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Posts from the ‘Court Cases’ Category

Can Court Order be Set Aside Due to Wife’s ADHD?

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Can Court Order be Set Aside Due to Wife’s ADHD?

In a case called Hatuka v. Segal, the couple separated in 2016 and started the process of untangling their financial affairs.  The wife continued to live in the $1.7 million matrimonial home with their two school-aged children.

By early 2017, the husband was having financial challenge:  He could not afford to service the home’s $610,000 mortgage and also carry the costs of a separate residence.   He asked the court to compel a sale of the former matrimonial home.   After two court hearing dates in which wife appeared without counsel and requested an adjournment, the court finally granted the husband’s request and ordered the home sold immediately.

The wife then brought a motion to have the order set aside.  She relied on Rule 25(19) of the Family Law Rules, which allows a court order to be changed in certain circumstances, namely those involving fraud, mistake, or lack of notice.  (And – as was clarified in a recent Blog, a court has recently concluded that – despite its wording – the Rule allows for orders not merely to be “changed”, but to be set aside entirely as well).

The wife – who happened to be a foreign-trained but non-practicing lawyer – claimed that to sell the home now would bring her hardship and distress, since there were no child or spousal support orders yet in place.  Although both spouses filed extensive materials in support of their respective positions, the court noted that the wife’s included a 93-page personal affidavit with 32 exhibits.

In examining the merits of wife’s argument on the motion, the court began by stating:

 The basis upon which [the wife] seeks to apply Rule 25(19) to set aside the Order of March 22, 2017 is unclear. …

[The wife] does not raise any issue of mistake.

[The wife] does not raise any issue of lack of notice or non-attendance.

[The wife’s] affidavit of August 18, 2017 claims that she has suffered litigation disadvantage as a result of the following assertions.  These were the initial focus of her counsel’s submissions on this motion to set aside:

(a)               she has ADHD and learning disabilities;

(b)               she is a recent immigrant with limited English skills;

(c)               she has been largely self-represented, with gaps in representation; and

(d)               she strongly believes that [the husband] has taken advantage of her, while abusing the court process.

The court concluded simply:  “These are not grounds for a Rule 25(19) analysis.”  The court also rejected the wife’s contention that the husband had failed to disclose his full income, and there had accordingly been fraud, adding:

Setting aside an order under Rule 25(19) (a) carries a high threshold.  Fraud within Rule 25(19)(a) does not have a special meaning outside the common law.  A moving party must clearly prove that the other party knowingly or recklessly made a false statement with knowledge of the falsehood, and did so with wrongful intent.

The court dismissed the wife’s motion.

For the full text of the decision, see:

Hatuka v. Segal 

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

 

 

 

Moving with a Child: Mother’s Views Take a Back Seat to “Super ordinate Considerations” Affecting Child

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Moving with a Child: Mother’s Views Take a Back Seat to “Super ordinate Considerations” Affecting Child

In cases where spouses are separated or divorced, the decision of where a parent can live and work is no longer his or her alone.   Rather, the Family Court may become involved, and may be asked to give the parent permission to relocate, particularly if that involves moving with the child to a faraway community or jurisdiction, such that convenient access by the other parent is foreclosed.

Recently I talked about a noteworthy decision in a case called Porter v. Bryan where the Ontario Court of Appeal considered the various interests that must be considered when granting (or denying) permission in such cases.

In identifying those factors, the Court drew from a decision by the Supreme Court of Canada in a landmark case called Gordon v. Goertz, where the country’s top Court said:

…the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.

However, while the custodial parent’s views are entitled to “serious consideration,” and were part of a balancing of the two parents’ competing interests as well, it was actually the child’s best interests that were to be given what the court called “superordinate consideration”, with the entire analysis to be determined using a child-centred perspective.   This was in line with the Court’s own prior ruling in a case called Berry v. Berry as well.

Applying these principles to the fact situation in Porter v. Bryan:   While the mother’s reasons for moving – while entitled to “great respect” – were relevant only to the extent that they related to her ability to meet the needs of her son.   The overall focus was to remain – at all times – on what was in the best interests of the child.

For the full text of the decisions, see:

Berry v. Berry

Porter v. Bryan

Gordon v. Goertz

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

With Joint and Shared Custody, Can There Still be a “Primary Caregiver”?

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With Joint and Shared Custody, Can There Still be a “Primary Caregiver”?

In 2015, the parents of a 5-year-old boy separated, and agreed to an arrangement involving joint custody, as well as shared parenting.  This agreement was brought before the court for its endorsement in a court order.

In the context of the mother’s bid to relocate the boy to another city (which was the subject of a prior blog a narrow legal question arose:  If there is “joint custody”, together with “shared parenting”, can there still be a “primary caregiver”?

The question is important because under the family law principles relating to mobility – meaning the ability of a parent to move elsewhere with the child – the decisions of the “primary caregiver” are given added weight by a court in evaluating the plan to relocate.  (This principle will be the subject of an upcoming Blog).  But the question is arguably muddy when, as in this case, the parents have agreed to a joint custody and shared parenting model.

The Ontario Court of Appeal cleared up any doubt:  In rejecting the motion judge’s conclusion that in such cases there can no “primary caregiver” in law, the three-member panel of the Court wrote:

We do not agree that the legal status of joint and shared custody forecloses the possibility that one parent can be, for the purposes of a mobility motion, the primary caregiver. On the record before us, it is evident that although the parties have joint and shared custody, the mother is nevertheless the primary caregiver. This conclusion is not only supported by the mother’s evidence, but from the father’s admission on his …affidavit, his answers in cross-examination, and affidavits from two of the father’s aunts.

Accordingly, with the mother designated as having the primary caregiver role, the court gave her reasons for moving the child special consideration, relative to other factors including the father’s objection to the plan.

For the full text of the decision, see:

Porter v. Bryan

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

Court Upholds Separation Agreement as Being “In Substantial Compliance” with the Law

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Court Upholds Separation Agreement as Being “In Substantial Compliance” with the Law

Do you have a two-decades-old separation agreement that you are trying to have overturned?  Then the recent Ontario Court of Appeal decision in Smith v. Smith might be of interest to you.

The facts were these:  Before getting married, and just as they were about to move in together, the husband and wife signed a cohabitation agreement, in which the wife gave up any claim to spousal support.   The husband had previously had a prior relationship end badly, and was eager not to have history repeat itself.

When they split 18 years (and two kids) later, the wife claimed spousal support nonetheless, but the trial judge upheld the terms of the separation agreement and dismissed her claim.

She brought an appeal, claiming that the trial judge had erred.  She wanted the agreement to release her spousal support overturned, since she claimed it did not conform to the provisions of the federal Divorce Act – whether viewed from the time it was signed, or now.

The Appeal Court took a closer look at the situation, including the wife’s assertion that the trial judge had overlooked certain facts, such as:

  • The alleged power imbalance between her and the husband;
  • The lack of any discussion about spousal support; and
  • The fact that she had no independent legal advice when she signed the agreement (though she admitted having the chance to obtain it at the time).

The Appeal Court rejected these arguments.  It pointed out that when tasked with reviewing a separation agreement purporting to release spousal support, a court’s job involved two steps:  to first consider the circumstances at the time it was reached, and then to look at the substance to see whether it complied at the time with the federal Divorce Act.

During the first step, the court pointed to specific findings of fact that the trial judge had made, namely:

  • The wife knew the husband wanted a cohabitation agreement, and they had discussed it before she received the draft prepared by his lawyer.
  • She skimmed the agreement, read some parts, and did not read others.
  • She had a full six weeks to obtain independent legal advice, but – by her own admission – chose not to do so.
  • At the time she signed the agreement, she though it was fair. There was no fraud, coercion, or duress.

As for the second step, the Court found the agreement to be in “substantial compliance” with the Divorce Act. More importantly, in light of all the circumstances including the economic disadvantages suffered by each spouse because of their 18-year marriage, the wife would not be entitled to spousal support even if the separation agreement did not exist.

The Court affirmed the trial judge’s conclusions, dismissed the appeal, and confirmed the validity of the agreement.

For the full text of the decision, see:

Smith v. Smith

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

Oops! How Should a Family Court Decision be Corrected?

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Oops! How Should a Family Court Decision be Corrected?

In Gray v. Gray, the husband in a matrimonial dispute was faced with a “worst-case” scenario:  The trial, which had been scheduled on the first day of work in a new job, had gone ahead without him.

The husband, who had Multiple Sclerosis, had sent a friend in his place that day, to explain his absence to the court.   With this medical condition, work was hard for him to find, and it seems that just the night before, he had been hired for a new job in construction that started the next day.  He decided that he could not risk compromising his new position, and sent his friend to court in his place.

But the judge decided that the husband’s new job was not a sufficient excuse, and proceeded with the trial without him. The trial judge essentially approached the matter as being “on default,” accepted the mother’s evidence in full, and essentially found in her favour on all issues.

This prompted the husband to launch an appeal, based on the fact that the order had been made in his absence.  But under Ontario Family Law, the procedural route for doing so was unclear.  He could either:  1) to bring a motion to the same Family Court, to “set aside” its own prior trial decision; or 2) to launch an appeal to the Court of Appeal.

Perhaps to “hedge his bets” the husband did both.   The mother, who resisted the appeal, claimed that the proper course was for the husband to first bring a motion, and – if unsuccessful – launch an appeal only as a second step.

This scenario sparked an interesting procedural issue that ended up before the Ontario Court of Appeal, which had to decide which of the two routes was the appropriate one.  The determination hinged on the wording of Rule 25(19)(e) of the Family Law Rules, which allows Family Court to “change” a prior decision that had been made in error, which included situations where it was made even though one of the parties was not in attendance due “for a reason satisfactory to a court”.

The Court of Appeal looked closely at the wording of the Rule, the history behind it, and the broader Family Law context in which it operates.  Although the word “change” was not defined to include “set aside”, an expansive interpretation of the provision “promotes the underlying philosophy, scheme, and purpose of the Family Law Rules.”  That interpretation required the husband to first proceed by a motion, and was the most effective one way for the trial court to correct orders that fell within its ambit.

The Appeal Court accordingly ordered the husband’s appeal de-listed, until his motion to set the order aside could be decided in the Family Court.  If – and only if – that motion was dismissed, he could bring a formal appeal before the appellate court.

For the full text of the decision, see:

Gray v. Gray

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

Court Strikes Family Law Firm’s $72,500 “Premium” as Being a Contingency Fee

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Court Strikes Family Law Firm’s $72,500 “Premium” as Being a Contingency Fee

Most of you will be familiar with “contingency fees”, meaning the fees a client agrees to pay a lawyer only if the lawyer is successful in the litigation for which he or she is hired.   They are most often used in personal injury matters, with the lawyer’s fee being calculated as a percentage of the amount recovered for the client.

But what you may not know is that in Ontario Family Law matters, contingency fee arrangements are prohibited outright. And in a recent decision, the court “undid” an arguably creative approach by a Toronto-area Family Law firm, finding it was a prohibited contingency fee by another name.

In Jackson v. Stephen Durbin and Associates, the husband was involved in a contentious custody battle with his wife over their 6-year-old daughter.   Under the retainer he signed with the law firm chosen to represent him, the husband agreed to pay the lawyers an hourly rate for working on his case, but “with a daily counsel fee for court or tribunal appearances at ten-fold (solicitor’s) hourly rate and an increase in fees in the event of a positive result achieved (“results achieved fee”)”.

About two years into the litigation process, the husband had depleted the retainer funds and began to accrue arrears with the law firm.  After several accommodations and re-negotiations, the husband still owed the firm its fees totaling $132,500.

He challenged the law firm’s overall bill, especially the “results achieved fee” of almost $72,500, which had been rendered on a separate invoice.   He claimed this was tantamount to a contingency fee agreement in a Family Law matter, which is clearly prohibited by section 28.1(3) of the Solicitors Act.

After reviewing several prior cases on this point, the court agreed. The Act’s wording describes a contingency fee agreement as being one that provides that the remuneration paid to the lawyer for legal fees is contingent “in whole or in part” on the successful disposition or completion of the matter.  The retainer in question stipulated an increase in the event of a “positive result achieved”.  As the court put it:

The logical interpretation of that agreement is that the “results achieved fee” is only chargeable if a successful result is achieved.  I find that the language of the retainer agreement combined with the way the results achieved fee was charged (by way of a separate account), confirms the firm’s intention that the fee was contingent on the successful disposition or completion of the matter in respect of which services were provided.  As such, the results achieved fee charged by the respondent to the applicant is a contingency fee defined by the Solicitor Act and is a prohibited charge.

In short, the “results achieved fee” was merely a contingency fee arrangement in a creative wrapper.  The court accordingly ordered the law firm to refund the almost $72,5000 “premium” that the husband had been charged.

For the full text of the decision, see:

Jackson v. Stephen Durbin and Associates

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

If the Wife Goes to Stay with Her Mother – Does the “Clock” on their Relationship Start Over?

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If the Wife Goes to Stay with Her Mother – Does the “Clock” on their Relationship Start Over?

In Whalen-Byrne v. Byrne, the issue for the family court seemed simple enough: It was to determine the precise duration of the former couple’s relationship, which in turn would drive the duration of spousal support the husband had been adjudged to owe the wife.

And the beginning and end dates were uncontentious:  both husband and wife agreed that they began living together in 1993, and separated in 2010, which on a straightforward calculation was a span of 17 years.

But the problem was that at one point – from October 1996 to March 1997 – the wife moved out of the matrimonial home and went to stay with her mother.    After this brief separation they reconciled, and went on to get married a few years later.

The court was therefore left to determine what effect this separation had on the duration of their union.  A trial court had pegged it to be 13 years, on the basis that the separation essentially “restarted the clock” on their relationship, and that it really only commenced to run after they reconciled.  The trial judge explained it this way:

It appears that following the [wife] moving in with her mother the parties continued to be open to the possibility of continuing a relationship; however, both parties were taking steps to put distance between themselves (i.e. cessation of cohabitation and pursuit of relationships with other persons other than the other party). The most reasonable interpretation is that the parties intended to be separate from one another subject, at best, to the possibility of resumption of cohabitation. I find therefore that the period of cohabitation for consideration in respect of the [wife’s] claim for spousal support commences March 1997 and concludes with separation on April 10, 2010 for a period of thirteen years.

The wife appealed this ruling, and the Court of Appeal agreed with her reasoning.

In determining the length of cohabitation, the trial judge had been incorrect to “reset” it at the reconciliation point.  Instead, the facts showed that even when the wife went to live with her mother, the couple never formally separated; they merely had what the court called an “interim separation” that included “the possibility of resumption of cohabitation.”  In drawing this conclusion, the court considered the following evidence:

  • They lived apart for only a brief 5-month period;
  • They did not separate their finances;
  • The husband continued to support he wife financially, including allowing her to use a credit card in his name;
  • The wife took only a small suitcase of clothes with her, and no furniture;
  • Although the wife went on a few dates with another man, she was not involved in another relationship;
  • In December 1996, the husband proposed marriage to the wife with a ring and in front of their children, to which she replied “not yet”; and,
  • By February 1997 the parties were discussing marriage.

The Appeal Court concluded that for determining the duration of the husband’s spousal support obligation, the correct period of cohabitation was 16 years and 10 months, less 5 months for the brief separation, for a total of about 16.5 years.

The Court recalculated the wife’s support entitlement accordingly, and determined that she was entitled to spousal support from the husband that would last 14 years from the agreed date of their separation in 2010.

For the full text of the decision, see:

Whalen-Byrne v. Byrne

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

Mother’s Bid to Relocate Child – Was it Just a Pretext to Join New Romantic Partner?

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Mother’s Bid to Relocate Child – Was it Just a Pretext to Join New Romantic Partner?

The parents of a 5-year old boy had separated in 2015, and had a court-approved agreement as to joint custody and shared parenting.  The mother now wanted to relocate with her son from Cochrane, Ontario to Thunder Bay where she had multiple job offers waiting.  She had recently quit her job as a prison transport officer in Cochrane, which did not allow her to properly fulfill her childcare responsibilities. As the court explained:

…. [H]er schedule was unpredictable; sometimes working out of town, sometimes working overtime, sometimes both, and never knowing until the last minute. This would have impaired her ability to care for her son – not knowing in advance whether she would be called in to work in the morning before he went to school, or whether she would be home in time to pick him up again – but her employer temporarily accommodated her with a schedule that avoided unpredictable deployment. Eventually, however, her employer withdrew this accommodation. After exhausting her vacation time and sick leave, the mother resigned her position. Prior to her resignation, her employer invited her to apply for another position in Cochrane with a more parenting-friendly schedule. She was successful, but the employer subsequently had to revoke the offer.

The mother said the move to Thunder Bay was necessary to remain financially viable and provide for her son, and that as the son’s primary caregiver, her decisions about where to live and work out to be given considerable weight.

The father objected to the mother’s plan.  For one thing, it would strip him of the chance to influence his son.   For another, he claimed the mother’s alleged need to move was merely a pretext to be with her new romantic partner, who also lived in Thunder Bay.   He also questioned her lack of ability to find new work in Cochrane, and felt that – since she had quit her job – her current state of financial hardship was self-imposed.

The mother’s bid to move had been rejected earlier by a motion judge, who discounted the allegation that the ostensible need for the move was a pretext.  However, the judge did conclude that both parents’ views had equal weight, and that the resolution called for a simple balancing of pros and cons between Cochrane and Thunder Bay, from the perspective of how the boy might benefit. In the end, the motion judge concluded that the mother should be able to find suitable work in Cochrane if she tried.

The Appeal Court saw things differently, and granted the mother’s appeal.

First of all, the motion judge had erred in not characterizing the mother as the primary caregiver, and in not giving her particular reasons for moving “serious consideration.”  Also, the judge was wrong in deciding that the mother’s financial circumstances were not self-imposed; they were brought on by the employer’s withdrawal of prior accommodation of her childcare responsibilities.  Nor was there any basis for the judge to conclude that the mother could likely find work in Cochrane – in fact the evidence showed otherwise.

The Appeal Court explained:

There is, in our view, a valid and compelling parenting-based reason for the move: it is necessary to enable the primary caregiver to remain financially viable while providing care for the child. The mother has done all she can be expected to do to secure employment in Cochrane. It has not worked out, and there is no good reason for her and her son to live in poverty when she has secured employment in Thunder Bay that will allow her both to parent her son and to provide economically for him.

The court also said it was “encouraged” in this regard by the fact that the mother had offered to provide air travel to Cochrane for the child, which was one of her employment benefits at one of the Thunder Bay jobs.  She also offered to accommodate the father’s work schedule as a forest firefighter when he was deployed across Canada.

The court granted the mother’s appeal, allowing her to move with the child to Thunder Bay, and ordered a new access regime, with the parents working out an acceptable access schedule between them.

For the full text of the decision, see:

Porter v. Bryan

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

Couple’s Use of Support Set-Off Calculations Costs Husband His $15,000 Tax Credit

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Use of Support Set-Off Calculations Costs Husband His $15,000 Tax Credit

The husband and wife separated in 2011.  Based on their respective yearly incomes, they amicably resolved their issues as to child support by way of an agreement and consent order that was filed with the court.   They reached an agreement on child support by using a software program which, as the court put it, “introduce[d] various offsetting inputs and devise[d] a final unilateral payment from one spouse to the other.”

The outcome of the calculations was that the husband owed a single payment to the wife, who acknowledged that he was not required to pay further support for a specified time-period.   On this income tax return for the year, the husband then went ahead and claimed non-refundable child tax credits of almost $15,000 in respect of their two children.

As the court explained:

All of the usual stressful, difficult and emotional issues for this couple relating to child custody, financial support and raising a family within the constraints of marriage breakdown were resolved in a laudatory, sensible and agreeable fashion. [The husband] testified all issues settled amicably. Lawyers were involved to prepare all documents, undertake court proceedings and ensure all details complied with the parties’ wishes and the law. All seemed to unfold accordingly until the Minister’s reassessment disallowing the 2012 dependent deductions. Understandably, [the husband’s] child support commitment was predicated upon his use of the dependent deductions to reduce his taxable income.

The problem was that the Income Tax Act provision under which the husband had purported to claim that tax credit, namely s. 118(5.1), was an exception to the general rule in another section of the Act that disallows a support-paying person from claiming a tax deduction for dependents in certain stipulated instances.  Under the wording of that latter provision, the loss or non-use of the dependent deduction could be prevented only where both parents factually pay to the other an amount for child support.

In this case, since the spouses had essentially used a set-off procedure to come up with a single payment by the husband to the wife, there was no such payment by each of them separately, as the provision required.

Unfortunately, this meant that the Minister of National Revenue disallowed the $15,000 the husband purported to claim under s. 118(5.1) of the Act.  Because the husband was the only spouse to pay “a support amount”, the Minister concluded, he did not fall within the exception in s. 118(5.1) and was not eligible.

The husband appealed the Minister’s decision, but was unsuccessful.   The court pointed out that the case law precedent was uniform in its interpretation of the Act, and that the fact that the couple had used a set-off mechanism in the course of calculating their child support obligations to each other did not transform the respective and distinct values they used into “a support amount” as that term is used in the Act’s provision.  The Act, as worded, did not accommodate for the “expeditious use of a computer software program, the culmination of which is a unilateral payment of a support amount by only one parent to the other.”

Despite this outcome arguably based on technicalities, the court said it had “no alternative but to dismiss” the husband’s appeal, “however sympathetic it may be.”

For the full text of the decision, see:

Harder v. The Queen

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

 

 

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

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

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

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

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

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

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

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

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

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

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

For the full-text of the decision, see:

H.S. v. The Private Academy

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