In the last two months, there have been three recent court decisions that may represent a shift in judicial thinking. The decisions address support enforcement, shared parenting, and terminating ongoing spousal support – three areas containing challenges that men face in our courts.

Trick v. Trick - Ontario Court of Appeal – 2 June 2006

http://www.ontariocourts.on.ca/decisions/2006/july/C44322.htm

The first of the two Ontario Court of Appeal decisions is quite remarkable for its strict adherence to statute law in the face of a support payor’s significant default.

A 2003 trial had tagged the man with retroactive spousal and child support of $225,675 plus costs of $117,936. The man then moved to the States and apparently made little effort to satisfy the court orders. The ex-husband’s only assets in Ontario were a company pension ($31,000 per year) and his OAS and CPP benefits. Faced with such minimal sources to satisfy such a large award, the ex wife had requested the court to take exceptional measures to assist in enforcement. The first court obliged. The appeal court said, "no".

The Court of Appeal overturned a lower court decision where the Judge vested 100% of this man’s monthly pension payments in his ex-wife, and ordered the garnishment of that same percentage of the payor’s government old age monthly benefits (even though federal legislation limits attachment of all those benefits to 50%).

Notwithstanding that large debt and notwithstanding the ex wife’s allegation that the man had "judgment-proofed his U.S. assets", the appeal court strictly construed the federal legislation and held the attachment to the statutory level of 50%.

The Court of Appeal applied the statutes strictly. A fifty per cent statutory limit means just that – 50%.

Ursic v. Ursic – Ontario Court of Appeal – 7 July 2006

http://www.ontariocourts.on.ca/decisions/2006/june/C42170.htm

The second appeal decision addresses "parallel parenting". The Court of Appeal has not been friendly to the shared parenting/joint custody concept; however, in a 2 June 2006 decision, the court upheld Justice Donnelly’s trial decision of "joint custody in the parallel parenting mode". This award was made even though both parents had sought sole custody at trial.

On appeal, the mother sought to overturn the trial judge’s order of a parallel parenting arrangement and the father sought to maintain it. The Court of Appeal judgment makes a number of apparently father friendly statements. The bolded text in the following quotes are mine:

[21] The appellant contends that this paragraph shows the trial judge’s concern for "the father’s rights" and not the child’s best interests. I do not read it that way. Rather, the trial judge is simply saying that Jacob will benefit from his father’s participation in his upbringing.

[23] The appellant’s second submission is that the trial judge wrongly presumed co-parenting was appropriate even though Jacob had never been solely in his father’s care. I do not agree with this submission either. It is true that up until the trial, the respondent did not have sole care of Jacob. But that does not preclude a joint custody order.

Paragraphs 25 to 27 seem to fly in the face of the appeal court’s previous musings on joint custody:

[25]          The appellant’s third submission is that a joint custody order was not appropriate because the parties were continually in conflict over how best to raise Jacob and could neither co-operate nor communicate with each other on his upbringing. Courts have generally been reluctant to order joint custody where parents are unwilling to set aside their differences and work together to raise their child or children. See for example the reasons of Weiler J.A. in Kaplanis v. Kaplanis (2005), 10 R.F.L. (6th) 373 (Ont. C.A.). Here, however, despite the conflict between them, the parties, to their credit, have largely co-operated on major decisions affecting Jacob. The issue of Jacob’s schooling, to which I will return later in these reasons, is the exception.

[26]          Also, importantly, the trial judge did not merely order joint custody. He included with it a parallel parenting order. Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching a consensus on the child’s upbringing. See T.J.M. v. P.G.M. (2002), 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997] O.J. No. 4060 (Sup. Ct. J.). The trial judge viewed parallel parenting to be suitable in this case, and I am not persuaded that he erred in ordering it.

[27]          Overall, nothing in the record affords a basis for changing the joint custody order to an order for sole custody in favor of the appellant. The trial judge did not commit a reviewable error of fact or law, and he did not exercise his discretion unreasonably. Moreover, the fresh evidence filed on appeal supports the wisdom of the trial judge’s decision. We are now at a distance of two years from the trial. The evidence available to us suggests that Jacob has thrived under the regime ordered by the trial judge.

If there are practical lessons to be learned from this case, we might state them as follows:

• Strive for something that you label as "parallel parenting" as opposed to "joint custody".

• Designate defined parenting times.

• Designate decision making with respect to discrete issues.

• Make sure that there is cooperation on the ground, even if one side is determined to break the arrangement.

• Find the right parenting assessor. As tricky as it sounds, do what it takes to undergo an assessment that recognizes the value of both parents being involved with their child as participatory parents and not as a mere occasional weekend visitor.

This is a recent remarkable decision of Justice Quigley, who terminated an ex-wife’s spousal support of $2,800/month after eight years of payments.

Prior to the birth of her two children (now ages 12 and 14), the ex-wife had been the director of marketing for a bank. The couple had planned that after the children were in school that the ex-wife would return to work. The parties separated in 1995 and in the words of Justice Quigley, aside from raising the children, "it appears that pursuing [her ex-husband] in the courts continues to be [the ex-wife’s] principal occupation." Her "principal occupation" had translated into unsuccessful motions that included an outstanding costs award against her. She acknowledged that she had taken no steps to become self-sufficient during the intervening years. Justice Quigley decided that enough was enough and terminated her spousal support effective January 1, 2007.

It is not often that we see spousal support terminated. The decision contains an analysis of the case law where the emphasis is placed more upon achieving self sufficiency, which after all, is one of the objectives of spousal support under the Divorce Act. The ex wife had been out of the work force for a number of years (although she did belatedly disclose two brief attempts to maintain employment). Notwithstanding that time gap, and especially in light of the substantial child support order that would continue, the court terminated spousal support.

Taken together, do these cases indicate that the pendulum is starting to swing back to the middle, where it belongs? Having enforcement measures applied in accordance with the unequivocal dictates of statute law passed by Parliament, recognizing a child’s right to enjoy a meaningful relationship with both parents, and requiring an able bodied and skilled ex-wife to return to work post haste, even after a lengthy absence – these are all principles that indicate that the courts (and particularly the Ontario Court of Appeal) might be trending towards a more balanced approach to the issues that men face during separation and divorce.