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The Red Flag in Family Law Proceedings

Understandably, it is not uncommon for separating couples to push each other's buttons. In many cases, mild to moderate conflict subsides over time, and as long as children are not exposed to that conflict, families generally overcome the challenges of separation. 

Before I identify what I believe to be the Red Flag in Family Law Proceedings, I draw your attention to the words of Fraser CJA from the 2005 Alberta Court of Appeal Decision Richter v Richter, 2005 ABCA 165 [Richter]:

  • ... as a general proposition, joint custody and shared parenting arrangements ought not to be ordered where the parents are in substantial conflict with each other, and certainly not before trial especially when there is also significant disagreement on the evidence.

Keep the above in mind when reading the following:

John and Nancy are separating. They have one young child. There has never been any physical, mental, or emotional abuse in the home. However, John and Nancy feel they bring out the worst in each other, which is evidenced by their frequent disagreements leading up to separation. While the parties are close to resolving their family law matters, Nancy wants more time with the child; she wants 50/50 shared parenting. Conversely, John thinks it is best for Nancy to have access every second weekend.

Nancy has moved out of the family home, but needs to collect a few personal items. She tells John to leave her items at the front entrance of the home. This arrangement appears harmless.

Before Nancy is scheduled to collect her belongings, John's close friend tells him about the Richter decision. John's friend says he has court ordered primary care of his child because of the high conflict nature of his marriage.

Do you see the Red Flag rising?

Nancy shows up at the family home to collect her belongings. John and the child are present. As Nancy is carrying heavy boxes to her vehicle, John accuses her of having an affair. Nancy becomes deeply upset. John goes on to accuse Nancy of being a bad mother. Nancy is overcome with rage. John dares Nancy to hit him, and she does.

A few days later, Nancy is served with an Emergency Protection Order ("EPO") that John obtained without notice. The EPO says that Nancy cannot be near John or their child. After a significant amount legal fees, Nancy eventually gets to see the child once a week, for six hours, and that arrangement lasts well into the future.

In my experience, the Red Flag in Family Law Proceedings is manufactured conflict, which a party may use to leverage his or her position.

Nancy's situation is common in family law proceedings, and her situation could have easily been avoided. If there is even a small chance of escalating conflict in your family law matter, know that there are proactive and cost-effective measures which can protect you and your family:

  1. Have a neutral friend or family member supervise personal interactions between you and your spouse, whether it be for an exchange of property, or sharing information about your children.
  2. Retain the services of a professional third party can assist you, which can include something as simple as being present for an informal meeting between spouses. Many family support services can produce written reports in case an issue arises. Use a professional third party to assist your family and save legal fees, should you see potential parental conflict in the horizon.
  3. Use parenting software such as Our Family Wizard. This software often makes people closely consider the tone of their communications. Many of my clients have avoided exchanging nasty emails or text messages using this alternative (and inexpensive) form of electronic communication.
  4. At all costs, be logical and practical. Of course, this can be challenging in the midst of a separation. Just remember John and Nancy's story if you feel your mercury rising. Even if there is a slight possibility of escalating conflict, just wait for another day. Some of the most effective words you can ever use in a family law matter are "I'm just not in the right headspace to deal with this today" or "Can we meet for coffee to discuss this at a later time?"
  5. If conflict is unavoidable, it will be appropriate to have your legal counsel convey your position to the other side. It is our job, as legal counsel, to recommend alternative dispute resolution processes which will provide you and your spouse with a safe and respectful way to resolve your differences.

Nancy's story is not fiction for many people. Remember how much you and your family have to lose if a party attempts to manufacture conflict. If you ever see the Red Flag on the horizon, remember that reasonableness, calmness, and effective planning will usually protect your interests.

Micah Chartrand is an Associate Lawyer at Soby Boyden Lenz LLP Family Lawyers. He is experienced in all legal matters involving parenting and child custody.

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