The nature of a custody application and an adoption placement are very different.  A child’s custody is always open for a court to review based on the child’s best interests.  An adoption order, once made, is final and non-variable.

In Ontario, a parent or “any other person” can make an application for custody or access to a child.  However, if a child has been placed for adoption, section 143(2) the CFSA prohibits anyone from “interfering” with the child (i.e., including a custody application).

In the particular facts of  K.D.S. v. K.M.S., Justice Nelson of the Superior Court suspended a grandfather’s custody application on the basis that the court was without jurisdiction to entertain it because the child had been placed for adoption.

However, the court made that ruling despite the fact that the grandfather’s application for custody was issued before the child’s placement for adoption. So, how can the grandfather’s custody application “interfere” with an adoption process that has not started?

That part of the decision is difficult to understand given the wording of section 143(2) the CFSA, which prohibits interference with the adoption process after a licensee or agency has placed the child for adoption. The Act does not say that the adoption process starts with a mother’s decision to pursue the adoption route.

Nonetheless, on the basis that the adoption process begins when the mother decided that she was going to place her unborn child for adoption, the court found that the grandfather’s custody application was prohibited because it “interfered” with the adoption process.

The court found that biological father’s lack of consent to the adoption was of no consequence, and did not impeach the placement for adoption.

In a highly technical discussion, the court found that the biological father failed to meet the statutory definition of “parent” under section 137 of Ontario’s Child and Family Services Act (CFSA) and section 8 of the Children’s Law Reform Act (CLRA).

In the particular facts of the KDS case, the Court found:

“Neither the father, the grandfather, nor the grandfather’s 32 immediate family members satisfied any of the conditions in section 137(1) of the CFSA.  None of them is an individual under section 8(1) of the CLRA.  None of them has acknowledged parentage of the child in writing under section 12 of the CLRA.  None of them is, under written agreement or court order, required to provide for the child, has custody of the child or a right of access to the child.  None of them has lawful custody of the child.  “Lawful custody” has been interpreted to mean the actual exercise of custody, as opposed to the entitlement to the exercise of custody: …  In this case, the point is moot as no custody or temporary custody order has been granted.

With respect to section 137(1)(d) of the CFSA, none of them has acknowledged parentage of the child and provided for the child’s support;

Further, neither the father nor the grandfather has, during the twelve months before the child was placed for adoption under Part VII of the CFSA, demonstrated a settled intention to treat the child as a child of his or her family.”

In the latter case, the court relied on case authority to find that treating a child as a child of one’s family meant “immediate family” instead of the “extended family” of a grandparent.

The case is a difficult one to grapple with: essentially the court says that the child’s best interests are served by not interfering with an adoption process that was started after the grandfather’s custody application, and when opposed by a biological father.

In today’s world, it is not unusual for children to be conceived after short relationships and even “hook ups”.  Perhaps it is time for the legislature to consider expanding the definition of parent to include a biological father whose identity is known to the mother.

A few years back I heard a commentary about criminal court and family court.  The saying went something like this: “criminal court is filled with bad people trying to look good, while family court is filled with good people looking bad.”

The parties in Bruni v. Bruni behaved incredibly badly.   The wife alienated the children from the husband (actually seeking to have them adopted by her new boy friend 4 months after separation). The husband failed to report income and to pay adequate child support.  The husband made a frivolous claim to set aside a separation agreement, which was okay as they could get new partners and met new people at chatempanada.com.

Justice Quinn’s decision was scathing of the parties.  The decision garnered national attention.

Aside from the delight of schadenfreude, can any insight to our family law system be gained from Quinn, J’s critique?

Our court system is is obviously a flawed process for addressing people’s emotional difficulties.  In Bruni, the parties and their children were in need of counselling but the court was unable to provide it.  Their anger towards each other came to nothing other than wasted resources and the ridicule of a jurist.

The case of Ramlochan v. Ramlochan provides an interesting discussion about expert’s opinions and the need for an expert to go beyond merely providing a conclusion.  The husband’s income was at issue in the case — the amount of his income would determine the amount of support to be paid.  The husband hired an expert, who was to provide an opinion of his income based on her investigation of his financial dealings with two privately held companies that he owned.  The expert filed a report, and without providing any explanation, gave the opinion that his income was $200,000.00 per year.
Corbett, J. refused to accept the expert’s opinion.  He held:


The court will not accept an expert’s opinion solely on the basis of the expert’s “authoritative claim”.  That is, it is not sufficient for an expert to show that (a) she is an expert; (b) she has looked into a matter; (c) she has reached a conclusion; and (d) therefore the court should accept her conclusion.  Rather, the expert should explain her assumptions, describe the material evidence and observations upon which the expert relies, describe the analysis and reasoning the expert has used to reach her conclusion, set out her conclusion, including any limitations or qualifications to that conclusion.  The opinion is not just the “bottom-line” conclusion, but the entire intellectual exercise of assumptions, evidence, analysis, reasoning, conclusions and limitations and qualifications of that conclusion.  It is then possible for the court to understand and apply the expert’s opinion on the basis of the facts, as found by the court, and to weigh competing opinions on contested issues.

Corbett, J. concluded that the husband’s income for the purpose of support was $557,000.00 per year.

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I am reading a book called “The Black Swan” by Nassim Nicholas Taleb.  The book is about how we tend to rely on a simplified view of of the past.  We focus on facts that conform with our values.  To do so we create narratives/stories which in turn support a distorted view of our present and future. Rather than enhancing our understanding, they leave us vulnerable to facts that are not consistent with our values and therefore not considered. By our nature, the manner in which humans perceive reality tends to support our existing biases, thereby placing us at greater risk  for the unconsidered and unknown.

We interpret empirical evidence in a selective manner, focusing on facts that support our existing worldview while ignoring other facts  that do not.   We ignore facts that don’t support our hypothesis.

Taleb argues that we suffer from a delusion of perception and then fall victim to “black swans” — unexpected and consequential random events.  When such events take place, we explain them away so that they conform to our existing  model of reality.  He argues that  not only do we fail to predict such events, when they occur we explain them away by focusing on facts that support us while ignoring evidence that does not.  Taleb argues that we can only attempt to minimize our vulnerability to unforeseen and consequential events (i.e., market crashes) by enhancing our “robustness” and ability to withstand them..

In one of the chapters, Taleb discusses “the madman’s narrative”.  He describes it as the propensity of people suffering from paranoid delusions to take the most innocuous and minor events and construct them in support of a theory of conspiracy.  Ten people suffering from paranoid delusions will all come to the same conclusion of a conspiracy through constructing completely unrelated facts.

From a family law perspective, one continually encounters the madman’s narrative in practice.  The narrative of past events is constructed at a time of emotional distress for the client and the other party.  People in confused and vulnerable states often provide a narrative that focuses on  understanding what motivates the other party.  They want to “make sense” of what has happened.  In doing so, they impose a narrative on the set of facts that is consistent with his or her own theory of events.

will feed the false or biased narrative — believing in good conscience that their job is to advocate the client’s narrative, rather than advising the client more broadly, and focusing on the client’s interests.  Other lawyers will simply ignore the client’s view of his circumstances and impose their own biases, and using their experience as a justification for doing so.

Lawyers, too, come to the practice of family law with biases and often simple minded constructs through which to view the reality of their client’s cases.  Experience must be countered with a skepticism and an imagination  that not every case is the same. Experienced lawyers may be bring over 20 years of “experience” to their family law clients, but that may not be of much value if the client’s experience is ignored and replaced with an equally unrealistic model  of the lawyer’s making.

I advocate on behalf of a client while retaining a healthy skepticism for that client’s benefit.  That same lawyer should appreciate the limits of his or her own knowledge, while listening and observing with an open mind.   The same skepticism should be applied to any belief that the lawyer’s are necessarily right for the client.

At the end of the day, it is the client’s case and the client’s choice on how to prosecute it.  He or she is entitled to a lawyer’s experience, knowledge, skepticism and imagination.

Family law is complex practice area. There are dozens of statutes and thousands of cases.

Nonetheless, Judges who hear family law cases in Southern Ontario have a list of the leading 63 case authorities dealing with:

1. parenting;
2. child support;
3. spousal support;
4. property;
5. marriage contracts;
6. separation agreements and disclosure obligations;
7. summary judgment;
8. interim costs and disbursements;
9. partition and sale;
10. occupation rent;
11. trust doctrines;
12. preservation orders;
13. prejudgment and post judgment interest;
14. costs; and
15. motions before case conferences.

Bhamra v. Bhamra is an example of a case that you don’t see very often: one that seems to be a complete waste of time and money.

The case dealt with two issues — property equalization and spousal support — after a relatively short (6 year) marriage. If both parties had been willing, their dispute could have been resolved during an afternoon settlement meeting. Instead, they fought about many minor valuation and property issues, and a modest spousal support claim against a payor spouse who made no more than $20,000.00 per year.

The parties dispute took up 8 days of trial — almost two weeks — resulting in an order that the wife pay the husband an equalization payment of about $3,200.00 and that the husband pay the wife $5,000.00 in spousal support. A net gain to the wife of $1,800.00 (until one considers the costs of paying two lawyers for four years).

It seems obvious that there were “unresolved emotions” stemming from the parties’ 2006 separation. At separation, the wife charged the husband with assault, and he was removed from the home. Then, the husband’s parents kicked the wife out of the home, too. Four years later they were fighting over minor issues.

There is not a lot of law in this case. Just misery.

The case of Boucher v. Boucher raises interesting issues about “without prejudice” temporary support orders, the Spousal Support Advisory Guidelines (SSAG) and the circumstances under which a court will change a temporary spousal support order.

Temporary spousal support orders are made to maintain litigants pending a trial. Orders such as these can be changed usually require a ‘material change in circumstances’. But what about a consent order made early in the litigation and clearly made “without prejudice” to either parties’ rights?

In Boucher, the parties marriage was 18 years. After separation, the parties entered into a temporary without prejudice support order of $2,000.00 per month in July 2009. Eight months later the wife returned to court requesting an increase. The wife had not anticipated large legal fees related to pending criminal charges.

At the March 2o10, an application of the SSAG placed the husband’s monthly support obligation (based on a conservative view of his income) from between $10,000.00 and $12,000.00 per month. However, Justice Hennessy resisted applying the SSAG to changing the temporary order because the wife knew the husband’s income when she entered into the July 2009 consent. Justice Hennessy made a moderate change to the temporary order by increasing the spousal support to $4,000.00 per month.

One can see the balancing of interests here — the desire to make a less intrusive order meant to maintain the parties to trial, while applying the appropriate level of support (where clearly, the wife had made an improvident agreement in July 2009). The “without prejudice” element of the July 2009 order was clearly taken by Justice Hennessy to apply to the trial proceedings and not further temporary motions. At the end of the day, and given the high likelihood that a trial judge may make a retroactive spousal support order adjusted for the appropriate amount under the SSAG, the husband’s victory at the motion may be short lived.

Had the motion to change been about child support rather than spousal support the outcome would have been much different. A motions court judge would have been required to order order full guideline child support based on the husband’s income.

Cassidy v. McNeil is an interesting case from Ontario’s Court of Appeal and deals with the Spousal Support Advisory Guidelines (“SSAG“). The case also deals with a trial judge’s duty to provide adequate written reasons for his or her decisions.

The trial judge ordered the husband to pay the wife spousal support of $1,200.00 per month for five years.

The lawyers who argued the appeal were not the same as trial counsel. Unfortunately, trial counsel failed to file and mark as exhibits the SSAG calculations used at trial.

The absence of a trial record was compounded by the brevity of the trial judge’s written reasons. The trial judge failed to deal with the issue of entitlement in his reasons, and simply noted that the wife had a need for support.

The Court of Appeal therefore used its own analysis of the SSAG and varied the trial judge’s decision to lower the spousal support to $950.00 per month, but made the order indefinite (given the ages of the parties and the length of the marriage).

Ontario’s Divisional Court upheld a temporary order requiring a husband to pay a wife spousal support of $110,000.00 per month. The spousal support award was reported in the news as the highest award in Canadian history.

The case is Elgner v. Elgner.

The focus of the appeal court is different from the motions court that made the award. In the appellate case, the focus was on whether there was an automatic right to an appeal in light of the provisions of the Divorce Act. The appellate court found there was no automatic right of appeal and that leave to appeal had to be granted.

The appellate court considered the test for granting leave to appeal an ‘interlocutory’ order under section 19 of the Courts of Justice Act: whether there was a conflicting decision in Ontario, or where there was good reason to doubt the correctness of the decision and the matter was of public importance.

The appellate court did not agree that there was a conflicting decision.

As for doubting the correctness of the decision, the appellate court held that temporary spousal support orders should be adjusted at trial rather than re-argued on appeal.