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Posts from the ‘Court Procedure’ Category

Can a Parent be in Contempt When Kid Disobeys a Court Order?

Can a Parent be in Contempt When Kid Disobeys a Court Order?

In many of the child custody and access cases I write about, the central dispute boils down to the fact that the parents of the child are at odds in terms of what custody arrangements they want and how much access they should each have to the children.

But even once a court order is in place, the disagreements can continue, because the parents may be at odds over precisely what the order means, and how it should be complied with. In a typical scenario, the custodial parent will have failed to abide by the terms of a court order setting out specific custody or access, perhaps by keeping the child longer than ordered, or else by failing to facilitate the access rights of the non-custodial parent.

But what if the lack of compliance is because it’s the child – not the parents – who won’t co-operate? What if the child outright refuses to spend time with the access parent?

In a recent set of Blogs I talked about the concept of “contempt of court”, in family law proceedings especially. This remedy can be imposed on a parent who refuses to comply with a court order, or otherwise hampers the course of justice.

What may be surprising is that under Canadian law, in some circumstances a parent can still be held accountable for contempt of court even if it’s the child who thwarts the fulfilment of the court order. This is because of the legal principle that if there is a court order in place, the parent is under a duty to do all that he or she reasonably can in order to ensure that it is complied with. And a finding of contempt of court may follow if the other parent can establish, beyond a reasonable doubt, that the other parent failed to take all of those reasonable steps.

In short: the parent cannot simply leave questions of custody and access up to the child; otherwise it amounts to an abdication of parental responsibility. In an older case called Geremia v. Harb, Justice Quinn put it well when he said:

Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

With that said, the contempt remedy is not imposed every time a parent is unsuccessful at coercing a child – particularly an older one – to comply with an order. Rather, the outcome on whether to make a contempt finding will be viewed by the court with its broader duty in mind: which is to balance the need to enforce court orders and to encourage a child’s contact with both parents versus respecting a child’s own wishes and safeguarding his or her needs, safety and well-being.

For the full text of the decision, see:

Geremia v. Harb, 2007 CanLII 1893 (ON SC)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Can a Judge Go “Off the Map” When Making a Ruling?

Can a Judge Go “Off the Map” When Making a Ruling?

In an interesting recent Court of Appeal case named Gomez v. McHale, a question arose as to whether a motion judge, asked to award an amount for equalization of net family property, was constrained to award only the exact dollar amount proposed by the spouse who succeeds on the motion, or whether the judge was entitled to craft a different monetary award that made sense in the circumstances.

The couple’s relationship had lasted about five years. Under s. 5(6) of the Ontario Family Law Act, a court can award un unequal amount for equalization of net family property in cases where awarding an equal amount would be “unconscionable”, in light of various factors including the length of time the couple had lived together.

They both brought summary judgment motions against each other, with the wife asking for one of two things:

• A straightforward equalization of net family property, which would result in her receiving $268,000 (which we will call “Option 1”); or

• An unequal division, to the tune of four-fifths of that amount, which was $214,000 (“Option 2”).
The husband, in contrast, wanted the either of the wife’s claims – whether under Option 1 or Option 2 – to be dismissed outright by the court.

Ultimately, a court granted the wife a third Option – but one that neither of them had asked for. For various reasons related to the specific facts, the court ordered the wife to receive an equalization payment of $60,000.

The wife appealed, claiming that the motion judge had strayed from the available choices presented at the motion hearing. In particular, the wife contended that the judge’s only available choices were to pick either Option 1 or 2, or possibly to grant her partial judgment in some amount, and direct that the rest of the issues be sent on to be resolved at a full trial.

The Court of Appeal disagreed. As that Court wrote:

Put bluntly, this is not the way motions for summary judgment, especially duelling motions, work. The motion judge was entitled to consider all the evidence and then apply the relevant statutory provision, s. 5(6) of the FLA, and determine both whether an unequal division was appropriate and, if so, the quantum of the unequal division. He was not limited to choosing one of the two amounts proposed by the appellant and, if he was inclined to reject them, referring the question of quantum on to a trial. … He was not limited to choosing only one of the appellant’s alternative positions.

The wife also claimed that the judge had made an error by not following a mathematical formula for calculating the unequal division of net family property (using the actual period of cohabitation as a percentage of the five-year period specified in s. 5(6) of the Family Law Act). The court disagreed: While a mathematical approach might help the court in some cases, it did not have to be applied in every single one.

In the end, the Appeal Court concluded that the motion judge’s final amount of equalization, set at $60,000, was fair and reasonable in view of all the circumstances, which included the fact that the wife had not made any significant contributions to the home during the period of cohabitation and marriage.

For the full text of the decision, see:

Gomez v. McHale, 2016 ONCA 318 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

“Revenge Porn” Case Goes Back to the Drawing Board

“Revenge Porn” Case Goes Back to the Drawing Board

A year ago I reported on a case in which a young woman had been awarded over $100,000 in damages from her former boyfriend, who had engaged in “revenge porn” after their break-up. Without her consent, he had posted explicit images of her online, and shared them with members of their mutual social circle, much to her extreme humiliation.

Because he had declined to participate in the lawsuit by filing any sort of defence, the woman was able to obtain a default court judgment in his absence, in which the ex-boyfriend was found liable under the civil law for the torts of breach of confidence, intentional infliction of mental distress, and invasion of privacy. He was held responsible to pay for her damages as assessed, with the breakdown being $50,000 for general damages, $25,000 for aggravated damages, and $25,000 for punitive damages, plus costs.

However, as a result of a recent decision by the Ontario Divisional Court, her lawsuit – which was launched four years ago – has now been put back to square one, and the now 24-year-old woman is awaiting a statement of defense from the man, so that a full trial can proceed with his participation.

The reversal is essentially based on procedure, not merit, so time will tell whether she is vindicated in the end.
In terms of the legal process, the matter has gone forward-then-back because the original order, by Justice Stinson, was later struck out by a second judge, Justice Dow, in order to give the man a chance to participate.

The woman asked unsuccessfully for permission to appeal that ruling, claiming that Justice Dow had noted that the ex-boyfriend was deliberately ignoring the lawsuit, but then went on to improperly consider other factors and give him a second chance anyway. Permission to appeal was denied in the most recent decision by Justice Kitely in January 2017, since she found no legal error in Justice Dow’s reasoning.

So, three judges’ rulings later, the matter has been sent back to essentially “start over” before a new judge.

But the significance of the case still lingers, because the original decision by Justice Stinson from a year ago was very legally noteworthy at the time, not only for implicit recognition of the invasion-of-privacy claim from this sort of on-line behaviour, but also due to the hefty damages liability imposed on the ex-boyfriend.

What are your thoughts on this case?

For the full text of the decision, see:

Jane Doe 464533 v N.D., 2017 ONSC 127 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Do Judges Need to Actually Give Reasons?

Do Judges Need to Actually Give Reasons?

For those of you “armchair lawyers” who like to follow real-life trials, watch TV crime shows, or even just read books by John Grisham, here’s an interesting question for you:

In law, can a litigant appeal a judicial ruling simply because the judge’s reasons were brief?

The answer is: Maybe.

The sparseness of the reasons given by the trial judge was among the grounds for appeal in the recent Ontario Court of Appeal decision in Filanovsky v. Filanovsky. A 45-year old woman had sued her parents for alleged physical and emotional abuse when she was a child, including violent blows to the face that left her with traumatic brain injuries.

After a 10-day trial in which the court considered evidence from the woman, her brother, various experts, and the parents themselves, the woman’s claims were dismissed.

She appealed and requested a new trial, with one of the grounds being that the judge failed to give adequate reasons to explain the reason her claim was dismissed.

The appeal court rejected this particular argument.

To begin with, the court conceded that prior decisions have established that a judge must give reasons:

1) to justify and explain the result;

2) to explain to the losing party why she lost;

3) to provide public accountability and to satisfy the public that justice has been done; and

4) to permit review by an appeal court.

However, the Appeal Court relied on another recent decision of its own called Dovbush v. Mouzitchka, where it had a chance to examine those requirements in detail, saying:

Trial judges are called upon to make difficult decisions, often in difficult circumstances. They preside as the particular dynamics of the trial unfold. Inadequate reasons therefore pose a particular challenge for appellate review.

On the one hand, as [Supreme Court of Canada justice] Rothstein J. noted in F.H. v. McDougall, … “an appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor, is the failure to give adequate reasons a free-standing basis for appeal.”

However, the Appeal Court in Dovbush had pointed that in determining the issue of the reasons’ sufficiency,

…[I]t turns on the overarching principle of whether the reasons permit meaningful and effective appellate review. Appellate courts will take a contextual and functional approach to addressing whether reasons meet this standard. The exercise has been variously described as one of determining whether the reasons demonstrate: “the path taken by the trial judge through confused or conflicting evidence” … or that “the trial judge came to grips with the issues and explained sufficiently his … conclusions and the reasons and basis for them” … or, the “what” and the “why” of the result.

Returning to the Filanovsky case, the judge who dismissed the woman’s abuse claim against her parents had actually given lengthy reasons, in which she assessed credibility, analyzed all the witness’ evidence, and pointed out inconsistencies. The reasons as rendered by the judge did allow for a meaningful appellate review.

The woman had raised other grounds of appeal, and these were dismissed as well.

For the full text of the decisions, see:

Filanovsky v. Filanovsky, 2017 ONCA 28 (CanLII)

Dovbush v. Mouzitchka, 2016 ONCA 381 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Has the Time Come in Ontario for E-Filing Divorce Applications?

Has the Time Come in Ontario for E-Filing Divorce Applications?

As reported in Canadian Lawyer magazine recently on January 18, 2017 at a Law Society of Upper Canada event, Ontario Attorney General Yasir Naqvi stated that the province of Ontario is considering allowing divorce applications to be e-filed.

This follows upon initiatives in provincial Small Claims Court during the past few years to increase digitization, through the Court Information Management System (CIMS). Enhancements have included the availability of 24-hour online services, including access to court forms, the filing of court documents, and the payment of fees online.

But as progressive as it may sound, Ontario is actually far behind other Canadian jurisdictions in this regard. British Columbia  for example, has allowed for e-filing of many court documents, including those relating to many Family Law proceedings, since as far back as late 2008.

There are certainly many up-sides to broadening and facilitating the access to court processes, including the obvious one: Ease of access for Family Law litigants, who can obtain information and file documents from the comfort of their own homes.

But there could be down-sides too. For example, for those who aren’t in-the-know about legal procedures, the formal step of filing for a divorce (whether by the traditional paper route or the proposed e-filing) triggers the running of the limitation period in Ontario for claiming an equalization payment from your former spouse. So the simple act of clicking “send” could start the clock ticking on important rights, without you even knowing it.

But leaving those potential pitfalls aside, the trend towards using technology to facilitate more fulsome access to court services can only be a good thing, it seems.

What are your thoughts?

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Appeal Court Confirms Unique “Philosophy” of the Ontario Family Law Rules

Appeal Court Confirms Unique “Philosophy” of the Ontario Family Law Rules

The Ontario Court of Appeal, in a recent case called Frick v. Frick, confirmed that the Ontario Family Law Rules are philosophically different from their civil counterpart, and reflect the unique nature of litigation involving families.

The initial facts in Frick v. Frick were unremarkable: The couple married in 1993 and had two children. They separated 20 year later, and the wife started divorce proceedings. In addition to custody and spousal/child support, she also asked for the usual equalization of Net Family Property (NFP).

But after filing her pleadings, the wife learned that the husband had spent money on extra-marital activities during the marriage, namely those incurred during what she claimed was a “10-year affair”, as well as the cost of male and female escort services and an adult fetish website membership.

In light of that spending, the wife claimed the husband had recklessly depleted his share of family funds during the marriage. Because of it, she asked for an unequal division of NFP in her favour, now that their relationship was over. She asked the court for permission to amend her claim accordingly.

But the court declined, and went one step further by expressly preventing the wife from asking for an unequal NFP division at trial. The wife appealed.

The Appeal Court ruled in her favour, finding that the motion judge had made several procedural errors. For one thing, he had innovated certain evidentiary requirements for the wife to meet, that were simply not contained anywhere in the Family Law Rules (FLR). He took issue with the wife’s failure to specify in her pleadings the precise FLR provisions on which she relied for unequal division, even though these were implicit. He took procedural liberties by essentially bringing his own motion to strike out the wife’s unequal division claim, and baring her from pursuing it at trial, even though the husband had not requested these remedies himself.

The motion judge had also applied an unjustly-high threshold for establishing the wife’s unequal division claim, and had deprived her of notice that it might be struck out permanently. As the Appeal Court put it:

Here, the wife knew that the motion was to strike portions of her document. She could not have known that her claim for an unequal division would be judged according to the summary judgment rules. Nor could she have known that her claim would be barred forever since she was denied leave to amend.

The key error, however, was the motion judge’s assessment that the FLR governed certain procedural aspects inadequately, and that he should look to the civil procedure rules for guidance instead. (Although Ontario judges are permitted to do this where warranted, the motion judge in this case showed over-reliance on the civil rules, and misunderstood when they could be invoked.).

In this context, the Court of Appeal made some important comments about the fundamental nature of the FLR:

The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.

The Appeal Court allowed the wife’s appeal, in part.

For the full text of the decision, see:

Frick v. Frick, 2016 ONCA 799 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Should Child Custody Principles Be Applied to Former Couple’s Dog?

Should Child Custody Principles Be Applied to Former Couple’s Dog?

About five years ago, I first wrote about divorces that include “pet custody” disputes. These feature animal-loving former couples who end fighting in court over custody and ownership of their once-shared pets. Often the first step in such cases is for the court to set the parties’ expectations straight on a threshold issue, namely whether either of them have the right to “custody” of a pet (like they would have with children from the relationship), or whether pets are merely considered family property subject to division, like their household furniture or other assets would be.

In the years since that first article, nothing has changed. Pet-lovers are still very fond of, or downright passionate about, their pets. Couples who split up still squabble over them. But from a legal standpoint the law is the same then as it was now: Canadian law does not regard pets as a member of the family, and child custody principles simply do not apply to these kinds of disputes.

In other words, under Canadian Family Law, pets are simply possessions.

This was reinforced in a recent Saskatchewan decision, involving a man and woman who had shared two dogs while living together. The man wanted to keep one dog, and was willing to allow the woman to choose which one. The woman wanted both dogs. Neither of them would budge, and the matter went before a court.

On the preliminary question of whether the dogs were to be treated as property, the court made no bones about it (pun intended):

Dogs are wonderful creatures. They are often highly intelligent, sensitive and active, and are our constant and faithful companions. Many dogs are treated as members of the family with whom they live.

But after all is said and done, a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.

The court went on:

I say without reservation that the prospect of treating pets as children would be treated holds absolutely no attraction for me. I say this cognizant that many dog owners, perhaps most of them, choose to treat the family dog not as property but as family. Certainly that is what these parties did. But that choice does not alter the law that pets are property. My present task is not to act with emotion or to validate the personal perspective of pet owners within the legal context. Rather, it is to interpret and then apply the law. And for legal purposes, there can be no doubt: Dogs are property.

Having made its legal approach clear, the court ultimately declined to make any interim order respecting the dogs, because the couple certainly had other personal property that would be dealt with and divided at a later trial. The court explained:

I strongly suspect these parties had other personal property, including household goods. Am I to make an order that one party have interim possession of (for example) the family butter knives but, due to a deep attachment to both butter and those knives, order that the other party have limited access to those knives for 1.5 hours per week to butter his or her toast? A somewhat ridiculous example, to be sure, but one that is raised in response to what I see as a somewhat ridiculous application.

And if that was not clear enough, the court added the following admonition to the particular couple, and to the broader public as well:

In a justice system that is incredibly busy, where delay has virtually become systemic, where there are cases involving child welfare and family matters that wait months for adjudication, these parties have chosen to throw this dispute into the mix. I am sure that to them, this is the most important matter. But it must be kept in perspective and measured against other matters, many of which inarguably are of more importance. … To consume scarce judicial resources with this matter is wasteful. In my view, such applications should be discouraged.

Do you think the court was correct? Should Canadian law recognize and address pet custody issues?

For the full text of the decision, see:

Henderson v Henderson, 2016 SKQB 282 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Serving Documents via Twitter: Is it the Future of Canadian Law?

twitter

Serving Documents via Twitter: Is it the Future of Canadian Law?

In all Canadian litigation, documents are “served” or delivered on opposing parties (or their lawyers) in accordance with strict Rules of Procedure.

Depending on the circumstances – and on whether the opposing party is trying to avoid being served – this can be accomplished through one of many different means, ranging from merely handing them over, to sending them by registered mail, to other specified procedures.

In Ontario Family Court, for example, the Rules provide that “regular service” encompasses a variety of methods, including sending documents by mail, courier, fax, physical document exchange. (And there may need to be what is known as “special service” in specified situations). With the consent of the person being served or by court order, they may also be served by electronic document exchange or e-mail.

But Canadian law has not gone too far in allowing for the service of documents by more unconventional means.

Not so in the U.S.: A judge in San Francisco, California has allowed documents to be served in a highly unconventional manner — by way of Twitter.

The intended recipient of the documents was a Kuwaiti national, located overseas, who was suspected of helping to fund the terrorist group ISIS. He had proven difficult to locate by conventional means, but had a large following on Twitter and was still actively using that social media platform to raise money for terrorist organizations through donations.

The documents were being served by St. Francis Assisi, a non-profit organization which alleged that ISIS financing had supported the murder of Assyrian Christians in Syria and Iraq.

The San Francisco judge authorized the service of documents under U.S. Federal Rules of Civil Procedure, which in recent years has also been used in some cases – where deemed necessary and warranted in the circumstances – to authorize service of documents on foreign defendants by more unconventional technology-based methods such as e-mail, LinkedIn and Facebook. Under those Rules, the method chosen must be one that is “reasonably calculated to give notice” to the person being served, if there is no internationally-agreed means or if there is an international agreement but it does not specify the method. Typically, a court will order a copy of the served documents to be sent by more than one method.

But this U.S. case was the first in which a plaintiff such as St. Francis Assisi was authorized to use Twitter as a means of service on a hard-to-find foreign national. It may not be the last.

Is this a good development in the law generally? Should it be adopted in Canada? What are your thoughts?

For a link to the judge’s order, see:

St. Francis Assisi v. Kuwait Fin. House, 2016 U.S. Dist. LEXIS 136152 (N.D. Ca. Sept. 30, 2016)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Can Text Messages Amount to “Violence”? Maybe.

text-message

Can Text Messages Amount to “Violence”? Maybe.

In a recent Blog I discussed the concept of “violence” in the Ontario Family Law context, and in particular how its presence in the relationship could affect the right of the victimized spouse to be given exclusive possession of the matrimonial home upon separation, by way of a court order.

Under the governing provision, which is found in the Family Law Act, the violence can be either physical or emotional; the court is left with the task of determining when the appropriate level of either type of violence has been met.

Needless to say, this can be a challenging task. Over the years, courts have offered thoughts on the nature of the legal threshold.

For example, in a case called Kutlesa v. Kutlesa, the court reflected on the essential elements required to meet the threshold of “violence” for the purposes of the Family Law Act provision, writing:

The “violence” referred to in section 24(3)(f) [of the Family Law Act] must, of necessity, contemplate that spouses may need to be protected from serious injury or harm which can arise even without physical hitting. Intimidation and emotional abuse can take many forms. The court has a responsibility to address the real dynamics between the parties, including any effort by a strong or dominant partner to engage in psychological warfare, or coerce settlement without making disclosure.
Similarly, in a case called Hill v. Hill, the court concluded that that violence can be achieved “by words not deeds” and added that violence is “not restricted to violence which can be achieved solely by physical abuse.”

But these loosened definitions do not eliminate the requirement to meet the threshold set by law. In a recent case the court considered whether it can be met through the use of text messages, but emphasized that the overall context of the spouses’ relationship had to be considered. The court wrote:

I agree with the [wife’s] submission that domestic violence can be demonstrated on social media and by use of electronic communications. I also agree that the [husband’s] electronic communications to the [wife] were at times vulgar, offensive and threatening. The worst of the text messages came in April 2014, after the first time the [the wife] left the matrimonial home without notice … and after she had consulted with a lawyer. This was the same month that the parties had a terrible fight leaving the [husband] and [the child] with scratches. The [husband’s] electronic communications cannot be assessed in isolation. They are part of a broader picture of two parents bitterly fighting to control the process of separation and the custody of their daughter. This is not to excuse the [husband’s] communications. His response to the [wife] and her supporters was not acceptable. In this context, however, in my view, it would be a mistake to characterize such communications as domestic violence or abuse.

The bottom line is that “violence” can take many forms: emotional, verbal, and even by text message sometimes.

For the full text of the decisions, see:

Hill v. Hill, 1987 CarswellOnt 238, [1987] W.D.F.L. 2243, [1987] O.J. No. 2297, 10 R.F.L. (3d) 225, 6 A.C.W.S. (3d) 355

Kutlesa v. Kutlesa, 2008 CanLII 13187 (ON SC)

J.K. v. W.R.N, 2016 ONSC 3179 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Court Conjures “Breaking Bad” Analogy for Warring Parents

breaking-bad

Court Conjures “Breaking Bad” Analogy for Warring Parents

It’s not often that you see a judge summon up a TV show reference in the courtroom as a means of driving home a point to misguided parents. But that’s precisely what Mr. Justice Pazaratz of the

Ontario Court of Justice did, in a case called Coe v. Tope.

The judge wrote:

Breaking Bad, meet Breaking Bad Parents.

The former is an acclaimed fictional TV show whose title needed a bit of explaining: “BREAKING BAD: A southern U.S. expression for when a good person suddenly loses their moral compass and starts doing bad things”.

The latter is a sad reality show playing out in family courts across the country. “BREAKING BAD PARENTS: When smart, loving, caring, sensible mothers and fathers suddenly lose their parental judgment and embark on relentless, nasty litigation; oblivious to the impact on their children”.

SPOILER ALERT: The main characters in both of these tragedies end up pretty much the same:

Miserable. Financially ruined. And worst of all, hurting the children they claimed they were protecting.

To prolong the tortured metaphor only slightly, the “urgent” motion before me might be regarded as this family’s pilot episode. Will these parents sign up for the permanent cast of Breaking Bad Parents? Will they become regulars in our family court building, recognizable by face and disposition? Or will they come to their senses; salvage their lives, dignity (and finances); and give their children the truly priceless gifts of maturity and permission to love?

Stay tuned.

Justice Pazaratz concludes his unconventional ruling with a stern admonition for the parents:

One final comment: I hope I didn’t offend the parties with my Breaking Bad Parents analogy. They’re not bad parents. Yet.

Mainly, I was trying to give both parties a sobering warning: Stop!

Stop being nasty.

Stop jockeying for position.

Stop playing hardball.

Stop acting like you hate your ex more than you love your children.

It didn’t have to be this way. These parties had a year between separation in July 2013 and the sale of the house in June 2014 to work out a comprehensive, sensitive parenting plan. They could have spent a lot less money on parenting professionals than they’re spending on lawyers. They could have negotiated a civilized final agreement by now. There was no need for crisis and brinksmanship.
Now that things have stabilized (albeit, by court order) both parties have a chance to rethink their strategies and start over.

They can waste time, money and energy on more case conferences, motions, settlement conferences, trial management conferences, questioning, and a long trial.

Or, they can declare a truce; focus on their children; call in some therapeutic help (like social workers or mediators); make a few compromises; work out a plan everyone can live with – and take the kids on annual vacations to Disney World with the money they save.

What are your thoughts on the court’s TV show analogy and rebuke?

For the full text of the decision, see:

Coe v. Tope, 2014 ONSC 4002 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com