Rights of Access Trump Right to Breastfeed

The Globe & Mail has today reported on an interesting case out of the Ontario Supreme Court which addresses a difficult problem: what should the court do when a mother's breastfeeding regimen interferes with the other parent's time with the child?

This issue crops up with surprising frequency. In essence, infants are moored to mothers who breastfeed, and the younger the infant is the more frequent are the feedings, and the closer the infant must remain to mum. This can make access very difficult for the other parent, who not only must see his or her time with the child broken up into two- and three-hour blocks separated by one or two days, the access often has to occur with the other parent standing by. Despite this, no one in their right mind would deny a mother the right to breastfeed an infant, which tends to leave the other parent hanging.

This, at least, is the standard form of the breastfeeding dilemma, which usually resolves itself by the time the child is weaned. On rare occasions, however, a child won't be weaned by the 6 to 24 month mark (www.medicinenet.com), sometimes as a result of the mother's belief in the health benefits of long-term breastfeeding. In cases like this, the other parent's access to the child can become seriously cramped.

In Johne v. Cavannah, however, the judge found that the mother's preference for breastfeeding their 29 month old child had "a secondary impact upon [the father] in that it is used as an excuse to restrict his access." Making things worse, the mother refused to indicate when the child was going to be weaned, leaving the father in limbo.

As a result of the mother's approach, and certain provisions of Ontario's Family Law Act which equally entitles parents to custody, the judge held that the parents should move to a shared custody arrangement and that if the mother wished to continue to breastfeed, she would have to provide the father with bottles of pumped milk.

Update: 28 April 2009

A reader's comment has made me think a bit more about the implications of the Johne v. Cavannah case which deserve some additional discussion.

Fathers (this is a gender-based issue) are often quite vexed by mothers' decision to breastfeed when that decision interferes with their ability to spend time with their children. As I've already said, however, the personal inconvenience of fathers must take a backseat to mothers' reasonable decisions to breastfeed, which comes close to being a fundamental human right if it isn't one already.

Trouble comes calling when a mother continues to breastfeed a child well beyond regional weaning norms, and the father begin to wonder whether or not the mother isn't dragging things out just to prevent him from having the child over night, as opposed to pursuing a legitimate health care objective. This is the issue the court in Johne was called upon to address, but what makes Johne stand out is that the court actually concluded that the mother was intentionally delaying things to frustrate the father's time with the child.

While fathers should certainly look at Johne with hope and take succour in the knowledge that this obstruction to access can be overcome, they should not assume that mothers' right to breastfeed will be set aside for children within the usual nursing age or that it will be easy to get such an order, regardless of the child's age, without proof of the mothers' bad faith.

BC Supreme Court Issues Important Judgment

Varga v. Varga, 2009 BCSC 416 concerns, among other things, the determination of a husband's obligation to pay child support for two children of his wife's previous relationship and child support for a child of their own relationship when custody of that child was shared.

This case involves two tricky questions about child support: how child support should be calculated when custody is shared; and, how a step-parent's child support should be calculated when someone else also has a responsibility to pay child support. Normally, child support is calculated simply by referring to the Child Support Guidelines tables and looking up the amount payable at the payor's level of income. The issues in Varga involve two exceptions to this general rule which allow the court to pick an amount of child support different than what the Guidelines tables require...

1) Under s. 5 of the Guidelines, the court can order a step-parent to pay a different amount of support if there is someone else, like another biological parent, who also has a responsibility to pay for the kids. As long as the other parent is actually paying child support, the court will usually treat the step-parent's obligation as a kind of "top up" to the biological parent's obligation, and the step-parent is rarely required to pay the full table amount of child support.

2) Under s. 9 of the Guidelines, the court can order a parent to pay a different amount of support if the parents share the children's time equally or near-equally. Although there are different ways of calculating how much child support should be paid, in general the court will make the payor pay the full table amount minus the full table amount the recipient would pay; this is called the "set off" approach.

In Varga, the court decided that the set off approach for the one child of the parties' relationship wouldn't do because it would result in too great a difference in the standard of living in the child's two homes, and too great a decline from the standard of living the child enjoyed when the parties' were still together. The court ordered the husband to child support of $650 per month, a bit less than the husband's child support table obligation of $755 and a lot more than the set off amount of $376.

With respect to the other two children, the court described the task required by s. 5 of the Guidelines: the court must consider the legal duties of the biological parent and quantify the amount of support the parent should pay, and the amount of the biological parent's child support obligation should presumptively be the full amount owing under the child support tables. The problem, however, was that the child had left the wife to live full time with the father about a year and a half after the husband and wife separated. The court decided that the husband would have no child support obligation from the date the child began to live with the father, however, he would hate to pay arrears of child support accumulating between the date of separation and the date the child went to live with the father.

New Random Answers to Random Search Terms

I am able to review the search terms that lead people to my website. Every now and then, a search term is particularly unusual or suggests an answer that doesn't, and perhaps shouldn't, appear in the website. In this irregular feature, I will randomly reply to these search terms. New Random Answers will reappear at unpredictable intervals.

(Remember, the law that's being applied here is the law of British Columbia, Canada, and the laws of one jurisdiction are often very different from the laws of the next.)

>> paying for university after separation

>> child support college special expenses

>> do I still pay child support if the child is at university in another town

These questions all deal with one of the more difficult issues in family law, the payment of child support and special expenses for adult children who are studying at university or college.

The law behind this issue is simple. The Divorce Act and the Family Relations Act say that child support is payable for all kids under the age of majority, and for kids older than the age of majority of they are "unable to withdraw from the charge" of their parents. "Unable to withdraw" usually means that the child is unable to support him- or herself because of illness or disability, or because the child is engaged in post-secondary studies.

On top of the base payment of child support, parents are often also required to pay towards the cost of the children's "special and/or extraordinary expenses." Where an expense qualifies as a special expense under s. 7 of the Child Support Guidelines, both parents must contribute to paying the expense, and they contribute in proportion to their incomes. University and college costs almost always qualify as a special expense.

Here's where it can get a bit complicated.

Child Support

Normally, the table amount of child support is what gets paid for the support of an adult child.

Despite this, the court has the discretion to order that a different amount of child support should be paid, under s. 3(2)(b) of the Child Support Guidelines, if there is some objective reason why a different amount should be paid. In Hickman v. Hickman (2003 BCSC 116), the court talked about this issue at length and said that good objective reasons might include income from things like RESPs, scholarships, student loans, trust funds or inheritances, or disability payments. Whether the court will allow an exception to the tables will always depend on the circumstances of the case.

The person who receives the child support payments is usually the same person who has received them all along, the other parent. This can sometimes seem unfair, especially when the child is going to school in another city and lives in that city.

It is possible for a parent to pay child support directly to an adult child. This usally happens where the parents agree such an arrangement is appropriate; the court rarely makes orders to this effect. In general, the court will require that child support be paid to a parent as long as that parent maintains a room in his or her home for the child and the child stays there from time to time during school holidays.

Special Expenses

There are two conflicting lines of cases on the circumstances in which parents must pay the costs of post-secondary education and which costs the parents must cover.

The strict line of cases say this: post-secondary expenses should only be paid if the child is enrolled in a full-time course of study, and even then the course of study must be targetted to employment (unlike philosophy, for example my undergraduate focus).

The less uptight line of cases make post-secondary expenses payable whenever the child is enrolled in post-secondary studies, regardless of what the child is studying. Under these cases, children can drop out and return to school, or take a part-time course load or switch majors every year, and still have their expenses covered.

The costs that qualify as special expenses under the strict line of cases are limited to tuition fees, student fees and textbook costs. Other expenses may qualify under the less uptight line of cases, including for things such as residence, meal plans and the like.

The amount of the special expenses which the parents must contribute to is the net cost of these expenses, after all contributions from other sources have been applied to reduce the over all cost, such as student loans, scholarships, bursaries, fellowships, awards, grants and the like. Under the strict line of cases, children have been required to contribute earnings from their summer employment to these costs, obtain student loans, and provide proof that all available scholarships and grants have been applied for.

Additional information about child support and children's expenses, including a child support calculator and a special expenses calculator, can be found at www.bcfamilylawresource.com.

Family Relations Act Review Update

Frequent readers of www.bcfamilylawresource.com and this blog will recall the review of the Family Relations Act conducted by the Attorney General's office in 2007.

Rumour had it that the review had come to a peaceful death in the Spring of 2008 following a final public consultation about family violence and the involvement of children in the court process. Not so!

To the contrary, I have been informed that work behind the scenes continues and that the FRA Review is alive and well. Essentially, the fruit of the 2007/2008 consultations is being distilled into concrete policy options for presentation to government, in the expectation that government will select a course of action for pursuit in the Legislature once matters have calmed down after the pending provincial election.

This is very welcome news indeed. The subject matter of the FRA Review was extraordinarily broad and took a clean slate approach, unfettered by the shackles of tradition, and seemed to foreshadow the first real overhaul of family law in British Columbia since 1978. Now we must simply await the tabling of some new legislation, although I'd be surprised to see anything before 2010.

Update

I've just learned that the AG's office has published a summary [PDF format] of the public consultations. The summary is worth a read, and whomever wrote it should be commended for his or her clear writing style and skillful explanation of complex legal issues in plain language.

Supreme Court of Canada Releases Important Decision

On 19 February 2009, the Supreme Court of Canada released its judgment in Rick v. Brandsema (2009 SCC 10), a case about the duty of honesty and fair play spouses owe to each other when they are negotiating a separation agreement.

The court's judgment in this case follows the reasoning it established six years earlier in Miglin v. Miglin (2003 SCC 24), a case about separation agreements and spousal support. In Miglin, the court decided that the rules about commercial contracts shouldn't apply to separation agreements because of

"the particular ways in which separation agreements generally and spousal support arrangements specifically are vulnerable to a risk of inequitable sharing at the time of negotiation and in the future"

which largely result from the unique negotiating environment of separation agreements, an environment of

"intense personal and emotional turmoil, in which one or both parties may be particularly vulnerable."

As a result, the court held that not only must the spousal support provisions of an agreement be fair in themselves, they must be negotiated in a scrupulously fair manner, without either spouse being subject to "circumstances of oppression, pressure or other vulnerabilities."

In Rick, the court took this line of reasoning a bit further, and decided that agreements must also be negotiated with full and complete financial disclosure:

"A duty to make full and honest disclosure of all relevant financial information is required to protect the integrity of the results of negotiations undertaken in these uniquely vulnerable circumstances [of separation]. The deliberate failure to make such disclosure may render the agreeement vulnerable to judicial intervention where the result is a negotiated settlement that is substantially at variance from the objectives of the governing legislation."

The "objectives of the governing legislation" might be the objectives of a spousal support order, as set out in the Divorce Act, or it might be the presumption of an equal entitlement to share in family assets, as set out in the Family Relations Act.

To boil all this down, the cumulative effect of Miglin and Rick is that agreements must be negotiated with procedural fairness (fairness in the conduct of the negotiations) and must ultimately reflect substantive fairness (conformity with any relevant legislative goals) or court may set aside or vary an agreement:

1. The freedom of spouses to negotiate a fair settlement at the conclusion of their marriage depends on the integrity of the bargaining process.

2. The integrity of the bargaining process is at risk when a spouse pressures or manipulates the other spouse, or takes advantage of the vulnerability or weakness of the other spouse, to acheive a good deal. (Miglin)

3. The integrity of the bargaining process is at risk when a spouse fails to make full and complete financial disclosure. (Rick)

4. The integrity of the bargaining process can also be jeopardized simply by the stressful emotional circumstances of separation. (Miglin and Rick)

5. The court will intervene where the bargaining process was flawed and the terms of the agreement are at odds with the objectives of the Divorce Act or the Family Relations Act.

The court's summary is perhaps best:

"[T]he more an agreement complies with the statutory objectives, the less risk that it will be interfered with. Imposing a duty on separating spouses to provide full and honest disclosure of all assets, therefore, helps ensure that each spouse is able to assess the extent to which his or her bargain is consistent with the equitable goals in modern matrimonial legislation, as well as the extent to which he or she may be genuinely prepared to deviate from them.

"In other words, the best way to protect the finality of any negotiated agreement in family law, is to ensure both its procedural and substantive integrity in accordance with the relevant legislative scheme."

Notice to Mediate expands to Vancouver and New Westminster Supreme Court Registries

The Notice to Mediate (Family) Regulation, BC Reg 296/2007, a regulation made under the Law and Equity Act, was expanded on 1 January 2009 to include the Vancouver and New Westminster registries of the Supreme Court.

The full text of the regulation can be found at the website of the Attorney General, along with the AG's fact sheet for lawyers and mediators.

In essence, the regulation says this:

• a party may trigger a mediation by delivering a Notice to Mediate (s. 3)
• the Notice to Mediate can be delivered between 90 days after the filed of a statement of defence and 90 days before the date of trial (s. 5)
• within 14 days of delivery, the parties must agree to a mediator (s. 6)
• failing agreement, a mediator will be appointed by a “roster organization” (ss. 7, 8, 9, 10 and 11)
• the mediator will have a screening session before the first meeting (ss. 12 and 13)
• the mediation session must occur within 60 days of the appointment of the mediator but not less than 14 days before trial (s. 24)
• the parties must deliver Statements of Facts and Issues to the mediator at least 14 days before the mediation session (s. 27)
• the parties must attend the screening session and the mediation session, with or without counsel, and may send a representative to attend in their place (ss. 16, 17, 18 and 19)
• a limited form of confidentiality applies at the mediation session, read this carefully (ss. 37 and 38)
• the mediator may conduct the screening session and the mediation session as he or she thinks fit, and may terminate the mediation if he or she thinks it appropriate to do so (ss. 15 and 33)
• at the conclusion of mediation, the mediator must deliver a Certificate of Conclusion of Mediation to the parties and to the AG’s DRO office (ss. 39 and 40)
  

It is unclear how forcing someone to mediate will be effective if they won't agree to it voluntarily. Nevertheless, I do hope there is some salutary value in the regulation. Time will tell.

New Random Answers to Random Search Terms

I am able to review the search terms that lead people to my website. Every now and then, a search term is particularly unusual or suggests an answer that doesn't, and perhaps shouldn't, appear in the website. In this irregular feature, I will randomly reply to these search terms. New Random Answers will reappear at unpredictable intervals.

(Remember, the law that's being applied here is the law of British Columbia, Canada, and the laws of one jurisdiction are often very different from the laws of the next.)

>> is it adultery if you are separated

>> I have been charged with adultery now what BC law

>> dating allowed during marriage separation

These are among the most common search terms that lead people to my website. Lots of people, it appears, are worried about the legal status of their marriage and the consequences of new relationships.

Let's get one thing straight right off the bat. Adultery is not a criminal offence in Canada, and it's nothing you can be criminally "charged" for. What this user probably means is that his or her spouse claimed adultery as a ground of divorce in a divorce action. All right, so what does that mean?

Under the federal Divorce Act, there are three reasons why the court can make a divorce order: the couple have been separated for more than one year, one of spouses has committed adultery, or one spouse has treated the other with such cruelty that the marriage can't continue. Our system of divorce is also "no fault," which means that the reason for the divorce claim has no impact on how the court will deal with a support claim, the division of assets or the children's parenting arrangements. In other words, the reason for the divorce should have no impact on how the divorce unfolds, whether that reason is adultery or something else.

The definition of adultery is pretty broad. Essentially, it means having sex with someone other than your spouse, providing your spouse hasn't forgiven you for it. Technically, a new relationship after separation could count as adultery, but in general most people will claim a divorce for the reason that caused their separation nor for whatever may have happened after they separated.

Yes, it is technically adultery after you've separated, but so what? Since the court isn't allowed to handle your divorce any differently whether the divorce is based on separation or adultery, there shouldn't be any negative consequences in your divorce action, and adultery certainly doesn't attract any criminal sanctions. As a result, yes, dating is allowed after separation.