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Posts from the ‘Children’ Category

New Surrogacy and Parenting Declaration Laws Upcoming in Ontario

all-families-are-equal-act

New Surrogacy and Parenting Declaration Laws Upcoming in Ontario

Last week I wrote about the province’s new Bill 28, The All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016. This new legislation, which is at the Third Reading stage and thus likely to pass into valid law soon, makes several changes to existing statutes that govern the intricacies of parentage.

Specifically, it amends the Children’s Law Reform Act, (by establishing new surrogacy and parenting declaration rules) and the Change of Name Act and the Vital Statistics Act (relating to name changes and birth registrations, respectively).

Here are a few more of those upcoming changes:

Surrogacy

• There are new rules relating to surrogacy situations, including the provisions dealing with the agreement that governs the parties’ relationship, and various provisions relating to the surrogate providing her consent.

• The Bill also gives surrogates a seven-day “cooling off” period before the intended parent of the child take custody.

Parenting Declarations

• Specific provisions deal with the ability to apply for a court-ordered declaration that a person is or is not a parent of a child.

• In this regard, the making of a declaration is subject to the court’s considerations relating to the best interests of the child.

• Such a declaration can also be set aside in the right circumstances; otherwise, it is recognized for all purposes, and is deemed to be effective from the date of the child’s birth.

Other

The new Bill also amends the Vital Statistics Act and the Change of Names Act, to bring it in line with the various changes relating to determining and declaring parentage in assorted circumstances, including assistant reproductive technology. The amendments relate to document name changes and birth registrations.

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

New Proposed Law Clarifies Parentage, Surrogacy Rights, and Rights Arising from Assisted Reproduction

surrogacy

New Proposed Law Clarifies Parentage, Surrogacy Rights, and Rights Arising from Assisted Reproduction

The province’s new Bill 28, the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 proposes some important government-initiated changes designed to provide “greater clarity to parenting laws in Ontario”. As for November 2, 2016, the Bill has been ordered for Third Reading, which means it’s one step closer to being enacted into a law.

The Bill makes various changes to existing legislation, most notably the Children’s Law Reform Act where it sets out new rules of “parentage” for the purposes of all Ontario laws; it also clarifies the interplay of those new laws with existing ones. In particular, new provisions are aimed specifically at rights relating to children born through assisted reproduction, as follows:

• The mere fact that a person provides reproductive materials (i.e. sperm or an ovum) or an embryo for use in assisted reproduction is not in itself sufficient to make that person a parent (except of course where those items are provided for the person’s own reproductive use).

• A child’s birth parent, meaning the person who gives birth to the child, is considered a parent of the child; the only exception is a surrogate (who under normal circumstances is not considered to be the child’s parent).

• If the child is conceived without assisted reproduction, then the child’s biological father is also considered to be a parent, although this is subject to rebuttable presumptions (expressly set out in the new law) as to how the biological father may be determined. There are special rules for insemination by a sperm donor.

• If a child is conceived through sexual intercourse, then the person who provided sperm is also a parent of the child. Rebuttable presumptions are set out respecting how that person may be determined; the biological parents may agree in advance in writing that the person providing the sperm does not intend to be a parent of the child.

• A birth parent’s spouse at the time a child is conceived – either through assisted reproduction or through insemination by a sperm donor – is presumed to be a parent of the child. This is also subject to a rebuttable presumption, and there are also exceptions.

• A birth parent may entered into a pre-conception parentage agreement, involving one or more persons, in which they agree together to be the parents of a child who has not yet been conceived. To be valid, the agreement must involve no more than four parties.

In an upcoming Blog I will detail the other new changes that the proposed Bill would make in connection with surrogacy, parenting declarations, and other corollary changes to legislation.

What are your thoughts on this new legislation? Are these necessary changes in modern society?

For the full text of the bill, see:

http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=4176

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: Ontario Custody and Access – Who Is Entitled To The Child?

Wednesday’s Video Clip: Ontario Custody and Access – Who Is Entitled To The Child?

There is a general misconception that when a couple separates, the children must automatically stay with their mother. But in Ontario, the mother and father are equally entitled to custody of the child.

In this video we discuss who is entitled to custody of the child, defacto custody, and mistake parents, often fathers, make regarding custody and the establishment of a status quo. We also explain the difference between custody and access.

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.

Biological Father Responds to Court Documents by Scribbling “a Very Offensive Word” – Can His Consent to Adoption be Dispensed With?

offensive

Biological Father Responds to Court Documents by Scribbling “a Very Offensive Word” – Can His Consent to Adoption be Dispensed With?

Under what circumstances will a court trump a biological parent’s legal right to give consent to the adoption of his or her child by another person?

This was the issue raised in a recent Ontario decision. The step-father of the 10-year-old girl had married her mother (who had sole custody), after dating her for about five years and living with her for four. He had always treated the girl as his own, and had supported her financially, emotionally, and physically. He participated in her education, made medical decisions for her, and they shared a deep emotional connection. Plus, the girl had always viewed the stepfather as her parent and called him “dad” of her own accord.

In stark contrast, the girl’s biological father had absolutely no relationship with her: Not only had he not seen her for the past 8.5 years, he had never even asked to do so. Child support was something he paid only involuntarily. He had been verbally and physically abusive to the mother throughout their 5-year relationship, which started when she was just 17 years old.

After being advised repeatedly that the stepfather wanted to adopt the 10-year-old girl as his own, the biological father contacted the mother through Facebook to suggest that he would give his consent in exchange a $10,000 fee.

Instead of paying up, the stepfather simply applied to the court, asking for an order that the biological father’s consent to the proposed adoption could be dispensed with.

The court readily agreed.

For one thing, even at her current young age the girl herself had consented to the adoption, and was keen for it to proceed. She was very family-oriented, and – since the stepfather and the girl’s mother had a 3-year old together, and were expecting another child – it made her anxious and distressed that the rest of her family and siblings had a different last name. That last name was really her only tie to her biological father, since she had no recollection of him.

In light of the biological father’s obvious disinterest in the girl, and the stepfather’s unfailingly positive involvement, it was clearly in the girls’ best interests to grant the order, the court found.

Incidentally, the biological father did nothing to help his own case: despite being properly served with the stepfather’s court documents, he failed to even file a response and did not appear in court. Indeed, he returned the court documents in a less-than-mature and uncooperative manner, as the court explained:

He apparently opened the envelope, read the contents, scribbled randomly on one of the pages of an affidavit; wrote a very offensive word in bold letters on one of the pages, and then re-sealed and sent the envelope back to the [mother’s] counsel marked “Return to Sender”.

For the full text of the decision, see:

S.M.L.L. v. J.K.M., [2016] O.J. No. 2519, 2016 ONSC 3198

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

Woman Sues Sperm Donor (and Friend) for Child Support

Man holding sterile sample Container bottle for medical analysis.

Woman Sues Sperm Donor (and Friend) for Child Support

Decades ago in 1991, two friends and medical school classmates had made each other a promise: the man, who was gay, promised to donate his sperm to the woman so that she could eventually undergo in vitro fertilization to become a mother.

Even though they went their separate ways after medical school, this is precisely what happened more than 15 years ago, when the woman called upon the man to provide a sperm donation which she used to conceive two children. In 2002, they both signed an agreement giving the mother full custody, as well as decision-making rights over the children’s education and health care. They also agreed that the man would stay in touch and remain somewhat involved in the children’s lives – effectively as a “spuncle,” which is the slang term used in fertility law circles to denote such sperm donor arrangements.

In turn, the mother agreed that she would not look to the man for “any financial support”.

But since making that agreement the mother, now a medical doctor, apparently changed her mind: she is now suing the man for child support, relying on Ontario legislation that currently allows known sperm donors (and egg donors, for that matter) to be held liable in the right cases.

Under that law, any interested person can apply to a court for a declaration that a male person is legally recognized as the father of a child; once made, such order is recognized “for all purposes”, including potential imposition of child support obligations.

However, the issue under contention was whether the man’s role should include a financial support obligation for the two children, not based merely on his biological connection but also on his lifelong involvement in the now-teenaged children’s lives.

For example, over the years he had e-mailed them, introduced them to his extended family, and paid for their trips to Europe and Disneyland. His own parents treated them like their grandchildren. Moreover, the man gave the mother $22,000 to help with costs, with part of that money going into Registered Education Savings Plans for each child. The mother claimed this was all evidence of his intent to treat the children as his own.

Incidentally, the mother currently earned almost $250,000 as a gynecologist, obstetrician and university professor; the man earned just under $280,000 in Europe working for the World Bank. If the woman’s pending is successful in her child support claim, the man would be liable for four years of retroactive child support for both children, plus some of the cost of their post-secondary education and other costs.

This is an unusual case in which a known sperm donor has been sued for child support. The case has yet to be heard in the Ontario Courts.

What are your views on this situation? Should the mother succeed in her child support claim?

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 Conjures “Breaking Bad” Analogy for Warring Parents

breaking-bad

Court Conjures “Breaking Bad” Analogy for Warring Parents

It’s not often that you see a judge summon up a TV show reference in the courtroom as a means of driving home a point to misguided parents. But that’s precisely what Mr. Justice Pazaratz of the

Ontario Court of Justice did, in a case called Coe v. Tope.

The judge wrote:

Breaking Bad, meet Breaking Bad Parents.

The former is an acclaimed fictional TV show whose title needed a bit of explaining: “BREAKING BAD: A southern U.S. expression for when a good person suddenly loses their moral compass and starts doing bad things”.

The latter is a sad reality show playing out in family courts across the country. “BREAKING BAD PARENTS: When smart, loving, caring, sensible mothers and fathers suddenly lose their parental judgment and embark on relentless, nasty litigation; oblivious to the impact on their children”.

SPOILER ALERT: The main characters in both of these tragedies end up pretty much the same:

Miserable. Financially ruined. And worst of all, hurting the children they claimed they were protecting.

To prolong the tortured metaphor only slightly, the “urgent” motion before me might be regarded as this family’s pilot episode. Will these parents sign up for the permanent cast of Breaking Bad Parents? Will they become regulars in our family court building, recognizable by face and disposition? Or will they come to their senses; salvage their lives, dignity (and finances); and give their children the truly priceless gifts of maturity and permission to love?

Stay tuned.

Justice Pazaratz concludes his unconventional ruling with a stern admonition for the parents:

One final comment: I hope I didn’t offend the parties with my Breaking Bad Parents analogy. They’re not bad parents. Yet.

Mainly, I was trying to give both parties a sobering warning: Stop!

Stop being nasty.

Stop jockeying for position.

Stop playing hardball.

Stop acting like you hate your ex more than you love your children.

It didn’t have to be this way. These parties had a year between separation in July 2013 and the sale of the house in June 2014 to work out a comprehensive, sensitive parenting plan. They could have spent a lot less money on parenting professionals than they’re spending on lawyers. They could have negotiated a civilized final agreement by now. There was no need for crisis and brinksmanship.
Now that things have stabilized (albeit, by court order) both parties have a chance to rethink their strategies and start over.

They can waste time, money and energy on more case conferences, motions, settlement conferences, trial management conferences, questioning, and a long trial.

Or, they can declare a truce; focus on their children; call in some therapeutic help (like social workers or mediators); make a few compromises; work out a plan everyone can live with – and take the kids on annual vacations to Disney World with the money they save.

What are your thoughts on the court’s TV show analogy and rebuke?

For the full text of the decision, see:

Coe v. Tope, 2014 ONSC 4002 (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

In Ontario, Should Harassment by Extended Family Count as “Family Violence”?

harassment

In Ontario, Should Harassment by Extended Family Count as “Family Violence”?

Last week I discussed some of the principles that are relevant to an Ontario court’s ability to consider “violence” against one spouse by the other as a factor in whether to order that the victimized spouse be granted exclusive possession of the matrimonial home (read the full post here).

In British Columbia, the legislators have gone one step further: the counterpart to our province’s Family Law Act expressly expands the definition of “family violence” to specifically include:

• Physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,

• sexual abuse of a family member,

• attempts to physically or sexually abuse a family member,

• psychological or emotional abuse of a family member, including;

o intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

o unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy,

o stalking or following of the family member, and

o intentional damage to property, and

• in the case of a child, direct or indirect exposure to family violence.

(And it should be noted that B.C. courts are allowed to consider family violence not merely in connection with post-separation possession of the family home as in Ontario, but also in relation to numerous other aspects of the parents’ relation and separation, including assessing the best interests of the child).

In a recent B.C. decision, the court was asked to consider the limits of this expanded definition. There, the wife claimed that not only had the husband engaged in this kind of impugned conduct, but that the husband’s brother had been aggressive and abusive to her as well.

For example, the brother – who was a physically large man – attended at the drop-offs and pick-ups of the couple’s daughter at the mother’s apartment. He was in the room when the mother had FaceTime visits over the internet with the child, and once filmed the child while having dental treatment. On one noteworthy occasion, he held up a hand-lettered sign to the mother, in the presence of the child, that had the word “LIAR” printed on it.

The husband had stood by and simply acquiesced in the brother’s conduct on these occasions. The wife claimed that she should be sheltered from such conduct, and that it met the definition of “family violence” for the purposes of the B.C. legislation.

Although the court refrained from ruling specifically on the mother’s argument on this point, it did reproach both the husband and the brother’s conduct in the ruling, calling the latter “infantile, and exceedingly inappropriate”. In the context of examining the existing child care and custody routine, and in the course of revising those arrangements, the court made an order specifically directing the husband to restrain his brother from such further behaviour, for example by ensuring that the brother no longer attend at drop-offs/pick-ups and FaceTime visits and no longer do any filming in relation to the child and mother.

Do you think that the B.C. definition of “family violence” should be adopted in Ontario for Family Law purposes? What are your thoughts?

For the full text of the decision, see:

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

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

The “Toxicology of Conflict” and the Impact on Kids

conflict

The “Toxicology of Conflict” and the Impact on Kids

Few would dispute that separation and divorce can be very hard on the kids. But when viewed from the vantage-point of a court trying to resolve the disputes between warring parents, the true toll that the parents’ conflict can take on children is something that courts have to consider in making their rulings.

For this reason, the 2013 decision in a case called Parham v. Jiang is particularly instructive, in that it details what the court calls the “toxicology of conflict” – and specifically the negative effect that exposure to their parents’ high level of acrimony can have on already-vulnerable children.

The court in that case wrote:

The Toxicology of Conflict

Parents involved in high conflict custody and access disputes typically fail to see the harm that they cause to their children, often believing that they are fighting for the best interests of the children. The evidence is clear that intense conflict causes significant harm to children. Parents are often unaware of this important fact. For this reason, I will quote at length from Jackson v. Jackson­, (2008) 2008 CanLII 3222 (ON SC), 50 R.F.L. (6th) 149 (Ont. Sup. Ct.) at paras. 7 and 20. In Jackson, the Court reviews social science evidence detailing the toxicology of conflict. In particular, the Court refers to Glenn A. Gilmour’s paper, ‘High-Conflict Separation and Divorce: Options for Consideration,’ prepared for the Department of Justice, Canada:

In this paper, Mr. Gilmour summarized the factors which contribute to impasse and conflict. These factors were identified by Johnston, Campbell and Tall (1985) using data on 80 divorcing families with 100 children, to develop a typology of factors contributing to impasse in divorce. Mr. Gilmour’s summary of these factors is worth quoting in full:

At the external level are unholy alliances and coalitions – the dispute can be solidified by the support of friends, kin and helping professionals. These unholy alliances and coalitions include extended kin involvement and tribal warfare, when the extended family (such as the spouse’s parents) took it upon themselves to right the wrongs of the separation; coalitions with helping professionals, in which alliances with therapists and counsellors fuelled the fight; and involvement with the legal process where, for example, adversarial attorneys take on the case and engage in tactical warfare with each other. Interactional elements include the legacy of a destructive marital relationship, in which each spouse while married had come to view the other in limited, negative terms; and traumatic or ambivalent separations in which the ex-spouses view each other in a polarized negative light or seem to maintain an idealized image of the other and are engaged in a never-ending search for ways of holding together their shattered dreams. Intrapsychic elements include the conflict as a defence against a narcissistic insult, where the central reason for the dispute is to salvage injured self-esteem or more primitive narcissistic grandiosity; a defence against experiencing a sense of loss, to ward off the emptiness that came from relinquishing each other; a need to ward off of helplessness brought about by the desertion of the other spouse; and disputes that were a defence against the parents’ guilt over feeling that they could have tried harder to save the marriage. The majority of parents in this study presented traits of character pathology, some clearly having personality disorders. In these cases, the motivation for the dispute derived more from their enduring personality characteristics, such as a need to fight, than from the experience of separation or the needs of the child. The children in these families took on a magnified importance because their parents got a great deal of emotional support and companionship from them…

Mr. Gilmour concludes, based on his review of numerous studies on parental conflict, that: “the literature indicates that parental conflict is a major source of harm to children, whether the children are in intact families or their parents have separated or divorced.” His conclusion mirrors that of others in the field. In High Conflict Family Court Cases: Working for the Child’s Best Interests, published in Australian and New Zealand Journal of Family Therapy, v. 24, no. 2 Jun 2003 at pp. 95-101, Read, L. concludes: “High levels of parental conflict in separated families can have a devastating impact on children and their development.”

This same theories and conclusions were adopted more recently in a 2016 case called Basley v. Basley.

What are your thoughts on the courts’ comments?

For the full text of the decisions, see:

Parham v. Jiang, 2013 ONSC 6003 (CanLII)

Jackson v. Jackson, 2008 CanLII 3222 (ON SC)

Bailey v. Basley, 2016 ONSC 5877 (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: Two Necessary Evils – Know Your Obligations Re: Income Tax and Spousal/Child Support


Wednesday’s Video Clip: Two Necessary Evils – Know Your Obligations Re: Income Tax and Spousal/Child Support

Income tax: Not a popular concept even at the best of times. But add in the obligations, which arise in the context of paying child or spousal support, and it’s enough to cause heart palpitations in most Canadians.

This is because the Canada Revenue Agency rules relating to how support payments are to be treated are quite complex. To make things more confusing, the federal Income Tax Act has separate rules for spousal support as opposed to child support.

In this video we review some key points to keep in mind.

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.

Ontario Government Introduces Bill to Strengthen the Legal Status of All Parents

Boy walking with two men in a park. Image shot 2012. Exact date unknown.

Ontario Government Introduces Bill to Strengthen the Legal Status of All Parents

It’s a legal differentiation that most people in Ontario will not have faced or even considered: But until now, if a parent is not biologically related to his or her child – for example a partner in an opposite-sex or same-sex union where the child was conceived using assisted reproduction – the laws of Ontario have required that partner to take formal steps by making an application to legally adopt the child.

However, this may change under the newly-introduced provincial Bill which would implement the All Families Are Equal Act, 2016. That legislation, if passed, would ensure that all couples who use assisted reproductive technologies, whether straight or same-sex, are automatically recognized in law as the parents. No extra applications or court orders are needed.

The law would also cover those parents who use surrogates, provided:

• The surrogate and the intended parent(s) received independent legal advice, and have also entered into a written pre-conception Surrogacy Agreement.

• The surrogate provided written consent to give up her parental status, both before conception and again seven days after the birth of the child.

The proposed changes also implement new rules for determining a child’s surname, in the event that there is a conflict between the parents, and makes changes to the existing provincial Children’s Law Reform Act and the Vital Statistics Act. It also tidies up other statues, in order to use more gender-neutral language, which is a particularly welcome update since some of them have not been amended since 1978.

The upshot is that this proposed new Act aims to clarify and simply the legal status of parents, and add certainty in the face of custody and access disputes should they decide to separate. Arguably, it will especially benefit those parents in the Lesbian, Gay, Bisexual, Transgendered and Queer (LGBTQ) community, where the legal rights have not always been clear. Across Canada there are similar Bills already passed (in British Columbia) or in the works (in Alberta, Manitoba and Quebec),

Does this proposed Bill offer much-needed legislative clarity, as the legislators suggest? What are your thoughts?

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.