Kelsey and Camille (presently one of the cast members on Real Housewives of Beverly Hills) were married for almost thirteen years, and their divorce was finalized in February of 2011. At present, Mr. Grammer is in the news because he and his third wife, Camille, have been arguing about custody of the children, as well as access time with the children, mostly because, according to TMZ.com, they can’t stand being around each other and this is impacting the execution of the parenting schedule.  Camille is also displeased with Mr. Grammer’s lack of participation in the extra-curricular activities of the children to date.

The former couple attended Court on September 30, 2011, which, according to TMZ.com, unbelievably marked the first time they’ve come face-to-face since they officially separated.  Apparently they were there to deal with a Motion whereby Mr. Grammer was seeking to take the children on a six-day vacation outside his regularly scheduled access time.  Camille was opposed to the idea because she claims that Mr. Grammer has been refusing to take the children to their planned activities, which include dance class and a variety of sports.

The Judge decided that because some flexibility was required as between the divorced parents with regard to special occasions, for example, a vacation with the children, Mr. Grammer could take the children on the vacation he had planned, in spite of Camille not wanting to give her consent.  As a stipulation, the Judge decreed that Mr. Grammer must take the children to all of their scheduled activities.  The problem now is that historically Mr. Grammer has refused to attend the activities of his children when he knows Camille will be present – which according to reports is almost 100% of the time.

One would assume that it is in the best interests of the children to have both of their parents involved in the social and athletic aspects of their children’s lives.  Whether they are there to teach their kids, or merely to cheer them on, having a parent watching on the sidelines can mean a lot to children, particularly where the parents have gone through a rough divorce, as that may have been devastating for the children.

What is the best way to attempt to guarantee that a) the children will get to attend all of their scheduled events, and b) both parents will ensure they take the children to their scheduled activities?  If Mr. Grammer and Camille lived in Ontario, then the best course of action for them to take would be to negotiate a Parenting Agreement that has built-in clauses intended to deal directly with things like access to the children, and/or the children’s participation in things such as dance class and soccer practices and games.

I would direct Mr. Grammer and Camille to Part IV of the Family Law Act, and perhaps to a doctor like Dr. Crane, to act as a parenting coordinator so that they can devise a plan, on paper, that would be respected by the Courts (save for a few exceptions) if there was a conflict down the road.  Parties to a divorce are given the authority to contract with each other and outline the terms of their separation, in part or in full, by Section 54 of the Family Law Act, which reads as follows:

Separation agreements

54.  Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children;

(d) the right to custody of and access to their children; and

(e) any other matter in the settlement of their affairs.

If Mr. Grammer and Camille have entered into any such agreement, it should include clauses that dictate how each parent will attend the children’s activities and when.  If I represented either of them, I would advise that they do so, before the children start to carry the burden associated with the growing hatred that exists between their parents.

While the divorce is proving difficult for both Stephanie and Brant who despite their separation continue to reside together, a greater impact is being felt by the couple’s three children who are being subjected to a custody battle. Brant Junior, 16; Harry, 13; and Lily Margaret, six, have been forced to witness the conflict between their parents as the two duel to determine custody and access provisions. Brant argues that Stephanie is unfit to parent, accusing her of substance abuse. Stephanie contends these allegations, arguing they are merely a ploy to distance her from their children and claims that Brant is guilty of Parental Alienation.

Separation and/or divorce are processes involving many emotions ranging from rage, to depression, to remorse. These feelings are shared by not only the separating couple but also any children who may be involved. Therefore, when a couple makes the difficult decision to separate, it is crucial for them to recognize that their children’s fundamental need for security remains the same as during the time that the parents were married. In the course of a separation and/or divorce, children require that their parents continue to provide them with the same level of emotional support as they did when they were a family unit. In order for a child to feel secure, their parents must demonstrate to them that they are able to manage and get through the rollercoaster of emotions and changes that come with divorce and separation.

When a parent impedes positive contact with the other parent during the separation process they run the risk of alienating that parent. Parental alienation is a significant legal issue and unfortunately, it remains a prevalent matter in many family law cases. Parental alienation occurs when a parent’s behaviour marginalizes the other parent’s involvement with the children. As the void in the relationship between the children and alienated parent continues to grow, the children tend to develop a sense of animosity towards the so-called absentee parent. The alienated parent often responds by lashing out on the alienating parent and thereby creating a vicious cycle that indoctrinates a dislike for the alienated parent in the children.

The late Richard Alan Gardner, a former clinical professor of psychiatry in the Division of Child Psychiatry at Columbia University, described cases of intense rejection of a parent by children after divorce as “parental alienation syndrome” (PAS). He defined this syndrome as a disturbance occurring in children who are preoccupied with depreciation and criticism of a parent and denigration that is unjustified and/or exaggerated. Gardner describes these children as becoming obsessed with harboring feelings of hatred towards the alienated parent.

In view of the grave repercussions parental alienation may have on parties involved in a matrimonial dispute, recently, Ontario courts have adopted extreme measures when dealing with the issue. A growing number of judges have ordered a change in custody from the alienating parent to the alienated parent where alienated parents have been able to show the damaging effect of estrangement on the children.

Further, in Ontario, the Children’s Law Reform Act has recently been amended to reinforce the notion that in most cases, it is in the best interest of the children to have maximum contact with both parents. As such, the law now requires that parents have an obligation not only to allow access, but to facilitate that access.

34 (2) If the court is satisfied that the responding party wrongfully denied the moving party access to the child, the court may, by order,

1. require the responding party to give the moving party compensatory access to the child for the period agreed to by the parties, or for the period the court considers appropriate if the parties do not agree;
2. require supervision as described in section 34;
3. require the responding party to reimburse the moving party for any reasonable expenses actually incurred as a result of the wrongful denial of access;
4. appoint a mediator in accordance with section 31 as if the motion were an application for access. R.S.O. 1990, c. C.12, s. 83.

Period of compensatory access
(3) A period of compensatory access shall not be longer than the period of access that was wrongfully denied. R.S.O. 1990, c. C.12, s. 83.

What constitutes wrongful denial of access
(4) A denial of access is wrongful unless it is justified by a legitimate reason such as one of the following:

1. The responding party believed on reasonable grounds that the child might suffer physical or emotional harm if the right of access were exercised.
2. The responding party believed on reasonable grounds that he or she might suffer physical harm if the right of access were exercised.
3. The responding party believed on reasonable grounds that the moving party was impaired by alcohol or a drug at the time of access.
4. The moving party failed to present himself or herself to exercise the right of access within one hour of the time specified in the order or the time otherwise agreed on by the parties.
5. The responding party believed on reasonable grounds that the child was suffering from an illness of such a nature that it was not appropriate in the circumstances that the right of access be exercised.
6. The moving party did not satisfy written conditions concerning access that were agreed to by the parties or that form part of the order for access.
7. On numerous occasions during the preceding year, the moving party had, without reasonable notice and excuse, failed to exercise the right of access.
8. The moving party had informed the responding party that he or she would not seek to exercise the right of access on the occasion in question. R.S.O. 1990, c. C.12, s. 83.

Motion re failure to exercise of right of access, etc.
(5) A person in whose favour an order has been made for custody of a child and who claims that a person in whose favour an order has been made for access to the child has, without reasonable notice and excuse, failed to exercise the right of access or to return the child as the order requires, may make a motion for relief under subsection (6) to the court that made the access order. R.S.O. 1990, c. C.12, s. 83.

Order for relief
(6) If the court is satisfied that the responding party, without reasonable notice and excuse, failed to exercise the right of access or to return the child as the order requires, the court may, by order,

1. require supervision as described in section 34;
2. require the responding party to reimburse the moving party for any reasonable expenses actually incurred as a result of the failure to exercise the right of access or to return the child as the order requires;
3. appoint a mediator in accordance with section 31 as if the motion were an application for access. R.S.O. 1990, c. C.12, s. 83.

There is a Kenyan proverb that states “when two elephants fight it is the grass under their feet that suffers”. Likewise, as in the Seymour and Brant divorce, the dispute over custody and access of the children is proving most enduring on the children. The effect that such conflict has on the children has been found to be tantamount to emotional abuse of the children. As the judiciary becomes more cognizant about the damaging effects had on children caught in the battle of alienation, the Courts are being forced to take acute action to help prevent or remedy the potentially scarring effects of separation. As such, in more and more cases where the Court finds that one parent has conducted a consistent and overwhelming campaign to alienate the other parent from the children, granting the alienated parent sole custody is found to be an appropriate and least harmful remedy to parental alienation.

If Shaq and Shaunie were divorcing in Ontario, and the threats and harassment were proven to be true, the following would be considered by Ontario courts:

Restraining Order

If Shaunie can prove to the Court that she is being emotionally abused or threatened by Shaq, she may want to ask the Court for a Restraining Order preventing Shaq from molesting, annoying, and harassing her and/or the children. The challenge with this Restraining Order is that the threat was not directed at her, but at her boyfriend. This means that there is no reasonable apprehension of harm towards her and, as such, that her claim for a Restraining Order may be undermined. Arguably, if she could prove that her children are being harassed (e.g. Shaq coercing and scaring the children into stating on his behalf threats to Shaunie’s boyfriend) then a Restraining Order could be made against Shaq towards the children and Shaunie if the children were in her care. The purpose of the Restraining Order is to ensure that the children and mother’s safety is not jeopardized by the aggressor’s volatile behaviour.

Supervised Access

The couple are said to have four children and their ages ranging from 10 to 3. If Shaunie has custody of the children and they primarily reside with her, then the issue of changing the access arrangement may be revisited after the alleged harassment by Shaq. The Courts would be looking at Shaq’s conduct and consider whether his behaviour will adversely affect the children and their safety. Moreover, the Court will assess whether Shaq’s conduct is adverse to the children’s best interests. If the Court finds that Shaq’s conduct has affected his ability to parent and care for his children, the Court may order that Shaq’s access time with the children be restricted to supervised access, whereby when the children are in his care, a third party must be supervising at all times.

In Ontario, in order to be considered common law partners, parties must either be in a continuous relationship for a period of not less than three years or parties must have been in a relationship of some permanence, if they are the natural or adoptive parents of a child.

Although the parties in this case are not married, they meet the definition of a common law relationship as they have a child together. If the parties had ended their relationship in Ontario, the following legal issues would need to be addressed:

Custody/Access

Custody involves the right to make important decisions affecting Lucia’s overall welfare. Decisions with respect to Lucia’s healthcare, education, religion, general upbringing and her best interests will be considered by the court. Oksana has stated that the parties’ split was amicable and that they intend to jointly parent Lucia. Ontario courts are more likely to award joint custody where the parties have an amicable relationship. This occurs in situations where it can be shown that the parties are able to co-operate with one another and make decisions about the child jointly. If Oksana is being truthful to the media and Mel and Oksana have a good relationship, it is likely that the court will award joint custody of Lucia.

Where Lucia will primary reside may be decided based on who primarily cared for her during the relationship and after the parties separated. Oksana has stated that Lucia is currently residing with her mother in Los Angeles. Assuming that Oksana was the primary caregiver during the parties’ relationship, then it is likely that the court will award primary residency of Lucia to Oksana. Since the parties have an amicable relationship, it is also likely that Mel will have generous access with Lucia and Oksana will consent to same.

Child Support

In Ontario, the courts are bound by the Ontario Child Support Guidelines (Guidelines). The Guidelines include a table that shows the child support owed based on the income of the payor and the amount of children. The parties must first determine with whom Lucia will primarily reside with. As noted above, if Lucia will primarily reside with Oksana, Oksana will be entitled to receive child support. Given Mel’s hectic and busy career, we can assume that he will most likely agree to this and he will therefore pay Oksana child support pursuant to the Guidelines.

Assuming that Mel earns $5,000,000.00 per year, Oksana would be entitled to $37,144.00 per month in support. If Mel earned $10,000,000.00 per month, Oksana would be entitled to $74,144.00 per month in support. Given that these numbers are so astronomically high, it may affect Oksana’s entitlement to spousal support (discussed below).

Given that the amount of child support is so high, the court may use their discretion in determining whether the amounts noted above are appropriate. If the courts are of the view that the amounts are excessive, (which, we believe are excessively high), the court has the discretion to lower the amount owed in child support per month to an amount they deem to be fair.

Spousal Support

Spousal support claims depend on whether one partner (in this case, most probably Oskana) can demonstrate a need for spousal support. Some of the factors that the court considers in order to grant spousal support are: the length of the relationship, the economic position of the parties as a result of the separation and the roles that the parties played during the course of their relationship. In circumstances where the amount of child support paid is astronomically high due to the payor’s income, the court will take the child support amount into account when determining spousal support and the need for same. Here, assuming that the court awards Oksana with either of the amounts of child support noted above, it is unlikely that the court will also award Oksana with spousal support as it will be very difficult for her to argue that she is in need of same.

For example, if Oksana was awarded the lower amount of $37,144.00 per month in child support, she would be receiving $445,728.00 in child support per year. This amount can definitely cover the child’s needs as well as any needs Oksana may have.

Equalization

An Equalization Payments is the payment that one spouse can be required to make to the other spouse in order to equalize the assets that were acquired during the course of the marriage. Since Mel and Oksana were never married, equalization does not apply to them. For more information on equalization, please click here.

Would Ontario Courts have made a similar decision?

In Ontario, access decisions are made based on the best interests of the child. Parental hostility is one of the factors that Ontario Courts recognize as having an effect on the best interests of the child. In a recent interview with Howard Stern, Lindemulder explained that she has a voodoo doll of Jesse James’ current wife, actor Sandra Bullock. This clearly shows hostility towards Bullock, who has been helping James care for Sunny. Ontario Courts would likely view this hostility for Bullock as contrary to Sunny’s best interest and this might encourage an Ontario Judge to deny Lindemulder’s request for overnight access.

It is possible that Ontario Courts would also stop Lindemulder’s husband from spending time with the child, depending on the reason why he was sent to jail. If he was convicted for abuse or violent crimes, his presence could be considered contrary to Sunny’s best interests, especially considering that Aikman is not biologically related to Sunny.

In James’ court papers, he accuses Lindemulder of being an unfit mother. Ontario Courts tend to abide by a ‘do no harm’ principle that encourages the avoidance any situation which may have a harmful effect on the child. Depending on James’ credibility and the nature of the allegation, an Ontario Judge might abide by this principle and limit Lindemulder’s access with Sunny to avoid any harm that may result from overnight visits until Lindemulder’s fitness as a parent is determined.

It is important to note that the fact that Lindemulder was sent to prison does not make her an unfit mother according to Ontario Family Law. In Ontario, misconduct of anyone applying for access is only relevant to the extent that it affects that person’s ability to parent. As it is unlikely that cheating on your taxes will inhibit your ability to parent, Ontario Judges would probably not allow Lindemulder’s conviction to affect their access decision. Although, if it is likely that Lindemulder will reoffend, this may affect the stability of the family unit, which is a factor that Ontario Judges can consider.

The Money Battle

The couple agreed to settle their matrimonial dispute through arbitration to avoid the publicity of a trial. Unfortunately, the Gosselins have been unsuccessful in avoiding court. In early October of 2009, Kate applied to the courts to force Jon to return a large amount of money that he took from their joint account.

According to Kate, Jon removed $232,000.00 from the couple’s joint account in direct violation of the arbitrator’s orders. The court ordered Jon to return $180,000.00 to their joint account. Jon claims to have spent the remaining $52,000.00 on household expenses. Jon has until October 26, 2009 to put the $180,000.00 back into the joint account and the judge ordered both parties to provide the court with documentation regarding their household expenses.

The Ontario courts would likely approve of the judge’s decision to order the money’s return until the arbitrator can make a final determination. This will help ensure that Jon does not spend the money before this issue can be decided on a more permanent basis. Another option is for the court to order that the $180,000.00 be held in trust by the court until a full determination regarding this money is made.

The Birthday Battle

Kate was looking forward to baking a cake for Cara and Mady’s birthday on October 8, 2009 and, according to Jon, she was also looking forward to preventing Jon from seeing the twins on their birthday for more than two hours. Jon response: “She’s trying to prevent me from seeing my kids on Mady and Cara’s birthday…That’s like giving her full custody by obeying her. She can’t tell me what to do. I’m not going to allow it. I’m just going to stay. I own the house so I can do what I want.”

Although Ontario courts would likely disagree with Jon’s tone in this statement, according to family law in Ontario, he’s right.

In Ontario, the status quo has a huge impact on determinations of custody and access. Although missing a few hours of one birthday party is unlikely to make much of a difference in terms of custody and access orders, if Jon spends much less time with the children than Kate does, the children will be more likely to primarily reside with her. If Jon spends less than 40% of the time with the children, he will be responsible for making child support payments to Kate, but she will have no obligation to make child supports payments to him. It is likely that Kate will be making far more than money than Jon in the future because he is no longer part of the show. Kate’s new show, Kate Plus Eight, is scheduled to start on November 2, 2009. So, if Kate lived in Ontario, it would be very important to her to spend as much time with the children as possible, not just because she loves them and it takes a lot of time to take care of eight children, but also because she would likely have to pay Jon a large amount of money in child support otherwise.

Jon is also correct in stating that he can stay in his house as long as he likes. In Ontario, both parents have an equal right to possession of the Matrimonial Home, regardless of whose name is on title. This means that neither Jon nor Kate can legally refuse the other entry to the home, unless an Order for Exclusive Possession has been made. An Order of Exclusive Possession grants full rights of possession of the Home to one parent and denies the other parent entry to the Home.

The factors that the courts consider when deciding whether to award one spouse exclusive possession of the Matrimonial home include (a) the best interests of the children; (b) any orders made, (c) the financial position of the parties, (d) any written agreement between the parties, (e) the availability of other accommodation, and (f) any violence committed by one party against the other or against the children.

Although Jon should not have any problems finding alternative accommodation if he were excluded from the Matrimonial Home, it is unlikely that Kate would be granted exclusive possession because there are no allegations of violence, the parties had previously agreed that they would both attend the Matrimonial Home to care for the children, and it is highly unlikely that a judge would decide that it is in the children’s best interest not to see their father on their birthday.