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Posts from the ‘Children’ Category

When Can A Parent Apply For Child Support – video

 

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

In this video we review how parents who have their children living with them after separation can apply for child support at any time. Usually they apply right after they separate or as part of their divorce application. They often apply for custody and child support at the same time. It is usually best to deal with these matters as early as possible.

Sometimes parents with custody do not want or need child support at first, but later their situation changes. They can apply for child support when the need occurs, even after a divorce and all other matters arising from the separation have been settled.

But if a step-parent is asked to pay support, the more time that has passed since the step-parent had an ongoing relationship with the child, the less likely it is that the court will order support payments. This is especially true if the step-parent’s social and emotional relationship with the child has ended.

A parent can apply for custody and support even while living separately under the same roof after their relationship with the other parent is over. But usually the court will not make any order for custody and support until one parent has actually moved out.

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

Who Pays Child Support in Ontario? video

 

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 review 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.

 

Did Son Work for Free in Father’s Company for Almost a Decade?

business

Did Son Work for Free in Father’s Company for Almost a Decade?

A recent Ontario decision demonstrates the down-side of family businesses – as well as the risks involved in allowing assumptions to remain unspoken. More importantly, it shows what can happen when business-operating family members fail to document important agreements, expectations and obligations in written form.

A company was founded and was being run by the father Larry. Six of his adult children were now holding key management positions. One of his sons, Emmanuel, initially went off to pursue his own business interests, but eventually returned to the fold in 1999 to assist the company in various capacities, including tax consulting in connection with the company’s application for federal and provincial tax credits for the years 1999 through 2010. Emmanuel’s efforts resulted in the company securing approximately $2.6 million in scientific research and experimental development (SRED) tax credits for a 20-year period.

The court introduced the facts this way:

While the claims are framed as traditional commercial disputes, the substance of these actions is really a story about the tumultuous relationship between a father and son. Emmanuel assisted the family business (LTM) without an expectation of compensation, admittedly, in order to acknowledge the debt of gratitude he felt he owed to his father and out of a sense of obligation he felt for his family.

Evidently that changed, because once the father died unexpectedly Emmanuel requested that the company pay him almost $420,000 to cover 25% of the tax benefits it received on account of his tax consulting efforts. Management denied his requests, so Emmanuel sued under an implied contract for what he considered was his entitlement. He also asserted a claim based in quantum meruit (i.e. a promise to pay a reasonable amount for work performed).

Emmanuel brought these claims despite the lack of any written contract or document to evidence the alleged agreement to pay him. He also conceded that he never requested payment for his services at all for 8 years, until 2011 when he presented the company with his invoice. He explained to the court that he decided to withhold asking for compensation because he was dealing with family, and because he believed he would eventually become an owner of the company. He also claimed that he knew that the company had insufficient cash to pay him during those years, and was relying on his father’s prior promise to pay him.

In considering his legal position, the court assessed Emmanuel’s evidence “disfavouably”, finding that some of it contradicted other evidence, or else was downright incredible. For example, his claim that he refrained from asking for compensation during times when the company had cashflow problems did not hang together well with the fact that he did not ask for payment even during those periods that the company was flush.

In the end, the court concluded that Emmanuel was not entitled to payment for his historic services to the company from 1999 through 2010, and in any event he had was too late: the 2-year limitation period for bringing any claims had expired by the time he got around to suing.

For the full text of the decision, see:

1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2015 ONSC 2664 (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

Judge may ascertain child’s views and preferences through a judicial meeting

child 3

Judge may ascertain child’s views and preferences through a judicial meeting

Our summer Student Amelia Rodin recently researched the issue of Judicial Interviews of children, she notes that decisions regarding custody and access have an immense impact on the best interests of the child. In order to ensure that the best interests of the child are met, there are three commonly employed methods of incorporating a child’s views and preferences into the judicial process.

Representation of the child by a lawyer is perhaps the most prevalent method, and children are often assigned a lawyer from the Office of the Children’s Lawyer to represent their interests. Expert reports written by professionals such as social workers or psychologists are also used to communicate the child’s preferences to the court in an unbiased manner. Perhaps the least common method of ascertaining a child’s views and preferences is through judicial interviews, or meetings between a judge and child . Judicial interviewing has historically been a controversial method for determining a child’s views, and whether the court embraces this approach is largely based on the judges comfort level and training.

However, in appropriate situations, judicial interviewing may be an important supplement to legal representation and expert reports . In G. (L.E.) v. G. (A.) the court identified three main purposes for judicial interviews with children:

Obtaining the wishes of children; making sure children have a say in decisions affecting their lives; and providing the judge with information about the child.

An interview can occur at many different stages of a case, and in G. (B.J.) v. G. (D.L.), the court held that:

Judicial interviews can take place both at the more informal judicial dispute resolution stage, such as at a family case conference or a settlement conference, and during more formal court hearings and trials.

In the Ontario case P.L.M. v. L.J., Justice R.J. Harper conducted a judicial interview with a 12-year-old child for the purpose of hearing her wishes in regards to custody issues.

In this case, the child was not represented by a lawyer from the Office of the Children’s lawyer, but had seen a therapist who had submitted a report to the court. Despite the therapist’s records, there were concerns that the child did not feel heard by the court.

The interview was held privately in the judge’s chambers and recorded. In addition to the judge and the child, the court reporter, court services officer, and the child’s therapist were present.

Throughout the interview, the child was able to express feelings of parental alienation, and describe situations of deep conflict between her mother and herself. In consideration of the insights provided by the interview, as well as the totality of the evidence presented throughout the case, the judge ordered custody to the father.

For the full text of the decision, see:

P.L.M. v. L.J., 2008 CanLII 35923 (On S.C.).

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.

Does The Age of The Child Affect Child Support in Ontario – video

 
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, 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.

 

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 www.RussellAlexander.com.

Who Pays Child Support in Ontario – video

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, Shelley, a Law Clerk with Russell Alexander Family Lawyers, discusses 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 www.RussellAlexander.com.

Defaulting Family Lawyer Sent to Jail for Failure to Pay Support Arrears

jail

Defaulting Family Lawyer Sent to Jail for Failure to Pay Support Arrears

Even having practiced as long as I have, it’s rare to see a support-paying parent sent to jail for non-payment, even though this is one of the enforcement mechanisms available to Ontario courts under the governing family legislation.

But this is exactly what happened in a recent case called Ontario (Family Responsibility Office) v. Adema. And the defaulting parent was a lawyer, to boot.

The 50-year old man was the father of three children by two different mothers. In connection with one of those children, he was $15,000 in arrears, and in connection with the other two, he was $19,500 in arrears. He had also been ordered by the court to provide financial disclosure, and had been warned by the support-enforcement arm of the Family Responsibility Office (FRO) that Default Hearings would proceed if he did not comply with various directives. Despite being granted several extensions by the court, the father never made what was considered adequate financial disclosure and delivered it late in any event. To add insult to injury, he happened to work as a lawyer and practiced family law periodically over the courts of his rather peripatetic career.

The Default Hearing went forward as had been threatened, with the Director of the FRO requesting the court to imprison the man for 90 days in connection with each of the defaults, or until he paid the outstanding arrears. The court agreed that some jail time was necessary, and admonished the father in the following terms:

The payor has had 9 months to show good faith by paying some support.

The payor has preferred his interests ahead of those of his children. His financial statement reveals that he spends $300 per month on alcohol and tobacco, $100 per month on entertainment and $300 per month towards his debts. Yet he is choosing not to voluntarily pay any child support.

The payor did not provide a valid justification for his poor payment history. He presented no plan to pay the arrears. He gave no indication that he would voluntarily make any payments in these cases. He presented as aggrieved that his support obligations are being enforced. He feels that his children have been provided for adequately by their mothers. Why is he being bothered now?

Rationalizing that as a lawyer the father should have “known better” — the court added:

It has become clear that less aggressive enforcement options other than imprisonment have failed. The suspension of the payor’s driver’s licence and passport did not result in support compliance. These default proceedings have had little impact on his payments. The payor was given multiple opportunities to comply with the support and disclosure orders.

The payor knows or should know the potential consequences of his behaviour. It is disappointing that a family law lawyer has acted in such a manner.

The court has limited sympathy for the payor’s predicament. It is reserved for his children who have gone without adequate support and the mothers of those children who have assumed the payor’s support obligations.

The message needs to be sent to the payor that child support orders for his children matter and will be enforced. The default orders shall provide for an immediate committal of the payor for 75 days in both cases or until a portion of the arrears ($3,500 in each case) is paid.

Should court-imposed imprisonment be used more often to enforce the payment of child support? What are your thoughts?

For the full text of the decision, see:

Ontario (Family Responsibility Office) v. Adema, 2016 ONCJ 37 (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 www.RussellAlexander.com

How Relevant to Custody Are Father’s Plans to Promote Kids’ Native Heritage?

mohawk

How Relevant to Custody Are Father’s Plans to Promote Kids’ Native Heritage?

In a case called Montour v. Montour, the parents had originally met in California and then moved to Ontario where they had two children together. When they separated several years later, custody of the children became a key issue: the mother wanted full-time custody and proposed to move back to California, where she wanted to have a “fresh start”; the father wanted them to stay in Ontario.

But the father’s custody plan had a further complicating element for the court to consider: He was a proud Mohawk Indian, and proposed that the children should live with him full-time on a Native Reserve. Under this plan – and aside from access visits with the mother (which he preferred would take place nearby) – the children’s exposure to non-Native culture would be limited: they would attend daycare and school where the Mohawk language was taught, and would be raised in a close community of Mohawk individuals. They would be entitled to all the health and education benefits on the Reserve.

In deciding on custody, the court considered all the circumstances. First of all, it ruled out joint custody as an option in light of the divergent plans of each parent, not to mention the large geographical distance separating them.

Next, the court assessed the impact and weight to be given to the father’s proposal to foster the children’s Native heritage. While acknowledging that it was an important consideration, it could not be the sole determining factor on the custody issue, the court found. On this aspect, the mother’s willingness to promote the father’s culture and heritage could be taken into account as well. (The father, incidentally, steadfastly refused to reciprocate in this regard).

In short, the father’s goal to promote the children’s heritage was only one of many features to be considered in his proposed overall plan. Among the others, for example, was the father’s current lack of employment, his receipt of social benefits through his Band office, and his plan to arrange daycare through friends, family and community resources. The court also faulted the father implicitly by pointing out that at no time during the marriage did he feel motivated to seek employment income (which was in contrast to his work ethic prior to the relationship).

The court therefore awarded custody to the mother, pointing out that she had been the primary caregiver and had a greater ability to nurture the children. She had remained at home to care for the children and was involved in their school-related and recreational activities. To give her full custody would more closely parallel the pre-separation arrangement they had previously had.
The mother was allowed to move with the children to California, with the father being allowed specified summertime and other access.

For the full text of the decision, see:

Montour v. Montour, 1994 CarswellOnt 2086 (Ont. Prov. Div.)

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 www.RussellAlexander.com

Obligations to Pay Child Support Even with Undue Hardship

 

Obligations to Pay Child Support Even with Undue Hardship

In this video we review a court decision from earlier this year, the court confirmed that a father was still obligated to pay support for his two children from a first marriage even though:

1) he no longer had a relationship with them;

2) he had a new family (and two other small children) to support; and

3) the child support obligation would cause him undue hardship, in light of his difficult financial circumstances.

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 www.RussellAlexander.com.

Parents Use Kids as “Pawns”; Court Appoints Them a Separate Lawyer

lawyer robes

Parents Use Kids as “Pawns”; Court Appoints Them a Separate Lawyer

When parents’ disputes over custody and access get particularly ugly, should the kids have their own lawyer appointed?

In an unusual case called Liske v. Liske, the court evidently thought so.

The parents’ separation had been acrimonious, and despite the lapse of seven years they were still in-and-out of court to resolve custody and access issues related to their two children, aged 14 and 12. According to the court, both parents clearly had “unresolved emotional issues” that made them “bitter”; even though they had both remarried they persisted in focusing on their own interests rather than those of the children. A home assessment report confirmed that the parents’ ongoing conflict was impacting the children negatively, and counselling had failed to help them resolve their differences.

Against this factual background, the legal issue was whether in these circumstances the court should appoint an independent counsel for the children, in order to give them separate representation.

The court reflected on the merits of this proposition. It observed that the appointment of a separate lawyer for the children was a matter within the court’s discretion, but was not something that should necessarily be done routinely each time. Indeed, the general rule was that children should not be separately represented, because it would place them in a position where they would have to choose between their parents, which was undesirable. Instead, in order to ascertain the views and best interests of the children, the court could take their evidence, and could receive the opinions of the appointed family counsellor by way of affidavit, all with a view towards allowing it to assess the children’s best interests without the necessity of separate representation.

With that said, the court recognized that in some less common cases it was desirable for the court to appoint separate lawyers for the children, in situations where they had separate interests and points of view from both of their parents.
This was precisely the case here. The loyalties of the children had been oscillating between the mother and the father, and there was evidence that they were being used as pawns “in a custody/access game played by their parents”. The best option for bringing the children’s own best interests to the forefront was to appoint them a separate lawyer. As the court explained:

The parties to this action have both abdicated a leadership role in determining what is best for their children in spite of able counsel and the assistance of the courts. In this situation, the focus of the court must shift from the parents’ view to what is best for the children. What is best for these children, given the long and bitter relationship of their natural parents, is to have their own lawyer who can put forth their individual positions and perhaps impress upon the parties to this action that their mutual conflict in the eyes of the court is only a secondary and minor concern.

The court continued:

…this is not a situation where the children are being asked to choose between their natural parents, but rather a situation where both parents, by their conduct have removed themselves from realistically representing what is best for their children. After seven years parents who were willing to put the best interest of their children first would have worked out an acceptable accommodation. This has not happened and will not happen until the children’s interest are given a dominant role in this litigation. This is best accomplished by the appointment of counsel.

Do you think this solution has broader benefits? Should children have their own legal representation as a matter of course?

For the full text of the decision, see:

Liske v. Liske, [1995] M.J. No. 362, 105 Man.R. (2d) 256

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 www.RussellAlexander.com