The Reality of Racism

Racism is real.  The death of George Floyd and the events of the past 10 days have reminded us all of this raw reality.  George Floyd was the father of a 6 year-old girl who lived in another city.  If he had lived in Toronto, he could have been one of my clients.  I wonder, what impact did Covid-19 have on his ability to see his little girl? What impact did it have on his income and his ability to pay child support? None of that matters now because racism took his life. I know that the black men in Toronto who have been my clients have experienced the same racism.  The black men who I have assisted as duty counsel at 311 Jarvis have experienced the same racism.  Because systemic racism exists in Canada.  And, it exists in family law.   

When I advise someone about the right thing to do in family law, I am guided by laws that were created by our predominantly white male parliament and then interpreted by predominantly white judges.  Although diversity is increasing in both government and the courts, the change that it brings is incremental.  I need to remember that historically, the societal norms that were codified into our family law were based on white, western, straight societal norms.  I need to consider whether the solutions offered by this law actually provide a solution to the real-life family that my advice affects.  I need to consider if racial, cultural or other factors indicate that a different solution would work better.    I need to remember that my advice is influenced by my own personal experiences as a lawyer and as a straight white woman.  I need to listen to and learn from the experiences of others to overcome that bias.

That is why I have an Equity and Diversity Policy that reminds me that “I have an obligation and opportunity to contribute to the promotion of equality, diversity and inclusion regardless of gender, race, sexual orientation or economic status.”  There was heated debate at the Law Society of Ontario over the past few years about whether a mandatory Statement of Principles regarding equality and diversity was an inappropriate infringement on freedom of speech.   I never really understood the “stop-SOP” argument for two reasons:  First, there is no such thing as an absolute unfettered freedom in the real world; Second, we were able to choose our own words.   As a lawyer, I know that words matter.  Choose your own and they matter more.  But, words alone are not enough.  I need to “walk the talk”.  I need to remember the unconscious bias that exists in our law, our courts and my own personal experience.  To be a good lawyer, I need to realize how this bias affects the advice I give my clients.  To be a good lawyer, I need to recognize that racism is real.  And then I need to do something about it.

Children's Activities: 10 Tips for Separated Parents during Covid-19

School online for the rest of the year.  Overnight camps cancelled. No summer sports leagues. 

For separated parents, these changes to summer plans bring extra challenges.  Separated parents need to decide what activities are safe during Covid-19, often together with an “ex” who may have a very different view of what is considered okay during these times.    And, then there is figuring out how to share the cost of paying for them.   Here are 10 tips to follow:

1.       If you have a court order or separation agreement, check to see what it says and follow the rules.   

2.       Share information in advance even if joint decision making is not required.  Recent court decisions show that more information must be shared between parents during Covid-19 because of the health implications of all of our activities, particularly when a child is spending time with each parent’s household.  Make sure that the activity in question complies with local public health guidelines.

3.       Consider if the cost is covered by regular child support payments or if an extra payment is required from the other parent.  Check s. 7 of the Child Support Guidelines for the list of what counts for extra payments (https://www.ontario.ca/laws/regulation/970391).  Work-related childcare costs and extra-ordinary expenses for school and extra-curricular activities qualify.  That means that the cost for babysitting while you work, buying a computer or other device for your child’s online schooling, or tutoring costs could be shared by both parents. 

4.       Cost sharing is based on the parents’ comparative incomes, not 50/50.  Take changes to each parent’s income as a result of Covid-19 into account.

5.       Be flexible.  Consider substituting one expense for another if the other parent agrees.  If you have an Agreement or court Order that says a parent has to pay specific amounts for soccer, but there is no soccer right now, consider using the soccer money to pay for upgraded internet or tutoring if that is what your child needs now.  

6.       Remember that the expense must be reasonable and necessary:  Necessary in the sense that it is important for your child’s development and “best interests”;  Reasonable considering your ability to pay for it as well as your ex’s ability to contribute to the shared cost. 

7.       If the Family Responsibility Office is enforcing s.7 expenses with a child support order, talk to your “ex” about what should happen with the money paid for expenses that are currently cancelled.  You could use it for another activity, you could pay it back to your “ex” or you could count it as paying off past support arrears.  No matter what you decide, be reasonable and put it in writing.   

8.       Plan for the future.  What will happen when pandemic restrictions are eased and regular activities resume?  Remember that how you deal with s.7 expenses now will have an impact on your relationship with your “ex” and your children ,and your credibility in court, long after the pandemic is over. 

9.       If you cannot agree with your “ex”, get help from a dispute resolution professional.   Lawyers, mediators, social workers and parenting coordinators are all working remotely and can help resolve these disputes.  Use court as a last resort since there are backlogs because of the suspension of regular services during Covid-19.

10.   Change the court order if you need to.  If FRO garnishment of child support including s.7 expenses is causing financial hardship, consider going back to court to change the order.  If you and your “ex” agree consider filing a consent motion by form 14B.  What court process and forms you should use depends on whether the order is temporary or final and where you live.  Get advice from a lawyer to make sure you choose the right process for your situation.    

Court Services Expanded

Family court services are no longer limited to just emergency matters. Across the province, both the Ontario Court of Justice and the Superior Court of Justice have now provided details about the expanded court services that are being offered remotely until at least July 6th . The May 13th Consolidated Notice from the Superior Court of Justice is posted online at https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/consolidated-notice/ . Regional practices directions set out the details on the process and types of cases that can now move forward. In Toronto, the full suite of services is now available including case conferences, motions, settlement conferences and issuing new applications and motions to change. But, there are strict rules about the procedures to be followed which must be reviewed carefully at https://www.ontariocourts.ca/scj/notices-and-orders-covid-19/notice-to/ . Other regions have slightly different rules. The good news is that all the up to date regional notices can be accessed through links on the May 13th Consolidated Practice Direction from the Chief Justice. For the Ontario Court of Justice, see my post on May 6th for the expanded services and links . Unfortunately the OCJ has not posted its Covid-19 protocols on the court website, so it is still necessary to contact the local courthouse directly for the most up-to-date information.

Dollars and Sense

As businesses across the world reconsider how they operate, family lawyers are doing the same. Consumers, including me, are all re-examining and reducing our spending. And, that means that as someone who “sells” legal services, I need to re-examine and reduce the price I charge for those services. I have decided to drop some of my rates because of the financial impact of Covid-19. Summary advice will now be only $95 including HST and the low income rate for a full consultation will now be $250 plus HST. The low income rate is available to anyone earning less than $60,000 per year. My focus has always been on providing good quality legal services for people who cannot afford the “Cadillac” level of service offered by traditional law firms.  These low cost services are even more important now.  I will continue to look for creative ways to meet this need.  If you have ideas about how to do so, please contact me and let me know! Sharing these ideas will improve access to justice for all Ontario families.  

Dire Support Needs at the OCJ

Dire support needs have been added to the list of urgent matters being dealt with by some locations of the Ontario Court of Justice. The scheduling directive updated May 7th by the OCJ can be found at: https://www.ontariocourts.ca/ocj/covid-19/covid-19-family-matters-add/. The directive itself doesn’t mention support issues, but the local protocols released by the Brampton, and Toronto courts (47 Sheppard and 311 Jarvis ) do.

Court Suspension Extended to July 6th (and what that means for access to justice)

On May 5th both the Ontario Court of Justice and the Superior Court of Justice announced that in-person court hearings will continue to be suspended until at least July 6th.  Both courts promised to expand the use of remote hearings, but have not provided any details yet on how and when they will do so. 

At the Ontario Court of Justice, the operative Practice Direction has not been substantively updated since March 28th.   Only urgent matters relating to child protection, custody and access and parenting will be heard by conference call.  No financial issues can be heard, except refraining motions for FRO driver’s license suspensions, but since FRO isn’t issuing any new refraining orders during the pandemic, there should not be any of those cases before the courts.   The fact that the OCJ is not dealing with urgent financial issues is troubling.  Many of the families involved in court proceedings at the OCJ are high conflict, low income families.  It is specifically these families whose incomes will have been most suddenly and most drastically affected by the Covid-19 shut-down.  These families do not have the resources to hire private lawyers, mediators and arbitrators to help them resolve child support disputes.  They rely on the duty counsel and judges at the OCJ to help them to do.  Let’s hope that the OCJ recognizes this important role and opens up access to justice for support related issues soon when it increases “access (to) the Court’s services using remote means” as promised in its May 5th scheduling update.

At the Superior Court of Justice, litigants have been able to deal with urgent financial issues throughout the Covid-19 crisis.    The difference between the services offered by the two levels of court is likely due to practical operations issues, but the impact it has on perpetuating two-tiered access to justice highlights the importance of continuing to work towards a Unified Family Court throughout the province.   Unfortunately, the current Covid-19 changes to court operations are pushing us in the opposite direction.  The court rules have been changed by various Notices and Practice Directions, some of which apply across the province and some of which apply to certain regions.  In early April, each court region released a different Practice Direction governing how the family courts would expand hearings beyond emergency motions only.  The Toronto family court is still only dealing with urgent matters.  But, instead of sticking with the definition of an urgent financial issue being one with “dire financial consequences” as noted in the provincial Practice Direction from March, it changed the definition to “issues regarding the financial stability of the family unit”.  Remember, that Practice Direction only applies in Toronto.  In Kitchener, on the other hand, any discrete non-urgent issue can be dealt with at a case conference, according to the Practice Direction dated April 7th, which itself updated the regional Practice Direction dated April 2nd.  These are just some examples of the variations in practice from court to court.  There has not been this amount of procedural complexity in family law since before the Family Law Rules were introduced back in 1999. 

When the courts announce the details of the next stage of remote operations, they will have benefited from the various experiences of the different court regions and levels over the past month or so.  Let’s hope they do it soon, and in a way that makes it consistent, fair and easy for everyone who is involved in the court process to understand. 

Make-up Access and Parenting Time

Should parents who miss out on time with a child because of Covid-19 get make-up time?  This question came up in a webinar I attended recently.  I wasn’t surprised to hear different opinions expressed in the answers.  This week I took a look at the recent case law dealing with make-up parenting time in the Covid-19 context to see what the courts are saying.  The case law also shows mixed opinions.  In some cases, specific make-up access was ordered by the judge hearing the urgent motion. (See Multani v. Rana, 2020 ONSC 2433;  C.L.B. v. A.J.N., 2020 ONSC 213; Tessier v. Rick, 2020 ONSC 2391; Feldman v. Knight, 2020 ONSC 1971; and Smith v. Smith, 2020 ONCJ 180.)  In other cases, the judge told the parents to try to agree on make-up access and if they couldn’t to include written submissions on that point along with their costs submissions. (See Lee v. Lee, 2020 ONSC 2044 and Price v. Salhia, 2020 ONSC 2271.) In another case, the judge said the question about make-up access wasn’t urgent so the details about it should be dealt with in the future, not now. (See Berube v. Berube, 2020 ONSC 2591.)   And, in some cases where make-up access was requested, the judge either didn’t address it or declined to make a determination. (See  Peerenboom v. Peerenboom, 2020 ONSC 2533; Balbontin v. Luwawa, 2020 ONSC 2060; and McNulty v. Graham, 2020 ONSC 2264.)

Given all these different approaches, how can lawyers give proper advice and parents make good decisions about this issue?   Think about it from the child’s perspective.  The questions we should really be asking are: Should a child have make-up time with the other parent because of missed time during Covid-19?  What opportunities for developing the child-parent bond did the child miss?  Has or can that missed opportunity be provided for in some other way or at some other time?  As Justice MacEachern said in Rick v. Tessier, ONSC 239, we shouldn’t get hung up on “counting time” but rather “focus on the quality of time, maintaining the child's connection to both parents, in a manner that also provides a safe, secure, and stable environment.”  If we take this approach, I think we will find that some additional time will be appropriate in most cases. 

The Consequences of Unreasonable Behaviour

Stressful situations tend to bring out both the best and the worst behaviour in people.  When the courts are dealing only with emergency and urgent issues, some people may be tempted to take advantage of the situation and think that unreasonable behaviour will not have any consequences.  But, sooner or later, there are always consequences for bad behaviour.  In the family law context, those consequences impact credibility, can result in a contempt order and increase legal costs.

Credibility is critically important when dealing with family law issues, both with an ex-spouse and with the court.   Successful separated spouses are able to rebuild trust to at least a basic level with the other spouse.  But, when one person takes advantage of a situation like Covid-19, that basic trust is broken.  The parent who refuses to return a child now because of Covid-19 without specific and valid reasons risks facing a lack of cooperation from the other parent the next time they need it. 

In court, credibility is key to convincing the judge to believe one side of the story versus the other.  If a parent acts unreasonably in a way that brings into question their truthfulness, such as failing to disclose receipt of government emergency benefits or pretending to but not actually complying with Covid-19 guidelines, credibility at future court hearings will be negatively affected.  As Justice McPherson said in the recent case of  Douglas v. Douglas, 2020 ONSC 2160 “Finally, all counsel and parties must be aware that actions taken in these unusual circumstances, may very well be judged once court operations resume, as not being appropriate nor in the best interests of their children.”

When the unreasonable behaviour is connected to an existing court order, it gets more complicated.  Court orders are orders, not suggestions.  They are expected to be followed.  If it is not possible to do so without putting the safety of a child at risk, the person who wants to change the rules needs to take the initiative to do so.  If an agreement cannot be worked out with the other person, steps must be taken to change the order in court.  If not, the person in breach of the order risks facing a contempt motion pursuant to Rule 1(8) and Rule 31 of the Family Law Rules. 

Unreasonable behaviour inevitably leads to increased costs.  Even out of court, when one “ex” acts unreasonably, everyone involved has to take time away from their regular jobs to sort out the problem.  Legal advice, lawyers’ letters and mediation all cost money that could otherwise be used to support the family.  If the dispute goes to court, there will be additional costs for court filing fees, preparing documents and attending hearings.  A court will order the unsuccessful person to pay some or all of the successful person’s legal fees, as long as the successful party acted reasonably.  In fact, Rule 24 of the Family Law Rules requires a court to consider whether a person acted reasonably or unreasonably “in relation to the issues from the time they arose” as well as “bad faith” when determining the amount to award for costs.   

Remember, as Justice Pazaratz warned in a recent endorsement, “Your reputation will outlast Covid-19.   So please don’t try to take advantage of the current situation.  In the long run, self-help will turn out to be a big mistake.” (McNeil v. McGuinness, 2020 ONSC 1918.) Hopefully, parents who are considering acting unreasonably will hear these wise words and will be convinced to make better choices.

Support Payments During Covid-19

Many parents and former spouse have suddenly seen their income and job security disappear because of the Covid-19 crisis. At this early stage, it is still hard to tell how long a drop in employment income will last, and if the available government benefits will make up the difference. If a support payor or a support recipient has experienced a significant drop in income as a result of Covid-19, it is important to promptly notify the other parent or former spouse of the change. Do not wait until the annual income disclosure date to share that information. It is also important to continue to pay support amounts at the existing pre-Covid-19 rate until there is an agreement to change the amount or the amount is changed by a court order. Payments can be made “without prejudice” to a future retroactive variation which goes back to the date of the change in income if that turns out to be appropriate. Any overpayment could then be applied to future support amounts owing.

If you need to change the support amount that is set out in a Separation Agreement, check the dispute resolution clause of the Agreement. It will tell you what procedural steps you should take to negotiate a change to the support amount.

If your support is set out in a court order, your procedural options are determined in part by which level of court made your order (Ontario Court of Justice or Superior Court of Justice) and the court region within Ontario. If you are at the Superior Court of Justice in Toronto, you can only request a case conference or motion for a temporary change to a support order if it is urgent and affects the financial stability of the family unit. Outside of Toronto, motions to deal with urgent financial issues are often limited to those resulting in dire financial consequences. But, many court regions outside Toronto are now allowing non-emergency case conferences on limited issues by telephone or video conference. And, as of April 6th, all Superior Court locations across the province will accept a 14B motion for a consent order, including a consent order for a temporary change to support.

The Ontario Court of Justice has not yet expanded its emergency court services. As of April 15th, the definition for urgent matters that can be dealt with at the OCJ still does not include any support related issues except refraining motions related to FRO enforcement. Reference should be made to the Ontario courts website at www.ontariocourts.ca for the most up to date notices and practice directions for both levels of court.

if your support order is enforced by the Family Responsibility Office, you should be aware that FRO is still enforcing ongoing support payments. FRO does not have authority to reduce an ongoing support amount, even if both the support recipient and payor agree. However, FRO has always had some discretion over the payment of arrears that have accumulated since the last court order was made, and FRO has indicated that it may be flexible with enforcing arrears against payors who find themselves in a difficult situation because of a loss of income related to Covid-19. Remember that if a support payor loses their employment, FRO will no longer collect support through automatic deductions off the payor’s paycheque. But, FRO can and will garnish up to 50% of most government benefits available to the payor, including Employment Insurance benefits. Note that the new CERB payments cannot be garnished by FRO. Support payors and support recipients (or their lawyers) should be in touch with their client service associates at FRO to find out the specific status of enforcement mechanisms in place on their files, and to make requests to change them if necessary.

Most importantly, as the family court judges who are dealing with urgent cases before the courts remind us, now is the time for more cooperation and less litigation. Be reasonable, be creative, and we will all get through this together.

Co-parenting schedules during Covid-19

Parents who are separated and divorced face unique challenges during Covid-19. The first and most important question is: How do children should self-isolate at “home” when the children have two homes? So far, the message from our courts has been that existing parenting plans and and orders should be followed, even when that means children will be moving back and forth between households frequently. But, the family courts have also been very clear that parents need to follow public health guidelines and to adjust their parenting schedules to comply with those guidelines where necessary.

If both households are following current Covid-19 protocols then the regular pre-Covid-19 schedule should be followed. But, there are always exceptions. When there are legitimate and specific concerns about heightened Covid-19 risk, including because of travel or illness, parents are expected to be creative and to come up with revised plans that preserve and promote the parent-child bond for both parents. Parents should not use Covid-19 as an opportunity to make unilateral changes to parenting schedules. It is important to remember that as public health recommendations change, what is reasonable in terms of co-parenting plans will also change. For the most up to date legal recommendations, check with a lawyer. Or, if that is not an option, search for the latest cases on your own at http://www.Canlii.org using the search terms “Covid” and “parenting”.

If parents are not able to negotiate changes together on their own, lawyers, mediators and parenting coordinators are available to help. Turning to the courts is still possible, but court should be used as a last resort. Court hearings were restricted to emergencies only across the province from March 17th until April 6th, and have only started to open up for some limited non-emergency case conferences, and even then only in some regions. For the latest on what is happening in the courts see https://www.ontariocourts.ca for the most up to date notices and regional practice directions.