Family Law Blog | John P. Schuman C.S., Child and Family Law | John P. Schuman

Family Law Blog

JOHN SCHUMAN'S FAMILY LAW BLOG

Here is where you will find on-going up-to-date useful information on family law topics, such as separation, divorce, custody and access, child support, spousal support, property division, marriage contracts, family mediation and arbitration.  This blog is designed to answer your family law questions, so look around.

This blog will answer a lot of common family law, divorce, separation, and parenting issues.  If you are having trouble finding the information that you need, just use the search box on the left.  It will help you find the answers you need to your family law or divorce matter.

All of the answers are provided by a practicing Ontario Family Law/Divorce Lawyer.  However, note that small changes in circumstances can lead to a big change in how the law applies to the situation.  It is always important to discuss your particular circumstances with an experienced family law lawyer.  You can contact John Schuman at 416-446-5080 or by emailing him.  For more information about how to contact John, click here, and click here for more information about John.


Book - Guide to the Basics of Ontario Family Law

In addition to this blog, you can get a lot more information about Family Law in John Schuman’s book, The Guide to the Basics of Ontario Family Law, which is available from Amazon as a paperback or a $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone.


Don’t wait to get the Family Law information you need.  Not knowing how the law work has gotten many people into serious Family Law trouble.  Before your Divorce or child protection case goes wrong, find out how the law applies to you!

Why Would A Judge Refuse to Grant a Divorce?


judge refusing divorce


Getting an uncontested or simple divorce is thought by many to be a straightforward process.  As a result many people who try to do their divorce on their own are surprised when a judge refuses to grant the divorce. There is no absolute right to a divorce.  Judges can, and do, refuse to grant divorces in Ontario, but for some very specific reasons. Often people trying to get their divorce on their own make a mistake that prevents them from getting divorced.


Divorce legally ends a marriage in Ontario and Canada.   The divorce order itself does only that and allows the spouses to get remarried again.  So, people usually get a divorce when they want to remarry or have the option of getting remarried, or because they want to formally put an end to their marriage.  Since common law couples were never married, they do not have a marriage to end, either to marry someone else or otherwise, and so common law couples cannot get a divorce.  That does not mean that they cannot ask for parenting orders or child support or spousal support in Court.  They can still do that and seek the relief available for common law couples, which is different from what married couples can ask for.  See the page on common law relationships for more information. 


There are several reasons why a judge can refused to grant a divorce under Ontario Law:

  1. The spouses have not been separated long enough
  2. At least one spouse has not made Ontario his or her home
  3. The spouse requesting the divorce has not properly served the divorce documents
  4. The spouse requesting the divorce did not fill out the court documents properly
  5. Appropriate child support is not being paid for the children of the marriage
  6. The spouses are seeking the divorce for an improper purpose
  7. The spouse requesting the divorce is preventing the other spouse from getting a religious divorce.




The spouses have not been separated long enough

Ontario Family Law Podcast

72 - Why Would a Judge Refuse to Grant a Divorce?

10 - Child Support - Who Pays and How Much?

14 - Family Court Step by Step - Part 1 - Starting and Responding to Family Court Proceedings

To get divorced, a married couple must have not been living together as husband and wife for at least one year prior to the divorce.   That does not necessarily mean that they have to have lived in separate residences.  But, it does mean that it would be apparent to anyone who knew them that the marriage was over and they must not have been doing things in their lives the way that a married couple would.  The date that it was clear that the couple has stopped acting like a married couple and there was no reasonable prospect that they would resume their marriage is the Date of Separation.  To get a divorce, the date of separation must be at least one year before the date the judge grants the divorce, and this is one of the things that judges look for.


It is true that it is theoretically to get a divorce in less than a year on the grounds of adultery or cruelty.  However, there can be legal consequences for admitting to cruelty.  And both parties to the adultery must admit to it.  If the necessary admissions are not forthcoming, and for various legal reasons, they very rarely are, the cruelty or adultery must be proven in court at a trial.  In addition, if, at trial or before, the spouse that committed adultery can prove that the other spouse condoned the adultery, or participated in it, then the court cannot grant the divorce on the grounds of adultery.  Technically, this is true with regard to cruelty as well, although there are some other legal considerations regarding whether someone can agree to be treated cruelty.   Regardless of all these legal technicalities, going through the all the court steps to get to a trial takes more than a year.  So, it is quicker, easier and less expensive to just wait the year. 




At least one spouse has not made Ontario his or her home

Not everyone can get divorced in Canada, particularly where the spouses came from other countries.  Canada will only grant a divorce to someone who lives in Canada and meets certain criteria.  A judge will refuse to grant a divorce in Canada if at least one spouse has not made Canada his or her home for at least one year.  The judge will also refuse to grant a divorce if there is a spouse outside Canada who was not served properly and in accordance with the treaties with respect to service of court documents.   There is more about this in Episode 55 of the Ontario Family Law Podcast.




The spouse requesting the divorce has not properly served the divorce documents

For uncontested divorces, the spouse asking for the divorce must have properly served the other spouse and waited 30 days to see if that other spouse objects to the divorce.  Service of divorce papers in Canada must be completed by special service.  There are four ways to do that, but it is necessary to strictly follow the rules for services set out in Rule 6(3) of the Family Law Rules, otherwise the Court Office should not even accept the divorce documents.   Also, note that Rule 6(4.1) says that one spouse cannot serve a divorce application on the other spouse.  It must be someone else – either a process server or someone else who knows how to follow the rules for special service.  In addition, the person who served the divorce documents must swear an affidavit of service that is in Form 6B to prove that the other spouse was properly served.  Without that affidavit of service, the court staff will not allow a spouse to proceed with a divorce.   There are some things the court will do if the other spouse cannot be located or is otherwise avoiding service.  But, doing those things requires a motion before the court and that likely means getting the help of a good Family Law lawyer


The spouse requesting the divorce did not fill out the court documents properly

Another hurdle can be that the court staff may refuse to accept divorce documents if they are not completed properly.   Some people find court documents difficult to understand and the Family Court Rules difficult to follow.  If that is you, then it is best to get advice from a lawyer.   Many Family Law Lawyers will give help on limited scope retainers, which means you can hire them just to help with the court documents or other individual steps in the process to get a divorce. 


Appropriate child support is not being paid for the children of the marriage

Another reason that a judge can refuse to grant a divorce is if there are children of the marriage and appropriate child support is not being paid.   Where there are children of the marriage, the spouse requesting the divorce must include in the affidavit for divorce the incomes of the parents, the arrangement that the parents have made for child support and confirmation that the child support is being paid in accordance with those provisions. Section 11(b) of the Divorce Act requires Judges to refuse to grant a divorce if child support is not in place and if the child support does not benefit the child as much as application of the Child Support Guidelines.   If the judge can see from the parties income that child support is being paid exactly as required by the Child Support Guidelines and child support tables then child support will not be a problem in getting a divorce.  Child support is covered in greater detail in the book, Guide to the Basics of Ontario Family Law.    If the parents want to make arrangements for child support that benefit the child as much or more than the Guidelines, but those arrangements are not exactly as set out in the Guidelines, then the parent asking for the divorce will have to explain why the arrangements benefit the child more than just using the Child Support Guidelines. 


The spouses are seeking the divorce for an improper purpose

A judge can also refused to grant a divorce if the judge believes there has been collusion between the spouses.  That means that the spouses are not asking for a divorce because they want to end their marriage but because they are trying to get the divorce for some other improper purpose and so they are fabricating evidence about the breakdown of the marriage.   There may be financial incentives for two people to be divorced and so the spouses are essentially committing fraud to benefit illegally.  If  a judge believes that, then the judge will deny the divorce. 


The spouse requesting the divorce is preventing the other spouse from getting a religious divorce.

Finally, a judge can refuse to divorce spouses if the spouse requesting the divorce has not cooperated with getting a religion divorce for the other spouse.   Section 2 of the Family Law Act permits the Court to dismiss a spouse’s claim for a divorce if that party refuses to confirm to the court that he or she has removed all the barriers that are within his or he control that would prevent the other spouse from remarrying within that other spouse’s faith.   The court will only ask for this confirmation if a spouse raises the issue, which that spouse is only likely to do if the other spouse is blocking a religious divorce or annulment.   Still, a spouse is only required to do what he or she can in the religion.  Where a religion does not permit divorce or remarriage, a spouse can’t do anything about that and so it is not a bar to a civil divorce. 


Getting help to make sure your divorce goes through

Many separated spouses are disappointed when a judge refuses to grant their divorce. Sometimes that is just because the forms are completed properly.  Other times it is because there is a legal issue that prevents the spouses for qualifying for a divorce.  Getting divorced is not a right.  The spouses have to meet the criteria for getting a divorce.  Usually, the problem is related to child support or an issue related to whether the court documents were properly served.  But, there are other problems that can arise.  To avoid them, it is often best to get the help of a family law lawyer who can help get the divorce as quickly as possible and without problems.   


That is especially important when one of the spouses is getting remarried.  It is a real pain to have to reschedule a wedding because the divorce didn’t go through.  With what a wedding costs, it is worth paying a lawyer a little to make sure the divorce does not cause a problem.

Guide to the Basics of Ontario Family Law - 4th edition cover


You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.  But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.

Get_it_on_iBooks_Badge_US_1114
new kindle logo
New Kobo Logo

Get the paperback on:

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To get the best advice, specific to your situation, you should speak to family lawyer.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John call 416-446-5847, email him, or fill out the form below. You can use the same form to comment on this page.   


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters for your children after a separation. 

 

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Will Your Ex Get Everything if You Die?


spouse plotting to take deceased's inheritance


After they separate from a spouse or partner, most people expend considerable effort protecting their financial situation.  People want to protect what they have, either for themselves or for their children.   They also do not their exes to get more than necessary.  Everyone wants their own money that they can use, or give away, free from interference.   After separation, nearly everyone is very careful in organizing finances.  But, often they are NOT careful in organizing their finances if they die and that can mean that, even after a long fight, a former spouse can get way more than he or she would have gotten through family court just because the other spouse dies.  That can even be at the expense of the children. In this episode of the Ontario Family Law Podcast, I will explain what you have to do keep your ex from getting everything if you die after separation and to ensure your inheritance goes where you want it to go.  

  

Other pages in this website explain how separated spouses can keep their wealth for yourself after separation.  This page explains how to separated spouses can protect their wealth for your heirs, should they die after separation.  Unfortunately, bad things happen and often former spouses are very happy to take advantage of them.


After a married couple separates, each partner should make it a priority to create a will. 


Separation does not automatically void a will.   A spouse’s will remains valid until the first of the following:

  1. The spouses have lived separate and apart for three years;
  2. The divorce takes effect
  3. The spouses sign a separation agreement;
  4. There is court order addressing the issues arising from the separation
  5. There is a family arbitration ward addressing the issues arising from the separation.  

A separated spouse with a will, who left most, or all, of hir or her estate to his or her former partner may want to change those provisions after separating.  Until one of the five above events  occur, a separated spouse is still giving his or her “ex” everything that the will set outs out. 




It may be even more important for a spouse without a will to make one, especially where that spouse has children.   When a separated spouse dies without a will and without children, his or her surviving spouse, is entitled to all of the deceased’s assets,  until one of those same five events, described above, that voids a spouse’s will.   So, the ex gets everything, even if the ex would have gotten nothing in Family Court!

Ontario Family Law Podcast

 

68 - Will Your Ex Get Everything If You Die 

23 - Why You Need a Will

40 - How to Keep Your Money in Separation and Divorce

13 - Spousal Support in Ontario and Canada

Apple Podcast
Listen to the Ontario Family Law Podcast on Spotify

When a separated spouse dies without a will, but has children, his or her surviving spouse gets the first $350,000.00 in the deceased’s spouse’s estate,  and the rest is divided between the spouse and the children.  Where there is one child, the spouse gets the first $350,000.00 and then shares the rest equally with the child. Where there is more than one child, the spouse gets the first $350,000.00 and gets one third of any additional amounts while the children (or the children’s children’s) share the remaining two thirds equally between them.   When a spouse dies, his or her property is divided in this way until any of those events take place that would void a spouse’s will.  To go over it again, those events are a divorce, three years of separation, a separation agreement, a court or or arbitration award).  After one of those events, the spouse of a deceased does not get anything automatically.  Instead, the deceased’s estate is distributed to his or her nearest biological relatives. 


There is another possible wrinkle. Anyone who holds property as joint tenants with his or her former partner should also contact a lawyer to sever the joint tenancy.  If the partner dies while the property is still registered as a joint tenancy, the deceased’s interest in that property will automatically transfer to the other joint tenant.  At the end of a relationship, a person may no longer want to give that interest in property to a former partner but may want to transfer it to his or her other heirs pursuant to a will.  That can only be accomplished by severing the joint tenancy.  This applies to not only homes and land, but also to joint bank accounts and other joint assets.

 

If someone dies shortly after separation, unless there is a will in place that reflects the separation, and the joint ownership of any assets has been terminated, the deceased’s married spouse will get the bulk of the deceased’s wealth, so it is important to speak to an estates lawyer shortly after separation to redirect that wealth to the deceased’s loved ones.

Here is an example to illustrate how this can work out really badly.

Consider the situation of a fictionally separated couple, Desmond and Molly.  Molly is a well-paid professional.  Desmond was a stay at home dad to the parties’ two, now grown, children.   Desmond and Molly own their house jointly.  In addition, Molly has some retirement savings.  


Desmond and Molly were separated for two years when Molly was struck by a trolley and died.  However, they have not finalized their separation agreement and since they were still negotiating, they had not gone to court.  The entire house became Desmond’s because they still held title jointly when Molly died.  Molly also had saved her royalties of which there was $410,000.00 left after the estate taxes.  Desmond automatically gets $350,000.00 from Molly’s estate.  As Desmond and Molly had a couple of kids, Desmond gets one third of the remaining $60,000.00, or $20,000.00 and the kids share the other $40,000.00.  So, Desmond gets the ENTIRE house and a total of $370,000.00.  If Molly had not died, Desmond would have received HALF the value of half the house and $205,000.00 

 

It is important to note that all of the rules set out above  apply to married spouses.  Common law partners do not get ANYTHING automatically, unless they get it through a will.  This is another important distinction between living common law and being married.  The only way a common law spouse inherits from his or her partner is if there is a will.   Further, the gifts in a will to a common law partner remain valid for as long as the will remains in force.  So, when a common law couple separates, each partner must change his or her will to “cut out” his or her “ex.” Although, “cutting off” a former common law partner entirely may not work if that partner was still a dependent of the deceased when he or she died.


       When a parent, married spouse, or common law spouse dies, that person’s dependents can make a claim for support against the estate.   A child, married spouse, or common law spouse of someone who has died can make such a claim if he or she did not receive an adequate amount from the estate to meet his or her on-going needs.   The payment of that support can take priority over the distribution of the assets in the estate.  For that reason, after separation, a spouse or common law partner will want to speak to an estates lawyer about how best to make gifts to loved ones to prevent these types of claims.

 

This is also why it is common for separation agreements and support orders to include requirements for support payers to keep life insurance.  That life insurance looks after the ongoing needs of the dependents and allow the estate to be distributed as set out in the will.

 

Here is an continuation of the above example to  to show why this is important.


Desmond was not satisfied with receiving all but $40,000.00 that was in Molly’s estate.  As he stayed home to raise the kids, he feels he should have gotten everything.  Since he was still dependent on Molly when she died, and since the kids are grown and are no longer dependent, Desmond can make a claim against the estate for support in the amount of that remaining $40,000.00.   That will mean the kids get nothing from Molly.


Another consideration for parents who have parenting responsibilities for their children, or unmarried parents, is that it is possible for them to appoint a guardian for the children for the first 90 days after their death .  This allows a parent with parenting time and decision making responsibilities to direct with whom the children will live during their parenting time until the court has the opportunity to make a parenting order with respect to the children.  Such a provision in a will can be very important if the surviving parent did not  have any parenting time or responsibilities, particularly if the court felt that parent should not have them with respect to the child.



 

In the separation process, it is not only important to consider your immediate needs and the future needs of yourself and the children, but also to make plans to ensure that what happens if you die meets your expectations and protects your family. 


Guide to the Basics of Ontario Family Law - 4th edition cover

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.  But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.

Get_it_on_iBooks_Badge_US_1114
new kindle logo
New Kobo Logo

Get the paperback on:

amazonlogo


To get the best advice, specific to your situation, you should speak to family lawyer.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John call 416-446-5847, email him, or fill out the form below. You can use the same form to comment on this page.   


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters for your children after a separation. 

 

Contact Us / Comment:



What are the reasons a student can be expelled from school in Ontario?


student who was expelled from school


Expulsion is the most serious punishment available within the school system and it can have long lasting consequences for expelled students both for their education and for their lives more generally. Although Board’s deny it, most expelled students have some identifiable characteristics.  They are more often racialized, have special education needs, are socially awkward – nerds, geeks and such, have been in the care of a children’s aid society or a combination of those.  In short, they are the most vulnerable students. But, none of these are good reasons to expel a student. Alternatively, principals want kids out of their school if there is even a hint of sexual impropriety, which raises lots of questions about injecting school discipline into student social-dynamics, especially amongst teenagers.   

 

 

First, there it makes a big difference whether the student is in a publicly funded school or a private school.   Public school students have more protection.  Private schools can kick out kids for any reason that is permitted by the contract with the parents – and may private schools have contracts that basically allow the school to kick out kids without a good reason.  Private schools contracts can also require the expulsion of students for activities that had nothing to do with the school.  Watch the video below or listen to this podcast episode about  the importance of those contracts and parents knowing what is in them.  Only if the contract refers to Part XII of the Education Act sections that addresses discipline in public schools will the rest of what I say apply.

 

 

 

Ontario’s Education Act set out what behaviour can lead to expulsion and a procedure for deciding whether a student should be expelled.  Again, this law only applies to publicly funded schools unless a private school incorporates some or all of this part of the Education Act into the contract.

 

The Education Act does not allow school boards to expel students for any behaviour.  First, even if a student behaves badly there must be some link between the behaviour and the school.  Section 310(1) of the Education Act says a student can only be expelled for something the student did

  • While at school
  • While engaged in a school-related activity; or
  • In circumstances where engaging in the activity will have an impact on the school climate


Obviously, principals and teachers can discipline a student for anything the student does at school.   It is also an obvious extension that the school faculty can discipline a student for things the student does on a school field trip, at school sports activity, while participating in a school club or at a school dance or other school event.  Where the school, or the school board, organizes an activity, students are subject to the same discipline as they would face in the classroom or on in the school yard.

Ontario Family Law Podcast

 

69 - What Can Students Be Expelled for in Ontario?

39 - What Ontario Public Schools Must Do About Bullying

38 - Ontario Private Schools, Standards, and Education Law

22 - Children's Right's in Ontario Schools

Some principals make nefarious use of that third criteria – activities that impact school climate – to expel kids for activities that have nothing to do with school, even events that happened far away from school during school breaks that did not involve students of the school.  The principal says that such behaviour would impact school climate, but in most cases that is not true.

Listen to the Ontario Family Law Podcast on Spotify
Apple Podcast

 

To impact a school climate, not only must an activity have some relationship to the school, such as other people from the school being impacted or involved, but if the behaviour does occur at school or a school related activity, it must have an impact on many of the people at the school – a person’s behaviour can’t impact a school climate just by affecting one person.  It must impact many people at the school and impact them in a way that, well affects the entire climate of the school.   If a lot of people connected with the school do not know of the alleged behaviour, then it probably did not affect the school climate and so a student cannot be expelled for it.

 

Where a student’s behaviour did not occur at school, nor at a school related activity, nor impact many people at the school, then the student and the student’s parents should not agree to the expulsion and instead should argue this point at an expulsion hearing, and if the school board still expels the student, then the student or the student’s parents should immediately file an appeal of the expulsion with the Child and Family Services Review Board.

 

To explain that a bit more, here are some examples: 

  • Dealing drugs at school is grounds for expulsions.  
  • Dealing drugs away from the school to people who do not go to school is not a grounds for expulsion.    
  • Dealing drugs away from the school, but where some of the customers happen to be students, is not grounds for expulsion.
  • Dealing drugs away from the school to students at the school after “advertising” at school where to get the drugs is a grounds for expulsion.

 

There are other behaviours that can have stronger or weaker links to school, dealing drugs is just one example to illustrate the point. The more connected an expellable offence is to the school, the more likely the student can be expelled for it – and the less connected, the more difficult it will be to expel the student.

 

Not everything a student does at school can get the student expelled.  There is a relatively short list of offences that can get a child expelled from public school.   Those are:

 

  1. Possessing a weapon, including possessing a firearm.
  2. Using a weapon to cause or to threaten bodily harm to another person.
  3. Committing physical assault on another person that causes bodily harm requiring treatment by a medical practitioner.
  4. Committing sexual assault.
  5. Trafficking in weapons or in illegal drugs.
  6. Committing robbery.
  7. Giving alcohol or cannabis to a minor.
  8. Repeated Bullying.
  9. Bullying that creates an unacceptable risk to the safety of another person.
  10. Threatening bodily harm, swearing at a teacher of person in authority, committing vandalism or bullying where the behaviour was motivated by bias, prejudice or hate.
  11. Other behaviour that the school board’s policies say must result in an investigation into whether the student should be expelled

 

With respect to that last point, school boards have tried to open up what they can expel students for by putting in a policy that expulsion must be considered for any behaviour that impacts the moral tone of the school.    However, expulsion appeal cases have held that, like activities that impact the school climate, to impat the mortal tone of the school, the behaviour must have had an impact on many people, students and teachers, at the school, not just one, two or a few.   Impacting the mortal tone of the school means exactly what it says, it must impact the entire school or almost the entire school to change the “tone” at the school. 

 

If a student’s behaviour does not fall into one of those 11 categories, it is not an offence for which a student can be expelled.  A student cannot be expelled for just coming to school drunk or high.  A student cannot be expelled for hitting someone, unless the victim needs medical attention or it is an act of bullying and the student has already been suspended for bullying or the attack was an act of bigotry.  Vandalism that is not motivated by bias, prejudice or hate is not an offence that get a student expelled.

 

  • A parent, or student should not agree to an expulsion unless the student’s behaviour is on the list of behaviours that can get a student expelled, and should go to the expulsion hearing, or appeal the expulsion, if necessary.

 

It may not be appropriate to expel a student who has done something that is on the list of expellable offences.   In a document called Policy/Program Memorandum 145, the Ministry of Education has told school boards that expulsion should not be the first discipline that a school board uses against a student.  Instead, school boards are to focus on early intervention strategies to prevent unsafe or inappropriate behaviour.   From there schools should use progressive discipline, using the least intrusive discipline measures first and only employing more severe consequences when lesser discipline does not work.  Even then discipline must be corrective and supportive not punitive.  In addition, the school is required to actively engage parents in the progressive discipline approach.  It is not appropriate to expel a student where the first-time parents hear that that their child has behaviour problems is when they get the letter that the child may be expelled.

 

Where a school has not used progressive discipline, the parents, or student, should challenge the expulsion at an expulsion hearing or appeal.


 


Consistent with that approach, Ontario Law says that it is likely not appropriate to expel a student where allowing the student to continue in school does not create an unacceptable risk to the safety of any person at the school.

 

There are additional things that can make expulsion an inappropriate form of discipline.  Ontario Regulation 472/07 makes several of them very clear.   Expulsion may be inappropriate under Ontairo Law where:

 

  • The student could not control the behaviour
  • The student cannot understand the consequences of the behaviour
  • The behaviour was the related to accused student having been harassed because of his or her race, ethnicity, religion, disability gender or sexual orientation
  • The behaviour was the manifestation of a disability identified in the student’s Individual Education Plan or IEP
  • The behaviour was the result of the school failing to provide appropriate accommodation to the student’s identified special needs,
  • Where an expulsion will make the student’s behaviour worse.

 

In addition, since discipline is supposed to have an educational purpose, that is, it must help the student’s education, it can be inappropriate to expel a student where the expulsion would have a negative effect on the student’s over-all long term education rather than supporting it.   This means that an expulsion that is intended to encourage a student to drop out is not appropriate.


This page explains  what to do to challenge an expulsion, both at the expulsion hearing and at an appeal.   There are specific grounds on which an expulsion can be prevent or overturned.   But, if any of the factors that I just described make an expulsion inappropriate, then the parent or student should fight the expulsion.   If you need more help doing that then you should speak to an Education Lawyer to get advice, and to get specific guidance for your situation.

 

Note that Ontario Law is very tough on bullying.  Public School are required to do a lot to fight bullying (private schools are only required to do what is in the contract with the students’ parents)  The first time a student bullies, they can be suspended.  After a student has been suspended for bullying, if that same student bullies again, the principal is required to suspend the bully from school for up to 20 days while the principal considers expelling the bully.  There is not much sympathy for bullies when they try to fight a suspension or expulsions from school.

 



When a student’s activities do not meet the criteria, set out above,  for them to be expelled, some principals and other school officials have tried to use another power, called “exclusion” to prevent the student going to school.  A principal an “exclude”, or deny access to a school, any person who presence is detrimental to the safety or well-being of anyone at the school.  So, some school officials have tried to use that power to kick out students who have not done anything that meets the criteria to expel them.  However, the Ministry of Education has directed that exclusions are not to be used as a form of discipline.  Section 3(3) of Ontario Regulation 474/00 prohibits school officials from excluding a student from the school in which that student is enrolled – just other schools where the student does not have classes.  So, this is not something that school boards can do to get rid of students.   I covered exclusions in a previous episode.


 


While it may be possible to expel private school students for anything, things are different for public school students.  They must have misbehaved at school, at a school related activity or in a way that has impact many students at the school.  In addition, there are only eleven types of misbehaviour for which a school board can expel a student.  If the student did not commit one of those types of acts, they cannot be expelled.  And, there are some special circumstances where even if a student did one of those types of behaviour, they still cannot be expelled.  If school is trying to expel a student improperly, the student and parents should fight that expulsion.  There are procedures for doing that and for appealing expulsions.  If you need help with that, email us, or use the form below to get in touch with an Education Lawyer.  There are several at our office and you can reach them by calling 416-446-5847.


For more information about Ontario Education Law, and other education law issues, such as assistance for students with special needs and discipline such as academic sanctions, suspensions and expulsions, check out the Education Law section of this website.

 

Many thousands of people get family law assistance from this website every day.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the challenges students face at college or university. 



Do Students Legally Have to Be Vaccinated Against COVID19 to Attend School or Participate in Sports?

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Since parents started considering the return of in-person learning for their children at school  and university and college students have been told about vaccination requirements at their institutions, we  have heard from lots of parents and students who want to know if it is necessary to be vaccination against COVID19 to attend school.  Others have asked about whether vaccination is necessary to play league sports.

  

As of the date of this post at the beginning of September 2021, there is no law requiring students be vaccinated against COVID19 to attend a publicly funded elementary or secondary school.   It is possible that is because the vaccination is only available to students 12 and over.  It may be hard for the Ontario Government, local health units, or school boards, to require the elementary students who are eligible to get the vaccine to get the vaccine when so many of their peers at the same school cannot be vaccinated at all.

 

However, the Immunization of School Pupils Act has been around for a long time.  It is the law that requires children to be immunized against a list of diseases, such as Polio, Hooping Cough and Measles, for them to attend school.  COVID19 has not been added to the list of required vaccinations, but it could be in the future.  As many parents have found out, section 12 of the Act states that a child who does not have the required vaccinations can be prevented from coming to school until he or she gets the required vaccines.  The Ontario Government changed the law this year as there used to be limit of 20 days for child to be kept out of school.  Now the period that a child can be kept out of school due to a missed vaccination is indefinite - it can go on forever.  There is a process to get an exemption – it involves providing getting a doctor to provide a  statement that the student cannot receive the vaccine for medical reasons.   That pervious version of the Act has survived  court challenges in the past.  As the threat posed by COVID19 may be similar to hooping cough, measles or diphtheria, if COVID19 vaccination were to be added to the list, it would likely survive court challenges.

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64 - Do Students Legally Need to Be Vaccinated to Attend School and Do Sports

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In addition, Ontario’s Health Protection and Promotion Act gives both local medical officers of health and the Ministry of Health the authority to close schools, or other premises, and to order people with a communicable disease to isolate,  In addition  s. 22 also allows the medical officers of health to make an Order requiring the person to whom the order is directed to conduct himself or herself in such a manner as not to expose another person to a communicable disease.  There are specific types of Orders that a medical officer of health can make, but they do include "requiring the person to whom the order is directed to conduct himself or herself in such a manner as not to expose another person to infection”    This is the law that  some local medical officers of health felt gave them authority to require vaccine passports, and perhaps restrict where the unvaccinated can go.

 

In addition, during the pandemic, the Ontario Government gave Ontario Public Schools significantly more power to exclude students.  “Exclusion" is the authority, under s. 265(1)(m) of the Education Act, for a  school principal or another delegated member of the school staff to tell a child that he or she can no longer attend school.   Previously, there were a lot of rules around exclusions that prevented them from being used to keep children from attending their schools, as doing so was something that was governed by procedures surrounding suspensions or expulsions or using the Immunization of School Pupils Act or Ontario’s Health Protection and Promotion Act.  However, now the only requirement is that the child pose a risk to the welfare to anyone at the school.  So, a principal could prevent a child who is not vaccinated from coming to school using this provision in the Education Act.   That provision is likely to be challenged if it is used, at it has been in the past, against students with special needs.   Some of those challenges are likely to be successful and create rules for exclusions.  But, it is by no means guaranteed that a challenge to the use of this section in relation to excluding students who are not vaccination will be successful.  Challenging vaccination requirements will be a hard case to win.

 

As of yet there have not been reported court or Human Rights Tribunal cases in Ontario challenging public health measures, such as mask wearing or vaccination.   However, there have been decisions in other provinces.  Those decisions have held that human rights legislation is designed to protect disadvantaged people facing unfair barriers not imposed on others, such ad the difficulties faced by people with disabilities or racialized minorities.  Human Rights legislation does not protect the right of people to do whatever they want.  So, as long as vaccination rules do not discriminate against disadvantaged groups, they are fine.   COVID19 Vaccinations polices have exemptions for people who cannot be vaccinated for medical reasons, such as a known allergic reaction or some cancer treatments.  There also may be religious exemptions for members of organized religions that have long standing rules against vaccinations, although no established organized religions currently prohibit vaccination.   However, it is fair for organizations to ask for evidence in support of the exemption.

 

The Ministry of Education will begin to introduce a vaccination disclosure policy for the 2021-2022 school year for publicly funded school board employees, private school staff, and all licensed childcare facilities staff. Many Ontario Universities and Colleges have announced the same, requiring students and staff to show proof of vaccination.  Currently, no school board has a vigorous policy for COVID-19 vaccinations for children attending school, only for their respective staff. This could, however, quickly change, pending approval on those individuals under age 12

 

The Toronto District School Board (TDSB) has developed a mandatory COVID-19 vaccine procedure that requires that all TDSB staff, trustees, and visitors disclose and provide proof of vaccination status and require them to be fully vaccinated. However, if you are not vaccinated, TDSB will comply with all human rights obligations to accommodate employees legally entitled to any accommodation. Those individuals will be subjected to an education on the benefits of vaccination. Similarly, various colleges and universities across Ontario are requiring those not vaccinated to attend a mandatory information session on the positives of the vaccine.

 

Private schools, colleges and universities can set their own policies for COVID19 vaccination and other health safety measure, unless the Ontario Government passes laws requiring certain rules for those institutions.  The Ontario Government has exercised more control over private schools regarding COVID19 than it has over any other educational.  It seems likely that the rules for vaccination that are applied to public schools will also be applied to private.

 

Also, when it comes to these institutions, the rules are likely to favour vaccination and other public health policies.   The law permits vaccination policies as long as they do not discriminate against the disadvantaged.     So universities and colleges and Ontario Private Schools can require COVID19 vaccination, as long as they offer acceptable alternatives to allow people who cannot be vaccinated (choosing not to be vaccinated is not sufficient), and can prove that inability to be vaccinated, to access to the same education as their vaccinated peers.

 

Which leads us now to sports leagues, many of which are requiring their participants, who are eligible to be vaccinated unless they can prove that they cannot be vaccinated.   For the most part, these are private organizations and they are allowed to set their own rules, as long as they do not violate any laws, including the Human Rights Code.   However, it is unlikely that vaccination policies will be deemed to be illegal unless they do not offer alternatives for people who can prove that they cannot be vaccinated. Not also that Ontario’s vaccine passport laws, as currently drafted, will not allow adults access to sports facilities without proof of vaccination but there is an exception for youth recreational sport.

 

For parents who want their children to be involved in league sports, but do not want them to be vaccinated, if they cannot find a league that supports their views, then they may want to create their own sports organization that allows participation without vaccination.  Those organizers probably should speak to a lawyer to set up their organization legally and in the most tax efficient way possible, while also protecting the organizers from liability.

 

Currently, it may be possible to set up private schools where there are no requirements for students to be vaccinated.  The Ontario Government is going to require private school educators to be vaccinated or provided proof of a legitimate exemption. So, when vaccinations become available to all students, the Ontario Government may impose the same requirements on private schools as it does on public schools when it comes to COVID19 public health measures.


Another issues that has come up is what happens if the child wants the vaccine and the parent disagrees or vice versa.   Everyone who has attended a vaccine clinic where the Pfizer Vaccine has been administered has seen the health care provider asking everyone over the age of 12 if they consent to receiving the vaccine.   Under section 4 of Ontario’s Health Care Consent Act, 1996 every human person is presumed to be able to make their own health care decisions and health care providers are entitled to rely on that provision, unless the health care provider has reasonable grounds to believe the person does not understand the nature, benefits and risks of the proposed care.   Only in unusual circumstances would a health care provider believe a 12-year-old did not have capacity to consent, or refuse, a vaccine.  Children of that age with serious illnesses consent to, and direct, more complicated procedures every day.   When there is a disagreement between child and parent over health care, the child’s wishes govern, unless there is a good reason to believe the child does not have capacity.  This makes it the child’s decision whether to get vaccinated.  

 

As of now, students can attend Ontario public schools without being vaccinated, although the laws are in place to prevent students who pose any public health risk from attending school and that could include students who are not vaccinated and who have no proof that they cannot be vaccinated.  Colleges, universities, private schools and sports leagues can all require vaccination.   Challenges to those laws will only be successful where the unvaccinated person proves that he or she cannot be vaccinated for medical or well-established religious reasons and the institution has failed to offer that person to offer alternatives to enjoy the same benefits as the people who can be vaccinated. 

 

If you are experiencing difficulties with your child’s school, college or university, it is important to figure out what rights your child may have, and how the law might help them. Contact Education Lawyer, John Schuman, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for  quickly for a consultation, which can be done virtually.

 

For more information about Ontario Education Law, and other education law issues, such as assistance for students with special needs and discipline such as academic sanctions, suspensions and expulsions, check out the Education Law section of this website.

 

Many thousands of people get family law assistance from this website every day.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the challenges students face at college or university. 


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Is Family Mediation Binding?

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When separating, many spouses and parents want to find easier, less destructive and less expensive alternatives to Family Court.  For most people, those options are better.  In addition, the 2021 changes to the Divorce Act require separating spouses to consider alternatives to Court.  Many people consideration family mediation to resolve their differences after separation. But, having heard that mediation is a voluntary process, they also worry that their ex will just ignore the result at mediation.  They need to know “Is Family Mediation Binding?”  This page will explain how separated spouses can use Alternative Dispute Resolution to get a lasting resolution without going to court. 

 

When someone decides to separate from their partner, it is because they want to have less to do with then, not more.  The point is to sort out all the necessary issues, such as parent, support and property division and move on – not to keep discussing those things endlessly.  So, what is needed a permanent resolution.  While a family court judge’s decision is often the final say on matters, that can be a long nasty, expensive process.  More importantly, family court  can also wrong choice for many people to get what they want in separation or divorce.  Mediation, and other ADR options can often lead to better results more quickly, at less cost and with much less fighting.


But, over and over again, people say, “Mediation sounds great, but is it binding?” because they are worried that their ex will just ignore any result he or she does not like.  To answer whether mediation will be binding, it is necessary to explain exactly what mediation is.

 



Mediation is a voluntary process, meaning both separating spies have to agree both to go to mediation and on who the mediator will be.  At mediation, parties meet with a mediator to try to come to a settlement of some or all of the issues arising from heir separation.  That meeting can be virtual – over Zoom, or phone or otherwise.   Sometimes, the separated spouses don’t actually see each other, as the meet with the mediator separately, which can be more appropriate in circumstances where having the parties together will just results in fight, or Owen spouse trying to use threats or other forms of power over the other spouse to force a certain result.  One of the mediator’s responsibilities is to ensure that one spouse does not use coercive means to get a particular result.




The idea behind mediation, and what draws most people to it, is that it is a way for the parties to reach a settlement  that they have created, rather than having one imposed upon them.   In this way, the parties remain in control, and try to come up with the solution that is best for everyone - unlike in Court where a judge, who may not understand the family, or the situation, imposes terms that neither party likes.


The role of the mediator is very different form the role of a judge.   The mediator’s job is to facilitate the discussion, perhaps suggest ideas, and assist the parties in negotiating a deal.  While the mediator can suggest ways to settle matters,  the mediator does NOT impose a settlement.  The mediators comments and suggestions are NOT binding.  The parties are always free to say “no" to what the mediator proposes. So, if the settlement that everyone is discussing at mediation is worse for one of the parties than that party is certain to get in Court, than that party can walk away.  In fact, a party can walk away from mediation for any reasons before the parties have reached an agreement.


The goal at mediations is for the parties to reach an agreement that contains terms that they all agree on.  While what a mediator suggests is NOT binding on the parties, the goal of the mediation is for the parties to sign an agreement at the end and that agreement WILL be binding.


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62 - Is Family Mediation Binding?

60 - Should You Take Your Ex to Family Court?

42 - How to Get a Legal Separation in Ontario

31 - How Lawyers Help at Family Mediation

There are rules to follow to have a binding separation agreement.   To summarize, a binding separation agreement must be in writing, it must be signed by the parties and those signatures must be witnessed.  In addition, for the Family Court to hold the parties to the terms of the agreement, both parties must have provided the necessary financial disclosure, they must both have had independent legal advice on the agreement, the agreement must not violate any of the laws of contract and must be consistent with the guiding principals of the family law statutes.  So, if the parties sign an agreement that fulfills all those requirements at mediation, then they have a binding agreement.  In fact, separation agreements can be filed with the Family Court so that the Court can enforce it like a Court Order.

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One of the reasons that people take lawyers with them to family mediation is so that the can make sure they have a binding agreement before they leave the mediation.  Lawyers can make sure that the necessary disclosure is exchanged before, they can provide independent legal advice during the mediation, and they can make sure that agreement does not violate any laws that would result in a court invalidating the agreement.  Parties can then sign the agreement at mediation and that agreement will then be binding.  If the lawyers are not there to review their terms and to provide independent legal advice to their clients, then the mediator may crate a "Memorandum of Understanding" that sets out the agreement between the parties.  But until the parties meet with their lawyers to review the terms  and sign an actual agreement, that memorandum of understanding is NOT binding.  So, party can still “walk away” from the deal after the mediation but before the parties sign a proper agreement.


I should also mention that usually mediation is a confidential process.   That means that what everyone says at mediation stays a mediation and the parties cannot use what someone said at mediation against them later in court or at an arbitration.  The purpose of this is to facilitate open discussion and consideration of the all the possible options without a party being concerned that if he or she considers something, that will be used against him or her later.  That can really facilitate the negotiations  and help reach a settlement.  So, if one of the parties says that they would agree to something at mediation, but then refuses to sign an agreement, no one can hold that person to what he or she said at mediation. The same thing holds true to anything that anyone, a party or the mediator, says at a confidential or closed mediation.  Until there is a final formal written agreement, nothing at mediation is binding.


Ontario also has a process called “Open Mediation.”   In that form of mediation, the discussions are not confidential, the parties can quote them to a judge later, and the mediator often writes a report for the judge to read later if the parties don’t settle.  This form of mediation is more often used in parenting disputes where the mediator, who is also a parenting professional, can provide observations about the parents commitment to the best interests of the child and those observations can replace a more expensive formal parenting assessment.  The fact that what happens at mediation will end up before a judge often prevents parties from being unreasonable and keeps them on their best behaviour.   It also can mean that the parties will do and say things to impress a judge, rather than what they actually believe, or what they intend to do.  However, while the mediators comments about mediation are not binding on the judge, and certainly can be the subject of cross examination if the matter goes to trial, the mediators comments can be VERY persuasive in parenting matters.  Still, the judge has to base the decision on the evidence presented in court, not on the opinion of a mediator.  So, even in open open mediation, the opinion of the mediator is not binding on the parties.


When parties want the opinion of a third party, other than a judge, to be binding on them, they are thinking of arbitration.  If the parties sign an arbitration agreement, for which Ontario Law requires that they consult with a lawyer first, then the opinion of the arbitrator will be binding on them, exactly the same as a court order – under Ontario’s Family Law Act, arbitration awards can automatically be converted to court orders – subject to an appeal to the Court. 


Like mediation, arbitration is a voluntary process in that both parties have to agree to go to arbitration and they have to agree on the arbitrator.  They also have to decide on the decision-making process that the arbitrator will use. Unlike at mediation, even though an arbitration can take place in the same type of room as a mediation, the role of the arbitrator is NOT to help the parties to reach a settlement.   The role of an arbitrator is to decide the case based on Ontario Law and then impose a binding decision, just like a judge.   Arbitration can be faster, much less expensive and less adversarial, and the parties get to pick who makes the decision, unlike in Court where the parties cannot pick the judge.  But, the trade off for the binding decision is that the parties lose control creating the terms of the final resolution.  Hopefully, they pick a judge who gets to know and understand the family better than a Family Court Judge with many different matters on the docket can.


There is another option that combines mediation and arbitration.  It is called, not surprisingly, mediation/arbitration.  In that process, the parties sign a mediation arbitration agreement that provides that if the parties cannot reach an agreement on every issue at mediation, the mediator will become an arbitrator and impose a binding decision over all outstanding issues.  However, note that the mediation phase of mediation/arbitration is still confidential and what anyone says cannot be used against them later – even the mediator is not bound by what he or she said if the matter goes to arbitration.  During the arbitration phase, the arbitrator must based his or her decision on the evidence presented at arbitration and how Ontario Law applies to that evidence.  That can be different that what the arbitrator might suggest and that the parties might agree to at mediation where their settlement does not have to be based on evidence and they can agree to anything that is not illegal, which gives many more options than what result Ontario Law says must be imposed where people cannot agree.


So, if the parties cannot agree at mediation, or if one party walks away from mediation, they are just walking into an arbitration that is conduced by the person who was the mediation, and knows the parties well, even if nothing that happened at mediation can be used at arbitration.   It is a term of the mediation/arbitration agreement that a party cannot walk out of mediation and head to court instead of arbitration.  So, while what the mediator says at mediation is not binding, it certainly has “some teeth” if that mediator will impose a binding decision if the parties cannot agree  after hearing the mediators comments.


Collaborative Practice is another way to have professionals, including the lawyers, facilitate a settlement like in mediation.  Collaborative Practice is ALWAYS confidential and it is a basic premise of Collaborative Practice that what is said there can never be  used at court.  The whole process is based on the free and open exchange of ideas to help the parties come up with the best possible settlement for them, so there can be no fear that anything that someone says will be used agains them later.   Like with mediation, nothing at Collaborative Practice is binding until the parties sign a proper agreement.  There is more a out collaborative practice in this book.


Mediation itself is not binding.  In the confidential process, people cannot be held to what they say.  The mediator or either party can end the process if anyone is acting in bad faith – or for any other reason.  But, if the parties sign a formal separation agreement at mediation, or after mediation, that is binding.   Arbitration or mediation/arbitration are both processes where the a result a binding result can be imposed on the parties.   Whether to allow for a result or imposed or whether to stay in a process where the parties have to reach an agreement is an important decision that separated spouses have to make.   Getting help with that decision to make sure you do what is best for you, and your kids, is an excellent reason to get the advice of a good family lawyer who knows all about Family Court and all the alternatives to Court to make sure you make right choice.

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To get the best advice, specific to your situation, you should speak to family lawyer.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John call 416-446-5847, email him, or fill out the form below. You can use the same form to comment on this page.

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You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of the Family Law related to parenting after separation, child support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.

   

Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters for your children after a separation.


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Why No Ontario Family Court Judge Will Give You Custody of Your Kids

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For many years, custody of the children was the big prize in any divorce or separation.  Especially with the introduction of “no-fault divorce”, custody of the children was important because it showed who won the divorce.  For separating parents, getting custody, and controlling the other parent’s “access” has been the ultimate goal, which superseded other considerations, like maintaining an amicable relationship, or being able to co-parent, or addressing the children’s needs. With the introduction of the Child Support Guidelines, custody became even more important because it also meant entitlement to child support and even sharing parenting meant getting less child support. The huge importance separated parents have placed on getting custody is indisputable.  However, parents who  go to court to get custody of the children are certain NOT to get it.




Just the idea of child custody has become controversial over the last several years.   Many, including groups concerned about domestic violence, those concerned about parental rights and people who favour traditional parenting feel child custody is an important concept because it is important for children to have a primary parent who makes all the decisions for children, especially after separation because waring parent cannot make decisions together that focus on the children’s best interests. So, one parent needs complete control over the children.


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59 - Why You Won't Get Custody of Your Kids

61 - Can You Move with the Kids After Separation or Divorce 

60 - Should You Take Your Ex to Family Court 

17 - Sole Custody, Joint Custody, Shared Custody- How do Judges Decide?

For those concerned about children’s rights and doing what is in the children’s best interests, the concept of custody of the children is one that has many problems.  The idea of having “physical custody” of the children came from the idea that children were essentially the property of a parent not human beings.  “Parental Rights” were thought to be inalienable, until separation, then the parent who had custody had total control over the children.  The idea of child rights did not exist because children are not mature enough to have rights.


The term “custody” evolved in Canadian Family Law.  Eventually, it came to reference not having physical custody of the children, which is what almost everyone thought, to who makes decisions for the children. The parent who had custody got to make those decisions, which meant caring for the children for most of the time, while the other parent had “access”, which meant that parent could “visit” with the children, but had very little  say in the lives of the children.  The Child Support Guidelines also provided that the parent with whom the children lived got child support, which added to the significant gulf between he parent who had custody and the parent who did not.


Getting custody came with many rights, it was more than just a trophy.  It was worth fighting over – especially when one parent could make decisions for the children in a way that marginalized the other parent in the children’s lives.  Often non-custodial parents felt like “tourists” in their children’s lives.  Even though “access parents” had extensive rights under the Family Law statutes, being called an “access parent” became a term of shame that somehow seemed to reflect an incompetency in parenting regardless of that parent’s parenting skills and love for the children.


So, parents went to Family Court to go to war with the other parent to get custody.  Parents spent massive financial and emotional resources getting custody.  Often that drained all the family’s savings, and the children’s university savings,  It also left parents emotionally exhausted.   We now understand that the exposure to that high level of conflict, not the divorce or separation itself, resulted in serious harm to the children. Check out the Family Law Podcast episode on whether going to court is a good choice.




However, Ontario (and Canadian) Family Law clearly set out that when judges decided who got custody, they were no longer considering parental rights, nor the importance of maternal instinct in raising children.  The test under the law became looking at what was in the best interest of the children.


The term “child custody” stopped referring to who had the children physically with him or her, and instead referred to which parent made decisions regarding children.   With whom the children spent their time  because a separate issue from “child custody”.   There were orders for “custody”, which addressed who made decisions and orders for where the children spent their time that could no longer be unilaterally changed by the parent who had “custody.”


But even so, family law professionals, and many judges, started to realize that child custody was an antiquated term.  The mere idea of child custody focused on what the parents wanted and not what the children needed.


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For at least a decade, parenting professionals and parenting mediators have avoided the term custody and have instead looked at what the children needed.  The focus shifted to children’s lives and what they needed – where they needed to be an when, what important issues did they face and who should make decisions about them, what parent was available to take on responsibilities related to the children. Ideally, parents would cooperate to meet their children’s needs, even when one parent had to take on more of the responsibility.   But, where parents could not cooperate, parenting professionals, parenting mediators, and some judges would still avoid custody order by creating parenting regimes with extensive terms that set out, sometimes in minute details, how the children’s needs, including their need to spend time with each parent, but also their needs to attend school, get healthcare and participate in activities, would work.


A lot of lawyers, judges and family professionals came to the conclusions that focusing on child custody meant focusing on the parents, but children really needed the focus of separated parents to be on them.


So, in 2019, the Federal Government, followed by the provincial governments, made big changes to the Divorce Act and other family laws to abolish the terms custody and access and change the focus of “parenting orders” onto the children and their needs.


Judges now make parenting orders, not custody orders, and those parenting orders have two components – parenting responsibilities and parenting time.


There are some basic parenting responsibilities – like feeding the children, making sure they get to bed, encouraging proper behaviour and preventing them from doing anything dangerous.  Unless there is a reason for a judge to order otherwise, both parents have those responsibilities when the children are with them.


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But, there are bigger responsibilities involved in raising children, such as getting the children to the doctor, dentist or other professionals,  doing school projects and involvement in school activities and committees, getting the children to the church, synagogue or mosque and to any religious education, and getting the children to their practices, games and competitions and other activities, just to name a few.   Taking on these responsibilities also involves making decisions about them.


While together, parents have to sort out how they will divide up these responsibilities.  They have to do that after separation as well.  So working out parenting after separation means listing all the parenting responsibilities and deciding which parent is going to take on each of them and if it is possible for the parents to share those responsibilities, which can mean a great deal of cooperation.


This is not an “all or none” exercise.  It should involve looking at each responsibility, such as swimming lessons, soccer practices, dentist appointments and many more, and deciding which parent will be responsible for each one individually.   It is possible for parent to be responsible for hockey and the other to be responsible for gymnastics.  It is also possible that parents may share responsibilities, if they can work together, and both do things like work with the school on a child’s IEP.   Who does what is based on what will work best for the child, and if often relates to who looked after that responsibility when the parents were together.  But, it also can depend on which parent is available, which parent is interest in that responsibility, which parent knows something about that responsibility, or which parent does it with the child, or other considerations particular to the family.  Some responsibilities can be so very significant, perhaps too much for one person.  So, it may be ideal for parents to share that responsibility with the other parent if they can cooperate, or it may be dependent on which parent can get help with the responsibilities from parents of other children, or others in the community.


It is always best for the children when their parents can share responsibilities, with both parents being involved in all aspects of their lives and one parent is able to jump in and take responsibility when the other parent has something come up.  But, that really requires that the parents be able to get along and put the children first and not prioritize fighting out their gripes with their ex.  Exposing children to parental conflict can actually cause physical damage in the children’s brains and can lead to long lasting psychological and emotional problems. So, a parent who demands to take on responsibilities with another parent with whom they fight constantly will not get a lot of sympathy from a judge.


Fortunately, the new Family Law Legislation also provides incentives for parents to learn new ways to work out their issues in a cooperative manner through mediation, collaborative practice or other Alternative Dispute Resolution Options.   But still, sharing a parenting responsibility with an ex does mean being able to get along with that ex and make decisions cooperatively and without one parent bullying, harassing, or attacking the other.


Where parents cannot get along, it is still possible for each of them to take on responsibilities independently.  One parent takes on one set of responsibilities and the other parent takes on the other without overlap.


In other cases, it may be that it makes most sense for one parent take on most of the parenting responsibilities.  That decision should reflect the realities of the situation, such as the availability of the parent to take on responsibilities, and no be based on angry, emotion or ideological bases.




Similarly, parenting time, especially as children get older, is often a function of where the children need to be and when, and then which parent can be available to meet the necessary responsibilities. So, if one parent is responsible for taking a child to an activity, that parent should have parenting time that permits that.  Parenting time also has taken into account how parent’s schedule affects their availability to parent.  Really, setting up parenting time often involves looking at the children’s schedules and then the parent’s schedule and the children’s schedule and figuring out the logistics of getting the children where they need to be and getting the things done that have to be done, and allowing the children time with each parent.  Time with the children should be a prize, but reflect how their parents can best meet their needs and ensure the children have the best possible relationship with each parent.


Where there are disagreements about how to achieve these objectives, the concept of parental rights will not have any bearing on how a Court or arbitrator resolves any parenting issues. When deciding which parent has which responsibility for the children and what time children spend with parents, the ONLY thing a judge or arbitrator is allowed to consider is the best interest of the children.


In determining the best interest of the children, a judge or arbitrator has some specific factors to consider.  Those factors are:

  1. the child’s needs, considering the child’s age and stage of development, and  the child’s need for stability;
  2. the nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and anyone else who plays an important role in the child’s life;
  3. each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
  4. how the parents cared for the child in the past;
  5. where possible, the child’s views and preferences, giving due weight to the child’s age and maturity
  6. the child’s cultural, linguistic, religious and spiritual upbringing and heritage,
  7. any plans for the child’s care;
  8. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
  9. the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
  10. any family violence
Guide to the Basics of Ontario Family Law - 4th edition cover


To get the best advice, specific to your situation, you should speak to family lawyer.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John call 416-446-5847, email him, or fill out the form below. You can use the same form to comment on this page.

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You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of the Family Law related to parenting after separation, child support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.

   

Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters for your children after a separation. 


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What the Judge Will Consider in Deciding Whether the Hamilton Paramedics Are Guilty in the Yosif Al-Haswani Trial


paramedics


As I am both a lawyer and a paramedic, a lot of people (paramedics mostly) have been asking me about my thoughts as I follow the case of the two former Hamilton paramedics charged with “Failure to Provide the Necessities of Life” in relation to the death of Yosif Al-Haswani on the evening of December 2, 2017.  All the testimony is finished in the Trial.  To be clear, I have not been attending Court, but I have been following the media reports of the trial in some detail and my comments are based on those reports.  The case has huge legal repercussions for paramedics and other medical professionals who make mistakes when doing their job.   

 

When the events of December 2, 2017 first came to light, many paramedics, including myself, expressed concern that there must be some other side to the story.  There is a clear protocol in place for paramedics to follow when caring for a patient with penetrating trauma.   Yosif Al-Haswani had been shot, with what doesn’t matter if the result was penetrating trauma, and so something strange must have gone on.  Something, or someone, must have convinced the two paramedics, Christopher Marchant and Steven Snively, that something else was wrong.  Something must have confused them.  Paramedics do not, generally, make significant departures from the patient care standards, and when they do it is often in a situation of chaos and confusion at the scene that makes following those standards difficult or impossible.

 

The Story That Came Out in the Evidence at Trial

 

The evidence of Marchant and Snively does make it clear that they made mistakes and departed from the expected standard of care.  They also did a terrible job of “charting” their treatment on the patient care records.

 

From the media reports, here is what happened on December 2, 2017 according to the testimony that was reported at trial, but from a paramedic’s perspective.

 

  • Just before 9:00 p.m. Al-Haswani saw two people accosting an older man on the street.  Al-Haswani had a confrontation with those two people.  One of them shot Al-Haswani  in the abdomen with what was reported, at the time, to be a BB gun.   Al-Haswani’s brother ran into a convenience store to get someone to call 9-1-1 because Al-Haswani had been shot.
  • The police arrived and asked for an ambulance.  The officer reported that Al-Haswani had a superficial wound to his abdomen from a BB Gun.  The call-taker at the dispatch center recorded in the call log that there was no immediate threat to life.  However, as the dispatch center was severely understaffed that night, the call-taker put “unknown” into the system in the fields regarding the patient’s level of consciousness.  With an unknown level of consciousness, the call was dispatched as the highest priority – Priority 4.
  • ·      When being dispatched, Marchant questioned why they were being sent Priority 4 for a superficial wound from a BB gun.  The dispatcher took offence to the paramedic questioning dispatch directions, especially when they were short-staffed.  She filed a report against the paramedic and then called him the next day to chastise him.
  • As a result of being short staffed, the ambulance dispatch mistakenly did not send a supervisor to a gunshot call.  However, due to the unknown level of consciousness, the ambulance dispatch asked the fire department to respond.
  • On arrival, the police, at least one fire fighter and bystanders told paramedics that Al-Haswani had been shot with a pellet gun. He had a very small wound in his abdomen near his bellybutton. But there was no external bleeding.   Snively had seen pellet gun wounds before and had not seem them penetrate the skin.  
  • The Paramedics found Al-Haswani conscious, but confused, lying on the ground.  There was no “air of emergency” as the bystanders did not seem particularly concerned.   A police officer, and then the paramedics sent the fire department away because under both the paramedic and fire department’s protocols, there was nothing for the fire department to do.
  • Advanced Care Paramedic, Snively, went to Al-Haswani, but did not take any equipment with him.  He assessed him, including assessing the patient’s wound in his abdomen.  Bystanders, including Al-Haswani’s father saw him doing this assessment.  However, that assessment was not documented on the ACR.  Snively assessed Al-Haswani’s vitals as being normal and transferred the responsibility for attending to the patient to Primary Care Paramedic, Marchant.
  • Primary Care Paramedic Marchant, who was the attending paramedic, cut off Al-Haswani’s sweater but did not document on his Call Report that he had every examined, or “palpated” Al-Haswani’s abdomen because the wound was so small and, apparently, caused by BB Gun.  He did document on the Ambulance Call Report that Al-Haswani has “no complaint of abdo pain.”  Based on the seemingly minor nature of the injury, and the story that it a BB Gun had been used, Marchant “ruled out” penetrating trauma as being the cause of Al-Haswani’s condition.
  • On the street, Al-Haswani would not answer the paramedics’ questions, but instead spoke to his father in Arabic.  Al-Haswani’s father then spoke to the paramedics.  The paramedics took this as a sign that Al-Haswani was being difficult, but his breathing was under control.   The paramedics asked if Al-Haswani was under the influence of alcohol and drugs and his friends adamantly said no.
  • When a bystander told a paramedic that Al-Haswani wouldn’t use drugs because he is a medical student, the paramedic replied, “If he’s a medical student, he wouldn’t be here.” A police officer said loudly, “He’s been shot with a BB gun, and he’s acting like it’s an AK-47.”   Al-Haswani’s father said that the paramedics acted like “there is no danger in the matter.”  He also remembers one of the paramedics telling him to “tell your son to stop acting.”  Another bystander testified that when the paramedics arrived, they “weren’t’ taking anything seriously.”
  • A firefighter reported that one of the paramedics said, “he’s acting, he’s pretending” to which Al-Haswani replied, “then why does it hurt so much.”  The firefighter also remembers a paramedic saying “Don’t worry. You’re going to live.  It’s nothing serious. It’s just a mosquito bite.”
  • When they tried to pick up Al-Haswani by picking him up by the legs and arms, he wriggled making him impossible to lift.  Eventually, a bystander convinced Al-Haswani to let the paramedics place him on the stretcher.  Al-Haswani’s father said the paramedics put his son on the stretcher in a “shamefull” and “humiliating” way: he was “hanging before walking” and the paramedics “threw” Al-Haswani onto the stretcher.  They did not use a “scoop stretcher” or spine board to move Al-Haswani onto the main ambulance stretcher.  Using one of those devices would have been the correct way to move a trauma patient.
  • In the back of the ambulance, Al-Haswani had trouble breathing.  He became confused, and “combative” and had to be restrained.  The police assisted with restraining him.  Some unfortunate comments were made to Al-Haswani attempting to direct him to improve his behaviour.  He did not.
  • In the back of the ambulance, the paramedics gave Al-Haswani oxygen, took his vitals and noted his heart rate was 143-145 beats per minutes.  They did a complete 12-lead to see if he was having a cardiac event, took his blood sugar to see if that would explain his altered mental status, but the reading was 5.4 (normal). 
  • The paramedics spent 23 minutes on scene moving and assessing Al-Haswani.  Dr. Verbeek, the medical director for the Sunnybrook Base Hospital Program for paramedics testified that time frame is not an unusual or particularly long time to spend on a scene, particularly where confusion makes it difficult to understand what happened to the patient and there were difficulties moving the patient to the ambulance.
  • Marchant did not believe that Al-Haswani had penetrating trauma, and so he looked for other causes, deciding that he had a psychiatric not a trauma patient.   As a result of that conclusion, several first responders, including the paramedics, made disparaging comments about Al-Haswani in the belief he suffered from mental health concerns.
  • The paramedics left on a Code 3 (urgent, but not life threatening) and did not use the lights or sirens.  They selected St. Joseph’s Hospital rather than the trauma center at Hamilton General Hospital.   They assessed the patient as being CTAS-2 with mental health concerns.  St. Joseph’s’ hospital is the preferred hospital for mental health concerns.  CTAS-2 means a doctor should see him within 15 minutes.
  • It took less than eight minutes to get to St. Joseph’s Hospital.  About two minutes from the Hospital, Al-Haswani’s became completely unresponsive (unconscious) and his vitals indicated he was “pre-arrest” and blood started squirting from the womb on the abdomen.  The paramedics upgraded to Code 4 (life threatening), used the lights and sirens and continued to rush to St. Joseph’s.  Marchant told the hospital the patient had a “small penetrating wound” from a BB-Gun to the abdomen and was “CTAS-2”.  Al-Haswani was actually CTAS-1 so that he saw a doctor immediately on arrival.  The paramedics did not decide to change their destination to the trauma center but kept going to St. Joseph’s. When he opened the back doors at the hospital, Snively noted that the patient’s heart rate was 45 beats per minute.  He said they rushed him inside.
  • Al-Haswani was in cardiac arrest by the time he was in the resuscitation room.   The Emergency department is not a trauma center and did not have a “Trauma Team” specializing in treating serious trauma patients.  Whether that would have made a difference is not clear as Al-Haswani already almost had half of his blood volume in his abdominal cavity from a wound cause by a .22 pistol fired at close range. Dr. Verbeek said the chance that a trauma team could have saved Al-Haswani was very low, but “it was not zero.”
  • Al-Haswani’s father confronted Marchant in the Emergency Department after learning of his son’s death. He said, “Do you believe him now?” Indicating that the paramedics had ignored his son’s complaints on scene. A surveillance camera also caught Marchant and Snively having an animated discussion at the hospital after the call.
  • Marchant did not file his Ambulance Call Report until the next day. The standards for writing those reports required it to have been done before he left the hospital.   Both paramedics decided the next day that they should do incident reports regarding the call.

 

The Views of the Doctors on the Paramedics’ Actions

 

Dr. Verbeek testified that paramedics are not expected to make a diagnosis, nor should they rely on what weapon was used to decide on their next steps.  He said there are clear protocols in place and when a patient falls within a protocol, the paramedics must treat the patient in accordance with that protocol.   There is a protocol for penetrating trauma that says the patient is to be taken as quickly as possible to the trauma center.   Paramedics are not to second guess that.  They are to assume that things could be worse than they seem, not better.  In this case, once there was penetrating trauma of any type, no matter how caused, the paramedics should have assumed the patient was dying from that injury.

 

Dr. Crosskerry testified that up until about three years ago, paramedics were not trained to look for “disconfirming evidence” of what they think is wrong.  That means, they were not trained to try to disprove their working theory of what was wrong with the patient.  Dr. Crosskerry also said that it is common for healthcare providers to base their treatment on their preliminary conclusions, particularly where, as in this case, the paramedics were told by several people that the patient had been shot with a BB Gun.  In such cases, where the patient’s condition seems clear, healthcare providers can be confused by, or ignore, signs and symptoms that are inconsistent with their understanding of the patient’s condition.  There are many examples of healthcare providers providing the wrong treatment, or not treating at all, because of initial conclusions about what was “going on” with the patient.  Essentially, Dr. Crosskerry said that the paramedics acted the way many, if not most, health care providers act.  There is a need for more training to avoid mistakes when health care providers do not constantly reevaluate their thoughts about a patient and the patient’s condition.  In many places, that training is already underway, due to unrelated studies about how health care providers make mistakes.

 

What Other Paramedics Think 

As the story of what happened on December 2, 2017 came to light, the views of many paramedics changed.   It initially started with “there must be another side to the story.” Then it moved to “Not taking a patient with penetrating trauma to a trauma center is clearly an inexcusable departure from protocols.”   Then it became “Why were they looking for a heart attack in a patient who had been shot?” or “When the patient’s patients’ condition deteriorated why didn’t they realize their conclusions were wrong and go to the trauma center?”  Many paramedics, the ones who self-evaluate their work often, moved onto “Could I have made that same mistake when the information given at scene was so wrong?”

paramedics

 

Cleary the paramedics misinterpreted or ignored a lot of signs that Al-Haswani was in serious distress.   They picked the wrong hospital.  They didn’t realize that a wound that didn’t look like penetrating trauma actually was and when the patient started to deteriorate, they didn’t re-evaluate their conclusions about the injury until moments before Al-Haswani’s death.  But, even then, under the Field Trauma Triage Standard for Paramedics, they should have rerouted and gone to the trauma center.

 

In light of the seriousness of Al-Haswani’s injuries, is doubtful, but not impossible, that going to the trauma center would have saved his life.

 

The Criminal Law That Applies to this Case

 

However, in this case, the question is not whether the paramedics made an error.  The question is whether that error is deserving of criminal sanction.

 

The paramedics are charged with failing to provide the necessaries of life contrary to s. 215 of the Criminal Code For a person to be guilty of that offence, the Crown must prove:

 

1.     The accused person had a duty to provide the necessaries of life to a person who is unable to withdraw from the “charge” of the accused person because of detention, age, illness, mental disorder, or other cause;

2.     The victim was in circumstances where he or she needed the necessaries;

3.     The accused failed to meet that duty by acting (or not acting) in way that constitutes a marked departure from what a reasonably prudent person would do in the same circumstances.

 

The paramedics had a legal duty to provide assistance to Al-Haswani.  That was their job.  There was nothing preventing them from doing it.  Further, Al-Haswani was in no condition to get himself to the trauma centre, or even to insist that the paramedics take him there.  He needed someone to take him there and that is what the paramedics and ambulance were there to do: to assess him and get him where he needed to go.  

 

Sopinka Court House

Al-Haswani needed medical treatment.  “Necessaries” has been held as “necessaries as tended to preserve life”.  The courts have held that medical attention necessary to sustain life meets the definition.

 

It is in the third criteria where the legal case gets difficult.  The actions of the accused must be a marked departure from what a reasonably prudent person would do.   The duty is not on one of perfection – the paramedics do not need attain perfection in their treatment.  Additionally, mere negligence is not enough to establish criminal liability either.  There error has to be more than what would just attract damages in a civil case.  The care provided must fall beyond an absolute minimum standard of care, being the provision of the bare necessities in the circumstances.   That other health care providers have made similar types of mistakes leads to the question of whether taking the patient to the wrong hospital falls below an absolute minimum standard of care.

 

This then raises the question of whether making a mistake is enough to make someone guilty of this offence under the Criminal Code.  Whether someone should be imprisoned for making a mistake is a very different question from whether someone should have to pay compensation for making a mistake.   Once a marked departure from the standard of care is established, the next question is whether the accused was capable of recognizing that he or she had fallen short of that standard. It is not appropriate to punish the “morally innocent” under this section.  The fact that the paramedics were actively trying to find out what was wrong with Al-Haswani by doing a 12-Lead ECG to check for a heart condition, taking a blood sugar to look for a blood sugar imbalance, and looking for psychological factors shows they were not willfully trying to avoid providing the correct treatment, but rather they were trying to figure out what the correct treatment was.  The paramedics were working in the uncontrolled environment that is characteristic of pre-hospital medicine and that is very different from making decisions in the relatively controlled environment of a hospital with many other health care professionals around to help and provide advice.

 

After being told repeatedly that the “mechanism of injury” was inconsistent with penetrating trauma, and having done an assessment of Al-Haswani’s abdomen that confirmed what they had been told, should the paramedics have kept the possibility of a major traumatic injury within their considerations?  And if they had done so, should they have prioritized the trauma center over the hospital that had psychiatric services, which was consistent with what they saw as being wrong with their patient?  When Al-Haswani’s condition deteriorated quickly, should they have changed direction and gone to the trauma center instead?  Were the decisions the paramedics made markedly different from the decisions that other paramedics or other health care providers would have made in the situation?

 

These are the questions that Justice Harrison Arrell will have to decide based on the evidence he heard and observed from the witnesses to the events of December 2, 2017.  The evaluation of the versions of events for a short, but chaotic, series of events will play a big part in the case.

 

This Case Could Have a Huge Impact on Canadian Health Care

 

Since this is a criminal matter, the Crown must prove all of the parts of the offence beyond a reasonable doubt.   That health care providers occasionally make mistakes, even while trying to avoid them, may raise more than a reasonable doubt as to whether these paramedics are deserving of a criminal sanction.  But, health care workers all across Canada are watching to see whether, unlike in other professions, their mistakes will lead to criminal sanctions.   Such a decision could certainly lead to profound changes in health care across Canada.


This is a hot issue among health care provides.  Please feel free to comment on this story below or share in on your social media platforms.  If you would like to contact the author, lawyer and paramedic, John Schumancall 416-446-5847, email him, or fill out the form below.

COMMENTS, SOCIAL MEDIA AND CONTACT



How Should Separated Parents Share the Kids' Holidays During COVID-19?

Christmas Baby


Holidays can be difficult for separated families. It may be impossible for the children to celebrate with both parents and their families or to have the most important time, that is, Christmas morning, with both parents. So how can separated parents divide up those special times?  Doing so can be one of the biggest challenges after separation or divorce.


When it comes to holidays, the first and most important consideration is that these are special times for the children too. Often they are even more special for the children than for the adults. The children do not want to spend these special times marked by fights among their parents. Especially fights where the child must take the side of one loved parent against another loved parent. That can ruin the entire special day or the entire holiday season for the child. Parents who love and want to protect their children must avoid fights over their children at these special times. It is always more important for the children to be happy than for a parent to be right. Of course, finding a fair plan for the children over the holidays can be hard. There are a few general principles that parents can use to help them make their plans.


The Golden Rule for Parenting After Separation

Where a judge has to decide what time the child gets to spend with each parent over the holidays the main consideration is what is in the children’s best interest. What is in the best interest of the child always trumps what is in the best interest of the parent. What is best for the child can vary from family to family and can be affected by what is usual for the family.


Ontario Family Law Podcast

46 - Do Parenting Plans and Family Court Orders Continue During COVID-19?

46-2 Update on Parenting During the Pandemic - What Family Court Judges Say

37 - Sharing the Holidays After Separation

What it is best for the children during these holidays and lockdown remains the focus of the Courts and should be the focus of every separated parent.  Every Family Court Judge who has faced making a decision about parenting has commented about how the pandemic represents extraordinary times. It is an event that is having a profound impact on children, even children who are not in the midst of parenting conflict.  Justice McGee noted that:

 “Even young children will carry the residual emotions into adulthood, at which time those children will reflect back on whether their parents eased their fear and disruption, or whether their parents were focused on their own needs.  How parents act during this difficult time not only sets an example for their children, but can affect their children’s development. 


 It has never been more important to put children’s needs first and do whatever is necessary to avoid conflict – especially during the holidays.


The Impact of the Pandemic

Family Court Judges have also made it clear that it is essential for children to have relationships with both parents during the pandemic. Judges have repeatedly quoted Justiced Pazaratz’s decision early in the pandemic in which his Honour said 

“In troubling and disorienting times, children need the love, guidance and emotional support of both parents, now more than ever.”


Judges have specifically held that seeing both parents is in expect parents to find ways for children to move between homes and spend time with both parents in a safe way.  Only actual EVIDENCE, not speculation, that a parent is putting children at actual risk of harm will cause a judge to restrict parenting.




As public health officials are saying everyone must limit contact with other people, it seems like it might be in the children's best interest to stay in one spot and have contact with as few people as possible.  Obviously, it would not be in the children's best interest to engage in any activity that could put them at risk of infection.  That certainly has impacted what parents are doing with their children on a daily basis throughout this crisis.


However, the current view of parenting professionals and judges is that having contact with both parents is important to a child's sense of well-being and healthy development.  This means that seeing both parents is also in the child's best interest.  Children suffer when deprived of contact with their one of their parents.  They suffer even more when there is conflict between their parents over things like the schedule.  So, disturbing the current arrangements with out your ex’s agreement could lead to some serious situations and repercussions, perhaps even serious consequences imposed by the judge down the road.




To summarize the decision that parents have to make, it is: is in the children's best interest to remain isolated with one parent, so as to avoid the chance of infection, or is it in the children's best interest to spend time with both parents even if that means they will come into contact with other people.  Again, a lot depends on the new specifics of the situation.  If the children can go from one asymptomatic parent to the other parent through a method of travel that does not involve them coming into contact with a lot of other people, and both parents are not going to engage in behaviors that are currently considered risky or that could result in the spread of the virus, then there may be no reason to change the arrangements at all.


What Judges Think is Fair During the Holidays

Specifically with respect to the holidays, there are an abundance of decisions from Family Court Judges about what is fair.   The following are what most Family Court judges expect:




First, children should rotate where they wake up on Christmas morning or with whom they spend special events. Christmas is often the most problematic, but this can apply to any holiday or special event that is of particular importance to the family. Children should get the opportunity to spend this time with each parent. But keep in mind that for really young children, the fight may not be worth it. They may not know what day it is, so it may be possible to create a special time on any day.

Second, where possible, traditions should continue for the children. This may conflict with the first point. But that is usually rather an opportunity to resolve the conflict than to create it. If for example, one side of the family has traditionally celebrated Christmas on Christmas Eve, and the other side on Christmas Day, it can be possible for the children to attend both family celebrations every year rather than miss one. Dinner on Christmas Day is not a price to be won. Especially if it means ruining your family’s traditional Christmas Eve celebration. Be sensible and practical about how the children can maximize their celebrations.

Third, holiday time is usually shared equally. As with the first point, the children are getting a good opportunity to experience the holidays with each parent and their families. There are some obvious exceptions to this, such as when such an arrangement is not safe for the children or where one parent has to work and cannot take advantage of the extra time with their children. Again, this division has to be what is best for the children.

Fourth, for Christmas, parents often share the time from Christmas Eve to Boxing Day equally and then share the rest of the school break equally. For this special period, it makes sense for the special day to be divided and it can make no sense for one parent to get the entire week around Christmas and the other parent being shut out of Christmas entirely.  

Fifth, trying to give bigger or better presents than the other parents teaches the children to be manipulative. The children will play one parent against the other for the better gift when they know that their parent will fall for it.

Sixth, just because you are angry or emotional about the holidays after your separation does not mean your children are feeling the same way. Although it can be hard, parents should try to make holidays a happy time for their children. The separation was not the child’s fault, so they have no reason to feel angry or guilty.

Trashing the other parent around the holiday table or at any other time the children are present is never okay. Family court judges say that is bad parenting and even a reason to change custody or the parenting schedule.


Finally, during the pandemic, things become more difficult when one parent decides that he or she does not want to follow the advice of public health officials.  Or, when a parent insists on engaging in other risky behavior at this unusual time.  Chances are that if a parent is going to engage in risky behavior now, they probably have engaged in it before and the parenting arrangements take that into account.  If the arrangements do take that type of behavior into account, then no change may be necessary.  However, if a parent is insisting on doing engaging with the children in activities that are clearly not the children's best interest in light of the advice and information from our public health officials, then changes may be necessary.  The Ontario Courts have supported the directions from Public Health Officials.  If a parent is going to disregard those directions, putting a child at risk, the Family Court will intervene. 


But what most kids of separated parents want during the holidays is to be free from experiencing their parents fighting.  Parents must put the children first, realizing that children need both parents  and that COVID19 means that everyone has to be careful about making that happen.


Taking the High Route

Nothing ruins holidays for children like fights between their parents. It is one of the most psychologically harmful things parents can do to their parents. As unfair as the other parent may be to you over organizing the holiday, exposing your children to conflicts over or about the holidays is more unfair to the children. If you cannot get matters sorted out before the holidays in or out of family courts, then it is much better to take the high route and save your children from the fight. Then take this to the judge or an arbitrator to fix it for the next holidays. The judge will appreciate that you put your child’s well-being ahead of your own and they will be displeased with any parent that uses their children as pawns over the holidays. Taking the high route can only lead to things working out better for you and your children in the long run.


If you are having difficulty coming to an agreement with your ex over what is in your children's best interest, then it really is time for you to get in touch with a lawyer who can give you some advice based on the specifics of your situation.  It is possible that lawyer can contact your ex's lawyer and they can work something out.  Perhaps they can agree on a mechanism such as parenting coordination or arbitration to work things out.  At the very least, they will be able to give you some objective advice about what is in your children's best interest and what you should be doing.  Don't get into a fight in front of your children and cause them even more stress and anxiety over this difficult time.  Got in touch with professionals to help you figure out that what is best for your children in light of your parenting situation and the extraordinary times in which we are currently living.

                    

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To get the best advice, specific to your situation, you should speak to family lawyer.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John call 416-446-5847, email him, or fill out the form below. You can use the same form to comment on this page.

  

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of the Family Law related to parenting after separation, child support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.

   

Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters for your children after a separation. 


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Could I Be Liable For Child Support to My Spouse’s Ex?

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Child support is the right of the child and the obligation of the parent.  So, the quick answer to whether one spouse has to pay the other spouse’s child support is “no". But, like most things in the law, things can be more complicated than that.

Child support is always payable by a biological or adoptive parent that has a child for 50% of the time or less.  (Where there is “shared parenting”, the amount of child support can vary from the child support tables, but usually both parents pay table child support to each other).   For more about how child support works watch the video below, and listen to this podcast.



In Ontario, getting married does not mean one spouse “owns” the other spouse’s assets nor does it mean one spouse is  responsible for the other spouse's debts - including any debts for child support.  Under Ontario Law, married spouse are still legally independent from each other.  Part 1 of Ontario’s Family Law Act covers property division on separation. For a full explanation of how that works, watch the video below, and listen to this podcast.   But to summarize, separated married spouse share in the increase in each other’s net worths, but not in the actual assets themselves.  Common-law couple have even fewer property rights.  So, if your fiancé is in debt to his ex for child support, that is not your debt. 



However, unfortunately, that may not be where it ends.  There are still ways that one spouse could end up “on the hook” for the other spouse's child support debt.

Ontario Family Law Podcast


9 - Property Division in Ontario After Marriage

10 - Child Support - Who Pays and How Much?

12 - How Step Parents and Grandparents Can Have to Pay Child Support

29 - Common Law Separation and Property Division

33 - The Law of Marriage Contracts & Cohabitation Agreements

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53 - How to Pay Less Child Support

First, with regard to property division, when married spouses separate, they share in the increase in each other's net worth. When a married spouse builds up a child support debt, that debt decreases his or her net worth.  So, on separation, that net worth is lessened by the amount of the child support debt.  Since, on separation, each spouse essentially gets half of the other spouse’s increase in net worth, any debt owed by one spouse reduces how much the other spouse will get by half of the value of that debt. 

 

Put more directly, the spouse without the child support debt ends up indirectly paying half of that child support debt because of the decrease in what the other spouse shares through Ontario’s Property Equalization process. 


But, things can even work out worse than that if the spouse who owes the child support is also the spouse whose net worth has gone up less (or not at all).   The spouse with the greater increase in net worth during the marriage owes the other spouse an “equalization payment” on separation.  If the spouse who owes child support has a lower increase in his or her net worth (either because of the child support debt or otherwise), the other spouse will have to a larger equalization payment. So, when one spouse has his or her  net worth is decreased by child support debt, how much the other spouse owes for an equalization payment owe would be increased by half the amount of that debt.  In that case, the other, “innocent”,  spouse is indirectly, paying half of that child support debt. 


These types of debt problems, which can have very unfair results, can be fixed with a marriage contract.  Watch the video below on how to use a marriage contract to avoid sharing in your spouse’s debts.  Spouse can have a contract that says one spouse’s child support debts will not affect Property Equalization if the spouse’s separate.  That means the marriage contract can legally prevent one spouse from ever being responsible for the other spouse’s child support.



There is another way one spouse’s child support for their children of a previous relationship can become a problem for his or her current spouse.                                                                                                                                                                                                                                         As noted above, child support is the obligation of parents.  However, the term “parent” can  mean more that just biological or adoptive parents.  While biological and adoptive parents always pay full table child support, other people who have acted as a parent to a child can be on the hook for child support too.  That means that a step-parents can end up owing child support to his or her spouse’s ex.  Listen to this podcast that explains more.   This does not mean the step parent shares in his or her spouse’s child support obligation.  Instead, it means that step parents can acquire their own child support obligations for their spouses’ kids from prior relationships.  As explored in this video from a high-profile new story, acting as a parent to someone else’s kids can create a child support obligation - especially where a person does it with the best motivations.




A spouse is not directly responsible for the child support owed to the other spouse’s ex. However, that “innocent” spouse could end up sharing in that debt on separation after a marriage when his or her current spouse owes back child support to a former spouse. 

                                                                                                                                                                                                                                                   A spouse who acts like a parent to a partner’s children from a previous relationship can  also end up owing child support to that partner’s ex!


Guide to the Basics of Ontario Family Law - 4th edition cover
Get_it_on_iBooks_Badge_US_1114
new kindle logo
New Kobo Logo

Get the paperback on:

amazonlogo

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback.  But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.


To get the best advice, specific to your situation, you should speak to family lawyer.  Certified Specialist in Family Law, John Schuman, is known for his concern for children in separation and divorce and has won many child custody cases.  To contact John call 416-446-5847, email him, or fill out the form below. You can use the same form to comment on this page.   


Many thousands of people get family law assistance from this website everyday.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the best ways to resolve matters for your children after a separation. 

 

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Can My College Keep Charging Me Tuition Even Though My Classes Were Cancelled Due to COVID-19?

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When the Ontario Government ordered the shutdown of universities and colleges in March due to COVID-19, many students suddenly switched from in-class to online learning.  However, for many programs, especially programs related to healthcare, applied sciences and other programs that required practicing skills, that education was put on hold entirely.  Many students in those programs are still waiting to resume their programs.  Their education has been delayed, they cannot start their careers and there are very few student jobs during the pandemic.  

 

Despite this many colleges are insisting that students continue to pay the tuition, on the original schedule.  Others are even asking for additional tuition since students are continuing their education over “extra semesters” to complete the studies that were put on hold in the spring.  That seems particularly unfair in these difficult times.  It can also be illegal and students may want to consider whether they want to confront their college before completing their program.

 

Private career colleges often have contracts with their students that set out the terms for payment of tuition.  Sometimes, these contracts also set out precisely what kind of education the college will provide. However, some colleges have contracts that state that tuition is still owed regardless of the quality of program the college provides.  Some contracts set out the terms in which a student will be entitled to a refund, or when a student can get a tuition adjustment because the student is not attending school.  Very few of these contracts contemplate situations where the college is forced to temporarily stop providing the program all together, or is not able to provide the program required for the students to get certified in their chosen profession.

Ontario Family Law Podcast

 

49 - Can Parents Get Private School Tuition Back Due to COVID-19?

Often publicly funded colleges have their own sets of rules for tuition and how they provide their programs.  Some require students to accept a specific set of terms.  Other colleges or programs follow external standards for the programs they provide, sometimes to meet accreditation criteria. 

 

In many cases, what is happening in the pandemic is far from what the contract with college contract contemplated.  Many accreditation bodies have struggled with how, or even whether, to adjust their standards due to COVID19.  Should they relax those standards because the pandemic prevents students from completing the previously required educational program? 

 

In situations where the parties to a contract cannot perform their obligations under the contract due to circumstances beyond their control, the contract is said to be “frustrated.”  Ontario’s Frustrated Contracts Act applies to contracts between colleges and students. 

 

The ordered closure of the colleges, and the continued public health orders and insurance requirements prohibiting students from completing certain aspects of their educations (such as labs, apprenticeships, and clinical placements) have prevented colleges from providing the education they promised on the timeline that they promised to provide it.  However, that was not the colleges' fault.  It was not the students’ fault either.  When the parties to a contract cannot complete the terms of the contract, that contract is said to be “frustrated” and the Frustrated Contracts Act applies. 

 

Although there have not yet been any court decisions on this issue, it is difficult to see how a college could charge additional fees for a program when a contract has been frustrated.  The Frustrated Contracts Act implies that students should get money back when the college has been forced to cancel classes, unless the college was able to find another suitable way to deliver the required education.

 

Section 3 of the Frustrated Contract Act says that payments are no longer owing for frustrated contracts.   The college contracts were frustrated when the colleges were forced to cancel classes, labs and placements due to the pandemic.   With the contract frustrated, students do not have to pay anything that they continue to owe the college under their current contract for their program. (They may owe something under a new contract to restart their education again after the shutdown.)  The same rules can apply to the college with regard to not paying anything back, even though a student’s education may have no value if the student cannot complete the requirements to be certified to enter their chosen profession. 

 

However, where students have already paid for their program but they are not receiving the education they were promised, particularly where there is some kind of contract setting that out (that can be just a promise or an advertisement that the college will give the student the opportunity to achieve certification), there may be a breach of contract and the students may be able to demand repayment.  Section 18(2) of the Consumers Protection Act allows consumers to recover any payment that exceeds the value of goods or services provided to the consumer.  So, if a student is not able to do anything at all because they cannot achieve certification, there may be a question whether what the college provides had any value at all. 

 

However, as this is a matter of contract law, the best option is for students to speak to an Education Lawyer about their rights under the contract to see if they can get any money back. 

 

Students must consider their relationship with their college, particularly colleges that play a role in the certification process and so can try to prevent a particular student from getting their professional certification.  Pushing back against the college too hard may mean that the college may be “uncooperative” in assisting the student to complete the requirements for certification.  If a student challenges the college, the student may find that he or she has to start their education over someplace else.  In that case, the student may be pursuing a claim in court for a full refund because the partial education he or she received has no real value.

 

But, starting college over from scratch can delay a student's entry into the workforce.  It may not be worth it.  Or it may be better to try to negotiate a resolution with the college. Sometimes it may be necessary for a student to get a lawyer to assist with those negotiations so the student does not get pushed around or forced into an unfair deal that does not benefit them.

 

Sometimes, colleges will not negotiate and will just pass on the unpaid tuition to a collection agency.  However, because of the terms of the Frustrated Contracts Act and the Consumer Protection Act, as set out above, the student may not actually owe any money.  Section 22(1) of Ontario Regulation 74 under the Collection and Debt Services Act says that a collection agency cannot contact someone any further if that person emails or sends registered mail to the collection agency stating: 

  1. the person disputes owing anything; and
  2. the alleged creditor (e.g. the college) or the collection agency can take the person to court.

 

Section 22 of the same Regulation says that the collection agency cannot contact the person any further if a lawyer advises the collection agency in writing that all communication must go through that lawyer. 

 

If a college were to take a student to court for unpaid tuition, or for “extra tuition” due to COVID-19, then the Frustrated Contracts Act and the Consumer Protection Act, and potentially the contract with the college, may offer defences that the student could use in court.  That could result not only in getting the alleged tuition debt erased, but perhaps also getting a tuition refund, the college having to pay some of the student’s legal fees, and in some cases the college paying the student for damages.  But, to know for sure, the student should speak to a good education lawyer. To set up a consultation with us, fill out this form.

 

If you are experiencing difficulties with a college or university, it is important to figure out what rights you may have, and how the law might help you. Contact Education Lawyer, John Schuman, by emailing him, calling 416-446-547, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation, which can be done virtually.

 

For more information about Ontario Education Law, and other education law issues, such as assistance for students with special needs and discipline such as academic sanctions, suspensions and expulsions, check out the Education Law section of this website.

 

Many thousands of people get family law assistance from this website every day.  If you have found this page useful, please share it on your social network using the Facebook, Twitter, LinkedIn and Pinterest buttons at the bottom of the page.  Please comment on this page using the comments section at the bottom to share your thoughts on the challenges students face at college or university. 


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