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Posts from the ‘Custody’ Category

Parents Lose Custody for Failing to Respect Teenager’s Wish to Transgender

 

Parents Lose Custody for Failing to Respect Teenager’s Wish to Transgender

An Ohio Court was recently asked rule on who should make medical decisions for a teenage boy who sought hormone treatment to enable him to transgender.

The parents did not consent and sought the court’s authority to stop the treatment. The child was placed in care of Family Services pending the outcome of the hearing.

The parents argued that given the child’s mental state he was not “even close to being able to make such a life-altering decision”.  Medical experts disagreed and submitted that the father’s conduct was harming the child.

The grandparents requested custody and offered to care for the child and were willing to make medical decisions with the child. This proposal was supported by the child’s court appointed guardian.

Judge Sylvia Sieve Hendon ruled and CNN reported that:

The grandparents, rather than parents, will be the ones to help make medical decisions for the child going forward. But before any hormone treatment is allowed, the court ordered, the teen should be evaluated by a psychologist who is not affiliated with the current facility where he is receiving treatment, on “the issue of consistency in the child’s gender presentation, and feelings of non-conformity.”

 

In Ontario, we already have legislation to address this very issue. As we previously reviewed in “Gender Expression” Now Protected for Kids by Law Ontario’s amendments were aimed at:

courts, social workers, and adoption services. It mandates that when providing services or considering the best interests and welfare of a child, these entities must consider “race, ancestry, place of origin, color, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity, and gender expression.”

It also prevents parents from challenging a child’s same-sex orientation, or with identification not with the gender that he or she was born, but rather the opposite one.

This directive gives rise to a corollary assessment as well: Whether a child should be removed from a home where the parents oppose a child’s declaration of his or her homosexuality or choice of “gender”. The principle behind this part of the legislation is that a parent who refuses to recognize a child’s preference in this regard is actually perpetrating abuse; the child’s removal from the home environment and into child protection facilities would prevent further abuse from occurring.

It would appear that Ontario is ahead of the curve by crafting legislation designed to protect the rights of the individual and the best interest of children.

What are your thoughts?

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

A Day in the Life:  Court Uses “Ladder” Metaphor to Get Through to Firefighter Dad

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A Day in the Life:  Court Uses “Ladder” Metaphor to Get Through to Firefighter Dad

In an upcoming blog about an Ontario court decision in which the court was tasked with sorting out a particularly acrimonious, high-conflict separation and divorce between couple.  The result was a written court ruling that took up more than 1,200 paragraphs.

Obviously, the court had quite a lot to say.  And what was especially noteworthy was the court’s attempt to “get through to” the parents in a manner that they will understand.

The court prefaces that unusually-lengthy ruling with the following comments:

In addition, of course, to the monies spent by the parties, there has been an incredible expenditure of community resources in an attempt to address the conflict this family faces.

The financial cost is just one aspect of the damage done to this family.

The emotional cost to the parties, and in particular to the children, is something that cannot be quantified.

This court heard fourteen days of trial.

This court, at the risk of being accused of being delusional or blinded by eternal optimism, has crafted a decision pursuant to which the court is optimistic that the respondent father’s mentality can be changed from one of “war” as it has been described until now, to one in which the objective is changed from “winning” and “destroying” the other parent to one in which the objective is to have an environment pursuant to which the children can be free to love both parents and can freely move back and forth between them willingly, happily and without the need for the intervention of any of the resources earlier referred to.

This court is not naïve and does not expect that that will occur overnight but on the other hand, this court believes that if it did not try to create that situation it would have let these children down and simply “given up” on them. This court is not prepared to do that.

The court’s next step was to comment on the approach taken by each of the parents throughout the protracted litigation, first to castigate the father, and then to laud the mother. About the father, the court used a metaphor that it hoped would resonate with the father, writing:

As will be seen in this judgment, this court has found that the respondent father has engaged in a “war” as two witnesses have indicated he characterized it at the beginning. The respondent of course denies that he said this but his actions speak far louder than any words that he could have uttered.

The respondent is an acting District Fire Chief and therefore the court has found it appropriate to use a word picture involving a ladder, being a piece of equipment associated with firefighting.

This court finds that the respondent has climbed a ladder and reached the top almost realizing his perceived goal. That goal was to have control over the children and to be in a situation where the mother of those children, being a mother whom he chose for them, was totally marginalized. He almost achieved that goal in that the children at their current ages have each expressed that they do not wish at the current time to have any meaningful relationship with their mother, nor to spend time with her on a regular basis.

This court hopes that the respondent father will see, as this court sees so clearly, that the wall that his ladder should have been against, and the wall that hopefully he will climb after he climbs down from this current ladder is one in which at the top of the wall is a situation whereby the children have a healthy relationship with both parents and can freely love each of them without feeling any guilt towards the other. Love is not a finite quantity pursuant to which if you give love to one of your parents you must take it away from the other. In fact, the children can also love the respondent father’s girlfriend as a “stepmother” without having to feel that by doing so they need to thereby not love their biological mother.

In contrast was the mother’s conduct throughout, which the court found was praise-worthy overall:

This court would be remiss if, in its summary of this case, it did not comment on the applicant mother. This court finds, as with any parent, the applicant mother is far from perfect. In fact, some of her actions, likely taken out of fear of losing her children, exacerbated the situation. This court finds that her parenting style is far more structured than that of the respondent father which “played into” his desire to alienate the children from their mother.

Having said that, the applicant mother has been subjected to not only emotionally abusive treatment from the respondent father and those under his “control” but emotionally and even physically abusive behavior from the children. The court does not “blame” the children as, there is an obvious reason why they are behaving in the manner in which they are behaving.

Many, and in fact probably most, mothers even those who deeply love their children would have “thrown in the towel” by now, but the applicant mother did not. That, this court finds, is not only to her credit but will be something that this court anticipates in years to come will be greatly appreciated by her children.

With that preface to the subsequent 1,200 paragraph’s worth of specific rulings designed to resolve the couple’s dispute, the court added – perhaps optimistically – that:

… this court has crafted a decision that it believes is one that could result in a 180° change being made in their lives from one of adversarial conflict between their parents, the extended families, and unfortunately the children themselves and their mother, to one in which they are allowed once again to “be children” and not have to constantly be concerned about the conflict between their parents.

The court’s stated objective is a good one, and it applies with equal pertinence to anyone embroiled in family litigation involving custody and access issues.

For the full text of the decision, see:

M.M.B. (V.) v C.M.V.

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

 

 

 

Money is No Object for Divorcing U.K. Couple

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Money is No Object for Divorcing U.K. Couple

Over the years I have often posted about cases in which a Canadian court invites warring former spouses to reflect on the sheer amount of money they are spending on lawyers and court costs, in waging prolonged battles with each other. [Russ:  there are several of these but here’s just one. All too frequently, the costs of repeatedly going to court – often to dispute relatively trifling legal points – can quickly outstrip the monetary value of what’s being fought over, not to mention the benefit of the overall exercise.

This dubious litigation strategy is certainly not confined to Canadian family law litigants.  As reported in a recent article in the U.K. newspaper known as The Guardian, a separated wealthy British couple have already spent over £2 million (about CDN $3.5 million) slugging it out both in and out of court, all to fight over their £6.6m in family assets (about CDN$11.5 million). This despite the fact that they are only the pre-trial stage of the proceedings, with the trial yet to come.

According to one judge, the two have “completely lost touch with reality,” and noted that the trial itself will cost at least another £200,000 (or CDN$350,000) in lawyers’ fees.

The article reports that the former couple, who ran a company that supplies luxury towels and bathrobes to high-end hotels and spas, had been so single-minded embroiled in their conflict that they ran the risk that there would be no money left for either of them at the end.  At least one judge had admonished them along the way, advising that their litigation campaign was a “scandalous waste of court time.”

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

Was Unplanned Pregnancy Tantamount to “Theft of DNA”?

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Was Unplanned Pregnancy Tantamount to “Theft of DNA”?

An interesting recent case considered a novel legal argument by a 23-year-old man who unexpectedly found himself the father of a child he didn’t plan to have, after a brief relationship with a 38-year-old woman he met a music festival.

The father, an apprentice iron worker, was in an intimate relationship with the mother for several months.  After learning from the mother that she was pregnant, he decided that he did not want to be involved and they ended their relationship before the child was born.  The mother had sole custody, and the father essentially had chosen to have no contact with the child whatsoever.

Nonetheless, the mother brought an action against the father for child support.  He resisted, claiming that under the “strict terms of their sexual engagement,” he made had it clear to the mother that he did not want to become a parent.  Although they did not use condoms or other physical birth control, they engaged in the “withdrawal method” to prevent conception.  He also claims the mother told him she was “medically infertile.”

Essentially the father asked the court to recognize a new civil claim in tort, one that featured a “hostile sexual act” of the theft of the DNA contained in his ejaculate.  The court described the father’s stated position this way:

The father argues that he is not legally obligated to pay child support because the mother engaged in a “premeditated theft of the father’s DNA” during “a hostile sexual act of DNA theft” leading to the birth of the child. According to the father, he was a victim of the theft of his DNA by the mother “to satisfy the [mother’s] motive to bear a child prior to the [mother’s] biological reproductive expiration.”

The mother brought motion for summary judgment, asking for an immediate court order requiring the father to pay child support, and dismissing the father’s claim outright, on the basis that there was no genuine issue requiring a trial.

The court granted the mother’s motion, and ordered the father to pay.  There was simply no legal basis for the father’s attempt to create a new defence against the mother’s child support claim. Not only did the court not recognize the tort of a “hostile sexual act of DNA theft”, but even if it existed it did not relieve him of his legislated obligation under the Ontario Family Law Act to pay child support.  There was no dispute as to the child’s paternity.

The man and woman had engaged in consensual sex, and had not used birth control (except for the unreliable “withdrawal method”, which the court found was actually evidence that the father did not rely on the mother’s own birth control methods, or on her self-proclaimed infertility).  In short, with their decision to have unsafe sex came with inherent risk of unwanted pregnancy, and with it came child support obligations in law.

In assessing the amount of support the father had to pay, the court noted that the father’s income suddenly dropped significantly when the mother started her court application for child support.  He was currently unemployed, was not looking for work, and had provided the court with no persuasive medical or other evidence on why he was not working despite being capable. Under Ontario law, he had an obligation to earn at whatever level he capable of doing so. Based on the undisputed evidence, the father would be able to earn $35, 000 per year, and his support obligation and arrears were calculated accordingly.

For the full text of the decision, see:

M.-A.M. v. J.C.M.

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

 

To Get or Vary Child Support, Do Your Kids Still have to be “Children”?

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To Get or Vary Child Support, Do Your Kids Still have to be “Children”?

An Ontario Court of Appeal decision recently brought to the forefront an interesting little legal point, about the court’s authority to make or change child support orders even after children are too old or too independent.

Under Canadian family law, section 15.1 of the federal Divorce Act allows a court to make an order requiring a parent to pay child support for any “children of the marriage”.   (And this term is defined by the Act to include: 1) a child under the age of majority (who has not otherwise withdrawn from his or her parent’s charge), and 2) a child who is over the age of majority but still dependent.)

Based on a prior ruling decided by the Supreme Court of Canada, a court only has the authority to make a child support order if, at the time of the initial application by the parent, the children fall under this “children of the marriage” definition.  In other words, if the support-recipient parent waits until the children are over the age of majority or no longer dependent, then he or she is out of luck since the court lacks jurisdiction to retrospectively make a child support order at that point.

A recent Ontario Court of Appeal decision called Colucci v. Colucci, the court considered a related question: Can a parent apply to the court to vary a child support order, even after the children stop being “children of the marriage”?

The facts of the case involved a father of two children who had been ordered to pay child support but eventually fell into arrears of more than $175,000.  By that time, both children ceased to be “children of the marriage.”  Faced by the prospect of a significant decline in his income as an unskilled labourer, the father brought a motion to change the child support order retroactively, and have his arrears rescinded on the ground that there had been a change in circumstances.

The Appeal Court reviewed the governing law when an order could be varied, as found s. 17 of the Divorce Act.  It was differently worded than the initial-support provision in section 15.1; the stated test for whether a court had the authority to vary an order was different from the test to make an order in the first place.  The Appeal Court concluded that based on that wording, a court did indeed have jurisdiction to vary an existing order even after the children are no longer dependents. (And from an Ontario family law perspective, it should be noted that this aligns with the court’s jurisdiction under the provincial Family Law Act to vary child support orders retroactively in such circumstances).

Although the Colucci decision does not foretell that every parent’s application to vary child support will succeed (since that must be determined on a case-by-case basis), the law is now abundantly clear that a court had the authority to change orders even after the children no longer fall within the “children of the marriage” definition.

For the full text of the decision, see:

Colucci v. Colucci

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 Grandparents be Sued for Child Support?

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Can Grandparents be Sued for Child Support?

As was reported in the news media recently, two Ontario grandparents have been sued for child support for their granddaughter.

Their upcoming court hearing will determine whether they are obliged to pay $760 a month to the mother of their 10-year-old granddaughter, as well as $47,000 that has accrued since 2013 when their son (who is the father of the girl), died in an accident.

The grandparents resist the mother’s claim for child support, pointing out that – while they may love and care for her as grandparents do – they have no legal obligation to financially support the young girl.

The case is unusual from a legal standpoint, because the grandparents in that case do not have custody of the child, nor do they even live with her. (They do enjoy access time with her every other weekend; the mother will be asking the court to suspend this access if they do not pay the support requested).

In the few previous Canadian cases where support obligations have been imposed on grandparents, there are extenuating circumstances that make the outcome much more understandable and arguably reasonable.

For example, in an Alberta case called Snow v. Snow, the grandparents had taken in their granddaughter when she was 6 years old, after their daughter moved to California and left the girl with them.  When the grandparents separated from each other a few years later, the girl remained with the grandmother who applied for child support from the grandfather.  She claimed he was “in loco parentis”, which is the legal terms that means “standing in the place of a parent”.  The grandfather, in turn, applied for support contributions from the biological parents.

The court ultimately found that the grandfather was indeed in loco parentis:  he had assumed a parental relationship with the child for over 10 years, and had acknowledged treating her like his own daughter.

He was ordered to pay retroactive support of almost $40,000, but was not obliged to pay ongoing child support.    (And for the record, the biological parents of the girl were also ordered to pay both ongoing and retroactive support, with all payments being made directly to the grandmother, who still had custody of the child).

In the Snow case, the grandparents’ obligation to pay child support was driven by the fact that the court found them to be legally standing in the shoes of the child’s parents.  Returning to the Ontario case that is about to be heard, the situation appears to be somewhat different: The child is in the custody of and is being cared for by her biological mother, who is essentially seeking to have the grandparents ordered to make a financial contribution to the cost of the child’s care.

I will be curious to see the outcome of the Ontario case. What are your thoughts?  Should grandparents be forced to pay child support in this kind of circumstance?

For the full text of the decision, see:

Snow v. Snow

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

 

 

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

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