On March 1, 2021, The Children’s Law Act, 2020 (the “CLA”) came into force. The CLA amended the criteria for the best interests of the child analysis, directing the courts to more effectively consider family violence as a factor when determining decision-making responsibilities and parenting time.

The relevant sections of the CLA for determining an appropriate parenting order are sections 10(1) through 10(4), which now specifically require the court to take into consideration any family violence including the nature, seriousness and frequency of violence, the harm or risk of harm to the child and the pattern of this behaviour, amongst other factors. 

Allegations of domestic violence are present in a significant number of applications before the court. However, more often than not, the alleged abuser categorically denies the allegations. The issue of who to believe and what weight to attribute to the allegations has been a common issue in family law. With the new amendments to the CLA, these issues are, once again, front and center.

Since the CLA came into force several cases have come before the Saskatchewan Court of Queen’s Bench addressing this issue. In Juraville v Armstrong, 2021 SKQB 73, the mother and father both alleged physical, verbal, emotional and sexual abuse at the hands of the other and denied, absolutely and completely, the version told by the other. Mr. Justice Megaw performed an in-depth analysis of how the court considers contradictory evidence of domestic violence in light of decision making and parenting, stating:

The real question, therefore, is not whether particular events, or any events, did or did not happen. Those may be determined in a trial, or they may remain undetermined. The focus of the court now must be on, and remain on, the best interests of these children and how to safely structure parenting in view of what is being alleged. The allegations of violence and abuse must, of course, be considered in determining these best interests. Such consideration is done not from a perspective of punishing the alleged abuser, or any party. It is important to keep in mind, by addressing the allegations of violence and abuse and by inserting protections, the court is not to be seen as having made findings of fact regarding these allegations.
 

Ultimately, despite the significant allegations of domestic violence, Mr. Justice Megaw determined that the concerns regarding allegations of violence could be addressed by ensuring the parties did not interact on a personal level and that the evidence did not support a conclusion that the children’s best interests would prevent parenting time with either the mother or father.

In a similar decision, DW v EO, 2021 SKQB 157, both parents alleged domestic violence was inflicted by the other and adamantly denied they were the perpetrator of any abuse. Despite the allegations, Madam Justice Richmond determined that it was still in the child’s best interests to have a shared parenting arrangement to facilitate the relationship between the child and both parents. This, despite the fact that both parents alleged family violence, demonstrated an unwillingness to cooperate with the other regarding the care of the child with violence and arguments continuing to occur in front of the child and a high level of anger and animosity towards each other.

While it is now a legislative requirement through the CLA for the court to consider domestic violence when analyzing the best interests of the child, it is still only one of many factors for the court to consider in a highly subjective analysis. Based on recent case law, the presence of domestic violence, particularly where the violence has not been inflicted on the child, appears to have minimal impact on the best interests of the child analysis.

So, you’ve separated. Now what?

The short answer? It depends.

As with most things, separation can take one of many paths, and there is no universal approach. Generally, we see two paths: an easy way and a hard way. The easy way involves agreement and, often, compromise. The hard way usually involves lawyers, courts, and a lot of time, money, and emotional hardship.

If you’re certain this is the end of the relationship, I suggest you read the rest of this article. If you think you are just taking some time apart, it may be pre-emptive to consider the following steps. Please keep in mind that these suggestions are aimed at those who have truly reached the end of their relationship. Even If you were never legally married, the law may still consider you a spouse. This will vary by jurisdiction, legislation, and context, but in Saskatchewan, the rule of thumb is that one obtains property and support rights and or obligations after two years of living together.

If you were legally married or a spouse, here are the top 5 things you need to consider after separation.

1. IF YOU HAVE KIDS, PLAN YOUR PARENTING ARRANGEMENT

After separation, you must consider your parenting arrangement. Your child, or children, are of primary importance. How you handle things now will have a lasting impact on your relationship with them, their schooling, their friendships, and their state of mind. Accordingly, a lot of thought should go into this.

The Children’s Law Act, 2020 sets out that parents are presumed to have joint decision-making authority and responsibilities. No longer do courts in Saskatchewan look at simply custody and access. The primary focus is on what is in the best interest of the child or children.

The court will focus on the age of the child and their stage of development, the child’s relationship with each parent, each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent, and so on.

When agreeing to a parenting arrangement, you should discuss things such as the weekly schedule, holidays (including long weekends), birthdays, summer vacation, and family travel. Make sure to keep in mind the child’s schedule, as well as what is realistic and possible with each parent’s work schedule.

Ultimately, there is not a single “correct” arrangement, and the best plan is always going to be the one that works for your family.

2. DECIDE WHO IS LIVING WHERE

After separation, it is important to consider who is living where. Some have suggested that staying in the family home is paramount, but this advice is questionable. The family home is a sharable asset, no matter whose name is on the title or who continues to reside in the residence after separation.

If there are children the primary consideration is often how to minimize any disruption in their lives. To this end, former couples may enter into “nesting agreements” where they share the home or continue to live with one another. A “legal” separation starts when the intention to live separate and apart forms.

Often, one party will stay in the home and the other will find someplace to rent. Deciding who will live where and how it will be paid for is the focus at this stage.

3. TAKE STOCK – INVENTORY ALL ASSETS AND LIABILITIES

Once things have slightly settled, make a list of what you have and what you owe, along with the corresponding values of each.

Gather information that confirms or verifies when cohabitation commenced, a copy of your marriage certificate, and any documents that support your list of assets and liabilities or debts.

You usually don’t want to go so far as to list every dish and piece of silverware, but you should definitely list major assets, e.g. home, cabin, cars, jewelry, art, etc., and estimate the fair market value of each. Similarly, list the debt each person has.

Upon separation, the rule of thumb is that you divide the gains during the marriage. Therefore, you should parse out the property that you had, or the value of it, prior to the marriage.

If you had a common-law relationship, the two-year anniversary is considered the “date of marriage”.

Decide who keeps what.

4. GATHER TAX RETURNS

One of the primary things lawyers will look for next is evidence as to what each party makes. This will require documentation of sorts, e.g. income tax returns, notices of assessment, and pay stubs.

The income information can be used to determine whether one party should pay support. If you know the other party’s income, you can calculate support on your own using sites such as https://www.mysupportcalculator.ca/. Sites such as this one can help determine your budget and how much you need or have to live on.

5. PUT IT INTO WRITING

Once the dust begins to settle and the vision for the future becomes a little clearer, you should encapsulate everything in a separation agreement. It’s better to avoid serious issues in the future by building a good agreement today. Having a separation agreement in place makes the path going forward a little easier, including the likely divorce, and it helps avoid disputes.
Separation agreements generally revolve around 5 things:

• Recitals, which spell out the details of the relationship and the parties—date of cohabitation and/or marriage and date of separation;
• Custody, access and parenting arrangements;
  Child support;
• Division of property—who keeps what property and who takes what debt; and,
• Spousal support—how much will be paid and for how long.

The cost of preparing an agreement like this typically depends on how much the lawyer must negotiate, as well as how complicated the affairs are of the parties involved. For example, if the parties have lots of business entanglements, then the cost of an agreement will be higher. And, if the negotiation is already mostly done, agreements may be drawn up for a lot less.

Click on this link to read our full article and to watch a video that provides more helpful information 

At the end of the day, we know that this list of things to consider after separation isn’t comprehensive – it would be impossible to make a list that covers every scenario! This is why we offer a free consultation. You can call 306.569.1301 to speak with one of our experienced lawyers .We will try to get back to you as soon as possible, usually within 24 hours.

Robert Mackay and the team at Mackay & McLean offer a variety of legal services and are able to represent you in a variety of situations that require counsel. In addition, they offer a free initial consultation. They are Trusted Regina Lawyers, based in Regina Saskatchewan,  and they specialize in real estate, criminal, personal injury, commercial & family law.

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