As we turn the page on another year, many people have decided to proceed with resolving a dispute within a current or former relationship. Some will do so with the advice and representation of a lawyer, and some will not. Those who have consulted and/or hired a lawyer, to advise and guide them, may not like what they hear, and so we sometimes have clients, and non-clients, who decide to take the law into their own hands and do what they think is best for themselves and for their children.
This blog will address the courts general response to people taking what is referred to as “self-help remedies” to address an actual or perceived wrong. Generally speaking, the court does not look kindly upon such actions, as it tends to create more problems than it intended to solve. Even where there is no existing order in place, if a party takes a step that is completely inconsistent with what has been the existing pattern for some time, that person can expect a firm admonishment (to put it lightly) from the court, and often find themselves on the wrong end of a motion, with costs ordered against them.
This applies equally to each party who is represented by a lawyer, self-represented, or simply unrepresented. And telling the judge that “your sister’s boyfriend’s brother from work did the same thing, and they got away with it” will not be an acceptable excuse or explanation. As I end each of my blogs, I will remind you at this point that each case is unique, just like you are, so if you decide to take the law into your own hands, do not expect a warm or welcomed reception from the courts.
Common Self-Help Scenarios and How to Avoid the Temptation
There are three common scenarios that come up in family law dilemmas where a party feels that they have no choice but to take a unilateral action (the self-help remedy):
- Decision-Making Responsibility
- Parenting Time
- Child Support
By no means is this an exhaustive list. But after reviewing each scenario and seeing what should have been done in the first place, you can now decide to take an ounce of prevention, instead of trying a pound of cure later on (as you will see, a cure is both much more difficult to remedy and terribly expensive than a preventative measure).
Decision-Making Responsibility
In March 2021, both federal and provincial family law legislation alternated to reflect the change in some terms, including “decision-making responsibility,” which replaced the old term “custody.”
When parties resolve decision-making responsibility, we usually have one of two versions. In one version, the parties will share decision-making responsibility of all major decisions, with a method of showing who gets to make the final say. In the other version, usually one party will be granted sole decision-making responsibility, with that party obliged to consult with the other parent on major decisions.
Over the course of the last three years, we have seen a tremendous amount of cases brought before the court to ask the judge to address decision-making responsibility in response to the Covid-19 pandemic. This was the right thing for the parties to do – if they could not resolve the dispute between themselves, then they agreed that a judge would decide the matter.
Sadly, we saw many cases come to court to address situations where a party unilaterally decided whether a child would, or would not, get vaccinated. I will not get into the Covid-19 debate in this blog. Suffice is to say that when the a judge looks at the actions or inactions taken by a parent to unilaterally get them vaccinated, or prevent them from getting vaccinated, the judge deciding the case will look only at one thing: the best interests of the child, and decide accordingly. The parent who took the self-help remedy to get the child vaccinated, or more often than not, to prevent them from getting vaccinated, will solely be judged by this criteria, and nothing else. There is a significant amount of case-law that has been written on the topic of the best interests of the child, both under the Divorce Act and the Children’s Law Reform Act.
Once again, suffice to say that the deciding judge will be looking closely at whether the parent who unilaterally decided to get the vaccine, or to avoid the vaccine, relied on this concept of the child’s best interests. The judge will not be swayed by pseudo-science, false narratives, scare tactics, or political affiliations, one way or the other. A parent who made a decision without the child’s best interests at the heart of their decision can expect a very harsh reprimand for their actions or inactions, including a change (not in their favour) in the current decision-making responsibility, a change (not in their favour) in their parenting time, and cost consequences.
The best way to avoid such a problem is to have a proper channel of communications between the parties, whether that be in person, via email, via apps, via lawyers, or through a trusted third party. The important thing is to talk it out and decide for yourselves, before a judge decides for you.
Parenting Time
Along with the recent legislative changes referenced above, family law no longer uses the word “access.” Instead, we refer to this concept as “parenting time. When parties resolve decision-making responsibility, we usually have one of two versions. In one version, the parties will share decision-making responsibility of all major decisions, with a method of showing who gets to make the final say. In the other version, usually one party will be granted sole decision-making responsibility, with that party obliged to consult with the other parent on major decisions.
In some cases where parties decide to use a self-help method, the family law relationship has only recently broken down and the parties are not governed by any parenting agreement in writing. In such cases, there is often a verbal agreement in place to dictate who will see the kids and when, but then something happens to make one party decide they do not like what was agreed upon, and they “decide for themselves” what the parenting time will now be. In these cases, which usually find themselves in court rather quickly on an emergency basis, the judge does not have all the information. They will generally ask you about the status quo, i.e. what was happening up until the unilateral decision was made to “upset the apple cart.” They will then make a temporary order, to try and restore order to the quarrelling parties, until they can present a more comprehensive story to the court.
However, more often than not, we see the use of a self-help remedy in cases where the parties have a written agreement (a separation agreement) or a court order (whether temporary or final). There is no uncertainty about what the parenting time should be, but something happens, or it is believed will happen, to upset one of the parties into not wanting to follow the agreement or the order. Common examples of such “triggering events” include, but are not limited to:
- a failure to pay promised child support
- a failure to consistently follow the pick-up and drop-off times for the parenting arrangement,
- one of the parents starts/resumes a substance abuse habit (alcohol, drugs, or both)
- an alleged wrongdoing by one party that attracts the attention of the local police or the local CAS, or,
- one of the parents gets a new partner that the other one does not like
It is unfortunate that we continue to see a growing number of supposedly urgent cases from parties that simply refuse to have a civil, mature, and child-focused discussion before taking unilateral steps. As with decision-making cases, a judge will rely solely on what is best for the child, and not for either parent. In a common scenario, we see one parent taking a child out of school prematurely to prevent the other parent from having their scheduled parenting time. The courts strongly discourage using the child as a pawn in a conflict that is actually about the parents. They will not condone bad behaviour and will decide the case accordingly, along with usually ordering costs to the party who took the law into their own hands unnecessarily.
As with decision-making responsibility, all of these incidents can usually be resolved ahead of time by having an open dialogue with the other side. But even where such dialogue bears no fruit, the proper next step is to get legal advice and take proper legal steps to address the matter (usually, but not always, in court), rather taking the law into your own hands.
Child Support-Related Issues
About 25 years ago, the Child Support Guidelines were introduced to streamline the matter and to hopefully reduce the conflict between the payor and the recipient. Ah, what a wonderful sentiment, but it was proven to be quite naive. Litigation about child support has continued in excess over the past quarter century, and it shows no signs of slowing down.
There are two common self-help remedies that people will employ in child support disputes. The first is “If I do not get to see my child, I will not pay child support,” and its twin, “If I do not get my child support, the other side will not see the child.” Countless lawyers and judges need to remind the parties that the two issues are independent of one another. In simple terms, using the phrases uttered above, “Just because you do not get to see your child is no reason to stop paying your child support,” as well as, “Just because the payor is not paying child support, you cannot withhold parenting time.” These are easy statements to for lawyers and judges to make, but very difficult for many people to accept. It seems inherently unfair, but it is settled law that these issues are independent and that they should not be used as shields/swords in family law disputes.
The second often-used self-help remedy is to quit one’s job when they do not like the support order made against them. Often such payors will rely on the premise of “you cannot get blood from a stone.” This blog will not get into any great detail about such conduct – I will leave that for another blog. However, I will state that such an approach is a clear violation of the need for a parent to support a child, and it will be met with a harsh punishment if it is shown to be factually correct. Penalties such as costs, fines, license revocation, and even jail time, may be at play if such payors think they can outsmart the system. I’ve seen cases where a client has avoided paying support for 20 years, amassing a debt of over $100,000. Eventually, in the vast majority of cases, the law will catch up with that person, and stating that they cannot now pay the amount will fall on deaf ears. You can run, but you cannot hide forever.
A Cautionary Conclusion
As with everything in law, as in life, situations are not always as “cut-and-dry” as it may seem. A party may have a particularly good reason to prevent a former partner from having their child vaccinated against their wishes, or to allow the other parent to take the child for a scheduled visit. Where the child’s health, safety and security are at risk, a court may later understand the actions taken by that party to use a self-help remedy (with the emphasis on “may”). If allowing the child to see the other parent as scheduled/ordered would result in the child’s imminent harm, their death, or their removal from the jurisdiction, it could be argued they were doing the right thing (again, emphasis on its possibility, and not a certainty). But in doing so, they must take the immediate follow up steps of contacting the police, contacting the CAS/child welfare agency, boarder security services, and most importantly, going before a judge on an urgent motion to sanction the action and use further preventative, but court-approved, measures to keep the child from harm. At the end of the day, we all want what is best for our children – to keep them safe and happy.
But if you acted outside the law, please understand that you will be called on to justify why you did what you did. Will you be ready for that call?
Remember, every case is unique, just like you are. If you are facing real legal problems, you need the right legal solutions. Please contact Runco Law at 289-799-3080 or email me at carm@runcolaw.ca.