Charles Fair, Calgary Divorce Lawyer, talks about the parenting challenges when going through a divorce or separation. Partnered with the Canadian Centre for Men and Families, Fair Legal provides monthly webinars on topics dealing with criminal or family matters. Canadian Centre for Men and Families.
Watch: What To Do When Your Ex Won't Let You See Your Kids - Parenting During A Divorce
Calgary Men's Divorce Rights Lawyer Charles Fair
Canada’s divorce and family laws are governed by federal and provincial laws. Family lawyers represent their clients in court and negotiate disputes between spouses and family members. Charles Fair has been practicing Divorce and Family Law for almost 30 years. Fair Legal handles all types of divorce, custody and family legal matters to protect your children, property and you. Contact us at 1 (403) 239-2249 to schedule a confidential meeting with a member of our legal team.
Give me a call and I can put my years of experience in divorce and family law to work for you.
Charles Fair: I just wanted to say, first off, I'm really pleased to be working with the Canadian Centre for Men and Families. And I like the fact that they are focused on helping fathers go through a very difficult time in their lives, and the focus being on, not on their rights per se, but on getting them, getting fathers the assistance that is sometimes overlooked in the systems. Because men do have, sometimes, unique ways of dealing with breakup of intimate relationships. So I'm very pleased to be working with CCMF.
And I just wanted to start off with kind of a comment about the title of this webinar, because it's a little curious and it's saying Parenting When Your Ex Won't Let You See The Kids, and it's, like, well, okay, well, how can we do any parenting when the ex won't let me see my kids.
So what we're trying to do here is really address the issue of how to get into parenting, or how to restore your parenting relationship, dealing with a situation where your ex won't let you see your kids.
So I just, I wanted to give you a bit of background about myself. The first family law trial I ever did, about 25 years ago now on a custody and parenting matter, it was a five day trial and my client did not look like a very pretty client at the beginning. In fact, after day one, the judge came to me and said, actually called the lawyers into his office and said, in front of the other lawyers, Mr. Fair, your client is a ruffian. What are we doing here? Why are we wasting five days of trial on this?
And I said, your honor, with all due respect, the evidence still has to come in before you. And we went from a situation where Dad had, the mum was saying strictly no contact, and the the child had a supervisor - sorry, the child had his own lawyer and that lawyer was saying strictly supervised access. And at the end of it, we got regular, every other weekend, unsupervised access. And my client was probably quite seriously a ruffian, he had assault convictions, had spent time in jail, domestic violence and that sort of thing. But it occurred to me then, and it's always struck with me, that situations can seem really, really dire, but they are not impossible to deal with. And I think, as I reflected on why that case was successful, I realized that there were some things about it that really, really helped. And part of it was my approach as a lawyer, part of it was what the client was doing. And part of it was just the, the, the advantage of having some very favorable witnesses.
I do want to say that, you know, so success is possible. I just want to say that success is possible, but it may not be, and it certainly is not guaranteed. But even if you, if it's not guaranteed, even if you aren't successful, or success seems a long way away, there are always things that you can do, even when it's really, really dire.
I want to give you your reminder as well that what I'm saying here today is not legal advice. I don't know the specifics of your situation at all. And every case, particularly in this area of family law, every case really is different, and what might be an appropriate strategy for one person in their circumstances may very well not work out to be a good situation in somebody else's circumstances.
And my apologies for my excited dog. I'm doing this webinar from home today rather than from my office, so hopefully the dog won't interfere too much.
And anyway, okay. With that aside, as I said, parenting when one parent is cut off from the other, from the children's lives, this is probably the toughest area of family law. It's very complicated. And that's the reason why we really can't say, like, this this is how you fix your problem without really knowing a lot about it. There's a lot of complexities. The courts are just trying to do right by children. And parents are typically somewhat less than perfect. None of us are perfect and certainly children don't come with instruction manuals, and parents come not only with problems with how they parent their children, but also they have their own sets of baggage. And that goes for fathers and mothers.
And children too may have some issues as well, and that may cause problems. Such as, you know, are there problems as a result of something that's innate with the child or is the problem as a result of abuse that their suffering? How can you tell whether the child is telling the truth about abuse that they might be alleging?
I'm going to try to cover three topics today. We don't have a lot of time, and this is, as you can tell, just an immense topic.
First is the importance of assessing the situation and getting some help to do that. A second major topic is strategies. The strategies that you can do on your own, and some strategies that we can do as lawyers in the court system. So, a few things. The importance of assessing the situation and then some strategies that you can work on yourself, regardless of what happens outside the courts, and then what can the courts do?
So first off, in terms of assessing the situation, we've got to figure out where you are. You know, I talked about that trial 25 years ago, and that was a case where the Dad had supervised contact. So he wasn't quite cut out of the children's lives, but he was, certainly there was pressure to push him that way.
That's very different than a case I dealt with a few months ago where my client is in jail for a life sentence and the parenting order that was previously consented to, or consented to by his previous counsel, said no guardianship, no contact, no communication, wife can, or the mother can, move wherever she wants with the children, she doesn't have to inform him of anything, and she doesn't need his consent for passports et cetera, et cetera. So completely 100% cut out of the children's lives. My client made the very good point that the kids were older, and as they became older, they may very well want to have contact with their father - who did something very, very bad as you can imagine, because he ends up in jail on a life sentence.
And so we were in court dealing with some fall out of the family law matters dealing with property and that sort of thing, and the judge agreed with me and that, that the parenting order could be revised to allow the children to initiate contact with their father. Small, small, small change.
He still couldn't initiate contact, but at least they, the courts, the jail system would then allow the children to have contact with him if they initiated it. So even in the direst of situations, I think that there's always something that can be done.
Obviously assessing the situation is important. You know, do you even know where the children are? Have they been kidnapped? Is this something that is a recent change or is this something that is, been a problem for a long time? Is the separation from your children a result of court orders or just there's been a change and she's, the spouse is just not letting, or the other parent's just not letting you have contact with them.
Those are very different situations. If there are court orders, there needs to be an application to change those court orders. And that may be easy, and it may be difficult, depending on how long it's been since the courts have made the order.
Another issue that is part of the assessment is, are there criminal convictions? Or are there criminal charges? Is is that a complicating factor in this situation? The restraining orders or emergency protection orders in place. Are there peace bonds? What is the legal context outside the family law situation that might be having an impact on your ability to, or giving justification to the spouse to keep the the children away from the parent?
So, what can you do in the meantime? And part of it is - what are the things that you can do, and should do, even when you aren't seeing the children. And part of that involves an assessment of where you are personally. Are there things that you as a parent have done that may have contributed to this problem?
And by doing that, I'm not saying that you need to get overwrought with guilt or with blaming yourself or, you know, what's this, you know, I thought it was all the other side's problem. If, after all, isn't it my spouse that's preventing me from seeing the children? And all that may be very well true that the spouse is maybe behaving very, very badly.
The reason why I'm saying take an assessment of what your role in it may be is because the courts are going to assume that everybody's contributed to the problem. And so it's important to start off with saying, okay, well, if there's a problem, what can I do to fix it?
So, for example, you may have been representing yourself in court and the other side just knows how to push your buttons and you react very negatively and make a very poor impression in court. And you bring up lots of irrelevant things and you're criticizing the other parents and not dealing with the the issues, or the clearer issues, that the other side has raised and that sort of thing. And the judge starts making very bad orders against you. Sometimes maybe even ordering you to pay costs of the other side, which of course is making you even more and more frustrated. That's part of the assessment. Is there something that you've been doing that may have been contributing to the problem?
Another one is, take a look at your communication style with your ex. And this information is actually readily available through the parenting after separation course. So some of this is, anybody going through a high conflict divorce or separation with children is typically pointed to two resources that are on the court's website, the parenting after separation course, and parenting after separation and high conflict. And these courses really do help and they give you some insights. So this isn't particularly new.
What might be helpful though, is, you know, it's one thing to be sitting there being told, well, you know, treat your communications with your with your ex as a a business relationship. Stay focused on the issues and, you know, don't insult them, you know, don't use profanity, and all that sort of thing. And so the idea is that it's gonna reduce the level of conflict. And you take the course, you go home, and then you get that nasty message from the the ex. And your stomach is in knots. And you pick up your phone, you'd see the text message that you got and you forget everything that you learned in the class and you just instinctively did what you've always done. And just unloaded.
And you may not realize that it's a problem. And sometimes the problem is not so much that you're saying things in a bad way, but maybe it's just, you're not dealing with what, the right approach. And the right approach might be to simply ignore the communication. The right approach might be to ignore some of it and deal with other parts of it.
And that's where sometimes it can really help to get a third party to look at it and say, okay, you know, how could I do this better? How could I communicate better? Sometimes that might mean - and that might be time consuming and whatever.
I had a client that had months and months of text messages with his wife, and she was out of the country visiting family during this time, and was really deciding that she was going to separate. And so there was some ambivalence about where they were at, and she came back and filed criminal charges and made all sorts of allegations against my client.
And one of the allegations was that he was being abusive in his communications with her. So I looked at dozens and dozens, if not hundreds, of text messages. There wasn't a single insult. There wasn't any single use of profanity. There was lots of asking questions and not getting any answers.
And so that raises a really tough question. Okay, so why is it that this person is going saying all of this is abusive. Well, it may be that they've got the problem and it's not you. Okay. So how do you deal with that? And I think, even in that situation, there are ways to deal with a situation where somebody is overreacting or reacting in a weird way to just normal communication. What's going on with them? What might be causing this kind of reaction? Now I'm not gonna start throwing around labels like the ex has got, you know, this personality disorder or that personality disorder. I just, I don't have the competence for that. Or the training or anything like that.
But there is a useful book that doesn't deal with family things in particular, but it deals with negotiating strategy. It's called Never Split The Difference: How To Negotiate If Your Life Depends On It. That book is written by an FBI hostage negotiator. And so you can say, okay, well, hostage-taking is kind of like a parenting situation where an ex is keeping the kids from you, like he or she is keeping the kids hostage.
What's interesting about this book Never Split The Difference is how you communicate to the other side, to the person who's the hostage-taker. You can't split the difference, obviously. What, you take half the hostages, I take the other half, that doesn't make any sense.
Sometimes that works with children that, you know, maybe one child goes with one parent and the other goes with the other parent, but that's really, really family dependent. So splitting the difference on something like, you know, a parenting hostage-taking situation doesn't make a whole lot of sense. So here you got an FBI hostage negotiator saying there is a better way to communicate.
And it really starts with trying to figure out where the other side's coming from. What are their fears? What's their biggest concern? You know, as hostage takers, are they concerned with that if they step outside the door they're going to get shot? Or are they concerned about having to go to jail? Or are they just concerned that they, you know, they just want somebody to know that they care, or something like that. I mean, who knows, you know? And that's part of the reason why you actually want to listen to, and figure out what's going on.
And, in doing that, you have to be aware where your own issues might be triggering your inability to figure out where the other side is coming from. So I think this is an important first step you can do. You know, I had another case where my client just was incredibly frustrated with the other side, with what the mother of his child was doing. Just to give you an example. The allegation was that my client has put his four year old daughter in a cage. You know, and that was the abuse allegation that was being made against him.
And he explained to me, yeah - in a rabbit cage, that's what it was. He says, yeah, we have a backyard, we have a rabbit, I put this fence so the rabbit can hop around without hopping away. And then I put my child inside this this fenced off area. Well, you know, that's really different than this person is sticking a child in a cage.
Anyways, he was very, very frustrated because it seemed like almost, you know, he does something good with his child and the ex uses this to keep the child from him. He wasn't seeing the child at all. Anything that would happen, he would get very frustrated. And that level of frustration made it difficult for him to make any kind of a good decision. And they would frequently lose control, oftentimes in presence of the opposing counsel and that just made it worse and worse.
I said, well, why don't you take out a piece of paper and make a list of all of the good qualities that your ex has. He couldn't come up with a single good quality. And I think that that is, it sounds like an odd exercise, but it's partly a helpful exercise because if you can build on somebody's good qualities, and the court sees that you are recognizing their good qualities, you are more likely than not to get somewhere.
Now, this isn't one of those examples that, you know, one size doesn't fit all with this stuff. It might work in your situation. It might not. But trying to get some kind of understanding of where your ex is coming from is, I think, very helpful.
If there's things that you can do to improve your emotional regulation skills, and that's important as you can see. You know, somebody who's losing their temper in court, that's clearly going to go badly for them because the court is going to assume if they're losing their temporary in court, if they're jumping up and interrupting the other side or interrupting their lawyer, or worse yet, interrupting the judge, that kind of thing is going to make it more likely than not that the court is going to rule against them in trying to get their application - if they want to see the kids, the court's going to keep saying no, if that's the way they're reacting.
So it's important to work on improving your emotional regulation skills. And that's something that, you know, it's no shame to go get some help on this. You know, it took me a long time to figure this stuff out - that there was things that would trigger me and, you know, people could push my buttons. It's much more difficult now. It's something, it's a learned skill.
The other thing that's important to do is keep a record of everything that's going on. You know, and this is important that - you know, if you have records of communication or records of Facebook posts that the other side has done or, you know, bad things that the ex has done. It's important to preserve that evidence as much as possible, making notes of things that they've done to interfere with your relationship with your child. It's important to gather as much of that evidence as possible.
But you've got to be careful when you go to use it. Don't just dump all over. You need to make sure that you have somebody looking at it to say, okay, which are the critical issues? You know, if somebody is standing in the middle of the street and shoots somebody and the witnesses are focused on what the shooter was wearing and not on the fact that he shot somebody, that's, that's not a - you know, what the shooter was wearing is probably irrelevant. Might be relevant, but probably not. Just an example that you gotta figure out - there's a hierarchy of evidence.
But you gather it all and then you get some help sorting it out. And then what you want to do is, don't start publishing this stuff on the internet. You know, it'd be an advantage to probably be very, very circumspect about what you are publishing on the internet, on social media. Just be careful because the other side is probably paying attention and you say anything nasty and it can and will be used against you. Not just in the court of law, but also in terms of keeping their kids alienated from you. As tempting as it is to say the truth out there on social media, I'd just be really careful about it.
And that goes, the other thing to say is, going back to the issue of - if there is an issue with, if there's a no communication order, then don't violate it. That's really important. I said that in a previous podcast here. If there's an order saying you can't communicate with the ex, don't violate it. If it's so broad that you can't even communicate with your ex through a lawyer, then go get that order changed. That's not a difficult change to convince the court to do, usually. Because you can say, look, there's gotta be some way of communicating. Okay?
Now, when it comes to, in terms of legal strategies, the first thing, it depends on whether there's an existing court order or not. Because, if there is an existing court order, you can't keep running back to court unless there's a material change in circumstances that allows you to do that. And what constitutes a material change in circumstances? Well you could say, well, the children are now older. Yeah, but are they enough older? There could be a new evidence that you've uncovered that you didn't have before. You may have had some substance abuse issues that you've now dealt with. You may have had criminal convictions and they've now been dealt with. And those may be regarded as a material change.
One of the reasons why it's important to get legal advice is because, if you've been representing yourself, and an order is made, it may be much easier to appeal it than to try to change it down the road. But there's usually a very short window for filing an appeal. So, if you don't like an order that's been made, and it's, you know, you need to see a lawyer within days. Don't put it off for weeks and weeks. Typically, an appeal period for most things is one month. Some things, it's shorter. So it's important to get legal advice as soon as possible on that, because an appeal, if it's a real clear error, like the judge just didn't understand the evidence that was in front of them, and I've seen that in one of my recent cases, I think that an appeal would have been a much easier route than trying to go back and argue for a change later on.
Now, the other thing that the court can do is order some professional assessments. And those professional assessments can either be in terms of evaluating what's going on - so getting a psychological assessment on one or both parents, doing a home assessment, a custody and access assessment. These assessments can be very, very expensive and, depending on the situation, they may be helpful, they may not be.
The other kind of professional intervention that the courts can order is a therapeutic intervention. And that is where, okay, there's been a problem. The kids have been cut off from their parent. How do we fix this? You know, because that's not a thing that's a long-term good idea, to keep kids away from both of their parents. So how do we fix it? And, you know, if the conditions are right, let's see what we can do. So that involves maybe some assessment of the the parent. It may involve some supervised parenting time with a professional, where the professional is observing the interaction between the parent and the child and saying, okay - and then is able to report back to the court saying, yes, the the interactions were fine. There should be no reason why this parent shouldn't get more access. It doesn't necessarily need to be supervised by a professional. Maybe it should be supervised in some other way.
The goal in these situations where there's been a real serious cutting off of parenting time. And there's been some serious allegations of wrongdoing. And that's all gotten resolved. And now we want to get the situation fixed and get the child or children back with their parent. The courts are generally speaking, going to go on a phased-in approach where they're going to say, okay, well, let's start with a little bit and see how that goes. If it goes well, let's do a little bit more. If that goes well, then do a little bit more. And ultimately using that approach, you may end up with getting to what the courts might view as normal for your situation. Or for people in a similar situation. Which might be every other weekend and that sort of thing. Or it might be full 50/50 parenting with the other parent. All of that really depends on the situation.
The courts really do want to avoid making a really drastic parenting change where, you know, all of a sudden, you know, the child hasn't seen their parent for, you know, a year and a half or two years, and all of a sudden they're dumped off with this person. Depending on the age of the child, the child might hardly know their parent, and all of a sudden they've dumped off with this complete stranger for overnight weekends and, you know, a month in the summers. That's not likely to happen if it's that kind of situation. That goes back to the importance of assessing what's going on in the first place. Where are we at? Because where we move forward to, it may have to be in a phased-in situation.
But I also say sometimes, you know, if the ex is not seeing your kids because the ex is a danger to the kids, then clearly in that situation you need to step in and do something. So I was representing a father that was seriously concerned that his wife was so dangerous with children, he actually had a a tape recording of his wife banging a butcher knife on the counter while threatening to, or promising, actually, to cut the child's ear off, cut the child's tongue out while they're sleeping. And, you know, the child is in tears and going: "Mummy, Mummy, I promise it won't happen again." and Mom was just saying, no, it's too late. And, you know, we have a tape of this. So he was really concerned that if he just did the usual along and apply, you know, for custody of my kids, that there was going to be some real harm happening. So we went into court and we got an order without notice. We went in there with police assistance and took the children, and got them into my client's care.
So that's why I say, assessing that, you know, that's a huge difference from, you know, okay, you know, my client's had some issues with alcohol and drug abuse. He's been in rehab. He's got a consistent record of clean drug cases. He's got a good relationship with the children. No, he doesn't need supervised time with his kids. And the courts, they're going to bend over backwards to make that happen. And he's going to get a much more regular time.
So you gotta know the situation. And in between those extremes, it's sometimes really, really tough to know what the best plan of action is. But trying to figure it out on your own is really tough because you're not objective. You're in too close. You can't see the forest for the trees. And that's going to hurt you when you go into court. Okay.
So that's kind of a big picture look at the problem. Maybe at this point we can open it up to some questions. I've been, kind of, talking nonstop and hopefully there's been some helpful comments in there. Maybe that's sparked off some questions. Where are we at with the questions Melanie?
Melanie Seneviratne: Hey Charles. You can hear me, right?
Charles Fair: Yes. Yeah, I can hear you.
Melanie Seneviratne: Awesome. So we've got a few questions. So I will read the first one. It's a little bit situational. So the first question is: "I have not seen my daughter in over two years. It started out with my ex suspending visitation because of COVID, and now has evolved to our - sorry, evolved that our daughter does not want to see me, with no valid reasons given. No court orders or criminal records involved. Our daughter will be 16 in July. Is there anything the courts can do, given her age?"
Charles Fair: Yeah, this is really tough because an older child, their views are going to be considered, but how do we know what the daughter's views are and that's maybe complicated. And that's a really tough situation.
There are things that can be done. And you can go make a court application. And it really depends on what evidence you have of wrongdoing by the the ex in that situation. And, really, if you can find the linchpin, the piece that's really going to be significant, that you can prove. And then you can leverage that to saying, look, yes, you say to the court, then yes, I recognize that that my daughter is 16. You know, maybe the daughter has special needs. You know, maybe the daughter is, maybe you've got evidence - and again, this can't be speculative, you've got to have some kind of evidence - you can say, like, you know, there's a reason why she's living in fear that if she sees me something really, really bad is going to happen.
You know, again, that's, I just don't know all the details, right? And that's really one of those things where you say you've got to take a good, hard look at the situation. And maybe it means knowing how to communicate, and finding a way to communicate, to the daughter in a way that doesn't push the daughter away, or feel like she is being dragged into a dispute that's really with your ex. So that's where it can help to get a professional counselor involved to see what can be done. If you've got any kind of open communication.
And sometimes it may mean communicating, even if you're not getting the response you want, right? Going back to those communications between spouses that sometimes can be problematic. You know, if you're sending text messages to your daughter and you're just getting snarky answers and response, well, maybe take them to a child psychologist and say, you know, can I be communicating in a way that's going to open up, you know, that my daughter feels that she can in fact communicate with me and it it'll be safe. There's various things, I don't know if that helps or not.
By the way, this really is a tough area of law. You know, I got to say, I don't want it to say that there is, success is guaranteed on this. I just can't as a lawyer.
But I think that there's always things that you can do. And maybe, you know, sometimes you just have to wait until the child is older and the ex just can't get involved. And that may be really hard. You know, but that's, yeah. Okay. Next question.
Melanie Seneviratne: Sure. This one actually just, kind of, follows up to that question. So is there an actual age at which a child can decide for themselves to not visit a parent?
Charles Fair: You know, the rule of thumb that you'll hear often is twelve years. A twelve-year-old gets to say where they want to live and who they want to have contact with.
However, I have seen orders that ignore those wishes from an older child. And I've seen the child's wishes as young as five be taken into account. Whether that's right in the situation, or wrong, you know, I have my views on that. You know, it really is unfair to some extent to put a child to that question. And that's one of the strategic decisions that you can make, I suppose, is do we try to get a children's lawyer appointed? So the children's lawyer can go and talk to their client and find out what they want. And they can do that whether the child is 16 or whether the child is, is 5. If the child can communicate, then they speak their wishes to the lawyer.
But that raises a - there's some practical problems. How do you know whether the child is actually saying what they truly wish or whether they're just siding with the parent who they think is going to win? Or the parent that they last saw? Or the parent who's coached them on what to say? Or why is it the child's decision in any situation, regardless of the age?
Why are we putting a 12 year old or a 13 year old to the task of deciding between their parents? So these are some, this is a tough issue. And I'm not convinced that the courts always get it right. And the courts are not necessarily consistent with this. As I said, courts consider the wishes of - and, you know, when I say, like, you know, and in the case I'm thinking of, I was actually representing Mom, and I was keeping Dad away from, I was maintaining the no contact. So I just want to say that there's - I've worked on these files from both sides. As I said, I had a parent, a father, that got sole custody of his children from a crazy ex, and I've also represented moms keeping children away from possibly dangerous fathers.
So, in this case, you know, the child was saying, allegedly saying, that, well, what was happening was that the judge was saying, I want to hear what this
child is saying. I want the child, I want to be hearing it straight from the child, not through Mom. Well, the issue was, in my view, I don't think it was appropriate to be asking the child, because of the child's age. The judge disagreed.
Does that help? Are you there?
Melanie Seneviratne: It helps if I take you off mute before I start talking.
Charles Fair: Okay [laughs].
Melanie Seneviratne: Here's another question. How can a mother harm her children by cutting the communication off from the father? Does the system consider the mental health issues of children and fathers? Many men, sorry, many men commit suicide due to family issues and the children, and it screwed up their life. Does the system take responsibility for this?
Charles Fair: Okay. So, unfortunately, the short answer is that the system, the legal system, doesn't take responsibility for it because the judicial, the legal system is really trying to resolve disputes, and in a way that is effective. But they recognize that it's an imperfect system. And the courts recognize that they might get it wrong, but they are trying to get it right.
Now, is it in the best interests for the child to be cut off from their parent? I typically don't think so. I do child protection work where I represent parents whose children are being taken away from them by the state, by the government, because I think that that children are better off knowing their parents as they are, unless there's real, real, real danger.
And I think that one of the problems that I see is that our concept of harm and danger has been so watered down that it's almost like it doesn't take much to justify, you know, like - you know, if one parent is using some profanity around the children, does that mean that the children shouldn't be around that parent? I would say that shouldn't be enough. But unfortunately the courts will sometimes hang their hat on that kind of behavior and say, well, you know, that's harmful for the child to be around that kind of parenting.
So, there was a few questions in there. How can a parent do that? Unfortunately they do. And that's partly, going back to that assessment, I mean, how do you know whether - why is the spouse, why is the other parent doing this? Are they doing it because they have a legitimate fear? They have a legitimate concern was with your behavior that you just don't see? Do they have a fear that is made up? Are they triggering because of baggage in their own history, their own, you know, are they are they projecting onto you issues that they have? Are they just being vindictive?
You know, you hurt me. You had an affair. I won't dig, you know, I'm not, I'm not saying that having an affair is okay. But sometimes the law doesn't care about those, whether you have an affair or not. So you have an affair because, well, we won't get into the reasons why you have an affair, but you have an affair and now you've got a spouse who's just being vindictive. And so she's not going to want to let you see the kids.
Or maybe the the parent is cutting you off from the kids, and someone has had the affair, and she wants to recreate this happy life where she doesn't have to bother with, you know, sending the kids back and forth. You know, that somehow has interfered with her image of the perfect family of you know, a Mom and a Dad and the kids and everybody's happy. She doesn't want to be reminded of oh, yeah, there was a failed relationship in there.
Or, you know, this is where, you know, the answer to these questions really helps determine what the answer is. You know, one thing that I think can happen is, the parent who's keeping the kids is making false allegations because they're really afraid that if anybody looks really closely that their parenting, they feel very insecure about their parenting. Their own parenting abilities. And they're afraid that if anybody looks at their own parenting abilities, the kids are going to be taken away from them. So one way to prevent that from happening is lash out at the other parent and say they're doing all sorts of stuff and cut the kids off.
The bottom line is, you got to figure out what's going on. You know, and that requires some self-awareness, and some awareness of what's going on, and maybe it involves getting the viewpoints of family members or friends who know what's going on. And, you know, this is, that's what makes this a really tough area. You just don't know what's going on.
Okay. Next question.
Melanie Seneviratne: Okay. Next question is in regards to when you made the comment about the hostage negotiator, and figuring out what the other side wants, how does one deal with the common theme that the other side simply wants to destroy and hurt you for reasons of vindictiveness and retribution?
Charles Fair: Well, this is - that may or may not be what's going on. There's a conclusion as to what their motives are. Here's a funny thing about what humans do. We are more likely going to ascribe to the other person - and this is not just a parenting thing, this is just whatever - you have a dispute with somebody. You are more likely to assume that the person who's doing something to you that's mean has got an evil motive. Otherwise, they wouldn't do it. Right? And that's the way we get through life. We say, oh, that person is being mean to me. I don't like what they've done. They're being mean to me.
Sorry. I'm just trying to say, this is a really broad issue and, again, I'm not a professional, but what happens then if you do something to the other side that could be perceived as being mean to them? Well, I didn't mean to do it. So we tend to let ourselves off the hook. We say we didn't have a mean intent or a bad intent. That was an accident. Or, oh, I didn't realize, or whatever. And that's across the board.
And so, when you make the - you have to be very careful when you're saying, okay, this other person, this hostage-taker is just being vindictive. I don't know. Is that what's going on? And the key, if you go get that book and read it, the key is you've got to start by listening and seeing it from their perspective, which is really, really hard when their perspective is filled with vitriol, like accusations against you. That's why it really helps to have a lawyer involved who can actually take a look at that without an emotional reaction. Because, you know, the attacks aren't directed in most cases to the lawyer. Sometimes they are. But that's another story.
Now, in which case, just to say, just to give you an idea. When a lawyer on the other side of one of my cases starts getting angry and wound up and starts attacking me personally, I actually calm down because I realize they must not have a very good case if they've got to rely on that kind of behavior to get anywhere with me.
So, you know, that's why I say, you have to evaluate the situation very carefully.
I've got funny stories about that too, but, okay.
Melanie Seneviratne: Okay. This is kind of a situational one. Access is ordered to three children, but he is denying it. Judge's seized, but intends to withdraw, and will not allow me to make an emergency or other application ('m self-represented). What can be done?
Charles Fair: So, read that to me, so let me understand this. So they, you've got an order that's giving you parenting time that's not being followed? Sorry, read the question again.
Melanie Seneviratne: Access is ordered to three children, but he is denying it. Judge's seized, but intends to withdraw, and will not allow me to make an emergency or other application. What can be done?
Charles Fair: Okay. All right. So this is a situation where you probably dug yourself into a really deep hole. And and I say that because there's some things that are going on there. So, the last thing you said is that the judge is not willing to make any emergency application. That comes when too many applications have been made and they've been unsuccessful. And that's where your approach has been - you're so frustrated that you keep going into court and not getting anywhere and raising all sorts of irrelevant stuff and whatever, and the court says, okay, we're not going to let you bring any application unless you get leave first. And I don't even want to deal with this anymore. And it may be that this judge is, and I don't know, it may be that the judge is saying, look, I shouldn't be the one to decide this because clearly, you know, there's some kind of situation going on here.
The other thing that I want to say is it also depends on who's in the court. That one of the issues that has arisen because of COVID is that you can't get into court. In the Court of Queen's Bench, without going first to family docket court, you can't just bring your emergency application. At least that's what it looks like from, kind of, on the surface. The courts do allow emergency applications, but you have to go through a special application process to get around that family docket court gate, shall we say.
So I don't know whether the problem is whether there's been an order that you can't bring any further proceedings, because you've been found to be a vexatious litigant or something like that. Or whether it's a procedural thing and you may not just know what the procedures are.
Now, if you are a vexatious litigant, if that order has been made against you, it really, really helps to retain a lawyer. All of that time and effort and emotional energy that has been used up getting nowhere, digging this great big hole, is probably better spent earning some money and paying a lawyer to take a look at the problem.
Because you may have a very good case. And there may be some key points that the court needs to see. But you might be having trouble putting it together in a way that the courts will actually see it because they're overwhelmed, the court is overwhelmed, by other stuff that you're raising that you feel is important, but the court doesn't agree.
The court won't agree because, for various reasons, that's the way lawyers think sometimes, so in that case, that's where you need somebody to take a look at it and say, okay, this case you don't have the evidence. This case you do have the evidence, but it's too late, the court's not going to reopen it, you need something else. You need to get a legal opinion, at the very least.
And if at the end of that assessment of what the merits of your case are, is that the lawyer says, yeah, we can get in there, but we're going to have to get around this vexatious litigant situation, then what happens is the lawyer goes into court, makes the application for permission to bring the application, and in the course of bringing that application, the lawyer is going to say something like, my client acknowledges that he or she has filed a number of applications that have been, quite frankly, vexatious, he or she has now retained me and we've been assessing the situation. And, as an officer of the court, it appears to me that there's an issue that requires litigation. That is an argument that's likely to be successful. It requires letting the lawyer make it. And that means you got to let go and let the lawyer assess the case.
Melanie Seneviratne: Okay. In regards to your example earlier about the rabbit cage, obviously any reasonable person can recognize the manipulative mis-characterization of a simple, fun interaction between a fun-loving father and his child. Why does the court not call out this sort of blatantly improper presentation of a common sort of play?
Charles Fair: I'll tell you what happened in that case. That allegation was made in a court application made by - the lawyer for the Mom in that case had a habit of attaching exhibits to exist, attaching affidavits, previous affidavits, as exhibits to current affidavits, and attaching this and that. And he ended up with, you know, I think by the time I was retained for that first application, there was something like a thousand pages.
The case was heard at the end of the day, around four o'clock as I recall, by a judge who, this was a regional court outside of Toronto. I practice - this was a long time, I was doing this in a suburban community just outside of Toronto. There were three judges. And the first judge saw a thousand pages and said, you know, I'm just going to play it safe here. I'm going to suspend access. Okay. There's enough, i, you know, I'm not going to make a decision. I don't have time to make a decision. I don't have time to read this stuff. I've heard - there's enough stuff. And obviously the rabbit cage thing wasn't the only allegation.
Remember, my client's anger probably contributed to it, but probably so did the the history of paranoid schizophrenia in the Mom's family members. So there was a lot of moving parts.
Anyways, the first judge suspends access. And then it goes back in front of judge number two. Judge number two had developed a reputation sadly of finding any possible way to avoid making a decision. And this had come to the attention of the regional judges manager, or whatever their official title is in Ontario, I can't remember now it was so long ago. And the court clerks were directed that if judge number two had adjourned the matter, it had to stay in front of that judge. Because the courts were saying, we have to get this judge to make a decision.
And I got to tell you, after my client blew through $20,000 of legal fees, and I got absolutely nowhere with judge number two, and I still remember to this day going on Christmas vacation with this knot in my stomach. How could I blow through $20,000 worth of my client's legal fees and get zero result? And my client said to me, I'm sorry, I've just run out of money. So he goes back to judge number three. Judge number three - the first two judges were male, I don't think their gender has a - judge number three had been involved with the case before, so she was familiar with it. She had made the, you know, some of this order or whatever.
The client goes in, without notice, into court because he doesn't know what else to do. And he says to judge number three, and the Mom's lawyer is there because he's there every day before these three judges, and he describes, without any kind of affidavit or anything, as I understand it, and he says what's going on, and judge number three gives him access, whereupon Mom appeals and, you know, the whole thing starts over and over again.
So I don't know. The question - I can't remember what the question was. Oh, the rabbit cage situation. Why wouldn't the court see through it? Well, that's why. Because the strategy in that case, with this particular lawyer, was pile on pile on pile on so nobody can actually get to the truth of the matter.
And, and I got to say that the courts have, kind of, wisened up to that strategy. And you now are not allowed to attach affidavits as exhibits. There's page limits in family law matters. Your main affidavit can't be, you know, more than five pages. In that situation, one day, on the morning of court, you know, it's 7:30, 8 o'clock in the morning. We've got court that day. And I receive a 62-page affidavit on my fax machine. Okay? So those kinds of strategies are not allowed anymore by the courts. That doesn't mean that people don't do them.
But there are ways of dealing with it because you can actually point out to the judge, the judge shouldn't be having regard to any of it given the nature of how this thing was [inaudible].
Melanie Seneviratne: Okay. Next question. Have you dealt with mobility situations? My ex took the kids, ages six and five. Been there since last September. I've been documenting unwarranted, restrictive gatekeeping, and parental alienation. Do the courts consider alienating behaviors?
Charles Fair: So one of the big hurdles that you have to face is, it sounds like the ex has taken the kids and, if it's been six months, you're in real dangerous territory because they're winning by default. And they're winning by default because a new life has been established. And remember that the court is not really deciding between the parents, who's the better parent. You know, sometimes you have to, but they're trying to do what's in the best interest of the children. And if the children have become settled in a new life, you've got to have some really good grounds to uproot them. And they've got to be good grounds from a lawyer's perspective, not, you know - yeah, I saw that guy shoot him, but, you know, did you see the shoes he was wearing? You know, like, why he's pink running shoes, you know? So you gotta be really careful about the hierarchy of evidence that you have, like, the hierarchy is what I'm calling it. You gotta be able to figure out what's important. What's not important. What's a court gonna care about. Because that's really what's important to me. What's a court going to care about. And you've got to get rid of the other stuff.
Or you got to decide what stuff is - you know, here's a really good example of a mistake that people often make is they'll make a statement in an affidavit and, even though it's not likely to be disputed by the other side, they'll attach an exhibit to prove the statement they made. And you go, well, what was wrong with that? They made a statement. They've added proof. But the missing piece there is, the other side wasn't likely to dispute it.
And the effect of doing that is saying, I've made this statement, but I'm afraid you're not going to believe me. So I'm going to have to make it, I'm going to have to prove to you that this little statement that really has no big significance in the grand scheme of things, you need to believe me on this little thing. So I'm going to prove it by attaching an exhibit.
A much better strategy is to make the statement and expect that the judge is going to treat your word as being truthful, because after all affidavit is a statement that've sworn to be telling the truth. So treat it like you are telling the truth. If the other side contests that issue or disputes it and says that you're lying, that's when you pull out your proof. But if they don't dispute it, now you haven't wasted the time and the size of the court file with a document that that was proving something that really didn't need to be proved because your word was sufficient.
So, and again, that sounds like a really - how are you supposed to know that? Well, that's where getting an assessment from a lawyer really helps. And unfortunately not all lawyers know that, or they know that if you're overwhelm, if you can figure out a way to put enough stuff in front of the judge, like that lawyer with 62 page affidavit at 7:30 in the morning, you know, that's a strategy. It's not a strategy that I think is a good strategy because, you know - and there's ways of dealing with it.
There's all sorts of rules of civil procedure that can be brought to play, but you've got to know what they are and know how to use them and when to use them, and when the best place, when the best time to use them is, and all of that is a tricky exercise. Okay.
Melanie Seneviratne: Okay. Are there options of what court you go to?
Charles Fair: So there are options in some cases. And there aren't options in other cases. The problem arises - and you say, well, why are there two courts dealing with family law matters?
And the reason is because divorce is a federal manner, but marriage and property is a provincial matter. So that's a division of powers matter that was decided back in 1867, or whatever, when they're leading up to Confederation, how are we going to divvy up who gets what powers? And so the federal government got divorce, provincial governments got marriage, and, you know, then you say, well, how does that make any sense? Well, you know, made sense given the - there's a history behind it. And it has to do with church and state, and the state of religion, and English Canada and French Canada, and all of that. An interesting history, but that's obviously way beyond what we need to cover here.
But because of that division - so in the Divorce Act, the Divorce Act includes dealing with children, and child support, and spousal support, but it can't deal with property. Why can't it deal with property? Well, just like when they
divvied up, you know, marriage and divorce and gave marriage to the provinces, they said provinces are responsible for property and civil rights.
So property is a provincial matter. The federal court, the federal Divorce Act has no constitutional authority. The federal government doesn't have any constitutional authority to make any rules or anything about property.
Okay. So, if you are legally married, then that means that you can go into the Court of Queen's Bench which I think there are some advantages to, and there's advantages and disadvantages of each court, and I don't want to get into that at this point. But, generally speaking - I'm not going to say anything.
But in the provincial, you can still go into provincial court, even if you're legally married, because maybe you don't want to get divorced, maybe you just want to get child support, or maybe just want to get a parenting order stuff sorted out, and you just want to leave the divorce because, maybe for religious reasons, you don't want a divorce. Or you think maybe there's a hope that, after things settle down, maybe you guys will get back together, and whatever. So you can go into provincial court.
Provincial court tends to be a little simpler in terms of its procedures, it's a little more accessible to people who are self-represented. So there's an appeal to going into and to provincial court. But if you've got, if you want a divorce, well, then you have to be in the Court of Queen's Bench.
Now the interesting issue is, what happens if you have a property division issue, and children, but you're not legally married? And that's where there's a bizarre situation that's arisen because of COVID, because getting into court on an application under the Family Law Act dealing with children has to go through the family docket process. You can't even file an application to get a parenting order - regardless of which side you're on, whether it's to keep the kids or get access to the kids or whatever, you can't even file the application without going through family docket court. But you can file a statement of claim for division of family property, even though the parties aren't married, that's because the provincial government has extended property division to non-married spouses.
So now you've got a situation where you have a - I've got a case going on right now where we have a statement of claim for division of family property in the Court of Queen's Bench, and there is a dispute between the lawyers as to which a court to deal with the parenting matters.
And there's a procedural hiccup because of the COVID rules they've set up this family docket court that make it - that are an impediment to actually applying the application, at which point it's already in play, because you can't start it with a statement of claim, you have to start it by an application which has a fixed court date.
In provincial court, there's no claim process that doesn't have a fixed date, so you get into court quicker, so to speak, possibly, in provincial court. So you might end up in two courts. So that's really - hopefully that didn't get too complicated. Sorry.
It's a tough issue. And it can be confusing if you're not a lawyer. It's confusing if you are a lawyer!
Melanie Seneviratne: For sure. We only have time for one or two more questions. Unfortunately, we're not able to get through them all. Does the court give due and proper consideration to the fact that a parent has enormous financial incentives to get and maintain primary parenting?
Charles Fair: Yeah. You know, that goes to - you might see it as a motive. I actually tried to raise that argument because my client was convinced that was going on, and the court went out of its way to say that that wasn't what was going on, even though they really had no evidence, but that's neither here nor there.
The important thing when it comes to financial matters and parenting time, or custody and access, is those two issues are not supposed to be connected. So you have to sort out where the kids are going to be living, who's going to be caring for the kids, whether it's going to be shared custody, or whether it's going to be primarily with one parent or the other. And once you've determined that decision in the best interest of the kids, then the support falls from that.
Now, if somebody is not paying support, that doesn't allow you to withhold the children from the non-paying party, right? Similarly, you can't use the money to say, well, I'm not going to pay you support if you're not letting me see the kids. The kids are not for sale from either perspective.
So, yes, there can be a huge financial motivation, but the courts are gonna - I raised, by the way, I raised that in court because it was really the only last possible straw to grasp. Okay? And, even that one didn't work. So, you don't want to make that accusation unless you've got lots more stuff on your side.
Melanie Seneviratne: Okay. Next question. Why are there such strong enforcements for support and no matching enforcements for parenting time?
Charles Fair: Because it's easy. Because, you know, showing up with the police to enforce a court order for children is something that the courts are really reluctant to do. Because, think about it, you want the children to grow up viewing police as being there to protect them. To uphold law and order. You don't want children to be seeing the police as somebody that comes and rips them from the arms of the parent that they really love to be with.
So the courts do make police enforcement clauses, but they're hoping like hell that they never get exercised. And that's where you have a problem.
Now. So then the question is, well, what do you do about it? Right? And that's where the court can make financial orders against the spouse as violating orders.
But even there, the court's got a problem because, if they make a punitive financial order against a parents who's withholding the children, then isn't the real risk then that that paremt won't have sufficient resources to feed the children? And so it's harming the children. You're trying to make an order that's not going to harm children. You're trying to make an order that's in the best interest of the children.
Do you see why, when I started this, this is a very, very difficult area of law because these are - it's really hard to find the right path. And that's why sometimes what you'll see is the judge going, look, there is no merit to this at all. I'm switching custody, because then, if you need the police to go in, you do the switch, and that impact of the police is minimal. It's once. Once and done. And now the kids can get on with their life. Which is what happened in that case where they went in with the police assistance. Got the kids out of that situation. The kids stopped having nightmares. They stopped having to sleep with a nightlight. The lights on. They started doing better in school. All sorts of things. Right?
Now. I could go on. It's a really tough thing. How do you enforce a parenting order? And, you know, the courts recognize that sometimes a parent can be in the wrong, and the delay really hurts the children. And that's why it's so important to get your ducks in a row and get the evidence lined up that you need, and get it in front of a judge, and get the right decision made in the first place.
If you've got evidence that the withholding parent is a real danger, then that obviously helps to get a higher level of enforcement.
As to child support being easy, yeah, it's 'cause it's, you know, it doesn't take much to file something and get your license taken. Or your passport taken.
Melanie Seneviratne: Great. Okay. Well, unfortunately, we didn't get through to all the questions, so I apologize for that, but we're going to wrap it up, given we went over by half an hour, knowing that there was a lot of questions.
Charles Fair: Can you, Melanie, can you copy all the questions and then if there's questions that we didn't get to, maybe that can be a topic of a future webinar?
Melanie Seneviratne: Yeah, I have all the questions.
CCMF: I think that's a great idea.
Melanie Seneviratne: Yeah, I have them all.
CCMF: Great idea, Charles.
Charles Fair: Good. Yeah. Sometimes I have good ideas in court too.
CCMF: Well, that's good. So just to just make a couple of closing remarks. On behalf of the Canadian Centre for Men and Families, Alberta, I want to thank you, Charles, and Melanie, for spending your valuable time to offer this engaging and informative seminar. And for taking the time also to answer so many questions. And I want to remind our participants to visit CCMFAlberta.ca and learn more about our programs. We offer domestic abuse recovery for men. Counseling, peer support, mindfulness, meditation, and of course, great legal educational offerings like this one.
Please check your email after the session for a post-session survey, just a few questions long. We would love to hear from you about what you thought of this webinar and what other topics you would like to see us cover in the future.
And, lastly, one of our participants sent me a message and asked me to say it out loud to the group, and I think it's a really good message for the population we serve. So I said, yes. "Some men choose to die by suicide, but most men somehow find the strength to carry on, get the support they need, or struggle on and reconnect with their kids eventually, within a few years or within 10 or 12 years. The situation is never that hopeless, even in the extreme. And self-care is the most important thing for parents, male or female, who experienced parental alienation.
Charles Fair: Yeah. That's it. Thank you, Vanessa, for reading that out. And, yeah, I 100% agree.
CCMF: Thanks to thanks to the gentlemen listening today. And please join us next month for another important topic.
Calgary lawyer Charles Fair brings over 30 years of experience to Fair Legal in criminal, family and civil litigation. Charles draws on his personal experiences related to each field of law which helps him to understand and relate with each of his clients. He is compassionate, caring, and will always be your champion for justice when life gets messy.