Celebrities Jennifer Garner and Ben Affleck are setting a good example for looking out for the best interests of the children. They are reportedly renovating their matrimonial house to allow the ex-spouses to live under the same roof. While their house is being renovated, they are renting a house close to their previous residence. This is a very thoughtful, child centered approach to parenting post separation, which is bound to assist the children with the transition that the family is going through.
Gail Vaz-Oxlade, financial writer and T.V. host of of the show Till Debt Do Us Apart, states that money is the number one reason for couples to seek divorce (http://www.gailvazoxlade.com)
Therefore, it is vital that couples should adopt healthy financial habits to build a strong relationship. Pramod Udiaver’s article offers useful financial tips for couples to live ‘happily ever after’. His tips are practicle and applicable. He asks couples to learn about each other’s financial habits, including savings and spendings patterns; set financial goals together; plan bank account structures; and make budget for living expenses. He also asks couples to give thought to securing insurance to protect financial health of their relationship againt disability and death.
Subsection 17(4.1) of the Divorce Act states that a previous spousal support order may be changed if the court is satisfied that a change in the condition, means, needs, or other circumstances of the parties has occurred.
The circumstances that are generally considered by the court includes loss of employment; attainment of employment; disability; and increment in income.
A recent Ontario Superior Court decision on this issue is Robitaille v. Trzcinski: http://www.canlii.org/en/on/onsc/doc/2015/2015onsc4621/2015onsc4621.html
There is a two step test for a variation order. First a court determines if conditions validating a variation exists and then the court determines how the order should be changed (L.M.P vs L.S 2011 SCC 64: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7982/index.do?r=AAAAAQAMTC5NLlAgdi4gTC5TAQ).
The onus of establishing that a variation has occurred is on the party seeking the variation order.
There are four main kinds of Custody Arrangements:
1) Sole custody: grants one parent the authority to make decisions for the child(ren)’s upbringing or well-being, including the child(ren)’s education, health and religion. The child(ren) resides with the custodial parent and may or may not have access with the other parent.
2) Joint Custody: grants both parents equal rights and responsibilities of the child(ren) and allows them to make decisions for the child(ren) together. Because of the interconnection between the parties, this custody arrangement requires cooperation between the parents. Child(ren) usually resides with one parent and has access to the other parent.
3) Shared Custody: affects the child support payments made by the assessing parent. If the accessing parent has the child(ren) residing with them for at least 40% of the time, then the child support payments may be reduced.
4) Split Custody: grants each parent the custody of some of the children by splitting the residence of the children between the parents. Courts are reluctant to award this custody arrangement, especially for families with young children.
Courts are reluctant to make orders about changing children’s school and encourage the parties to resolve this issue amicably amongst themselves. When the parties cannot agree on this issue, the onus is on the party moving to change the children’s school to prove that the move will be in the best interests of the children, from the children’s perspective.
In a recent Superior Court of Justice decision, the Honourable Mr. Justice Fragomeni made a ruling on this very issue. The following factors are generally considered when the courts are determining whether a change of children’s school should be made or not:
1) any impact on the stability of the children from moving school(s);
2) how many years the children attended the current school for;
3) whether there is any prospect of one of the parties moving in the near future;
4) where the children were born and raised;
5) whether a move will mean new child care providers or other unsettling features for the children;
6) whether the parties made decisions prior to the separation or at the time of separation with respect to schooling; and
7) if there are any problems with the present school.
Section 24 of the Children’s Law Reform Act compels the merits of a custody or access application to be grounded on the best interests of the child(ren). To determine the best interests of a child, courts consider all the needs and circumstances of the child, including:
a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
b) the child’s views and preferences, if they can reasonably be ascertained;
c) the length of time the child has lived in a stable home environment;
d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
f) the permanence and stability of the family unit with which it is proposed that the child will live;
g) the ability of each person applying for custody of or access to the child to act as a parent; and
h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
Generally, the courts are not inclined to involve children in custody and access hearings. However, custody assessments may be ordered in cases where more light needs to be shed on the issues. Custody assessments are generally conducted by psychologists or social workers who bring voice to the children’s best interests. The assessors typically speak with the parties involved, children, grandparents, teachers, doctors, and other important people, to determine the best interests of children. Some teenage children may voice their concerns to the court themselves, if the court, children and parties see their involvement in court hearings necessary.
In family law, when parties enter into a separation agreement to deal with the issues in their matter, one or more parties may afterwards wish to set aside the terms of the agreement that they entered into or set aside the entire agreement itself. For instance, the access terms as mentioned in the agreement may no longer be applicable or may no longer serve the best interests of the children.
In such circumstances, the parties may wish to set aside the separation agreement through mutual consent or a court order. Courts have expressed their opinion on setting aside separation agreements on a number of occasions. Generally, courts are inclined to set aside a separation agreement if the following factors are in play:
1) lack of full disclosure, financial or otherwise, made at the time when the parties entered into the agreement;
2) low level of understandability of the parties when the agreement was entered into;
3) whether the agreement is unconscionable ;
4) presence of abuse or intimidation;
5) whether a lawyer was retained by each party;
6) whether the parties engaged in negotiations; and,
7) if the contract was more advantageous for one side than the other;
The fact that parties entered into an agreement does not preclude the parties from attending court to amend any unreasonable or unconscionable terms of their separation agreement.
Dr. Dona Matthews’ article, After Divorce: Ten Principles for Parenting, in Psychology Today provides a good guideline for parents undergoing a period of transition. Dr. Matthews encourages acceptance of the disruption caused by and adoption of a mature attitude towards the transition. She suggests that parents should make themselves more available for their children and should instil predictability in the children’s schedule. Further, she emphasizes the parents to attribute positivity towards the other parent and create strong friendships within the family.
Sometimes a legal proceeding may be commenced under circumstances where one party is not in a position to respond to the proceeding. In fact, sometimes a party may not have filed any material or may not have able to make an appearance before the court. In such circumstances, a default judgment may be entered against such a party and it may prohibit the party from participating in further proceedings.
However, all is not lost when a default judgment is entered against a party, as a motion could be brought to set aside the default judgment. The test for setting aside a default judgment has three considerations:
1) was the motion to set aside a default judgment promptly made after the applicant becomes aware of it;
2) does the moving party’s affidavit give a plausible/adequate explanation for the default; and
3) has the moving party set forth facts to support that there is at least an arguable case to present on its merits.
These considerations are not rigid in a manner that the failure of fulfilment of one leads to the dismissal of the motion. In a recent Superior Court decision, Kiteley J. noted that a “motion judge must ultimately determine whether the interests of justice favour an order setting aside the default judgment and consider the potential prejudice to the moving party if the motion was dismissed as well as the potential prejudice to the responding party should the motion be alowed as well as the effect of any order the motion judge may make on the overall integrity of the administration of justice”.
Usually courts are reluctant to make a sole custody and supervised access order following a liberal parenting arrangement entered into on consent by the parties. However, in the recent Superior Court decision, Al-Farawi v. El-Farawi, the Honourable Regional Senior Justice Heeney made such an interim order. The factors that the court considered in making the order included:
1) Consent being entered into due to pressure from family;
2) The caregivers of the child present at the time of the consent order but not present or capable anymore;
3) Father not seen as capable of taking care of the child;
4) Consent order being made on a without prejudice basis;
5) Father having serious charges laid against him that could lead him to incarceration for about two years and father having no plan for care of the child if he was incarcerated;
6) Father being psychologically unstable;
7) Father having ‘undesirable companions’ visiting the home where the child resided with him;
8) Father’s probable abuse of drugs;
9) Father’s lack of responsibility for his behavior;
10) Risk of the child being exposed to violence while in father’s care; and
11) Report from the Children’s Lawyer in favour of the child being in the care of mother.
The father was ordered to attend partner assault response program and parenting program. Further, he was ordered to get a hair follicle drug test.