Q&A By John T. Syrtash, Associate,
Garfin Zeidenberg LLP, a Toronto family law lawyer for the past 39 years.
Question: I was married for almost ten years and have a son six years old. My wife was having an affair with my son’s Godfather, which resulted in a baby girl’s birth. The truth came out about the matter and the baby girl was seven months old, making it an affair of more than two years. Now, as my x-wife was on maternity leave, she has the most time with my son. She lives in a new house with her boyfriend, baby girl, and my son.
I am trying to get 50% of access time with no luck. How is that possible? What are my rights?
Answer: The problem in getting “50%” access is that you appear to be seeking advice after the most significant event has already happened: you voluntarily left the child in the mother’s care before coming to a written and legally binding agreement on parenting or by obtaining a Court Order. Several make this crucial mistake. As a matter of law, you may have appeared to have acquiesced to a “status quo” of the child’s mother becoming the primary caregiver
Whatever parenting you wish to have, the provisions of Canada’s new Divorce Act come into force on January 1, 2021. They require any parenting dispute to be mediated or placed before a private Arbitrator. You need to request that the mother attend mediation or mediation/arbitration with a professional trained to so before making a Court application. Request in writing. If she fails to respond or refuses, her refusal can be held against your ex if you are obliged to go to Court.
If the Court becomes the next step, there are various strategies a lawyer can recommend based on the facts of each case. Not all strategies work, just like each snowflake, is shaped differently. For instance, the trouble with just assembling collateral witnesses about your parenting skills is that they are often considered self-serving and of little value before a judge. The exceptions are live-in housekeepers and adult family members or friends who live with the couple. Getting evidence from a child’s therapist or the child’s doctor can also be useful, but only if such professionals agree to give expert evidence in writing and file a special form with the Court attesting to their expertise called an “Acknowledgment of Expert Duty.” You could also ask the Court to order the Ontario Children’s Lawyer to investigate each parent’s parenting skills—a service which is free of charge. If the children are old enough, the OCL may also appoint a lawyer to represent the child. However, the OCL is overwhelmed and very picky about which cases to accept from the Court. Some feel that certain OCL staff are also not as experienced and thorough as a private clinician. I personally do not agree that one can generalize about the OCL’s services.
Alternatively, request an Order to have a private clinical assessment under section 30 of the Ontario Children’s Law Reform Act file. He or she will be prepared to investigative and prepare a report for the Courtabout each parent’s parenting skills. Such an assessor can be a social worker, psychiatrist, or psychologist trained to do so. They interview both parents, the children (if sufficiently old enough), and relevant third parties such as friends, grandparents, teachers, doctors, Children’s Aid Society records, and fellow therapists. They are then ordered by the Court to make recommendations, and, in my experience, this method will often (but not always) maximize each parent’s time with a child, including equal or near equal time. The problem with a section 30 Assessment method is the cost, usually split between the parents. It ranges from $6000-$30000; they often require a $15,000 retainer. (It costs money to “party.”)
Moreover, there are very few such Assessors in Ontario who prepare a truly well-researched and balanced investigation. In most cases, an experienced Assessor will usually meet with both parents and their lawyers, often in the same room. At such a meeting, the Assessor will verbally advise of the results of their investigation and often without necessarily going to the cost of writing a report to be filed with the Court. In many cases, the dispute is settled after these recommendations are verbalized, even with obstinate parents who see the “writing on the wall” if the dispute proceeds before the Court.
In the further alternative, the Court can Order the same Children’s Lawyer to interview a child and prepare a report called a “Voice of the Child.” This is also free of charge and can sometimes provide a shortcut to a more expensive and lengthy process involving an OCL report or private Assessment. However, what a child says and what is best for that child are often at odds, particularly if a child has been intentionally alienated from the other parent. So, a Voice of the Child is not always the best to follow.
In short, my answer is quite simple. Hire a competent family law lawyer with the experience necessary to guide you. If you can’t afford one apply to the Ontario Legal Aid program. If you earn too much but not enough to hire a competent family law lawyer, borrow the money from friends and family. If all else fails, get assistance with your case free of charge from a local Law Clinic and/or Pro Bono Ontario at https://www.probonoontario.org/lawsuits-and-disputes/
John Syrtash is an associate and family law lawyer with the Toronto firm of GARFIN ZEIDENBERG LLP.
John T. Syrtash B.A. (Hon.) LL. background:
Invited Speaker on Bill 78, Proposed Changes to Canada’s
Divorce Act, House
of Commons Standing Committee on Justice and Human Rights (November
Editor of the Syrtash Family Law Newsletter, Lexis Nexis
President of the Syrtash Spousal Support Database
Author of Religion and Culture in Canadian Family Law, Butterworths
Author A Calendar of Northern Fables, Amazon
Neither GARFIN ZEIDENBERG LLP nor John Syrtash is liable for any consequences arising from anyone’s reliance on this material, presented as general information and not as a legal opinion.
John T. Syrtash,
GARFIN ZEIDENBERG LLP
5255 Yonge Street, Suite 800
Toronto, Ontario, Canada M2N 6P4
Cell: (416) 886-0359
Fax: (416) 512-9992
#familylawfirmstoronto #topdivorcelawyersintoronto, #familylawfirmstoronto #familylawlayerstotoronto