Month: July 2018

“Parallel-parenting orders can take the form of “divided parallel parenting”, where each party is given separate, defined areas of parental decision-making, independent of the other; or alternatively, “full parallel parenting”, where both parents are given the right to make major decisions respecting the child in all major areas of parental authority while the child is with them, without the consent of the other parent. See: Hensel v. Hensel 2007 CarswellOnt 7010 (Ont. S.C.J.); Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII).

Parallel-parenting orders have been made in high-conflict cases, particularly in cases where:

a)  One parent is unjustifiably excluding the other from the children’s lives and can’t be trusted to exercise sole custody responsibly. See: Andrade v. Kennelly 2007 Carswell 8271 Garrow v Woycheshen, 2008 ONCJ 686 (CanLII); Madott v Macorig, 2010 ONSC 5458 (CanLII), [2010] OJ No 4371 (SCJ); Cooke v. Cooke, 2012 NSSC 73 (CanLII); Bushell v. Griffiths2013CarswellNS 240 (N.S.S.C.), and  Izyuk v. Bilousov, supra, (where the court stated that it must still be satisfied that it is dealing with equally competent parents whose lack of cooperation does not affect the best interests of the child (par. 507)).

b)  Where the parents are incompatible with one another, but are both capable parents and agree on major issues. See: Hajkova v Romany, 2011 ONSC 2850 (CanLII), 2011 ONSC 2850; Scervino v Scervino 2011 ONSC 4246 (CanLII), 2011 ONSC 4246 (SCJ). In this line of cases, the conflict between the parents is not so high that it will interfere with responsible decisions being made about the children and the parents appear to be willing to put the best interests of their children first. See: Moyer v. Douglas[2006] OJ No 5124 (Ont. S.C.J.); Ursic v. Ursic (2006) 2006 CanLII 18349 (ON CA), 32 R.F.L. (6^th) 23(Ont C.A.).

In  Baker‑Warren v. Denault, 2009 NSSC 59 (CanLII),  the court held that a parallel-parenting regime is usually reserved for those few cases where neither sole custody, nor cooperative joint custody, will meet the best interests of the child.

Courts have found that parallel-parenting orders will not meet the best interests of the children where the conflict is too high to make such an order work. See: Roy v. Roy 2006 CanLII 15619 (ON CA), 2006 CarswellOnt 2898 (C.A.); Mo v. Ma, 2012 NSSC 159 (CanLII) and Graham v Bruto, [2007] O.J. No 656 (Ont. S.C.J.) aff’d at 2008 ONCA 260 (CanLII) (where the trial judge found that a joint custody and parallel-parenting regime made little sense since it would put the “children in the middle of conflict every few days” and “the parents’ inability to cooperate in such cases may result in frequent visits to court which would present a greater opportunity for conflict”).

In V.K. v. T.S., ONSC 4305 (CanLII), Justice Deborah Chappel conducted a thorough review of the case law and set out in paragraph 96 the following factors to consider when determining whether to make a parallel-parenting order:

a) The strength of the parties’ ties to the child, and the general level of involvement of each parent in the child’s parenting and life. In almost all cases where parallel parenting has been ordered, both parents have consistently played a significant role in the child’s life on all levels.

b)  The relative parenting abilities of each parent, and their capacity to make decisions that are in the child’s best interests. Where one parent is clearly more competent, responsible and attentive than the other, this may support a sole custody arrangement. On the other hand, where there is extensive conflict between the parties, but both are equally competent and loving parents and are able at times to focus jointly on the best interests of the child, a parallel parenting regime may be ordered.

c) Evidence of alienation by one parent.  If the alienating parent is an otherwise loving, attentive, involved, competent and very important to the child, a parallel parenting arrangement may be considered appropriate as a means of safeguarding the other party’s role in the child’s life. On the other hand, if the level of alienation is so significant that a parallel parenting order will not be effective in achieving a balance of parental involvement and will be contrary to the child’s best interests, a sole custody order may be more appropriate.

d) Where both parties have engaged in alienating behaviour, but the evidence indicates that one of them is more likely to foster an ongoing relationship between the child and the other parent, this finding may tip the scale in favour of a sole custody order.

e) The extent to which each parent is able to place the needs of the child above their own needs and interests.  If one of the parties is unable to focus on the child’s needs above their own, this may result in a sole custody order, even if that parent is very involved with the child and otherwise able to meet the child’s day to day needs.

f) The existence of any form of abuse, including emotional abuse or undermining behaviour, which could impede the objective of achieving a balance of roles and influence through parallel parenting.

I would add four more considerations that I believe are relevant to a parallel-parenting analysis.

The first consideration is for the court to evaluate the likelihood of one category of decision-making conflicting with another (the spillover effect) and the ability of the parents to navigate those conflicts. For instance, it might appear on the surface that there is a clear delineation between medical and educational decisions. However, that might not be the case with two parents determined to fight and perpetuate conflict. If a school recommends speech-language therapy or therapeutic counseling to take place at school, high-conflict parents will likely fight over whether these are medical or educational decisions.

The second consideration is whether the parents have the ability to navigate scheduling conflicts between activities and appointments. Since they are each acting independently in their own sphere of decision making, what happens when both soccer practice and math tutoring are scheduled for the same time? How likely is one parent to schedule a dentist appointment at the same time as a child’s playoff hockey game?

It may be possible to anticipate, define and create priorities for many of the potential conflicts regarding both the delineation of decision-making and the scheduling of activities and appointments, but a court needs to carefully consider whether this is really possible given the dynamics of the parents in the case before it. The court might just be developing a new battleground for the parties with a parallel-parenting order – a battleground that will create more conflict and instability for the children.

The third considerationis the geographical distance between the parties. It is one thing to carve off an area of decision-making for the non-residential parent, but the court has to ask whether the residential parent (the parent with whom the children primarily reside) will logistically be able to implement those decisions. Decisions by the non-residential parent are easier to implement if the parties reside close to one another. If the parties live far apart, the residential parent may not be able to take the children to a doctor, tutor, counselor, school or activity (depending on the area of decision-making) chosen by the non- residential parent. If the parents cannot communicate well, the geographic distance between them can create significant conflict and adversely affect the children.

The fourth considerationis about family dynamics. The court must evaluate if a parallel-parenting order is more likely to de-escalate or inflame the parents’ conflict.

A parallel-parenting order can be a useful tool for settlement. The risks associated with it (as set out above) may be outweighed by the benefits of the parties avoiding further litigation and coming to an agreement that both can accept – an agreement where both parties are fully engaged as parents.  With parents who sincerely want to be involved with their children for their children’s benefit, such an order will likely have the benefit of de-escalating conflict. The children, in such cases, will receive the benefit of two involved parents.

However, a sad reality of family law is that there is a certain group of parents who seek such orders for the purpose of asserting control over their former spouse and children. These parents tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations.  For such parents, a parallel-parenting order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.

All of these considerations lead this court to the conclusion that courts should be very careful before granting parallel-parenting orders in high-conflict cases. They are rife with potential complications that could have the inadvertent effect of escalating conflict and destabilizing children. There is also the risk that important decisions regarding children will not be made in a timely manner if there is a conflict over who is entitled to make that decision. It is not in the best interests of children to paralyze the decision-making process about them.

Logic dictates that these risks grow exponentially in a high-conflict case if a party is seeking a “full parallel-parenting model” order. There are many child-related decisions that require a high-level of parental communication. Important medical and academic needs for children need to be coordinated. The treatment of any special needs of children must be coordinated. A proposed parenting model where each parent acts fully independently of the other in making these important decisions (where the parents have little or no ability to effectively communicate about the children) needs to be approached with extreme caution.”

K.H. v .T.K.R., 2013 ONCJ 418 (CanLII) at 45-59

“Pursuant to s. 17(5) of the Divorce Act, R.S.C. 1985, c. 3 (2^ndSupp.), the court cannot vary a custody order on the application of the parties in the absence of “a change in the condition, means, needs or other circumstances of the child” since the making of the order. There must be a material change in the circumstances of the child since the last custody order was made. A material change is one that “altered the child’s needs or the ability of the parents to meet those needs in a fundamental way”: see Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 12. Absent the finding of changed circumstances, the court’s inquiry can proceed no further: see Litman v. Sherman, 2008 ONCA 485, 52 R.F.L. (6th) 239.”

Easson v. Blase, 2016 ONCA 604 at 3

“It must be stated that, in the vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation of the equalization provisions under the Family Law Act; the spouse who legally owns an asset will ordinarily share half its value with the other spouse as a result of the equalization provisions under the Act. However, a fair and contextual reading of the equalization and net family property provisions of the Family Law Act ensures that married spouses are not deprived of equitable remedies they would otherwise have available to them because, as noted above, ownership issues — equitable or otherwise — are to be determined before the net equalization payment exercise is undertaken.”

McNamee v. McNamee, 2011 ONCA 533 (CanLII) at 66

“The principles for awarding prejudgment interest on equalization payments are not necessarily identical to those used in commercial cases: McQuay v. McQuay(1992), 8 O.R. (3d) 111(Div. Ct.). The weight of jurisprudence in family law cases at the trial level indicates that exceptions do exist to the usual award of interest on an equalization payment. Specifically, the court’s discretion will be exercised under s. 130 of the Courts of Justice Act, supra, and prejudgment interest will not be awarded on an equalization payment where, for various reasons, the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial, the asset generates no income, and the payor spouse has not delayed the case being brought to trial.  See Rotchill v. Rotchill, [1992] W.D.F.L. 1552; Balloch v. Balloch(1991), 35 R.F.L. (3d) 189; Karakatsanis v. Georgiou(1991), 33 R.F.L. (3d) 263; De Acetis v. De Acetis(1991), 33 R.F.L. (3d) 372; Gregoric v. Gregoric(1991), 4 O.R. (3d) 604; Jukosky v. Jukosky(1990), 31 R.F.L. (3d) 117, all decisions of the Ontario Court (Gen. Div.); and Rickett v. Rickett(1990), 71 D.L.R. (4th) 734(Ont. H.C.) ; Genna v. Genna(February 14, 1990), (Ont. S.C.) (unreported); Woeller v. Woeller(1988), 15 R.F.L. (3d) 120(Ont. Dist. Ct.) ; Humphreys v. Humphreys(1987), 7 R.F.L. (3d) 113(Ont. H.C.) ; and Harry v. Harry(1987), 9 R.F.L. (3d) 121(Ont. Dist. Ct.) . Most of these cases involve the matrimonial home, but some also involve a pension. The approach indicated in cases such as Humphreys, supra, and Gregoric, supra, was specifically approved in McQuay v. McQuay, supra.”

 Burgess v. Burgess, 1995 CarswellOnt 896 at 25

“The Supreme Court of Canada has confirmed the narrow scope of appellate review in all family law matters relating to custody and access:  see Van de Perre v. Edwards,2001 SCC 60(CanLII),[2001] 2 S.C.R. 1014, at para. 11.  An appellate court is entitled to intervene only where the trial court committed a material error, seriously misapprehended the evidence, or made an error in law: Van de Perre, at paras. 11-12.”

Sferruzzi v. Allan, 2013 ONCA 496 at 43

“The appellant’s principal submission that joint custody was inappropriate focused on a portion of the trial judge’s reasons where he said that there was “a realistic hope that these parties will be able to work together for the benefit of their children and without the difficulties of rules and demands”.  The appellant relies upon decisions from this court such as Kaplanis v. Kaplanis(2005), 2005 CanLII 1625 (ON CA),10 R.F.L. (6th) 373, at para. 11, holding that joint custody is inappropriate where there is merely a “hope” that communication between the parties will improve.  These cases indicate that there must be an evidentiary basis for belief that joint custody will be feasible.”

May-Iannizzi v. Iannizzi, 2010 ONCA 519 (CanLII) at 2

“Clause 51(2)(a) of the Child and Family Services Act, R.S.O. 1990, c. c-11, as amended (“the Act”), provides (my emphasis):

	(2)   Custody during adjournment.—   Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,
	(a)	remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
		.  .  .

…

I begin by noting that the question of who had “charge” of the child is not determined by which person had actual physical or de factocustody of the child at the time of apprehension.  In Children’s Aid Society of Algoma v. Teena G. et al.,2002 CanLII 52569 (ON CJ), 2002 CanLII 52569, 125 A.C.W.S. (3d) 1020, [2002] O.J. No. 5483, 2002 Cars­well­Ont 5476 (Ont. C.J.), Justice John Kukurin considered the meaning of “charge of the child”, and stated at paragraph [15] (my emphasis):

[15]          . . .  “Charge” has connotation of authority and responsibility.  “Charge” of a child suggests some established relationship, not something transient or temporary.

See also Children’s Aid Society of Ottawa v. H.C. and C.C. (No. 2)(2003), 2003 CanLII 38754 (ON SC), 2003 CanLII 38754, 127 A.C.W.S. (3d) 1159, 17 O.F.L.R. 152, [2003] O.J. No. 5309, 2003 Cars­well­Ont 5286 (Ont. Fam. Ct.), wherein Justice Jennifer A. Blishen decided that a one-week visit with the mother, where the child had previously lived with the father for two months, was not sufficient to give the mother sole “charge” of the child at the time of the society’s intervention.”

Children’s Aid Society of Toronto v. A.(S.),2008 ONCJ 348 (CanLII) at 7 & 12

“Since Jade is living away from home eight months each year, I find the table amount of child support to be inappropriate for her during the time she lives away from home (subsection 3(2) of the child support guidelines).  The father should not have to both contribute towards Jade’s post-secondary school costs and pay the full table amount of child support, while she is away at school.  In Merritt v. Merritt(1999), 88 A.C.W.S. (3d) 424, 98 O.T.C. 321, [1999] O.J. No. 1732, 1999 Cars­well­Ont 1471 (Ont. Fam. Ct.), the court said at paragraph [73]:

[73]          Where, however, a child is residing in another residence for the bulk of the year, it seems inappropriate to apply tables that are not designed with that living arrangement in mind.  Furthermore, the table approach assumes that the recipient parent discharges her obligation by being physically in the same household and providing the family home and other amenities for the child.  Where a child is at college, this assumption does not hold true.  It therefore seems more appropriate to calculate the actual costs of providing for the needs of the child in his other residence, factoring in a contribution toward the cost of maintaining the family home to return to on weekends and school breaks, where appropriate, and apportion that between the spouses on a Paras approach after considering the child’s own ability to contribute.

I will order the table amount of child support while Jade is at home during the summer.  During the other eight months, I will apportion her expenses between the parents, taking into consideration her contribution to these expenses.  This is a common approach taken by the courts.  See Park v. Thompson(2005), 77 O.R. (3d) 601, 197 O.A.C. 158, 252 D.L.R. (4th) 730, 13 R.F.L. (6th) 415, 2005 CanLII 14132 (ON CA), 2005 CanLII 14132, [2005] O.J. No. 1695, 2005 Cars­well­Ont 1632 (Ont. C.A.); Gagnier v. Gagnier, [2002] O.J. No. 2183, 2002 Cars­well­Ont 5056 (Ont. Fam. Ct.);  Albert v. Albert, 2007 CanLII 29972 (ON SC), 2007 CanLII 29972, 40 R.F.L. (6th) 203, [2007] O.J. No. 2964, 2007 CarswellOnt 4863 (Ont. S.C.).”

Padua v. Gordon, 2008 ONCJ 421 (CanLII) at 9

“Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged.  There is already enough conflict and mistrust in family law cases, without the parties’ worrying about whether the other is secretly taping them.  In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child.  Condoning the secret taping of the other would be destructive to this process.

I agree with Justice Henry Vogelsang who said in paragraphs [5] and [6] of Tatarchenko v. Tatarchenko(1998), 83 A.C.W.S. (3d) 792, [1998] O.J. No. 4685, 1998 CanLII 14087 (ON SC), 1998 CanLII 14087, 1998 Cars­well­Ont 4374 (Ont. Fam. Ct.):

	[5]         . . .  There is a wide scope for potential abuse in this practice.
	[6]         The reliability of such evidence is very difficult to determine, even for a trial judge who has the benefit of much more opportunity to explore all of the evidence than that enjoyed by a motions judge.  The suspicious and disturbing circumstances surrounding the production of this “evidence” convince me that it should be struck in its entirety and should not be before the court.

The court in deciding whether to admit such evidence will need to weigh these policy considerations against its probative value.  The party seeking its admission should establish a compelling reason for doing so.  The reasons that the father put forward in this matter fall well short of this standard.”

Hameed v. Hameed, 2006 ONCJ 274 (CanLII) at 11-13

“As a consequence, the interpretation of the [Bankruptcy Insolvency Act]requires the acceptance of the principle that every claim is swept into the bankruptcy and that the bankrupt is released from all of them upon being discharged unless the law sets out a clear exclusion or exemption. As I will explain below in greater detail, the appellant’s equalization claim was provable in the respondent’s bankruptcy. In light of the provisions of the BIA, it is therefore difficult, subject to one minor reservation concerning the terminology used, to find fault with the Court of Appeal’s holding that the equalization claim had been “extinguished” by the respondent’s discharge. That holding appears to be faithful both to the words of the FPAand to the provisions of the BIA. In this respect, given that Ontario is also an equalization province, it is worth mentioning that the Ontario Court of Appeal recently espoused this reasoning in Thibodeau v. Thibodeau, 2011 ONCA 110 (CanLII), 104 O.R. (3d) 161. I agree with the following comments by Blair J.A.:

Separating spouses are not entitled to receive a division of property. Rather, they are entitled (generally speaking) to receive one-half of the valueof the property accumulated during the marriage. An equalization paymentis the chosen legislative default position. On the bankruptcy side, unsecured creditors are to be treated equally and the bankrupt’s assets to be distributed amongst them equally subject to the scheme provided in s. 136of the BIA. Parliament has not accorded any preferred or secured position to a claim for an equalization payment. While it has recently chosen to amend the BIAto give certain debts or liabilities arising in relation to claims for support and/or alimony a preferred status, Parliament has made no such provision for equalization claims in relation to family property.[Underlining added; para. 37.]”

Schreyer v.Schreyer, 2011 SCC 35 (CanLII) at 20