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Posts from the ‘Custody’ Category

Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

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Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

In a recent case heard by the Ontario Court of Appeal, the issue was whether the parents of a 17-year old girl had any right whatsoever to participate in a court proceeding declaring that she had officially and legally withdrawn from their control as parents.

The girl had gone to court for a “declaration” (which is a formal court statement pronouncing on the existence of a legal state of affairs) that she had withdrawn from parental control.  This had followed a period of extreme acrimony between her and her father, with whom she lived full-time, over numerous matters.  The main precipitating event was the girl’s unilateral decision to finish high-school in Ontario a year early, in order to attend the University of Miami where she had obtained a full scholarship.

The father strongly opposed her plans, and wanted her to stay in Ontario to finish grade 12.  He even began court proceedings in Florida to force the university to disclose the contents of her application file, which impelled the university to ask the girl for proof that she was an independent minor.   Since her father had repeatedly said he would “do everything he can to stop” her from going to Miami, she needed the formal court declaration; without it he could demand that the university withdraw both her application and the scholarship.

The lower court had granted her application without hesitation, adding that “[t]he evidence indicates that [the girl] is a remarkable young woman.”  The court found the parents had no right to be included in or even have notice of the proceedings.

The father appealed, claiming that the mere fact that the court had not allowed or invited both parents to participate – including the full right to object, file evidence, and cross-examine – was grounds enough to overturn the declaration.

The Appeal Court disagreed, but conceded that the parents did indeed have a right to be part of the proceedings.  But there was still no reversible error here, since the required level of parental participation had been met, even though neither mother nor father were ever made official parties to the girl’s application.

The court’s reasoning was technical:  First, it pointed out that under the CLRA the girl had a unilateral stand-alone legal right to withdraw from parental control once she reached age 16.  The court added:

Once a child declares an intention to withdraw from parental control, her independence may – as it was here – be recognized by the police and the schools. There is no formal court process for a child to withdraw. … Unlike jurisdictions such as Quebec which have procedures for “emancipation”, Ontario law does not have a formal process for withdrawing from parental control. The child simply has to take control of the incidents of custody which include decision making regarding residence and education. No court process is required.

However, there was a narrow distinction between withdrawing from parental control, and obtaining a declaration from the court to that effect.  The former was a legal right that the girl could exercise unilaterally; the latter was a request to the court that it exercise its jurisdiction to make a declaration.  Here, the girl had appeared before the court for the second item, the declaration, which triggered consideration of the various legal interests of both the child and the parents.  In this matter, some of those interests were in conflict and called for a balanced inquiry.  Also, the CLRA expressly provides that the parents must be before the court in any application in respect of a child.

In short, and based on the legislation and basic legal principles, the court found that the parents must indeed be parties to their own daughter’s application to withdraw from parental control, but that the court has a broad discretion to direct the extent of that participation.  Here, although the father had not initially been named as a party by the lower court judge, he had been allowed a certain level of involvement nonetheless. He had been allowed to file material and make submissions.

The court also concluded that the merits of the girl’s application justified the order made. The prior judge had fully considered the extensive court record, which included more than a dozen affidavits providing information on which the best interests of the girl could be assessed.  The judge’s findings were supported by the evidence, and there was no procedural unfairness in granting the declaration.

As the Appeal Court stated: “The declaratory relief was not exercised in a vacuum. There was a clear reason for it.”

The father’s appeal was dismissed.

R.G. v. K.G.,

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

 

In Custody/Access Matters, Should the “Voice of the Child” Be in Brief, and in Writing?

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In Custody/Access Matters, Should the “Voice of the Child” Be in Brief, and in Writing?

In even the most routine child custody, access and child protection determinations, courts are obliged to consider a vast array of factors that explore what arrangement will be in the best interests of the child.   Among the key considerations – particularly for an older child – are the child’s express wishes. For example, in the child custody context, the child’s own views will be explored on topics such as which of two separated or divorced parents he or she wishes to live with.

How Courts Currently Hear the “Voice of the Child”

In Ontario, and for all child-related proceedings and for any decision-maker under legislation impacting children, this purposive inquiry is legally-mandated under several statues, including the Katelynn’s Principle Act (Decisions Affecting Children). The fundamental principle is that “a child must always be seen, the child’s voice must be heard, and the child must be listened to and respected.”  This concept is also confirmed and echoed in Article 12 of the United Nations Convention on the Rights of the Child.

As a sort of shorthand in family law matters, this is commonly referred to as the “Voice of the Child”.

Presently, the formal method for identifying the Voice of the Child in child-related matters is through a detailed, labour-intensive, and legislatively-mandated report prepared by the Office of the Children’s Lawyer (OCL) in each case.  The report can be prepared only after the child, and everyone involved in his or her life, is exhaustively interviewed by qualified experts.  The report must also include recommendations on “all matters concerning custody of or access to the child and the child’s support and education” as a means of assisting judges to make a decision as to the child’s best interests.

What’s New?

While still relatively innovative, there is a more efficient option on the family law horizon in Canada.  Called the “Voice of the Child Report” (VCR), it is a briefer, non-OCL-evaluated report written by a social worker, lawyer, or mental health professional.  The VCR simply outlines the child’s wishes in a neutral way, with the sole focus being on the child’s views.

Using a VCR results in a more streamlined, efficient, and cost-effective way to keep the child involved, while still providing the court with a sufficiently fulsome, but non-binding, glimpse into the child’s wishes.  The weight and impact given to the VCR will depend on numerous factors, including the age and maturity of the child, the clarity of his or her wishes, and how long the particular preferences have been held.  Both parents must consent to using a VCR, and they are responsible for paying the cost of its preparation.

Why are VCR’s a Good Option?

A study by two Canadian professors of Law and Social Work, respectively, suggests that the use of VCRs should be widely endorsed by stakeholders in the family law system.   After a pilot project to use VCRs in a handful of Ontario court regions, their study involved interviewing parents, children, judges and lawyers on their experience with using VCRs.  Most parents and professionals found the shorter reports helpful in resolving disputes.  The children also reported that they enjoyed the opportunity to be heard on their custody and access-related wants and preferences.

The authors’ resulting report, titled the Views of the Child Report: The Ontario Pilot Project – Research Findings and Recommendations, suggests that the use of streamlined VCRs has many benefits:  It can avoid the intensive interview and recommendation process, keep costs and delay at a minimum, yet still uncover a child’s true wishes around custody and access.  Plus, separated parents who opt to use VCRs often find themselves encouraged to settle; the VCR’s straightforward statement of the child’s own, unfiltered sentiments can help parents re-focus on the true objectives behind the litigation in which they are often embroiled.

VCRs have not been formally adopted or mandated for use in Ontario family law matters. However, in conjunction with the provincial Attorney General’s office, there are plans afoot to explore whether they should be introduced into the court system, through an amendment to the current legislation.

What are your thoughts?  Are VCRs a good idea for child custody and access matters?

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

 

 

Could Long-Haul Trucker Dad Quit His Job (and Avoid Child Support) Due to Dizziness?

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Could Long-Haul Trucker Dad Quit His Job (and Avoid Child Support) Due to Dizziness?

After separating from the father, the mother had full-time custody of their two 17-year-old children.  The father agreed to pay a set amount of child support, based on his long-distance trucker’s income of $66,000.   However, he was prohibited from communicating with any of them, under the terms of his bail following a guilty plea for assaulting the mother.

About a month after the consent order for child support was made, he claimed that he had experienced a bout of encephalitis, which afflicted him with facial paralysis, dizziness, vertigo, and some mental impairment.   He claimed he was no longer able to work at his job from that day forward; thus with no income, he claimed he was unable to pay child support.

However, he filed no current medical reports with the court to support that contention, other than certain 2-year-old notes and reports that the court found unhelpful.  While it was true that he was on short-term disability right after he quit, he did not provide any evidence as to whether he even applied for long-term disability at all.

The court didn’t buy it.

The father had quit his job for no reason.  His purported illness – which was medically confirmed not to have been a stroke – lasted only a short period of time.  He did not lose his truck driver’s license because of it.

In short:  the father had no valid excuse for not continuing to work and continuing to live up to his financial responsibilities to the children, as he had done before.  He had essentially chosen not to continue working, likely as a bid to avoid his child support obligations entirely.

In light of the fact that he was capable of earning more, the court relied on one of the provisions of the Child Support Guidelines that allowed it to impute income.  As the court explained:

Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed.

Notwithstanding the father’s current state of self-imposed unemployment, the court set the father’s income back at the $66,000 level.  It ordered him to continue paying support at the same level as he had done before he quit, and sorted out the amount of the unpaid arrears as well.

For the full-text of the decision, see:

Armstrong v. Wallace

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

 

 

In Custody Case, Court Avoid Declaring Either Warring Parent the “Winner”

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In Custody Case, Court Avoid Declaring Either Warring Parent the “Winner”

The parents of a now 13-year-old boy and of three other now-adult children had separated very acrimoniously in 2012.  The court describes the end of the relationship this way:

The parties separated at the end of December, 2012. There was a meeting of the family, not including [the 13-year old son], in early January, 2013. It was hoped that that meeting would be civil, and would set the stage for an orderly transition to the parties living separately. Instead, matters went rapidly downhill thereafter. There were allegations of abuse, violence, theft, destruction of property, assaults, and other allegations of a similar nature. The [father] began videotaping interactions between the parties and their children. The police were called on many occasions. The Children’s Aid Society was involved.

After the ill-fated family meeting, the mother had primary care of the boy, while the father had access only on alternating weekends.  The court heard that under this arrangement, the boy was by all accounts thriving in his school and social environments.  He had a strong attachment to both parents, and was equally happy spending time with either of them.  His stated preference was to spend equal time with them both.

Nonetheless, the father applied for sole custody of the boy.  He claimed that the mother had abused all children for years, and indeed two of them and their paternal grandmother gave testimony to confirm that opinion. (And the court noted that two of those three adult children no longer wanted anything to do with their mother.)   Two of the boy’s siblings gave evidence that the boy would be much better off living with his father, and one of them felt that he would be better off not seeing the mother at all.  One sibling was more conciliatory, but also believed that the boy would do better living with the father.

The father’s opinion of the mother was unequivocal:  He claimed she was a “vindictive, destructive, and evil” person.

The court was left to resolve all this competing evidence in a high-conflict situation, to arrive at a workable resolution.  In doing so, it reiterated the guiding principle in such matters:

It is trite that decisions respecting the custody of or access to a child must be made in accordance with the best interests of the child. The interests of the parents are entirely secondary.

The court then added:

Having heard 16 days of evidence, it is quite clear that each party is, for the most part, concerned with his or her interests first and foremost. The hatred of these parties for each other is palpable. Control is of paramount importance.

Both parties have behaved unreasonably.

Against this background, the court concluded there had been no abuse of the boy, and that – when not embroiled in litigation – were good parents and have the boy’s best interests in mind.  Even though the parents lived quite some distance away, and assuming that the father could commit to getting the boy to school, there would be an order for joint custody, with an equal shared / parallel parenting regime involving at least 40 per cent of the boy’s time being spent with each parent.  (And if the father could not commit to the school-day driving then the current arrangement would remain, but with increased access to him).

The court added that it also wanted to avoid making an order for sole custody to one parent or the other, for fear that the chosen parent would consider themselves the “winner” and use such a determination as an “instrument of oppression.”

For the full text of the decision, see:

Hart v. Krayem

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

 

Dad Loses Joint Custody, But Gets Access to Give Son Needed “Down-time”

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Dad Loses Joint Custody, But Gets Access to Give Son Needed “Down-time”

In a case called Newman v. Nicholson, the parents of a 14-year old boy had been subject to a court order, granting them each joint custody.  The boy lived in the primary care of his mother since he was 2 years old.

Over that period, the mother had done most of the work around attending to the boy’s needs:  For example, she facilitated his involvement in highly-competitive Triple-A level hockey, as well as high performance athletic programs, hockey camps and high school sports.

In contrast, the father had been comparatively unreliable in meeting the boy’s needs, and sometimes had trouble getting him to school or sports functions on time.  This was compounded by the fact that his driver’s license had been suspended by the Family Responsibility Office for non-payment of child support.   His income had also dropped for unrelated reasons, and the mother claimed he had increased his consumption of alcohol.  She also had concerns that the boy spent too much time playing video games while in the father’s care.

The mother applied for sole custody (but with generous access to the father), on the basis that there had been a significant change since the order had been made.  She pointed out that while she had taken charge of attending to all the boy’s needs, the father had not even honoured his financial obligations as a parent.  More troubling was the fact that the father deliberately ignored her emails and was unresponsive in his communication with her about the boy’s various existing health issues, some of which required monitoring.

The father wanted the joint custody to remain as-is.

After considering the boy’s best interests, the court concluded that the existing situation was indeed ripe for change, primarily due to the nature of communication between the parents, which the court called “abrasive and contemptuous.”  That, coupled with the father’s historic inability to get the boy school and sports on-time, was justification for removing the father’s entitlement to joint custody and reducing his access time.  Although both parents had a strong bond with the boy, and both wanted a role in parenting him, the mother had played the lead role with respect to his schooling, medical needs, activities registration and scheduling.  The court added that at this point in his life, the boy needed consistency and routine.

However, the father was to continue to play a meaningful role in the boy’s life.  In particular, the court found that the boy’s time with his father was “an opportunity for [him] to play video games and allow him some ‘down time’”.

The court accordingly imposed a schedule for reduced access, which would be increased once the father got his license back.

For the full text of the decision, see:

Newman v. Nicholson

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

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

Grandparents Battle It Out for Custody – Should Kids Stay Put Until After Appeal?

 

Grandparents Battle It Out for Custody – Should Kids Stay Put Until After Appeal?

The mother of two children had died in 2013.  About a year later when the father was no longer able to care for them, he handed the children over to his step-parents (who are nonetheless the children’s paternal grandparents by law).

However the maternal grandparents, who lived in British Columbia, also expressed an interest in caring for the children.   In fact, the maternal grandmother moved temporarily to Ontario in order to maintain as close a relationship with the children as possible, and cared for them on a regular basis, in keeping with several temporary court orders that had been made.

Eventually, the two sets of grandparents ended up in a custody battle for the children.  After a three-day hearing, the court granted custody to the maternal grandparents, and gave the paternal grandparents holiday and extended summer access.

The paternal grandparents decided to appeal that Order.   But since there was only a short period of time between when the Order was released and when the children were to be flown to B.C. to join the maternal grandparents, they asked the court for a stay of proceedings (meaning a suspension of the court Order), until they could launch an appeal and have it heard.

The court considered that application, and pointed out that there was a well-established legal test for granting a stay.  Among other things it involved considering whether the children would suffer irreparable harm if the stay was not granted;  on the flip-side involved considering whether granting or denying the stay would foster the children’s best interests.

Looking at those specific aspects of the test, the court observed that to leave the children in the care of the paternal grandparents would be less disruptive than moving them to B.C. pending the appeal hearing.  The court put it this way:

If a stay is not ordered the children will relocate to British Columbia within days. In the event the [paternal grandparents] are then successful in their appeal, the children would be relocated once again to Ontario. No one has suggested that this would be in their best interests. Indeed I would think this might be potentially quite harmful to them.

In reaching this conclusion, the court considered several other factors, including the stable home life the children were currently enjoying with the paternal grandparents, the close and loving relationship they had with them, and the significant turmoil that the children had already had in their young lives.  The court also noted that this was not a situation where they had been removed from the parental grandparents’ care because they were unable to take care of them.

Ultimately the court said:

There is little harm that could come to the children from remaining in the care of the [paternal grandparents] pending completion of the appeal.

However, the court cautioned that the appeal was to be heard expeditiously, and both sets of grandparents were to share the chare of the children until the appeal was fully resolved.

For the full text of the decision, see:

MacLeod v Rae

 

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 Mom’s New Partner Participate in “Family” Counselling if He’s Subject to a Restraining Order?

 

Can Mom’s New Partner Participate in “Family” Counselling if He’s Subject to a Restraining Order?

The father and mother, now separated, had two children together.  The father, who worked as a taxi driver, had full custody of them and received no child support from the mother.

The mother had a new partner, Mr. V., who had apparently been abusive not just toward her and the children, but towards the father as well.  As the Court put it, the litigation record was “replete with allegations of abuse perpetrated by Mr. V.” against the father, mother and their children.

On two occasions, the father refused to let the mother have access to the children, despite a Court Order requiring him to do so.  In the face of those two incidents, the mother went straight to court and successfully obtained another Order which held the father in contempt.   The Order also included a provision requiring the mother, father, and children to participate in counselling, and – quite unusually — added that Mr. V. was to participate in the counselling as well.  Moreover, the father was ordered to fully co-operate with all recommendations made by the counselor, and in connection with Mr. V’s participation as well.

Among other grounds, the father successfully appealed the stipulation as to counselling, in part.

Firstly, the Appeal Court observed that in requiring the mother’s current (and allegedly abusive) new partner at the counselling, the trial judge had likely not considered the children’s best interests.   But even from a practical standpoint, that term of the Order was untenable because Mr. V. was the subject of a restraining order, which had been folded into the Order that granted the mother access to the children.  That restraining order prohibited Mr. V from being within 500 meters of where the mother was exercising her access rights. The Court found it was an actually an error in law to order counselling that involved Mr. V.  in the face of an order that restrains his ability to be anywhere near the children.

The Court therefore set aside the part of the Order relating to Mr. V’s involvement, and merely directed that the father was ordered to “attend and co-operate with the counselling process.”

In other words:  The Court concluded that it was a bad idea to have the mother’s new boyfriend at the fractured family’s counselling sessions – particularly since he was alleged to be abusive to everyone else attending, and since he was subject to a restraining order. Perhaps not a surprising outcome.

For the full text of the decision, see:

Ralhan v. Singh

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 in Ontario – Introduction to Child Custody


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

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

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