The Impact of Separation and Divorce on Children

Children are impacted by separation and divorce and the impact on them will usually be worse if their parents engage in conflict.

We at the Kitsilano Family Law Group encourage separating and divorcing parents to carefully consider the impact of separation and divorce on their children.

We recommend that separating and divorcing parents obtain and view the film entitled “SPLIT - Children's Journeys through Divorce” which presents the moving, enlightening and sobering views and observations of a number of children whose parents are separating or have separated.  Here is a clip from this film:

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Mother allowed to relocate from B.C to Germany with child in case under Family Law Act

In a recent case, Fotsch v. Begin, 2015 BCCA 403, the B.C. Court of Appeal has ruled that a trial judge did not err in deciding that a German mother should be permitted to move with her three year old child to Germany despite opposition from the Canadian father.

In this case, which was decided under the Family Law Act, the Court of Appeal thoroughly reviewed the relocation provisions of the Act and set out clear parameters as to how those provisions should be applied.

The court determined that the trial judge had correctly applied the relocation provisions of the FLA and had, in light of those provisions, properly concluded that the mother had produced solid and persuasive evidence to show that:

  • a. the proposed relocation by the mother was made in good faith;
  • b. the mother had put forward reasonable and workable arrangements to preserve the relationship between the father and the child if the relocation was permitted; and
  • c. the proposed relocation was in the best interests of the child.

The court noted, with respect to good faith, that there was no evidence whatsoever produced at trial to indicate that the mother’s wish to relocate was based on an improper motive. They pointed to the fact that the trial judge had found that the evidence showed that the father had actually agreed that the mother could remain in or relocate to Germany in the event that the marriage ended, that the evidence also clearly indicated that life in Germany would be much more stable and secure for the child than life in British Columbia and that the evidence revealed that the father could move to and live in Germany in order to promote and maintain his relationship with the child.

In addition the court found that the trial judge had correctly determined that the mother’s proposals for maintaining the father’s relationship with the child, which involved extensive Skype and holiday time with the child, as well as generous parenting time with the child in Germany, if he remained in Canada and a full co-parenting relationship if he moved to Germany, were reasonable and workable. Finally the court ruled that the trial judge had properly concluded that the mother had produced irrefutable evidence to show that the relocation to Germany was in the child’s best interests. In particular, the mother had produced evidence to show that her situation, and that of the child, would be much better economically in Germany, and that a much better family support system was available for her and the child in Germany.

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Judge erred in ordering mother who moved with child following marriage break up to move back, B.C. Court of Appeal decides

In a case decided in July, 2014, McIntosh v. Kaulbach, 2014 BCCA 299, the B.C. Court of Appeal overturned the decision of a trial judge who had ordered a mother who had moved to another town in B.C with her child following the breakdown of the relationship to move back.

During the relationship the parties lived together in Chetwynd. The mother was the child’s primary caregiver. At the time of the separation the mother moved with the child to live with her mother in Penticton. At that time the child was a few months old. By the time the case came on for trial the mother was living with the child in Kelowna.

The trial judge concluded that the mother should have sole custody of the child but also decided that the mother must move back to Chetwynd so that the both parents could have substantial contact with the child. The Court of Appeal, in a unanimous decision, found that the trial judge had erred in ordering that the mother must move back to Chetwynd. The Court stated that, having found that the mother should have sole custody, and no improper motive having been shown for her move from Chetwynd to the Okanagan at the time of the marriage breakdown, it was not open to the trial judge to order her to move back to Chetwynd. In the absence of an improper motive, the decision of the mother to move with the child was entitled to respect.

It should be noted that this case was decided under the Divorce Act, not the Family Law Act, and that different statutory criteria apply depending on which Act is utilized.

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A Rock and a Hard Place - A Presentation on International Child Custody and Parental Child Abduction Cases

I recently attended a conference put on by the British Columbia Trial Lawyers Association in Vancouver regarding family law. At this conference, ‘A Rock and a Hard Place – Complex Issues in Family Law Practice’, I was on one of the panels. My panel, which consisted of Penny Lipsack from the Office of the Ministry of the Attorney General and myself, dealt with the law concerning international child custody and parental cross border child abduction. During my presentation I discussed the law regarding how jurisdiction in cross border child custody cases could be resolved, and I also talked about some of the recent British Columbia cases which dealt with this issue. I also discussed the law regarding international parental child abduction and some recent cases regarding that area of the law, and concluded by discussing some steps that could be taken to stabilize the situation in cases in which there is a potential for a parental child abduction to occur. The conference as a whole was very useful and stimulating with numerous interesting and knowledgeable presenters.

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Clea Amundsen obtains Law Society accreditation as a Family Law Mediator

Clea Amundsen of the Kitsilano Family Law Group has recently obtained accreditation from the Law Society of British Columbia as a Family Law Mediator. In order to obtain this accreditation, Clea took 80 hours of approved mediation training. This training included mediation theory, the statutory framework for mediation, training in family dynamics and participation in mediation role playing scenarios. She also took 14 hours of training in how to evaluate and deal with family violence and how to identify and deal with potential family violence issues and power imbalances in the mediation setting. In addition Clea had to confirm for the Law Society that she had sufficient knowledge, skills and experience in the field of family law dispute resolution to be able to undertake and conduct family law mediations in a fair and competent manner.

Clea is very excited about her new accreditation and looks forward to using the mediation process in her family law dispute resolution practice as she believes that mediation is a useful process which can be of great benefit to many families and their children.

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Father does not have to pay child support to mother who abducted child, BC Court of Appeal decides

In a recent case, Hughes v. Hughes, 2014 BCCA 196, the British Columbia Court of Appeal decided, in a split decision, that a British Columbia father did not have to pay child support to the mother of his child who had abducted the child to Italy.

The parents separated in May, 2007 and in divorce proceedings begun shortly thereafter an interim order was made granting them joint custody and guardianship of their then six month old daughter. In December 2007 the mother took the child to a hospital emergency room and tests revealed traces of an adult tranquilizer in the child's blood. The mother accused the father of giving the drug to the child. The father denied this. In February 2009 a psychologist was directed to conduct an assessment and produce a report. He was also directed to look into the incident concerning the tranquilizer. In the interim the father was given supervised access. In May 2009 the psychologist produced his report. He concluded that both parties were good parents and that it was unlikely that either of them would have deliberately given the child an adult drug. An order was made removing the access supervision but before the father could have unsupervised access the mother took the child to Italy. Orders were made requiring the mother to return the child to Canada but she refused to do so and she was cited for contempt and a warrant was issued for her arrest. The mother commenced a custody action in Italy and the father commenced an application in that country for the return of the child to Canada. The mother's custody action in Italy was put on hold pending the result of the return application. Meanwhile a six day trial took place in Canada, at which the mother was allowed to participate by telephone but was not allowed to testify because of her ongoing contempt. The trial Judge granted the father custody of the child but ordered him to pay child support "until such time as the child comes into his care".

In Italy the father's application for return of the child was dismissed on the basis that there was a risk of harm to the child if she was returned because of the previous drug problem, which the Italian court found was "unresolved" in Canada. The father appealed but his appeal was dismissed. The mother proceeded with her custody application and was granted custody.

The father paid child support for about six months and then ceased payment. He applied in BC Supreme Court to have arrears cancelled and his ongoing obligation to pay child support terminated. The mother responded with an application to enforce arrears and, ironically, an application to cite the father for contempt for non-payment of support. The Supreme Court Judge held that the mother, because of her ongoing contempt, could not seek relief from the Court. He held that the order requiring the father to pay child support was meant to be temporary and was only to apply until the mother returned the child to BC, that she was expected to return the child to BC and because she had not done so the child support order could not stand. The mother appealed to the Court of Appeal.

In the Court of Appeal, Madam Justice Smith, speaking for the majority, concurred with the Supreme Court Judge and dismissed the appeal. Her Ladyship held that the child support order was intended to be temporary premised on the assumption that the mother would comply with the orders of the court and return the child to BC, and that the six month period during which the father had paid support was a reasonable time within which the return should have occurred. She said that it was the intention of the Court that the father would support the child by having her in his custody and that the mother by refusing to return to BC with the child had prevented that from occurring. She noted that the mother remained in contempt of the prior court orders. She concluded that the mother's refusal to return with the child constituted a change in circumstances which supported termination of the child support order.

Mr. Justice Chiasson delivered a compelling dissenting judgment. He noted that the original child support order was not time limited and found that the father had not shown that there had been a change in circumstances. He held that, while the mother's conduct deserved censure and she could not seek relief from the court due to her contempt, it was not appropriate to deprive the child of support because of the mother's reprehensible conduct. He concluded that the order terminating child support should be set aside but the mother could not take action to enforce the child support order due to her ongoing contempt.

While the result seemed, at face value, to be a good one for the father, it may turn out to be a Pyrrhic victory as Madam Justice Smith noted that the mother retained the right to pursue an order for child support in the Italian court.

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Recent case establishes that some relocation cases may be decided summarily

A recent case in BC Supreme Court has established that it may be possible to resolve some relocation cases relatively quickly and inexpensively by way of summary trial.

In the case of M.T. v. R.A., 2014 BCSC 795, the parties were jointly parenting a 7 year old girl under a written agreement that had been in effect for approximately five years. One of the terms of the agreement was that subject to further agreement or court order the parties would live within the boundaries of "Vancouver West". The mother had remarried and she and her new husband had a three year old son. The evidence indicated that the child of the parties was doing well and had a good relationship with her half brother and her parents.

The mother applied to the court for permission to move to Victoria with the child. The father opposed the move. The mother applied for an assessment and report to be done by a psychologist and also sought an order that the case be placed on the trial list. The father opposed the report, saying it was unnecessary and intrusive. He also opposed placement of the matter on the trial list, saying that the matter was suitable for summary determination under the new Family Law Act.

After hearing the mother's application, Mr. Justice Saunders seized himself of the matter and ordered that a psychological assessment and report should be done. However he refused to place the case on the trial list. He stated that in his view the provisions of the new Family Law Act are intended to provide for summary determination of relocation issues in cases where there had been a prior agreement or court order regarding parenting arrangements, although the court must retain discretion to order a trial where that appeared to be necessary. He concluded that, unless the assessment and report of the psychologist indicated that the case required a trial, he would hear and decide the matter in a summary fashion after the report was released.

This case, which appears to indicate that a speedy and inexpensive method may be available for resolution of relocation cases in some situations, appears to confirm that the approach to be taken under the new Family Law Act is to move toward resolution of family disputes in a "just, speedy and inexpensive" manner whenever possible.

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Changes at the Kitsilano Family Law Group

In recent weeks there have been some big changes at the Kitsilano Family Law Group. Quinn McRae, who has worked with us here at Kits Family Law for almost three years, has left to pursue other ventures. Quinn has had many successes in the cases she has handled at Kits Family Law both in and out of the courtroom. In keeping with Kits Family Law philosophy, Quinn's preference has always been to negotiate, mediate and collaborate, and using that positive approach she has helped a great many clients achieve their goals without excessive stress and expense. Where it was necessary to go to court, she also had much success. We wish her the best in her future endeavours.

As one door closes another opens. While we are sorry to see Quinn go, we are pleased to welcome Clea Amundsen to Kits Family Law. Clea brings an exciting background of academic excellence and wide ranging life experience with her to Kits Family Law. She graduated from McGill in 2005 with a First Class Honours degree in political science with minors in Russian and German. From September 2008 to June 2011 she worked as a research assistant at the Centre for European, Russian and Eurasian Studies where she researched and compiled the tri-annual Bulletin on Current Research in Soviet and East European Law and researched Russian law and court-media relations in the West and in Russia. In addition from April 2009 to August 2010 and again for a number of months in 2014 she worked as an intern on the Radovan Karadzic Defence Team at the International Tribunal for the Former Yugoslavia in the Hague. Clea graduated from the University of Toronto in 2011 with a law degree and an MA in European, Russian and Eurasian Studies. From August 2011 to July 2012 she was the bilingual clerk at the Ontario Court of Justice in Ottawa. She was called to the Bar in Ontario in June 2012. From August 2012 to March 2013 she worked as an intern, under the auspices of the Canadian Bar Association's Young Lawyer's International Program, with the Kenyan Section of the International Commission of Jurists in Nairobi, where she engaged in legal advocacy by working with the Kenyan judiciary to further legal reforms, helped with strategic litigation, particularly with victims of post-election violence, and monitored the March 2013 general and presidential elections as an official independent observer.

Upon her return to Vancouver, Clea was called to the British Columbia Bar in June 2013. Subsequently she worked for a boutique family law firm in downtown Vancouver before moving to join us here at Kits Family Law.

We believe that Clea will be a welcome addition here at Kits Family Law. Like Quinn, she favours a positive child centred solution oriented approach to thorny and difficult family law cases. Like Quinn, she supports the use of negotiation, mediation and collaboration in the resolution of family disputes. And like Quinn she is also prepared to proceed to court where necessary and work hard in court to achieve a good result for our clients.

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The 2014 Association of Family and Conciliation Courts Conference - Recent developments regarding shared custody

I attended the 2014 Association of Family and Conciliation Courts Conference which took place in Toronto at the end of May. At this year's conference a great deal of discussion centred around controversies that have developed over recent research concerning shared custody, and in particular whether shared custody, including overnights, is appropriate for infants and toddlers. The consensus was that, while some recent research had suggested that shared custody, including overnights, is not appropriate for very young children, the preponderance of evidence indicated that it may well be appropriate, even beneficial, in cases in which there are two good parents and the child is bonded with both parents. The evidence also indicated however that such shared parenting time should be introduced slowly in cases in which one parent had not had an opportunity to spend a lot of time with or form a close bond with the child. It was apparent from discussions at the conference that this area of family law is still developing and remains controversial and that continuing research is needed.

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Fifty years of the Association of Family and Conciliation Courts

In late May 2013 I attended the annual conference of the Association of Family and Conciliation Courts in Los Angeles. This year's conference was very special as it marked the 50th anniversary of the founding of this wonderful organization, an interdisciplinary group of lawyers, judges, psychologists, counsellors, mediators, parenting coordinators and others which has since its inception promoted the resolution of family law disputes by agreement. The AFCC has been in the forefront of positive change in family dispute resolution as it has promoted and educated family dispute resolution professionals in cutting edge techniques such as mediation, collaborative law and parenting coordination. The 50th anniversary conference was memorable in that it took place in LA where AFCC was originally founded, and in its seminars and plenary sessions it looked back at family dispute resolution as it was fifty years ago and also looked ahead to where it might be fifty years hence, and in so doing it highlighted the progress that has been made in the last fifty years as well as the problems which still remain to be resolved. As usual it was an enlightening and educational experience.

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