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Posts from the ‘Divorce’ Category

When Can (or Should) a Court Force Parents to Go to Reunification Therapy?

When Can (or Should) a Court Force Parents to Go to Reunification Therapy?

Reunification therapy is court-ordered counselling, conducted by a court-designated therapist, designed to help bridge the rift between a parent and a child after a divorce or separation.  It can be part of a determination as to custody and access, or may come up as part of a review once these orders have already been made. Reunification therapy can be ordered at a motion or at a trial.

Two recent Ontario cases provide guidance on when these kinds of orders are appropriate.

In Testani v. Haughton, the court considered whether to order reunification counselling for the daughter of two parents who had significant conflict in the post-separation period.  At separation, they had been married about 12 years and had two children together, including a 13-year-old daughter who the father claimed was actively being alienated from him by the mother.  The father had had no access to the daughter for several years, and she wholly refused to see him.

The child had attended counselling as directed by the court, and it resulted in the therapist’s recommendation that – while the daughter loved her father and was looking forward to future access with him – she should not be forced to see him at this point, since it would damage the prospect of any future relationship.  It was also recommended that she should receive individual counselling, as well as joint reunification with the father, to ease his transition back into her life.

The mother claimed she was on-board with these recommendations, but also did not want to force the daughter if she was currently unwilling to see him.

In examining this scenario in the context of resolving the parents’ issues, the court stipulated some of the criteria it must consider, in deciding whether to make an order for reunification therapy in the first place.

First, the court reflected on whether it even had the jurisdiction to make this kind of order at all, and after reviewing the prior cases, concluded it did.  Then it summarized the governing principles to be applied, as follows:

  • Orders for reunification therapy are to be made sparingly.
  • There must be “compelling evidence” that the therapy will be beneficial.
  • The request to the court must be adequately supported by a detailed proposal, identifying: a) the proposed counsellor; and b) what is expected.
  • A parent’s or a child’s resistance to therapy is an important factor in deciding whether to make the order, but it is not a determining one.
  • Where practical, the court should give appropriate direction to the counsellor or therapist, and should receive a report after the therapy is concluded.
  • If a clinical investigation or assessment is already underway, the order should wait until those steps have been concluded.

On the point of a parent’s resistance to participating in therapy, a second recent case called Leelaratna v. Leelaratna stresses that a court must look beyond a parent’s stated refusal to co-operate, and assess how likely the parent would be to actually go.  The court said:

There may be various reasons for a parent’s resistance to therapeutic intervention; the parent may not be satisfied that the cause of the breakdown in the child-parent relationship has been properly identified; the parent may feel that therapy is premature and that other steps must first be completed; the parent may lack the financial resources to retain the recommended therapist, and/or; the parent may not wish to have to physically force a resistant child to attend counselling.  The court should assess the likelihood that a parent will comply with a therapeutic order once it is made, despite that parent’s professed refusal to engage. 

For the full text of the decisions, see:

Testani v Haughton, 2016 

Leelaratna v. Leelaratna, 2018

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

 

 

Does Wife’s 27-Year-Long Failure to Look for Work Override Her Right to Spousal Support “Until Death”?

Does Wife’s 27-Year-Long Failure to Look for Work Override Her Right to Spousal Support “Until Death”?

The Ontario Court of Appeal was asked to address some interesting questions in a recent case called Haworth v. Haworth.  The former spouses – who had actually separated more than 30 years ago – came before the Court for its ruling on whether a 1991 spousal support agreement they had reached should be varied.  The questions were these:

Should that 1991 agreement, which granted the wife spousal support until death, still be valid once the husband retires from his lucrative profession?   And should it matter that the wife did not look for work at all throughout those 27 years?

The spouses had been married for 17 years when they separated, and were now both 73 years old. The wife, who was a research assistant at university, had stopped working outside the home after the birth of their second child. The husband had been a successful dentist – earning up to $300,000 per year – until he retired at the age of 72.

The 1991 agreement, which was enshrined by a court in a Divorce Judgment, provided that the wife should receive $4,000 per month until death.  The husband claimed that since his post-retirement income had now dropped to about $65,000 per year, the wife’s support entitlement should come to an end completely.

An earlier motion court judge had agreed, finding that the combined effect of the husband’s decreased income and the wife’s failure to look for work post-separation justified dropping her support entitlement to only $1 per month.  In fact, the motion court judge said the wife’s failure to look for work was “the most significant material change”, adding that she should manage her assets (including properties in France and Panama) in a way that achieved a reliable income stream for herself.

On the wife’s later appeal, the Appeal Court disagreed on this last point specifically. The wife’s failure to seek employment was not a “material change in circumstances”; moreover, the husband had been tardy in raising the issue.  The Court wrote:

We disagree that the [wife’s] failure to seek employment since 1991 constitutes a material change in circumstances. The clear wording of the divorce judgment was that spousal support would continue to death. The [wife] was entitled to rely upon that judgment. The [husband] waited far too long to raise the [wife’s] decision not to seek gainful employment until an age when she was effectively precluded from correcting the situation.

Simply put:  The 1991 agreement (as reflected in the Divorce Judgment) was a valid contract; it was safe to assume that at the time they entered into it, the spouses had contemplated the future certainty that the husband would be retiring at some point.

Plus, the agreement called for $4,000 per month support, which was actually a low figure given the husband’s income.  This spoke to the fact that it was intended not to reflect the current situation, but rather it was a “long view” arrangement that was intended to cover the wife’s support needs over her lifetime.  It also contained some measure of recompense for the fact that the wife had left her career to raise the couple’s children.

On the other hand, the husband’s sharp drop income was a “material change” allowing for a variation of the level of support.  The Appeal Court noted that while the fact of retirement may have been within the spouses’ contemplation in 1991, the effect of the retirement was not a factor in fixing the amount of support the wife was to receive.  The spouses, and the judge confirming that 1991 agreement, could not know at that time what the husband’s financial circumstances would be some 25 years later.

In adjusting the support amount, the Spousal Support Advisory Guidelines (SSAGs) could still be used as a benchmark today, even though they did not exist in 1991.  Reasoning that it should use the same ratio as the original agreement and order, the Court said:

Looked at in this way, the original order was for a low amount of support, i.e. only $4,000, but for a potentially much longer period of time, i.e. the [wife’s] lifetime. Now that the [husband’s] income has decreased to the equivalent of an earned income of $65,000 plus a return on his investment estimated at 27,000 per year (3% on one half of his jointly owned “open investments” of $1.8 million), and the [wife’s] income has increased to $32,000 per year, the amount of support should be varied accordingly. Given that the original support constituted approximately two thirds of the low end of the SSAGs, we would continue with that same formula, but based upon current income. Having regard to the parties’ current income, today the low end of the SSAGs would be $1,275. Two thirds of that amount is $850 per month for life.

For the full text of the decision, see:

Haworth v. Haworth, 2018 ONCA 1055, [2018] O.J. No. 6919 

Earlier motion to change:

Haworth v. Haworth, 2018 ONSC 159 (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

 

What Constitutes “Hardship” When You Are Well-to-Do?

What Constitutes “Hardship” When You are Well-to-Do?

In determining the proper amount of spousal support that should be awarded after a married couple divorces, the court is guided by various established legal and policy-based principles. One of them is that the support should seek to alleviate economic “hardship” on the part of the spouse who is entitled to receive it.

As with many of the other factors, the concept of “hardship” is relative:  What amounts to hardship in one family setting will be vastly different to what is considered hardship in another.

This dichotomy was well-illustrated in Plese v. Herjavec, which involved the high-profile divorce between Canadian television personality Robert Herjavec (most recently seen on the reality shows Shark Tank and Dragon’s Den) and his wife of 24 years, Diane Plese.

In the context of determining the appropriate amount of spousal support to which the wife should be entitled, the court wrote:

Spousal support is also designed to relieve economic hardship.  What is “hardship” in the context of this family?  I need to look at the pre-separation lifestyle of the family to understand this context.

At the date of separation, the parties lived in a 22,000 square foot home (not counting the basement) with an indoor pool, ballroom, tennis court, tea house, and ten-car garage housing numerous luxury vehicles. The home was located on more than 2 acres in one of the most exclusive areas of Toronto.  The parties owned a ski chalet in Caledon, a luxurious vacation property in Florida, boats and other water craft and a Muskoka cottage.

The former couple’s lifestyle was commensurately extravagant, as the court described:

The family travelled extensively.  Family holidays were often taken using THG’s private jet, which Ms. Plese described as one that can fly “over the ocean”.  Holidays included European destinations.  On a holiday in Greece, the parties rented a yacht and staff to sail the family around the Greek Isles.  Ms. Plese testified that if the aircraft was being used for THG business, and she wished to take a trip, Mr. Herjavec would charter a private plane for her.   Mr. Herjavec did not refute this evidence.

Ms. Plese’s financial statement shows she owns considerable expensive jewellery from Cartier.  At valuation day it was worth over $428,000.  Ms. Plese says this figure reflect roughly half of what it cost.  Again, I heard no evidence to the contrary.

Mr. Herjavec testified he spent $100,000 on a piano for High Point, but, since no one in the family could play, invested a further $25,000 on a device that would play the piano.  Mr. Herjavec owned and operated numerous luxury cars. The middle child, Skye, received a car for her 16th birthday.  The children were educated at exclusive private schools.  The two girls attended elite American universities.  Both older children have pursued post-graduate studies, at no personal financial cost to them.  The family lived a rarified existence of privilege and luxury.

It is telling that [their daughter] Skye, when asked whether it was true she enjoyed luxurious holidays with her family, simply answered:

I mean they were just vacations to me, I don’t – it depends on how you see them.

Skye was then asked how she saw them. She answered:

I was going on vacation with my family … it depends what you – like that’s how I grew up, that’s – it was a vacation with my family is how I saw it.

In awarding support, the court had to examine the post-split downgraded lifestyle that the wife was now living, in light of the divorce after a longstanding marriage.  The court explained:

Ms. Plese testified that her lifestyle has suffered since the breakdown of the marriage.  For example, instead of travelling by private jet, she flies with commercial airlines.  Instead of staying in a suite of rooms at luxurious hotels, she now stays in a single hotel room.   I have no evidence that Mr. Herjavec has experienced any similar reduction in his lifestyle.

I conclude that without spousal support, Ms. Plese will have suffered economic hardship as a result of the end of the marriage.

For the full text of the decision, see:

Plese v. Herjavec, 2018 

At Russell Alexander Collaborative 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 Decides it Can Order “Reunification Therapy” To Repair Fractured Parent-Child Relationship

Court Decides it Can Order “Reunification Therapy” To Repair Fractured Parent-Child Relationship

The parents had a child together who was now 12 years old.  When the husband returned from a two-week trip out of the country to deal with some urgent matters, he found that the mother hand moved out of the matrimonial home. The next day, he received a letter from the mother’s lawyer, saying she was formally separating from him.  Aside from a few visits within the next few days, the father was told that the child did not want to see him.  He launched legal proceedings immediately, to get a court order allowing him some access and shared parenting time.

Unfortunately, the twice-weekly access visits between the father and son did not go well, and the child showed strong resistance to participating in them. As the court explained:

I found, based on the evidence before me, that it was undisputable that [the child] experienced significant stress and anxiety around his visits with his father.  However, the cause of that fear and anxiety was quite unclear.   The mother blamed that fear on the father’s own behavior and actions, whereas the father was of the view that the mother was the cause of that fear as a result of her alienating behaviours and lack of support for the father-son relationship.  The contradictory and untested evidence did not allow me to come to any clear conclusions in that regard.

What was clear to the court, however, was that imposing more access with the father in these circumstances would likely lead to a further deterioration of the relationship with the child.  This was echoed by a  registered psychologist, who had been hired to perform a full parenting assessment.  The psychologist noted there was “something terribly amiss here”, and it led to extraordinary distress and conflict.  He recommended that separate therapy for the father and for the mother, as well as private counselling sessions for the child.  He also recommended joint counselling sessions for the child and his father, to try to build a functional and healthy relationship, and concluded that progress could not be made unless the court imposed participation and progress requirements on the parents.

In alignment with these recommendations, the court added:

It is crystal clear to me, based on the evidence before me, that without an integrated professional therapeutic intervention with this family, any hope to rebuild a positive relationship between [the child] and his father will be lost forever.  There is simply no legal solution for this family, unless it is grounded upon, and supported by, therapeutic assistance.  If this court does not have the ability to impose on the parties and their child the therapeutic order that is necessary to achieve the long-term changes in behaviours which are essential to rebuild [the child’s] relationship with his father, this court will have no power to assist this family or this child.  This conclusion is rooted in my finding that, without a sustainable change in behaviour, access between [the child] and his father, in its current form, is detrimental to his mental health and overall well-being, and not in his best interests.

However, this raised an important legal question:  Whether the court had the jurisdiction to make a therapeutic order requiring the parents or the child to engage in these various types of counselling, including “reunification therapy”.

After noting that the significant controversy arising from Ontario court rulings on this point, the court concluded that it did have the needed powers under the provisions of the Children’s Law Reform Act and under the Divorce Act, in accord with the “best interests of the child.”  The court was already imbued with broad powers allowing it to address a child’s best interests when the parents could not agree; these could comfortably include making therapeutic orders where warranted.   Also, even though they are not expressly provided-for in the legislation, courts routinely make a wide variety of orders in the course of adjudicating on custody and access matters (including requiring a parent to complete a parenting course; deciding in which school or in which activities a child will be registered; determining whether a child will be allowed to travel to a specific country; and deciding whether a child will be raised in a particular faith or educated in a particular language).

Having concluded it had the legal authority to make the order, the court considered all the established factors that are relevant to its exercise of discretion in this particular case, including the child’s own willingness to participate. It added while access to the father was not currently in the child’s best interests, there was still hope that the relationship could be repaired “if everyone meaningfully engages in the therapeutic work necessary to achieve that goal.”

In the end, the court ordered the father, mother and child to each engage in the therapy and counselling recommended by the psychologist, before access to the father could resume.  The court also asked the psychologist to undertake an update assessment in six months’ time.

For the full text of the decision, see:

Leelaratna v. Leelaratna, 2018 

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

Former Shark Tank Star Ordered to Pay Ex-Wife $125,000 Per Month in Support

Former Shark Tank Star Ordered to Pay Ex-Wife $125,000 Per Month in Support

In a recent ruling by the Ontario court the husband, well-known TV-celebrity Robert Herjavec was ordered to pay his ex-wife, Diane Plese, $125,000 per month in spousal support for an indeterminate period.  He was also ordered to pay her about $25 million, representing an equalization payment and her entitlement to shares in a cottage and vacation property. This is in addition to about $20 million she already received in assets from the marriage.

Herjavec, one of the stars of television’s Shark Tank and Dragon’s Den reality shows, had been married to Plese for 24 years before they split in 2014.  Their separation was prompted by the revelation that he had been having an extramarital affair.

At stake in the divorce was what they considered an “unimaginable fortune,” which had snowballed from an original $31 million sale of Herjavec’s cyber-security company called “Brak” in 2001.  This funded the development of a similar, equally-lucrative business later on.  The influx of wealth had a significant effect on the couple’s lifestyle, as the court explained:

After the Brak sale, the family’s spending patterns changed dramatically.  A new family home was purchased for over $7 million.  It was located in the exclusive Bridle Path area of Toronto.  In addition to many bedrooms, bathrooms, living and dining and family room, it also featured an indoor swimming pool, a ballroom, teahouse, and a huge garage, large enough to store many vehicles. 

They acquired a new recreational property on Fisher Island in Florida.  It cost more than $2.6 million.  Boats and cars were purchased.  The children were sent to exclusive private schools.  Ultimately, Ms. Plese stopped working outside the home altogether.

In the context of settling their family law issues, the court turned to valuing the former couple’s property, including their 22,500-square-foot matrimonial home now valued at around $17 million, their $5 million cottage, their $4.8 million property in Fisher Island, as well as various boats, vehicles, and even their Aeroplan points.  This was a considerable challenge due to the significant difference in valuations provided by their respective experts:   For example, respecting the value each expert attributed to Herjavec’s current business alone, there was a spread of $30 million.

After concluding that Plese was entitled to about $25 million for her share of these items, the court turned to the issue of how much spousal support Herjavec should pay her.  In doing so, the court cited from a paragraph of his own book, as evidence of the importance of the marriage and Plese’s support to his success. The court said:

This was a lengthy marriage of nearly three decades.  The parties both testified they worked as a team.   Mr. Herjavec himself perhaps put it best in his book titled Driven: How to Succeed in Business and in Life.  At page 286 he says:

I’m fortunate in so many ways to have Diane as my spouse.  She earned her optometry degree over six strenuous years of study, years that included countless nights of study and work as an intern.  She knows what it’s like to work eighteen or twenty hours a day in pursuit of a goal; she understands the motivation behind it.  Having obtained her degree she could count on a good income from steady employment, providing a safety net if one of my projects went belly up.  This was enormous comfort to both of us, especially during my first years as an entrepreneur. 

Clearly, Ms. Plese’s contributions from her own work were critical to Mr. Herjavec’s financial success, particularly in the early years of the marriage when he began Brak.   Brak, of course, provided the foundation for [the later company] and its ultimate success.  What Ms. Plese lost when she stopped working outside the home was that very steady employment and her own financial safety net created from her own separate earnings.  This is a compensable loss.

In all the circumstances, the court concluded that Plese was entitled to spousal support of $125,000 per month, with no set termination date.  Although this amount was actually lower than what the Spousal Support Advisory Guidelines would otherwise dictate, it incorporated the ongoing capital positions of each of the former spouses, and represented a reasonable balancing of the economic consequences of the end of their marriage.

For the full text of the decision, see:

Plese v. Herjavec, 2018

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

Mom Unilaterally Pays for Kids’ Special Expenses for School – Years Later, Should Dad Be Expected to Contribute?

Mom Unilaterally Pays for Kids’ Special Expenses for School – Years Later, Should Dad Be Expected to Contribute?

At the time of their separation and divorce 20 years ago, the court had made an order requiring the father to pay child support to the mother, to help cover the expenses of their two children, who were now both in their early 20s.

Some of these expenses related to their son’s attendance at a U.S. university until mid-2018, and to their daughter’s briefer stint at a local college for about a year.  The father faithfully paid the required child support over the years.

The mother now applied to the court to have that decades-old prior order changed retroactively, to add a new requirement that the father share in paying for the “special expenses” (as prescribed in section 7 of the Child Support Guidelines) relating to both children.  She asked that the father be obliged to pay for a period starting in at least the year 2000.

It seems that over the years, the mother had been unilaterally paying what she said were significant special expenses for the children’s in relation to their schooling, especially in the past few years when the children were pursuing post-secondary education.  However, she was either remiss or reluctant to ask the father for his contribution.  As the court explained:

The [mother]  claims that on June 12, 2014, she emailed the [father] alerting him to the fact that the children would both be attending university, and impliedly requested the [father] to contribute.  The [father] insists that he did not receive the email, and points out that he had changed his email address approximately a year before the email was sent. 

In explaining why it took her a further four years after that e-mail to go to court to try to have the father’s obligations enforced, the mother said she was afraid of the father, because he had been abusive towards her during the marriage and after separation.

In response, the father pointed out that:

1) There was nothing in the original order requiring him to contribute to section 7 expenses;

2) He was never consulted in any way as to the expenses the mother was incurring;

3) He never had an opportunity to provide input on what activities should be contributed to;

4) He already spent about $80,000 on extracurricular activities for the children over the years, himself, which would already fall in the category of the section 7 expenses being claimed.

After assessing the evidence on the whole, the court rejected the mother’s retroactive request for the section 7 special expenses, writing:

There are several difficulties with the [mother’s] claim for a contribution to section 7 expenses. 

First, apart from some general emails there was no formal request for a contribution to specific special expenses.  Ordinarily, parties would discuss which specific activities or other matters would legitimately constitute a special expense, to which both parties should contribute, and court action, in the event of disagreement, could sort out the matter at the time.  That did not happen.

Furthermore, at this point it would be difficult to determine, with any accuracy, exactly what contributions either party has made to what could legitimately be considered to be special expenses.  Both parties have attempted to do so, but I am not convinced that their calculations are particularly accurate. 

The court observed that at this late stage it would be “difficult, if not impossible” to impose a reasonable cost-sharing agreement after-the-fact.  It also noted the parents had essentially been informally sharing the children’s extra educational costs over the years, without a formal court order being in place.

For the full text of the decision, see:

Lochhead v. Lochhead, 2019

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

Woman Acquiesced to Sham Marriage for Fear of Losing Her Job – Was She Under Duress?

Woman Acquiesced to Sham Marriage for Fear of Losing Her Job – Was She Under Duress?

In a Blog post from a few weeks ago, we talked about what it takes to get a marriage annulled.  One of those grounds is “duress” – which has been defined by the Ontario Court of Appeal in a case called Berdette v. Berdette as involving a “coercion of the will” where the person receiving the pressure has no realistic alternative but to submit to it, and no realistic ability to freely decide on his or her own.

The bounds of what constitutes duress were considered in a recent B.C. case called Kaur v. Jhamb, where a woman applied to the court to have her purported marriage to a man annulled.   The man was recently arrived from India, and was a relative of a businessowner for whom she had recently started working as a hairdresser in Canada.

The businessowner had suggested to the woman that could marry the man, who could then be sponsored to immigrate to Canada as a permanent resident.  Although it was posed as a suggestion, the businessowner also intimated that the woman’s employment in his business would only be secure if she acquiesced to it.

The woman gave evidence that this so-called “suggestion” caused her stress, because she was neither ready nor willing to be married, but also did not want to lose her job.  She asked the businessowner to be allowed to think about it for a day.  She ultimately agreed;  according to her evidence she felt duress because of the direct threats to the security of her employment.

Soon after she and the man underwent a civil marriage ceremony attended by a few of the businessowner’s friends and family.  Immediately after, she went home alone, and has not seen the man since. The marriage was not consummated.

Still, the woman was fired from her hairdressing job shortly afterwards.  She believed that she was let go because she did not go through with the religious ceremony that would finalize the marriage to the man.  As the court explained:

The parties belong to the Sikh religion and are Punjabi by ethnicity.  According to the Sikh religion, in addition to a civil marriage ceremony, it is essential that there be a religious ceremony in front of the holy book, Shri Guru Granth Sahib, prior to cohabitation and/or consummation of the marriage.  No such religious ceremony took place.

In considering whether to grant an annulment in this case, the court noted that in law, that the traditional test for duress includes “economic duress”.  Here, the evidence was “overwhelming” that the civil marriage ceremony was a sham entered into solely for immigration purposes.  The court said:

I am satisfied that the [woman] did not enter into the agreement to participate in this sham of her own free will, but did so because of the threat of losing her job.  I find that she was coerced into marrying the [man] and participated in the civil ceremony under duress.

The court readily granted the order declaring that the marriage to the man was a nullity.

For the full text of the decisions, see:

Berdette v. Berdette, 1991

Kaur v. Jhamb, 2019 

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 Strikes Down Law Barring Platonic Parents from Adopting

Court Strikes Down Law Barring Platonic Parents from Adopting

In an important recent case called S.M. (Re), an Ontario court struck down as unconstitutional a legislative provision requiring adoptive parents to be “spouses”. The ruling opens the door for platonic friends to jointly adopt a child in certain scenarios.

The court was presented with joint application for adoption put forward by two women, who had been “good friends” for 12 years but were not in a romantic relationship of any kind.  They wanted to adopt a child, S.H., who had been living with them for three years as part of a foster care arrangement, since having been made a Crown ward only a few days after being born. The child’s half-sibling also lived in the loving home environment provided by the women, and they all considered themselves a family.

The glitch was that the Child, Youth and Family Services Act, 2017 (“CYFSA”) (and the former Child and Family Services Act, which it replaced) contained language to the effect that only “spouses” could jointly adopt a child that had been made a Crown ward.  The term “spouse” was specifically defined to include not only married partners, but also those in a “conjugal relationship outside of marriage”.  Since the women were only platonic friends, and not spouses, this wording technically precluded them from jointly adopting the child.

The women asked the court to strike down the spousal requirement, on the basis that it was contrary to the Charter because it discriminated against them on the basis of marital status.

In readily doing so, the court noted that one of the public policy goals of the CYFSA was to try and promote an increase in the adoption rates of children who were Crown wards.  It cited studies and statistics showing that CYFSA-prompted changes were indeed making a difference.

The court then observed that the restrictive spousal requirement in the CYFSA was having the opposite effect: It reduced the pool of joint applicants who could adopt a Crown ward.   More to the point, it did so by drawing a needless distinction between applicants who were marred or in a conjugal relationship, and those who were not.  The purported distinction was based on the women’s personal characteristics as two “single” individuals rather than spouses.

This, the court found, was in breach of the Charter, and could not be reasonably justified. The court added:

The applicants have chosen, in a free and democratic society, to live together as a family with emotional and financial interdependence.  They both sought to open their home to the most vulnerable in our society – children who are in need of protection.  The applicants applied for and were approved to be foster parents.  The subject child S.H. knows the applicants as her only parents.  The applicants, not unlike other long-term foster parents, now seek to adopt S.H., with the support and recommendation of the Society.  However, they cannot do so.

Why?  The answer:  their relationship is platonic; it is not conjugal.  They are not “spouses.”

While it may be argued that limiting joint applications to spouses will enhance the prospect of securing prospective adoptive parents who are in committed and stable relationships, it does not follow that those attributes would be absent when two individuals are in a long-term familial non-spousal relationship.

The absolute exclusion of non-spousal couples from joint adoption is arbitrary and is based on irrelevant personal characteristics, bereft of any merit-based assessment. 

The distinction created by the impugned legislation foments the stereotypic dogma that only traditional families with two “spouses” are able to apply for joint adoption.  I agree with the submission of the Attorney General of Ontario that the “prohibition also perpetuates and reinforces the pejorative view that families must match a specific model in order to be appropriate adoptive homes for children and youth.”

 The exclusion of the applicants is “at the front door.”  They cannot even apply.  …

The “front door” exclusion of non-spousal joint applicants without any opportunity for an assessment of their suitability as adoptive parents underscores the exclusion’s arbitrariness.

… The impugned legislation, rather than having an ameliorative effect, worsens the prospect for children to be adopted because it lessens the pool of prospective adoptive parents willing to make the crucial decision to adopt a child and give that child a loving home.

The court accordingly ruled that, under either the newer CYFSA or its predecessor Act, the legislative wording that required adoption applicants to be spouses was unconstitutional.  It “read down” or severed the law, by declaring the words “who are spouses of one another” of no force and effect in this context.

For the full text of the decision, see:

S.M. (Re), 2018

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