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Posts from the ‘Child Support’ Category

Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

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Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

In a recent case heard by the Ontario Court of Appeal, the issue was whether the parents of a 17-year old girl had any right whatsoever to participate in a court proceeding declaring that she had officially and legally withdrawn from their control as parents.

The girl had gone to court for a “declaration” (which is a formal court statement pronouncing on the existence of a legal state of affairs) that she had withdrawn from parental control.  This had followed a period of extreme acrimony between her and her father, with whom she lived full-time, over numerous matters.  The main precipitating event was the girl’s unilateral decision to finish high-school in Ontario a year early, in order to attend the University of Miami where she had obtained a full scholarship.

The father strongly opposed her plans, and wanted her to stay in Ontario to finish grade 12.  He even began court proceedings in Florida to force the university to disclose the contents of her application file, which impelled the university to ask the girl for proof that she was an independent minor.   Since her father had repeatedly said he would “do everything he can to stop” her from going to Miami, she needed the formal court declaration; without it he could demand that the university withdraw both her application and the scholarship.

The lower court had granted her application without hesitation, adding that “[t]he evidence indicates that [the girl] is a remarkable young woman.”  The court found the parents had no right to be included in or even have notice of the proceedings.

The father appealed, claiming that the mere fact that the court had not allowed or invited both parents to participate – including the full right to object, file evidence, and cross-examine – was grounds enough to overturn the declaration.

The Appeal Court disagreed, but conceded that the parents did indeed have a right to be part of the proceedings.  But there was still no reversible error here, since the required level of parental participation had been met, even though neither mother nor father were ever made official parties to the girl’s application.

The court’s reasoning was technical:  First, it pointed out that under the CLRA the girl had a unilateral stand-alone legal right to withdraw from parental control once she reached age 16.  The court added:

Once a child declares an intention to withdraw from parental control, her independence may – as it was here – be recognized by the police and the schools. There is no formal court process for a child to withdraw. … Unlike jurisdictions such as Quebec which have procedures for “emancipation”, Ontario law does not have a formal process for withdrawing from parental control. The child simply has to take control of the incidents of custody which include decision making regarding residence and education. No court process is required.

However, there was a narrow distinction between withdrawing from parental control, and obtaining a declaration from the court to that effect.  The former was a legal right that the girl could exercise unilaterally; the latter was a request to the court that it exercise its jurisdiction to make a declaration.  Here, the girl had appeared before the court for the second item, the declaration, which triggered consideration of the various legal interests of both the child and the parents.  In this matter, some of those interests were in conflict and called for a balanced inquiry.  Also, the CLRA expressly provides that the parents must be before the court in any application in respect of a child.

In short, and based on the legislation and basic legal principles, the court found that the parents must indeed be parties to their own daughter’s application to withdraw from parental control, but that the court has a broad discretion to direct the extent of that participation.  Here, although the father had not initially been named as a party by the lower court judge, he had been allowed a certain level of involvement nonetheless. He had been allowed to file material and make submissions.

The court also concluded that the merits of the girl’s application justified the order made. The prior judge had fully considered the extensive court record, which included more than a dozen affidavits providing information on which the best interests of the girl could be assessed.  The judge’s findings were supported by the evidence, and there was no procedural unfairness in granting the declaration.

As the Appeal Court stated: “The declaratory relief was not exercised in a vacuum. There was a clear reason for it.”

The father’s appeal was dismissed.

R.G. v. K.G.,

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

 

In Custody/Access Matters, Should the “Voice of the Child” Be in Brief, and in Writing?

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In Custody/Access Matters, Should the “Voice of the Child” Be in Brief, and in Writing?

In even the most routine child custody, access and child protection determinations, courts are obliged to consider a vast array of factors that explore what arrangement will be in the best interests of the child.   Among the key considerations – particularly for an older child – are the child’s express wishes. For example, in the child custody context, the child’s own views will be explored on topics such as which of two separated or divorced parents he or she wishes to live with.

How Courts Currently Hear the “Voice of the Child”

In Ontario, and for all child-related proceedings and for any decision-maker under legislation impacting children, this purposive inquiry is legally-mandated under several statues, including the Katelynn’s Principle Act (Decisions Affecting Children). The fundamental principle is that “a child must always be seen, the child’s voice must be heard, and the child must be listened to and respected.”  This concept is also confirmed and echoed in Article 12 of the United Nations Convention on the Rights of the Child.

As a sort of shorthand in family law matters, this is commonly referred to as the “Voice of the Child”.

Presently, the formal method for identifying the Voice of the Child in child-related matters is through a detailed, labour-intensive, and legislatively-mandated report prepared by the Office of the Children’s Lawyer (OCL) in each case.  The report can be prepared only after the child, and everyone involved in his or her life, is exhaustively interviewed by qualified experts.  The report must also include recommendations on “all matters concerning custody of or access to the child and the child’s support and education” as a means of assisting judges to make a decision as to the child’s best interests.

What’s New?

While still relatively innovative, there is a more efficient option on the family law horizon in Canada.  Called the “Voice of the Child Report” (VCR), it is a briefer, non-OCL-evaluated report written by a social worker, lawyer, or mental health professional.  The VCR simply outlines the child’s wishes in a neutral way, with the sole focus being on the child’s views.

Using a VCR results in a more streamlined, efficient, and cost-effective way to keep the child involved, while still providing the court with a sufficiently fulsome, but non-binding, glimpse into the child’s wishes.  The weight and impact given to the VCR will depend on numerous factors, including the age and maturity of the child, the clarity of his or her wishes, and how long the particular preferences have been held.  Both parents must consent to using a VCR, and they are responsible for paying the cost of its preparation.

Why are VCR’s a Good Option?

A study by two Canadian professors of Law and Social Work, respectively, suggests that the use of VCRs should be widely endorsed by stakeholders in the family law system.   After a pilot project to use VCRs in a handful of Ontario court regions, their study involved interviewing parents, children, judges and lawyers on their experience with using VCRs.  Most parents and professionals found the shorter reports helpful in resolving disputes.  The children also reported that they enjoyed the opportunity to be heard on their custody and access-related wants and preferences.

The authors’ resulting report, titled the Views of the Child Report: The Ontario Pilot Project – Research Findings and Recommendations, suggests that the use of streamlined VCRs has many benefits:  It can avoid the intensive interview and recommendation process, keep costs and delay at a minimum, yet still uncover a child’s true wishes around custody and access.  Plus, separated parents who opt to use VCRs often find themselves encouraged to settle; the VCR’s straightforward statement of the child’s own, unfiltered sentiments can help parents re-focus on the true objectives behind the litigation in which they are often embroiled.

VCRs have not been formally adopted or mandated for use in Ontario family law matters. However, in conjunction with the provincial Attorney General’s office, there are plans afoot to explore whether they should be introduced into the court system, through an amendment to the current legislation.

What are your thoughts?  Are VCRs a good idea for child custody and access matters?

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

 

 

Child Support Law Changing to Include Adult Children with Disabilities

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Child Support Law Changing to Include Adult Children with Disabilities

As I reported back this past summer, a court challenge by a single mother of a 22- year-old disabled young man, based on an asserted breach of the Canadian Charter of Rights and Freedoms, succeeded in upending the law relating to the eligibility for child support for such disabled adults.  The mother had successfully claimed that the child’s father – to whom she was never married – should continue to have a support obligation for the son they had together. She convinced the court that as compared to married parents, the differential treatment parents in her situation was contrary to Charter values.

On the heels of this decision, the Ontario government had promptly announced plans to amend the provincial legislation governing child support by way of Bill 113, as I reported shortly after the ruling was released.

Those amendments, included in omnibus budget legislation called the Stronger, Fairer Ontario Act (Budget Measures) Act, 2017 (Bill 177) [RA: Add link to http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=5316], were introduced on November 14, 2017.  They alter the provisions of the Ontario Family Law Act, so that the legislation now requires that every parent provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who is “unable by reason of illness or disability to withdraw from the charge of his or her parents.”

The legal impact of the upcoming amendments is that:

  • the category of adult children who are eligible for child support is now expanded (since previously it included only adult children who are attending school full-time);
  • the child support obligation applies in respect of not only children of parents who are married, but also those with unmarried parents; and
  • the Family Law Act is now in-line with federal Divorce Act legislation, and with the law in many other Canadian jurisdictions.

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

 

 

Long-Awaited Update to Federal Child Support Guidelines

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Long-Awaited Update to Federal Child Support Guidelines

Important news for those who pay – or are eligible to receive – child support anywhere in Canada.

What are the “Guidelines”?

As most of my readers will know, the Federal Child Support Guidelines (the “Guidelines”) are the government-sponsored tool that help separated and divorcing parents set the appropriate amounts of child support that must be paid in respect of the children they have together.

The Federal Child Support Tables, which reflect the principles and calculations mandated by the Guidelines, set out the basic monthly amounts of child support that are result from various permutations.

The Guidelines and the corresponding Tables have been in force since late 2011, and until recently have reflected the calculations that accord with 2011 tax rules.

What’s New?

The Guidelines and corresponding Tables have been amended to reflect more recent tax rules, and have been incorporated into an updated version that takes effect on November 22, 2017. The official (and updated) Federal Child Support Tables, plus additional information and some “legalese” about these new amendments, are located here.

Where, and When?

As with the last version of the simplified Tables in PDF, there is a streamlined, simplified version of the 2017 Tables (also in PDF).  There is also a Child Support Table Look-up for both the 2011 and 2017 versions.  There is also an updated, Step-by-Step Guide.   (Note however that these streamlined and simplified versions are not “official”; only the original Federal Child Support Guidelines and Tables are considered legally-authoritative as to child support amounts.  This also means that the amounts of calculated support may be different when using the official Guildelines or Tables versus the more simplified tools).

One final point:  the new 2017 Guidelines and Tables come into force on November 21, 2017.   For people who need to determine how much child support is owed for a period before that date, the prior version of the Guidelines should still be used.  (And for those who need to calculate child support for a period earlier than December 31, 2011, an even earlier version of the Tables should be consulted.)

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 (Another) 20-Year-Old Cohabitation Agreement Be Upheld?

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Should (Another) 20-Year-Old Cohabitation Agreement Be Upheld?

A few weeks ago, I wrote about a case in which the court was asked whether a separation agreement signed by a couple 20 years earlier should be upheld.

Coincidentally, another recent Ontario Court of Appeal case involved a similar circumstance.

When the couple started living together 20 years ago – and at the husband’s insistence, since he’d had a prior relationship end acrimoniously – they signed a cohabitation agreement.  The husband took care of having it drafted, and he presented it to the wife for her signature.  He wanted the security of having the agreement in place before moving forward in the relationship and buying a home with her.

The wife did not have independent legal advice at the time, although she was given the opportunity to obtain it.  Under the terms of the agreement she signed, the wife agreed to give up all her claims to spousal support.

Still, when they separated 20 years later, she claimed for spousal support nonetheless.  The trial judge upheld the separation agreement, and dismissed her claim for support.  The wife brought an appeal.

In evaluating whether to allow that appeal, the court had to embark on a two-stage analysis, the first stage of which required it to:

1) look at the circumstances surrounding the negotiation and execution of the agreement, to determine whether there was any reason to discount it; and then

2) consider the substance of the agreement, to determine whether it was in substantial compliance with the general objectives of the Divorce Act at the time it was formed.

Then, in the second stage, the court had to consider – now 20 years later – whether the wife had established that the agreement no longer reflects the original intention of the parties, and whether the cohabitation agreement is still in substantial compliance with the legislated objectives of the modern-day Divorce Act.

Applying those standards here, the wife argued that the agreement was invalid, and that the trial judge failed to consider certain important facts when applying this two-stage test, namely:

  • That there was a power imbalance between her and the husband;
  • That she had not discussed spousal support with the husband;
  • That the husband’s financial disclosure was incomplete; and
  • That she did not have independent legal advice.

While conceding that she was not coerced, the wife argued that the agreement simply did not align with the overall objectives of the Divorce Act, whether now or back when it was signed.  This was particularly true since the couple went on to have an 18-year relationship, they had two children together for whom the wife bore the primary responsibility, and his income exceeded hers.

The Appeal Court considered the wife’s arguments.  After examining the objectives of the legislation, it rejected her spousal support request. There had been no error of law or misapprehension of fact by the trial judge, who carefully reviewed the relevant test and found:

  • The wife was aware of the husband’s desire to have a cohabitation agreement.
  • They had discussed the cohabitation agreement before the wife received it.
  • She was aware of all of the husband’s sources of income and assets, but did not pursue further disclosure.
  • She skimmed over the cohabitation agreement, reading some parts but not others.
  • There was no fraud, coercion, or duress.
  • Although given the opportunity, the wife did not seek independent legal advice even though – on her evidence – she had six weeks to do so.
  • At the time of signing the agreement, the wife thought it was fair and that it fairly outlined the parties’ discussions regarding the purchase of a house.
  • The agreement is in substantial compliance with the Divorce Act.

The court noted that the trial judge was entitled to make the findings that he did on the evidence, and are entitled to deference from appeal court.  It added that even if the cohabitation agreement did not exist, on all the facts the wife would not be entitled to spousal support anyway.  The court dismissed her appeal.

For the full text of the decision, see:

Smith v. Smith

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

 

 

Could Long-Haul Trucker Dad Quit His Job (and Avoid Child Support) Due to Dizziness?

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Could Long-Haul Trucker Dad Quit His Job (and Avoid Child Support) Due to Dizziness?

After separating from the father, the mother had full-time custody of their two 17-year-old children.  The father agreed to pay a set amount of child support, based on his long-distance trucker’s income of $66,000.   However, he was prohibited from communicating with any of them, under the terms of his bail following a guilty plea for assaulting the mother.

About a month after the consent order for child support was made, he claimed that he had experienced a bout of encephalitis, which afflicted him with facial paralysis, dizziness, vertigo, and some mental impairment.   He claimed he was no longer able to work at his job from that day forward; thus with no income, he claimed he was unable to pay child support.

However, he filed no current medical reports with the court to support that contention, other than certain 2-year-old notes and reports that the court found unhelpful.  While it was true that he was on short-term disability right after he quit, he did not provide any evidence as to whether he even applied for long-term disability at all.

The court didn’t buy it.

The father had quit his job for no reason.  His purported illness – which was medically confirmed not to have been a stroke – lasted only a short period of time.  He did not lose his truck driver’s license because of it.

In short:  the father had no valid excuse for not continuing to work and continuing to live up to his financial responsibilities to the children, as he had done before.  He had essentially chosen not to continue working, likely as a bid to avoid his child support obligations entirely.

In light of the fact that he was capable of earning more, the court relied on one of the provisions of the Child Support Guidelines that allowed it to impute income.  As the court explained:

Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed.

Notwithstanding the father’s current state of self-imposed unemployment, the court set the father’s income back at the $66,000 level.  It ordered him to continue paying support at the same level as he had done before he quit, and sorted out the amount of the unpaid arrears as well.

For the full-text of the decision, see:

Armstrong v. Wallace

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

 

 

In Custody Case, Court Avoid Declaring Either Warring Parent the “Winner”

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In Custody Case, Court Avoid Declaring Either Warring Parent the “Winner”

The parents of a now 13-year-old boy and of three other now-adult children had separated very acrimoniously in 2012.  The court describes the end of the relationship this way:

The parties separated at the end of December, 2012. There was a meeting of the family, not including [the 13-year old son], in early January, 2013. It was hoped that that meeting would be civil, and would set the stage for an orderly transition to the parties living separately. Instead, matters went rapidly downhill thereafter. There were allegations of abuse, violence, theft, destruction of property, assaults, and other allegations of a similar nature. The [father] began videotaping interactions between the parties and their children. The police were called on many occasions. The Children’s Aid Society was involved.

After the ill-fated family meeting, the mother had primary care of the boy, while the father had access only on alternating weekends.  The court heard that under this arrangement, the boy was by all accounts thriving in his school and social environments.  He had a strong attachment to both parents, and was equally happy spending time with either of them.  His stated preference was to spend equal time with them both.

Nonetheless, the father applied for sole custody of the boy.  He claimed that the mother had abused all children for years, and indeed two of them and their paternal grandmother gave testimony to confirm that opinion. (And the court noted that two of those three adult children no longer wanted anything to do with their mother.)   Two of the boy’s siblings gave evidence that the boy would be much better off living with his father, and one of them felt that he would be better off not seeing the mother at all.  One sibling was more conciliatory, but also believed that the boy would do better living with the father.

The father’s opinion of the mother was unequivocal:  He claimed she was a “vindictive, destructive, and evil” person.

The court was left to resolve all this competing evidence in a high-conflict situation, to arrive at a workable resolution.  In doing so, it reiterated the guiding principle in such matters:

It is trite that decisions respecting the custody of or access to a child must be made in accordance with the best interests of the child. The interests of the parents are entirely secondary.

The court then added:

Having heard 16 days of evidence, it is quite clear that each party is, for the most part, concerned with his or her interests first and foremost. The hatred of these parties for each other is palpable. Control is of paramount importance.

Both parties have behaved unreasonably.

Against this background, the court concluded there had been no abuse of the boy, and that – when not embroiled in litigation – were good parents and have the boy’s best interests in mind.  Even though the parents lived quite some distance away, and assuming that the father could commit to getting the boy to school, there would be an order for joint custody, with an equal shared / parallel parenting regime involving at least 40 per cent of the boy’s time being spent with each parent.  (And if the father could not commit to the school-day driving then the current arrangement would remain, but with increased access to him).

The court added that it also wanted to avoid making an order for sole custody to one parent or the other, for fear that the chosen parent would consider themselves the “winner” and use such a determination as an “instrument of oppression.”

For the full text of the decision, see:

Hart v. Krayem

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

 

Moving with a Child: Mother’s Views Take a Back Seat to “Super ordinate Considerations” Affecting Child

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Moving with a Child: Mother’s Views Take a Back Seat to “Super ordinate Considerations” Affecting Child

In cases where spouses are separated or divorced, the decision of where a parent can live and work is no longer his or her alone.   Rather, the Family Court may become involved, and may be asked to give the parent permission to relocate, particularly if that involves moving with the child to a faraway community or jurisdiction, such that convenient access by the other parent is foreclosed.

Recently I talked about a noteworthy decision in a case called Porter v. Bryan where the Ontario Court of Appeal considered the various interests that must be considered when granting (or denying) permission in such cases.

In identifying those factors, the Court drew from a decision by the Supreme Court of Canada in a landmark case called Gordon v. Goertz, where the country’s top Court said:

…the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.

However, while the custodial parent’s views are entitled to “serious consideration,” and were part of a balancing of the two parents’ competing interests as well, it was actually the child’s best interests that were to be given what the court called “superordinate consideration”, with the entire analysis to be determined using a child-centred perspective.   This was in line with the Court’s own prior ruling in a case called Berry v. Berry as well.

Applying these principles to the fact situation in Porter v. Bryan:   While the mother’s reasons for moving – while entitled to “great respect” – were relevant only to the extent that they related to her ability to meet the needs of her son.   The overall focus was to remain – at all times – on what was in the best interests of the child.

For the full text of the decisions, see:

Berry v. Berry

Porter v. Bryan

Gordon v. Goertz

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

Court Strikes Family Law Firm’s $72,500 “Premium” as Being a Contingency Fee

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Court Strikes Family Law Firm’s $72,500 “Premium” as Being a Contingency Fee

Most of you will be familiar with “contingency fees”, meaning the fees a client agrees to pay a lawyer only if the lawyer is successful in the litigation for which he or she is hired.   They are most often used in personal injury matters, with the lawyer’s fee being calculated as a percentage of the amount recovered for the client.

But what you may not know is that in Ontario Family Law matters, contingency fee arrangements are prohibited outright. And in a recent decision, the court “undid” an arguably creative approach by a Toronto-area Family Law firm, finding it was a prohibited contingency fee by another name.

In Jackson v. Stephen Durbin and Associates, the husband was involved in a contentious custody battle with his wife over their 6-year-old daughter.   Under the retainer he signed with the law firm chosen to represent him, the husband agreed to pay the lawyers an hourly rate for working on his case, but “with a daily counsel fee for court or tribunal appearances at ten-fold (solicitor’s) hourly rate and an increase in fees in the event of a positive result achieved (“results achieved fee”)”.

About two years into the litigation process, the husband had depleted the retainer funds and began to accrue arrears with the law firm.  After several accommodations and re-negotiations, the husband still owed the firm its fees totaling $132,500.

He challenged the law firm’s overall bill, especially the “results achieved fee” of almost $72,500, which had been rendered on a separate invoice.   He claimed this was tantamount to a contingency fee agreement in a Family Law matter, which is clearly prohibited by section 28.1(3) of the Solicitors Act.

After reviewing several prior cases on this point, the court agreed. The Act’s wording describes a contingency fee agreement as being one that provides that the remuneration paid to the lawyer for legal fees is contingent “in whole or in part” on the successful disposition or completion of the matter.  The retainer in question stipulated an increase in the event of a “positive result achieved”.  As the court put it:

The logical interpretation of that agreement is that the “results achieved fee” is only chargeable if a successful result is achieved.  I find that the language of the retainer agreement combined with the way the results achieved fee was charged (by way of a separate account), confirms the firm’s intention that the fee was contingent on the successful disposition or completion of the matter in respect of which services were provided.  As such, the results achieved fee charged by the respondent to the applicant is a contingency fee defined by the Solicitor Act and is a prohibited charge.

In short, the “results achieved fee” was merely a contingency fee arrangement in a creative wrapper.  The court accordingly ordered the law firm to refund the almost $72,5000 “premium” that the husband had been charged.

For the full text of the decision, see:

Jackson v. Stephen Durbin and Associates

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

Mother’s Bid to Relocate Child – Was it Just a Pretext to Join New Romantic Partner?

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Mother’s Bid to Relocate Child – Was it Just a Pretext to Join New Romantic Partner?

The parents of a 5-year old boy had separated in 2015, and had a court-approved agreement as to joint custody and shared parenting.  The mother now wanted to relocate with her son from Cochrane, Ontario to Thunder Bay where she had multiple job offers waiting.  She had recently quit her job as a prison transport officer in Cochrane, which did not allow her to properly fulfill her childcare responsibilities. As the court explained:

…. [H]er schedule was unpredictable; sometimes working out of town, sometimes working overtime, sometimes both, and never knowing until the last minute. This would have impaired her ability to care for her son – not knowing in advance whether she would be called in to work in the morning before he went to school, or whether she would be home in time to pick him up again – but her employer temporarily accommodated her with a schedule that avoided unpredictable deployment. Eventually, however, her employer withdrew this accommodation. After exhausting her vacation time and sick leave, the mother resigned her position. Prior to her resignation, her employer invited her to apply for another position in Cochrane with a more parenting-friendly schedule. She was successful, but the employer subsequently had to revoke the offer.

The mother said the move to Thunder Bay was necessary to remain financially viable and provide for her son, and that as the son’s primary caregiver, her decisions about where to live and work out to be given considerable weight.

The father objected to the mother’s plan.  For one thing, it would strip him of the chance to influence his son.   For another, he claimed the mother’s alleged need to move was merely a pretext to be with her new romantic partner, who also lived in Thunder Bay.   He also questioned her lack of ability to find new work in Cochrane, and felt that – since she had quit her job – her current state of financial hardship was self-imposed.

The mother’s bid to move had been rejected earlier by a motion judge, who discounted the allegation that the ostensible need for the move was a pretext.  However, the judge did conclude that both parents’ views had equal weight, and that the resolution called for a simple balancing of pros and cons between Cochrane and Thunder Bay, from the perspective of how the boy might benefit. In the end, the motion judge concluded that the mother should be able to find suitable work in Cochrane if she tried.

The Appeal Court saw things differently, and granted the mother’s appeal.

First of all, the motion judge had erred in not characterizing the mother as the primary caregiver, and in not giving her particular reasons for moving “serious consideration.”  Also, the judge was wrong in deciding that the mother’s financial circumstances were not self-imposed; they were brought on by the employer’s withdrawal of prior accommodation of her childcare responsibilities.  Nor was there any basis for the judge to conclude that the mother could likely find work in Cochrane – in fact the evidence showed otherwise.

The Appeal Court explained:

There is, in our view, a valid and compelling parenting-based reason for the move: it is necessary to enable the primary caregiver to remain financially viable while providing care for the child. The mother has done all she can be expected to do to secure employment in Cochrane. It has not worked out, and there is no good reason for her and her son to live in poverty when she has secured employment in Thunder Bay that will allow her both to parent her son and to provide economically for him.

The court also said it was “encouraged” in this regard by the fact that the mother had offered to provide air travel to Cochrane for the child, which was one of her employment benefits at one of the Thunder Bay jobs.  She also offered to accommodate the father’s work schedule as a forest firefighter when he was deployed across Canada.

The court granted the mother’s appeal, allowing her to move with the child to Thunder Bay, and ordered a new access regime, with the parents working out an acceptable access schedule between them.

For the full text of the decision, see:

Porter v. Bryan

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