“Lying-in expenses”

While a white-hot debate over abortion engulfs the United States and threatens to spill over into Canada, this Washington Post column by law professor Carliss Chatman purports to take the anti-abortion position to its logical conclusion:

…When a state grants full personhood to a fetus, should they not apply equally?

For example, should child support start at conception? Every state permits the custodial parent — who has primary physical custody of the child and is primarily responsible for his or her day-to-day care — to receive child support from the noncustodial parent. Since a fetus resides in its mother, and receives all nutrition and care from its mother’s body, the mother should be eligible for child support as soon as the fetus is declared a person — at conception in Alabama, at six weeks in states that declare personhood at a fetal heartbeat, at eight weeks in Missouri, which was on the way to passing its law on Friday, but at birth in states that have not banned abortion.

Interestingly, the Parenting and Support Act in Nova Scotia does allow for child support once a child has been conceived – sort of.

Section 11(1)(a) allows an expectant mother to apply for a contribution toward “lying-in expenses” even before the child is born. The Legal Information Society of Nova Scotia defines such expenses as follows:

…These expenses are meant to contribute to the reasonable costs that a woman has while pregnant to carry the baby and prepare for the birth of the baby. These costs usually include things like maternity vitamins, maternity clothes and baby-related items, like a crib, stroller, or car seat. They can also include maintenance of the mother during the pregnancy and expenses related to the birth of the child.

An unmarried woman may ask to have lying-in expenses paid as part of a child support application to the court. A judge can order the mother or the possible father, or both of them, to pay certain amounts toward these expenses. The costs have to be proven (for example, by giving receipts or confirmation of costs) and they have to be reasonable and necessary.

Applications for lying-in expenses can be made during the pregnancy, or after the birth of the child. Often, the application is made after the child is born, and combined with the application for child support , to make things easier (making one application instead of two).

If the application is made before the child is born, the applicant mother must provide confirmation that she is in fact pregnant:

In practice, lying-in expenses are rarely sought. The most recent Nova Scotia decision on the CanLII case-law database in which they were awarded is from 2010. The issue came up in a 2017 case, but they weren’t ordered, at least in part because of the applicant’s tardiness in raising the issue.

In twenty years of practicing family law, I’ve only worked on a handful of cases where lying-in expenses are an issue, and never one where the application was commenced before the birth of the child. But the option is there.

The end of “custody” and “access”

Proposed changes to the federal Divorce Act will do away with these often-contentious terms, following the lead of legislation in several provinces:

Bill C-78 passed first reading in the House of Commons on Tuesday. It would eliminate terms such as “custody” and “access” and replace them with others such as “parenting orders” and “parenting time.” The bill would amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act.

The legislation also includes relocation guidelines — when divorced parents want to relocate to another jurisdiction, at a remove from the other custodial parent — with a shifting onus depending on the child care arrangements pending the relocation; and, parents may be required to attend a family dispute resolution process.

[…]

What to do in the circumstances of proposed parental relocation has been a controversial issue, but the new guidelines will create a shifting onus.

“If you have primary care of the child, the onus is on the other parent” or the objector, to give reasons for his or her objections to the proposed relocation. However, “if you have equal custody, the onus is on the person relocating,” Epstein says, to justify the relocation. The new legislation would essentially override the Supreme Court of Canada’s decision in Gordon v. Goertz, he says, “and places front-and-centre the reason for the proposed relocation.”

The bill does not promote joint parenting, however; “I think those who have been clamouring for family law reform for more than 20 years, particularly fathers’ rights groups, which argue for joint custody, are not going to see that in the bill.” Neither the government nor a fair majority of the family law bar support that, and in the United States, he adds, many jurisdictions that had moved toward a presumption of joint custody have since abandoned it.

I’ll have to see how these changes work in practice, but for now I’m with the lawyers quoted by CBC News, who say they’re cautiously optimistic.  Hopefully this will go some way toward reducing conflict between the parties, and speed up what can be a slow and stressful court process.

​Lawrence Pinsky, partner in the Winnipeg firm Taylor McCaffrey and chair of the Canadian Bar Association’s family law section, said the proposed changes represent a significant step forward.

Pinsky penned a letter to Wilson-Raybould in late December 2017 that outlined the concerns of the CBA’s family lawyers.

“They’re either addressed or there was a solid attempt made to address them,” said Pinsky. “It may be that if I had the pen and was writing the legislation, I might have done it slightly different in certain respects. But they did address many of the changes we called for and we’re pleased with … those changes overall.”

The proposed changes fall into six main areas:

  • 1) ​Replace terms such as “custody” and “access” with words like “parenting orders” and “parenting time,” to make the language less adversarial.
  • 2) Set out criteria that help define the best interests of the child.
  • 3) Compel lawyers and paralegals to encourage clients to use family-dispute resolution services such as mediation instead of courts.
  • 4) Give courts measures to address family violence.
  • 5) Establish guidelines for when one parent wants to relocate with a child.
  • 6) Make it easier for people to collect support payments.

Hilary Linton, a Toronto family lawyer now practising full time as a mediator and arbitrator, said the bill “is bringing divorce law in Canada up to speed with what’s already happening under provincial law.”

For example, Linton said, lawyers in Ontario have turned to the Children’s Law Reform Act for guidance on establishing the best interests of the child because the federal act doesn’t provide it.

“The Divorce Act has now become a very articulate and even eloquent piece of legislation that’s written for the people to whom it applies. I love it because it’s written in plain English, and it’s really — as mediators — codifying what we’ve been doing all along.”

[…]

The act stopped short of establishing a presumption of equal shared parenting between parents, which — although more common than ever — is not established as a starting point. Fathers’ rights organizations like the Canadian Association for Equality say the bill doesn’t go far enough.

Brian Ludmer, a Toronto lawyer and spokesperson for CAFE, said establishing an assumption of equal shared parenting would alleviate the “divorce war” mentality that often pits parents against each other.

But ​Pinsky, of the Canadian Bar Association, said establishing that presumption is not appropriate in a system that centres on the needs of the child.

“We in the CBA say that you start in the position of the individual child, because there’s not a one-size-fits-all. Different children have different temperaments, and some can handle situations that other children can’t.

 

Putting the “dead” in “deadbeat”

An Indiana man who left his family, moved across the country and started a new life with a dead man’s stolen identity has been ordered to pay almost $2 million in unpaid child support:

Linda Iseler said her ex-husband, Richard Hoagland, called her at work on Feb. 10, 1993, to say he was leaving her. She then raced to get the couple’s 6-year-old son, Douglas, at day care before returning to the family’s five-bedroom home in Fishers, where their 9-year-old son, Matthew, was already home alone, the Indianapolis Star reports.

“I can’t live this way anymore,” Hoagland told Iseler, she recalled in a journal. “I feel you would be better off without me.”

Later that evening, Hoagland sealed the family’s fate for good, telling Iseler: “I don’t want to go to jail. I’m never coming back.”

Hoagland cruelly and inexplicably kept his word, eventually remarrying and fathering another son using the name of a dead man whose identity he stole in Florida. But the family’s decades-long quest for answers and justice came to an end on May 14 when a judge ordered Hoagland to pay $1.86 million in back child support, including the maximum allowable annual interest of 18 percent.

[…]

In 2016, Hoagland’s web of deceit collapsed in Zephyrhills, where he was living as Symanksy until he met a police detective in his driveway.

“He told me he was Terry Symanksy,” Pasco County Sheriff’s Office Detective Anthony Cardillo told the newspaper in 2016. “He showed me his driver’s license and gave me the Social Security number for Terry Symansky. Then I showed him the death certificate.”

Hoagland later admitted to living as Symansky and remarrying. He also fathered another son, who was 19 at the time of his father’s arrest. Along with his new wife, Hoagland bought property in Florida and obtained a private pilot’s license. He also owned an airplane, according to the newspaper.

No bunny’s home

An Ontario court has ruled that a child-welfare agency violated the rights of a Christian couple who wouldn’t tell their foster children about the Easter Bunny.

7xaaSWZ

I’ve been waiting years for an excuse to post an “Ernest Saves Christmas” gif.

Frances and Derek Baars, who describe themselves as a Christian couple with “strong religious faith,” took the Children’s Aid Society of Hamilton to court in April 2017, about a year after the girls in their care — aged three and five — were taken away and their foster home was closed.

The couple said the Easter Bunny was at the core of the dispute and argued telling children in their care the character was real was a violation of their religious beliefs — a position Superior Court Judge A.J. Goodman agreed with.

“There is ample evidence to support the fact that the children were removed because the Baars refused to either tell or imply that the Easter Bunny was delivering chocolate to the Baars’ home,” Goodman wrote in a decision released Tuesday. “I am more than satisfied that the society actions interfered substantially with the Baars’ religious beliefs.”

Court heard that CAS support worker Tracey Lindsay had visited the Baars and acknowledged that the girls looked well cared for in all respects.

However, the Baars argued Lindsay told them it was part of their duty as foster parents to teach the girls about the Easter Bunny, court documents show.

The Baars told Lindsay they intended to hide chocolate eggs and have the girls find them on Easter and play other games, but didn’t plan to speak to the children about the Easter Bunny, unless the girls specifically asked questions about the character, documents said.

[…]

Goodman found the Baars did try to have the children enjoy holidays such as Easter and Christmas.

“There is sufficient evidence to assert that the Baars did, indeed, attempt to preserve the children’s enjoyment of the holidays, even of they were not able, pursuant to their religious beliefs, to positively perpetuate the existence of the fictitious characters that are associated with those holidays,” Goodman wrote.

Via Religion Clause.

Football and Family Law

A Pittsburgh couple are battling in family court over whether their teenaged son should be allowed to play high school football:

A father, John Orsini, has gone to court to prevent the youngest of his three sons from playing high school football because, he said, scientific studies have revealed the perils of repeated blows to the head — especially for an athlete, like his son, who has a history of concussions. The boy’s mother, Mr. Orsini’s ex-wife, believes he should be allowed to continue playing because he understands the risks.

“You always heard it sometimes, when one parent would say I don’t want him doing that because he might get hurt,” said Allan E. Mayefsky, a leading divorce lawyer and the former president of the New York chapter of the American Academy of Matrimonial Lawyers. “Usually, we thought the parent was just overprotective. Now, it’s more of a real medical issue.”

In the decade since scientists began to link football to long-term brain damage, the debate over the future of the sport has moved from research laboratories to the halls of Congress, to locker rooms and owners’ suites. Families, too, have grappled with the question of how dangerous the game is — and now parents’ concerns are surfacing in legal battles between divorced couples, leading to an increase in fights over whether to amend custody orders to prevent their children from playing the game.

The child support clawback

In several Canadian provinces (including Nova Scotia) child support payments are deducted from social assistance.  A group of single mothers in British Columbia has launched a court challenge against this policy:

The case will argue that the deduction of child support payments from income and disability assistance violates single parent’s right to equality under the Canadian Charter of Rights an Freedoms.

Milne said the law is unconstitutional because it conflicts with the purposes of the child support system, denies the children of parents on income or disability assistance the right to benefit from their child support, and has a disproportionately negative impact on parents with disabilities and single mothers.

“Other kinds of families are better able to earn other kinds of income and they are allowed to keep some of it before it is deducted from their income or disability assistance,” said Viveca Ellis of the Single Mothers’ Alliance of B.C. “Meanwhile, these vulnerable children have an opportunity for better lives through their child support, but they are not allowed to benefit from it and their parents experience additional financial consequences.”

I’m not aware of any court rulings on this issue, so I’ll be keeping an eye on this one. (There is a PEI Human Rights Panel decision which found that the clawback was not discriminatory, but that wasn’t a Charter case.)

His condition was updated to “alive”

1990: man mysteriously disappears without a trace.

2000: his grieving wife reluctantly has him declared legally dead, and begins collecting his pension.

2010: man reappears, claiming he had amnesia. Now he has commenced legal action to recover the pension:

…four years ago — 20 years after he disappeared — he came home. Bright said it wasn’t for a reunion.

“All he talked about was money,” she said.

Court documents show her husband filed a petition to prove he’s Winston Bright and to win back his pension, CBS 2’s Weijia Jiang reported.

He was not only alive but well, and teaching in San Diego with a new identity — “Kwame Seku.”

In his court filing, the “missing” man said, “I was never returned home but rather found myself in California with no recollection of how I got there or who I was.”

Seku said he suffered from amnesia, but his son A.J. said he isn’t buying it.

“You don’t just walk down the black and catch amnesia,” he said.

I’m not sure how this will play out, but by revealing he was alive all along, Mr. Bright/Seku has opened himself up to a potential claim for child support arrears:

Leslie said if Seku proves he is her husband, she’s taking him to divorce court. She said they’re still legally married and he owes her a lot — money to cover years of child support, for starters.

The end of “custody” and “access”

A survey of Canadian family lawyers shows most opposed to a presumption that children should spend close to equal time with their divorced or separated parents, but overwhelming support for changing the outdated, confrontational terms currently used to describe the “winners” and “losers” in cases involving children:

Canadian family law lawyers and judges reported that an average of 46 per cent of their cases involve some form of equal parenting time (“joint physical custody,” “shared custody” or “shared residence”), in which the children spend at least 40 per cent of their time with each parent. Further, an average of 68 per cent of their cases involve some form of shared parenting (“joint legal custody” or “joint guardianship”). Thus, this survey suggests that roughly two thirds of cases involve some form of what may be broadly viewed as shared parenting.

The respondents also reported a substantial increase in the use of roughly equal parenting time over the past five years (31 per cent said that this had increased substantially, 51 per cent increased somewhat, 17 per cent said it stayed about the same and only one per cent report reported a decrease). Equal time cases, however, are still a minority of shared parenting cases. In only 13 per cent of their cases was there a provision for limited contact with one parent, and respondents report that there is no provision for contact with a parent in only three per cent of their cases.

A clear majority of the respondents (77 per cent) did not support the enactment of a presumption of equal parenting time, as proposed in Bill C-560. However, a substantial majority of the respondents (78 per cent) support the amendment of the Divorce Act to use language other than “custody” and “access,” such as through the of phraseology as “parental responsibility,” “parenting time” or other similar concepts. Of note, the majority of respondents (55 per cent) were from BC or Alberta, where the provincial legislation has already been reformed to include presumptions of mutual parental guardianship and to use the concepts of “parental responsibilities” and “parenting time” as the basis for making post-separation parenting arrangements.

Many of the respondents explained the need to change the language of “custody” and “access” because those terms are “adversarial” and “proprietary.” One respondent commented that “custody … implies that the custodial parent has possession, or control, or ownership rights to the children, while the access parent has something substantially less.” Another observed that they “are extremely dated terms and concepts.”

However, many respondents expressed concern that enacting legislation to a presumption of equal parenting time could cause harm to children. One wrote: “some children do not function well in this type of schedule, and it would lead to substantially more litigation, in my opinion, if we had to start with that presumption.” Another stated: “presumptions have no place in the formulation of the best interests of the child … this is fact-dependent and should be based on a holistic view and the unique factual circumstances implicit with the determination.”

The divorced parent’s worst nightmare

A Toronto woman had sole custody of her two children, but she allowed her ex-husband to use them in a trip to Europe.  A few weeks later, she received a phone call from them – from Afghanistan:

Zaiba Zaiba has full custody of seven-year-old Mateen and four-year-old Hosna and approved for their father to take them both on a trip to Europe in June.

‘I don’t understand why the government cannot bring my children back.’
—Zaiba Zaiba, Toronto mother
Several weeks later, she unexpectedly received a call from a number in the Middle East and realized her children’s fate.

“When I saw the number I was shocked because I don’t get (many) calls from Afghanistan,” she said. “When I said ‘hello’ and recognized his voice I was in tears and I knew that he took them.”

The weeks since have been an emotional struggle, which she has spent pleading with the Department of Foreign Affairs, the RCMP, Toronto police and even her local member of Parliament for help in bringing her Canadian-born children back home.

“I don’t understand why the government cannot bring my children back,” she told CBC News in an exclusive interview.

Foreign Affairs said it’s been made aware of Zaiba’s case and is continuing to provide “consular assistance.”

But family lawyer Andrew Feldstein said Zaiba will face an uphill battle because Afghanistan is a country that has not signed on to the Hague Convention — an international agreement that, in part, protects children from abduction.

“Which means you would need a court in Afghanistan to agree that the children ought to be returned to Canada,” Feldstein said. “You’re subject to their laws because that’s where, regrettably, the children are right now.”

Here’s a list of countries which have signed the Hague Convention. If your ex is from a country which isn’t on the list, I would take a hard line against allowing him or her to remove the children from Canada.  If the other parent asks for it, say no.  If he or she commences a court application, fight it. If an order allowing their removal is issued, appeal it.

I can sympathise with a parent from outside of Canada who wants the kids to see their ancestral home and meet their extended family.  Certainly, in the absence of any safety risks to the children, access in Canada should be facilitated. But if there’s no legal way to bring the kids back from the other parent’s home country, the risk is just too great.

What I’d really like to know about the Zaiba case is how the father got the children from Europe to Afghanistan. If a person is traveling alone with children, He usually won’t be allowed through customs without documentation confirming that he’s allowed to travel with them.

Unrecommended legal strategies (I)

It’s bad enough when clients wear old jeans and hoodies to court.  This is just a little bit worse:

Heath Campbell is the leader of a pro-Nazi group called Hitler’s Order. He lives in New Jersey, and chose to name his son Adolph Hitler Campbell. Both of his children were taken away from him in 2009, and now he wants them back.

On Monday Campbell was in court fighting to get his children back. The state of New Jersey took them away saying that he was an abusive father, but Campbell thinks differently. However he may not be helping himself by wearing a Nazi uniform to court.