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Posts from the ‘Children’ Category

Can Putting Your Work Before Your Kids Cost You Access Rights? Yes!

Can Putting Your Work Before Your Kids Cost You Access Rights? Yes!

If your job responsibilities routinely prevent you from exercising your access rights on a regular basis, can a court make it even harder for you to see your kids?

Absolutely.

That’s what happened in an Ontario case called Stimpson v. Stimpson. There, the couple’s 3-year-old daughter had lived with the mother in Ottawa since their separation in 2014. The father’s access time was scheduled for alternating weekends and mid-week periods. However, his work duties with the Canadian military apparently prevented him from exercising his access rights fully, since he had an erratic work schedule and had recently been sent on several short military deployments. Also, except for work-related reasons he was not allowed to travel more than 90 minutes from Ottawa without a special exemption, although this was not a true impediment to exercising access since the mother’s home was only 18 minutes away.

In any case, all of this meant that in a 1.5-year period the father had taken advantage of only 50 percent of the access time allotted for him to see his daughter.

Meanwhile the mother applied to the court to be allowed to move with the daughter to Toronto to be with her new fiancé. The mother had few social ties in Ottawa and was lonely, and due to a lack of available caregivers had to juggle childcare obligations with her work commitments. In contrast, her family and close friends-with-kids all lived in Toronto, and she had an offer for a good, higher-paying job already lined up there.

In assessing the mother’s request, court confirmed that maximum contact with both parents was the theoretical ideal. However, in this case that was to be balanced with other best-interest factors: namely, that the child would benefit greatly from continuing to live with the mother as her primary caregiver, and from the overall improved financial and family situation that the relocation would provide. Since the child also had a very strong bond with the mother, it was in her best interests that the mother-daughter relationship should be fostered. Finally, the timing for a move was also right, since she was just about to enter kindergarten.

Very tellingly, the court also honed in on the fact that the father had missed or cancelled his scheduled access about half the time. This told the court quite clearly that he prioritized his work duties over seeing his daughter.
Over the father’s objections, and even though it meant that his time with the daughter would drop sharply, the court granted the mother’s legitimate request, and allowed her to move to Toronto with the young girl.

For the full text of the decision, see:

Stimpson v. Stimpson, [2016] O.J. No. 4283, 2016 ONSC 5066

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: What Are The Child Support Guidelines?


Wednesday’s Video Clip: What Are The Child Support Guidelines?

In this law video we discuss the child support guidelines.

In 1997, the federal government brought in a set of new rules and tables for calculating the amount of support a parent who does not have custody of his or her child must pay to the parent who has custody.

These rules and tables were later adopted by the Ontario government and are set out in the Child Support Guidelines.

A link to the Federal Child Support Guidelines is provided in the Resources – Navigating the Family Law System – Spousal/Child Support section of our website.

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

Canadian Law At-a-Glance: Passports for Kids

Canadian Law At-a-Glance: Passports for Kids

With winter break right around the corner, it’s a good time to touch on the requirements for obtaining or renewing your child’s valid Passport. Here is what you need to know:

Does My Kid Need a Passport?

The short answer: Yes.

All Canadian children – from newborn on upward – require their own Passport in order to travel. Any Passport issued for your child is valid only for a maximum of 5 years, at which time it expires and must be renewed.

Who Can Apply?

If your child is under the age of 16:

• The Passport application must be submitted by at least one of the child’s parents (or legal guardian, in which case proof of legal guardianship must be provided).

• Ideally, however, you and the other parent should both sign the application, because the Passport Program may contact the other parent in any case.

• If you are separated or divorced from the child’s other parent, then the parent who has custody of the child is the one eligible to apply. In that case, you must provide copies of any separation agreements or relevant court orders to the Passport Program.

If your child is aged 16 or over, then he or she must submit their own Passport application, since for these purposes they are considered an adult.

Say “Cheese”

Along with the filled-out application form, you must also provide a photo which will appear in your child’s Passport.
Under the current requirements, the photo must have been taken in the last 6 months, must be taken in person by a commercial photographer, and must otherwise conform to certain specifications set out by the Government of Canada’s Passport Program. If the photo does not comply, your child’s Passport application will be rejected.

Fees and Process

When you submit your child’s Passport application form, you must also include payment of a fee, which is currently set at CAN$57. There are additional fees for “express” or “urgent” processing (and note that those are two different things), which expedited service must be requested in-person at a Passport Office that offers them.

Processing times will vary according to where and how the application is submitted (i.e. in person, or by mail) and range from between 10 and 20 business days.

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 & Access Rights in Ontario


Wednesday’s Video Clip: Child Support & Access Rights in Ontario

In this video we discuss child support in relationship to access rights. A parent cannot cut off contact to a child simply because child support is not being paid.

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: Who Pays Child Support in Ontario?


Wednesday’s Video Clip: Who Pays Child Support in Ontario?

In Ontario, all parents have a legal responsibility to support their dependent children to the extent that they can. In this video we discuss who is responsible to pay child support and why.

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

New Surrogacy and Parenting Declaration Laws Upcoming in Ontario

all-families-are-equal-act

New Surrogacy and Parenting Declaration Laws Upcoming in Ontario

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

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

Here are a few more of those upcoming changes:

Surrogacy

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

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

Parenting Declarations

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

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

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

Other

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

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

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

surrogacy

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

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

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

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

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

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

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

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

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

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

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

For the full text of the bill, see:

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

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

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

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

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

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

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

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

offensive

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

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

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

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

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

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

The court readily agreed.

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

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

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

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

For the full text of the decision, see:

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

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

Woman Sues Sperm Donor (and Friend) for Child Support

Man holding sterile sample Container bottle for medical analysis.

Woman Sues Sperm Donor (and Friend) for Child Support

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

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

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

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

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

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

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

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

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

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

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