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Wednesday’s Video Clip: When do the Child Support Guidelines Apply?

 

Wednesday’s Video Clip: When do the Child Support Guidelines Apply?

In this video we discuss when the child support guidelines apply.

If parents go to court to get a child support order, in almost all cases the court must use the Guidelines to set the amount.

This is true whether the order is applied for under:

• the Divorce Act by parents who are divorcing

• the Family Law Act by parents who were never married, or who were married and have separated but are not getting a divorce

The Guidelines must also be applied whenever a parent applies to the court to change any support order, even if it was originally made before the Guidelines came into effect.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Judge Orders Mother to Stop Putting Father’s E-mails in the Junk Folder, and Other Things

junk-folder

Judge Orders Mother to Stop Putting Father’s E-mails in the Junk Folder, and Other Things

We wrote recently about a decision in “When a Judge “Breaks Up” with a Squabbling Couple”, where a judge decided that the squabbling former spouses who were appearing before him in court would be better served if their matter was switched to a new judge, one who could view their disputes afresh and without regard to the regrettable back-story of acrimony.

That case involved another interesting feature: the judge issued a series of admonishments directing the couple on how to get along.

First, the judge cautioned them not to use the court process to try to strong-arm each other:

There is to be a minimum two years’ peace between these two parents during which they can practise their compromising skills … The litigation process is not to be used by one to either bully or seek control over the other.

Next, the judge ordered the couple to communicate by e-mail, and more to the point directed the mother to actually read the father’s correspondence:

I note in passing that the Mother must read the Father’s emails, as this is the mode I am ordering them to use to deal with all changes in parenting time in future. Her current methodology of putting them in her junk file in her computer is sheer nonsense, in my view, and must end immediately.

Finally, the judge gave the father pointed instructions on being mindful of the tone and frequency of his that correspondence to the mother:

The Father must, for his part, appreciate that his emails are to be polite and not bullying in content. Judges regularly get to read parents’ emails, and if they are wretched in content or overly frequent in transmission, judges can form negative opinions of their authors.

Is the judge on the right track with this very specific guidance and admonishment? Should more judges to this? What are your thoughts?

For the full text of the decision, see:

Z.S.R. v. R.S., 2016 BCPC 200 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

You Win Some, You Lose Some: Mother Still Ordered to Pay $400,000 in Legal Costs to Father

Unhappy Depressed Woman

You Win Some, You Lose Some: Mother Still Ordered to Pay $400,000 in Legal Costs to Father

This week’s case is not exceptional on its facts, yet it conveniently illustrates a few important ideas:

1) That Family Law litigation can have many ups and downs in terms of who is “victorious” at any given time;

2) That it’s easy to run up enormous costs in the course of trying to come out ahead; and

3) That courts are mindful of how that back-and-forth of litigation can detrimentally affect the children of the marriage.

The mother and father had three children together, aged 14, 13 and 12. Once the parents separated, they agreed that the children would live with the mother, with access to the father on a specified schedule.

However, a dispute arose as to whether the mother was complying with their deal; this led to the father bringing several motions for contempt. Next, there had to be a separate trial, lasting 19 days, to deal with the unwinding of the parties’ financial affairs; A custody-and-access hearing followed soon after, lasting another 22 days. A later review of those arrangements took a 23-day trial-like hearing that took 10 months to complete.

At this point, the father’s legal costs for these proceedings totaled about $400,000; given that he had been successful in terms of the outcome of the various proceedings, the trial judge made an order making the mother liable to the father for that full amount.

The mother then brought an appeal, not only of that costs award but also of the various unfavourable substantive rulings (including one that adjudged that her children had suffered “emotional abuse” at her hands in the preceding 2.5 years. This involved a finding that the mother fostered the children’s distorted reality of their father, based on her own fear and dislike of him).

The Appeal Court began its judgment this way:

Before dealing with the issues raised on the appeal, it is worth recalling for mother and father the bigger picture. The trial judge devoted 45 hearing days to their custody and access dispute. The 2013 Order reversed the custody of the children. More than two years then elapsed before the parties were ready to argue the appeal. During that time, the children have lived with their father. They are now 14, 13 and 12 years old, and they have lived the last seven years of their lives in the shadow of their parents’ litigation. The children are entitled to a stable childhood, not one marked by uncertainties over their living arrangements and contact with their parents resulting from the bitter dispute between mother and father.

The appeal record filed by the parties is voluminous. In the months prior to the hearing, the parties generated a blizzard of new paper with their competing motions for fresh evidence…

In reviewing the trial judge’s reasons, the Appeal Court found no fault with them overall: for example the trial judge’s factual finding that this was “an extreme case”, and that the children were suffering emotional abuse by the mother, was supported by the evidence. Still, for various complex reasons the Appeal Court did find that a review of the access arrangements was merited at this point (and suggested that the review should take no more than a few days – rather than the 20-plus days such a review had taken in the past). The mother’s access to the children was temporarily increased in the meantime.

This meant that in the appeal portion of the proceedings the mother had won some of her arguments; but the father had come out on top in others. In other words, success was divided; this played into the question of whether either of them should pay the legal costs of the other. Specifically, the mother asked the court to award her the full $207,886 she spent bringing the appeal, while the father asked for his costs totaling $124,440. In ruling on the costs issue, the Appeal Court wrote:

The parties enjoyed mixed success on the appeal and, as a consequence, mixed success in respect of the proceedings below. The fairest disposition of the costs of this matter is that the parties bear their own costs of the appeal, and I would reduce the costs payable by the mother to the father under the Costs Order for the proceedings below from $400,000 to $200,000, inclusive of fees, disbursements and taxes.

So even with a partial victory on the appeal, the mother was still on the hook to the father for more than $400,000. Even on a generous interpretation, it’s hard to call that a “win”.

For the full text of the decision, see:

Fiorito v. Wiggins, 2015 ONCA 729

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Wednesday’s Video Clip: The Family Courts and Rules – The Basics

Wednesday’s Video Clip: The Family Courts and Rules – The Basics

Most people will have no reason to become familiar with the workings of the Ontario Family Law system. Exposure to the justice system is usually a result of necessity, such as a separation or divorce, with its resulting property, support and child custody issues. As a result, most people do not know how the Family Court system works.

This video will provide a brief and basic review of the Ontario Family Courts, and the Rules that people are expected to follow.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Should Mother’s Prolonged Breastfeeding Affect Father’s Access to Child?

breastfeeding

Should Mother’s Prolonged Breastfeeding Affect Father’s Access to Child?

In the context of a straightforward custody and access dispute, the father went to court complaining about the level of access he had to his 2.5-year-old daughter. The court described a rather unique conundrum:

Despite the enormous commitment to this child by [the father], his contact has been restricted by the [mother’s] breastfeeding. He has shown patience with [the mother’s] desire to breastfeed the child, patience that has restricted his time with [the child]. Now, due to the fact that the child appears to be thriving, [the mother] argues that there is no need to alter the status quo in a radical way. While status quo is important, the result for a baby would be to deny the father an equal opportunity to parent a child if he acquiesces to the mother’s request to breastfeed.

The court also explained that the parents’ dispute stemmed from the mother’s stance that the father’s legal rights should be trumped by her view of what was in their toddler’s best interests:

It is clear in [the mother’s] evidence that she has not accepted the provision in [the relevant legislation] that both the mother and the father are equally entitled to custody of a child. In an e-mail she sent to [the father] on September 9, 2006, she states the following:

As time goes on there will be more opportunity for you to spend time with [the child]. But a baby belongs with its mother, and if you had an understanding of the needs of a fully breast-fed baby and truly had [the child’s] interests at heart, you would not be bringing this subject up again.

The court then scrutinized the mother’s rationale:

[The mother] has been unwilling to give a timetable as to when the breastfeeding will end. She believed strongly, through medical advice, in the merits to [the child] of breastfeeding; however, the breastfeeding has a secondary impact upon [the father] in that it is used as an excuse to restrict his access. [The child] is now more than twenty-nine months of age and is still being breastfed. [The child] continues this practice not because of literature that suggests that it is important to breastfeed a child after the age of two, but rather because there is no literature suggesting that it is not in the interests of the child to continue this practice.

Faced with these competing interests, the court took a practical approach – it ordered the mother to pump:

The medical evidence that [the mother] presented supports the practice of breastfeeding until a child has reached his/her second birthday. [The father] respected her views, but now the time has come for [the mother] to have greater consideration for the relationship between [the child] and [the father]. If she used a breast pump and provided the milk to [the father], he would be willing to give it to Kai.

The court added that it hoped the mother would heed her own mother’s (i.e. the child’s grandmother’s) advice, to the effect that the child’s best interests were fostered through contact with both parents, and that the prolonged breastfeeding was interfering with that.

For the full text of the decision, see:

Cavannah v. Johne, 2008 CanLII 65587 (ON SC)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

When a Judge “Breaks Up” with a Squabbling Couple

judge-with-couple

When a Judge “Breaks Up” with a Squabbling Couple

The scenario was not atypical: The parents of a now four-year-old girl had spent the past several years since their separation making numerous trips to court to resolve various custody and access issues. Historically, these disputes had involved significant issues around custody and access, but lately had included clashes over more minor things like whether the girl was getting regular naps when with the father, and whether continued breastfeeding and co-sleeping with the mother was impacting her relationship with both of them.

Indeed, each parent’s complaints about the other sometimes drifted into the more petty and mundane: The mother, for instance, had complained that when the girl was on overnight visits with her father, she was distracted during their bedtime FaceTime sessions, because she had been allowed to watch cartoons immediately beforehand. In turn, the father had objected that the mother routinely sent his emails to her junk folder unread (which the judge decried as “sheer nonsense” which “must end immediately”).

Against the backdrop of these unresolved matters – and after making orders to specifically address those already before him – the judge essentially opted out of making any further rulings in the case between this particular couple. The judge wrote:

I believe the time has come for me to direct that I will not in future hear matters pertaining to these parties, unless there is some emergent situation and no other judge is available. I say this because I now have a real concern that rather than struggle to reach a fair compromise on issues, these parties, and particularly the Father, will elect to have someone who knows all about them resolve the issue. In a sense, I am a known quantity. I believe the time has come for these parties to face perhaps an unknown quantity, a new judge in this court, if they cannot, including with the help of, for example, a parenting coordinator, reach agreement themselves.
I think having to face a new judge who knows nothing about them will add a strong incentive or impetus to their resolving issues outside court, rather than litigating them before a known judge.

In other words, the judge decided that it was in everyone’s best interests, most especially that of the 4-year-old girl, that he step away from adjudicating on the dispute in order to give another judge a “fresh eye”, and to encourage the parties themselves to settled their differences without court interventions.

Was the judge’s idea a good one? What are your thoughts?

Z.S.R. v. R.S., 2016 BCPC 200 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Wednesday’s Video Clip: Top 4 Points About Enforcing Child and Spousal Support Payments

Wednesday’s Video Clip: Top 4 Points About Enforcing Child and Spousal Support Payments

In this video we review ways to enforce child and spousal support Orders in Ontario.

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are several points about the enforcement of such orders or agreements that are noteworthy, this video will review four points to consider.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Testator’s Freedom to Make Even “Unsavoury or Distatesful” Bequests Upheld – In Some Cases

will

Testator’s Freedom to Make Even “Unsavoury or Distatesful” Bequests Upheld – In Some Cases

Although my law firm focuses primarily on Family Law, we also provide legal advice and services in relation to Wills and Estates, and it’s a topic that I don’t often write about.

But perhaps I should: There is an interesting recent case from the Ontario Court of Appeal, for example, that is certainly worth looking at.

Imagine this scenario: A 71-year old man name Eric had two daughters with his first wife, whom he later divorced. After their parents’ separation, one of the daughters went to live with her mother in England; the other, named Verolin, lived with her father in Canada.

But when Eric, who was black, learned that Verolin was pregnant and that the baby’s father was a white man, it caused a permanent rift in their relationship; eventually Eric cut Verolin off entirely and never met his grandson, who is now 13 years old.

After Eric died, his Will revealed that although he had included the other daughter and her children, he had specifically excluded Verolin, ostensibly because (according to the wording in the Will itself) she had shown “no interest in [him] as her father.” However, the extrinsic evidence from witnesses told a different story: Eric had actually excluded his daughter Verolin in order to show his disapproval of the fact that her son’s father was white.

Verolin applied to the court to have the Will declared set aside and declared invalid because it was against public policy on racial grounds. Verolin was initially successful in the lower courts.
On appeal, the court reflected on the basic question of whether it was entitled to scrutinize Eric’s Will – which was unambiguous on its face – merely because a potential beneficiary like Verolin was being excluded.

In this regard the Appeal Court pointed out that a “testator’s freedom to distribute her property as she chooses is a deeply entrenched common law principle”, and that this testamentary autonomy “should not be interfered with lightly, but only in so far as the law requires.” With that said, the court added that the testator’s right can still be constrained by public policy considerations in some circumstances.

But even applying those general principles here, the fact remained that the wording on the face of Eric’s Will was not, in and of itself, legally objectionable. It adverted only to cutting off Verolin for not communicating with him; any other racially-discriminatory motives on Eric’s part were hinted at only through external evidence. Plus, even though she was his daughter, under Ontario law Verolin was not entitled to demand a share of Eric’s estate. Nor was there anything in the Will that called for the trustees or beneficiaries to act in a way that was discriminatory, unlawful, or contrary to public policy, in order to give effect to Eric’s wishes.

In ultimately upholding Eric’s Will, the Court of Appeal concluded:

I conclude that to apply the public policy doctrine to void an unconditional and unequivocal testamentary bequest in cases where, as here, a disappointed potential heir has been disinherited absolutely in favour of a different, worthy heir, would effect a material and unwarranted expansion of the public policy doctrine in estates law. Absent valid legislative provision to the contrary, or legally offensive conditional terms in the will itself, the desire to guard against a testator’s unsavoury or distasteful testamentary dispositions cannot be allowed to overtake testamentary freedom.

Do you agree with the Court’s ruling?

For the full text of the decision, see:

Spence v. BMO Trust Company, 2016 ONCA 196

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

If Custody Switches Every Day, Where Should Kid Attend School?

Mother seeing son off at bus stop

If Custody Switches Every Day, Where Should Kid Attend School?

The parents had joint custody of their 5-year old son, which arrangement featured each of them having equal time with the boy, as well as equal input into decision-making on health, education, religion and extra-curricular activities. They had agreed to a rotating schedule that had the boy’s residence alternate every single day, with weekends alternating on a set schedule.

The problem was that this schedule made it impossible for the boy to attend school in any one place. The parents lived relatively far from each other; the father wanted the boy to attend a school near his home in Richmond Hill; the mother wanted him to attend school near her residence in Toronto. Although by court order any disagreements were to be resolved with the assistance of a parenting co-ordinator, the parents had not been able to reach an agreement on this issue.

Recognizing that the choice should be governed by whatever was in the boy’s best interests, the parents asked the court to impose a solution. In doing so, the court considered the test set out in another case called Askalan v. Taleb, which provided a useful guideline for whenever this issue was to be considered. Among other things, that task primarily involves:

1) Assessing any impact on the child’s stability;

2) Examining how many years the child has attended his or her current school;

3) Considering whether there is any prospect of one of the parents moving in the near future;

4) Considering where the child was born and raised;

5) Assessing whether a move will mean new child care providers or other unsettling features;

6) Examining the decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling; and

7) Considering any problems there may be with the present school.

The court also added that the choice is not to be guided by the proximity of the school to either parent, or whether it is convenient for the child to attend the nearest school. Rather, the decision has to be made on the merits, with consideration of the child’s needs as well. Finally, the court added:

Of paramount consideration is the school that will give the child the best competitive advantage, or provide the greatest confidence and motivation, or that will facilitate the child’s relationship with others, including his parents and classmates, or best promote his all-around development.

The court evaluated these factors in detail, and found overall that although both schools had their advantages and disadvantages, attending the Richmond Hill school proposed by the father would eliminate the need for the boy to wake up two hours earlier each day. This choice was more consistent with the boy’s best interests.

For the full text of the decision, see:

Hamid v. Hamid, 2016 ONSC 5013 (CanLII)

Askalan v. Taleb, 2012 ONSC 4746 (CanLII)

Wilson v. Wilson, 2015 ONSC 479 (CanLII)

Schloegl v. McCroary, 2012 BCSC 1606 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Wednesday’s Video Clip: How to Fill Out a Financial Statement


Wednesday’s Video Clip: How to Fill Out a Financial Statement

In this law video, we review the steps required to fill out a financial statement for the family court or negotiating the terms of your divorce settlement.

When entering into a Separation Agreement or bringing an Application before the Court, parties must provide full financial disclosure.

Complete financial disclosure is a prerequisite to the settlement of any family law case. The Family Law Act and its interpretation by our Courts, leaves no uncertainty in this respect. Any agreement can be set aside if a party has failed to truthfully and accurately disclose his or her financial position.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.