Family Law Blog

What should you do if a child says the family court judge, his parents and even his own lawyer are not listening to him in divorce court?

Teenage boy upset about parent’s divorce

This is an upsetting situation.   However, the prespective on hearing from children is changing in Ontario Family Law.  Many judges recognize children have a right to be heard in matters that affect them, provided it is the child who wants to be heard and not a parent trying to get the child to take sides. This webpage has information about kids expressing views in their parent's divorce process


Here is a podcast that has a discussion of what voice a child should have in family law matters.  You may also want to look at this article questioning why children have a much greater say in their health care then in where they live. 


Technically, a child does not have to be represented by the Office of the Children's Lawyer.  A child can retain a private lawyer to assist him or her.  Judges views this with some skepticism unless it is clear the child was not "put up to it" by a parent.  This means the child has to contact the lawyer himself, see the lawyer without a parent present and negotiate the retainer for that lawyer.  That lawyer can than advice the court and the OCL that he or she is representing the child and the the OCL is no longer doing so.    The court (and the OCL) will likey want to explore the situation to ensure this was not a parent influencing the child.  At some point, the child may have to say that he lost confidence in the OCL lawyer.  That may take some fortitude, but so will putting a position before the court on his parent's divorce.  However, a child who does all of that to ensure he is heard by the court, will convince most judges to at least listen. 


It sounds like you are being "neutral" in this situation, so it would likely be OK for you to assist the child in finding a lawyer. 


Also, it is important to remember that a child expressing a point of view is NOT determinative of any issue.  Even if a judge listens, the child will only be a witness, not the decision-maker.  After listening, the judge may make a decision that is different from what the child wanted.  However, often just knowing that the judge has heard his point of view is enough to get a child "on board" for any decision.


If you want to know the technicalities of the law in relation to courts listening to children, you can see if your local reference library or law library (often in the courthouse) has a copy of Wilson on Children and the Law.  There is a long chapter on this issue.  The book itself is several hundred dollars to purchase.  So, you will need to find a good library to get a copy.


There is more about children in the family court process, how to navigate family court, and many other family law issues in this $20 easy-to-understand book on Family Law


Can a family court judge order spousal support in a divorce even if a marriage contract says "no spousal support?"

marriage contract with spousal support release

There are specific circumstances in which a judge might set aside a marriage contract to order spousal support.  They are discussed in more detail in this podcast and in this video and in this $25 easy-to-undersant book on Ontario Family Law.   It is not a simple answer.  You really should consult with a family lawyer about how the law applies to your particular circumstances because a litel fact can make a big difference.  But, I will give also give a brief summary.


Spousal support can be ordered because a marriage contract has been set aside in these circumstances:

1. The parties did not understand the contract, meaning they did not each consult with an independent lawyer of their own choosing.

2. They did not exchange financial disclosure when they signed the contract.

3. The contract has terms that are not legal (and the terms of the contract are not severable).

4. There were problems with the negotiations - either one party was under duress, or one party was under pressure (the contract was signed right before the wedding), one party was trying to be "sneaky" with regard to the wording of the terms, there was unequal bargaining power, etc.

5. The parties did not contemplate the situation that they are in now at the time they signed the contract.


There is a more complete discussion of these considerations in the resources listed above.  If your contract was drafted by a good family lawyer, then chances are it has all the terms and wording it needs to guard against being set aside.  "Spousal support releases" are really technical. You really need a lawyer who knows a lot about family law to make sure a marriage contract says everything it is supposed to say in order to make sure a court will not order spousal support.  So, if you have a marriage contract or cohabitation agreement that your ex is challenging, you should take it to a family lawyer and have them check the terms, and the situation, and let you know your situation.  Spousal support can be worth a LOT of money in a divorce or separation, so it is best to know your rights and not guess. 


One more note... The test for whether a court can order temporary or interim support is different from the test for making a final order for support.  It is possible that a judge can order spousal support until the issue of whether spousal support should be ordered at all is determined in full.   I realize that sounds a little confusing.  It is complicated area of law, which is another reason to speak to a good family lawyer/divorce lawyer about your situation. 


What do you do if your child's other parent (mother or father) won't let you have your access visits?

sad-face-hi_med

If your children's other parent (mother or father)  is repeatedly denying you access, against a court order, then you should keep track of the circumstances. But do not let it go on too long.  You should go back to court, on a motion, and ask for the court to order make-up access for the time you have missed at times that work for the children and you.  The judge will not be happy that your ex is not obeying the court order.  He or she will get told off.  While the judge will always make the order that is in the best interests of the children (more on this webpage), an important factor in that is how willing a parent is to support another parent.  Bringing a contempt motion right after a problem starts might make you look like a bully or part of the problem.  However, if the problem persists, then you can use the judges comments on the first motion (for make-up time) as part of your evidence in the contempt motion and the second judge will probably be really angry. 


While it is important to be patient and measured in your actions while being denied access, so that the judge sees you as a victim and not part of the problem, you should never give up trying to see your kids.  Keep going to the pick-ups, even if they are not there.  Keep knocking on the door at the times you are supposed to go.  Send your kids cards, emails and texts that tell them that you love them.  It is important that you child not feel like you have abandoned them - and kids can feel that way even if you are not willingly missing the access.    Trying to maintain contact demonstrates to both your kids and the court how valuable your relationship with your children is, which can make the task of re-establishing access much easier.

John's podcast photo

19 - What To Do If A Child Won't See One Parent


If the other parent says the kids do not want to go, check out this page. That is often not a valid reason for denying access.  For some strategies for what to do when a child refuses to go visit the other parent, or the other parent says that, listen to the podcast on the left.   You need to plan your approach to the situation before going to court. 


The Guide to The Basics of Ontario Family Law
Guide to the Basics of Ontario Family Law Available on Kindle
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Whenever you go to court, you should consider the circumstances of your children and the effect that your actions might have on them.  Judges really like it when you show you are sensitive to those considerations.  To find out more about them, listen to this Divorce Source Radio podcast.  The most effective way to make the best case to a judge is to have a family lawyer (or divorce lawyer) help you.  You should also get a copy of this easy-to-understand book on Ontario Family Law as a  paperback, for KindleKobo, or iPad/iPhone/Mac.  which you can download in minutes! That book covers these topics, and gives advice on how to navigate through Family Court and how to keep the judges on your side.


Parents who take matters into their own hands and defy court orders - either that they allow access, or that they turn over the kids because they are not allowing access - face serious consequences.  The video below is an example of what can happen to parents who defy judges’ orders to support the other parent’s relationship wth the kids:


or click here to listen to a radio segment on the consequences of these cases - for the parents and the children:


Family Lawyer, John Schuman, is a Certified Specialist in Family Law, who had handled many difficult custody and access cases - including many cases where a parent is denying access. Ensuring that children have a meaningful relationship with both parents is critically important for a child’s well being.  Contact John Schuman for an immediate consultation by calling 416-446-5847, emailing him, or using the contact form below.  You can also use comment on this page in the comments section at the very bottom of the page. 


Please feel free to share this page with your social media networks so that those around you can also benefit from this information.  There are sharing buttons at the bottom of this page.


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How do you get a legal/valid separation agreement in Ontario?

separation agreement in divorce

To have valid separation agreement in Ontario, you have to meet three basic criteria: the agreement has to be in writing, it has to be signed and both parties have to have their signature witnesses.

There are some additional considerations. A court can set aside the agreement, if either party asks, in certain conditions. These additional conditions essentially create other rules you must follow. Those rules are: 

1) Both parties have to fully understand the agreement - to understand a legal document judges think people should have independent legal advice, so this really means both sides need to see a lawyer to at least have the agreement explained to them before they sign. 

Ontario Family Law Podcast

2) The parties must exchange all relevant financial disclosure. This usually means exchanging information about your income, all your assets (and their value) and all of your debts. This goes back to understanding again. How can you understand if your deal is a good one if you do not know what your ex's financial situation is like? 

24 - How to Have a Valid and Enforceable Separation Agreement

3) The agreement must otherwise comply with the law of contract. There are rules for contracts. Lawyers know them. You would probably have to get a book on contract law to know them. Also, complying with the law of contract also means that the negotiations were done properly and the parties fully contemplated their circumstances at the time of the agreement and in the future. Again, the best way to make sure you have done this is to see a lawyer. 



Guide to the Basic of Ontario Family Law (Book)

If you do not follow these steps, you agreement may be worthless if you ever need to enforce it in court... meaning it is only good as long as you and your ex decide to keep following it. For a further discussion on considerations in getting to a separation agreement, see this page. You can also listen to this edition of the Ontario Family Law Podcast.  Also, there is a lot more detail about the rules for separation agreements, and the Family Law that you need to understand in this $25 ($9.99 e-book), easy-to-understand book on Ontario Family Law.

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On the topic of independent legal advice, the to get the best family law and divorce advice, book and appointment with Certified Specialist in Family Law, Toronto Divorce Lawyer, John Schuman. Contact him today by calling 416-446-5847, or by email or by using the contact form below.  You can also use the contact form to comment on this article, or to suggest topics for future law topics.   If you found this page useful, please share it on your social network using the buttons at the bottom of the page.



Can I be held in contempt if the kids are refusing to go for access? Can they be physically forced to go?


father-holding-childs-hand  parent hold child refusing to go

If there was ever a time when you need a lawyer, it is when facing a contempt motion. The judge can throw you in jail, for a significant period of time, impose large fines, or order other serious consequences. You need a good lawyer to advise and represent you to make sure the right facts are before the court. The court order for access requires you to do everything in your power to support the children having a relationship with their father. That entails telling them that they have to go. If that does not work, then you should have arranged for counseling or programs to assist them with their feelings toward their father.


The judge will also want evidence that you are not subtly suggesting to the children that it is not ok for them to go with their father. Once your ex has established that the access did not happen, it is up to you to show that it was not possible for it to happen. Judges do not think that children aged 9 and 11 should have the final say on these types of issues. They may have input, but if there are problems, then someone has to arrange a way for the children to express their feelings, while at same time figuring out how to make the access work.


If you want more information about giving a children a voice in family law matters, listen to this podcast.  You can also read this webpage.

For more information on these, and other family law issues,  get a copy of this easy-to-understand book on the Basics of Ontario Family Law. It goes over these matters in more detail, describes the court process and lists the most common ways to get into trouble in family court (with some advice to get out of trouble again).


© John P. Schuman 2012-2017