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Posts from the ‘Children’ Category

Parents Lose Custody for Failing to Respect Teenager’s Wish to Transgender

 

Parents Lose Custody for Failing to Respect Teenager’s Wish to Transgender

An Ohio Court was recently asked rule on who should make medical decisions for a teenage boy who sought hormone treatment to enable him to transgender.

The parents did not consent and sought the court’s authority to stop the treatment. The child was placed in care of Family Services pending the outcome of the hearing.

The parents argued that given the child’s mental state he was not “even close to being able to make such a life-altering decision”.  Medical experts disagreed and submitted that the father’s conduct was harming the child.

The grandparents requested custody and offered to care for the child and were willing to make medical decisions with the child. This proposal was supported by the child’s court appointed guardian.

Judge Sylvia Sieve Hendon ruled and CNN reported that:

The grandparents, rather than parents, will be the ones to help make medical decisions for the child going forward. But before any hormone treatment is allowed, the court ordered, the teen should be evaluated by a psychologist who is not affiliated with the current facility where he is receiving treatment, on “the issue of consistency in the child’s gender presentation, and feelings of non-conformity.”

 

In Ontario, we already have legislation to address this very issue. As we previously reviewed in “Gender Expression” Now Protected for Kids by Law Ontario’s amendments were aimed at:

courts, social workers, and adoption services. It mandates that when providing services or considering the best interests and welfare of a child, these entities must consider “race, ancestry, place of origin, color, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity, and gender expression.”

It also prevents parents from challenging a child’s same-sex orientation, or with identification not with the gender that he or she was born, but rather the opposite one.

This directive gives rise to a corollary assessment as well: Whether a child should be removed from a home where the parents oppose a child’s declaration of his or her homosexuality or choice of “gender”. The principle behind this part of the legislation is that a parent who refuses to recognize a child’s preference in this regard is actually perpetrating abuse; the child’s removal from the home environment and into child protection facilities would prevent further abuse from occurring.

It would appear that Ontario is ahead of the curve by crafting legislation designed to protect the rights of the individual and the best interest of children.

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

Was Unplanned Pregnancy Tantamount to “Theft of DNA”?

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Was Unplanned Pregnancy Tantamount to “Theft of DNA”?

An interesting recent case considered a novel legal argument by a 23-year-old man who unexpectedly found himself the father of a child he didn’t plan to have, after a brief relationship with a 38-year-old woman he met a music festival.

The father, an apprentice iron worker, was in an intimate relationship with the mother for several months.  After learning from the mother that she was pregnant, he decided that he did not want to be involved and they ended their relationship before the child was born.  The mother had sole custody, and the father essentially had chosen to have no contact with the child whatsoever.

Nonetheless, the mother brought an action against the father for child support.  He resisted, claiming that under the “strict terms of their sexual engagement,” he made had it clear to the mother that he did not want to become a parent.  Although they did not use condoms or other physical birth control, they engaged in the “withdrawal method” to prevent conception.  He also claims the mother told him she was “medically infertile.”

Essentially the father asked the court to recognize a new civil claim in tort, one that featured a “hostile sexual act” of the theft of the DNA contained in his ejaculate.  The court described the father’s stated position this way:

The father argues that he is not legally obligated to pay child support because the mother engaged in a “premeditated theft of the father’s DNA” during “a hostile sexual act of DNA theft” leading to the birth of the child. According to the father, he was a victim of the theft of his DNA by the mother “to satisfy the [mother’s] motive to bear a child prior to the [mother’s] biological reproductive expiration.”

The mother brought motion for summary judgment, asking for an immediate court order requiring the father to pay child support, and dismissing the father’s claim outright, on the basis that there was no genuine issue requiring a trial.

The court granted the mother’s motion, and ordered the father to pay.  There was simply no legal basis for the father’s attempt to create a new defence against the mother’s child support claim. Not only did the court not recognize the tort of a “hostile sexual act of DNA theft”, but even if it existed it did not relieve him of his legislated obligation under the Ontario Family Law Act to pay child support.  There was no dispute as to the child’s paternity.

The man and woman had engaged in consensual sex, and had not used birth control (except for the unreliable “withdrawal method”, which the court found was actually evidence that the father did not rely on the mother’s own birth control methods, or on her self-proclaimed infertility).  In short, with their decision to have unsafe sex came with inherent risk of unwanted pregnancy, and with it came child support obligations in law.

In assessing the amount of support the father had to pay, the court noted that the father’s income suddenly dropped significantly when the mother started her court application for child support.  He was currently unemployed, was not looking for work, and had provided the court with no persuasive medical or other evidence on why he was not working despite being capable. Under Ontario law, he had an obligation to earn at whatever level he capable of doing so. Based on the undisputed evidence, the father would be able to earn $35, 000 per year, and his support obligation and arrears were calculated accordingly.

For the full text of the decision, see:

M.-A.M. v. J.C.M.

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

 

Saving the Golden Goose: Part II – Including Specialized Professions as An Alternative Option to the Traditional Court System

Saving the Golden Goose: Part II – Including Specialized Professions as An Alternative Option to the Traditional Court System

As mentioned in our previous blog Saving the Golden Goose: Part I, a court process allows for only a rights based determination of the issues at hand. However, there are many intricacies involved in the enmeshment of family business and the process of separation and divorce. As an alternative to a purely rights based approach, other options can be considered in the collaborative approach, including:

  • Family trusts or holding companies as a method of sharing income from the family business
  • Tax planning, avoiding the possibility of triggering a Canada Revenue Agency audit
  • Considering the formation of a new family trust
  • Employment of children in the family business
  • Estate, succession, and capacity planning
  • Ensuring insurance is in place to cushion the effects of any risks
  • Gifting shares or portions of the family business to children or other family members
  • Maintaining the privacy of the family business
  • Managing the continuation of income streams
  • Splitting income amongst family members
  • Delaying equalization or sharing business payments (Ie: if and when the family business sells)
  • Preserving the family legacy for generations
  • Recognizing and predicting the ebb and flow of the market and business patterns

Unlike the court system, the collaborative process is unique in that it offers the additional benefit of involving neutral professionals who specialize in associated areas, listed above. These neutrals are able to address relevant areas of the family law matter, often with more experience in their particular field than lawyers. Neutrals are also able to complete work at their hourly rate, rather than at the lawyer’s fee. They are also able to take on some of the information gathering that would alternatively be completed by the spouses, which can be stressful. This makes including neutrals an efficient way to deal with issues in a cost effective manner.

Financial Professionals

Collaborative Financial Specialists may be accountants, financial planners, and business valuators who have expertise in helping separating families address issues relating to the family business. They play a vital role in the collaborative process by ensuring that clients provide full and frank financial disclosure. Financial disclosure includes aspects such as income, liabilities, and assets of both the spouses and the business. A business valuator may value the business and, as in the case of many self employed individuals, complete an income analysis to determine yearly income for support purposes. In the collaborative process, family business owners can work alongside the financial professional and/or business valuator to assist them in understanding the intricacies of the business based on its unique field.

Financial Specialists thoroughly vet the documents and prepare detailed reports which help to streamline settlement discussions. Financial Specialists further add value to the collaborative process by educating clients about their finances and helping to manage their expectations from a neutral perspective. This impartial stance helps to keep client expectations realistic, making negotiated settlement more likely.

Another key benefit of financial professionals is their ability to “even the playing field”. In some family matters, one spouse may have been much more involved in the finances of the family business. The other spouse may feel they are ill equipped to negotiate the finances associated with the business, and may worry about being taken advantage of by their spouse. A financial neutral can spend time separately with both parties to ensure that all the cards are on the table, and that each spouse understands the basis upon which they are negotiating.

Family Professionals

While it may not immediately seem to be a common sense approach to include a family professional within the context of a family business matter, family professionals can often deal with may of the underlying issues associated with restructuring a family and a family business. Emotions can run additionally high when dealing with the very real and salient issues associated with the individuals which make up a family business team.

Much of the concept of “Interest Based Negotiation” centers on interests that are not purely financial. A family professional can assist in identifying and bringing these interests to the table. Anger, loss and grief are a natural part of divorce or separation, especially when a family’s livelihood is on the line. A family neutral gives families access to support and guidance for managing these emotions which can intensify the conflict and derail settlement attempts in traditional divorce.

Collaborative Family Professionals are counselors, social workers, psychologists or mediators who have specialized skills in handling the emotional aspects of the issues pertaining to separation and divorce. They further discuss parenting, and help ensure that feelings, needs, and concerns are understood and respected where children concerned. This is especially pertinent when there are children working within a family business, who have their own independent concerns about how the divorce will affect their future within the business context.

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

Part I

Part III

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


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

Simply put, the age of a child does affect the amount of child support ordered. In this video we discuss how and when the age of the child could affect child support. Income considerations, age of the child and needs of the child should be considered.

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

Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

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Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

In a recent case heard by the Ontario Court of Appeal, the issue was whether the parents of a 17-year old girl had any right whatsoever to participate in a court proceeding declaring that she had officially and legally withdrawn from their control as parents.

The girl had gone to court for a “declaration” (which is a formal court statement pronouncing on the existence of a legal state of affairs) that she had withdrawn from parental control.  This had followed a period of extreme acrimony between her and her father, with whom she lived full-time, over numerous matters.  The main precipitating event was the girl’s unilateral decision to finish high-school in Ontario a year early, in order to attend the University of Miami where she had obtained a full scholarship.

The father strongly opposed her plans, and wanted her to stay in Ontario to finish grade 12.  He even began court proceedings in Florida to force the university to disclose the contents of her application file, which impelled the university to ask the girl for proof that she was an independent minor.   Since her father had repeatedly said he would “do everything he can to stop” her from going to Miami, she needed the formal court declaration; without it he could demand that the university withdraw both her application and the scholarship.

The lower court had granted her application without hesitation, adding that “[t]he evidence indicates that [the girl] is a remarkable young woman.”  The court found the parents had no right to be included in or even have notice of the proceedings.

The father appealed, claiming that the mere fact that the court had not allowed or invited both parents to participate – including the full right to object, file evidence, and cross-examine – was grounds enough to overturn the declaration.

The Appeal Court disagreed, but conceded that the parents did indeed have a right to be part of the proceedings.  But there was still no reversible error here, since the required level of parental participation had been met, even though neither mother nor father were ever made official parties to the girl’s application.

The court’s reasoning was technical:  First, it pointed out that under the CLRA the girl had a unilateral stand-alone legal right to withdraw from parental control once she reached age 16.  The court added:

Once a child declares an intention to withdraw from parental control, her independence may – as it was here – be recognized by the police and the schools. There is no formal court process for a child to withdraw. … Unlike jurisdictions such as Quebec which have procedures for “emancipation”, Ontario law does not have a formal process for withdrawing from parental control. The child simply has to take control of the incidents of custody which include decision making regarding residence and education. No court process is required.

However, there was a narrow distinction between withdrawing from parental control, and obtaining a declaration from the court to that effect.  The former was a legal right that the girl could exercise unilaterally; the latter was a request to the court that it exercise its jurisdiction to make a declaration.  Here, the girl had appeared before the court for the second item, the declaration, which triggered consideration of the various legal interests of both the child and the parents.  In this matter, some of those interests were in conflict and called for a balanced inquiry.  Also, the CLRA expressly provides that the parents must be before the court in any application in respect of a child.

In short, and based on the legislation and basic legal principles, the court found that the parents must indeed be parties to their own daughter’s application to withdraw from parental control, but that the court has a broad discretion to direct the extent of that participation.  Here, although the father had not initially been named as a party by the lower court judge, he had been allowed a certain level of involvement nonetheless. He had been allowed to file material and make submissions.

The court also concluded that the merits of the girl’s application justified the order made. The prior judge had fully considered the extensive court record, which included more than a dozen affidavits providing information on which the best interests of the girl could be assessed.  The judge’s findings were supported by the evidence, and there was no procedural unfairness in granting the declaration.

As the Appeal Court stated: “The declaratory relief was not exercised in a vacuum. There was a clear reason for it.”

The father’s appeal was dismissed.

R.G. v. K.G.,

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

 

Religious School’s Barring Child of Same-Sex Couple Not a Breach of Human Rights

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Religious School’s Barring Child of Same-Sex Couple Not a Breach of Human Rights

In a perhaps-surprising decision of an adjudicator of the Human Rights Tribunal of Ontario, a Christian evangelical school that refused to admit the adopted son of a married same-sex couple was held not to have breached the anti-discrimination provisions of the Ontario Human Rights Code (the “Code”).

The private school had justified barring the child from its preschool program on the basis that it had a long-established biblical stance against same-sex marriage, and that to allow the child to attend would clash with the school’s teaching and values.

Faced with the school’s rejection of their application, the couple brought a complaint under the Code for discrimination based on sex, creed, marital status and family status.

The adjudicator ruled that the school’s decision fell within a narrow “special interest” exception found in s. 18 of the Code.   That exception essentially permitted the school to discriminate in providing services where “membership or participation in a religious … organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.”  In other words, the school was not in breach of the Code if it could prove that it was effectively restricting participation in the school’s program to only those who were part of the religious group that it was designed to serve, even if that restriction was otherwise discriminatory.

The adjudicator concluded that the evangelical school fell within the definition of a “special interest” organization, and had not breached the Code-enforced right to equal treatment of services.  As the adjudicator stated:

The school has a well-defined and specific set of creedal beliefs, mission statement and mandate. The respondent [school’s] evidence was clear that the school requires all parents to share these values if they are considering the school for their family.

The adjudicator added that the parents chose to apply to the school precisely because of the opportunity to immerse the child in a Christian religious educational environment. The adjudicator added:

While I empathize with the parents’ feelings of unfairness that their child would not be admitted, the respondent [school] made no secret of its beliefs and was upfront that it may not be the right fit for every family.

Does this ruling come as a surprise?  What are your thoughts?

For the full-text of the decision, see:

H.S. v. The Private Academy

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

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

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

In this video we discuss how parents who have their children living with them after separation can apply for child support at any time. Usually they apply right after they separate or as part of their divorce application. They often apply for custody and child support at the same time. It is usually best to deal with these matters as early as possible. Sometimes parents with custody do not want or need child support at first, but later their situation changes.

They can apply for child support when the need occurs, even after a divorce and all other matters arising from the separation have been settled. But if a step-parent is asked to pay support, the more time that has passed since the step-parent had an ongoing relationship with the child, the less likely it is that the court will order support payments. This is especially true if the step-parent’s social and emotional relationship with the child has ended. A parent can apply for custody and support even while living separately under the same roof after their relationship with the other parent is over. But usually the court will not make any order for custody and support until one parent has actually moved out.

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

Wednesday’s Video Clip: Child Support & Parents on Social Assistance


Wednesday’s Video Clip: Child Support & Parents on Social Assistance

Parents on social assistance who have custody of their children must make reasonable efforts to get support from the other parent. If they do not, they may receive less assistance, or none at all. If they do not already have a support agreement or order, they are expected to get one. They must give information about the other parent to a family support worker who can help them get a support agreement or order.

They should get legal advice before signing any agreement worked out on their behalf.

They may not have to try to get support if the other parent:

• has a history of violence towards them or their child

• cannot be found (but they must give their worker any information they have that might help find the other parent),

• or is not working and cannot afford to pay support (if he or she starts working again, then support can be re-ordered).

The amount of any child support they receive is deducted from their social assistance. So, their total income does not change because of the child support.

Usually, the payments go directly to them, and that same amount is deducted from their monthly social assistance cheque. But if there is a history of non-payment, the child support payments can be assigned to Ontario Works (OW) or the Ontario Disability Support Program (ODSP). Then they will get their whole social assistance cheque, even when the support payments are not paid.

Parents on social assistance who do not have custody are expected to pay child support to the extent that they can, as set out in the Child Support Guidelines. Currently, the Guidelines do not require support payments from parents whose income is less than about $6,700 a year.

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

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


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

In this law video we talk about how decisions are made about custody of children.

Often, deciding on a parenting arrangement after a marriage is over is not easy. Under the Divorce Act one or both parents may have custody of the children.

If you cannot agree on a parenting arrangement, the divorce law sets out some basic principles that a judge must use when making decisions about children.

• The best interests of the children come first.
• Children should have as much contact as possible with both parents so long as this is in the children’s best interests.
• The past behaviour of a parent cannot be taken into consideration by the court unless that behaviour reflects on the person’s ability to act as a parent.
When deciding on the best interests of the child, the judge will take into account a number of factors including:
• Care arrangements before the separation. (Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extracurricular activities? Who dealt with the child’s school and teachers?)
• The parent-child relationship and bonding.
• Parenting abilities.
• The parents’ mental, physical and emotional health.
• The parents’ and the child’s schedules.
• Support systems (for example, help and involvement from grandparents and other close relatives).
• Sibling issues. Generally, brothers and sisters remain together, but under some circumstances it may be necessary to consider separating them.
• The child’s wishes. (There is no magic age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child’s wishes as the child matures. An older teenager’s wishes will often be decisive.)

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

Can a Kid’s Foster Parent Participate in Child Protection Proceedings?

Can a Kid’s Foster Parent Participate in Child Protection Proceedings?

The Ontario Court of Appeal has considered an interesting question relating to child protection proceedings: Whether a child’s foster parent is entitled to be granted status by the court, so that he or she can participate in the case.

In A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell the child was made a ward of children’s aid organization named Valoris pour enfants et adultes de Prescott-Russell (the “Society”) when he was two months old. At seven months of age, he was placed with a “foster-to-adopt” mother (the “F-A Mother”), who was assessed as a potential adoptee and with whom the child was placed with the ultimate goal of adoption.

Meanwhile, the Society filed an application asking that the child be made a Crown ward with the biological parents being stripped of their access rights.   The Crown supported the F-A Mother becoming the child’s adoptive parent. (Although the biological parents were given the chance to participate in a trial concerning wardship, they did not do so).

However, in 2016 an aunt and her partner expressed an intention to adopt the child, and the Society decided to support that plan instead. The aunt asked the court to be allowed to be added as parties, and to be granted a temporary order to care for the child.

The question arose as to whether the F-A Mother could be added as a party to those proceedings. A motion judge held that she could; the Divisional Court later overturned that decision. The matter was sent to be heard by a third court – the Ontario Court of Appeal – where the outcome was reversed again.

First of all, the Court confirmed that procedurally, the provincial Child and Family Services Act allows for non-parties, including foster parents, to be added to a child protection proceeding in the right circumstances. The legislatively-prescribed considerations which would favour not granting her such status, such as any procedural delay that might be added, were not of concern here.

Next, in allowing the F-A Mother’s participation, the Court explained that she was in the best position to inform the court on a Crown wardship hearing as to what the child’s needs and best interests involved. It was those best interests of the child, not the rights of the family or the foster parents, that is determinative. The F-A Mother also had a legal interest in the proceeding, especially since the Society had changed its mind about supporting her adoption bid in favour of backing up the child’s aunt. If the F-A Mother was not involved in the proceedings, her chance to adopt the child might be foreclosed.

Ultimately, the Appeal Court found that the Divisional Court in our view erred in interfering in the motion judge’s reasonable exercise of discretion, and it allowed the appeal, and granted the F-A mother status as a party to the child protection proceedings about the child.

For the full text of the decision, see:

A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 (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

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