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Posts from the ‘Court Procedure’ 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

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

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

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

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

In this video we discuss 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

Can the Court Decide to Hear New Evidence After-the-Fact?

Can the Court Decide to Hear New Evidence After-the-Fact?

A recent Ontario decision raises the interesting procedural issue of whether a court has the authority to admit new evidence even after it has concluded hearing a Family Law matter.

The litigation involved competing motions by a father and a daughter. The daughter asked for the court to order the father to pay temporary child support, and the father resisted, asking the court for certain orders to be made in his favour instead. The court heard the motions, but reserved judgment on both.

Then, a week later, the father returned to court to try and provide new evidence that the company he controlled had been ordered into receivership – presumably to show that he could not afford to pay the daughter temporary support she sought. His evidence took the form of the copy of an order by another judge, in another court, simply declaring the father’s company was receivership; there was no other detail provided.

The court first had to consider the broader legal question whether it had the authority to allow the father to bring new evidence, even after the original motions had been heard. If so, then the court was still obliged to consider whether that authority should be exercised respecting the father’s new evidence in this particular case.

On that last point, the court summarized the task at hand:

The deeper issue that I am called upon to consider is whether [the father] has provided sufficient evidence to show that the motions should be reopened, and if so, on what terms?

After reviewing basic judicial principles, the court ultimately found that it did have the authority to re-open the argument, but that the father had not met the test to justify the court doing so in this case.

The court’s threshold determination was whether it had fulfilled its official function on the earlier motions; if so, the door was closed for any further evidence to be received. The legal term is “functus officio”, which is defined as “having discharged one’s duty” or as “a task performed.”

As it happened, in this case the judge had not yet issued a ruling, let alone granted any order that had formally been entered with the court. So the judge was not “functus officio” in this particular instance.

Next, the court also examined the Family Law Rules, to see whether it might prohibit the father’s evidence from being tendered at this relatively late stage. The purpose of the Rules, the court found, was to deal with cases in a just and fair manner; they included provisions specifically built-in allowing for flexibility and fairness. In the right circumstances, the Rules did allow further evidence to be filed even after the argument of the motion had been concluded.

With that said, the judge’s discretion was to be exercised “sparingly and with the greatest care”, although a “somewhat relaxed approach” could be applied in cases where the matter had been heard, but a decision had not yet been released. This was one of those cases.

Still, the admission of evidence was to be the exception, rather than the rule. Otherwise, it would be tantamount to inviting the parties to first hear argument and judicial comment on the evidence thus far, and then put together further evidence tailored to buttress their case.

In this case the father had not met the requisite test. As the court said:

While the test is more relaxed than it would be after a decision had been released the admission of that evidence is far from automatic. Here [the father] fails to meet even a relaxed test for admission.

The father had neither direct evidence nor any submissions to explain why the late-breaking receivership order, relating to a company that he held a 60% interest in, might affect either of the motions the court had already heard. He merely proffered a copy of a prior court order putting his company into receivership, but without explaining how it might affect his income.

The court said:

While the bar … is a low one, [the father’s] materials fail to clear even it.

The court declined to grant the order, and dismissed the father’s motion to introduce new evidence.

For the full text of the decision, see:

Glegg v. Glegg, 2017 ONCJ 102 (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: How are Decisions Made About Custody in Ontario?


Wednesday’s Video Clip: How are Decisions Made About Custody in Ontario?

In this law video we talk about how decisions are made about custody of children.

Often, deciding on a parenting arrangement after a marriage is over is not easy. Under the Divorce Act one or both parents may have custody of the children.

If you cannot agree on a parenting arrangement, the divorce law sets out some basic principles that a judge must use when making decisions about children.

• The best interests of the children come first.
• Children should have as much contact as possible with both parents so long as this is in the children’s best interests.
• The past behaviour of a parent cannot be taken into consideration by the court unless that behaviour reflects on the person’s ability to act as a parent.
When deciding on the best interests of the child, the judge will take into account a number of factors including:
• Care arrangements before the separation. (Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extracurricular activities? Who dealt with the child’s school and teachers?)
• The parent-child relationship and bonding.
• Parenting abilities.
• The parents’ mental, physical and emotional health.
• The parents’ and the child’s schedules.
• Support systems (for example, help and involvement from grandparents and other close relatives).
• Sibling issues. Generally, brothers and sisters remain together, but under some circumstances it may be necessary to consider separating them.
• The child’s wishes. (There is no magic age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child’s wishes as the child matures. An older teenager’s wishes will often be decisive.)

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

Serving Family Documents via Facebook?

Serving Family Documents via Facebook?

An otherwise-unremarkable Ontario family law decision called Filion v. Ives has an interesting feature: The court allowed one of the parties to use Facebook to serve court documents on the other.

In that case, the husband had used the universally-known social media platform to serve court documents on the wife as part of their acrimonious divorce proceedings. He chose this method because she had proven very difficult to locate in the past, in connection with numerous motions and settlement conferences over the years. She was now claiming that she was out of funds to hire a lawyer and had failed to show up at a scheduled hearing and costs were ordered against her.

On a motion to get clarification on the $28,000 that she had been ordered to pay the husband, who happened to be a corporate/commercial, real estate, and estates lawyer, served the documents on the wife by Facebook message and also by e-mail to give her notice of an upcoming hearing. The court described the circumstances that gave rise to this necessity as follows:

Service of the motion documents was effected on the [wife] on December 17, 2014 by Facebook message and by email. This is irregular. [The husband’s lawyer] explained that the [wife] would not cooperate to reveal her location and employers and family members could not or would not give her location. A process server had tried to serve the [wife] at the last address that the court had on file for her, but was unable to. A neighbour said that she had not been seen in six to seven months. She was thought to be in Sturgeon Falls or North Bay. However, the process server knew someone who the [wife] had responded to the Facebook messages of, indicating that she lived in Toronto, but not saying exactly where. [The husband’s lawyer’s] office had used the same Facebook address to message the [wife]. Also, there had been no response to the email to say that it had not gone through. [The husband’s lawyer] expressed confidence that service had been effected in this way.

The court noted that in limited circumstances, the Ontario Rules of Civil Procedure do allow for alternatives to service in circumstances where more traditional methods were ineffective/impractical. Here, the court was satisfied that the husband’s motion documents had come to the wife’s attention – or that they would have come to her attention had she not deliberately and actively evaded service.   To cover off the legal bases, the court made an order specifically endorsing the service of the husband’s documents in this way.

Although cases like this are still relatively novel, they suggest that Ontario courts might become increasingly comfortable with allowing this type of technology-based work-around in limited instances. Incidentally, another civil Small Claims Court case in which this approach was approved of is Eastview Properties Inc. v Wayne Mohamed.

For the full text of these decisions, see:

Filion v. Ives, 2015 ONSC 270

Eastview Properties Inc. v Wayne Mohamed, 2014 CanLII 52397 (ON SCSM)

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

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Can a Kid’s Foster Parent Participate in Child Protection Proceedings?

Can a Kid’s Foster Parent Participate in Child Protection Proceedings?

The Ontario Court of Appeal has considered an interesting question relating to child protection proceedings: Whether a child’s foster parent is entitled to be granted status by the court, so that he or she can participate in the case.

In A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell the child was made a ward of children’s aid organization named Valoris pour enfants et adultes de Prescott-Russell (the “Society”) when he was two months old. At seven months of age, he was placed with a “foster-to-adopt” mother (the “F-A Mother”), who was assessed as a potential adoptee and with whom the child was placed with the ultimate goal of adoption.

Meanwhile, the Society filed an application asking that the child be made a Crown ward with the biological parents being stripped of their access rights.   The Crown supported the F-A Mother becoming the child’s adoptive parent. (Although the biological parents were given the chance to participate in a trial concerning wardship, they did not do so).

However, in 2016 an aunt and her partner expressed an intention to adopt the child, and the Society decided to support that plan instead. The aunt asked the court to be allowed to be added as parties, and to be granted a temporary order to care for the child.

The question arose as to whether the F-A Mother could be added as a party to those proceedings. A motion judge held that she could; the Divisional Court later overturned that decision. The matter was sent to be heard by a third court – the Ontario Court of Appeal – where the outcome was reversed again.

First of all, the Court confirmed that procedurally, the provincial Child and Family Services Act allows for non-parties, including foster parents, to be added to a child protection proceeding in the right circumstances. The legislatively-prescribed considerations which would favour not granting her such status, such as any procedural delay that might be added, were not of concern here.

Next, in allowing the F-A Mother’s participation, the Court explained that she was in the best position to inform the court on a Crown wardship hearing as to what the child’s needs and best interests involved. It was those best interests of the child, not the rights of the family or the foster parents, that is determinative. The F-A Mother also had a legal interest in the proceeding, especially since the Society had changed its mind about supporting her adoption bid in favour of backing up the child’s aunt. If the F-A Mother was not involved in the proceedings, her chance to adopt the child might be foreclosed.

Ultimately, the Appeal Court found that the Divisional Court in our view erred in interfering in the motion judge’s reasonable exercise of discretion, and it allowed the appeal, and granted the F-A mother status as a party to the child protection proceedings about the child.

For the full text of the decision, see:

A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 (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

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