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Posts from the ‘Children’ Category

Wednesday’s Video Clip: Child Support in Ontario – Introduction to Child Custody


Wednesday’s Video Clip: Child Support in Ontario – Introduction to Child Custody

In Ontario, like other jurisdictions, both parents have a responsibility to financially support their children. For the spouse without custody, the amount of child support that must be paid is based on income and the number of children. In this short video clip we talk about custody and answer questions many people have about child support.

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: 4 Ways To Enforce Child and Spousal Support Orders in Ontario


Wednesday’s Video Clip: 4 Ways To Enforce Child and Spousal Support Orders in Ontario

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are several points about the enforcement of such orders or agreements that are noteworthy, this video reviews some important points to consider.

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

Must Support-Paying Father Abandon Music-Career Dreams?

Must Support-Paying Father Abandon Music-Career Dreams?

In a case called Caine v Ferguson, the court was asked to consider whether a support-paying father of a child, who now had additional children to support, should be relieved of paying $11,000 in support arrears, because he acted as a stay-at-home dad while pursuing a fledgling part-time music career.

The 29-year old father had been previously ordered to pay $332 per month for his first child, who was now 9 years old, based on what the court imputed to be his income of about $35,500. He paid no support whatsoever, and the Family Responsibility Office started taking steps to collect on about $11,000, representing the unpaid support arrears that had accumulated so far. The child’s mother was on social assistance.

The father was now married to another woman with whom he had two additional children. The court described his part-time musical endeavours this way:

He stated that he is a talented musician and that he is writing, performing and producing his own music. He showed the court his recent CD. He says that he is not making any money yet, but he is giving away the CD at no cost and performing at shows for free in order to become better known. He said that his music is being played on music stations. He also has made some music videos that are on the internet.

The father brought a motion asking the court to eliminate the arrears entirely, claiming that he earned no income in the two most recent tax years.

The court found that – despite his child care obligations to his new family – the father was deliberately under-employed, and his decision to stay at home was simply not reasonable in light of his obligations to support his first child. (And it did not help him for the court to learn that he quickly depleted a $10,000 personal injury settlement, obtained after a car accident, by traveling to St. Maarten with his new wife and making music videos).

Rather than try to pursue his music career part-time, the court found that the father could have been earning at least $21,300 per year at a minimum wage job, even taking into account his child care responsibility to his other children. As the court put it:

He is choosing to pursue a speculative music career at [his first child’s] expense. He has no desire to pay child support for [her] and appears quite content with the status quo

He refused to pay child support and completely ignored the order. He has financially abandoned this child. … The court cannot condone such behaviour and needs to send a clear message that there are consequences for acting this way.

… [The mother’s] social assistance entitlement has remained unchanged. It has been the taxpayer who has had to subsidize the [father’s] financial neglect of [his child]

The court concluded that he had made nominal efforts to seek work since 2008, when the order for support of his first child was initially made.  Nothing about his current situation called for a change to that order, other than to adjust the $35,500 that had been imputed to him at the time, since in all the circumstances it was unrealistically high.

The court retroactively imputed that amount of income to the father, and adjusted the arrears slightly to accord with the lower income figure that it imputed. The court also observed that the father could still pursue his musical aspirations on a freelance basis, if he remained adamant.

For the full text of the decision, see:

Caine v Ferguson, 2012 ONCJ 139 (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

Wednesday’s Video Clip: Whether a Parent has a Right to Move with a Child – the Concept of “Mobility” in Family Law.


Wednesday’s Video Clip: Whether a Parent has a Right to Move with a Child – the Concept of “Mobility” in Family Law.

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

But as time passes, there may be other developments as well; for example the parents may embark on new relationships with new partners, or may change jobs.

The potential impact on any court-ordered support, custody or specific access arrangement, and the effect on each parent’s rights must be assessed and weighed.

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

In family law, this is known as a “mobility” issue.

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

Father Who Paid $400K in Legal Fees to “Cause Financial Harm to the Mother and His Son” Ordered to Pay Mother’s Costs Too


Father Who Paid $400K in Legal Fees to “Cause Financial Harm to the Mother and His Son” Ordered to Pay Mother’s Costs Too

If a father runs up almost $400,000 in legal costs – including nearly $75,000 in expert fees – in pursuit of a low-dollar-value victory in court, should this be considered in assessing legal costs later on?

In Jordan v Stewart, court was asked to allocate legal costs in connection with the parents’ dispute over whether the father’s obligation to pay child support for their now-20-something son should be terminated. The young man had been attending University in London, Ontario but when the father learned that he was switching to a college in Toronto, he applied to have child support cut off, on the basis that the young man would be independent and no longer be living with his mother in London. In fact, the father asked for the termination of his support obligation to be back-dated three years.

The father brought a motion to have the support obligation end; the mother wanted the father’s motion dismissed. Although the issues were relatively straightforward, the hearing took up several days of court time, and required expert evidence and scrutiny of the father’s income.

The father did not get the order he wanted, but the mother wasn’t fully vindicated either, since there were additional legal issues that were also addressed at the same time. Given those rather mixed results, the judge was challenged to apportion legal costs, which under Ontario civil procedure are usually (but not always) given to the winning party. So the court had to determine which of the parents had been the “successful” one in the proceeding so far.

The stakes were potentially high: The father had incurred about $373,000 in costs in preparation for certain proceedings, including almost $75,000 paid to an expert to provide an opinion on his income for child support purposes, for the years 2010 and 2011, based on various financial scenarios. But despite the staggering run-up of costs, the father was asking for only 25% of it from the mother – which was still just under $90,000.

The court rejected the father’s claim that he was the successful party, stating that his rationale “stretch[ed] the reality of the outcome.” Instead, the judge stated that “even if I found the father was somehow technically successful, I would award the mother costs.”

The judge’s stern stance against the father was explained by the following passages from the 130-paragraph ruling:

This case is another example of courts struggling to determine entitlement and quantum of costs. The costs issue is made more complex by the father’s willingness to spend approximately $400,000 in legal and expert fees. This amount is significantly disproportionate to any amount that he advances as his best possible financial outcome. The father also knew that, if successful, he probably would not recover the costs in any significant way from the mother as she has limited financial resources and appeared in court without counsel.

This case is an extreme example of a person who was prepared, as he has been in the past, to spend significant sums of money without concern for costs or outcome.

While I cannot conclude that the father in this case deceived the court in any manner, his willingness to spend money on legal and expert fees so out of proportion to any economic benefit defies logic. The reasonable conclusion is that the father was prepared to cause financial harm to the mother and his son even at incredible expense to himself. He certainly never expected to recover his costs [from her].

He does not seek to recover most of the significant fees he spent, a signal that the money was not a factor in his pursuit of the case or relevant to any resolution. He was prepared to spend more money than any financial benefit to him if he succeeded.

The judge also observed that the mother had made multiple reasonable offers: she had suggested mediation, and offered to accept reduced support.  The judge found these offers were all “worthy of the father’s consideration”, and would have been far more financially beneficial to both parties than what transpired.

In the end, using the father’s own tally of his costs as a representative “measuring stick” of the fair compensation to which the mother should be entitled, the judge awarded her the nearly $90,000 in costs to be paid by the father, plus the $34,000 he already owed her.

For the full text of the decision, see:

Jordan v Stewart, 2013 ONSC 5037 (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: When do the Child Support Guidelines apply?


Wednesday’s Video Clip: When do the Child Support Guidelines apply?

In this video we discuss when the child support guidelines apply.

If parents go to court to get a child support order, in almost all cases the court must use the Guidelines to set the amount.

This is true whether the order is applied for under:

• the Divorce Act by parents who are divorcing

• the Family Law Act by parents who were never married, or who were married and have separated but are not getting a divorce

The Guidelines must also be applied whenever a parent applies to the court to change any support order, even if it was originally made before the Guidelines came into effect.

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

Access to Children by Grandparents: Does a Parent Have Automatic Veto Power?

Access to Children by Grandparents: Does a Parent Have Automatic Veto Power?

Although the case of Simmons v Simmons is actually from Nova Scotia, it’s an interesting and universally-applicable illustration of how Canadian courts can approach an access contest between parents and various other family members – in this case, the grandparents – and how even a parent’s own wishes can be thwarted in appropriate cases.

The father had died of cancer when the boy was only 15 months old. The paternal grandparents had visited the boy often, both prior and immediately after their own son’s death. But when the boy was almost three years old, tension and acrimony developed with the boy’s mother over the frequency of their visits. Although the grandparents were being denied access per se, the mother was not prepared to be particularly cooperative with them until they offered an apology for what she considered was their past ill treatment.

The discord resulted in the grandparents discontinuing their visits to the boy for several months.   Over the objections of the mother, they then succeeded in obtaining a court order granting them interim access to the boy. (And note: Such applications by grandparents are permissible in all Canadian jurisdictions). The application judge had concluded that the boy’s best interests were fostered by nurturing the relationship between him and his grandparents, and ordered that such access should increase gradually over a four-month period, culminating in day-long visits every second weekend.

The mother appealed that order based primarily on the argument that, on the narrow issue of who should access to her son, the prior judge had not given proper deference to her own decision-making authority as his mother.

The Appeal Court rejected that argument, and dismissed the mother’s appeal.

Contrary to the mother’s claim, the judge that made the initial order did not fail to accord proper deference to the mother’s decision-making authority respecting access. He did take it into account; what he didn’t do was let it override consideration of the boy’s best interests.

Although it was a general principle that parents should have autonomy over decision-making relating to their children, this paradigm was not the only acceptable approach to making a determination on the grandparents’ access rights in this case. Rather, the overarching test was merely whether granting such access was in the boy’s best interests.

In this case, judicial deference to the mother’s authority, as a parent, had to be tempered by the court’s willingness to recognize the benefit giving the boy exposure to his extended family, particularly since he had already lost his father.   The previous judge had thoroughly weighed this consideration, along with all the evidence both in favour and against an access award. There was also nothing to suggest that the judge made the order as a way of fostering hope or speculation that the grandparents’ access would resolve the tension between them and the mother.

For the full text of the decision, see:

Simmons v Simmons, 2016 NSCA 86; [2016] N.S.J. No. 494 (C.A.)

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

All Parents Are Equal Act, 2016 Now In Force – Surrogacy Arrangements Impacted

All Parents Are Equal Act, 2016 Now In Force – Surrogacy Arrangements Impacted

Several months ago, I wrote a series of pieces including: Ontario Government Introduces Bill to Strengthen the Legal Status of All Parents, New Surrogacy and Parenting Declaration Laws Upcoming in Ontario, and New Proposed Law Clarifies Parentage, Surrogacy Rights, and Rights Arising from Assisted Reproduction about the All Parents Are Equal Act, 2016.

That Act is now in force, effective January 1, 2017 and (among several other things) amends the Ontario Children’s Law Reform Act to change the former practice around surrogacy arrangements. That former practice called for a court to make a declaration – on the parties’ consent – as to the child’s parentage after birth, and required the parties to file a formal court application to obtain it.

Since obtaining the court declaration was the more costly portion of the former multi-stage process for legally recognizing “parent” status in surrogacy arrangements, the elimination of this steps may come as a welcome change.

However, the Act’s more streamlined is not without its detractors. With the elimination of the need for a court declaration in some circumstances, the safeguards have been moved to the front end of the process, before the child is conceived and born. Now, up to four intended parents of a child born to a surrogate will be recognized without a court order if the following conditions are met:

  • The surrogate and the intended parent(s) received independent legal advice and entered into a written pre-conception surrogacy agreement.
  • The surrogate provided written consent to give up her parental status both before conception and seven days after the birth of the child.

(That seven days is a “cooling off” period, to ensure that the written consent by the surrogate is validly given).

Since in routine cases there will no longer be any court oversight of the process, it will be left to the parties themselves, with the help of their lawyers, to ensure that they meet the requirements of the Act, and that when the time comes, the surrogate gives her consent to relinquish the child.

What do you think of these new changes? Are they an improvement?

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

Regret is No Excuse for Disobeying Consent Order: Mom Blocks Grandmother’s Access to Kid

Regret is No Excuse for Disobeying Consent Order: Mom Blocks Grandmother’s Access to Kid

In some Family Law cases, one can speculate about the good intentions behind a parent’s actions, even when they end up being contrary to an agreement with the other parent, or to a court order. Still, it behooves the court to enforce its prior orders and agreements, to maintain the semblance of fairness and respect for the judicial process.

This was the situation in a case called Perna v Foss. The mother and father had married only a month before their child was born, and separated 18 months later.   The father eventually agreed to give sole custody to the mother.

When the boy was around 7 years old, the mother agreed to allow the boy’s grandmother (on the father’s side) to have access to him one day a week. In view of the mother’s acquiescence, the court granted a consent order accordingly.

However, the mother stopped facilitating the access altogether when she formed the opinion that the grandmother was “having conversations with [the boy] regarding serious issues” during those visits. She explained her move to block access in texts and Skype conversations with the grandmother, one of which read as follows:

I will consider giving you ur (sic) time back if u can promise me only good times and no conversations w Jackson about moving or living in Dominican Republic. I want the pressure off of him completely.  I never said I wanted you out of his life Sandra.  I just don’t want him having to answer questions about how he showers or what mommy does.  It’s not fair.  If you agree to this we can start visits again.  …

Evidently the two women were unable to come to an understanding; the mother continued to deny access, which prompted the grandmother to bring a motion for a court order finding her in contempt. The mother ignored the motion, and did not appear in court. (Nor had she taken any steps to vary the initial consent order granting the grandmother access in the first place, which would have been the ordinary course to take if she now took issue with it).

The court considered the circumstances, and agreed that the mother should indeed be held in contempt.

She was clearly aware of the consent order, and could not claim to be confused about its interpretation. She freely admitted to disobeying it on more than one occasion, as her texts and Skype sessions showed. In fact, she had announced both her deliberate intent to block the grandmother’s access, and her reasons for doing so.

The court speculated that the mother perhaps regretted having agreed to giving the grandmother access in the first place, but this did not give her justification or excuse for failing to honour her obligations under the consent order. She did not have the right to unilaterally refuse to comply.

In light of the contempt finding, the court refused to hear any further motions by the mothers – including one she had brought recently for permission to remain in the Dominican Republic with the child – until the contempt was purged.

For the full text of the decision, see:

Perna v Foss, 2015 ONSC 5636 (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