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Posts from the ‘Children’ Category

Stay-At-Home Mom Ordered to Pay $30K Towards Fee for Wealthy Husband’s Expert

expert

Stay-At-Home Mom Ordered to Pay $30K Towards Fee for Wealthy Husband’s Expert

The father was a wealthy self-made businessman earning a half-million dollars per year, while mother was an unemployed stay-at-home mom to their daughter, whom the court referred to as their “love child”. After separation, the father had generously set up the mother and child in a rent-free/mortgage-free home to live in.

After a 9-day family law trial that took six years to reach court, joint custody was granted, with the father being ordered to pay $3,750 per month in child support. This amount was vastly lower than what the mother had claimed.

A separate court hearing was held to determine what portion of legal costs were payable by each of them. In the mother’s case, she had spent $213,000 in legal fees and costs, while the father had spent about $172,000.

As part of this exercise, the court honed in on the expert fees that had been paid by each of them. It started by saying that “the parties incurred almost obscene expenses for expert testimony”. Specifically, the mother had paid her expert almost $100,000; yet the court chimed in that “Her expert was of no help to me (or to her)”. Similarly, the fee for the father’s expert was about $60,000 (although the court conceded that the resulting report was indeed helpful).

The trial itself had resolved a number of issues (including support, custody and access), but there was no clear winner: numerous offers had been exchanged over the six years but only on the eve of trial did the father make an offer that would have put the mother “miles ahead”, had she accepted it. Conversely, the mother persisted in taking the matter to trial in “dogged pursuit” of an amount of child support that was unreasonable in the circumstances.

The court noted that the apportionment of legal costs usually proceeds on a costs-follow-the-event basis; they must also be fair and reasonable in the circumstances, and must be in line with the expectations of the losing side. It also acknowledged that in the mother’s financial circumstances she would have difficulty paying even her own lawyer’s bill, let alone any portion of the father’s costs.

Still, it was appropriate in this case to order the mother to pay $30,000 towards the fee the father paid to his expert. The parties were otherwise each responsible for their own costs.

For the full text of the decision, see:

Goetz v. McConnell (2014), 2014 ONSC 2910

Additional reasons to (2013), 2013 ONSC 7949

 

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 our main site.

Mother Claims 6-Year Delay in Seeking Child Support Due to Father’s Mental Health Issues – But Court Doesn’t Buy It

support

Mother Claims 6-Year Delay in Seeking Child Support Due to Father’s Mental Health Issues – But Court Doesn’t Buy It

In Williams v. Rezonja, the couple’s relationship started after a “blind date” and resulting in their having a child together. They got engaged, but never did marry.

Although their relationship was apparently at first, it quickly deteriorated after the child was born. The woman said the man started to exhibit bizarre behaviour, which she said came “out of nowhere”. He stopped interacting with her and the child, and she could never be sure whether he was going to work at his well-paying job or not. He told other people she was “out to get him”, and sometimes slept on the couch in his clothes, with his keys in his pocket.

When the woman met her future mother-in-law, they agreed that he should be assessed. After this, he stopped coming communicating with her or coming home. He stayed with his mother, who conceded that he had been admitted to a mental health facility for a few days. Soon after, the woman got a letter from is lawyer, advising that she needed to move out of the house that they shared, and which was in the man’s name.

The woman – who was unemployed at the time – did move out as requested. She took the child with her, and found a job in order to support herself. She eventually claimed child support from the man – but not until about 6 years later.

The court heard evidence that although she knew where to reach the man, the woman chose not to ask him for child support for all those years because she felt it was “unsafe” for her and the child to be anywhere near him. Although he had not threatened her verbally or physically, she said she had concerns for safety and if he was possibly unwell felt she did not want him involved with the child at all.

The man’s version of events was that the woman ended the relationship, and that he was depressed for a period of time. He had indeed been admitted to a psychiatric unit for 2 to 3 weeks, and was off work for 2 years, but said that he was now healthy. He believed that his problems were directly caused by the woman’s treatment of him.

The court did a balanced evaluation of the evidence, considering all the relevant factors, including: the reasons for the woman’s delay; the conduct of the man; the circumstances of the child; and any hardship a retroactive award might cause the man. No single factor is decisive, it pointed out.

Next, the court began by pointing out that as parents, both parties had an obligation to ensure their child receives appropriate support in a timely manner.
Here, the woman’s stated reason for delay were unconvincing; the court found she exaggerated her fear of the man and the potential for retaliation, and was certainly sophisticated enough to have sought legal advice. In short, the court found that she did not pursue child support because she was prepared to “go it alone”.

Turning to the man, the court found that he was blameworthy to some extent, too. He appears to have concluded, based on the fact that mother was not pursing him for support, that he was “home-free” and would not be on the hook financially. As the court put it: “There was an obvious incentive to continue to ignore that which he otherwise knew was his legal obligation.”

With all this in mind, the court concluded that this was not a case for retroactive child support for the full six years. The mother had clearly demonstrated that she wanted nothing to do with the father and was prepared to raise the child on her own. The court did, however, award support for the period starting December 1, 2012, which is the month following the date of the woman’s court application.

For the full text of the decision, see:

Williamson v. Rezonja, 2014 ONCJ 72 (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 our main site.

Does The Age of The Child Affect Child Support in Ontario? – video

 
 

Wednesday’s Video Clip: Does The Age of The Child Affect Child Support in Ontario?

Simply put, the age of a child does affect the amount of child support ordered.

In this video, Shelley, a Law Clerk with Russell Alexander Family Lawyers, discusses how and when the age of the child could affect child support. Income considerations, age of the child and needs of the child should be considered.

Can Tardy Dad Force Mom to Move Back to Ontario?

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Can Tardy Dad Force Mom to Move Back to Ontario?

In situations where parents are separated or divorced and share custody, courts are sometimes called upon to decide whether one of them can permanently move away with the child, often to pursue new work or a new relationship. In such cases courts must give careful scrutiny to all of the circumstances before deciding; this includes examining the existing parenting/financial arrangements and support network, and how those will change either the benefit or detriment of the child. After such scrutiny, in some cases the court will reject the parent’s proposed relocation outright.

Some parents will proactively take matters into their own hands: They unilaterally decide to pre-emptively move away with the child first, and then return to court after-the-fact, asking for retroactive permission. Courts resoundingly condemn this self-help approach: it not only alters the status quo for the child, but it is also patently unfair to the other parent who resists the move and now has to get a court order to “undo” it.
This was precisely the situation in Rifai v. Green, where the father and mother had ended their marriage almost nine months before their (now) 1-year-old child was born. The father brought an emergency motion to undo a pre-emptive relocation to another province by the mother which had taken place about eight months earlier, when the child was three months old.

Arguably, until this point the father had been rather indifferent to his infant daughter: She had been in the mother’s custody since birth, and he had had no contact with her at all since she was two months old. Nonetheless, he brought a motion to force the mother to return from Alberta, where – with his permission – she had gone with the father’s permission for a 6-week stay to visit an ailing grandmother. Shortly after arriving, however, the mother advised the father that she was not planning to come back. In fact, she never did return to Ontario with the child.

A few months passed and the father continued to stay in contact though his lawyers, but mainly to dispute paternity and try to have DNA testing done. Meanwhile, throughout this period spanning much of 2013 the father paid no child support whatsoever, even though he was earning $45,000 per year.

In considering the father’s early-2014 emergency motion to force the mother to return, the court began by expressing its concern that the mother had engaged in self-help and had altered the status quo with the pre-emptive move. On the other hand, it also pointed to the father’s complete lack of support before and since the daughter’s birth, including his sporadic visits during her first two months of life, his lack of financial support, and his focus on denying paternity. Indeed, the father seemed uninterested in having more access until paternity was confirmed – and process which was stalled due in part to the father’s own foot-dragging. As the court put it:

[The mother] felt the [father] wasn’t actually interested in [the daughter’s] life – but he wanted to keep his options open. The [mother] couldn’t wait while the [father] made up his mind about whether he wanted to be a father. She made a life for herself and her daughter in Alberta. And now that’s the child’s habitual residence.
The reality was that as long as she stayed in Ontario, the mother was forced to struggle in the effective role of “single mom”, since the father had shown no interest in the child other than to try to refute paternity. In contrast, in Alberta she had family and friends who could provide her with the assistance and emotional support she needed.

The court observed:

There are consequences to the fact that the [father] ended up doing nothing – for eight full months. Time moves on. Children move on. The [mother] and [daughter] moved on. And really, it is difficult to blame the mother for seeking out a family support network, in the face of such ambiguous and half-hearted involvement from the father.

In short: even though the court disapproved of the mother’s unilateral change to the status quo, it was equally critical of the father’s 8-month delay in bringing his “emergency” motion. It said:

Eight months is a conspicuously long time, particularly when you factor in that it’s really been 10 months since the [father] last saw his child.

The court therefore denied his request for an order compelling the mother to move back with the child.

For the full text of the decision, see:

Rifai v. Green, 2014 ONSC 1377 (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 our main site.

If Kids Aren’t Part of the Litigation, Should Their Best Interests Still be Considered?

kid in courtroom

If Kids Aren’t Part of the Litigation, Should Their Best Interests Still be Considered?

In a prior blog post  we discussed a case called M. v. C., which dealt with whether a father who is estranged from his child should nonetheless be required to pay for the child’s private school fees. (And in that case, quite unusually, the court application had been brought by the 14-year-old child herself).

One of the important details in that case was the fact that the father had had no involvement in the daughter’s life or that of her mother at all, and in fact had gone on to marry and have three other daughters. Those daughters did not know of the existence of the 14-year-old, who technically was their half-sister.

In the context of the father’s request to have the court file sealed for privacy, the court had to consider whether the best interests of the father’s other, younger children – who were part of his new family but were not involved in the lawsuit – should even be considered. In particular, it reflected on the potential impact it may have on those children to learn for the first time about their 14-year-old half-sister and about the details of the lawsuit. In this regard the court took note of evidence that the girl had already made some reference to the litigation online; this meant that the children’s peers might learn of the case as well, which the court speculated could lead to bullying via computer.

While recognizing that the overriding principles and values of the Canadian justice system favoured openness and transparency, the court pointed out that this goal must be balanced against the interests of children who are potentially affected by the litigation – including even those who were not formally part of it. As the court put it:

“It makes no sense to me that the Court would only be concerned with the possibility of negative consequences arising from litigation in the context of children who are parties to a lawsuit and would ignore the possibility of harm being visited upon other children who are directly affected by the litigation yet are not parties to it. The preferable view is for the court to take into account the interests of children who clearly can suffer harm arising directly from a lawsuit which involves one or more of their parents, even if the children themselves are not named in the lawsuit.”

In the end, having concluded that the best interests of the father’s new family should also be taken into account, the court ordered the file sealed for privacy.

For the full text of the decision, see

M. v. C., 2014 ONSC 567 (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 www.RussellAlexander.com.

Should Deceased Mother’s New Partner Win Custody Over Kids’ Biological Father?

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Should Deceased Mother’s New Partner Win Custody Over Kids’ Biological Father?

The recent decision in Van v. Shilletto features an unusual custody contest between a biological parent on the one hand, and the new partner of now-deceased other parent, on the other.

The background facts were a little unusual, too: The parents of two children had divorced and each parent was living with a new partner. In the mother’s case, the new partner was a patron at the restaurant where she worked. In the father’s case, the “new” partner was actually his first wife – who happened to be the mother’s older sister.

(To explain: The father and mother were both from Vietnam. The father had been married before – to the mother’s older sister, whom he divorced after moving to Canada. After that divorce, the father returned to Vietnam to marry the mother, who joined him in Canada two years later. But when she arrived, she was dismayed to learn that he was back living with his first wife, i.e. the mother’s own older sister. Although the mother was not pleased, this living situation – which involved both women having separate sections of the house – apparently continued throughout their marriage until the mother moved out several years later).

In any event, when the children’s mother later died of cancer, her will stipulated that her surviving new partner was to be the guardian and have custody of the children, and that they were to spend all day each Saturday with the father as they had been doing. The children themselves were on-board with this plan, and neither of them expressed an interest in spending more time with their father than had been the case until now. In fact, at times each of the children expressed an unwillingness to see their father at all, and pronounced the Saturdays they currently spent with him to be “boring”.

Nonetheless, the father brought a court application for custody, which the new partner countered with a custody application of his own.

The court considered the situation, starting with the fact that the mother’s new partner had made considerable effort to get along with the father, had cared for the children and the mother during her battle with cancer, and had been an important and positive influence in their lives for the past few years.

In contrast, the father had shown that he was not sensitive to the children’s emotional needs: After the mother’s death, for example, he denigrated her in front of the children, calling her “mental” and a “bad woman”. He routinely made negative remarks about the new partner as well, calling him “evil” and accusing him for breaking up the marriage and “stealing” the children. This was despite the fact that the new partner had been providing love and security to the children both before and after the mother’s traumatic death.

The court observed that a child’s biological parentage is not determinative in a custody dispute; rather, it is one of several factors, including the wishes of the children themselves, which was to be given considerable weight.
In this case, it was not in the children’s best interest to be in their father’s custody. The application of the mother’s new partner was granted, with the father being given access on the same Saturdays-only schedule as before.

For the full text of the decision, see:

Van v. Shilletto, 2014 ONCJ 104 (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 www.RussellAlexander.com.

Kid Asks Estranged Dad’s Parent for Private School Tuition

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Kid Asks Estranged Dad’s Parent for Private School Tuition

In a recent Blog called “Can Kid Bring His or Her Own Support Claim?” [Link to May 2014 article], I wrote about whether a child can ask for an obtain support independently, in a situation where the child was effectively uncommunicative and estranged from his or her parents.

This week’s Blog deals with a related theme: Whether a child could obtain support for out-of-the-ordinary educational expenses from a parent she had never met. It arises in a recent case called M. v. C., which hinged on the interpretation and effect of a contract between the parents, made at the time the child was born, which absolved the father of child support payments in exchange for a one-time payment.

In this case, the parents wanted nothing to do with each other after their child was born. They agreed that the father would pay a lump sum in full satisfaction of his child support obligations, and never contact the mother and child again. As intended, the child and the father – now a married lawyer with three children who were unaware they had a half-sibling – never met.

However when the child turned about 14, she decided that she wanted to go to private school that would cost about $130,000 in tuition and another $50,000 for textbooks over the course of several years of intended studies there. She tracked down his biological father’s mother (i.e. her grandmother), and wrote her a letter asking for private school tuition and expenses. The grandmother never responded. The child then applied to court for an interim (i.e. temporary) order requiring the father to pay these expenses directly until the matter could be heard by the court in full. She also asked that the father be ordered to pay $50,000 for the costs of having an expert prepare a business valuation report of the father’s income.

The court declined. This was a complicated and a usual family law matter, requiring the court to consider the effect and enforceability of a contract between the parents that was made 14 years earlier. The court had to be careful not to pre-judge the issue until the matter could be heard in full by the court. On the flip-side, the court also declined to throw the matter out entirely, as the father wanted. There were serious issues to be tried.

(And on the issue of the $50,000 fee for the expert report, the court pointed out that the child’s only justification for the claim that the father was wealthy and could afford to pay it was her assertion that “I believe that my birth father has sufficient wealth to be able to contribute to the cost of my litigation expense.” The court found the proposed fee “exorbitant” and the need for it unsubstantiated; it turned the child’s request down).

For the full text of the decision, see:

M. v. C., 2014 ONSC 567 (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 www.RussellAlexander.com.

Can a Kid Bring His or Her Own Support Claim?

 

kid in court

Can a Kid Bring His or Her Own Support Claim?
In past articles I have discussed the fact that parents have a legal responsibility to support their children through their education, even past the age of 18 in most cases. The extent and duration of this child support will vary from case to case.

In a recent Ontario decision called Miller v. Mitchell, the question arose whether that obligation persisted even where the child was no longer living with either of the parents, and indeed had arguably withdrawn from their care and control. In this scenario, the child had effectively brought a stand-alone claim for his own child support.

The facts involved the 23-year old son who had dropped out for a while, but had then returned to school full-time. He was currently in his fourth and final year of an undergraduate program at university. Although he had become essentially estranged from his divorced parents and did not live with either of them, he applied independently for child support to cover his educational expenses.

After looking at the facts, the court granted the son’s request.

It concluded that under the circumstances he was still a “child of the marriage” to extent required to trigger the parents’ support obligations under the legislation. It also observed that “child support is not payment for being a dutiful, communicative son or daughter.”

The court accordingly ordered the parents to pay the child’s educational costs, but added that the son was required to provide proof of his full-time attendance in school at the beginning and end of each academic year.

Incidentally, in considering how long the child support payments should continue for this 23-year old, the court made an interesting observation:

The support payments shall continue for so long as the applicant is attending university on a full-time basis. The old rule of thumb that only a first degree should be contributed to by the parents has been eclipsed by the present reality, in respect of which I take judicial notice, that such a degree no longer provides an automatic entrée to remunerative employment.

For the full text of the decision, see:

Miller v. Mitchell, 2013 ONSC 7021

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 www.RussellAlexander.com.

Does Mother Who is on Bail Get Reduced Child Support?

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Does Mother Who is on Bail Get Reduced Child Support?

In this recent case, the Appeal court began its judgment this way:

Marital separation and divorce is typically a traumatic event for the family. But it usually gets better over time. That is not the outcome in the case at bar.

The court described a history of acrimony between the parents, who had been married for 8 years when they separated. After much dispute and legal wrangling, they agreed that the father would pay a certain amount of child support per month.

However, in 2010 the mother and her new boyfriend were charged with serious criminal sexual offences against the young female friend of the mother’s daughter. The children of the marriage were not involved, but the mother ultimately pleaded guilty of a non-sexual offence of criminal negligence causing bodily harm. She was let out on bail.

Since the father was understandably concerned over their own children’s safety in the mother’s care, she consented to changing their custody arrangement, effectively relinquishing her entitlement to being the children’s primary residence, and instead having supervised access with them. This amended arrangement lasted throughout 2010 for a period of about 1.5 years while the original charges against her were pending.

With this in mind – and in light of the reduced time that the mother had spent with the children during that period – the father took steps to have the support he was obliged to pay in 2010 credited to him.

However, the father’s application to the court was dismissed.

The court concluded that even with the mother’s reduced schedule while on bail, the children still spent about 42 percent of their time with her. Furthermore, the trial judge had originally been somewhat generous in imputing $30,000 income to the mother, even though the actual amount she earned for the year prior closer to about $12,500. This inflated assessment benefited the father, in terms of calculating the support he was required to pay. The reality was that the mother had a modest part-time income, and had three children in her household. In contrast, the father was living with someone new who contributed financially to their household income. In short, the mother still had need for support, and the father still had the ability to pay it. The father was not entitled to be credited for overpaying support.

The application was dismissed, but the matter could be renewed in the future.

Karges v. Karges (2014), 2014 ONCA 163

Affirming Karges v. Karges, 2012 ONSC 6033

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, please visit us.

Incorporating the “Voice of the Child” – One Example of How It Can Be Done

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Last week I wrote about a case called O. (B.T.) v. A. (A.), 2013 CarswellOnt 17790 (Ont. C.J.), which involved a separated mother who wanted to move with the children back to Nigeria, and a father who objected to the move on several grounds, including the fact that

Nigeria was a dangerous place and posed a risk to the health and safety of the children.

In addition to dealing with that issue, the court was also asked to consider a more narrow question: how should the wishes of the children about the proposed move should best be received, and to what extent should they affect the court’s decision?

This examination is triggered because of an international convention to which Canada is a signatory, called the “U.N. Convention on the Rights of the Child”, which makes in mandatory in such cases for a court to receive and take into account the children’s wishes. (This is also required under Ontario’s Children’s Law Reform Act).

However, the manner in which the court is to receive this information is not prescribed or mandated anywhere.

In this particular case, the parents fulfilled the requirement by agreeing to hire as a joint neutral witness a person who has been trained by the Office of the Children’s Lawyer to interview children. This individual (who happened to be a lawyer) was not representing the children, but rather served merely as a non-participating witness whose impartial involvement would eliminate the need for them to testify at trial in front of the court and their parents. In this role, the neutral witness read the court records, met separately with each of the parents, and then met with the children three separate times – including once at each of the parents’ homes. She concluded that the children were mature beyond their years, and gave evidence as to what their views on the proposed move were.

With this evidence in hand, it was then up to the court to assess its reasonableness, determine the weight it should be given, and then ascertain how it should affect the outcome on the proposed move to Nigeria.

Here, the court concluded that the neutral witness had indeed used a reasonable process to ascertain the children’s wishes; it also determined that – while the views and preferences of the children were not the sole determining factor on the move to Nigeria – given the children’s age and maturity, they should be given considerable weight.

Even though the court largely accepted independent witness’ assessment in this case, as a more general comment it did query the process by which the children’s “maturity level” was purportedly determined, pointing out that “as we develop better approaches for obtaining the wishes of the children in the future, we need to keep this issue in mind.”

B.T.O. v. A.A., 2013 ONCJ 708 (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 www.RussellAlexander.com.