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Posts from the ‘Children’ Category

May 16

New Family Law Act in B.C. – An Updated Law for a Modern Society

bc coat

New Family Law Act in B.C. – An Updated Law for a Modern Society

On March 18, 2013, B.C. passed its new Family Law Act, which replaced the former Family Relations Act and made some sweeping changes to the law in that province, bringing it more in line with the governing legislation in Ontario, but adding some new elements as well.
Among the more important changes:

• In certain contexts – including spousal support entitlement – the term “spouse” has been expanded to include people who have lived together for less than two years but have had a child together (this is now in-line with the Ontario definition).

• The new Act now applies to both married and certain unmarried couples in connection with particular family law topics including division of property or debt.

• Unlike Ontario (where analogous provisions do not exist), the B.C. legislation specifically addresses situations where a parent wants to relocate with a child in a way that will interfere with another person’s ability to maintain his or her relationship with that child. Under the new Act, the parent must now give 60 days’ notice of an intended move in certain circumstances.

• There are new provisions to promote co-operation and dispute resolution between spouses.

The new Act also adds clarity and precision to certain terms: for example the concept of “excluded property” has been expanded to incorporate certain specific items. Likewise, the term “best interests of the child”, which is a test used in connection with determining matters such as which parent should have custody, now specifically incorporates elements such as the child’s emotional health and well-being, and consideration of his or views if appropriate.

Finally, certain language used in B.C. family legislation have been clarified and updated, and reference to the terms “custody” and ”access” are no longer used (however, they are still used in the federal Divorce Act). Instead, they have been

replaced by the more inclusive terms “guardianship”, “parenting arrangements”, “parental responsibilities”, “parenting time” and “contact”. This reflects the goal of modernizing the legislation to make it more reflective of the many different living arrangements and family relationships that exist in our Canadian society.

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 Russell Alexander.com

May 15

How Do You Arrange For Child Support To Be Paid in Ontario?

Wednesday’s Video Clip: How Do You Arrange For Child Support To Be Paid in Ontario?

Sometimes parents are able to work out child support payments on their own. Other times, they get help from a mediator, or a judge determines what the payments will be.

In this video, family lawyer Russell Alexander talks about how support payments can be made, the need for financial information and use of the child support guidelines. Written agreements are helpful and the need for separate or independent legal advice is also discussed.

May 13

Court Says: Don’t Use Kids in a “Tug of War”

 tug

Court Says: Don’t Use Kids in a “Tug of War”

A recent Ontario decision illustrates the unfortunate and all-too-common scenario where divorcing parents have used their children in a push-pull designed to get back at each other.

In this case, the couple had two children, a boy aged 15, and a girl aged 11. When they separated after more than 22 years marriage, among the many issues to be sorted was which of them was to have primary residence of each of the children.

When they first split up in the fall of 2011, both children remained with the mother. However, at one point the 15-year old son got into an argument with her, and she was charged with assault (though subsequently acquitted at trial more than a year later). The son then moved in with the father, while the daughter stayed with the mother. The father’s existing child support obligations were adjusted accordingly, through proper legal means.

However during the 2012 Christmas break – and without explanation – the son moved back with the mother. As the court pointed out:

Zachary’s return to reside with his Mother has upset the Father. The Husband has unfortunately taken some drastic and unreasonable self help.

Specifically, the father retaliated by refusing to return most of his son’s belongings to the mother, including his winter coat, school uniforms, Health Card. He also unilaterally reduced his child support payments, and cut off the mother’s spousal

support payments altogether. The father and son also stopped talking to each other.

The mother was therefore prompted to bring a motion to court to have her full support entitlement restored.

Yet despite the rift and acrimony with his son, in court the father indicated he still wanted the boy to come live with him. He claimed that the mother had “psychological and emotional issues” that prevented her from being a good caregiver, and that she was volatile, erratic, and sometimes violent.

In assessing the scenario, the court pointed that the parents had previously allowed the son to choose who he lived with, so the father’s motives in trying to impose new arrangements at this stage were suspect:

Zacary is 15 years old. Given the history of this matter, Zachary appears to be capable of making up his own mind as to where he will reside. He chose to live with his Mother until the assault took place. Then he chose to live with his Father. Then he chose to move back in with his Mother. Although with some bitterness and disagreement over access, the parties have, until now, respected Zachary’s wishes as to his primary residence.

The Husband is no longer content to permit Zachary to determine with which parent he resides. The Husband now seeks to take Zachary away from the Mother, a decision which Zachary made on his own.

The Father’s tying this decision by Zachary to financial support to the Wife and to child support is somewhat troubling and may be an indication there may be financial issues behind the Father’s motivation to get Zachary back to reside with him.

Furthermore, the problem with the father’s legal position was this: On the one hand he claimed the mother was psychologically unfit for the son to live with. On the other hand, he was perfectly content to have his daughter continue to live with her. Furthermore, he had no medical documents to substantiate his claims about the mother’s psychiatric condition.

After similarly expressing concerns about some of the mother’s contentions about the father, the court lamented:

A careful review of the correspondence exchanged between the parties and their counsel suggests that both parties are attempting to “use” the Children in this family law proceeding. The parties simply do not appreciate the harm caused to the Children by this “tug of war”. While both parties suggest they want the Children to have a positive and loving relationship with the other parent, there is little evidence that either parent has actually demonstrated this in their conduct.

Ultimately, the court ordered the son to have primary residence with the mother, but allowed the matter to come back before the court if the boy changed his mind (but with the caution that the boy’s reasons for doing so would be carefully scrutinized).

For the full text of the decision, see:

Stockwell v. Dalcin, 2013 ONSC 2179 (CanLII)   http://canlii.ca/t/fx2d
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 Russell Alexander.com

May 6

Top 5 Kids’ Books About Divorce

top 5

Top 5 Kids’ Books About Divorce

When parents decide to divorce, their immediate focus tends to be on the details of their separation and the impending legal processes, which include making arrangements for day-to-day living, negotiating for proper support, and agreeing on and arranging for the division of property. And although the physical care and custody of any children of the marriage is often uppermost in most parents’ minds, the psychological well-being of the children can often get temporarily overlooked.

Here are some of the best books – aimed at the children themselves – that can help them deal with this difficult period:

1. When Mom And Dad Divorce

by Emily Menendez-Aponte and R. W. Alley (Jul 21 2006)

This book, which is available both in paperback and for download on Kindle, is written in a warm and reassuring tone, and is filled with comforting messages designed to help kids understand that they are not alone. It also emphasizes the point that the future will be alright – even if it is different from what they are accustomed to.

2. Two Homes

by Claire Masurel and Kady MacDonald Denton (Jul 14 2003)

Written in a positive and matter-of-fact tone, this book has a unique slant on divorce from a kid’s point of view, by focusing on what might be gained in the process rather than lost. It underlines the benefits to children of having two loving homes, each with their own environments and advantages.

3. Dinosaurs Divorce

by Marc Brown and Laurie Krasny Brown (Sep 1 1998)

This book is written for very young children, and features lively cartoon illustrations to help convey upbeat but straightforward information about why parents divorce, how living arrangements will change, what it means to have step-parents, and whether and how to tell friends.

4. The Suitcase Kid

by Jacqueline Wilson and Vicky Ireland (Nov 9 2010)

This book, available in paperback, hardcover, audiobook, and for Kindle, tells the fictional story of Andy West, a 10-year-old girl whose parents decide to divorce. Now that they have both remarried, Andy finds herself living out of her suitcase as she is shuttled back and forth between two houses, each of which feature new routines and new family members (in the form of step-parents and step-siblings). The book illustrates many important issues that plague the children of divorce, including an intense longing for the way things used to be.

5. What In The World Do You Do When Your Parent Divorce?: A Survival Guide for Kids

by Kent Winchester and Roberta Beyer (Mar 7 2007)

With its unusual question-and-answer format, this book sensitively answers those questions that kids have about divorce: what it is, why it happens, the logistics of living arrangements, and how to deal with the strong and confusing emotions that arise for those kids who find themselves in these scenarios. It is available in both paperback and for Kindle.

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 Russell Alexander.com

May 2

Child Support for Special Needs Kids

special

Child Support for Special Needs Kids

As I have written in previous articles, under Ontario law every parent has an obligation to financially support his or her child. The extent and duration of this child support obligation will depend on various factors, primary among being the needs and best interests of the child.

Where a child has special needs, it is particularly important that parents fulfill that duty, and situations of separation or divorce can bring the question of the proper allocation of responsibility to the forefront.

Under Ontario’s Family Law Act and Child Support Guidelines, specific provisions exist to cover “special or extraordinary expenses”. The Guidelines state that a court, on the request of either parent, may provide for an amount to cover any or all of certain specific expenses, namely:

Health-related expenses. Expenses under this heading must exceed any insurance reimbursement by at least $100 per year. By legislation, these expenses specifically include:

• orthodontic treatment

• professional counseling provided by a psychologist, social worker, psychiatrist or any other person

• physiotherapy

• occupational therapy

• speech therapy

• prescription drugs

• hearing aids

• glasses and contact lenses.

Certain educational programs. This heading covers those “extraordinary” expenses that relate to primary or secondary school education, or are in relation to any other educational programs that meet the child’s particular needs.
Extracurricular activities. This heading covers extraordinary expenses for extracurricular activities in which the child is involved.

Note that in this context, the question of what are “extraordinary expenses” is not necessarily left to the parents’ discretion – rather, these are amounts that are considered by the court to be appropriate, taking into account various factors which expressly include “any special needs … of the child” and other similar factors that the court considers relevant.

In all cases, the amount a court can order in this manner will depend on the child’s best interests, and the reasonableness of the expense in relation to the parents’ ability to pay, plus the parents spending patterns during the time they lived together.

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.  To learn more visit us at Russell Alexander.com

So what are thoughts and comments about child support for special needs kids?  Please post them here.

May 1

Wednesday’s Video Clip: How Long Does Child Support Continue?

 

Wednesday’s Video Clip: How Long Does Child Support Continue?

In this video, family lawyer Russell Alexander discusses how long child support continues and when a court, or parents, should consider stopping or terminating child support payments.

Apr 29

Don’t Use Your Kids as Messengers

messanger

Don’t Use Your Kids as Messengers

At one stage or another, almost every set of divorcing parents will experience situations of ill-will, conflict, heated arguments, (whether verbally or by email or text), and misunderstandings between themselves. Yet in most cases these same divorcing parents must nonetheless figure out a way to effectively communicate and deal with each other on an ongoing basis, since they will remain involved in the joint upbringing of their child.

In such scenarios, there are many ways to go wrong – but one of the most devastating and harmful mistakes from the standpoint of a child’s personal and emotional development, is to have the child serve as a “messenger” between the parents.

This involves asking or depending on the child to relay messages from one parent to the other, and can include things like:

• Requesting changes to access or custody schedules (“Tell your mother I can’t pick you up on Friday night this weekend, but I’ll come at 10 a.m. on Saturday”);

• Asking the other parent to take care of school or health-related obligations (“Ask your father if he made that appointment with your pediatrician, or whether I’m supposed to do it”);

• Soliciting information about general day-to-day matters (“Ask your mom if she knows where your blue ski jacket is”).

This is unhealthy for so many reasons. For one thing, it puts the child directly in the middle of any conflict between the parents, which is never a comfortable place for any child of any age to be. And all the more so where both parents have unresolved negative feelings toward each other, and end up inadvertently (or sometimes deliberately) conveying their anger or hurt through the child.

But even if the split is amicable, a child will naturally have intense feelings about the separation or divorce, and will feel conflicted about playing go-between.

Secondly, this places a great burden on the child, in terms of ensuring that the messages that are conveyed are accurate and timely. Yet as any parent knows, children are already notorious for not fully applying their listening skills and for forgetting things at the best of times, so to burden them with the responsibility of being an accurate messenger is unfair.

Bottom line: One of the duties of being an adult is to take responsibility for your own communications. More importantly, one of the responsibilities of being a parent is to do what’s best for your children. So keep the kids out of it.

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  Russell Alexander.com

So what are your thoughts and comments about using kids as messengers?

Mar 28

Do Sperm Cells Constitute “Property” Subject to Division After Separation?

sperm

Do Sperm Cells Constitute “Property” Subject to Division After Separation?

Here’s a new one: In a recent British Columbia case called M. (J.C.) v. A. (A.N.), the court was asked to consider the interesting issue of whether 13 sperm straws (which are the vials containing a sperm donation), were “property” in the context of a Family Law case involving a separated couple.

During their 8-year relationship, the female same-sex partners had each given birth to one child apiece, with the children having been conceived through therapeutic insemination with sperm from the same donor.

When the couple later separated, they entered into a separation agreement which dealt with child custody and support. It also purported to deal with division of their joint property; however, the division of the sperm straws, which were being stored at a fertility clinic, was inadvertently overlooked. Each sperm straw had cost about $250, and had been donated by a donor who had “retired from the program” and was no longer giving donations.

When one of the ex-partners later entered into a new relationship, she wanted to have a second child using the remaining sperm straws that were stored at the clinic. (This would ensure that her second child was biologically related to the first one). She offered to pay her first spouse $250 each for half of the sperm straws. The first spouse, however, preferred to have them destroyed.

This is when the matter came before the court for a ruling.

The court was asked to decide whether the sperm straws were “property”, and whether the best interests of the existing children, plus any future offspring from the same donor, should be considered in determining what should be done with them.

The court considered a selection of cases from around the world, illustrating how the courts of different jurisdictions had treated the important legal and ethical issues that arise from dealing with the ownership of items such as semen samples, embryos, sperm, corpses, human body parts, and other substances that are “generated by the human body.”

Ultimately – and while noting that “the court is ill-equipped to handle moral and philosophical arguments – it ruled that the 13 sperm straws were indeed “property”, and that they should be divided equally between the former partners. However, the best interests of the children that had already been born from the particular donor’s sperm straws, as well as any future children that might be born, were not part of the consideration. Trying to analyze (and potentially place limits on) the use to which a couple could use the sperms straws would be “borderline discriminatory”. Moreover, identifying the best interests of a child yet unborn would be merely speculation.

For the full text of the decision, see:

M. (J.C.) v. A. (A.N.), 2012 BCSC 584 http://canlii.ca/t/fr3z5

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 http://www.russellalexander.com/practice/family-property-division-and-sharing/

Mar 20

Ontario Divorce: Does The Age of The Child Affect and Child Support in Ontario. Wednesday’s Video Clip


 

Ontario Divorce: Does The Age of The Child Affect and Child Support in Ontario. Wednesday’s Video Clip

In this video, Shelley, a Law Clerk with Russell Alexander Family Lawyers, discusses 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.

Mar 19

Divorce: Stay Engaged and Remember to Hug Your Children

hug

Divorce: Stay Engaged and Remember to Hug Your Children

Marla Gilsig recently published a new post discussing How To Successfully Parent After Separation and Divorce .

This blog reviews how to help children adjust to two homes, parenting times and parenting responsibilities and the importance of staying emotionally engaged.

Marla notes that “Children of all ages need hugs and hearing “I love you” and “I’m proud of you”. Parents need to ensure that their children know that they matter and are valued more than anything or anyone and that their parents love for them is far more powerful than the negative feelings they have for their former spouse.”

You can read Marla’s full blog here.

We will be featuring Marla Gilsig this Friday as a part our interview series with lawyers from across Canada (and beyond).

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