, realizing that she could not care for her. DC made it known that she wanted JT to leave the care of the only caregivers she had ever known who she called mom and dad,  ML and DL, and leave Thunder Bay and take up residence with DC’s maternal aunt, RC, who lived in the Berens River First Nation. Dilico was on side with DC’s wishes, hence the application by ML and DL and the subsequent appeals.

ML and DL first brought a parenting application in June 2017, which was met with Dilico filing a protection application under the Child, Youth and Family Services Act, 2017, which led to an automatic stay of ML and DL’s parenting application. ML and DL brought an application to be added as parties to Dilico’s application but Dilico was granted leave to withdraw their application and did so. Meanwhile JT remained with ML and DL.

The Ontario Court of Appeal identified the uncertainty surrounding the nature, the number, and the circumstances of various care agreements signed following Dililco’s apprehension of JT, finding that many of the agreements were not signed by DC, BT or the Berens River First Nation. In July and August 2018 Dilico, Berens River First Nation and DC executed an agreement. It was not clear whether BT was approached to be a signatory. The agreement did not identify a customary caregiver and JT remained in the care of the appellants. 

ML and DL attempted to pick up where they had left off with their parenting application which saw Dilico bring a motion to strike their application, arguing that the appellants were foster parents and thus ineligible to bring an application.  While their parenting application was pending they brought an urgent motion to prevent Dilico from sending JT to Manitoba. That order was made, as well as an order that JT continue to reside with the appellants on a temporary basis. 

The first appeal order was stayed pending the Ontario Court of Appeal’s consideration of the case and an order was made appointing the Office of the Children’s Lawyer to represent JT’s interest. Two intervenors were also permitted to be involved: the Association of Native and Child Services Agencies and the Nishnawbe Aski Nation.

There were two issues on appeal: Whether the appeal judge erred in concluding that the care agreements provided authority for Dilico and Berens First Nation to make legal decisions on behalf of JT without review by the courts and whether the appeal judge erred in determining that ML and DL were foster parents and barred from making a parenting order for JT. 

All parties were in agreement that the inability of JT’s mother to care for her directly engaged Ontario’s  child protection legislation.  Section 1(2) of the Act provides that First Nations, Inuit, and Metis peoples wherever possible should be entitled to provide their own family and child services and that the cultures, heritages, and traditions of indigenous peoples should be respected. 

Customary care  is defined in the legislation as the care and supervision of a First Nations, Inuk or Metis child by a person who is not the child’s parent in accordance with the custom of the child’s band or community. This concept plays a central role in the mandate of section 1 (2) and is the preferred approach for indigenous children as opposed to court-related processes and care.  Courts can become involved in customary care arrangements where there is evidence of bad faith or improper procedure. 

Dilico conceded that the care agreements involving JT were not typical customary care agreements, but nevertheless sought to rely on the legislative preference for customary care, despite placing JT in a home that did not satisfy the definition of customary care nor invoke the customs of the Berens River First Nation. In essence, Dilico did not appear to have complied with the legislation to “make all reasonable efforts to pursue a plan for customary care.” 

The court also pointed out the irregularities in the agreements entered into. Many were not signed by JT’s father, one was not signed by either JT’s mother or father and another one was not signed by the First Nation. The appeal court concluded that the customary care agreements were invalid. 

The court then turned to the issue of the status of the appellants and determined that their ability to apply for a parenting order was not tied to whether they were foster parents or  customary caregivers, noting that while much argument in the courts below focused on whether they were foster parents or customary caregivers, nothing turned on it.  The court cited authority for the proposition that both foster parents and customary caregivers can be made parties to a child protection proceeding.

The court also remarked that the court below had erred in finding that foster parents could not apply for parenting orders. The rule cited by the lower appellate court only dealt with who must be a party to a parenting application and did not limit others who may be added as parties citing AM v. Valoris Pour Enfants et Adultes de Prescott-Russell 2017 ONCA601. The court also stated that section 21(2) of the Children’s Law Reform Act is very broad: “any person…may apply to a court for a parenting order…”. Further, section 62(3) of the Act would require the appellants to be parties by virtue of their involvement with JT. 

The court then turned to consider the relevance of the federal legislation, An Act respecting First Nations, Inuit and Metis Children, Youth and Families SC 2019 c.24, legislation that establishes national minimum standards for child and family services delivery to indigenous children and families. 

This Act permits First Nations to displace provincial child protection legislation, but Berens River First Nation did not seek to enter into a tripartite agreement under the federal legislation and so Ontario’s child protection legislation governed.  Dilico and the intervenors argued that the Children’s Reform Act could not be used to evade the national standards in the federal legislation, but the appeal court found that a court exercising jurisdiction under the provincial custody legislation would be required to apply the national standards in deciding the appellant’s parenting application.     

Consequently, the appeal was allowed and the original order of the motions judge was reinstated pending a fresh hearing pursuant to the Children’s Reform Act.    

In reviewing the litigation history of this case, it is apparent that JT’s caregivers, her only parents, albeit not by biology, continued to advocate on her behalf in the face of a presumably well-funded First Nations community and likeminded intervenors.  To remove a child from the only home she knew and send her to live in a different province with a stranger defies comprehension.   

Lawdiva aka Georgialee Lang

**This article first appeared in The Lawyer’s Daily, a publication of Lexis Nexis Canada.                                                                                                                                                                   

An Exhausting and Ruinous Parenting Case: JM v. EM

 It is sad, but true, that despite the best intentions of lawyers, judges and parenting experts, family law cases can go off the rails and careen into unexpected and destructive outcomes. J.M.v. E.M. 2022 ABCA 49 is such a case.

The case

In 2012 a German woman, J.M., came to Alberta with her 6-month-old daughter, M. In 2015 J.M. met and later married a Canadian man and had two children, born in 2016 and 2017. Unfortunately, the marriage ended in April 2019 with a physical altercation between J.M. and her mother-in-law and J.M.’s allegations that her husband was abusing M., leading to the involvement of the Child and Family Services Ministry and J.M. moving with the three children to a women’s shelter.

Later in 2019 a primary parenting order was made in favour of J.M. and the children’s father was awarded specified parenting time. By that time, M. was 8 years old and suffering from bullying and expressing suicidal ideation.

A trial was set to address parenting and child and spousal support, but the parties, each represented by counsel, agreed to a binding judicial settlement conference wherein a final order dated Feb. 5, 2020 was made, providing shared parenting and shared decision-making of all three children, with a week on/week off parenting schedule. M. was estranged from her stepfather and a unification plan was put in place with the expectation that M. would eventually spend half-time with him.

Although J.M. had no income the order provided that she would receive spousal support for only six months. The reunification therapy never commenced, and the father last saw M. in October 2019.

Regrettably, the order of February 2020 was not the end of the litigation. The parties continued to quarrel, and further allegations of child abuse were levelled by J.M. against her husband, as M. made disclosures to several mental health professionals. These allegations resulted in criminal charges against the father for sexual interference and a preliminary inquiry was held in September 2021, during which M testified. A trial date was set for March 2022.

The father was faced with additional allegations in 2020 when J.M. swore that her two younger children had been sexually and physically abused by their father and paternal grandmother. A family judge ordered an investigation of the allegations pursuant to Practice Note 5 and the father was then subject to supervised access.

Upon the completion of the investigation in December 2020 the chambers judge determined that the sexual and physical abuse allegations were “unsubstantiated in regards to parenting and supervision concerns” and ordered J.M. to pay costs to her husband. The Appeal Court noted that the chambers judge failed to specify which allegations against which children were unsubstantiated, despite the pending criminal trial. The court then ordered a Practice Note 7 Triage Intervention, a procedure used in high-conflict cases where an expert opinion as to the children’s best interests is conducted by a parenting expert who acts as a friend of the court.

Further abuse allegations were made by J.M. on Jan. 6, 2021, this time to the RCMP who referred the matter to the Caribou Child and Youth Centre, where the two younger children, now ages 4 and 3½ years old, were interviewed. However, the allegations could not be substantiated as the children were too afraid to speak.

On Jan. 21, 2021, J.M. obtained an emergency protection order against her husband, which was vacated the following day upon the husband’s application. Later that same day, with J.M. appearing, the court suspended J.M.’s parenting time with the two youngest children. Suspecting that this order would cause J.M. to flee, the father filed an ex parte application seeking orders that J.M. deliver her passport to the court and a non-removal order.

However, it was too late. J.M. left Canada and flew to Germany with M. three days after the order suspending her parenting was handed down. On Jan. 26, 2021, J.M. was found to be in contempt of the Feb. 5, 2020, parenting order which precluded travel outside of Canada without a court order and a warrant for her arrest was issued. The father was granted sole parenting and decision-making of the two youngest children and the paternal grandmother was given guardianship and decision-making with respect to M. The father’s child support obligations were rescinded and service of the father’s application and affidavits in support ofJ.M. were dispensed with and the documents were sealed.

The following day the father brought a Hague Convention application for the return of M., which resulted in her return to Canada into her paternal grandmother’s custody in May 2021 after a hearing and an appeal in Germany.

On May 18, 2021, the court ordered that the father have no contact with M. and that his parenting time with the two younger children be supervised. The three children were united and were living with their paternal grandparents on their farm. J.M. was allowed to have two supervised one-hour Zoom calls with the children each week, at her expense. A warrant for J.M.’s arrest for child abduction remained in place, as did the warrant for contempt.

The appeal

J.M. appealed the decision of the chambers judge from her home in Germany. She identified three grounds of appeal:

The chambers judge erred by dispensing with notice and service upon her of the father’s application;

The chambers judge erred by appointing the grandmother as the guardian for M.;

The chambers judge erred by granting sole parenting and decision-making to the father in respect of the two younger children.

The Appeal Court began its analysis with the off-cited observation that “self-help” in family law is not permitted unless there is immediate danger and no opportunity to apply to the court for a variation order, for the simple reason that the court has an obligation to safeguard the dignity of the courts and the forces of its orders and the obligation to safeguard the best interests of a child. However, they also noted that the mother’s actions must be viewed through a holistic consideration of the circumstances that confronted her.

The Appeal Court allowed the appeal, reaching “three inescapable conclusions” after reviewing the evidentiary record:

a) That a significant power imbalance existed and continues to exist between the mother, her husband and her husband’s family;

b) That the mother’s abuse allegations had yet to be adjudicated by the court; and

c) That the mother had been deprived of procedural fairness at various times during the litigation, leading to an untenable status quo. These findings led them to suggest that the mother’s departure from Canada was borne out of her desperation. The power imbalance included the mother’s lack of legal status in Canada and her poverty after separation, living in shelters and later in a tent.

The lower court’s Feb. 5, 2020, order included a term that the father would sponsor J.M. and M. for permanent residence in Canada, but he failed to do so. At about the time she left Canada with M. she wrote to the German embassy pleading for assistance, painting a harrowing picture of a marriage characterized by mental, emotional and physical abuse. The court noted that the recent amendments to the Divorce Act in respect of family violence underscore society’s increased understanding of and condemnation of domestic violence and its deleterious effects on spouses and children.

The Appeal Court then queried whether the Practice Note 5 investigation was conducted by an experienced child assessor, given the expert’s inability to obtain any information from the children, who apparently broke down in hysterics and shook in fear when in the presence of RCMP officers. This, despite medical evidence that one of the children showed physical signs of sexual assault with a ruptured hymen, a fact that was brought to the attention of the chambers judge.

The Appeal Court stated that the lower court’s finding that no abuse could be substantiated was a determination made in an “evidentiary vacuum.” With respect to procedural unfairness, the Appeal Court found that the chambers judge apparently accepted the father’s submissions that J.M.’s application for a protection order, after she made additional allegations of abuse, was made in bad faith, as the abuse had already been found by the court to be unsubstantiated. It was then that the mother’s parenting time was suspended, an order that was considered inexplicable and extraordinary by the Appeal Court, particularly because no such order was sought by the father.

They stated:

“A fundamental tenet of our adversarial system is that parties are entitled to know the case they must meet and be provided with an opportunity to address evidence prejudicial to their case and marshal evidence to prove their position. Charkaoui, Re, 2007 SCC 9 at para. 53;Ruby v. Canada 2002 SCC 75 at para. 40 …”

They also referred to Van de Perre v. Edwards 2001 SCC 60 at para. 47 where the court held that,“[p]arens patriae jurisdiction does not justify the avoidance of the rules of civil procedure.”

Further, the Appeal Court criticized the lower court’s decision to entrench upon the open court principle by ordering that the father’s court materials not be provided to J.M. and that they be sealed. Finally, the Appeal Court remarked that all of these unusual remedies were granted to a parent who had no contact with M. for 15 months, was facing a criminal charge for sexual interference, and whose parenting time with his two younger daughters was supervised.

The decision

The Appeal Court admitted there were no easy answers and no quick solutions, but the priority was to arrange for J.M. to be reunited with her children in Canada. The court facilitated this by ordering the husband to pay $5,000 to an immigration lawyer to assist J.M. to obtain a Temporary Residence Permit.

They also vacated the order for supervised Zoom parenting time which was costing J.M. $750 amonth, money better spent on her travel expenses to Canada. The orders suspending J.M.’s parenting time were vacated, the father’s sole parenting and decision-making was vacated; the warrant for J.M.’s arrest was vacated and her contempt declared to be purged; the child support order against her was vacated; and the chambers judge was no longer seized of the case. An expedited trial was to be arranged.

A report by the children’s amicus revealed that M. had achieved a measure of stability after her return to Canada and the parties agreed that in the interim her grandmother would retain guardianship on a without prejudice basis, subject to variation following the father’s criminal trial.

Conclusion

This exhausting and ruinous journey for these parents and children leads inexorably to the realization that there has to be a better way to deal with those high-conflict, trauma-inducing cases that are far too prevalent in our family justice system. This case unfolded in a more remote northern community in Alberta where accessible family law services desperately need improvement. Delays in adjudicating allegations of family violence and child abuse stand in the way of resolution and healing that exacerbates clashes between parents. The health of our families is the cornerstone on which society rests. There is an urgent need for a new vision to ensure that policies and programs to support families are our highest priority.

**This article first appeared in The Lawyer’s Daily’s a publication of Lexis Nexis, Canada.

Lawdiva aka Georgialee Lang