Friday, December 23, 2016

Happy Holidays!


Wishing all our clients, colleagues, readers, friends and families Happy Holidays and a New Year filled with prosperity and success!

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

LSUC Targets Racism in the Legal Profession

BY LARA FRIEDMAN AND RACHEL SPENCE 

Rachel Spence and Lara Friedman"Effective responses to racial discrimination and racial profiling start with acknowledging that racism exists." 18 — Ontario Human Rights Commission."
The Law Society of Upper Canada recently published a report, “Working Together for Change: Strategies to Address Issues of Systemic Racism in the Legal Professions," 
The strategic framework [proposed by the Report] is the culmination of thorough study and province-wide consultations, showing that racialized lawyers and paralegals face longstanding and significant challenges at all stages of their legal careers.
The Report recommends 13 strategic initiatives, including the following; 
  1. Reinforcing Professional Obligations 
  2. Diversity and Inclusion Project 
  3. The Adoption of Equality, Diversity and Inclusion Principles and Practices 
  4. Measuring Progress through Quantitative Analysis 
  5. Measuring Progress through Qualitative Analysis 
  6. Inclusion Index 
  7. Repeat Challenges Faced by Racialized Licensees Project Inclusion Survey the Law 
  8. Progressive Compliance Measures 
  9. Continuing Professional Development (CPD) Programs on Topics of Equality and Inclusion in the Professions 
  10. The Licensing Process 
  11. Building Communities of Support
  12. Addressing Complaints of Systemic Discrimination 
  13. Leading by Example 
The Law Society also calls for action in five areas, as follows;
  1. Accelerating a culture shift
  2. Measuring progress 
  3. Educating for change 
  4. Implementing supports 
  5. Leading by example 
To learn more about this, please read the article published by The Law Society of Upper Canada.

Let us work together to make racism a thing of the past!

- Lara Friedman and Rachel Spence

Visit our Toronto Law Office website: www.wiselaw.net

Thursday, December 22, 2016

Life Insurance: Your Money's Life After Debt

BY PAUL B. ADAM, ASSOCIATE LAWYER

Paul AdamIn a post last week, I made reference to the argument that estate assets should be taxed after death, forjust the CRA, though! Many people, sadly, depart owing substantial sums to creditors, on mortgages, banks debts, credit cards, and other unfortunate contingencies of life.
the betterment of society. How fortunate are those of us who die with debts owing to

In such a situation, is there a way to protect at least some assets for the collectors after death and preserve a legacy of sorts? Life insurance does offer a way to use smart investing and smart estate planning to pass your money on to your beneficiaries after you die, at least up to a point.

The Supreme Court of Canada has been satisfied for the better part of 60 years, at least since the decision in Kerslake v. Gray, [1957] that when a person names a beneficiary of a life insurance policy under the Insurance Act, the proceeds of that policy do not form part of the deceased's estate, where they would become fair game to the taxman and to various creditors.

Provided that a person makes the appropriate arrangements during his or her lifetime to acquire a life insurance policy and pay premiums regularly, the money that accrues in that policy will be beyond the reach of any creditor of that person's estate. This province has also extended that same exemption from falling into an estate to other registered plans, like an RRSP (see Amherst Crane Rentals Ltd. v. Perring, Ontario Court of Appeal, 2004).



If you've heard the arguments that you should start investing in life insurance while you are young, let me now add another. In Moody v Ashton (Saskatchewan Queen's Bench, 2004), the Court considered whether premium payments into a life insurance policy should be exempt from seizure by a creditor, even if the policyholder was making the payments, knowing that he or she had other debts to pay and was soon to be insolvent. One might worry in such a circumstance that those regular payments to life insurance should stop, and be remitted to creditors, lest the creditors come for the entire policy!

The Court actually ruled, that as long as premiums on a life insurance policy were not being made with the specific intent to defraud creditors, by shifting money out of their reach, the insurance policy or the amount paid on premiums should be exempt from seizure.

There are limits, of course. Someone could not begin large pre-payments of premiums, or purchase additional life insurance on the eve of insolvency. This would be a too-blatant an attempt to defraud those creditors.

The reasoning in Moody has seemingly never been tested in Ontario Courts (though there's every reason to think the very thorough judgment would pass muster), and it's seemingly never been applied to regular contributions to other savings like RRSPs in the face of an impending insolvency.

But Moody showcases yet another reason conscientious last will planning, beginning when times are good, can provide a little shelter from a financial storm later in life.

- Paul B. Adam, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Wills and Estate

Here is your daily LawFact from Wise Law for Thusday December 22, 2016. Today we are talking about Wills and Estates.

A video posted by Wise Law Office (@wiselaw) on

Life insurance policies that designate a beneficiary become that beneficiary's property on the day the insured dies.

The proceeds of that policy do not become part of the insured's estate and are not subject to estate tax.

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Wise Law Blog: Post #3500 - On Milestones, Law Blogging, the Marketing Classes and Vulgar Talking Yams

BY GARRY J. WISE

So, after all is said and done, this is blogpost number 3500 at Wise Law Blog.

It's not like I actually count these things, I hasten to add.

(I don't have that many fingers and toes)

The Blogger interface that hosts us, however, is benevolent enough to keep a running tally of post numbers, and I did happen to notice a week or so ago that we were getting very close to this milestone of sorts.

It feels like 3500 posts means something.  Or at least, that it should.

I've been at this blogging thing for quite a while now.  Pushing 12 years, to be approximately precise, going back to the early days when law blogging was significantly more issue-oriented, raucous and unapologetically opinionated.  In the intervening time, we've seen quite an evolution in social media as a whole, and in the ways lawyers and other professionals have used these remarkable tools to interact with our readers, clients and peers.

And in that same time, social media and law blogging came to be pushed, packaged, programmed and corporatized by the marketing, SEO and consulting classes. Much of the legal profession lapped up the bald message that blogging equals dollars, and the number of law blogs out there, if not the quality thereof, increased exponentially.

And readers gained a remarkable insight, one long known to judges: Some, but not all lawyers can write.

Law Sites' Robert Ambrogi, one of the original U.S. law bloggers, reported last month on an American Bar Association study of law firm blogging:
The number of law firms with blogs has plateaued, neither growing nor dropping for four years straight, according to the 2016 Legal Technology Survey Report recently published by the American Bar Association’s Legal Technology Resource Center.
The survey found that 26 percent of firms have blogs. That number has remained effectively unchanged for 2016, 2015, 2014 and 2013.
The larger the firm, the more likely it is to have a blog. Among firms of 500 or more attorneys, 60 percent have blogs, and at firms of 100-499 attorneys, 52 percent have blogs. In contrast, just 12 percent of solos have blogs and 20 percent of firms of 2-9 attorneys have blogs.
However peaked or plateaued law blogging may be, it has at the very least demonstrated staying power.

But I must confess, it used to be a lot more interesting, back in the day, when law blogging wasn't quite so safe.

And now that America has elected a vulgar talking yam to be its next President, I'm not sure safe can continue to be good enough.

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Wednesday, December 21, 2016

New Ontario Law Assists Grandparents Seeking Custody and Access With Grandchildren

BY SIMRAN BAKSHI, ASSOCIATE LAWYER and GARRY J. WISE, SENIOR COUNSEL
Garry Wise amd Simran Bakshi
Typically, grandparents have access visits with their grandchildren during the time allotted to the children's parents. 

What happens to grandparental access, however, where a parent does not seek access entitlements, does not reside in the jurisdiction to exercise access, or is otherwise estranged from the child's grandparents? 

The sad reality in such circumstances is that often the once-cherished relationship between grandparents and grandchildren can become distant and estranged.  In many cases, this is a bad development for grandparents and grandchildren alike.

The legitimate concerns that many grandparents have about access to their grandchildren were recently brought to the forefront with Ontario Bill 34, also known as the Children's Law Reform Amendment Act (Relationship with Grandparents), 2016.

This Bill, which has now been enacted as law, effective early December, provides for the entitlements of grandparents to be formally recognized in the statute by virtue of the following additions to the CLRA:
Application for custody or access 
21. (1) A parent of a child or any other person "including a grandparent" may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.  R.S.O. 1990, c. C.12, s. 21.
Merits of application for custody or access 
24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).  2006, c. 1, s. 3 (1).
Best Interests of child
24 (2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, "including a parent or grandparent" entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
It should be noted that the CLRA has always permitted Ontario grandparents to seek court orders for access or custody. Though “grandparents” were not expressly referred to in the relevant provisions of the statute prior to the amendments to the Act, the CLRA nonetheless permitted “any other person” to apply for an Order respecting custody of or access to the child, if it would serve in the child’s best interests having regard for “the love, affection and emotional ties between the child” and the applicant.




Historically, however, the Courts have been reluctant to order independent grandparental access, especially in the high-conflict family circumstances in which many access applications by grandparents have typically been brought.

The purpose of amending the CLRA is to provide legislative support to grandparents seeking visiting rights from the family courts. During the third reading of the Bill, its purpose was eloquently described by Ontario Attorney General Yasir Naqvi, as follows:
Speaker, from the beginning when we started the debate on this bill, our government was clear that we supported the ability of grandparents to seek assistance from the Family Courts in cases where they have been unfairly denied access visits to their grandchildren. At the same time, we wanted to ensure that any decision about access to a child will continue to be made in the child’s best interests. The law must always focus on the needs of children. That was the approach we took to this bill. I know that every member of this Legislature agrees with that statement. 
To provide some background to all members, under Ontario’s Children’s Law Reform Act, a grandparent already has the ability to obtain an order for access to their grandchild if it is found to be in the child’s best interest. Under the current law, our courts must consider the “love, affection and emotional ties” between a child and any person who is applying for custody or access. This includes grandparents in any instance where the child’s grandparents are an active part of the child’s life. I want to stress that particular point. So this is not an entirely new concept. It does already exist in law. 
This bill is about supporting the ability of grandparents to seek assistance from the Family Court and ensuring that any decision about access to a child will continue to be made in the child’s best interests. We have always supported this bill’s purpose because, Speaker, it would be a shame if a loving and caring grandparent was not able to have access to their grandchild. We want to ensure that in these cases, we are facilitating this relationship that is focused on supporting the best interests of children.  
The reality is, while in many cases grandparents play a necessary and positive role in the lives of children, there are circumstances where it is not practical or appropriate to extend this legal authority. That is why, Speaker, we put forward an amendment at committee that would make it clear that grandparents have the ability to seek a court order for access to their grandchild under the Children’s Law Reform Act. At the same time, it would ensure that a court remains focused on determining what arrangement would be in the best interests of the children involved.
This legislative initiative gives Ontario grandparents a stronger legal foothold from which to pursue more regular, protected and guaranteed visitation time with their grandchildren, particularly in situations where contact with grandchildren has been impeded without good reason.  

While it remains to be seen how aggressively Courts will implement the intention of this new law, its enactment is clearly a positive development for the Province's grandparents and grandkids.

- Simran Bakshi, Associate Lawyer Toronto
- Garry J. Wise, Senior Counsel, Toronto

LawFact of the Day: Family Law

Here is your daily LawFact from Wise Law for Wednesday December 21, 2016. Today we are talking about Family Law.

A video posted by Wise Law Office (@wiselaw) on

In difficult custody cases, a Court may request that the Office of the Children’s Lawyer (OCL) become involved to investigate and make recommendations to the Court or to provide legal representation for a child.

The OCL is an Ontario government agency that employs lawyers and social workers. It works to provide independent information to the Court about a child’s needs, wishes and legal interests.
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Tuesday, December 20, 2016

When is a Layoff Really a Termination in Disguise?

BY SIMRAN BAKSHI, ASSOCIATE LAWYER 
Simran Bakshi

There are big differences between the ways the law treats employee layoffs and permanent terminations. 

Although the terms are often used interchangeably when describing employment that has ended, they are not the same thing at all.


A layoff, by definition, is temporary in nature, premised on the mutual understanding that the employee will in due time be recalled to return to work. In contrast, a termination is generally intended to be a permanent end of employment, and requires that the employer provide notice or pay in lieu of notice, where the dismissal occurs without any just or proper cause.


Where an employee has not consented to this arrangement, the attempted layoff may be challenged as actually being a constructive dismissal. That is, the employer may be seen as having fundamentally altered the terms of the parties’ employment agreement, by choosing to no longer actively employ the employee. In such circumstances, the employee may be entitled to treat the employment relationship as having been effectively terminated, and claim notice or pay in lieu of this notice for this termination.


It is therefore a good idea to consult with an employment lawyer if you have been laid off, to determine assess your circumstances and entitlements.An important question to consider then is when is a layoff actually a layoff, and when is it merely a termination in disguise?


Ontario's courts have long held that for an employer to legally lay off any employee, there must be an employment contract with that employee that specifically or implicitly authorizes such a layoff. 





[As a side note, in the 2013 decision of Trites v Renin Corp., the Court suggested that, contrary to this generally-accepted legal principle, there is in fact no formal requirement that an employment contract include any layoff-permitting provisions, so long as the employer otherwise complied with the ESA. This decision does not however appear to have been applied or followed by the Courts thereafter, and in fact was expressly rejected in the more 2016 case of Michalski v Cima Canada Inc.


The employer must also fully comply with the layoff provisions set out in the Employment Standards Act. In particular, in accordance with section 56(2) of the ESA:
Temporary lay-off
(2) For the purpose of clause (1) (c), a temporary layoff is, 
(a) a lay-off of not more than 13 weeks in any period of 20 consecutive weeks; 
(b) a lay-off of more than 13 weeks in any period of 20 consecutive weeks, if the lay-off is less than 35 weeks in any period of 52 consecutive weeks and, 
(i) the employee continues to receive substantial payments from the employer,(ii) the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,(iii) the employee receives supplementary unemployment benefits,(iv) the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,(v) the employer recalls the employee within the time approved by the Director, or(vi) in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or 
(c) in the case of an employee represented by a trade union, a lay-off longer than a lay-off described in clause (b) where the employer recalls the employee within the time set out in an agreement between the employer and the trade union.  

The employer may not be required to provide a specific recall date (unless the employment contract provides for otherwise), but it must strictly adhere to the time frames set out in the ESA. If the employer lays the employee off for a period longer than the period of a temporary lay-off, it will be held to have terminated the employee’s position of employment.

Overall, it is important to appreciate the requirements of a layoff in order to better understand whether the circumstances presenting constitute an actual temporary layoff, or rather reflect a permanent termination of employment.

- Simran Bakshi, Associate Lawyer Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday December 20, 2016. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on

The amount payable to wrongfully dismissed employee depends on length of employment, age salary and several other factors.

It can be as much as one month for each year of service, or even more in exceptional circumstances.

- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Monday, December 19, 2016

Top 10 Legal Headlines

Here are your Top 10 legal headlines from Wise Law on Twitter last week.

A video posted by Wise Law Office (@wiselaw) on


- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

140Law: Legal Headlines for the week of December 19, 2016

Here are this week's leading legal news stories from Wise Law on Twitter



- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Thursday, December 15, 2016

LawFact of the Day: Wills and Estates

Here is your daily LawFact from Wise Law for Thursday December 15, 2016. Today we are talking about Wills and Estates.

A video posted by Wise Law Office (@wiselaw) on


Everyone who applies in Ontario for a Certificate of Appointment of Estate Trustee is required to file an Estate Information Return within 90 calendar days after a Certificate of Appointment of Estate Trustee has been issued by the Court. 

An Estate Information Return must be filed with the Ministry of Finance. This form is used to certify the net value of the assets of an Estate and to verify the Estate Administration taxes payable by an Estate.
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

The (Dreaded) Ontario Estate Information Return

Paul Adam, Wise Law
"What my thankless job managing an estate needs is more expense and paperwork," said no Executor ever.

Nonetheless, the Ontario Estate Information Return has arrived and is here to stay.

Effective January 1, 2015, every Executor or Estate Trustee who obtains a grant of probate (also known in Ontario as a certificate of appointment) must accurately complete a comprehensive 7 page report about the value of all assets of the deceased person on the date of death.

The Information Return is due 90 days after a Certificate of Appointment is issued.

What new work has been created for trustees in light of this exciting new legal requirement?

The Information Form requires the Estate Trustee to accurately disclose information to the government about:
  1. the value of the deceased's property, including real estate, in Ontario, and the value of interests the deceased had in property legally owned by someone else;
  2. the value of the deceased's investments on date of death;
  3. the balance in bank accounts on date of death; 
  4. the value of cars and other vehicles and "vessels" (which include "motorcycles, boats, all-terrain vehicles, bicycles, snowmobiles, etc.");
  5. the value of other assets (the form lists as examples: "business interests, copyrights, patents, trademarks, household contents, art, jewelry, loans receivable, etc.").
This information is utilized to update and verify information previously disclosed in the application for estate administration as to the Estate's value.  Ontario probate fees, now known as estate administration taxes, are paid at the time an application for administration is filed, and are calculated as a percentage of the Estate's value, as disclosed in the Application.

(Current estate administration taxes in Ontario for estates valued over $50,000 are $250 + $15 for each $1,000 or part thereof by which the value of the estate exceeds $50,000)

Additional estate administration taxes - or refunds - may be payable based on the new numbers, once the updated valuation information in the Estate Information Return has been filed.

Ontario Estate Information Return
Ontario Estate Information Return
The Estate Information Return is in its infancy as a legal document, but the Ontario Government has already signaled that the values reported on the Estate Information Return must be backed up by professional valuations. That means Estate Trustees will now need to have a plan (and the money) to produce an objective valuation of estate assets. 

The upside to this is that it may provide an incentive for estate trustees to get organized quickly to appraise and call in all of the assets of the estate earlier in the administration process, which saves time down the road.

The downside is that estate trustees will need even more funds at their disposal to pay the professional fees necessary to deal appropriately with reporting. This will make administering an Estate an even more costly and time-consuming operation, even if there aren't any legal disputes at stake among estate beneficiaries.

If the estate trustee needs to pay for some of the accounting and appraisal fees out of pocket, that trustee will need a few thousand dollars set aside while waiting to be reimbursed out of the Estate's assets. That's a luxury not every trustee will be able to easily afford. 

There are plenty of compelling arguments that fair taxes on inheritance, including Ontario's Estate Administration Tax (the highest in Canada) are important and necessary tools to address the tax-free inter-generational transfer of wealth, which is the main mechanism by which the wealthy stay wealthy



But, it seems that reporting measures like Estate Information Returns will put a big squeeze on small- and medium-sized estates, for which paying extra professional fees is a significant expense.

Conversely, it may not do much to stop large estates from (legally) avoiding high taxes with expensive estate planning and the preparation of complex last wills. Furthermore, instead of using the mechanism of estate taxes to redress income inequality, paperwork like the Estate Information Return may wind up redistributing a lot of hard-earned money from beneficiaries to valuators, accountants and other professionals.

- Paul B. Adam, Toronto

Wednesday, December 14, 2016

Task Force Goes Into the Weeds on Canada's Legalization of Marijuana

BY GARRY J. WISE

Matt Mauer has an epic post today at Slaw regarding extensive recommendations, now released by a federal task force, on implementing marijuana legalization in Canada.

See: Task Force Recommendations on Legalization of Marijuana: The “Coles” Notes.  

Matt has done the heavy lifting with a very detailed overview, which I highly recommend (pun absolutely not intended).

I'll touch on a few of the report's highlights:
  • The corner, marijuana-only store will be a more likely retailer of the future than the LCBO, if the report's recommendations are to be followed. The task force recommends that cannabis should not be sold in locations that also sell alcohol or tobacco products. 
  • The report also recommends that private cultivation by individuals of up to four cannabis plants be permitted
  • If the report is followed,social smoking environments such as cannabis lounges will also be allowed
  • It recommends that the law establish a limit of 30 grams, or just over an ounce, for the personal possession of non-medical dried cannabis in public with a corresponding sales limit for dried cannabis
  • To combat marijuana-related impaired driving, it recommends the government invest in the development of roadside drug screening technologies to detect THC levels.
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net

Quotable: Ian Hu on What Clients Really Want

BY GARRY J. WISE, WISE LAW OFFICE

From LawPro's Ian Hu, via Slaw:
Clients have unique concerns. The lawyer’s job is to listen to those concerns and meet them head-on. Not every client is as interested as you are in the workings of the law. More often than not, I have found clients want an interpreter of the law, not a teacher of the law. Avoid legalese. Make it easy to navigate the legal terrain. Communicate using words and phrases the client understands. It’s far too easy to fall into the trap of talking the way you want to talk, not the way the client needs you to talk. The number one source of claims is the failure to communicate. And failure to understand and address the client’s greatest concern can cause the client to lose confidence in you.
Sounds exactly right to me.
- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

The Tell-Tale Signs of Parental Alienation

BY RACHEL SPENCE, LAW CLERK AND SIMRAN BAKSHI, ASSOCIATE LAWYER 

Parental alienation is sadly not all that uncommon in high conflict separated and divorced families.

In the first of our two-part blog series on this topic, we will begin by setting out what parental alienation is, and how best to recognize the early signs of such behavior. Next week, we will be turning our discussion to how the family courts may choose to address this issue.

It is imperative to have a strong understanding of what parental alienation is as well as what it is not. Unfounded allegations of parental alienation can be just as damaging to your child(ren) (and not to mention, your position before the Courts), so this issue should be broached carefully, with due consideration and caution. Where possible, you should consult with a lawyer and/or a medical professional to help you determine whether there is an issue of parental alienation presented.

What is parental alienation?

Parental alienation is the acts of a parent or family member to psychologically manipulate a child(ren) to harbor feelings of hostility, anger, fear and / or disrespect towards the other parent or family member. The objective of course is to alienate the child(ren) from the other parent, and to discourage the fostering of a meaningful relationship with the other parent.

This is a largely overlooked form of child abuse and family violence. It can often result in long-term estrangement issues, and put the child(ren) at risk of both mental and physical illness, in what has come to be known as "Parental Alienation Syndrome".

The Parental Alienation Syndrome Controversy:

The concept of Parental Alienation Syndrome ("PAS") is not without its own controversy. PAS was first developed by psychiatrist and Columbia University Professor, Richard Gardner, well over twenty years ago, in the context of trying to explain a trend of what he believed to be false accusations of child sexual abuse in child custody cases. Mr. Gardner went on to develop the "sex abuse legitimacy scale", which as you can imagine, made him quite the controversial figure.

His position that parental alienation could be characterized to be a "syndrome" with distinctive signs and symptoms caused by a particular pathological condition or disorder is quite contentious among fellow psychiatrists, psychologists and therapists as well. An interesting read on Mr. Gardner's perspective of PAS can be found here.

While the question of whether or not parental alienation is a syndrome remains controverted, the more important fact for our discussion is that parental alienation is recognized by the Courts as being a form of abuse.



What are early signs of parental alienation?
  • The child(ren) shows a sudden negative change in attitude towards a parent or guardian
  • The child(ren) perceives one parent as causing the financial problems of the other parent
  • The child(ren) appears to have knowledge of details relating to the legal aspects of the divorce or separation
  • The child(ren) appears uneasy around target parent, perhaps resorting to "one word" answers, and failing to engage openly in conversations as was previously the case;
  • The child(ren) is uncharacteristically rude and/or belligerent towards the target parent
  • Access time is not occurring as agreed upon or court ordered - visitation is being unilaterally cut back by the other parent
  • The alienating parent undermines the other parent or speaks disparagingly about other parent in the presence of the child(ren)
  • The alienating parent starts making reference to other parent as being abusive and a risk to the child(ren) with no apparent good reason
  • Allowing the child(ren) to choose whether or not to visit a parent, though not an appropriate decision for him or her to be making, particularly in the case of younger children;
  • Disclosing to the child(ren) why the marriage supposedly failed and giving the child(ren) the details about the divorce or separation settlement;
  • Refusing the other parent access to medical and school records or schedules of extracurricular activities;
  • Blaming the other parent for not having enough money, changes in lifestyle, or other problems in the child(ren)'s presence;
  • Refusal to consider routine requests for scheduling changes, for no reasonable justification, to obstruct the access of the other parent to the child;
  • False allegations of sexual abuse, drug and alcohol use or other illegal activities by the alienating parent;
  • Putting the child(ren) in a position wherein he or she is asked to choose one parent over the other;
  • Encouraging the child to harbor anger or resentment towards the other parent;
  • Setting up temptations to to interfere with the child(ren)'s visitation with the other parent;
  • Giving the child(ren) the impression that having a good time on a visit will hurt the alienating parent;
  • Interrogating the child(ren) about the other parent's personal life;
  • 'Rescuing' the children from the other parent when there is no danger.

What are the statistics related to Parental Alienation?
  •  Indian Journal of Psychiatry, 1988: A child who was separated from his or her father for a period of three (3) months or longer while between the ages of 6 months to 5 years old, suffered a 2.5 to 5 times higher risk of conduct disorder, emotional disorders and hysteria than a child that did not go through the same period of separation.
  •  Bron, Strack & Rudolph, Univ. of Gottingen, Germany, 1991: Drastically increased suicidal tendencies were found in people who had experienced the loss of the father.
  • American Journal of Orthopsychiatry, 1990: Children showed the most behavior problems if their parents were in a legal conflict and the visitation was not frequent or regular with both parents.
  • Acta Psychiatrica, Scandinavia, 1990, 1993: Scandinavian research found a significantly higher number of attempted adult suicides for people who, in childhood, had lost a parent through parental separation or divorce.
  • British Journal of Psychiatry, 1989: British researchers found that adults who suffered the loss of a parent because of separation or divorce have a significantly higher risk of developing agoraphobia with panic attacks and panic disorder
Going through a divorce or separation can be one of the most trying times of your life, particularly when it involves high conflict custody disputes. As you ride the emotional roller coaster that comes with this, it is so important that you remain as neutral and level-headed about your family situation as possible for the sake of your child(ren).
Next week, we will discuss the Court's recent position on the issue of parental alienation. Stay tuned!
- Rachel Spence, Law Clerk, Toronto
- Simran Bakshi, Associate Lawyer, Toronto

Visit our Toronto Law Office website: www.wiselaw.net