Should a Child Have His/Her Own Lawyer in Custody Cases?

The Ontario Court of Appeal has recently answered the question posed above in a case where a father asked the court to appoint a private lawyer for his two children, where he also sought to increase his parenting time with them. (Mader v. McCormick 2018 ONCA 340)

The parties separated in 2010 and negotiated a parenting schedule that gave the children’s mother primary residence with the father having overnight access every second weekend and after school access 4 nights a week. In 2013 the father sought additional parenting time and the Office of the Children’s Lawyer (“OCL”) was appointed by the court to represent the children. The OCL is a government agency in Ontario that is available by court appointment to act on behalf of children in family law, child protection and estate cases.

The OCL advised the children’s father that after speaking with their clients they ascertained the children were not in favour of additional time with their father. The father then abandoned his application.

In 2015 the father retired and with more leisure time again advanced a claim to have additional parenting time. He also requested the appointment of the OCL but his request was denied.

In 2016 the father took another stab at his desire to have more parenting time, however, this time he asked the court to appoint a private lawyer to represent his children who were both now young teenagers. Two lower courts denied his request for the appointment of a private lawyer for multiple reasons including their reliance on the children’s feelings about additional access as conveyed to the OCL two years earlier; the absence of any behavioural or academic issues that might indicate unhappiness with the current schedule; and the possible embarrassment of a further investigation involving their teachers and other collaterals.

The lower courts also expressed concern that the father’s request for private counsel was not “child-focused” and would burden the children with questions when they had already expressed their wishes.

On appeal from the lower courts the father cited the United Nations Convention on the Rights of the Child, arguing that the Convention obliged the court to appoint counsel for them. Article 12 of the Convention reads:

1. State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child in particular be provided the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly, or through a representative or appropriate body, in a manner consistent with the procedural rules of natural law.

The appeal court confirmed that the appointment of counsel for children is a discretionary decision which should focus on the best interests of the child and deference should be afforded to a motion judge’s assessment of such an appointment. Ultimately, the appeal was dismissed.

The Court referred to Reynolds v. Reynolds 1996 ONSC 7273 where Fleury J. said:

“This remedy [appointing a lawyer for the children] should not be available only for the asking. In as much as it implicates the children very directly in the entire litigation, it is a very blunt instrument indeed. It can cause untold harm to impressionable children who may feel suddenly inappropriately empowered against their parents in a context where the children should be protected as much as possible from the contest being waged over their future care and custody. All actions involving custody and access over children should be governed by one paramount consideration: no one should be allowed to act in a way that might endanger their well-being. The test of “the best interests of the children” as insipid and fluid as it might be, still remains the benchmark against which any person wishing to interfere in their lives should be measured.”

Lawdiva aka Georgialee Lang

Class Action Lawsuit Continues Against Family Court Judges

A group of fathers in New Jersey have banded together to bring a class action lawsuit against five family court judges. They allege their constitutional rights were violated by orders made by these judges that deprived them of a relationship with their children. They also claim they were not afforded due process or equal protection under the law.

Their main argument is that by basing custody decisions on the “best interests of the child” their rights are violated. They also allege that lack of appropriate notice before a court order is made regarding their children is a breach of due process.

Due process, also called “natural justice”, is the right to have an unbiased hearing with an opportunity to present your evidence in defence to the claim against you.

Surender Malhan is one of the fathers in the class action. He alleges that the mother of his two children provided him with two hours notice she would be seeking sole custody of the children. He was given no real opportunity to organize rebuttal evidence to the allegations he was an unfit parent.

When he spoke to the media about his situation, family court Judge Nancy Sivilli issued a gag order preventing him from speaking publicly about his case. Mr. Malhan’s lawyer is now suing Judge Sivilli for First Amendment (free speech) violations.

The State of New Jersey is fighting back and brought a court application seeking a summary dismissal of the class action suit, arguing the fathers were using their court action to effectively appeal the orders made against them in the Family Court.

Judge Freda Wolfson presided over the State’s application, and refused to dismiss the fathers’ action, relying on a 2013 appellate decision, B.S. v. Somerset County, where the Third Circuit Court of Appeals refused to dismiss an action brought by a mother in Pennsylvania who alleged she lost custody of her daughter in a hearing that did not afford her due process.

The State also unsuccessfully argued that “sovereign immunity” protected New Jersey from this type of lawsuit. Judge Wolfson ruled the individual judges were the focus of the court action, not the State of New Jersey.

The debate over the usefulness of the “best interests of the child” test for determining custody has been simmering for a decade or more. It is often suggested that proponents of shared parenting want to eliminate the “best interests” test. Perhaps some do, but I believe that Courts simply need to embrace the substantial psychological literature that resoundingly reveals that children need a full relationship with each parent and that is what is in their best interests.

Lawdiva aka Georgialee Lang

Happy Ending for Local Child Abduction Case

Not all abduction cases end in the disappointment of “no return” or even death, like little Amber Lucius. Early last month I became involved in a child abduction case that spanned the globe from Portugal to Vancouver to Corner Brook Newfoundland.

The parents of a nine-year-old girl named Lauren moved from their long-time home of Vancouver to Portugal three years ago. They settled in and Lauren’s mom who was a Canadian citizen applied for and was granted Portuguese citizenship as did Lauren, who was born in Canada. Their new life began, Lauren was registered in school and by all accounts, her parents enjoyed their new home, particularly Lauren’s father who was a dual citizen and had family and business interests in Portugal.

Unfortunately, the marriage began to falter but the parties remained together in the family home. Lauren’s father became concerned that his wife would leave Portugal with Lauren. He was so concerned that he obtained a “travel ban” which is a non-judicial warning to immigration that a child cannot be removed from the country without a court order or the consent of both parents. Lauren’s mom knew that her spouse would never agree, so she planned a clandestine middle-of-the-night departure, circumventing Portuguese authorities by driving to Seville Spain and catching a plane to Newfoundland where the parties had a summer cottage and where her family resided.

Lauren’s mom knew that her midnight dash was contrary to the law, having received advice from several lawyers and other officials, but she ignored them all. Lauren’s father immediately left Portugal and arrived in Vancouver, ready to do whatever was required to bring his daughter back to Portugal for the start of school on September 11. In the meantime, Lauren’s mother had already obtained an ex parte order from a Newfoundland court giving her interim custody of Lauren. My quarrel with ex parte orders is well-know to regular readers of Lawdiva. They are a blatant breach of due process and ought not to be granted unless there is clear evidence of impending danger to the leaving parent or the child.

We rapidly prepared an application pursuant to the Hague Convention on Child Abduction, an intricate process that entails the compilation of many relevant documents. Of course, all of the documents required translation as they were in Portugese. Back in Portugal a criminal action was commenced since child abduction is a criminal offence. The next step was to locate a lawyer in Newfoundland who was able, on short notice, to get into court there to argue for the return of Lauren. An experienced QC jumped on board to secure Lauren’s return.

An interesting part of this case was that Lauren’s father and mother shared a computer which gave Lauren’s father access to all his wife’s emails, many of which were extremely damaging to her case. After obtaining advice from a lawyer specializing in privacy law, the decision was made to include the emails in the Hague application. Lauren’s return was paramount and any evidence that assisted had to be utilized.

A Newfoundland judge presided over a four-day hearing last week that focused exclusively on the question of which court had jurisdiction to deal with custody of Lauren: Portugal or Newfoundland? The law is very clear that the court where the child “habitually resides” has sole jurisdiction to make custody decisions. Naturally, Lauren’s mother attempted to argue that Newfoundland was Lauren’s habitual residence, a position that was doomed to fail, given the extensive evidence of Lauren’s life in Portugal.

Thankfully, the Newfoundland court found that Portugal was the jurisdiction to determine Lauren’s custody and an order was made that her father return with her to Portugal immediately, just in time for the first day of school.

If Lauren’s mother is determined to bring Lauren to Canada, she must now convince a Portuguese judge that her position is in Lauren’s best interests. The battle is won, but the war is not over.

Lawdiva aka Georgialee Lang

Canada’s Shared Parenting Bill Voted Down in Second Reading

Saskatchewan Conservative MP Maurice Vellacott’s indefatigable efforts to introduce shared parenting into Canada’s Divorce Act has been an exercise in futility, its defeat yesterday an event that is no surprise to its advocates, who eventually realized that none of Canada’s political parties, except for the Green Party, would throw their support behind it. At the end, even the Conservative party, whose platform boasts shared parenting, abandoned Mr. Vellacott, in what was his third attempt to reform the present law.

The gist of Bill C-560 was the introduction of certain “presumptions’ including a presumption that allocating parenting time “equally” between parents is in the best interests of children, rebuttable only by evidence that equal parenting would not”substantially enhance” a child’s best interests.

Vellacott’s proposed law also allowed that current custody and parenting arrangements could be varied taking into account the new “equal parenting” philosophy by declaring the reformed law a “change in circumstance”, a legal requirement under the present Divorce Act to amend an existing custody order or agreement.

Critics of the bill complained that a presumption of equality does away with the tried and true “best interests of the child” test and elevates parental rights over the rights of children. They also resist the notion that parents across Canada may invoke the new law to reopen their custody orders and agreements, potentially leading to a landslide of fresh litigation.

Was the bill so flawed that its failure was inevitable? In my opinion, it was not, but it did contain a “trigger” that unsettled those who still believe shared parenting is merely a ploy of the father’s rights movement to reduce or eliminate child support payments.

One of the triggers was the use of the term “equal” which brought back the early days of the Child Support Guidelines, which provided that parents who had custody of their child 40% of the time or more, could bring an application to reduce their child support payments, based on the reasonable proposition that their own costs in caring for their child were increased and thus, their counterpart parent’s costs reduced.

Judges became arbiters of whether 40% included school hours; hours when the children slept; and other mathematical conundrums raised by parents seeking to assert or deny the 40% rule. Fear that these arguments would be resurrected cannot be understated, however, lawyers and litigants soon learned that few judges were prepared to accede to child support reduction applications.

But more importantly in the context of shared parenting, a fully involved parent is not necessarily a parent who can or should insist on perfect equality, in fact in many of the jurisdictions that have implemented shared parenting, lawyers, parents, and legislators have recognized that precise equality is not achievable, typically because parents’ and children’s schedules are incapable of being sliced in half.

What ought to be paramount is a cultural switch that emphasizes that children need both parents in their lives, and that, in and of itself, is in a child’s best interests, despite society’s increasingly male-absent procreation and child-rearing agendas. Outdated research that celebrates maternal preferences is no longer valid, but try telling that to Canada’s lawmakers.

Lawdiva aka Georgialee Lang

When Adoption Goes Awry

South Carolina couple Matt and Melanie Capobianco were over the moon when they adopted new-born baby Veronica in 2008. But their joy turned to grief, when at the age of three, Veronica was removed from their home and placed with her biological father, a person Veronica had never met, but whose ancestory trumped the Capobianco’s legal parenthood.

Father Dusten Brown, who lives in Oklahoma, was a member of the Cherokee nation.
He brought a court action seeking to have custody of his daughter in accordance with the provisions of the Indian Child Welfare Act, a federal law passed in 1978. The Act provides that Native American tribes and relatives should have a say in the placement of aboriginal children.

Mr. Brown successfully argued he was unaware that Veronica’s mother had given her up for adoption and her Native American heritage could only be fostered if she was raised by her father. The Appeal Court agreed. The judges said the Capobianco’s are “ideal parents”, but the law demanded a change in custody.

This week the United States Supreme Court will hear the Capobianco’s appeal and will weigh in again on the vexing question of aboriginal adoption.

The Court ruled in 1989 that tribal courts should determine these issues. In the 1989 case a tribal court permitted the adoptive parents to keep their adopted toddler twins, despite a claim by the children’s aboriginal relatives.

The federal government and eighteen other states, including Washington, California and Oregon, support the law. It’s difficult to believe that the removal of a three-year-old from the only parents she knows is in her best interests, particularly if the adoptive parents embrace and encourage her native heritage.

Lawdiva aka Georgialee Lang