What About the Pets?

Pets are often viewed as members of the family.  So what happens to these “fur babies” when a couple separates?  Does one party get custody of the pet?  Does the other have to pay support?

No and no.  As much as we love the animals we share our homes with, they are viewed as property under the law.  There are no rights to access and no entitlements to support when it comes to pets.  We look at who purchased the pet (the purchase documents can be very important in this regard), who paid for its care and upkeep, whether it was a gift, and whether one party brought the pet into the relationship to determine the issue of ownership. 

The Family Court will not spend time on issues relating to pets.  A judge will not make orders for custody, access, or support for the family pet.  The court will also not order that the pet be sold and the proceeds shared (as a judge can do with a jointly owned home).

Everyone has seen a TV show or movie in which the “custody” of a pet is decided by having the animal choose its human (usually the party with bacon in his/her pocket wins).  Not once have I seen this occur in real life but it is a viable decision-making option (just don’t forget the bacon!).  I have had clients include a “parenting” schedule in their Separation Agreement for the family pet.  These parties often agree to share veterinary bills but to each bear responsibility for food, toys, beds, etc. 

Clients are often embarrassed to raise the issue of pets with us; don’t be!  We love animals and we understand the emotional connection you feel with yours.  If you and your partner cannot reach a resolution regarding your pet(s), we can assist you in negotiating a resolution. 

Custody - what is it and who gets it?

Who gets custody of the children?

Many people come to us with a misunderstanding of what “custody” means.  In the family law context, custody does not refer to who the children will live with; it actually refers to decision-making for the children.

In “joint custody” situations, both parents have an equal say when it comes to major decisions that must be made regarding the children’s health, education, or general wellbeing.  The children may reside primarily with one parent, but when it comes to decision-making, each parent is equally involved.

In “sole custody” situations, one parent has authority to make all such major decisions and the other only has the right to access information about the children.  Sometimes there is a requirement for the sole custodial parent to consult with the other parent regarding major decisions, but he/she will have the final say.

On occasion, an arrangement called “parallel parenting” is entered into.  In this situation, decision-making authority is divided between the parents.  For example, Mom gets to make all major medical decisions while Dad makes all major decisions regarding education.

Major decisions are just that: major.  For example, whether to consent to elective surgeries, what school system to register the children in, or whether to take the children to a mental health specialist are all major decisions.  Things like haircuts, ear piercing, and the dinner menu are not major; the parent in whose care the children are in at the time can make those decisions.  We call these “day-to-day decisions”.

Simply disliking the other parent will not be enough to secure a sole custodial arrangement; there are a variety of factors that come into play.  The most important factor to be considered when deciding the best arrangement regarding decision-making is the best interests of the children and whether you will make decisions jointly or alone will depend on the particulars of your unique situation. 

In the vast majority of cases, the parents will make decisions together.  It is advisable to have a plan in place to deal with disputes that may arise in the future (i.e. to attend mediation if an agreement cannot be reached, or to follow the advice of the applicable professional).  Sometimes, though, sole decision-making authority is appropriate. 

We can assist you in determining whether your situation is better-suited for joint or sole custody.

What Rights do Grandparents Have?

Are grandparents entitled to spend time with their grandchildren?

Grandparents often play an important role in their grandchildren’s lives.  In the majority of cases, time with the grandchildren is arranged directly with the parents without any problems.  Sometimes, though, grandparents are either not allowed to spend time with the children or their time is restricted by the parents.  These grandparents will come to us asking whether they can seek a court order allowing them time with their grandchildren. 

Grandparents are allowed to apply to the court for access to their grandchildren.  However, there is no automatic right to be awarded this.  Access is the right of the child, not of third parties.  In making a decision, the court will consider the best interests of the children.  It is generally thought that having a relationship with their grandparents is in the children’s best interests, however, there is a conflict in the case law between recognizing the benefit of grandparent-grandchild contact and the principle of allowing parents to decide how to raise their children.

The leading principle is that parents generally have the right to determine who their children spend time with.  If there is no evidence that the parents are behaving in a way that is not in accordance with the children’s best interests, the court will give significant weight to the parents’ decision.  The onus will be on the grandparent to demonstrate to the court that the parents are acting unreasonably in denying access to the children.  Some of the questions the court asks to determine whether the parents are being unreasonable are:

1.      Does a positive grandparent-grandchild relationship already exist (i.e. more than an occasional visit)?

2.      Has the parent’s decision imperiled that positive relationship?

3.      Has the parent acted arbitrarily?

A decision may be made to deny access if the grandparent persistently interferes in parenting decisions, refuses to comply with the parent’s rules regarding the children, or if such access poses a risk of harm to the child.  Access may be granted if the benefit of it is in the children’s best interest.  Particularly in situations in which the grandparents have resided with a grandchild or have been the regular daycare provider to the grandchildren, the grandparents can sometimes be seen as being in a similar role as step-parents; therefore, their chances of ongoing access are higher as the court is then preserving a parent-like connection.

The answer to whether a grandparent will be successful in making an access claim is complicated.  If you are faced with this situation, please call us to discuss your options.

Ways to Resolve Family Law Matters

The road between separation and resolution is unique to every couple.  Just as your relationship was different than anyone else’s, your separation will be different too.  Here are some ways in which people resolve the issues that arise upon separation.

1.      Kitchen Table Agreement

This is where a couple will sit down together and craft their own agreement, sometimes with help from templates found on the Internet or from a “fill-in-the-blank” book.  There is virtually no cost to these kinds of agreements but caution should be exercised when considering signing one.  Kitchen table agreements are often prone to being set aside in the future and you may be signing away, or agreeing to pay, far more than you should.  It is advisable to review the provisions of your Agreement with one of our lawyers prior to signing.  It is less expensive to get independent legal advice upfront than to fix a problem that arises down the road.

 

2.      Mediation

In mediation, parties will sit down with a trained mediator who has expertise dealing with family law issues, though he/she will not provide either side with advice.  The role of the mediator is to guide the parties in their discussions and to assist them in negotiating a resolution.  Lawyers typically do not attend mediation sessions.

Particularly in situations dealing with property issues, many clients find it quite beneficial to retain a lawyer to assist them in preparing their sworn Financial Statement and to provide advice throughout the mediation process, even if that lawyer does not attend the actual mediation sessions.  We are happy to assist in this way.

Most times the mediation is “closed” which means that any discussions you have will be confidential.  If a resolution is not reached, neither of you will be able to disclose any offers made during the course of mediation.  This allows the two of you to be open, honest, and creative in your discussions.

If a resolution is reached, the mediator will prepare a report setting out the terms of your agreement.  It is recommended that you bring that report to one of our family lawyers for independent legal advice and to have it turned into a formal Separation Agreement.

 

3.      Traditional Negotiation

In many cases, both parties will retain counsel who will assist them in negotiating an agreement.  The negotiations can be done in writing or at four-way meetings where the parties and the lawyers come together to explore resolution options.  This process gives you control over the outcome and allows for creative resolutions that will address your family’s unique concerns.

 

4.      Collaborative Practice

In this process, both parties will retain counsel who have specialized training in Collaborative Practice.  At an initial four-way meeting, the parties will sign a Participation Agreement which states that neither party will take the other to court.  If court proceedings are commenced, both parties will have to retain new counsel and any work completed or offers made will be confidential and cannot be discussed at court.  This gives the parties incentive to deal openly and honestly with each other and to remain committed to finding a resolution.

A team is also assembled to help the parties.  A Financial Specialist is jointly retained to assist with the financial/property issues and a Family Specialist is jointly retained to help the parents determine the best parenting schedule for their children.  This approach is often more cost-efficient as a significant amount of work is done by the parties with the outside specialists who typically charge less than the lawyers.  Your lawyer is available for advice throughout the process and will draft the Separation Agreement once the terms have been agreed upon.

 

5.      Court

We aim to keep clients out of court for a number of reasons:

1.      It is a lengthy and costly process;

2.      It is often unpredictable;

3.      It can bring the worst out of people; and

4.      It puts a stranger (the judge) in control of your life and that of your children.

However, court is not without its benefits:

1.      It puts deadlines on the parties which helps to keep you moving towards a resolution;

2.      A judge can and will make a decision if negotiations have broken down;

3.      A judge can and will make a decision if the other party ignores the matter; and

4.      It helps to remove power imbalances that sometimes exist between parties because the judge has the power, not the parties.

 

6.      Conclusion

There is no right or wrong way to reach a resolution and sometimes clients will attempt a few different processes before they settle their matter.  To discuss which option is best for your particular needs, please contact us to schedule a consultation.