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Posts from the ‘Children’ Category

Can a Parent be in Contempt When Kid Disobeys a Court Order?

Can a Parent be in Contempt When Kid Disobeys a Court Order?

In many of the child custody and access cases I write about, the central dispute boils down to the fact that the parents of the child are at odds in terms of what custody arrangements they want and how much access they should each have to the children.

But even once a court order is in place, the disagreements can continue, because the parents may be at odds over precisely what the order means, and how it should be complied with. In a typical scenario, the custodial parent will have failed to abide by the terms of a court order setting out specific custody or access, perhaps by keeping the child longer than ordered, or else by failing to facilitate the access rights of the non-custodial parent.

But what if the lack of compliance is because it’s the child – not the parents – who won’t co-operate? What if the child outright refuses to spend time with the access parent?

In a recent set of Blogs I talked about the concept of “contempt of court”, in family law proceedings especially. This remedy can be imposed on a parent who refuses to comply with a court order, or otherwise hampers the course of justice.

What may be surprising is that under Canadian law, in some circumstances a parent can still be held accountable for contempt of court even if it’s the child who thwarts the fulfilment of the court order. This is because of the legal principle that if there is a court order in place, the parent is under a duty to do all that he or she reasonably can in order to ensure that it is complied with. And a finding of contempt of court may follow if the other parent can establish, beyond a reasonable doubt, that the other parent failed to take all of those reasonable steps.

In short: the parent cannot simply leave questions of custody and access up to the child; otherwise it amounts to an abdication of parental responsibility. In an older case called Geremia v. Harb, Justice Quinn put it well when he said:

Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

With that said, the contempt remedy is not imposed every time a parent is unsuccessful at coercing a child – particularly an older one – to comply with an order. Rather, the outcome on whether to make a contempt finding will be viewed by the court with its broader duty in mind: which is to balance the need to enforce court orders and to encourage a child’s contact with both parents versus respecting a child’s own wishes and safeguarding his or her needs, safety and well-being.

For the full text of the decision, see:

Geremia v. Harb, 2007 CanLII 1893 (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

Wednesday’s Video Clip: When Can A Parent Apply For Child Support

Wednesday’s Video Clip: When Can A Parent Apply For Child Support

In this video we discuss how parents who have their children living with them after separation can apply for child support at any time. Usually they apply right after they separate or as part of their divorce application. They often apply for custody and child support at the same time. It is usually best to deal with these matters as early as possible.

Sometimes parents with custody do not want or need child support at first, but later their situation changes. They can apply for child support when the need occurs, even after a divorce and all other matters arising from the separation have been settled.

But if a step-parent is asked to pay support, the more time that has passed since the step-parent had an ongoing relationship with the child, the less likely it is that the court will order support payments. This is especially true if the step-parent’s social and emotional relationship with the child has ended.

A parent can apply for custody and support even while living separately under the same roof after their relationship with the other parent is over. But usually the court will not make any order for custody and support until one parent has actually moved out.

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

Do Judges Need to Actually Give Reasons?

Do Judges Need to Actually Give Reasons?

For those of you “armchair lawyers” who like to follow real-life trials, watch TV crime shows, or even just read books by John Grisham, here’s an interesting question for you:

In law, can a litigant appeal a judicial ruling simply because the judge’s reasons were brief?

The answer is: Maybe.

The sparseness of the reasons given by the trial judge was among the grounds for appeal in the recent Ontario Court of Appeal decision in Filanovsky v. Filanovsky. A 45-year old woman had sued her parents for alleged physical and emotional abuse when she was a child, including violent blows to the face that left her with traumatic brain injuries.

After a 10-day trial in which the court considered evidence from the woman, her brother, various experts, and the parents themselves, the woman’s claims were dismissed.

She appealed and requested a new trial, with one of the grounds being that the judge failed to give adequate reasons to explain the reason her claim was dismissed.

The appeal court rejected this particular argument.

To begin with, the court conceded that prior decisions have established that a judge must give reasons:

1) to justify and explain the result;

2) to explain to the losing party why she lost;

3) to provide public accountability and to satisfy the public that justice has been done; and

4) to permit review by an appeal court.

However, the Appeal Court relied on another recent decision of its own called Dovbush v. Mouzitchka, where it had a chance to examine those requirements in detail, saying:

Trial judges are called upon to make difficult decisions, often in difficult circumstances. They preside as the particular dynamics of the trial unfold. Inadequate reasons therefore pose a particular challenge for appellate review.

On the one hand, as [Supreme Court of Canada justice] Rothstein J. noted in F.H. v. McDougall, … “an appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor, is the failure to give adequate reasons a free-standing basis for appeal.”

However, the Appeal Court in Dovbush had pointed that in determining the issue of the reasons’ sufficiency,

…[I]t turns on the overarching principle of whether the reasons permit meaningful and effective appellate review. Appellate courts will take a contextual and functional approach to addressing whether reasons meet this standard. The exercise has been variously described as one of determining whether the reasons demonstrate: “the path taken by the trial judge through confused or conflicting evidence” … or that “the trial judge came to grips with the issues and explained sufficiently his … conclusions and the reasons and basis for them” … or, the “what” and the “why” of the result.

Returning to the Filanovsky case, the judge who dismissed the woman’s abuse claim against her parents had actually given lengthy reasons, in which she assessed credibility, analyzed all the witness’ evidence, and pointed out inconsistencies. The reasons as rendered by the judge did allow for a meaningful appellate review.

The woman had raised other grounds of appeal, and these were dismissed as well.

For the full text of the decisions, see:

Filanovsky v. Filanovsky, 2017 ONCA 28 (CanLII)

Dovbush v. Mouzitchka, 2016 ONCA 381 (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

If a Biological Parent is Paying Child Support, Does a Step-Parent Still Have to Pay?

If a Biological Parent is Paying Child Support, Does a Step-Parent Still Have to Pay?

In Stetler v. Stetler, the mother and had a child with a man (the biological father). The mother then married a second man (the step-father), and the relationship lasted eight years before they separated. During that entire time, the step-father treated the girl as his own, and supporter her financially as part of his role in the new family.

Meanwhile, the mother was still receiving child support from the girl’s biological father, even though he had never seen or even met his daughter.

When the mother and the step-father eventually separated, the step-father took the opportunity to deny having any obligation to support the girl, who was now 13 years old. He bolstered this position by pointing out that she no longer wanted to see him after he separated from the mother. (Apparently, however, this estrangement could have been remedied had the step-father apologized to the girl for a particular incident, which he stubbornly refused to do).

Despite the continued payment of child support from the biological father, the mother brought a court application claiming child support from the step-father as well. Among the legal issues was whether in these circumstances the step-father should still be obligated post-separation, particularly in light of his evident intention during the marriage to support her as a parent would.

The court concluded that he was. As the court put it:

The [step-father] seeks relief on support for [the child] because of what he calls “double dipping”, represented by the support currently being paid by the biological father. Gratuitously, he argues that [the child] chose not to see him and he shouldn’t have to pay support because of the biological father’s support. … With respect to [the child], I am guided by s.5 of the Child Support Guidelines.

Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these guidelines and any other parent’s legal duty to support the child.

The unseen biological father of [the child] has been fulfilling his obligation to the letter of the law the whole while. This does not give the [the step-father] a free ride. The [step-father] has an obligation to support this child and in my view, the appropriate order is set out in the Supreme Court of Canada case, Chartier v. Chartier, … which says this:

The contribution to be paid by the biological parent should be assessed independently of the obligations of the step-parent. The obligation to support a child arises as soon as that child is determined to be “a child of the marriage”. The obligation of parents for a child are all joint and several. The issue of contribution is one between all of the parents who have obligations toward the child, whether they are biological parents or step-parents; it should not affect a child.

In the end, the court ordered the step-father to pay one-third of the total child support owing for the girl, with the unseen biological father to continue paying the remaining two-thirds.

For the full text of the decision, see:

Stetler v. Stetler, 2012 ONSC 4466 (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 Are Decisions Made About Custody in Ontario

Wednesday’s Video Clip: How Are Decisions Made About Custody in Ontario

Father Punches His Own Dad in the Face at Christmas Gathering; Can Mother Deny Him Access to their Child?

Father Punches His Own Dad in the Face at Christmas Gathering; Can Mother Deny Him Access to their Child?

Here’s a good question: Is a mother entitled to unilaterally deprive the father of his access rights to their child, based on an incident – that she did not witness – in which the father punched the child’s grandfather in the face? Does it matter that she heard the news from the father’s recently-estranged ex-girlfriend?

Before you answer, here are the fuller facts:

The mother and father had a child together, and split up a few years later. The father, who had been dating and living with someone new for about a year, enjoyed unsupervised access to the now 6-year old boy, pursuant to a court order.

Things were going well with the arrangement until December of 2015. That’s when the father, the child, and his new girlfriend attended a Christmas family function hosted by father’s parents (i.e. the child’s grandparents).

The court, describing the recount of the incident given by the girlfriend in her court-filed affidavit, picks up the story:

She states that “the first time I witnessed [the father’s] rage was at his parent’s home”, about a week after Christmas. She states that they were about to sit down for breakfast when the [the father] became enraged because his mother did not prepare a vegan breakfast for him. She alleges he called his mother a “dustbag” and said “I hope you die”. He then went outside to have a cigarette. His brother … went out to calm him down and they started yelling at each other. [The girlfriend] went outside and saw the [father] swinging his fists at [his brother]. His father came out and intervened, and the [father] punched his father in the face.

Fast-forward two months. The father had recently broken up with his girlfriend (now ex-girlfriend), who took it upon herself to text the mother, complaining about the father’s behavior. In particular, the ex-girlfriend warned the mother about the incident at the Christmas family gathering that the mother did not attend.

The ex-girlfriend’s version of events was confirmed in an affidavit by the father’s brother; however the grandfather himself denied that the incident took place or that he was punched in the face.

Shortly after receiving the ex-girlfriend’s text the mother, apparently fearing for the child’s safety, decided of her own initiative that the father should no longer have access to the child, and refused to cooperate with his attempts. (She tried to get a court order without giving notice to the father, but it was rejected). In the following weeks, the father sent her three letters, putting her on notice that she was in breach of the court order. She continued to foil his access, until the father applied to the court to have the mother held in contempt.

The court considered all aspects of this rather unique scenario. By her own admission, the mother had disobeyed the court order, and persisted even after the father complained by letter. Her was motive clearly stemmed from concern over the child’s safety. But the key question was whether her disobedience was legally justified, due to the presence of serious risk of harm to the child.

After reviewing the evidence, the competing versions of the incident, and legal test for contempt, the court wrote:

In my view, the Christmas incident reported by [ex-girlfriend] falls short of demonstrating a serious risk of harm to the child. The child was not directly involved in the incident, and was apparently unaffected by it. It is noteworthy that, according to [the ex-girlfriend], this was “the first time” she was exposed to the [the father’s] “rage” even though they had been a couple since the preceding May. This suggests that this incident was an isolated one, and not part of a continuing course of conduct.

There is nothing about the December incident that gave rise to a situation of serious risk to the child that justified the unilateral action of the [the mother] in choosing to defy the access order. It is significant that the incident had occurred two months before she even became aware of it, and throughout that period she was of the view that access was going well.

In short, the mother’s decision was a gross overreaction to the information she received from the ex-girlfriend. The court found her in contempt.

For the full text of the decision, see:

Houben v Maxwell, 2016 ONSC 2846 (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

Can Putting Your Work Before Your Kids Cost You Access Rights? Yes!

Can Putting Your Work Before Your Kids Cost You Access Rights? Yes!

If your job responsibilities routinely prevent you from exercising your access rights on a regular basis, can a court make it even harder for you to see your kids?

Absolutely.

That’s what happened in an Ontario case called Stimpson v. Stimpson. There, the couple’s 3-year-old daughter had lived with the mother in Ottawa since their separation in 2014. The father’s access time was scheduled for alternating weekends and mid-week periods. However, his work duties with the Canadian military apparently prevented him from exercising his access rights fully, since he had an erratic work schedule and had recently been sent on several short military deployments. Also, except for work-related reasons he was not allowed to travel more than 90 minutes from Ottawa without a special exemption, although this was not a true impediment to exercising access since the mother’s home was only 18 minutes away.

In any case, all of this meant that in a 1.5-year period the father had taken advantage of only 50 percent of the access time allotted for him to see his daughter.

Meanwhile the mother applied to the court to be allowed to move with the daughter to Toronto to be with her new fiancé. The mother had few social ties in Ottawa and was lonely, and due to a lack of available caregivers had to juggle childcare obligations with her work commitments. In contrast, her family and close friends-with-kids all lived in Toronto, and she had an offer for a good, higher-paying job already lined up there.

In assessing the mother’s request, court confirmed that maximum contact with both parents was the theoretical ideal. However, in this case that was to be balanced with other best-interest factors: namely, that the child would benefit greatly from continuing to live with the mother as her primary caregiver, and from the overall improved financial and family situation that the relocation would provide. Since the child also had a very strong bond with the mother, it was in her best interests that the mother-daughter relationship should be fostered. Finally, the timing for a move was also right, since she was just about to enter kindergarten.

Very tellingly, the court also honed in on the fact that the father had missed or cancelled his scheduled access about half the time. This told the court quite clearly that he prioritized his work duties over seeing his daughter.
Over the father’s objections, and even though it meant that his time with the daughter would drop sharply, the court granted the mother’s legitimate request, and allowed her to move to Toronto with the young girl.

For the full text of the decision, see:

Stimpson v. Stimpson, [2016] O.J. No. 4283, 2016 ONSC 5066

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: What Are The Child Support Guidelines?


Wednesday’s Video Clip: What Are The Child Support Guidelines?

In this law video we discuss the child support guidelines.

In 1997, the federal government brought in a set of new rules and tables for calculating the amount of support a parent who does not have custody of his or her child must pay to the parent who has custody.

These rules and tables were later adopted by the Ontario government and are set out in the Child Support Guidelines.

A link to the Federal Child Support Guidelines is provided in the Resources – Navigating the Family Law System – Spousal/Child Support section of our website.

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

Canadian Law At-a-Glance: Passports for Kids

Canadian Law At-a-Glance: Passports for Kids

With winter break right around the corner, it’s a good time to touch on the requirements for obtaining or renewing your child’s valid Passport. Here is what you need to know:

Does My Kid Need a Passport?

The short answer: Yes.

All Canadian children – from newborn on upward – require their own Passport in order to travel. Any Passport issued for your child is valid only for a maximum of 5 years, at which time it expires and must be renewed.

Who Can Apply?

If your child is under the age of 16:

• The Passport application must be submitted by at least one of the child’s parents (or legal guardian, in which case proof of legal guardianship must be provided).

• Ideally, however, you and the other parent should both sign the application, because the Passport Program may contact the other parent in any case.

• If you are separated or divorced from the child’s other parent, then the parent who has custody of the child is the one eligible to apply. In that case, you must provide copies of any separation agreements or relevant court orders to the Passport Program.

If your child is aged 16 or over, then he or she must submit their own Passport application, since for these purposes they are considered an adult.

Say “Cheese”

Along with the filled-out application form, you must also provide a photo which will appear in your child’s Passport.
Under the current requirements, the photo must have been taken in the last 6 months, must be taken in person by a commercial photographer, and must otherwise conform to certain specifications set out by the Government of Canada’s Passport Program. If the photo does not comply, your child’s Passport application will be rejected.

Fees and Process

When you submit your child’s Passport application form, you must also include payment of a fee, which is currently set at CAN$57. There are additional fees for “express” or “urgent” processing (and note that those are two different things), which expedited service must be requested in-person at a Passport Office that offers them.

Processing times will vary according to where and how the application is submitted (i.e. in person, or by mail) and range from between 10 and 20 business days.

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: Child Support & Access Rights in Ontario


Wednesday’s Video Clip: Child Support & Access Rights in Ontario

In this video we discuss child support in relationship to access rights. A parent cannot cut off contact to a child simply because child support is not being paid.

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