Parenting

The main categories of major decisions are decisions which relate to the child’s:

1. health;
2. education;
3. residence;
4. extra-curricular activities; and,
5. religion. 

Thus, the parent with primary decision-making responsibility of the child will have the final decision-making authority relating to the aforementioned categories of decisions in the event of a disagreement.

The parent with "primary decision-making responsibility" has a positive legal obligation to involve the other parent in the decision-making process or at the very least, inform the other parent, prior to making the decision. Failing to do so is a breach of the basic parenting principles set out in the Children Law Reform Act.

"Joint decision-making responsibility", which is becoming more and more commonplace, means that both parents have equal decision-making authority, or equal say with respect to major decisions relating to the child’s health, education, residence, extra-curricular activities and religion.

No major decision relating to these categories can be made unilaterally (without consultation, and consent of the other parent) by one of the parents.

Typically, whether a court makes a primary or joint decision-making responsibility order will depend on the parents’ historic decision-making process, ie. the status quo.

Thus, if the parents had historically both been very involved in the child’s life, the presumption will be that they were jointly parenting, and the post separation custodial regime should reflect what was in place during their union.

If, on the other hand one of the parents was the primary decision maker, while the other parent’s involvement was absent, or limited, a primary decision-making responsibility order to the former parent is likely.

The single greatest challenge in decision-making responsibility cases is the determination of the truth. The parent seeking primary decision-making responsibility will allege that the other parent was an uninvolved or quasi absent parent, while the parent seeking joint decision-making responsibility will allege that he/she, was an actively involved parent. This is the classic he said she said scenario. Because neutral third-party evidence is often difficult to obtain, such cases can become quite costly to litigate.

In such circumstances, courts will often order that a social worker or a lawyer from the Office of the Children’s Lawyer be appointed to perform an independent investigation in order to determine what is in the child’s best interest.

"Parenting time", or visitation rights relate strictly to the time a child spends with each parent. Parenting time rights have nothing to do with decision-making responsibility, as it does not relate to decision-making authority.

Historically, fathers saw themselves being awarded alternate weekend parenting time, plus a few hours, or an overnight visit, on his off week. This trend is becoming less and less popular. 

Increasingly, courts are finding that it is in a child’s best interest to spend as much time with their father as they do with their mother, after the date of separation. 

That said, it will be difficult for a parent, who has historically had little involvement in the child’s life to seek an order for equal time sharing, or shared decision-making responsibility.

Today’s reality for many families is that both mom and dad work outside of the home, have careers, bring the children to doctor's appointments, to daycare, extra-curricular activities, and so on.

Both fathers and mothers change diapers, feed the children, make lunches, cook meals, and give physical and verbal affection.

Because the traditional roles in the Canadian family have changed, so have the standard court orders. Judges are increasingly, considering both parents as suitable custodial parents, which often results into joint decision-making responsibility and equal parenting time orders.

That said, for children aged 0-5, some courts are finding it to be in a child’s best interest to primarily reside with their mothers. In such circumstances, short but frequent visits are often recommended.

In circumstances where a parent has no prior relationship with the child, or in cases of substance abuse, violence, or evidence that the child may be at risk, it may be appropriate to implement supervised parenting time visits. 

The visits can be supervised at a "Supervised Parenting Time Centre", or by a suitable third party. 

Such cases may require the involvement of the Office of the Children’s Lawyer.

In the most extreme circumstances involving severe substance abuse, physical abuse, emotional abuse, violence, or neglect, no parenting time may be appropriate. 

Such circumstances may require the involvement of the Children’s Aid Society, and the Office of the Children’s Lawyer. 

Each and every case is determined on its unique set of facts.

Spousal support is financial support given by the payor to the recipient. Spousal support seeks to prevent situations where the high-income earner can continue to enjoy their standard of living after the separation. In contrast, the lower-income earner’s standard of living takes a drastic decline.

The focal objective of spousal support is to help the parties maintain the standard of living they were accustomed to during the cohabitation or marriage.

Spousal support is, without a doubt, the most litigious area of family law.

The level of uncertainty in determining fair amounts of spousal support and the inconsistency of the courts in their orders have prompted several scholars to produce the “Spousal Support Advisory Guidelines” (the SSAGs). Though much more complex than the Child Support Guidelines, the SSAGs provide spousal support ranges for spousal support awards.

Generally, basic data is entered into software widely used by family law practitioners. This data includes the parties’ ages on the date of separation, the number of children of the relationship, and the parties’ incomes. This data will then produce spousal support ranges – low, medium, and high.

Most family law lawyers accept the ranges and will litigate or advocate within the ranges prescribed by the SSAGs.

With the exception of quantum, litigation or advocacy typically involve entitlement to spousal support, ability to pay, and duration of spousal support.  Entitlement and ability to pay, are determined on a case-by-case analysis, which will not be discussed herein. Generally, the longer the relationship, the longer the duration of the spousal support award.

Some parties agree on what they desire before contacting a lawyer or mediator. They subsequently instruct their lawyers to prepare settlement documents.

This is by far the most cost-effective way of resolving family law matters.

Settlements are often achieved by the exchange of correspondence between counsel, followed by the drafting of a final agreement.

A four-way settlement meeting involves both parties and their respective lawyers meeting at one of the lawyer’s offices, discussing the issues, exchanging disclosure and attempting to achieve a settlement.

I have found this to be a very effective settlement method.

Counsel assisted mediation involves the parties and their lawyers attending a jointly selected mediator who will assist them in achieving a settlement.

The benefit of a mediator is to give the parties and their lawyers the benefit of a having a neutral third-party opinion, or recommendation. A mediator does not have the authority to make decisions in a matter unless the parties agree to give the mediator that authority.

This resolution vehicle involves the parties jointly retaining a mediator, and attending settlement meetings, without their lawyers. The parties will then typically meet their respective lawyers to review the proposed settlement document, prior to affixing their final signatures. 

Arbitration involves the parties and their lawyers preparing written documentation, law briefs, and arguments, presenting the case to an arbitrator (often a retired judge or experienced lawyer), who will be charged with making a final binding decision on the issues.

The end result of an arbitration is very similar to having the matter determined by a court. However, choosing this resolution vehicle can significantly reduce the duration of the dispute, and legal fees.

The Family Law Act provides that this property can only be divided if the parties were married. This is referred to as “equalization of net family property.” Unmarried couples do not have a de facto right to share in the property of their partners.

That said, depending on the circumstances of an unmarried couple’s relationship, any property may be divided based on the right of equity rather than the provisions of the Family Law Act.

The law of equity, and the principle of unjust enrichment, provide that one party should not unduly become enriched at the expense of the other. In circumstances where one party unfairly benefited from the union, the court will look to the right, the wrong.