Deemed Custody Orders—S. 57.1 of the Child and Family Services Act

Since an amendment to the Child and Family Services Act in 2006, the court has been able to make custody orders as part of child protection proceedings in many cases.

Section 57.1 allows, among a few other useful items, a court presiding over a child-protection matter to make a custody/access order, if it is in the children’s best interests.

The central benefit of this is finality. Until s. 57.1 came into force, parties in CFSA proceedings had only two options for finality: Crown Wardship or withdrawal/termination of Society involvement. These are the two extremes of the range of options under the CFSA, and are not appropriate in many cases. Even where termination/withdrawal could be appropriate, it cannot be used where the situation would suddenly return to an unsafe situation because of an existing custody/access order.

Most obviously, consider a situation in which a child is apprehended from a parent with legal custody under a Children’s Law Reform Act order. If that parent cannot safely care for the child going forward, but the other parent can, Crown Wardship is certainly not appropriate. However, neither can the Society withdraw or terminate because the existing CLRA order would then take over, placing the child back at risk.

In the past, such cases have been stayed to allow the parents to reopen their domestic file and seek variation of the custody/access orders. While this functions adequately, it places a substantial burden on both the parents and the court. S. 57.1 allows that variation to take place under the CFSA heading, with the resulting order deemed to have been made under the CLRA (hence the common phrase “deemed custody order” to describe orders made under s. 57.1).

Parents with a Divorce Act custody or access order already in place at the commencement of the child protection matter are not eligible for a 57.1 order. This can be a frustration, especially for parents who are in child-protection court for multiple years. In order to get a final order, they have to return to Superior Court and get a variation—otherwise, they could be trapped in Status Review after Status Review, with no prospect of finality unless the matter is suitable for Crown Wardship or withdrawal/termination.

Additionally, orders for custody/access made by a Superior Court, even if under the CLRA (eg, by a unified court) cannot be varied under s. 57.1 by an Ontario Court of Justice.

Recap:
Section 57.1 orders are available, where appropriate, to litigants who have either no custody/access orders or who have custody/access orders made under the CLRA, as long as those orders were not made by a Superior Court and being varied by an Ontario Court.

In many cases, pushing for a s. 57.1 order can help ensure finality and limit the length of CFSA proceedings. Rather than arguing summary judgments for supervision orders—leading to the need for a further summary judgment for a s. 57.1 order on Status Review, and potentially a further year in court, there is a prospect of finality at the Protection Application level. It is not the correct call in every case, but is an important tool for many.

Not many judgments cite My Cousin Vinny

Those judgments that do cite My Cousin Vinny probably rarely do so to such good effect.

This unusual judgment from Wales is delivered in the form of a letter to the young person whose custody and residence are at issue in the judgment, a fourteen-year-old boy identified as Sam.

Briefly, Dad wanted to move with Sam to Scandinavia; Sam said he wanted to go and to have citizenship there, but alternately said he wanted week-on/week-off. Mom and the Cafcass advocate for the child felt that he should stay primarily with Mom, in England, with meaningful access to Dad (in person, or, if Dad moved to Scandinavia, mostly by Skype and telephone).

The decision letter was read out in court to the parties and the young person as well as being published, and it strikes me as very fitting for the form of case at issue: one in which the weight to be given to the child’s views and preferences was a major issue, and one in which the child was a party represented by counsel.

There’s a great deal in the letter which is also of interest. The form the child’s evidence took, in particular: the court asked each parent to provide, via counsel, five questions to be asked of the child; the court then asked those five questions. This allowed appropriate evidence to come forward while ensuring that this vulnerable young person was not subject to cross-examination by his parents or their representatives.

The court’s letter explains the decision to the child directly. This is relatively rare, and when done, nearly always done outside of the judgment itself. To use the letter as the reasons is an interesting technique. From a child-focused perspective, I quite like it; with an eye to appeal prospects, I would be curious to see how it held up. The reasoning is certainly just as clear in the letter as in most judgments (and clearer than in many), so it might work just fine.

Much of the decision is fact-specific, but still useful as an example. The child’s clear desire to follow Dad on his proposed “adventure” was weighed against the practical, already functioning plan put forward by Mom, and the refusal by Dad to so much as check up on housing, schooling, or job prospects for the planned move to Scandinavia.

I particularly like the judge’s focus on explaining to the child that one aspect of the decision was that Mom was not only settled but happy, and that Dad was neither; and that the judge felt that the child’s following along with Dad’s wants was because Dad needed that support from the child. In particular: “My view is that you brought the proceedings mainly as a way of showing your dad how much you love him. It was mainly to meet his needs, and not yours” (at para. 5).

And, a familiar description to all of us with much courtroom experience: “I have seen the self-centred way that he behaves, even in the courtroom, and how he makes sure everybody knows how little respect he has for anybody who disagrees with him. Even as a judge, I found it hard work stopping him from insulting the other witnesses. Your mother certainly finds his behaviour difficult, so difficult that she avoids contact with him whenever possible” (at para. 5).

In many cases, that description of a parent to a child–however accurate–might not be appropriate. Highlighting the parent’s weaknesses to the child is rarely the role of those involved in custody/access cases. However, in this case, where the child would have access to the decision regardless, the court found a relatively gentle way to express it, and tempered it.

The tempering was particularly achieved in the last section, and the citation of My Cousin Vinny: “Lastly, I wanted to tell you that your dad and I enjoyed finding out that we both love the film My Cousin Vinny, even if it might be for different reasons. He mentioned it as an example of a miscarriage of justice, while I remember it for the best courtroom scenes in any film, and the fact that justice was done in the end.” It was thoughtful to draw a connection between them for the child, even if he was making a fairly sharp point as well.

Analyzing Financial Statements

Analyzing financial statements is more of an art than a science. It’s one of the most common chances lawyers have to pretend to be accountants, which some of us love and some detest. (I’m closer to group one.)

First and foremost, the overall financial picture has to add up. This is advice I give clients almost daily: the income/expenses and assets/debts ratios should match. More income than expenses should result in assets and little or no consumer debt. More expenses than income usually goes with few or mortgaged assets and plenty of consumer debt.

In other words: a litigant claiming income of $10,000 and expenses of $30,000, but who has $5.00 in the bank and no debts, isn’t believable. I’ve seen many people look at financial statements of that kind and shrug: sure, they’re broke. Well — yes, but there’s a bigger story hiding there. Either they’re confused about their expenses, there’s unreported income (parental contributions? Cash work?), or they’ve neglected to list some meaningful debts.

Alternately, a litigant claiming income of $200,000, expenses of $100,000, and no meaningful assets? Either they’ve got a very skewed idea of their own spending, or you should start seriously poking around for undisclosed investments and accounts.

Of course, there’s always the possibility that the income/expenses situation is new, and the assets/debts reflect an older situation. But if something raises flags, it’s well worth following up on them!

Another variation on these mismatches is when the litigant attempts to make the overall numbers work, in a way that makes the statement obviously false. I’ve seen this most often as: reported income of $40,000 (or $30,000, or $50,000); mortgage on massive, expensive house of $3,000 per month (or $2,500, or $3,500); then groceries $20 per month, cell phone $10 per month, few or no other expenses listed. Often, this represents the attempt of a person with a high unreported income to make their income/expense numbers “work.” Since the mortgage is a documented number, they can’t lie about it easily; instead, they lie about other, more fungible expenses, and hope no one notices. Have fun examining their bank statements — it shouldn’t be hard to show that $20 on groceries isn’t so accurate.

Individual expenses can also be revealing in this way. If under the expenses section, $1000 per month is going to pay debts, but no debts are listed, that’s a flag.

Comparing past financial statements, when you’ve been provided with a few, can be a delicious exercise. Many people slip up between one and the next, if they weren’t telling the truth in the first place. It’s hard to keep lies straight, particularly over the course of a two- or three-year proceeding.

For cases of failure to pay support (or costs), FRO has examination of financial statements down to a science. Watch FRO counsel at court, and you quickly see their technique: find every non-obligatory expense they list, and point out that those monies could go to support. Vacations? Not while you’re in arrears, buddy. Alcohol and cigarettes? Not so much. Gifts? Start hand-making them.

Legally, they’re quite right, particularly when it comes to child support, and there’s something remarkably compelling about pointing out that the children are being fed and housed without any (or enough) help from the payor while the payor is reporting spending twice the support amount on booze, restaurant meals, and clothes.

Finally — for this post, at least, as there’s much more to be said on the subject — don’t neglect the tax returns. There’s so much in there — not just the reported income but the source, for instance: “How and why did this person get a T4 for $1?” and “The sole proprietorship grossed $600,000 but only netted $15,000?”

Better yet are the schedules. Here’s a particular favourite from a past version of the tax return forms. I was acting for FRO at the first appearance of a default hearing. The payor, who had experienced counsel, reported years of income of only $1,200 per year, but was not on social assistance. “How does he survive?” I asked counsel.

“You know, I think he couchsurfs. He’s basically homeless,” he told me, empathy in his voice.

“Ah, that would make sense,” I said. “Except that he’s applied for the housing credit, and he’s told CRA he pays $1,100 a month in rent. Here’s his landlord’s name and number.”

“I … need a minute with my client,” counsel said, and we shortly reached agreement about voluntary payments.

Financial statements are a treasure trove. Spend time with them, and they often reward it with new avenues for proving your client’s case. Spend more time drafting, and you can help prevent your client’s case from being easily disproven.

Molly Leonard

Words Mean Things

In the interpretation of legislation and contracts, words and sentences with a plain meaning are supposed to be read in that plain way. As we all know, this isn’t always as easy as it sounds; I’ve just found this remarkably detailed breakdown of some of the problems with the “plain meaning” rule, for instance.

But there are legitimate arguments based on interpretation, and then there’s denying that the same word in the same context in two places means the same thing. Which is what we have in this charmingly short appeal decision from the Ontario Court of Appeal.

The background facts are set out in the Superior Court reasons better than I could summarize:

[1] On April 28, 2008, Jane Harper retained John C. Cox as her family law lawyer in respect of all matrimonial and financial issues between her and her former husband, Paul Brian Harper. Mr. Cox acted for Ms. Harper in this capacity for almost six years. During which time he sent her 37 accounts, which she paid. On March 20, 2014, Mr. Cox was removed as counsel of record. Mr. Cox then sent a final account to Ms. Harper.

[2] Mr. Cox’s accounts over this period were for a total sum of $445,734.98. The matrimonial dispute had not yet gone to trial.

[3] Ms. Harper proceeded, within 30 days of receiving Mr. Cox’s final account, to obtain an Order for Assessment under s. 3(b) of the Solicitor’s Act, R.S.O. 1990 c. S.15 for 38 accounts (the 37 initial accounts and the final account) provided to her by Mr. Cox. That assessment has not yet take place.

The lawyer seeks, alongside some less interesting items, to have the first 37 bills excluded from the assessment. The client is successful in defeating that argument; the court finds that all of the bills can be examined, as the client brought her request for assessment within 30 days of receiving the final bill.

Ah, but! the lawyer argues–all the previous ones were also final bills, and she didn’t do anything within 30 days except pay them.

Except, as both decisions note, the bills themselves and their cover letters all said “interim,” except for the last one. The Superior Court describes the materials thus:

[51] I turn next the letters sent to Ms. Harper with the accounts and to the accounts themselves. In each of the cover letters that were sent by Mr. Cox, he began by saying, ”Enclosed please find my interim account for services rendered…” and then filled in the relevant time period. The accounts that he attached all had a heading “Interim”. Below Mr. Cox’s signature at the end of each letter is the following passage:

This interim account does not necessarily represent the value of services rendered to date but only a payment towards the final account.

Despite these references to interim vs. final in his own bills and cover letters, the lawyer argues at both levels of court that interim doesn’t MEAN interim, really.

It pretty much does, both courts tell him.

And once again the simple legal rule that words have meaning wins the day.

Molly Leonard

Interjurisdictional Service Issues

The big, shiny new issue in family law procedure is here: interjurisdictional service.

Canada, all the way back in 1988, signed onto the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Yet, if you’re a family practitioner who hasn’t heard of it, you’re far from alone. “The Hague convention,” in our parlance, means the one relating to international child abduction; most of the other conventions Canada has signed onto just don’t have the same impact as that one.

That is, until now. Now, you’ve better have heard of the convention on service, because according to the Divisional Court, it governs us, and not just our civil-law colleagues.

The convention has been cited by Ontario family judges for a number of years, but rarely. Recently, though, a three-judge panel of the Divisional Court heard the appeal of Wang v. Lin, and you know it’s going to be an interesting one because the decision names five lawyers for the two parties.

The subject of the appeal was whether service had complied with the convention — and, of course, whether such compliance was mandated. At the Superior Court level, Justice Kiteley had ruled that the Family Law Rules intentionally depart from the Rules of Civil Procedure, which adopt the convention requirements, and that therefore convention-approved service was not necessary in family cases.

The Divisional Court, for better or worse, did not agree. They wrote:

[7] In brief, it is well established that in interpreting legislation, there is a presumption that the legislature intends to conform to international law and to live up to its international obligations. That presumption may be rebutted, but to do so, the language of the legislation at issue must be clear and unequivocal.

As the Family Law Rules do not actively thumb their nose at Canada’s international obligations, service that did not comply with the convention was not effective.

Ah, you ask, but what’s the big deal? Or, the more pro-active of you: how do I ensure I comply going forward?

The good news is that this is a very answerable question; the bad news is you will have to engage in, at the very least, a minute’s google search to tailor that answer to your specific case. Any service can be effected through the Central Authority–and I feel for Ontario’s, which is currently made up of one lawyer and one clerk, and is perhaps about to be inundated. However, if the other jurisdiction does not object, you can also serve in a method that complies with Ontario service requirements.

I’ll even make it very, very easy for you: the chart of signatories is here. The column on the far right contains indicators of whether the member state in question has added stipulations to its membership. Click on the letter(s) in that column, and look for the word “oppose.” See, for instance, the People’s Republic of China, which was the country in question in Wang v. Lin–click through, and you’ll see, among other declarations, this one:

3. to oppose the service of documents in the territory of the People’s Republic of China by the methods provided by Article 10 of the Convention.

So, those are the basics. If you’re serving outside Canada, get hip to the new requirements, and make sure you warn your client that, like everything else procedural, there may be a long delay associated with compliance.

Molly Leonard

Security for Costs, and Waiting Too Long

I recently attended on a somewhat unusual motion. The case, a complex family matter with four parties, is between trial sittings. Three weeks of trial have already been heard, and two more are scheduled in the near future.

In this break between weeks of trial, my client was served with a motion for security for costs.

In Ontario, security for costs in family cases is governed by Rule 24(13) of the Family Law Rules. It sets out four basic factors which might lead to such an order. One of them, the simplest, is that the party resides outside Ontario, and this is the case for my party.

More important by far, however, is the requirement that the court make an order which is “just.”

In my matter — three weeks into a five-week trial — it is hard to fathom how any order for security for costs could be “just,” except on the most overwhelming evidence that my client is a scoundrel. (My client is not, for the record, a scoundrel. At least one of the other parties may well be; that is for the court to decide.)

If there were evidence of outrageous and insupportable behaviour, justifying a mid-trial order for security for costs, one might presume that the trial judge would have it. Having heard three painful, if necessary, weeks of evidence in this matter, the trial judge is ideally placed to find that a party is likely to lose the case and abscond with costs unpaid.

Interestingly, this motion was not brought before the trial judge. Even after I pointed out that it ought to be, it was brought to a regular Brampton motions list, and there it was heard and dismissed.

The chief case on mid-trial motions for security for costs in Ontario is Stefureak v. Chambers, 2005 ONSC 7890 (CanLII)In that matter — one of many battles between parties whose names crop up in many a caselaw search–the father commenced trial with two planned witnesses and, before mother’s evidence had even closed, was up to a planned seventeen. Mother sought security for costs on the grounds that fifteen new witnesses were obviously an attempt to drive up costs and ensure a Pyrrhic victory.

Notably, mother sought that order from the trial judge, who was in the best position to know the body of evidence.

The judge found, quite reasonably, that the concept of a mid-trial motion for security for costs created a high bar indeed, and that mother’s evidence did not clear it. Seventeen witnesses could well be absurd and a waste of time; they could also be necessary. Until their evidence began, the court could not assume the worst.

Overall lesson: think ahead. Bring your motion for security for costs early, and put your best foot forward in the materials. It’s not an easy motion to win at the best of times, but in the meritorious cases, it can be done.

 

Other notes from that motion:

  • If an earlier version of your motion was struck for lack of a particular document, make sure that document is contained in your new version
  • If you plan to bring the same motion twice, pay the costs in a timely fashion, not two years late and five days before the second go-round
  • If your argument is based on the difficulties of enforcing judgments in a particular locale, make sure you know whether there’s a reciprocal agreement for that jurisdiction or not

Molly Leonard