WHAT CAN YOU DO ABOUT “PARENTAL ALIENATION”?

Posted in: FAMILY LAW- Jul 10, 2015 Comments Off on WHAT CAN YOU DO ABOUT “PARENTAL ALIENATION”?

Most of us have seen a friend or family member’s marriage go bust in a bitter divorce. Sometimes the couple’s children are victims in their parents’ ongoing conflict long after the break-up. One parent, often the primary caregiver, may influence the kids to take sides and subtly turn them against the other parent.

 

Undermining the kids’ relationship with the other parent, even unintentionally, damages children’s emotional and psychological well-being and is contrary to the Family Law Act. This phenomenon is called “parental alienation” and may lead to children not wanting to see or have anything to do with that other parent. When a child’s previously close relationship with both parents turns sour with one parent without good reason, that’s a hallmark of parental alienation.

Our B.C. Supreme Court recently had to deal with parental alienation. Colin and Claire (all names changed) had two kids, Mary and Becky, born in 2000 and 2002. The couple separated in 2008 and divorced three years later. Both parents were intelligent and capable individuals who loved their children, and they agreed to equal parenting arrangements. The court subsequently gave them joint custody and joint guardianship of the kids and ordered a three-day alternating parenting schedule, later changed by Colin and Claire to a five-day alternating schedule.

These arrangements worked well initially, but over time the kids became increasingly reluctant to spend time with their dad. One example: in late 2011 when Claire dropped Becky off to see Colin, Becky ran back to her mom’s car, buckled herself in and refused to come out for half an hour despite her dad’s pleading. By 2013, when Colin was to pick the girls up from a church drop-off, or was to take them after school, he couldn’t because they ran away. They also refused to see him during a court-ordered holiday access. When interviewed by a psychologist, both children expressed strong negative views of their father, but positive ones of their mother.

Colin thus asked the court for a “custody reversal order” and other orders to help resolve the problem.

The court concluded the children were a product of parental alienation – their negative feelings and rejection of their dad was significantly out of line with their actual experience with him. Both Mary and Becky suffered from emotional and mental health problems – the older girl from depression and suicidal thoughts, her younger sister from an anxiety disorder and anger issues.

The focus in such cases is on the best interests of the children long-term. The court intervened in an effort to undo the girls’ alienation from their dad, to foster their future relationship with both parents and to minimize emotional damage.

Colin got sole guardianship, interim custody and primary residence of the two girls for the time being, and Claire was to have no direct or indirect access to them. Claire, Colin and the children also had to enroll in a family reunification program for a year (the program’s director would make regular progress reports to the court).

Parental alienation situations are complex, and each case requires a unique solution. It’s important you act quickly and get legal and other help promptly if you’re caught up in such a conflict-ridden situation.

 

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer

CHILD SUPPORT RE-EXAMINED

Posted in: FAMILY LAW- Jul 10, 2015 Comments Off on CHILD SUPPORT RE-EXAMINED

Child support obligations aren’t always clear, especially if there are unusual circumstances. The B.C. Court of Appeal recently dealt with such a case.

The court considered the child support obligations for Peter (all names changed here), a pleasant 24-year-old man with a mental disability. Peter couldn’t make basic decisions for himself and likely would never be able to live independently. His life expectancy was normal, and he would need support for the rest of his life.

Peter’s parents, Mark and Linda, had divorced in 1995. They initially shared joint custody and guardianship of Peter, five years old at the time, but in late 1996, they agreed that Mark would have sole custody. Since Mark’s business took him to the United States a great deal, he also agreed to pay Linda (who earned only a modest income at the time) $300 a month in child support. This was essentially to enable her to travel to the U.S. for visits with Peter, which she did frequently over the years.

By the time of the court hearing over child support, however, both Linda and Mark were very well-off financially.

Linda had married a venture capitalist in 1998 and enjoyed an affluent lifestyle. She didn’t work, and details of her current income were sketchy (she got some money from a company her husband was involved with). Before her first marriage to Mark, she had earned roughly $20,000 a year as a charter airline employee, and in the initial court documents in this case, she said she earned $20,000 annually, though later said it was less.

Mark, 68 and retired, owned a mostly U.S. real estate portfolio worth $11 million (in addition to a substantial inheritance)and earned some $168,000 a year.

Their son Peter had some significant assets himself, partly from an inheritance from his grandmother and partly from a trust fund, though that fund could only be accessed if the Public Trustee agreed. Peter also got some monthly government assistance.

Due to the substantial change in the financial picture since the old child support arrangements had originally been put in place, the lower court decided Mark didn’t have to pay Linda any arrears dating from 2008 or make any further child support payments to her.

But Mark also wanted his ex-wife to help pay for the ongoing support of their son.

The Court of Appeal emphasized that, even though Mark could well afford to support Peter alone, Linda was also responsible for Peter’s support – it’s fundamental that both parents have an obligation to support a child like Peter, who was likely to outlive his parents.

It was Linda’s voluntary choice not to work, observed the appeal court. So it said Linda should be treated as earning $20,000 annually. Using this income figure and the child support guidelines, the appeal court ordered Linda to pay Mark $174 a month toward Peter’s child support.

Each case is unique and depends on its own facts and circumstances. If you’re involved in a difficult family law situation, consult your lawyer for help.

 

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer

BUYING A HOUSE? PROTECT YOURSELF

Posted in: Real Estate- Jul 10, 2015 Comments Off on BUYING A HOUSE? PROTECT YOURSELF

The house you’ve decided to buy looks in good shape. Of course it’s expensive, and you have to pay transfer tax, legal fees and moving costs on top – so should you bother with an inspection, one more cost? Absolutely!

Peter and Anne (names changed) were looking for a house for their young family. Peter and his dad looked at one they liked on land not far from Peter’s dad’s home in Chilliwack. An offer for the property was accepted by the owners, the Millers, for $1 million. The offer was subject to the buyer getting and approving an inspection report against, in effect, any costly or significant defects.

The buyer’s inspection report identified some deficiencies, but nothing about moisture damage and the inspection condition was removed.

Some days afterwards, Peter’s dad heard that mould and rot had been discovered in the framing a few years earlier during an insurance claim investigation.

The Millers rebuffed attempts for a more extensive examination and said the insurance claim problem had been fixed. They also refused to set aside any money from the sale proceeds to deal with any problems and threatened to pocket the deposit if the sale didn’t go through. So the purchase of the property was completed, with Peter and Anne telling the Millers they’d do a detailed inspection and give the Millers an estimate of the repair costs.

The house was discovered to have widespread rot and mould in the outside walls due to ongoing issues with water getting in from two problem areas. The repair costs to replace the cladding and some of the framing came to over $140,000.

The court highlighted that a buyer has to meet a high standard to investigate potential problems with a finished house – if a reasonable inspection by a qualified person would have brought them to light, they are “patent” defects that a seller need not point out to the buyer, who’d be stuck with them. The rule is still very much “buyer beware.”

But in this case, the court said the Millers were responsible for the buyer’s $140,000-plus repair costs and part of their legal costs.

Here, inspections by two qualified inspectors didn’t initially reveal the defects because home inspectors are limited in what they can do – they can’t take invasive measures like drilling test holes or removing foam insulation to look behind. So the defects here were “latent” or hidden. Sellers who know or should reasonably have known of such latent defects have to tell buyers about them.

The Millers had been told after the insurance claim inspection that there was rot and mould in the structural framing due to ongoing problems of water getting in. The estimate to fix them was $50-60,000 or more. But they made only inadequate makeshift repairs. And there were water problems with the structural framing in another part of the house which they also didn’t deal with adequately.

In addition, the Millers’ answers in the property disclosure statement about what they knew about water problems were, at best, misleading. They mentioned minor past issues but said nothing about the two major problem areas they knew about. This was deceptive and amounted to “fraudulent misrepresentation.”

 

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer