Followers of this blog may recall the posts my partner Sarah Boulby and I did, in June and July 2012 respectively, on the controversial Ontario Court of Appeal case Dovigi and Razi. Well, big news to those of us in family law, counsel for the father is seeking leave to appeal the decision to the Supreme Court.
To refresh your memories, and for those just joining us, the case dealt with the appropriate jurisdiction within which to address the custody of a new born baby. Ms Razi, seven months pregnant, left Ontario to visit family in California where, a few months later, she gave birth to a daughter. Mr Dovigi, the father, had consented to the trip on the understanding that mother and baby would be returning to Ontario, where she and Mr Dovigi were permanent residents. Following the child’s birth, Ms Razi did not return to Ontario. Instead, she announced her plans to remain in California. Mr Dovigi sought the return of the child to Ontario within days of her birth, based upon Ontario’s jurisdiction over the baby. To counter that, Ms Razi argued that the birth of the child in California, along with her decision to live there with the baby, should settle the matter and give the California court jurisdiction to deal with the issue of custody. The motion judge invoked the court’s parens patriae jurisdiction and decided the appropriate forum was Ontario. The Court of Appeal reversed the motion judge’s decision.
Counsel for Mr Dovigi has sought leave to appeal the decision to the Supreme Court of Canada. Their position is that the jurisdiction issue addressed in the case is of import to all Canadians, given the prevalence of cross-border relationships. They argue that the May 31, 2012 decision of the Ontario Court of Appeal does not provide a clear answer to the essential question of jurisdiction, which will cause problems in the future. I have to agree.
The Court of Appeal decision seems to suggest that, other than in special circumstances, wherever the mother chooses to give birth determines the jurisdiction of the Court deciding custody. These circumstances are unclear and seem somewhat biased i.e. if we trust the courts in the other jurisdiction, if they are “like us”, or not. Although Mr Dovigi’s counsel is arguing that leave should be granted on a number of grounds, it is the concern about a social policy that encourages expectant mothers to leave and give birth outside of Canada in order to prevent Canadian courts from having custody jurisdiction that captures my attention.
Framed more simply, should a woman’s right to choose her domicile permit her to choose the court’s jurisdiction? This seems a rather unfair and arbitrary way of resolving a very serious question. What about the Ontario legislation providing the mother and father are equally entitled to custody of the child and that a determination of best interests (i.e. custody) should occur only in the jurisdiction to which the child is most closely attached? Do Canadians really beleive that all parents are equal but mothers are simply more equal? (Apologies to George Orwell) Where is a newborn child’s habitual or ordinary residence?
If the Court of Appeal decision stands, then the mother’s dictates prevail and the parent giving birth is given a significant advantage. The mother would be able to unilaterally decide where to give birth, where she and the child will live and the Court to have jurisdiction in adjudicating custody. Can this be right? Do father’s rights come second to mother’s by virtue solely of the fact that mothers carry the child? We will have to wait and see.
Family law cases may take many years to work their way through the courts. Court delays vary widely across Ontario. In some parts of the province cases move to trial quite promptly but in many areas cases can drag on for years lingering on overloaded trial lists. In the meantime, the spouse who is the plaintiff, that is the person seeking financial recovery, must worry about whether any money will be left or be accessible at the end of day if there is success at trial. It is possible to seek interim or temporary non-dissipation orders to secure assets pending trial. The defendant spouse may have good reason to object to any order that resembles judgment without trial, so the standard to obtain a non-dissipation order must be a high one. The limited efficacy of non-dissipation orders is illustrated by the decision of the Court of Appeal in Davydov v. Kondrasheva  ONCA 488. This was an appeal from a contempt order made to enforce a non-dissipation order.
Ms. Kondrasheva initially obtained a non-dissipation order from the Family Court of the Superior Court of Justice. The order was a mutual one that neither party dissipate assets. Clearly the motions judge intended to try to maintain the financial status quo of each party at the early stage of what appeared to be a high conflict case. Mr. Davydov learned of this order but chose to transfer almost $800,000 to an account in Cyprus in the face of the order. He did so, he said, to pay a legitimate debt which he had owed since before the separation.
Ms. Kondrasheva returned to court alleging that Mr. Davydov had breached the non-dissipation order and sought a contempt order against her husband. The standard for contempt is very high. A court must find that the order that has been breached is clear and, applying the criminal law standard of beyond a reasonable doubt, that the breach was deliberate. The motions judge found Mr. Davydov in contempt. The Court of Appeal set this finding aside and sent the case back for a trial of the issue. The Court of Appeal directed that the trial court must determine the legitimacy of the debt and how its payment would impact on equalization.
This decision is a good example of the pitfalls in non-dissipation orders. If Ms. Kondrasheva wanted an order to prevent her husband from moving funds from a specific account she needed a much more specific order. Absent specific language mandating the preservation of a particular asset a spouse is entitled to continue to pay regular and legitimate debts as they come due or, perhaps, change the character of an asset from a liquid and easily collectible bank account to a much more illiquid asset. To obtain orders that prevent a spouse from paying debts as they come due or managing his or her assets pending trial is very difficult to do and rightly so as such orders can cause serious damage to the other spouse’s ability to manage his or her business affairs or meet their obligations. With a general order like the one that Ms. Kondrasheva obtained, the spouse faces the obstacle of trying to challenge the legitimacy of a debt which can be very difficult to prove. This case illustrates the key problem. Once the funds have left the jurisdiction the horse is out of the barn and contempt proceedings are a cumbersome and often inadequate means of redress.
It’s fall. Time for the celebration of the High Holidays and Thanksgiving. These holidays are about connections: about family and community. About coming together and giving thanks for our many blessings. When you are newly single, the idea of giving thanks on Thanksgiving (or Rosh Hashanah) can be difficult to fathom. The holidays are the locus of many traditions and memories. The images of perfect happy families are everywhere. Expect your first holiday(s) alone to be tough. Here are some pointers on how to get through – and maybe even enjoy- this first holiday, and those to come.
Make sure to celebrate. The break-up is not the end of your life or your family. It is not the end of your happiness. Yes, you may have to change how you celebrate the occasion. But the true meaning of the holiday has not disappeared. This experience, as hard as it is, may bring a fresh perspective and a new understanding. The holidays endure through everything. Because of that fact, they provide stability and consistency. They reassure us that there are some things that will not change.
Don’t beat yourself up. Be patient with yourself and your family. Yes, you will be nostalgic. You’re only human. Sure, you will miss the good old days but, remember; the good old days weren’t always good (to quote Billy Joel). And maybe your new days will be even better. Accept that there may be tears. Take it one holiday, and one day, at a time. Don’t put all of your attention on how things were. Focus on how great things could be and take the necessary steps to get there.
Compromise. Be flexible. Keep the traditions you want, but try new things too. Finding a creative way to celebrate may be the start of a new tradition. Who says Thanksgiving has to be celebrated on the official calendar marked Thanksgiving Day? Choose a different day. It is about being thankful, not about the second Monday in October (hurray for Canada).
Think of your kids. Don’t let your feelings colour the holiday for them. Keep their health and happiness at the forefront of your mind. Although you should never speak ill of your ex in front of the kids, it is particularly important not to do so at holiday time. It may be hard to have to share the holiday with your ex, but try to be civil and flexible when you do. Don’t complain about having to “share” the children for the holidays. Likely they already feel guilty about having to divide their time between you two. Remember – the children have their own feelings of loss to deal with. Be sympathetic to that. Listen. Complaining will just make things worse, and may actually make them resentful. You don’t want to make this the Thanksgiving they’ll never forget for all the wrong reasons. Your kids still need both parents. Make them feel happy and special about having the two of you to celebrate the holiday with.
List what you are thankful for. This may be the hardest of all. It is easy to spend the holidays thinking about how the break-up has changed your and your children’s lives. In the midst of divorce, it’s difficult to appreciate the good things that are still a part of your life. Try to step back and focus on enjoying, celebrating and making the most of what you do have.
The vexing question of what limits the law places on a spouse who wants to leave a surviving widow or widower without any inheritance has been addressed in a recent British Columbia Court of Appeal decision, Mawdsely v. Meshen (2012) CarswellBC 1508. The case concerns a common law couple who lived together for 18 years until the wife’s death from cancer. The wife, Ms. Meshen, had assets and income greatly in excess of the husband, Mr. Mawdsley. She arranged her affairs, however, so that shortly before her death she transferred virtually all her assets into a trust for her own benefit and the benefit of other family members, including her children from her two previous marriages. She left nothing to Mr. Mawdsley in her will. Mr. Mawdsely contested the transfer of the bulk of Ms. Meshen’s wealth into the trust, arguing that it was a fraudulent conveyance designed to defeat his claims as her spouse.
The source of Ms. Meshen’s wealth, which amounted to over $10million, was a business established by her second husband who had predeceased her. She had three children, two from her first marriage and one from the second marriage. The youngest child suffered from health problems. Ms. Meshen’s second husband’s brother was also involved in the business. Ms. Meshen decided that she wished to settle the bulk of her assets on a trust leaving very little in her estate at death. She included her children and her husband’s brother as beneficiaries of the trust. The arrangements to set up the trust were undertaken when Ms. Meshen was terminally ill and aware of her impending death. She also added her daughter as joint owner of bank accounts. At her death her estate had virtually nothing in it. Her will left nothing to her husband.
Mr. Mawdsley was aware of much of the planning and present at meetings with Ms. Meshen and other family members and advisors concerning these arrangements. Ms. Meshen’s professional advisors reported after her death that she had showed no concern for the possibility that Mr. Mawdsely might challenge the trust or the will after her death. She told the advisors that she and Mr. Mawdsely had an oral agreement that neither expected to share in the other’s wealth.
Ms. Meshen’s expectations were not met. After her death, her widower did indeed challenge the transactions. If Ms. Meshen had died with a substantial estate, he would have had statutory claims as her common law spouse against her estate for support which he could have realized against the assets held in the estate. Mr. Mawdsley argued that Ms. Meshen had made a fraudulent conveyance by creating the trust shortly before her death and, thereby, rendering any claim by him against her denuded estate futile. Mr. Mawdsely failed on the technical basis that until Ms. Meshen died, he had no claim against her. They were not separated so he had no claim as a separated spouse and, until her death, he had no claim against her estate. In any case, the court held that Ms. Meshen’s belief that Mr. Mawdsely did not want or expect to share in her wealth was honestly held, if somewhat naive.
The court did find that the bank account funds were held in trust for the estate by Ms. Meshen’s daughter. That finding restored $280,000 to the estate. The court also held that in leaving nothing at all to her husband by will, Ms. Meshen had failed in her moral obligations to him. The court ordered the estate to pay the remaining $280,000 to Mr. Mawdsely. The amount recovered is a mere fraction of Ms. Meshen’s wealth but the court took into account the fact that Mr. Mawdsley had a modest income of his own, had been aware of the arrangements and that he did have an oral agreement with his wife to keep their assets separate.
Whether or not the amount of $280,000 was reasonable in the circumstances is somewhat irrelevant as that was all the estate had left. On different facts and with a larger estate a widow or widower might have received a larger portion. The outcome could also be quite different if the couple were married and had property claims, with differing outcomes depending on the province of residence. What is most interesting about this decision is the use of a trust to circumvent legislated family law obligations. The Supreme Court of Canada refused to hear Mr. Mawdsely’s appeal, so this decision stands as authority, at least in British Columbia on these issues.
A family lawyer will help you deal with the legal fall-out resulting from a break-up. A therapist will help you deal with the emotional issues. But what do you do with the stuff? The wedding dress? The engagement ring? This week, I thought I would give you some helpful hints for what to do with those once-loved items.
“Never Liked It Anyway” is a website devoted to…you guessed it….stuff you never liked that was gifted to you by an ex-partner. As the website says, it is a place where “once loved gifts from once loved partners get a second chance…” You can sell anything – and even post the sad tale that accompanies the item. Champagne glasses, snowboard pants, even a 1965 Mustang Fastback. The tag lines for the sale items are sure to make you laugh which, as you know, is the best medicine. A few entries I particularly liked include “If only the marriage was as awesome as this ring”, “Surprisingly nice earrings from a total cheapskate” or “Nearly flawless earrings from a flawful (is that a word) fiancé”.
My “Craigslist Toronto” search turned up 92 engagement rings for sale and 338 wedding dresses. The site “ExBoyfriend Jewelry” brags: “You don’t want it. He can’t have it back.” And don’t let their name stop you, they are an equal opportunity website: ex-boyfriends, ex-girlfriwends, ex-husband, ex-wives….they are happy to help you sell the painful reminders of your relationship: “You set your own price. You get it off your chest and out of your sight. Just because you don’t want it, doesn’t mean somebody else isn’t dying for it.” “I Do, Now I Don’t” is another site where you can sell your engagement ring, or pick up jewellery at a fraction of the retail price. That is, if you are prepared to give your fiancée a ring with an unhappy story attached to it….
Lastly, all joking aside, is “The Bride’s Project” where you can donate your wedding dress and other bridal items to fight cancer. The Bride’s Project takes the donated gowns and re-sells them for half of the retail price, and maxing out at $1,250. All of the profits are donated to cancer charities, including the Canadian Cancer Society, the Breast Cancer Foundation and Camp Quality. The store is located on Broadview Avenue in Toronto. It is filled top to bottom with stunning wedding gowns which are barely worn and can be purchased for a fraction of their price new. Giving an old dress new life and helping kids with cancer in the process….what could be better? Check them out at www.thebrodesproject.com. You will be glad you did.
Most child support obligations terminate at some point. Typically child support is paid in some form for a child beyond the age of majority to the point that the adult child has completed some post secondary education and is able to launch as an independent adult. For those children who have physical or mental disabilities, however, it may be impossible to achieve financial independence from their parents. In such situations, family law provides that both parents potentially are obliged to provide for the child indefinitely even if that adult child becomes eligible for provincial disability benefits.
This is one area of family law in which at least in Ontario there is a disjunct between rights under federal and provincial legislation. For married parents who seek a divorce, or are divorced, the federal Divorce Act applies. The Divorce Act has generous provisions for the long term support of adult children. For unmarried parents, the provincial Family Law Act applies. The provincial act has much more restrictive terms for adult children.
The Divorce Act imposes an obligation on both parents to support a “child of the marriage.” A “child of the marriage” is specifically defined to include an adult child who is the age of majority or over and under the parents charge but unable by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. This definition potentially extends the child support obligation indefinitely for an adult child who lacks the physical or mental health to become financially independent.
By contrast, the Family Law Act only extends the obligation to support a child who is the age of majority or older if that child is enrolled in a full time program of education. A child with physical or mental disabilities may not be able to enrol in such a program and, if not, is disentitled from child support. There is some latitude if the child is in part-time attendance in a full time program because of a legitimate health restriction or learning disability. For example, a child would likely remain entitled to child support if completing a two year program over four years in such circumstances. The entitlement is, however, clearly much less than for the child of married spouses. There is no justification for such a difference in entitlement to arise from the irrelevant circumstances of the parents’ marital status.
An adult child who has a significant physical or mental incapacity may qualify for provincial disability benefits. The fact that a child is receiving such benefits is not sufficient to remove the parental child support obligation. However, the child’s income will be considered as part of the picture when assessing child support. For a child over the age of 18, the Child Support Guideline Tables which are based solely on the payor parent’s income are not automatically applied. If the Table amounts are inappropriate, a different amount of support may be calculated taking into account the child’s own income, and the parents’ respective incomes and financial circumstances. Provincial disability benefits are at a subsistence level. If the family has lived at a higher standard of living and the payor parent has the ability to pay child support then the adult child will receive support to supplement his or her expenses over and above the subsistence level met by the provincial benefits.
The Ontario Court of Appeal has recently confirmed that an adult may still receive the full provincial disability benefit even if also in receipt of child support. The child support payments are formally paid to the recipient parent, not the child, and as such are not treated as income of the adult child when determining if he or she qualifies for provincial benefits. This decision levels the playing field between adult children of intact marriages whose parents may supplement their expenses indirectly and those from divorced families in which the obligation is met more formally through a child support order or agreement.
As with intact families, separated parents of adult children who are unable to become financially independent need to plan for the very long term. The support obligation may remain after the parents’ retirement or after their death. It is possible to take advantage of the federal government’s new Registered Disability Savings Plan and to make provision by will for testamentary trust terms that will benefit the child without interfering with his or her provincial benefits. Families facing these issues need to address them at the time of separation if possible. The obligations may be the most significant financial burden for the parents and certainly one that merits thoughtful planning.
Many children do not enjoy daily standard face-to-face contact with both of their parents. This is particularly true for separated and divorced families who no longer live together 24/7. In recent years, parents and courts have made frequent use of various technologies as a means of connecting. In this post, I will look at parents and kids staying in touch via virtual means, such as Skype.
Separated parents living in the same city as their children use Skype as a way to reach out to their children. In these circumstances, the parents seek traditional visitation with their children as well as virtual visitation. Skype access is used as an “add on” to actual time spent together. What is more controversial is that Skype is now often proposed as a way of maintaining the relationship when a parent relocates, either with or without the child. Parents seeking either permission or a court order allowing a move hold out daily Skype access as a way of ensuring the non-moving parent and child have regular contact. From across the country, parents can assist their children with their homework, e-mail photographs, play games, chat about their days, and even tell knock knock jokes. But does Skype access work?
Do parents and children who primarily visit via Skype feel that it maintains or improves their emotional connection? There is some research that seems to indicate that parental involvement is self-reinforcing i.e. the more virtual contact a parent enjoys, the more in-person contact s/he will want. If this is true, then virtual visitation can be seen as good for children, since kids are known to do better when both of their parents are involved in their lives. Judges allowing a parent to move with the children seem to accept that electronic communication is not as desirable as in-person access, but propose it as the next best thing. Skype does allow for the child to keep in touch with the non-moving parent as much as every day. Although supporters believe that Skype allows parents to connect and to share spontaneous moments with their children, you can’t hug a child through the Internet. There is presently an Ontario study underway that will shed some light on how virtual visitation is working in this province. Until the study is published, however, parents and judges are going to have to evaluate Skype access for themselves.
An agreement or order providing for virtual visitation should be extremely detailed. It is not only the nuts and bolts of the device that have to be considered. There is a lot to think about. The following are just some of the issues to keep in mind.
a) How and when the necessary technology is obtained and set up. A computer, internet access, a web camera and email are all required. Such systems can be costly.
b) Specify the required level of quality of the Internet access. A DSL line or greater quality bandwidth is needed.
c) Who pays for it? It may be appropriate for the moving parent to cover the cost of providing an appropriate computer, a service plan and to be responsible for reasonable computer costs, including monthly DSL and Internet service for a specified period.
a) The duration of the access has to be age and developmentally appropriate. A three year old has a brief attention span and should not be expected to sit and “interact” for thirty minutes at a time. A teenager might be able to “hang out” for longer, listening to music and doing homework with the non-resident parent. Know your child and his or her needs.
b) Make the Skype access enjoyable. It should not be a chore. This requires effort from both parents: the non-resident parent should make the access meaningful and the resident parent should encourage and support the access 100%.
c) Make it interactive. The whole point of Skype is that it is live video chat. Use that to your advantage. Read the child a story or take turns reading a page. Work together on a homework problem or project. Play cards or a board-game. Be creative, so that the time spent together is enjoyable and appealing to the child. Leave them asking for more…
a) Time the access so that it works with the child’s schedule. Don’t book a visit first thing in the morning if your child is not a morning person. Don’t schedule access at dinnertime. Don’t insist on a call at 7:30 pm if that is when your daughter’s favourite TV show is on. It will just lead to problems. Be sensitive to what your child has to do during the day and what he or she would like in terms of access.
b) Know what your ex-spouse thinks is a good or bad time, since he or she will either facilitate or discourage the contact. Choose a mutually convenient time, so that you and your child are sure to be able to focus on and communicate with each other.
c) Make sure that the Skype visits are a priority to everyone involved. They should be a staple of the week, a fixed part of the daily routine like meals or bedtime. This tip goes hand in hand with scheduling the access at a time that makes sense. As set out above, you are more likely to get regular access if it is at a time that works for your ex-spouse, you and the child.
d) Set a Skyping schedule. Just like in person visits, Skype access should take place on fixed dates and at set times. You will not be able to maintain and develop a relationship with a child who is miles away if you speak only when the two of you can catch a moment to do so. The access does not have to be the same time and duration every day, but it has to be on a schedule. Weekday visits may be shorter and weekend longer, for example.
e) Build in some flexibility. Emergencies come up and there has to be a mechanism for rescheduling. Be understanding of special occasions that may come up for your child which “trump” the call. Susie shouldn’t have to miss her friend’s birthday party for Skype, when a call at another time can be arranged or she will resent you. Be sure Johnny knows he can Skype you if he scores a goal in the big game, even if it isn’t a day to chat. Parents tell me that these ad hoc calls are essential, as they are what make the relationship more “real”.
Rules for a “Safe” Process
a) In order for the child to feel comfortable, Skyping with the non-resident parent should take place in private. The child should feel free to have his or her own personal relationship and communication with the non-resident parent, without fear of the other parent listening in.
b) Parents should not use the chats as an opportunity to try to get information about each other.
c) Parents should not use the child to communicate any issues related to the divorce.
Given the complexity of the issue, and the various terms you will want included in any agreement for virtual visitation, you should consider consulting a family law specialist for assistance.
Although Skype has a number of applications, one of the most popular appears to be its internet based real time video-conferencing format. Skype to Skype video calls are free of charge and can link people anywhere around the globe. In today’s and in my August 8th , 2012 post, I will look at two ways Skype technology has been used in family law: first, as a way of permitting parties outside of the jurisdiction to give evidence and, second, as a means of keeping parents and children connected.
Skype technology was used to permit a witness to be cross-examined in the recent Ontario Court of Justice case of Paiva v Corpening. Here, the father brought a variation application seeking access to his children, ages 9 and 8. The father had not seen the children in four years, as he was previously denied contact by the court due to his violent behaviour and alcohol and drug addiction. The mother and children had moved to Denmark and were living there with the mother’s new partner.
Normally, in accordance with the rules of evidence, the Rules of Civil Procedure and the Family Law Rules, evidence on an application is viva voce. That is, the witnesses are present in court to give their evidence in chief and to be cross-examined. In recent years, due to packed court calendars and the limited judicial resources available, courts have allowed evidence in chief to go in by way of affidavit, but required that the affiants be present for which is what was ordered in Paiva. Counsel for the mother brought a motion to permit his client and her new partner to be cross-examined at trial by Skype, as they could not finance the trip to Toronto and one of them had to remain in Denmark to care for the children.
Justice Ellen Murray heard the motion and allowed the Skype cross-examinations. Her Honour accepted the mother’s unchallenged evidence that Skype was a clear and reliable means of securing the mother and her new partner’s testimony. Since the Family Law Rules do not yet provide for evidence via Skype, Justice Murray looked to the Rules of Civil Procedure. Her Honour acknowledged the general principle that evidence and argument should be presented orally in open court whenever possible, so as to enhance the court’s ability to make findings of credibility. However, Her Honour held that this principle must be balanced with the objective of handling family law cases fairly and efficiently. Justice Murray found that the court would be able to assess the credibility of the mother and her new partner’s evidence on cross-examination if the Skype technology functioned properly. Her Honour relied on other civil cases where Skype evidence had been permitted. Justice Murray held that Skype was interactive technology where questioning was conducted in real time, which gave the trier of fact the opportunity to assess the demeanour of the witness. Her Honour found that the father would suffer little or no prejudice to his counsel’s ability to cross-examine, whereas the mother and her partner would be prejudiced by having to travel to Toronto.
The trial in Paiva is not over. Counsel will be making closing arguments to the court at the end of July. When all is said and done and a decision rendered, it will be interesting to see what weight the trial judge gives to the evidence of the various players and the impact, if any, of mother and her partner’s cross-examination via Skype. Stay tuned.
The May 31, 2012 Ontario Court of Appeal’s decision in Dovigi v Razi 2012 ONCA 361 has attracted a lot of attention. The family law bar and the general public are divided on whether the appeal court got it right. The implications of the decision are far reaching. This may be one that the Supreme Court of Canada has to settle once and for all.
My partner, Sarah Boulby, blogged insightfully on this very case on June 12, 2012. She and I have somewhat different views on what the case stands for and whether or not it was rightly decided. I thought that, this week, I would share my thoughts on the case.
The facts are straightforward. The parents resided in Ontario during the course of their relationship. When she was 7 months pregnant, Mother left Ontario for what Father understood to be a visit to family in Los Angeles. Father did not know Mother intended to remain and give birth in California until her counsel advised as much two months later.
Days after Audrey was born in Los Angeles, Father started an Ontario Children’s Law Reform Act (“CLRA”) application for shared custody. Six days later, Mother commenced a sole custody petition in California.
Kiteley J. heard the Ontario jurisdiction motion. Her Honour found that Audrey was not “physically present” in Ontario when the application was commenced, nor was she “habitually resident” here in accordance with the CLRA. Audrey’s lack of habitual residence under the statute was held to be an uncontemplated gap permitting Ontario to invoke parens patriae jurisdiction and decide custody.
Mother made a constitutional argument that pregnant women had the right to unrestricted mobility as provided for and protected by the Charter. Although Kiteley J. acknowledged Ontario could neither limit Mother’s choice of where to live, nor make a ruling concerning a foetus, the judge did not believe that Mother, by voting with her feet, decided which jurisdiction. Kiteley J. observed that to decline custody jurisdiction would be rewarding the pregnant Mother for orchestrating a situation “arguably analogous to abduction”.
The Court of Appeal allowed Mother’s appeal and declined jurisdiction, holding Ontario had neither legislated nor parens patriae jurisdiction. The Court agreed that Audrey’s circumstances fell outside the CLRA, but did not consider this to be a legislative gap such that parens patriae jurisdiction applied. The Court found such intervention was only appropriate where a “need to act to protect the child” existed, lacking in this case for two reasons.
First, the Court held that, since California had similar laws and would apply the best interests test, it was an acceptable forum for custody. In my view, the fact that California custody law resembles Ontario law cannot be the reason to either decline or accept jurisdiction. What if Mother, who was Iranian, had moved back to Iran to give birth? On current reasoning, it seems the Court would have employed parens patriae jurisdiction to return the case to Ontario. Surely whether or not we like a country’s custody policy or politics cannot be the basis for an exercise of jurisdiction. Moreover, I question the “protection” restriction the Court placed on parens patriae jurisdiction. This same Court has previously held parens patriae applies not only where a child needs protection but also where a gap in the legislation exists. Clearly there is a gap here, but the Court refused to step into the breach.
Second, the Court would not take jurisdiction to “protect the expectation that [Audrey] would be parented in Ontario.” Juriansz J.A. found it was an error to pre-decide that it was in Audrey’s best interests to be parented in Ontario, since that determination should be made by the court with jurisdiction”. Again, in my opinion, this comes down to trusting California. And, without ever saying as much, it also comes down to the Court’s tacit acceptance of the likely result: infant Audrey being raised by Mother in Los Angeles, although both parents resided and planned to parent in Ontario.
Father’s argument that an infant’s “habitual residence” must be where one or both parents reside seems an imminently logical and defensible position. Neither parent ought to be preferred because of biology. Certainly, a parent should not be rewarded for hijacking the location of a child’s birth to gain the considerable benefit of jurisdiction in custody litigation. The reasons for Ontario to take jurisdiction are not based on either pregnancy or birth location. Instead, Ontario’s jurisdiction turns on: (i) the parties’ common intention to raise Audrey here; (ii) Mother’s stated intention to return after the birth; and (iii) the evidence of the parties’ respective parenting ability was here.
The issue is not a novel one. Other cases have addressed the habitual residence of a new born baby. A 2008 S.C.J. case out of Sarnia was decided consistent with the principles articulated by Kiteley J. The answer is anything but clear. I am not suggesting women should be tied to a location simply because that is where they got pregnant – the so called “jurisdiction of conception”. Nor am I a proponent of a mother being forced to secure consent to relocate while pregnant. A woman has the absolute right to make decisions regarding her body and residence while pregnant. I do not agree, however, that the right to relocate during pregnancy extends to Mother’s location dictating the “natural” and “appropriate jurisdiction to determine matters of custody”.
Where a father demonstrates a committed desire to parent, it seems unfair for a mother to be able to eliminate or reduce his participation by moving before the baby is born. In most cases, the father will not have the funds to challenge the pregnant mother’s change of jurisdiction. So, unless we are prepared to reward either the moneyed or the moving parent (often one and the same), there must be an impartial resolution. To consider an infant’s “habitual residence” to be that of one or both of its parents seems reasonable. In contested cases, the determination of the infant’s habitual residence will be difficult, requiring early mini-trials to secure jurisdiction rulings. But this approach seems better than the current state of the law as articulated by the Court of Appeal which risks allowing mothers to win by exercising self-help.
A recent decision of the Ontario Court of Appeal has exposed a significant gap in the statutory protections for matrimonial homes in this province. Where a married couple share a matrimonial home there are many legislated protections for the spouse who is not the owner or the named tenant of the home. Both spouses have rights to possession of the home while they are married unless a court orders otherwise. A spouse who owns a matrimonial home at the date of marriage and owns the same property at the date of separation or at death cannot claim a deduction for the value of bringing the home into the marriage. A spouse who receives a matrimonial home as an inheritance or gift from a third party or uses an inheritance or gift from a third party to purchase a matrimonial home cannot claim an exclusion for the value of this property at the date of separation or at death. In other words, the owner of the matrimonial home must share its value with the other spouse. During a marriage both spouses must consent to the sale of a matrimonial home or to the home being mortgaged. These rights do not arise with every family home. “Matrimonial home” is not synonymous with “family home”. “Matrimonial home” has a very specific definition under the Family Law Act. The Ontario Court of Appeal’s decision in Spencer v. Riesberry highlights the limitations of that definition.
The Family Law Act defines a matrimonial home as a property in which a spouse has an interest and which is ordinarily occupied by the spouses as their family residence at the time that they separated. The Act adds that if a spouse owns shares in a company that owns the home and is entitled to live in the property because of the share ownership, then that qualifies as an interest in the property. The Court of Appeal has had no difficulty in previous decisions in finding that where a company controlled by a spouse owns a family home that property qualifies as a matrimonial home. In Spencer v. Reisberry the Court of Appeal considered a situation in which the family home was owned by a trust of which the wife was both one of the trustees and one of the beneficiaries. The Court of Appeal held that the wife does not have an interest in the house and, as a consequence, the property is not a matrimonial home. The implications of that for the husband are: he has no right of occupancy in the property, he has no rights to be advised or give his consent to the home being mortgaged or sold, and his wife can claim a deduction for the value of her beneficial interest in the trust as of the date of marriage or may exclude the value of her beneficial interest in the trust even if a large portion of the value relates to the family home.
The Court of Appeal’s analysis of the case is very straightforward. The Court reviewed and applied classic trust principles to find that a person who is the beneficiary of a trust does not have an interest in any particular asset of the trust. A trustee of the trust actually has legal ownership of the underlying assets, in this case including a family home, however even though the wife in this case was a trustee she did not hold the home for her own benefit but for that of the beneficiaries to whom she owes fiduciary duties. The Court did not accept an analogy between a family home being owned by a corporation in which a spouse has an interest, which manifestly is a matrimonial home, and a family home being owned by a trust in which a spouse is a trustee and beneficiary. The Court of Appeal noted that the sole reason that a property owned by a corporation qualifies as a matrimonial home is because the legislation expressly addresses that situation.
This is not the first court decision in Ontario to find that a home held by a trust is not a matrimonial home but it is the first high profile decision. The case has significant implications for married spouses in this province. Absent a successful appeal to the Supreme Court of Canada or new legislation, spouses now have a means to avoid the special rights and protections for matrimonial homes. This can be done unilaterally without the non- beneficiary spouse having any say in the matter. In effect, the trust vehicle can be used as a one-sided marriage contract to exempt a family home from the restrictions imposed on matrimonial homes. Presumably if the trust is a sham it would be possible for the non-beneficiary spouse to apply to a court to find that there is no valid trust and the underlying assets belong to the non-beneficiary. That may discourage manipulation of this gap in the statute to some extent. However in Spencer v. Riesberry it appears clear that the trust had been settled by the wife’s mother with an eye to protecting the underlying assets from being included in any division of family property by her children’s spouses. This did not deter the Court of Appeal. The trust in this case was entirely legitimate, not a sham at all, yet devised at least in part for the purpose of keeping assets out of the category of those for which value is shared under our provincial family property legislation.
There are real questions about the application of matrimonial home provisions in the Family Law Act. It is an area in which there have been calls for reform for many years. To impose statutory protections for homes held through corporations, but not for those held through trust vehicles, is not particularly consistent. It sets an even greater need for legislative reform in this area. In the meantime, no doubt trusts will appeal to some as an alternative to the cost and awkwardness of negotiating marriage contracts relating to family homes.