Coercive Control

Coercive control is abuse that results in real harm.  Recent media coverage on the CBC about adding “coercive control” to the Criminal Code leaves the incorrect impression that there are no legal protections available to victims of coercive control right now.  But, there are options within Ontario’s existing laws now that can give victims of coercive control some protection.

Restraining orders are available from Ontario courts under s. 46 of the Family Law Act and s. 35 of the Children’s Law Reform Act when someone “has reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody”.  These restraining orders can be ordered even when there is no history of physical violence and they will be enforced by police.  And, the new amendments to the Divorce Act require courts to consider “a pattern of coercive and and controlling behaviour in relation to a family member” whenever making a parenting order. 

It is important for the Criminal Code to specifically sanction coercive control because of the harm it causes and because such conduct is often a precursor to even more serious abuse. But, there is a real risk of that victims listening to the news may not seek out the protections that are actually available now while they wait for more protections to be added to the Criminal Code.  Please share this blog and other information so that this does not happen.  Contact a local shelter (such as the Barbara Schlifer Commemorative Clinic), a family lawyer (see the Family Law Limited Scope Services Project for a directory of lawyers who provide limited scope and summary advice) or search Community Legal Education Ontario for more information. 

Change is in the Air

The month of March always brings seasonal change, but in the world of Ontario family law, this March is also bringing systemic change.  As of March 1st, changes to the Divorce Act and the Children’s Law Reform Act came into force.  This month also marks one year since Covid-19 caused our court system to pause and pivot to a primarily online system.  When there is this much change all at once, it can be challenging to figure it all out.  Here are 10 tips to help make sense of the new changes: 

1.    The Ontario court forms have been updated and there is no “grace period” for filing the old forms; Anything filed after March 1st must be in the new format or it will be rejected; 

 2.    The specifics for how these forms are to be named and filed varies between levels of court and court locations.   It is now necessary to refer three sets of procedural rules for each step in a court case: 

a.    the Family Law Rules;

b.    province-wide practice directions found on the Ontario courts website; and  

c.    local practice directions,

i.    for the Superior Courts of Justice, practice directions listed by judicial region are available on the Ontario Courts website; 

 ii.    for the Ontario Court of Justice, the local practice directions page on the Courts website has not been updated in over a year, but in Toronto you can check for the most recent practice directions on the 393Mediate website and for courts outside Toronto you need to refer to regional lawyer’s association websites;

 3.    The law relating to child support, spousal support and property division has not changed;

 4.    The old legal terms “custody” and “access” have been replaced with “parenting orders” about “decision-making”, “parenting time” and “contact”;

  5.    The new legislation sets out a much broader definition of “family violence” to recognize the true harm that all forms of physical and emotional violence can have on a family, particularly during these pandemic times;

 6.    There are new more specific rules about what needs to happen when one parent wants to move or relocate with a child, set out at paragraph 16 of the amended Divorce Act and at sections 39.1 to 39.4 of the amended  Children’s Law Reform Act and its new Regulation;

 7.    The changes related to moving or relocating with a child include new notice provisions and new forms for giving that notice and the forms can be found online:

a. on the Department of Justice website for the Divorce Act version (that applies to married spouses), and

b. on the Children’s Law Reform Act forms section of the Ontario court forms website for the provincial version (that applies to non-married spouses or to any party to a court proceeding in the Ontario Court of Justice);   

 8.    Reliable guides about the changes to the federal Divorce Act can be found on the Department of Justice website and for the Ontario Children’s Law Reform Act changes, see Community Legal Education Ontario’s Steps to Justice pages online;  

 9.    These changes to the legislation are new, but those of us who work in family law are already familiar with most of them because they come from trends that have been developing in family law practice both in and out of court over the past few years; and

 10. These changes are meant to modernize and streamline family law, but they can be confusing.  When in doubt, reach out to a family lawyer for guidance. 

Photo by Agnieszka Ziomek on Unsplash

Taking A Break?

10 Tips for a Trial Separation

2020 was a tough year on everyone and 2021 certainly isn’t giving us an easy ride so far.  If you and your spouse are “taking a break” to figure things out, consider these 10 tips to help you get back to a better relationship or to help you move toward a successful long-term separation.

1.       Take care of yourself.

Take time to take care of your physical and mental health.  The #BellLetsTalk campaign has great links to self-help and professional supports at https://letstalk.bell.ca/en/ways-to-help .  Remember that when you take care of yourself, you are also more able to care for your relationships with your spouse, family and friends.

 2.       Communication is key. 

Whether you work things out or not, you are going to have to continue to communicate.  Take the time now to consider how to improve that communication.  There are lots of excellent resources online.  Or, if you want more guidance, a family and marriage therapist, social worker or family lawyer can recommend some for you.

 3.       Confirm temporary decision-making for children.

Ontario law says that if a parent moves out without their children or agrees to the other parent doing so, the right of the parent who is not residing with the children is to make major parenting decisions is suspended until a court order or agreement provides otherwise.  Avoid this unintended consequence by confirming in writing that both parents will continue to be involved in making major decisions affecting the children, at least on a temporary without prejudice basis.

 4.       Spend time with your children.

You might need a break from your kids as well as your spouse, but remember that what you do now can set up a new status quo which may last much longer than expected.   Make sure that you continue to spend quality and quantity time with your children.  Use technology to stay connected when in-person contact isn’t possible.   Check out the free Parenting Plan Guide at https://afccontario.ca/parenting-plan-guide-and-template/ for age-appropriate ideas.

 5.       Consider “nesting”.

This isn’t the nesting you did before your kids were born.  A “nesting arrangement” during separation is when spouses take turns in the home on their own.  When there are children, the kids stay in the house and the parents take turns at home to give each other some space.  You can have a nesting arrangement with everyone still living at home and one parent staying distant during their “off” time.  Or, each spouse can actually stay elsewhere for their days and nights away.  Remember that during Covid-19 all public health protocols must be followed and that you need to let your spouse know where you are staying when you are not at home.

 6.       Be careful with gifts and loans you receive.

What you do with financial gifts and loans from family members or other third parties received during marriage can have a big impact on the financial settlement after separation.  Get advice from a family lawyer, particularly if you are thinking about investing the money in your family home. 

 7.        Share financial information.

If you aren’t sharing that information yet, now is a good time to start.  Financial stress is one of the leading causes of relationship breakdown.  Separated spouses are required to share complete financial information with each other.   So, if you do hide financial information,  you will harm the trust needed to make a relationship work if you get back together and you will destroy your credibility and your case if you do separate.  Connect with a financial professional familiar with family law issues.  If you don’t know of someone, see https://collaborativepracticetoronto.com/ or https://www.fdrio.ca/members/?filter_areas-practice_1fda0=Finance .

 8.       Continue the financial plan on a “without prejudice” basis.

Pay what you have been paying on a without prejudice basis.  Your financial obligations continue whether or not you separate.  If you do separate on a permanent basis, there can be an accounting of who paid what from the separation date onward to make sure that everyone actually paid their fair share.  Make sure the bills are paid now and figure that out later.  Keep records of what you pay and statements that show the balance on any accounts.

 9.       Get professional advice. 

Separation has a significant impact on some legal rights and obligations.  Check with reliable online resources like Community Legal Education Ontario www.cleo.on.ca and a lawyer to make sure you understand how separation affects you.  Many lawyers offer limited scope consultations at reasonable rates.  See www.familylawlss.ca for more information. 

 10.   Don’t be afraid to try reconciliation.

You never know, it might just work!  You can find listings for certified marriage and family therapists at https://oamft.com/ .   If it doesn’t work out your separation date will be when you initially separated, unless you reconcile for more than 90 days.   

Service by Email: Challenges & Opportunities for International Service

Have you sent family law legal documents to someone in another country recently? If you have dealt with an international service issue recently, I would love to hear from you. I am updating my international service practice note for Lexis Practice Advisor® and would like to include practical tips in the update from other lawyers and individuals, particularly anyone who has dealt with service abroad during Covid-19. When we share our experiences, we can learn from each other and truly develop best practice guidelines for all.

Following the rules of the Hague Convention on Service Abroad was challenging even pre-Covid-19. Covid-19 brings new challenges but also new opportunities to reinterpret these rules for the modern age. With proper interpretation and good practice tips, we can ensure that these procedural hurdles do not become access to justice barriers.

With Covid-19, any in-person activity, including serving court documents, becomes more complicated. The good news is that the Hague Conference on Private International Law, which offers practical guidance on how to apply the Hague Service Convention rules, says that “there is nothing in the Service Convention that would prevent a State from effecting service by electronic means.” The tricky part is that service by “electronic means”, which includes email, must be permissible in both the country where the document originates and the country where the recipient is located. Thanks to Covid-19, our Ontario Family Law Rules were amended in September and finally embrace service by email as a valid form of regular service. (See Rule 6(2)(e).) Now, service that takes place by email on someone in a foreign jurisdication can be considered valid by an Ontario court in some circumstances.

The practical information relating to the rules for service on someone abroad is constantly being updated. New countries sign on to the Hague Convention on Service each year and others update their technical rules. Up to date information can be found online at https://www.hcch.net/en/instruments/conventions/specialised-sections/service . I strongly recommend that anyone who needs to send legal documents to someone outside of Canada get legal advice from a lawyer with recent experience with these issues. The time and cost wasted if service is not done properly can be significant.

User Responses Needed for Access To Justice

This week is Access to Justice (A2J) week across Canada.  I have enjoyed the discussions led by lawyers at A2J Week programs this week.  But, what I really want to know is the opinion of the people who use these legal services.  Did unbundled or limited scope services actually help?  What were the problems and what worked well?  We need this input to ensure that the legal services we provide truly meet people’s needs. 

So, if you, or a person you know, is dealing with a personal family law issue and is either working without a lawyer, or is using unbundled or limited scope services, please take a moment to share your personal opinion on any of these current surveys which are easily accessed online:

https://uwo.eu.qualtrics.com/jfe/form/SV_d4NxblkC3XBrc3j “Client Survey About Unbundled Services” by Dr. Rachel Birnbaum at the University of Western Ontario in collaboration with the Family Law Limited Scope Services Project;

https://www.surveymonkey.com/r/2016Intake “Self-Represented Litigant Intake Form” by The National Self-Represented Litigant Project at University of Windsor, asks simple and specific questions about your personal experience going to court without a lawyer; and

https://forms.gle/sp2zLcEVWmz5cFyV7  ‘”Family Law Online Workshop Survey” by The Family Law Workshop (Lisa Eisen & Susan Blackwell) asks for your input in developing online workshops for the public.

To find out what past surveys have taught us about the experience of people going to court without a lawyer or who use limited scope legal services, see:

https://prism.ucalgary.ca/handle/1880/107805 , Client and Lawyer Satisfaction with Unbundled Legal Services:  Conclusions from the Alberta Limited Services Project (2018) by John-Paul Boyd, Canadian Research Institute for Law and the Family; and

https://representingyourselfcanada.com/wp-content/uploads/2016/09/srlreportfinal.pdf The National Self-Represented Litigants Project:  Identifying and Meeting the Needs of Self-Represented Litigants, Final Report May 2013

Family Law Online Workshop Survey

I am creating online family law workshops for the public and would like your input! Please take a minute to complete this survey https://forms.gle/sp2zLcEVWmz5cFyV7 . My colleague Lisa Eisen (https://www.familylawalacarte.ca ) and I led in-person small group workshops about family law before Covid-19 changed the way the world works. We are planning to continue The Family Law Workshop in a Zoom video conference format. We have lots of great ideas to use in this new format, but would like to hear directly from our clients before finalizing our plans.

Cross-Border Couple’s Ordeal Shines Light on the Many Meanings of “Common Law”

Last weekend a couple crossing the Canadian/American border together were told they didn’t count as “common law.” The American woman who had been living and travelling with a Canadian man in their RV for over a year was not allowed into Canada.  She found herself stranded at the border with no vehicle and no idea when she will be allowed to join her partner in Canada.  Their ordeal is described in the CBC article https://www.cbc.ca/news/canada/canada-u-s-border-couples-government-1.5628647.  This couple’s upsetting experience highlights the confusion about the meaning of being a “common law” couple in Canada. 

Couples who have started living together should consider getting a quick legal opinion about the legal status of their relationship from a lawyer who provides limited scope legal services.  Couples don’t need to wait and find out the hard way when they are stuck at the border or their relationship is in trouble.   With limited scope services, you can get a legal opinion which clarifies your rights and responsibilities during your relationship.  There is no need for an expensive retainer deposit or an ongoing relationship with a lawyer.  The whole idea of a limited scope service is to pay a little bit now to understand your legal rights and responsibilities. Then, you can make better choices and avoid the problems that would cost a lot more to fix later. 

If the couple crossing the border in their RV had received legal advice, they would have known that what counts as “common law” is actually different for different legal purposes and in different locations, even within Canada.  For federal income tax purposes, an intimate partner is considered to be a spouse after just 1 year of cohabitation, as set out in the Income Tax Act.  For spousal support purposes in Ontario, the Family Law Act requires 3 years of cohabitation or being the parents of a child who have “cohabited in a relationship of some permanence.”  Claiming a share of a common law spouse’s property is even more complicated.  In Ontario, you need to have cohabited in a “joint family venture” as defined by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10 http://canlii.ca/t/2fs3h .

Immigration Canada uses the “cohabit for 1 year” definition.  So, you would think that the couple trying to cross the border in their RV should have qualified.  But, as family lawyers know, sometimes what actually counts as “cohabiting” can get tricky.  The border agent had been told that the couple needed to have the same permanent address to be considered “cohabiting”.   Family lawyers know that having the same permanent address is one factor to consider in determining spousal status but it is definitely not the only one.  The list includes “shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple” as confirmed by the Supreme Court of Canada  in M. v. H. [1999] 2 SCR 3 http://canlii.ca/t/1fqm4 . These factors have been considered by courts in many cases both before and after M. v. H., including the recent Ontario Superior Court case Jackson v. Moore (2019) ONSC 6477  http://canlii.ca/t/j49w6 .

I don’t mean to suggest that border agents should get into a Supreme Court worthy analysis each time a couple crosses the border.  But, I do think that Immigration Canada should educate their staff better so that people don’t have to go through frustrating experiences like the couple travelling across the border in their RV.   And, people should know that lawyers can help in these situations.   We can give advice about legal rights and responsibilities.  We can anticipate problems and come up with creative solutions.  For example, it is common for parents who travel across international borders, including the US border, to take a Consent to Travel form with them when they travel with their children without the other parent.  Maybe we need to think about developing a similar form for cross-border couples that confirms their spousal status to make border crossings easier.   No matter what, it is a good idea for couples who are cohabiting to get some legal advice.  As this RV couple unfortunately found out, living together is not as straight forward as it might seem. 

Access to Justice: People First

Did you know that Canada ranks only 56th out of 128 states in term of access to justice in civil legal matters?  Former Chief Justice Beverly McLachlin shared that troubling statistic during the Committee on Access to Justice’s “Access to Justice: People First” program that I attended by Zoom on Tuesday. The “conversation” between Beverly McLachlin, Bob Rae and Megal Longley was moderated by CBC’s Duncan McCue. They all agreed that the Covid-19 pandemic has highlighted inequities in our society and justice system that have existed for a long time.  And, they agreed that now is the moment to seize the opportunity to make real change and truly improve access to justice for all.  The discussion, as might be expected from such an esteemed panel, was thoughtful and thought-provoking.  I have set out below the “take-away” ideas from each speaker that really stood out to me. 

Beverly McLachlin noted the importance of increasing band-with in remote areas and affordable internet services everywhere. She pointed out that the innovations in legal technology that our courts are finally embracing will improve access to justice for Canadians, but that we will leave low income Canadians and those in remote locations behind if we don’t address challenges to access to technology at the same time.  Bob Rae mused about Covid-19 being the great “revealer” and about the opportunity to share legal information and access to technology through community legal hubs, such as legal clinics and libraries.  And Megan Longley, the director of Nova Scotia’s Legal Aid, talked about helping people at early stages “way before they get to a courthouse”.   She suggested that New Zealand’s wrap-around service model, where all legal and related services are available at one location, is an international innovation that is worth looking at and adapting for Canada.     

Duncan McCue asked about cultural competency training for lawyers and judges, which was one of the recommendations of the Truth & Reconciliation Commission.  The panel acknowledged that there has been some progress on that front, but that it has been slow.  From my personal experience, I have noticed that there has been a significant increase in the continuing education programs available to lawyers that are devoted to indigenous and racialized perspectives.  Lawyers in Ontario are now required to complete 1 hour per year of professional development related to Equality, Diversity and Inclusion.  This requirement is certainly a step in the right direction because it helps us broaden our mindset and ensure that we can better serve the diverse community in which we live.  But, it’s certainly going to take more than one hour per year to reach this goal. 

Let’s take these ideas and put them into action.  Duncan McCue’s reminder about the call to action from the Truth and Reconciliation Commission has inspired me to move from being interested in to actually registering for FDRIO’s “First Nation’s Insights on Family Law” webinar on July 10.  Bob Rae’s idea about legal technology hubs got me thinking.  I know that the Toronto Public Library has already launched an Internet Connectiviy Kit program which provides a free laptop and unlimited Wifi to vulnerable residents for 4 months and a Wifi Hotspot Lending Program which lends devices to eligible residents for up to 6 months. (See https://torontopubliclibrary.typepad.com/news_releases/2020/05/free-internet-connectivity-kits-from-the-library-provide-vital-connection-for-some-of-torontos-most-.html.) If our “new normal” is going to include virtual court hearings, why not have private rooms available in community centres such as libraries that can be reserved where free internet, a computer and a safe space is available for someone who does not have access to those resources at home?  It would not be a big stretch to expand the current Toronto Public Library programs to include this type of service. 

How do we make sure that our society seizes the moment to make these needed changes?  Bob Rae says that the political will to make the changes will be there because it is less expensive to have a more accessible and efficient system.  And, people are demanding it.  Beverly McLachlin says that governments need to feel that they have the public behind them to have the confidence to push these changes forward and budget the funds needed to make them happen.  That means that those of us who have experience with access to justice challenges, either as lawyers or as individuals accessing the justice system, must tell our MP’s and MPP’s that we need and want these changes.  Let’s share our ideas and keep the conversation about access to justice going.  Let’s actually seize this moment and improve access to justice for all.  

PRIDE

The U.S. Supreme Court just confirmed this week that civil rights protections apply to transgender workers in their employment (See https://www.cbc.ca/news/world/us-supreme-court-lgbtq-1.5612327 .)  Thankfully, Canadian courts and governments came to similar conclusions decades ago.  Sexual orientation has been a prohibited ground of discrimination under the Ontario Human Rights Code since 1986.  Gender identity and expression was added as a prohibited ground in 2012. This PRIDE month, I am reflecting on how proud I am to be part of that Canadian legal community. 

I am also proud to be part of a community of Toronto family lawyers who have taken on cases that have pushed the law forward. M. v. H. http://canlii.ca/t/1fqm4 which was decided by the Supreme Court of Canada in 1999, ultimately led to the legalization of same sex marriage in Canada.  Legal definitions for “spouse” and “parent” have been amended and updated to make sure LGBTQ+ relationships are included. Many individuals and lawyers have worked long and hard for these changes. I should be clear that my contribution has been to simply cheer quietly from the sidelines. But I do take pride in the accomplishments of my colleagues. I do take pride in being part of a professional community that strives for justice for LGBTQ+ families.

But, it’s 2020 now. More than twenty years have passed since M. v. H. and we still have more work to do.  We need to think about how our law, most of which was developed with two-parent heterosexual families in mind, applies to LGBTQ+ families.  How do the Child Support Guidelines apply when a polyamourous relationship breaks down?  More importantly, how should they apply?  How do we show transgender spouses that they are valued and included by a profession that routinely refers to “Husband” and “Wife” in our precedents?  How do we protect people from discrimination in a digital world when personal details of their most intimate relationships are reported by name and searchable by anyone on the internet?   How do we make sure that LGBTQ+ spouses feel they will get fair treatment in court, free of bias and prejudice, so that we can ensure access to justice for these families? 

We need to have more conversations about these questions so that lawyers have answers which will actually lead to fairness and justice for LGBTQ+ people.  If you would like to be part of this conversation, please contact me to share your ideas.  Or, start your own conversation among your circle of friends and colleagues about what PRIDE means to you and what you can do to move fairness forward. 

Moving Out

A recent family law case from the Ontario Court of Justice reminds individuals and lawyers that it is important to make a temporary agreement about decision making for children before either parent moves out.   In Panaia v. Alves, 2020 ONCJ 255, Justice O’Connell found that the father had consented to the mother leaving with the child and then cited s. 20(4) of the Children’s Law Reform Act.  S. 20(4) says:

Where the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other of them, the right of the other to exercise the entitlement of custody and the incidents of custody, but not the entitlement to access, is suspended until a separation agreement or order otherwise provides. 

S. 20(4) applies to all parents at the Ontario Court of Justice and unmarried parents at the Superior Court of Justice.  During this time when access to courts is limited, it is more important than ever for parents to leave home with a parenting plan in place.  Otherwise they will be surprised to know that their right to be involved in decision-making for their children has been automatically suspended and will continue to be suspended until their former spouse agrees or a court orders otherwise.