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Posts from the ‘Children’ Category

Drunk Father’s Access Visits Limited to Mother’s Front Yard – Should He Get Another Chance?

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Drunk Father’s Access Visits Limited to Mother’s Front Yard – Should He Get Another Chance?

In a recent Ontario case called Allard v. Allard, the parents had been married for seven years and had two children together when they separated. The children went to live with the mother, and access by the father went smoothly until there was an incident the court summed up this way:

As a result of an incident on April 11, 2012, which the [father] was stopped by police with the children in the car and was found to have an alcohol reading in the “warning range” on the breathalyzer machine, access has been supervised, but not successfully, and now the [father] is only allowed to visit the children in the [mother’s] front yard – a very unsatisfactory arrangement.

The matter came before the court to determine custody and access. The mother wanted to be awarded primary custody, while the father wanted joint custody, even despite the incident.

The court found that the historically-poor relationship between the parents militated against any sort of joint custody arrangement; rather, it was in the children’s best interests to maintain the status quo, which meant that they should remain in the mother’s custody and to continue to live with her.

In terms of the father’s access, the mother asked that it continue to be supervised. The court considered this suggested solution to be “quite harsh”, in light of the fact that (prior to the breathalyzer incident), there had been three years of relatively successful access by the father.
Without further evidence, the court was not prepared to order that the father’s access be permanently supervised. As the court put it:

Clearly, he should not be allowed access if he is using intoxicants, but other than that, he should be allowed reasonable access on reasonable notice along the lines of the old access arrangements.

The court ordered the father to be allowed generous access, with supervision for a 3-month period, and after that time was up the access could return to an unsupervised arrangement on alternating weekends or as agreed by the parents.

For the full text of the decision, see:

Allard v. Allard (2014), 2014 ONSC 492 http://canlii.ca/t/g2s14

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.

More on the Ins-and-Outs of “Income”

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More on the Ins-and-Outs of “Income”

I have written previously, What Counts as “Income” for Child Support? – Top 5 Concepts , about how “income” is an important factor in determining whether and how much child support a court will order one parent to pay to the other. For these purposes, the basic rule is that “income” is simply the amount reported to the Canada Revenue Agency (CRA) for the purposes of determining the annual federal income tax owed.

However – as we have come to expect with family law – some circumstances call for exceptions or differential treatment, designed to allow courts fairly address the special-case scenarios that can arise. Most often, these flow from the unique circumstances of the paying parent’s employment arrangement, or else from special financial circumstances or events that arise from his or her particular employment scenario. For example: Self-employment income is generally the amount that a person reports to CRA as income. However, the court will look at the reasonableness of the reported amount, usually by reviewing the individual’s records and – where there is a corporation involved – by reviewing the financial statements for the previous three years. This review will involve scrutiny of all aspects of the business: the expenses paid, as well as the payment made to employees, consultants and independent contractors.

Partnership income is another type of income that involves specific treatment. A parent who is self-employed but in a partnership – and who is taking a “draw” as partnership salary – will also have to satisfy a court that the money drawn out is reasonable in all the circumstances. If it is not, then a court may impute income to the parent; as before, this usually follows upon the court taking an income “snapshot” from the past three years in order to arrive at a fair figure.

Bonuses and overtime are also subject to a court’s scrutiny; the analysis begins by applying the general rule that such payments received by a parent from his or her employer will be included as income. However, adjustments can be made for exceptional years – for example where there was an unusually high bonus in a single year. Once again, the goal to for the court to make a fair assessment of the paying parent’s overall income despite any uncommon fluctuations.

Severance packages and termination pay are generally included as income as well, but there can be exceptions – not to mention differing treatment in terms of how the received payments are to be distributed across a multi-year period where the severance/termination is designed to serve as replacement income for a longer time-span. Once again, courts will often treat these scenarios on a case-by-case basis.

Do you have questions about whether an unusual or one-time influx of money constitutes “income” for child support purposes? We can help address your concerns.

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.

Top 3 things you should know about passports for children – video

 

 

Wednesday’s Video Clip: Top 3 things you should know about passports for children

Passport Canada has a number of rules pertaining to passports, which included specific provisions applicable to children anyone aged 3 to 16 and infants anyone under the age of 3. Specifically:

• All Canadians entering the U.S. by air — including children whether accompanied by a parent or not — must have a valid Canadian passport.

• As with passports for adults, any child or infant who is a Canadian citizen is eligible to apply; once issued, the passport is good for five years for children, and three years for infants.

• Children need their own passports to travel abroad (i.e. non-U.S. destinations), even if accompanied by a parent.

• Children who are not travelling with both parents should carry a “Letter of Consent” which states that both parents agree to the child travelling. (Although this is not a strict legal requirement, it serves to facilitate a child’s entry into another country).

Is a “Parenting Coordinator” Right for You?

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Is a “Parenting Coordinator” Right for You?

In Ontario family law, “Parenting Coordinators” are an increasingly-popular concept; a quick search for that term on CanLII, the Canadian Legal Information Institute’s website containing court judgments from across Canada, shows almost 150 Ontario instances in which a judge has referenced that term, almost all within the past 5 years.

So what are Parenting Coordinators? And what do they do?

Generally consisting of individuals trained as social workers, psychologists and sometimes lawyers, Parenting Coordinators are appointed to help separated parents resolve any disagreements they have over the parenting of any children they share. Their mandate embraces a broad range of topics, but is relegated to the more minor issues that may crop up between disputing parents, such issues around: established parenting schedules (such as drop-off times, parenting and access time, and vacations); decisions relating to health care (including medical, dental, and therapy or counselling); and educational decisions (such as choice of school, tutoring, summer school, enrichment and extra-curricular activities, and religious instruction). Perhaps most importantly, a Parenting Coordinator can assist couples to communicate better with each other and with the children, by essentially serving as arbitrators.

Parenting Coordinators are appointed under a Court Order, or else by way of a Parenting Plan, Separation Agreement, or Arbitration Award. Their role is to help with the implementation of existing orders and agreements – not to help create them. They employ an arsenal of tools to help parents resolve their disagreements, including education, coaching, and mediation. If these problem-solving methods fail, then a Parenting Coordinator has the authority to act as an arbitrator.

In Ontario, a judge is not authorized to order parents to use a Parenting Coordinator; rather, both parents must agree and give their consent. But once that consent is in place, a court may order one or both parents to execute paperwork or otherwise comply with the underlying contract that gives the Parenting Coordinator his or her authority and mandate to help resolve their disputes.

Do you have questions about Parenting Coordinators, and whether they might be right for your situation? We can help.

At Russell Alexander, Family Lawyers our focus is exclusively mily 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.

Some Words of Wisdom from an Ontario Family Judge

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Some Words of Wisdom from an Ontario Family Judge

I have written before about how Ontario family law judges have sometimes managed to issue comical judgments in the course of deciding difficult cases.

But a recent decision shows a more sombre side of that judicial decision-making, and illustrates the unsettling, harrowing facts and scenarios with which family judges must often grapple.

In his decision in A.A.-L. v. M.L, Mr. Justice Conlan opens the narrative with the following words:

To say that this is a sad case would be an understatement. To describe this litigation as protracted and acrimonious would be a gross understatement.

He then goes on to describe the family as consisting of the two parents, two children from the mother’s previous relationship – both of whom have special needs – and two additional children that the parents had together.

One of those, a daughter, died tragically of cancer at the age of 5. Yet, as Mr. Justice Conlon describes, “rather than bring the parties together, that death only drove them further apart.

He then laments the tragic progression of the litigation between the couple as follows:

The Litigation History

This Application has been outstanding for far too long. There have been numerous Temporary Orders made by various Justices. The parties have failed or refused to cooperate on the most private and generally non-litigious matters, including for example visitation of their dying daughter, S., in the hospital and what would become the inscription on her tombstone.

Speaking bluntly, the thought of a Judge having to sort out access to a dying child and what the words should be on her gravestone is depressing to say the least. …

If the thought of the Court having to make an Order about what would be etched on the little girl’s gravestone does not turn the reader’s stomach, then perhaps this will. The parties also fought later on about a flower bed around the headstone. Imagine that.

After reviewing the facts in detail and issuing a decision on the many substantive issues that were in dispute between the parents, Justice Conlon added the following words in conclusion:

A Final Observation

I am just one judge in one small pocket of Ontario. But I encourage any family law litigant who cares to listen to think long and hard about the impact of his or her actions during the litigation process on the ultimate trier of fact.

If a parent cannot bring him or herself to reasonableness for the sake of the children, then the parent should do so for purely selfish reasons. A party’s credibility at trial will depend in large part on the reasonableness of his or her conduct along the way.

A parent who has fought every issue as if it was the last stand at Juno Beach, showing no compromise or flexibility throughout, hardly comes to trial with clean hands.

We are past the study phase of how adult conflict affects children. Nobody disputes the proposition that high conflict between parents who have separated or divorced is likely to have a negative impact on the children. So parents should pick their battles. Do not disagree just for the sake of disagreement or because of some default position that anything suggested by the other side must be stupid because it came from “the other side”.

Parenting is a tough job. There is no advantage to making it even tougher by engaging in perpetual combat with one’s former partner. It does the children no good. And it does the parent no good at trial.

For the full text of the decision, see:

A.A.-L. v. M.L., 2013 ONSC 7269 (CanLII)  http://canlii.ca/t/g20s2
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.

 

Top 5 Ways to Make Divorce Easier on Your Kids

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Top 5 Ways to Make Divorce Easier on Your Kids

The new year is a time for many people to make resolutions. And while that brand-new gym membership card may sit unused by March (despite the best intentions!), it’s definitely worth putting extra effort into any resolution that may involve your children.

Here are the top five ways to make the divorce process and related transition phases easier for your kids:

1. Vow to keep things as consistent as possible, despite the turmoil.

Kids thrive on routine, rules, and familiarity. While divorce is by definition a disruptive process, try to maintain as much consistency as possible in terms of their day-to-day lives. If your kids are switching homes as part of a shared custody arrangement, try to keep bedtimes and other rules consistent, and allow them to bring their favourite toys, books, teddy bears, and treasured items from home to home.

2. Don’t turn your child into the messenger.

While it may be difficult to choreograph complicated custody and access schedules, medical care, and schooling and extracurricular activities, it remains the parents’ job to communicate to each other directly –without involving the child. Too often a child is directly or implicitly expected to convey information from one parent to the other, and this is never a good idea. For one thing, it places an immense responsibility on the child to give accurate and timely information; it also places the child in a difficult and unhealthy role in terms of being a potential mediator for any disagreements that become a “he-said/she-said” type dispute.

3. Don’t badmouth each other.

On the point of communication, it’s sometimes important for parents to show restraint as well. The inherent acrimony involved in most divorces makes it easy for parents to slip into making disparaging comments about the other. Kids pick up on negative messages both spoken and unspoken – even a silent eye-roll by one parent over frustrating or disappointing news about the other will quickly convey a message of disrespect. Resist the temptation; it can be very damaging.

4. Learn to deal with emotions – both yours, and your child’s.

When a couple divorces, it is common that certain previously-untapped jealousies will arise: one parent may resent that the children seem to prefer being with the other parent more, or may feel jealous that the other parent has moved on to a new relationship quickly. These comparisons between adults are normal human reactions, but children should be scrupulously sheltered from them. Conversely, parents should be deeply sensitive to the emotions that can arise in children when faced with the huge involuntary change in their lives that they are not merely being asked to undergo, but to accept without question or input.

5. Share birthdays and other occasions that are special to the child.

While it may be challenging to do in cases where the divorcing parents are truly challenged to even be in the same room together, parents should consider celebrating a child’s birthday together. Birthdays, school plays and events, and sports distinctions are all about celebrating the child; the ability by the parents to set aside their differences for an hour or two in order to relish a milestone or achievement can be very meaningful to a child.

Need more tips on how to make your divorce easier? Give us a call.

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.

What if No One Will Budge? Determining Custody and Exclusive Possession for Stubborn Exes

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What if No One Will Budge? Determining Custody and Exclusive Possession for Stubborn Exes

In a recent case called Tayebi v. Oukachbi the court had to intervene in a case involving separated parents who each wanted custody of their two children. What made the case a little unusual, however, was that each of them refused to leave the matrimonial home and both wanted to oust the other. Moreover they both insisted – with perhaps refreshing candour – that they could not cooperate with each other over temporary custody.

This left the court with the task of simultaneously determining which of them should care for the children, and which of them should remain in the house to do so. The court began the narrative this way:

Dr. Tayebi and Dr. Oukachbi began their married life in Algeria, where they grew up. It is doubtful that they were ever happy in their marriage. They immigrated to Canada some years ago and both are now Canadian citizens. Their children … were both born in Thunder Bay. The parents are intelligent, well-educated people; the father is a professor, the mother a physician. Unfortunately, intelligence and good judgment do not always go hand in hand in family matters.

The bitterness of the parents’ relationship permeates the custody litigation, each parent refusing to physically separate by leaving the home. The father says that separation occurred in June, 2012; the mother says it occurred in September, 2011. Whatever the case, the tensions in the home are intolerable. The court must determine temporary custodial arrangements for the children. The matter cannot be delayed.

After reviewing what it called “voluminous affidavits” filed by both parents, the court performed a broad assessment which established that the children had been cared for by the parents rather equally, with neither of them being the primary caregiver.

However, the court also had to consider the day-to-day interactions of the parents towards each other and towards the children. In particular, the court found that the mother did not have a subservient or inferior role in the marriage as she claimed; it also made negative findings as to her credibility. In fact, the court observed that the mother was very angry toward the father and was too heavily invested in being vindicated. She was also deliberately undermining him in the eyes of the children.

In the end – and while recognizing that both parents appeared to love the children and neither was at fault – the court concluded that the mother’s anger and control issues made her unable to put the children’s best interests first at this point. Custody of the children was therefore awarded to the father, and he was granted exclusive possession of the home as well.

For the full text of the decision, see:

Abdelhamid Tayebi v. Salima Oukachbi, 2013 ONSC 6960 (CanLII)  http://canlii.ca/t/g1s0x

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.

Do Courts Adjust Support for Temporary Income Fluctuations?

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Do Courts Adjust Support for Temporary Income Fluctuations?

The calculation of the amount of child support payable by one parent to the other has been made easier by the Child Support Guidelines, which provide a formula based on income. And, as I’ve written in a post recently Income for Child Support Purposes , “income” is a relatively static number, based primarily on income as reported to the Canada Revenue Agency.

However, unfairness can arise – either to the paying parent or the recipient – when income levels fluctuate unexpectedly throughout the tax year. For example a paying parent’s income may temporarily drop due to illness or other unforeseen cause, to the point where he or she will have markedly less actual income for a period, than the actual income figure on which the child support payments are based.

This kind of income fluctuation was the focus of a recent case before the Ontario court called Simms v. Brown. The parents had joint and shared custody of their children. However, in the past few years and for several extended periods of time the father had been off work for medical reasons. As a result he claimed that his income tended to fluctuate, and when at their lowest he had difficulty meeting his ongoing monthly child support payments.

The father went to court to ask to have his $13,000 in support arrears reduced to zero.

The mother, in contrast, not only resisted the reduction of arrears, but wanted a retroactive adjustment as well as an upward adjustment to his going-forward obligations. She insisted that the father actually earned more than the income that had been used to calculate the Guidelines amounts.

To support this, she provided a chart showing the father’s actual income from 2010 through 2012, versus the income on which the father was ordered to pay support based on the Guidelines. It also showed the point at which the parents’ custody obligations changed to a shared-custody arrangement. For example, for 2010 the mother had sole custody, and the father was paying support based on reported income of $74,000 per year. However, it turned out his actual income for that year was $86,000. The mother was asking for retroactive support of $1,800 for that year, to make up the difference and reflect what he should have been paying. Similarly in 2011, the father paid support based on reported income of $76,000, but his actual income for that year was $106,000 because of a one-time severance retirement package he received.

The mother added that the Director of Family Responsibility Office had refused to enforce the prior support order because it was “too confusing”.

The court considered these figures in great detail. It observed that, generally speaking, it was not realistic that the father’s child support obligations should be re-adjusted anytime there is a short-term change in his income. Rather, for the purposes of calculating support “income” is the amount reflected on Line 150 of the father’s annual Notice of Assessment from Canada Revenue Agency. The court also acknowledged that this meant that any short-term changes in income would not be reflected on Line 150, and that realistically any child support order would often be several months behind any temporary changes in the father’s income in any event.

Nonetheless, in this case the court made some complex mathematical adjustments to support; this included an adjustment to account for the fact that, before the parties started their shared parenting arrangement, the mother had sole custody of the child and was legally entitled to receive appropriate child support from the father for that period. The court also streamlined the support amount to take into account various credits, setoffs, adjustments relating to child support and extraordinary expenses, and factored in retroactive support owed by the father as well.

In terms of going-forward, the father advised the court that he was back to earning a full salary of $80,000 per year – but he was planning to make a claim for disability which would once again reduce his income somewhat. The court pointed out that this would mean his final income for 2013 would again be difficult to predict in advance, but it set an amount based on his 2012 income, for the time being.

For the full text of the decision, see:

Simms v. Brown, 2013 ONSC 6854  http://canlii.ca/t/g1qtk

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.

Whether a parent has a right to move with a child — the concept of “mobility” in family law – video


 

Wednesday’s Video Clip: Whether a parent has a right to move with a child — the concept of “mobility” in family law

The moment that the parents of a child separate, everyone’s life circumstances change immediately: there are usually new living arrangements and a custody and access schedule put in place.

In cases where one parent’s new relationships or new jobs require a move to another city or province, the concern is even greater. This is because such scenarios give rise the a legal issue of whether the circumstances and preferences of the parents should be allowed to dictate the child’s living circumstances, whether such moves should be allowed and by whom, and — if so — what happens to the custody and access arrangements that are in place.

In this video we review this concept known as a “mobility” issue.

Husband Reneges on Post-Separation House Transfer – What Do Courts Do About Broken Promises?

taxiShould a Cab Driver Lose His Licence for Failing to Pay Support?

As many of you know, in Ontario the government’s Family Responsibility Office (FRO) is charged with the task of helping enforce spousal and child support orders. To do this, the FRO has been given an arsenal of enforcement mechanisms to be used against the parent in default of a support order – including garnishing wages or income tax refunds, having a lien placed on property, and suspending his or her passport.

But one of the more routine enforcement mechanisms is for the FRO to suspend the driver’s license of the defaulting payor until he or she has paid the support arrears or has satisfied other terms of the support order.

Certainly this adds a significant level of inconvenience to the payor’s life, and likely provides a very effective incentive for paying arrears and support. But what happens if that person relies on being able to drive, as a means of earning his or her livelihood?

This was precisely the quandary in the recent Ontario decision in Dumais v. Dumais. There, the father had been ordered to pay about $300 in monthly child support, based on his income. However, he never voluntarily paid that support and quickly fell into arrears which over time totalled about $40,000. The mother applied to the FRO for assistance to enforce the support order and collect the arrears.

The matter came before the court when the father asked to have the arrears rescinded, and to have his support reduced to zero. In this context, the court had to consider whether the FRO’s suspension of the father’s driver’s license was reasonable in the circumstances.

The court observed that if it allowed the license suspension to continue, then the father would lose his job as a taxi driver and have no source of income whatsoever. This, the court found, was counter-productive and moreover would prevent the father from driving to exercising access to his child (who was in the custody of the mother).

Instead, the court arrived at something of a compromise: Rather than allow the FRO to suspend the father’s license for arrears – which it said would be “catastrophic” – it essentially suspended the FRO’s suspension in connection with the arrears only. The father was not totally off the hook, however: Any going-forward support would still be subject to the FRO’s enforcement mechanisms. The husband’s support obligations were reduced slightly, to $267 per month, based on his most recent income levels.

Dumais v. Dumais, 2013 ONSC 5949  http://canlii.ca/t/g0q8x

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.