In Whidden and Ellwood, the parties’ nine year old daughter Taylor was the subject of a bitter custody dispute.  The matter was an “actively litigated” file.  Each parent blamed and considered the other parent a threat.  Justice Pazaratz makes his views on the subject absolutely clear: the most pervasive threat to Taylor’s well-being was “the extreme and unbridled conflict” between the parties, not the relative shortcomings of one or the other of her parents. “It’s a problem because parents delude themselves into thinking they’re doing this “for the sake of their daughter.  In reality Taylor doesn’t care who’s right or wrong. She doesn’t want to think of either of her parents as bad. She just wants them to stop fighting.”

Justice Pazaratz states that, when the parties separated, they could have and should have tried to work together, followed professional recommendations, obeyed court orders, and “tried to make this as painless as possible for their daughter. But instead they took a scorched earth approach.  They became consumed not just with winning, but with making sure the other party lost.”

Justice Pazaratz ponders: “Perhaps we are so intent on protecting parents’ rights, that we lose sight of children’s rights: the right of children to have somebody step in and make their parents stop fighting — once and for all.”

“High conflict parents exude negativity and tension.   If we in the courtroom can’t stand listening to these people act up – presumably while they’re on their best behaviour – can you imagine what it’s like for a child trapped living with that sort of hostility and resentment, 24 hours a day?  Angry parents always pretend they hide their feelings from their children. But I don’t believe it for a second. Judges regularly receive reports from professionals about how severely children are impacted by ongoing parental strife. And in this case, the cell phone videos flaunted by both parties clearly demonstrated that no effort is being made to shield Taylor from the hatefulness.  Family breakdown is tough on everyone. The pain is real. It takes time to recover.  But healing can’t occur while you’re still waging war in court.  That’s why – for the sake of the children – we need to find ways to reduce family tension, rather than fuel it.”

“When parents come to court genuinely seeking solutions, we should work tirelessly to help them. As long and as often as it takes. But we have a concurrent obligation — to taxpayers, and more importantly to the children of relentless litigators – to prevent embittered parents from abusing scarce judicial resources: We need to identify those parents who just come here to fight. And then do everything we can think of to deprive them of future opportunities to fight.

We need to anticipate – perhaps even presume – misconduct and non-compliance.

And then craft orders which leave parents with as few opportunities to misbehave as possible.”

“In short, sometimes we need to treat parents like children.”

Thank you Justice Pazaratz.  Truer words have never been spoken.

The post Judge Says Treat High Conflict Parents Like Children appeared first on Toronto Family Law Blog Canada.

I have always loved Valentine’s Day.  And nine times out of ten I am single on February 14^th.  Once we were no longer forced to give valentines to the whole class, I only got a few.   In high school, I was the girl who got white friendship carnations instead of true love red.  Did that make me hate the holiday? No! I simply broadened the Valentine’s Day mandate.  You should do the same.  Celebrate a good friend on Valentine’s Day.  Thank a parent for the love they have given you over the years.  Put together a special valentine surprise for your child.  It does not have to be a day for lovers only.  Be grateful for the love you do have in your life.  Because the love is there if you only look for it.

The same can be said of Family Day.  Families come in all shapes and sizes.  They can include everyone and anyone: children, grandparents, nephews, nieces, step-parents and siblings, friends… the list is endless.  The Ozzie and Harriet, mom/dad/two kids/dog model is long gone.  Celebrate the family you do have, in all its individuality.  Spend the day with people who make you happy.  Because that’s your family.

The post Valentine’s Day Doesn’t Have to Suck appeared first on Toronto Family Law Blog Canada.

1. I’m old.
2. I have been doing this for a long time. Thankfully, I really like it.
3. The court shirts I purchased in 1997 do not fit anymore.
4. My gowns have seen better days.
5. I am no longer the junior on the file.  The buck stops here.
6. Some of my clients were born in the 1990’s. The nineties!!!!
7. E-filing wasn’t a cruel joke. Well, maybe it was, but e-filing, and all of the related technology, is here to stay.
8. Legal assistants who can (and will) take dictation are a rare breed.
9. The court staff get a good laugh at my big hair when they have to inspect the photograph on my Law Society card, which was taken in February 1997.
10. I have had the privilege of practising family law for two decades.

Thank you to everyone who has consulted me over the years.  You put your trust in my ability to represent you, even when I was a baby lawyer.  That means a great deal.  To those of you I have not yet met, drop me a line.  Say hello.  It doesn’t have to be to retain me.  If I can answer a family law question or point you in the right direction, I would be happy to do so.

Here’s to another 20 years!

The post Happy Anniversary to Me! appeared first on Toronto Family Law Blog Canada.

“The better I get to know men, the more I find myself loving dogs.” (Charles de Gaulle)

“Once you have had a wonderful dog, a life without one, is a life diminished.”(Dean Koontz)

People love their dogs. Dogs are treasured members of the family. Some people even treat their dogs like their children – or better.  When a couple breaks up, a decision needs to be made about the family dog. How is this determination made? Is it based on best interest like a child custody decision?  Or is a dog just another piece of property?  

Much to the surprise of dog lovers across this country, dogs are not human and, hence, the court will not deal with “custody” of the dog per se.  As much as individual judges may adore their dogs, and even imbue them with human characteristics, the law does not share this view.   Rather, dogs (like other pets) are considered personal property.  Which means that, if the parties cannot agree on who gets the dog, and the court has to make a determination, the decision is based on traditional concepts of ownership.  The relationship of love and affection between each party and the dog is not relevant in determining ownership, nor is the dog’s best interests.

Who gets the dog is based solely on who owns the dog i.e. who bought and paid for the dog.  If someone enters the relationship with a dog, the dog leaves the relationship with that party. If the dog is purchased during the relationship, then whoever paid for the dog keeps the dog. 

I don’t know what would happen if the dog was owned jointly, for example, if the money for the dog came from a joint account or the dog’s registration papers were in joint names. I haven’t come across a case that dealt with this issue.  Perhaps parties would be granted shared ownership of the dog?  I have seen separation agreements that deal with family pets, but I have yet to see a marriage contract do so.  Theoretically, a marriage contract could deal with the ownership of the dog since, in the eyes of the law, a dog is just like any other property that parties can contract about.

The post See Spot Divorce: Who Gets the Family Dog? appeared first on Toronto Family Law Blog Canada.

Things got off on a good note when the judge agreed husband’s lawyer was trying to impeach our client’s credibility without having put the evidence to our client.  Clear contravention of … say it with me … the Rule in Brown v Dunne.  Twice in one trial.  Unbelievable.  Then another objection, this time based on the parol evidence rule (the husband tried to go behind the property settlement we had made to claim the numbers were actually something other than what was on the written page). Won that one too.  Our evidence professors should be very proud.

Cross-examination of the husband went better than we expected.  Being argumentative, evasive and combative didn’t play well with the judge.  He fought with the cross-examiner, answered questions that weren’t asked and lectured the court on material totally irrelevant to the case.  When faced with documents that countered his position, he refused to acknowledge them.  That and the 12 trips all over the world that he has taken since separation while our client struggled to find money to buy food meant that he was a great witness for us in cross.

We did damage to their expert by objecting to the admission of his material (a series of schedules and calculations), since he did not file a report.  A technical point, but valid all the same.  Their expert’s schedules were not allowed into evidence, and that meant that the only evidence of current value before the court was ours.  Brilliant.  We put evidence and propositions to their expert that were incontrovertible.  Financial statements documenting years of losses to support the claim that husband was mismanaging the business to the wife’s detriment.  He had to agree.  It was a perfect way to close the evidence: their expert confirming our theory of the case was the last thing the judge heard.  But you never know…  As well as we think the evidence went in, things can still go sideways.  We won’t know until we know and the decision is released.  And even then it might not be over, if someone decides to appeal…

That was Friday afternoon.  We did not have time for closing arguments, so we have agreed to do written closings.  We may get the opportunity for some oral argument in late December if another matter the judge is scheduled to hear settles.  If not, then the closing will be entirely in writing.

Drove home with eight boxes of documents, a printer, my gown bag and my computer filling the back seats.  Stopped at the liquor store for a bottle of Megalomaniac Merlot. Our waitress from Thursday night told us Megalomaniac is supposedly one of Niagara’s finest (our having been in wine country, after all).  Unfortunately, the LCBO at Bathurst and Lawrence didn’t have it.  Wanting to stay with the theme, I ended up with a bottle of Wayne Gretzky Merlot the LCBO lady recommended, which wasn’t half bad.  Enjoyed a glass on the back patio in the sunshine which now, with all this snow and cold, seems a distant memory.

And that was the trial in a nutshell.  A great experience.  I realized I miss being in a courtroom.  It is an interesting and challenging part of the job. Now it is time to draft the closing.  And then the waiting begins…

The post Family Law Trials Part IV: The Last Two Days appeared first on Toronto Family Law Blog Canada.