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Posts from the ‘Children’ Category

Wise Words from an Ontario Judge: A Custody Trial “Speaks Volumes About the Parents”

Custody Battle

Wise Words from an Ontario Judge: A Custody Trial “Speaks Volumes About the Parents”

In a decision from earlier this year called Jackson v. Mayerle, seasoned family court judge Mr. Justice Pazaratz began his judgment with these perceptive and disheartened-sounding comments:

1. Why would we need a 36-day custody trial where the basic facts are pretty straightforward?

a. One child. A delightful eight-year-old girl with minor academic issues but no special needs.

b. She loves both parents equally. She wants to spend as much time as possible with each of them.

c. Both parents are equally capable and dedicated to meeting all her needs.

d. But the parents can’t get along or communicate with one another. Not at all.

2. Not such a tough set of facts, really. Nothing we don’t see in family court every day.

3. So why did we need a 36 day trial?

4. Why did we need 20 witnesses, including teachers, a principal and vice-principal, CAS workers, a family doctor, and a custody/access assessor?

5. Why did parents of modest means choose to impoverish themselves – and their daughter’s future — for a needlessly destructive three-year court battle?

6. For the sake of the child?

7. Not a chance.

8. Custody trials are supposed to be about children. But 36 days – that speaks volumes about the parents.

(And the emphasized words are those of the justice himself).

Indeed, it’s common knowledge that there is no shortage of high-conflict family law disputes in our society, and not merely those that end up in court. Virtually everyone knows someone first-hand – be it a family member, friend or acquaintance – who is embroiled in seemingly-endless and costly divorce or custody litigation. It almost seems to be the rule, rather than the exception these days.

Is Justice Pazaratz right? Is acrimonious child custody litigation more about the parents, i.e. their own egos and latent agendas, rather than the best interests of the child? Is it just a thinly-veiled battle between the parents, in the guise of asserting their respective rights in relation to the care of child?

What are your thoughts?

For the full text of the decision, see:

Jackson v. Mayerle, 2016 ONSC 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 us at RussellAlexander.com.

Wednesday’s Video Clip: Child Support and Different Custody Arrangements


Wednesday’s Video Clip: Child Support and Different Custody Arrangements

In this video we review how different custody arrangements affect child support obligations.

Shared custody

If each parent has the child at least 40% of the time, the Child Support Guidelines say there is “shared custody.” This refers only to the residential agreement, and should not be confused with the term “joint custody,” which refers to the parents’ joint right to make major decisions for the child. When there is shared custody, the amount of support paid to the parent with custody might be less than the amount set out in the table. Therefore, the term “shared custody” only refers to the amount of time spent with the child.

There is no formula in the Guidelines for determining how much time is spent with each parent in a shared parenting scenario. The onus is on the parent who claims they have shared custody to show that the child iswith him or her at least 40% of the time.

If the judge finds that the child spends at least 40% of their time with the parent who pays support, the Guideline table amount will no longer apply. Instead, the judge will look at the gross income of each parent to determine the child support amount, as well as theamount of time the child spends with each parent. This takes into account the reality of a shared parenting arrangement, because the more time the child spends with each parent, the more each parent is expected to provide basic items for the child, such as pajamas, toys, clothes, and bedding. Judges must consider these extra costs when they set support amounts for shared custody.

Split custody

Sometimes when parents with more than one child separate, one or more of the children will live with each parent. When this happens, child support depends on the income of both parents. How much support each parent would owe for any children living with the other parent is figured out according to the Guidelines. The parent who owes the higher amount must pay the difference between the two amounts to the other parent.

Take the example of one parent with custody of two children and an income of $25,000, and the other parent with custody of one child and an income of $45,000. According to the table, the parent with the lower income owes the other parent $211 a month in support for the one child who lives with that other parent. The parent with the higher income owes the other parent $680 a month in support for the other two children. When you subtract $211 from $680, the higher-income parent owes the other parent $469 a month in child support.

Sole custody

When a parent has sole custody of a child, this means that they are solely authorized to make major decisions for the child, to the exclusion of the other parent. In these cases, it makes sense that the child’s primary residence will be with the parent having sole custody. Therefore, to determine how much child support is to be paid, the courts are required to look to the Child Support Guidelines, which outline a table amount that is based on the payor parent’s income. The recipient parent’s income is irrelevant to this determination, as Child Support is the right of the child to receive. In some cases, the recipient parent’s income may be relevant, if there are special or extraordinary expenses to be shared above the Table amount. Since the Table amount is meant to cover only regular day to day expenses, such as food, clothing and shelter, any additional, or extraordinary expenses, are generally shared between both parents, proportionate to their incomes. Some examples of these expenses include daycare, dance lessons, and medical expenses not covered under a medical plan.

We hope you have found this video helpful. If you require further information about different custody arrangements please contact us.

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

Mother Tries to Alienate Child from Father – Court Cuts Off her Access Entirely

Mom with kid

Mother Tries to Alienate Child from Father – Court Cuts Off her Access Entirely

Recently I wrote about a case titled “Kids Live with Mom Their Whole Lives – But Her Alienation Efforts Prompts Court to Transfer Sole Custody to Dad” in which the mother of three children lost sole custody of them primarily because she was trying to alienate them from their father, even though the children had lived with her their entire lives.

In a similar case called A.P.V. v. J.L.R., the Ontario court imposed an even more drastic remedy: The mother was prevented from even have access to her daughter (never mind custody), because she was obviously attempting to cut the father out of both their lives entirely.

In that case, the 10-year old child had been the subject of an intense custody battle between the parents since she was only five months old. Both custody and access had shifted back and forth between the parents throughout that time, sometimes by their agreement, but often by way of contested court proceedings. The father had recently been granted temporary sole custody, with supervised access to the mother; however, the mother’s access had been gradually increased to the point where she spent about 40 percent of her time with the mother.

Then, in violation of a court order, the child ran away from the father’s home altogether, and had been living with the mother ever since. The girl refused to see the father, and the court was asked to resolve the matter of custody and access.

The court summarized its dilemma this way:

At trial, both parties were seeking sole custody. And while each party had a plan for some access to the other; it was clear that the choice before the court was much starker: Whichever parent [the daughter] resided with, she could not, for very different reasons, have access to the other.

The evidence showed that the daughter may have adopted as her own various misimpressions and unfounded conclusions about her father that had actually been fed to her by her mother. This included a story that he had allegedly killed a pet cat that she had, that he was “not a nice person”, and that the father refused to pay child support and that he was taking the mother to court because of it. During access visits the mother also routinely spent her time com-plaining at length about the father’s deficiencies as both a person and a parent.

In light of these kinds of incidents (among many, many others) the court reasoned that to give the mother any form of access to the child would undermine the stability of the father’s relationship with her; indeed it might even rupture entirely as it had in the past, during the episode where the girl had precipitously run away from the father’s home, for example. The court also noted that allowing the mother to have supervised visits while attending counselling had clearly not worked in the past: there had been unfavourable assessment of the mother’s parenting skills by various professionals, as well as complaint-prompted investigations by the Children’s Aid Society and police.

Equally important was that despite claiming to support the child’s relationship with her father, the mother clearly preferred for the child to have no relationship with him at all. This did not bode well for the child’s future well-being and spoke poorly for the mother’s parenting ability as well. As the court put it: “The ability of a person to act as a parent includes their ability to support the child’s relationship with the other parent.”

While noting that the court will not automatically order a change custody if the custodial parent refuses access or otherwise interferes with the development of the other’s parent’s normal relationship with the child, it was within the court’s authority to do so in the right case. The court was also entitled to go further where appropriate and deprive the former custodial parent of access as part of the order. As always, the decision depended on what was in the best interests of the child.

In this case, the child deserved stability, permanence and emotional security and she was most likely to obtain that in the father’s full-time care, since he had proven himself better equipped to meet the child’s emotional needs. The court allowed the father’s application for sole custody, and then went on to forbid the mother from having access to the child whatsoever.

For the full text of the decision, see:

A.P.V. v. J.L.R., 2012 ONCJ 658 (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

You Be the Judge: Did Order Require Father to Take Legal Advice from the OCL’s Lawyer?

lawyer with client

You Be the Judge: Did Order Require Father to Take Legal Advice from the OCL’s Lawyer?

In an Ontario Court of Appeal case called Mwanri v. Mwanri, the couple had had two children together, both of whom were eventually in the sole custody of the father, with access to the mother. The parents had been involved in various motions and other court proceedings to settle some of their disputes around custody and access. In the latest round, the father took issue with an earlier order by the motion judge on various custody- and support-related matters.

From among several different grounds of appeal that he raised, the father complained that the motion judge’s order had included the following single line:

The parenting/access schedule in this Order shall be monitored by the Office of the Children’s Lawyer and both of the parents shall cooperate with the OCL’s counsel and follow his direction as to the interpretation of this Order.

This prompted a complaint by the father about whether the “follow his direction as to the interpretation” portion of the order was a legally-appropriate order for the motion judge to make, since it seemed to require him to essentially take legal advice from the OCL’s own lawyer, thus constraining his right to consult a lawyer of his own.

The Court of Appeal disagreed with this line of reasoning (although it ultimately allowed part of the father’s appeal on different grounds altogether). The Court explained its conclusion this way:

…[C]ontrary to the father’s submission, nothing in the direction requires the father to seek or follow legal advice from the OCL’s lawyer. The direction stipulates that the parties are to co-operate with counsel for the OCL in respect of the interim custody and access arrangements ordered by the motions judge. It requires the parties to “follow his direction as to the interpretation” of the motions judge’s order. This language simply obliges the parties to follow the OCL’s direction in the event of any disagreement about the terms of the motions judge’s interim order. It in no way prevents either party from consulting with their own counsel and, if so advised, returning any matter of disagreement before the Superior Court for reconsideration or clarification. The parties remain free to retain, consult and instruct counsel of their choice on all matters in dispute.

It’s a narrow distinction, but do you think it is a valid one? Does the Appeal Court’s logic make sense?

For the full text of the decision, see:

Mwanri v. Mwanri, 2015 ONCA 843

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

Kids Live with Mom Their Whole Lives – But Her Alienation Efforts Prompts Court to Transfer Sole Custody to Dad

Good dad

Kids Live with Mom Their Whole Lives – But Her Alienation Efforts Prompts Court to Transfer Sole Custody to Dad

In a recent blog I discussed the concept of “parental alienation”, and in particular how some separated or divorced custodial parents make concerted long-term efforts to influence (one might say, brainwash) a child so that he or she does not want to spend time with the other access parent. In many cases, it’s part of a parental plot to eliminate the access parent from the child’s life entirely.

From the custodial parent’s standpoint, the sanctions and repercussions for that sort of behavior can be severe. In an unusual-but-important case from several years ago, the court ordered that three children, age 14, 11, and 9, who had been in their mother’s custody their entire lives, were nonetheless to be immediately placed in the custody of their father.

The couple had met while working as medical professionals in the same hospital. Even after realizing that they were expecting a child together, the mother and her extended family took steps to distance themselves from the father. Eventually, the couple married and had two more children, and when they later separated, there was no formal order obtained in order to deal with child custody. Instead, they went to live with the mother essentially by default. What followed was a concerted campaign by the mother to thwart the father’s every effort to see or maintain a relationship with them, as the court found.

Still – and despite the mother’s steadfast manoeuvers — the father persisted in asserting his legal rights over the years, culminating in a series of court orders and then a successful application to have custody switched to him outright.

The court explained some of the factual background, as well as its rationale for changing custody in such a dramatic way:

The three children of the marriage have been alienated from the [father] over a long period because [the mother] is unable to accept that it is in the best interests of the children to have a relationship with their father. She has been given several opportunities to change her behaviour over many years, and refuses to do so. I find that her unrelenting behaviour toward the children is tantamount to emotional abuse … The views and preferences of the two older children are not their own. And for the children to have any further contact with the [mother], significant therapeutic intervention is necessary.

It is remarkable that [the father] has not given-in to the [mother’s] persistence in keeping his children from him over the last fourteen years and simply gone on with his life without the children as, no doubt, many other parents in the same situation would have and, indeed, have done. It is now time for his and the children’s fates to be free from [the mother’s] control. She has shown that she cannot be entrusted with it.

The best interests of these children require an order for [the father] to have sole custody of them.

For the full text of the decision, see:

A.G.L. v. K. B. D., 2009 CanLII 943 (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

Wednesdays Video Clip: How Base Child Support is Calculated

 

How Base Child Support is Calculated

In this video we discuss how the Child Support Table in the Guidelines sets out the amounts of support to be paid, depending on the “gross income” of the paying parent and the number of children that the support order covers. Gross income means before taxes and most other deductions. The amounts to be paid are based on the average amounts of money that parents at various income levels spend to raise a child.

In simple cases, the table alone will determine how much money will be paid. In more complicated cases, the table is used as the starting point. There is a different table for each province and territory.

If both parents live in Ontario, the Ontario table applies. Also, if the paying parent lives outside of Canada and the parent with custody lives in Ontario, the Ontario table applies. But if the paying parent lives in another province or territory, the table for that province or territory is the one that applies.

You can get a copy of the Child Support Table for Ontario by phoning 1-888-373-2222.

Or you can visit the Department of Justice Canada’s web site at www.canada.justice.gc.ca/en/ps/sup and click on “Simplified Federal Child Support Tables” to find the table for each province and territory.

The table sets out the amount of support that must be paid at different income levels from $8,000 to $150,000, depending on the number of children. A base amount is given for every $1,000 increase in income, along with a way to calculate amounts in between.

There is also a Simplified Table where you can look up the paying parent’s income to the nearest $100, without having to do any calculations.

Sometimes, a judge does not accept a parent’s statement of income. Instead the judge uses an amount of income that is reasonable based on things such as the parent’s work history, past income, and education. The judge will then apply the table to that income.

A judge might do this if the parent:

• fails to provide the required income information

• is deliberately unemployed or under employed, or

• is self-employed or working “under the table”, and there is reason to believe they do not report all of their income

Before the Guidelines came into effect, judges had more flexibility in deciding the amount of support. Now, in simple cases, judges must order the amount shown in the table. Judges can order different amounts, but only in special cases. And they must use the table amount as a guide.

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

Getting Kids to Comply with Court Orders: Parents Must Take Active Steps

Uncooperative Child

Getting Kids to Comply with Court Orders: Parents Must Take Active Steps

In a Blog a little while ago How Far Must Parents Go, to Ensure a Kid Complies with a Court Order?, I discussed the obligation on parents to ensure, to the best of their ability, that a child complies with a custody or access order. Not only does this accord with our general sense of justice, but in some circumstances if an order is breached because a child is uncooperative, his or her parent can even be found in contempt of court.

But as custodial parents will attest, the practical task of ensuring that kids comply with a court-ordered access/visitation schedule can seem impossible, particularly when the child is reluctant, resistant, or downright defiant. Forcing an unwilling child to participate only engenders bad feelings on the part of both parents, not to mention the child him or herself.

Still, Canadian family law principles make it clear that a parent cannot simply leave participation and compliance with custody and access orders up to the child; courts have repeatedly stated that to do so amounts to “an abdication of parental responsibility” and more importantly amounts to a shortfall in the parent’s positive obligation under the court-imposed order.

Over the years, various courts have expanded on this general principle, providing a list of the concrete steps that parents must take in order to fulfill their responsibility to coax an uncooperative child to comply with a custody or access order.

Here are the points to know:

• Although courts do recognize that it may be increasingly difficult, a parent’s obligation to compel a child to comply does not diminish as the child gets older.

• A parent must go beyond simply “accommodating” access (i.e. making the child available and encouraging him or her to comply); rather, the parent must require the child to participate, and must actively facilitate that participation.

• A parent must take concrete measures to apply normal parental authority to have the child comply. In assessing whether those measures are sufficient, the court will consider whether the parent:

o Engaged in a discussion with the child to determine why he or she is refusing to go with the other parent;

o Communicated with the other parent about the child’s resistance, and how to overcome it;

o Offered the child an incentive to cooperate; and

o Stated clear disciplinary consequences for the child, if he or she continues to refuse to comply.

The obligations, steps, and responsive measures will vary with each case, and will also depend on the child’s age and emotional condition.

There are many cases that discuss these principles. See for example:

Geremia v. Harb, 2007 CanLII 30750 (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

How Far Must Parents Go, to Ensure a Kid Complies with a Court Order?

access

How Far Must Parents Go, to Ensure a Kid Complies with 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 while 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

What is “Contempt of Court” in Family Law? — Part II

dad

What is “Contempt of Court” in Family Law? — Part II

As we have reviewed previously, I set out the general legal principles behind the concept of “contempt of court” in family proceedings, which had been considered in great detail in the recent Ontario decision in Jackson v. Jackson.

The mother in that case had asked the court to declare the father in contempt, since she claimed he had breached the terms of prior temporary access orders and had thwarted her access in a long-standing campaign to gradually eliminate her from their two children’s lives.

After embarking on a detailed, sometimes historically-based consideration of the law and principles that underpin the contempt penalty in Canadian family proceedings, the court then turned to the more practical aspect: the specific, fact-driven legal tests that the mother had to meet in order to prevail in obtaining a contempt order against the father.

Specifically, the mother had to establish all of the following:

• That there was a valid, live court order that was to be enforced.

• That the father had actual knowledge of the order that the mother claims he breached.

• The order clearly and unequivocally states what should and should not be done.

• That, on the facts, the father disobeyed the order. (And there is no need to establish that he violated a specific term – it is enough for the mother to show that he disobeyed to the extent that it foiled the implementation of the court order).

• That the father disobeyed the order deliberately and willfully.

Moreover, the mother had to prove all these things, beyond a reasonable doubt.

Over the next 60 paragraphs of a very careful judgment, the court closely scrutinized the facts surrounding the various failed or unsatisfactory supervised visits, keeping in mind that the parents’ relationship had been turbulent and the separation was very acrimonious. (The mother had been criminally charged with assaulting one of the children, and which led to the supervised access order in the first place).

Overall, the court concluded that the father, while perhaps over-protective of the children and not sufficiently mindful of the mothers’ progress in addressing her parenting and emotional issues, was not in contempt within the meaning of the legal test. The necessary elements of the test were simply not made out.

For the full text of the decision, see:

Jackson v Jackson, 2016 ONSC 3466 (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

When Can A Parent Apply For Child Support – video

 

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

In this video we review 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