Enforceability of Parenting Agreements by the Court and Police

Is my parenting agreement enforceable by the Court or by the police?

The short answer is no – well, could it be?!

Will the Court enforce my parenting agreement?

Parenting agreements between parties are relevant to the determination of children’s best interests but they are not binding on the Court. This principle has been set out by the Supreme Court of Canada and upheld in decisions of our Court of Queen’s Bench, a few examples of which are as follows: Gordon v Goertz, 1996 CanLII 191 (SCC), Jensen v Walters, 2016 SKQB 267, Lloyd v Lloyd, 2018 SKQB 116, Gudmundson v Fisher, 2018 SKQB 264.

That being said, a parenting agreement is relevant and can speak to the parties’ intentions respecting the parenting of their child or children.

Whether the Court adopts and orders the terms provided for by an agreement really comes down to the weight the Court affords a parenting agreement.

The weight the Court gives an agreement is dependent on a number of factors, including how the agreement was reached, the circumstances of negotiation and signing the agreement, the date of the agreement,  whether any changes have occurred since the agreement was reached, whether the parties had legal advice, and whether the terms of the agreement were followed, and whether the terms of the agreement appear to be in the best interests of the child now.

Meaning that if a parent applies for parenting time or to “enforce” their agreement or brings an application for parenting time that differs from what is set out in the agreement, the Court will consider the agreement along with the above-noted factors and will determine whether the parenting terms as set out in the agreement are in fact in the child’s best interests and make an order as it sees fit, as guided by the best interests of the children.

Will the police enforce my parenting agreement?

I think it is fair to say that the police do not want to become involved in parenting disputes. Before turning to lawyers, many parents first ask the police for assistance in having their children returned. However, the police do not enforce parenting agreements and will routinely decline requests for assistance if the child is simply with the other parent, even if it is contrary to the terms of your agreement.

The Court has jurisdiction under The Children’s Law Act, 2020 to order police enforcement clauses and has done so in situations where there is demonstrated evidence that a party refuses to comply with a parenting order of the Court. Again, not an agreement, but an actual order of the Court.

Involvement of the police in parenting matters is far from ideal for children, however, it is a remedy that is available through the Act and can become necessary in parenting disputes to assist with the return of children.

Each parenting arrangement is unique. I recommend you seek legal advice with respect to your family law matter.

Contacting a Lawyer on this Subject

Siobhan Morgan’s preferred practise area is Family Law. For more information on this subject, call 306-933-1308 or email sh.morgan@rslaw.com

The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

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What You Need to Know About New Assisted Reproduction Laws

The Children’s Law Act, 2020 has recently come into place in Saskatchewan. This has updated the laws relating to decision-making and parenting time of children.  However, this article focuses on the changes made to assisted reproduction in Saskatchewan.

The new updates are a welcome change, revising our archaic former act. Under the old act I had clients attend clinics in British Columbia so that the surrogacy agreements could be governed by  British Columbia laws.  As an aside, there is also federal legislation and regulations dealing with assisted reproduction.

Here are nine things you need to know about the new Act:

  1. Assisted reproduction is broadly defined as a method of conceiving other than by sexual intercourse.
  2. The new Act is more inclusive, removing references to “mother” and “father” and instead referring to “parents” only. It further contemplates a variety of parental arrangements and agreements which can be made.
  3. In order to qualify as a surrogate, the person carrying the child must have the intention, at the time of conception, to relinquish parental rights to one or more other persons.
  1. This makes it vital that a surrogacy agreement is entered prior to conception which clearly specifies the surrogate’s intention to relinquish parental rights. All parties must also receive independent legal advice.
  2. A surrogate is not considered a birth parent where they have relinquished entitlement to parentage pursuant to the Act (more on this in part 7 below). If the surrogate has not relinquished entitlement, they will be presumed to be the parent of the child.
  1. A sperm donor is not recognized to be the parent of a child conceived through insemination. Therefore, if a sperm donor intends to be the parent of the child, a parentage agreement would be required. Oddly, the Act is silent in this regard respecting ova donors.
  2. If the birth parent of a child conceived through assisted reproduction, not including a surrogate, has a spouse at the time of conception, that spouse is automatically recognized to be a parent of the child, unless the spouse does not consent to be a parent of the child.
  3. Where there is an agreement specifying the parentage of a child, not including a surrogacy agreement (e. there is an ova or sperm donation agreement in place), upon the child’s birth, they are deemed to be the child of the intended parents under the agreement.
  4. However, for surrogates, not only must there be a surrogacy agreement in place prior to conception, the surrogate must also relinquish their entitlement to parentage of the child in the specified form after birth. This cannot take place earlier than three days after birth.  Presumably, this is to protect the surrogate and provide them a final chance to claim parental rights, although it certainly complicates things for the intended parents and could lead to messy situations.  The parents must then apply for an order declaring them to be the parents of the child, which must be made before the child is 90 days old.
  1. If the surrogate refuses to relinquish parental rights, the intended parents can apply to the court for an order declaring parentage.
  1. Surrogacy agreements are not enforceable at law, but can be used as evidence of a person’s intention to be the parent of the child, and the surrogate’s intention to not be a parent of the child.
  2. In determining bloodlines, if the person(s) who donated sperm, ova, or an embryo had no intention at the time of conception to be a parent of the child, they are not considered a blood relation to the child. For example, this would mean the child would be ineligible to inherit from the donor if they died without a Will in place.

This article is intended to provide legal information only, not legal advice.  Assisted reproduction matters can be quite complicated, and can lead to unintended results if not completed properly.  It is recommended you seek the advice of a lawyer when considering entering such an agreement and exploring your options.

For further information, please contact:

Curtis P. Clavelle
Direct: 306-933-1341
Email: c.clavelle@rslaw.com

Binding Pre-trial Conferences in Family Law Proceedings

In October, 2020 the Queen’s Bench Rules were amended to enable parties in Family law proceedings to participate in “Binding Pre-trial Conferences.”

For background, a typical Pre-trial Conference is intended to facilitate the resolution of a family law matter, or if that is not possible, to manage the action until the matter is set down for trial. A Pre-trial is essentially a mandatory mediation session with a judge, where parties can exchange settlement offers to try to resolve matters to avoid a trial.

The difference being with a Binding Pre-trial Conference, however, if a negotiated settlement is not reached, that the presiding judge may step in and make a binding decision for the parties. The practical result is that the parties are able to avoid a trial if they cannot agree on a resolution.  The judge may determine that they are unable to make a binding decision on all of the issues, for whatever reason, and may direct that those issue(s) be set for trial.

It is important for the parties to Binding Pre-trial Conferences to be aware of the risks of submitting to such a process, as there are no rights to appeal the decision of the judge, except with leave from the Binding Pre-trial Conference Judge on an application. This means a party asks the Judge who made the decision to overturn their own decision. In addition, the parties are required to agreed in advance of the Binding Pre-trial that they will not make any collateral attack on any determination or decision made by the presiding judge.  The result is that the Binding Pre-trial Judge has broad powers with no judicial oversight.

Practical Steps – How can my Family Law matter proceed to a Binding Pre-trial Conference?

To begin, in order for a family law matter to be eligible for a Binding Pre-trial Conference, both parties must agree upon the process.

If agreement is reached, to obtain a Binding Pre-trial Conference, the following steps must be completed:

  1. The parties must submit a Joint Request for Binding Pre-trial Conference (Family) in Form 4-21.3 to the Court; and
  2. The parties must enter a Binding Pre-trial Conference Agreement (Family) in Form 4.31 4B.

The Binding Pre-trial Conference Agreement (Family) identifies the issues to be resolved, those issues the parties wish to be directed to a Binding Pre-trial Conference, and acknowledgments respecting the choice of process. The parties in a family law matter may limit the scope of issues for the Judge to determine.

A party to a Binding Pre-trial Conference (Family) Agreement must receive independent legal advice, and a Certificate confirming same is to be appended to the Agreement.

Parties submit Binding Pre-trial Briefs detailing the issues, the law that relates to the issues, and summaries of the evidence they rely upon, including medical and expert reports, financial documents, etc. and may include a settlement proposal.

Unlike Pre-trial Briefs, which are due 10 days prior, a Binding Pre-trial Brief is due to be filed with the Court 15 days prior to the date scheduled for the Binding Pre-trial Conference.

Binding Pre-trial Judge

The parties are informed of the Judge assigned to conduct the Binding Pre-trial Conference 30 days before the Binding Pre-trial Conference.

How do I get out of a Binding Pre-trial Conference?

If a party should wish to withdraw from a Binding Pre-trial Conference, they may do so at any time up 10 days before the start of the Binding Pre-trial Conference by serving a Notice of Withdrawal From Binding Pre-trial Conference in Form 4-21.7.

If a party should change their mind less than 10 days before the Binding Pre-trial Conference is scheduled to begin, they need to seek leave of the Court to withdraw their consent.

If consent is withdrawn, the Binding Pre-trial Conference simply proceeds as a Pre-trial Conference and if the parties’ settlement efforts are unsuccessful, the matter would proceed to trial.

PROS/CONS

The pros of a Binding Pre-trial Conference primarily relate to efficiency and cost. It will undoubtedly be more efficient and cost effective to have all of your family law issues dealt with at a Binding Pre-trial Conference rather than having to wait and pay for an expensive trial, when it can still take months for a decision to be rendered.

However, agreeing to submit to a Binding Pre-trial Conference is not without risk. The risks involved with a Binding Pre-trial Conference include that the Court will not have the opportunity to hear all of the evidence you would otherwise present at a trial, prior to making its determination.

In addition, as noted above, there is no right to appeal the decision of the Binding Pre-trial judge. This is a significant limitation to the remedies typically available to parties when third party arbiters are involved in determining matters.

A Binding Pre-trial Conference could be a useful process for parties in family law proceedings. I recommend you seek legal advice in relation to your matter.

Contacting a Lawyer on this Subject

Siobhan Morgan’s primary practice area is family law. For more information on this subject, contact Siobhan at 1 306 933 1308.

The above is for general information only. Parties should always seek legal advice prior to taking action in specific situations. 

DIVISION OF FAMILY PROPERTY: ENTITLEMENT TO FARMLAND OWNED BY EX-SPOUSE AND THIRD PARTIES

When two parties are separating and dividing the family property, there may be questions surrounding property owned by one of the spouses and third parties. In Saskatchewan, this is particularly true for farmland. Often a husband or wife will own farmland with their parents for estate planning purposes. So how does the court deal with this in the division of family property?

Courts ask two questions: first, is the farmland matrimonial property? And if so, what value should be attributed to it?

The answer to the first question is simple. As defined in The Family Property Act, family property means any real or personal property, regardless of its source, kind or nature, that, at the time an application for separation is made, is owned, or interest is held, by one or both spouses, or by one or both spouses and a third person. A joint tenant owns a legal right in the property by virtue of being a registered owner on title. Therefore, farmland held by one spouse in joint tenancy with their parents is family property as defined in the Act.

The second question is where the true analysis lies – what value should be attributed to the jointly held farmland? If the joint tenancy was legitimately for estate planning purposes, its value for the division of family property will be nil. This is because the spouse, and therefore the family unit, did not collect a benefit from the farmland during the marital relationship. Rather, the spouse was simply on title for estate and succession planning once their parents pass away. Courts will look to factors such as who maintained control over the land, who used the land and who paid the expenses and received the benefits from the land when determining if a transfer of title was truly for estate planning purposes. If there is evidence to suggest the spouse received a benefit from the land during the marital relationship, it will be assigned a monetary value by the court and be subject to division. 

Should you have any questions about the division of family property, or need advice on your family law matter, please contact Robertson Stromberg LLP.

Can my child choose where they want to live?

The short answer is no. However, the wishes of children can be considered in determining parenting arrangements. As the Court does not want children to participate in family law disputes, this article briefly touches on how to put the wishes of a child before the Court for consideration. 

To begin, regardless of the age of the child, there is no law or legislative principle that the wishes of a child dictate the parenting arrangement.  (See M.L.S. v N.E.D., 2017 SKQB 183; Redstar v Akachuk, 2013 SKQB 223; and Kittelson-Schurr v Schurr, 2005 SKQB 90.)

However, a child’s wishes can be an important consideration in determining a parenting arrangement that serves their best interests.  The wishes of young children aged 11 and younger, are typically not taken into consideration by the Court. The Court is of the view that young children are not sufficiently emotionally or intellectually developed to articulate their true feelings.

Children are capable of forming their own views at 12 years of age, which Family Justice Services recognizes for the purposes of conducting a “Voices of the Child” report.

If a matter is proceeding to Court, either by a trial or an interim Chamber’s application, a “Voices of the Child” report can be of assistance in putting the wishes or desires before a judge for consideration.

A Voices of the Child report may be ordered by a judge at any stage of a family law proceeding and the reasons the Court orders Voices reports vary widely. For example, a Chamber Judge, may order a “Voices of the Child” report when conflicting affidavits about the “wishes” of teenage children have been presented. Voices of the Child reports are also ordered at Pre-trial Conference solely for the assistance of the trial judge, who is tasked with determining the parenting arrangement.

However, there is no automatic right to having a Voices of the Child report prepared.

In addition to the age requirement (child must be 12 years old or older), a party seeking to put forward their children’s wishes with respect to the parenting arrangement, must present evidence that leads the Court to conclude that a Voices report would be of assistance in determining the parenting arrangement in the child’s best interests.

If your child is above the age of 12 and has expressed views with respect to the parenting arrangement, a Voices of the Child report can be of assistance to the Court in determining a parenting arrangement.

In the right circumstances, your child’s wishes as expressed through a Voices Report can be the determining factor. In a recent Saskatchewan Court of Queen’s Bench decision, the Court found that irrespective of both parents’ capabilities of caring for the children equally, that a child’s wish was the “most dominant factor” in considering whether the relocation was appropriate. In that case, the child expressed a wish to relocate with the mother. Given the assistance of the Voices of the Child report, the Court granted the mother’s request to relocate with the children (A.R. v R.R., 2016 SKQB 206).

The family law lawyers at Robertson Stromberg LLP can assist in obtaining a Voices of the Child report and your parenting needs more generally.

Retroactive Child Support: Should you be Worried?

The recent Supreme Court of Canada decision, Michel v Graydon, 2020 SCC 24  is likely going to cause late night anxiety for some parents as the Court determined that, no matter how old the “children” are, parents may still collect unpaid child support from the other parent.  

In Michel v Graydon, the Court unanimously ruled that a British Columbia father must pay $23,000 in retroactive child support to his former common-law partner and child, even though the “child” is now 29 years old.

The Court held that child support is a right that belongs to the child, it is not something that parents can negotiate away. Child support should provide the child with the same standard of living they had prior to parental separation. Payments required of a parent must be reasonable when taking payor income into account. Back payment orders, or retroactive child support orders, hold parents accountable to responsibilities they may have neglected.

The judges in Michel v Graydon unanimously agreed that the prevention of retroactive child support places a disproportionate burden on women as caregivers. The Court further noted it would be wrong to create an incentive by granting payor parents immunity after the child ceases to be “a child of the marriage”.

“The courtroom doors should not be closed because certain categories of debt owed to children are classified as coming too late”.

The Supreme Court was clear in their message to parents who knowingly avoid or diminish their child support obligations, payor parents will no longer profit from bad behaviour.

Should you have any further question about collecting retroactive child support, or need advice on your family law matter, please contact Robertson Stromberg LLP.

 

Area of ExpertiseFamily Law