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Law Matters - Jeff Zilkowsky

Grandparents: no grandkids for you!

People love grandkids.

And, why not? It’s exciting, right?

You get to play with and spoil a child WITHOUT all the early mornings or dirty diapers. Good deal, right?

Sadly, though, it’s not such a joyful time for everyone...

Sometimes, grandparents are denied any time with their grandkids. And, sometimes, grandparents want to assume all responsibility of the child because their own children (i.e. the parents of the grandkid) are not fit parents, themselves.

And, when this happens, grandparents sometimes go to court.

These cases can get ugly; they can be long, expensive, time-consuming, and emotional…

In cases in which grandparents want more parenting time, the courts will give an enormous amount of respect and deference to the wishes of the custodial parents (i.e. either the biological or adoptive parents).

Here’s an example: Branconnier v. Branconnier, 2006 BCSC 2020.

In this case, the grandparents wanted to spend extra time with their grandchildren during school holidays, and spoiled the children (by giving gifts), all despite (and in the face of) the wishes of the mother. For additional context, the grandparents’ son / children’s father was dead.

In denying the grandparents’ application for extra time, the judge made some important comments:

  1. The wishes of a parent must be respected and must not be interfered with without good evidence;
  2. Grandparents need to accommodate themselves to a parent’s decision regarding the amount and type of access; and
  3. When a judge does order access to a grandparent, that access is (typically) quiet limited, sometimes only one day a month.

 

Another case you may want to read is Chapman v. Chapman, [1993] B.C.J. No. 316 (BCSC). This case goes through the general rules that are used when determining access relating to a grandparent.

In these types of cases (i.e. when grandparents want to spend more time with their grandchild), it is often best that the parents and grandparents work cooperatively. Grandparents will often get more time this way (vs. going to court). And, in the end, a judge will not typically give more (or much) time to a grandparent if it will only increase conflict between the parties.

Now, how about those other types of cases? How about the cases in which grandparents want to assume all responsibilities and care of the grandchild? Well, they can get ugly, too…

In certain circumstances, a judge will give a grandparent full control and care of the grandchild. But, it’s not an easy case to make.

When it happens, the Court needs to be satisfied that the best interests of the child are served if the grandparent were to assume all care and control.

And, there typically needs to be some strong evidence that the parents are not able to effectively parent on their own. There will often need to be strong evidence of:

  1. drug or alcohol use;
  2. abuse / neglect;
  3. unstable lifestyle;
  4. abandonment of children; or
  5. poor parenting skills.

Again, there is strong presumption in favour of parents, either natural or adoptive, keeping care and control of their children.

Admittedly, this column doesn’t paint the ‘rosiest’ picture for grandparents. But, grandparents shouldn’t fret...

In the end, judges will make orders that are in the best interests of the child. And, a child is no one’s property, no two cases are exactly the same, and there are plenty of cases in which grandparents have ‘won big’.

And now you know.

 

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.





Lying about rape, violence, drug dealing?

If you haven’t been living under a rock, you’ve heard the allegations against Jian Ghomeshi and Bill Cosby. 

And, in light of those accusations (and the overwhelming assumption that they are both guilty of ALL such accusations), it got me thinking:  we need to be VERY CAREFUL to not simply presume that someone is guilty.  

Now, you may be thinking, “How can this guy think that either Jian or Bill is innocent?”  

To be clear, I am not saying that, at all.

I am simply saying that we shouldn’t be so quick to presume guilt in light of ANY accusation. 

The truth is that not ALL accusations are accurate and SOME people lie.   

Think about it… 

Would you ever tell a lie to get something that you wanted?  How about something that was really important to you, like your freedom, your job, or your children.  Would you lie in those circumstances?  

Maybe you wouldn’t.  And, I hope that you wouldn’t.  But, fact is: some people do. 

And, sometimes, people even lie to a judge. 

In various areas of the law, including in family law, people sometimes fabricate accusations against an opposing party, typically for the benefit of their file (or their life).    

It’s (relatively) rare; but, it happens…

Sadly, these accusations often revolve around ‘who gets to live with the kids.’  

As I wrote in a prior column, emotions typically run the highest in family law files.

Imagine this: a separated mother and father are fighting over who has more parenting time with little Johnny.   Now, imagine that one parent has a criminal charge against them, which could be sexual assault, assault, or drug dealing/using.  The one parent is likely going to benefit (in their own family law case) if the other parent is convicted of a crime, right?  

Think about it: if the other parent is found guilty of being abusive or a drug abuser, then that would probably hurt that parent’s argument that he/she is such a great parent and that the child would be in ‘good hands’ with them, right?  

In these circumstances, an opposing party may stand to gain when the other party loses.  

Some people seemingly think, “If I can convince a judge that my former spouse is a violent person or is a drug/alcohol abuser, I may receive a more favorable outcome in my family law case.” 

It is an awful reality.  But, it happens.  And, it doesn’t work in the end.

Fortunately, when accusations occur in family court, judges and lawyers are keen to explore the issue and determine whether or not there is truth to the accusation.  People who work in family law recognize that it’s an incredibly emotional area of law and that there is often a fine line between love and hate.

So, in the end, here are my suggestions:

  1. If you hear an accusation against someone, don’t blindly believe it. Some accusations can ruin innocent lives.  And, remember: there are always at least two sides to every story.
  2. If an accusation is made against you, get some legal advice/assistance. The consequences of having a false accusation ‘stick’ could be devastating.  

And now you know.  

 

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought. 



Separating from partner? Big dollars!

Separating from your partner can be painful.

Maybe you still love your former partner and you wish you were still together.

Or, MAYBE you’re really happy that you no longer have to wake up with that person; but, you’re miserable because you have to deal with the money issues of the separation...

One of the big financial issues of a separation is dealing with spousal support: either paying it or receiving it.

For your sake, I hope that you never have to learn about spousal support first-hand. But, if you do or if you know someone who is going through a separation, here’s some information…

 

So, what is spousal support?

Put simply, spousal support is a payment from one spouse to another. It is primarily designed to:

  1. Make sure that neither partner will face financial hardship as a result of the separation; and
  2. Ensure that each partner becomes financially independent after the separation.

You should know, too, that after your relationship is over, you don’t automatically pay or receive spousal support. It is nowhere near that easy.

The first hurdle to getting spousal support is that you must have been married or, if not officially married, been living in a marriage-like relationship for at least two years.

If you’ve cleared this first hurdle, then you must consider whether or not you’re even entitled to spousal support. I’ll explain….

There are three ways in which a partner can be entitled to spousal support:

  1. Contractual Support;
  2. Compensatory Grounds; and
  3. Non-Compensatory Grounds.

The above-noted terms have legal definitions. So, I’ll explain each one below.

Under the “contractual grounds”, a support payment (to pay or receive) is created out an agreement that you may have made with your partner. If you haven’t agreed to anything, then consider the next basis for entitlement.

Under the “compensatory grounds”, a spouse is entitled to spousal support if they agreed (even implicitly) to not maximize their earning potential and instead, for instance, raise children and/or accept a lower paying job. At the same time, then, the other spouse is able to leave the home and pursue their employment potential.

Under the “non-compensatory grounds”, a spouse is entitled to spousal support if one spouse (truly) needs the money and there is a big difference between the incomes of the two spouses. In this case, the court will say, “There is a social obligation that the disadvantaged spouse be supported by the other spouse who is earning more money.”

If there is entitlement (under any of these above-noted grounds), then the court may require one spouse to pay spousal support to the other.

The amount of money payable in support will typically be dependent on the incomes of both spouses and the length of the marriage. And, for your information, the longer the marriage and the larger the difference in incomes between the parties, the more money one spouse will need to pay to the spouse.

And, please also remember that spousal support can be payable by either the husband or the wife: it does not discriminate based on sex.

And, sadly, as with most columns, I can only give you the tip of the iceberg.

 

If you have any questions, I recommend either contacting a lawyer or reviewing the case law on the following website, providing free access to court decisions: CanLii.

 

And now you know.

 

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.





Sex offenders and their children

Few, if any, people are as hated in our country as sex offenders, particularly those sex offenders who commit crimes against children. 

With that said, then, the purpose of this column is not to further demonize those offenders.  

Instead, the purpose of this column to briefly address what happens to the children of these sex offenders... 

And, no, I am not referring to children who were the direct victims of crimes.   Rather, I am referring to the children that 'belong to' the sexual offenders (i.e. their biological or step children).

Think about it...  We rarely ever hear about what happens to those children, right?   Well, that's the  purpose of this column. 

The collateral damage to the children of the sexual offenders is huge.  These children have elevated risks of depression, anxiety, and suicidal tendencies.   It may surprise you, too, to know that the children of sexual offenders experience stigmatization and harassment from others (like their parent).   This is, of course, completely unfair; but, it's a reality.

Now, of course, these are longer term effects.  So, what happens in the short term?    What happens to the children immediately after their parent's conduct becomes known? 

Well, in the short term, it is often unlikely that the offender will receive much, if any, unsupervised parenting time with their child(ren).  

Once the offence is discovered (depending on the seriousness of the offence), the Ministry of Children and Family Development would likely oppose the child being in the (unsupervised) care of that parent.   The Ministry's mandate is, of course, to protect children. 

Beyond that, too, it probably won’t surprise you to know that the other parent (who was NOT involved in the sexual offences) will likely oppose any contact between the child and their former spouse.  If that occurs, then a bitter court action will likely ensue.

Now, it is generally presumed (in court) that a child will benefit from spending time with both parents.  But, that presumption can be 'set aside' when one of the parents has a history of criminal or dangerous behaviour that may harm the child.    And, of course, that includes a parent who has a history of committing sexual offences. 

So, as a result, if the matter went to the court, a parent who has a lengthy and/or serious history of sexual offending behaviour would likely have a difficult time getting unsupervised parenting time (and may even receive ZERO time with their child). 

For instance, in J.M.G. v. T.H.P, 2007 BCPC 142, a father had a history of sexual offences that occurred prior to the birth of his son, who was three years old at the time of trial.   In that case, the judge found that it would be in the best interest of the son to grow up (at least for several years) without a relationship with his father, who was a thought to be a very bad influence. 

With all that said, though, it is POSSIBLE, depending on the facts in a case, that a sexual offender may receive parenting time.   Such parenting time would likely be supervised, though.  And, to explain, supervised parenting time refers to time that the parent can spend with the child in a supervised setting, typically supervised by a social or community worker or a friend or family member.    

Please know that this particular topic is huge.  And, my column surely can’t do it justice.  But, if there is one thing that I can make clear, it’s this: have sympathy for the children (and don’t take out your frustrations on them).   Because of their parent’s actions, their lives are forever changed.  

And now you know.  



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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.







The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet presents its columns "as is" and does not warrant the contents.


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