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Posts from the ‘Custody’ Category

Italy Proposes New Law with Hopes to Abolish “Support”

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Italy Proposes New Law with Hopes to Abolish “Support”

The Italian government has recently proposed a Bill to abolish child support and sole custody. The Bill is intended to provide a framework for “perfect co-parenting”, yet critics fear the effects it may have on women’s rights.

The Bill indicates it would enable parents equal time with their children and each parent would pay for the child’s expenses whenever they are in their care. If one of the parents are unable to pay the expenses, then the other parent (who has the financial means) would pay for those expenses directly and not in the form of “support”.

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Critics of the proposed legislation fear that since Italy’s society is made up of less than 50 percent of women who work outside of the home, that this would influence mother’s with unstable employment to feel pressured into remaining in an unhealthy marriage. Nadia Somma, a representative of Demetra, an Italian anti-domestic violence center, stated that the proposed law would “turn back the clock 50 years on women’s rights”.

Due to current government support, this legislation is likely to pass in the Italian Parliament. Experts indicate the enforcement period to range from six to 17 months.

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

 

 

 

Changes to Divorce Act Recommended

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Changes to Divorce Act Recommended

The Canadian Bar Association (CBA), which is the largest professional, nation-wide association for lawyers in Canada, has recently recommended updates to the federal Divorce Act. Put forward by the CBA’s Family Law Section, these suggested changes are aimed at reflecting new realities related to modern-day parenting.
The proposed changes relate to three topics:

• Relocation – Although the test for a court ordering a child to be relocated hinges on the “best interests” of that child, courts are given little guidance on how to apply that test in specific cases. The proposed legislative changes would improve clarity and consistency.

• Child Support in shared parenting situations – The suggested amendments call for the legislation to include a formula for determining child support in shared parenting situations. Currently, the proper approach for courts to apply is complex.

• Updating Divorce Act terminology – The CBA’s proposed changes would see both the Federal Child Support Guidelines and the Divorce Act get updated so that terms such as “custody”, “access” and “best interests of the child” are modernized and replaced with more progressive terms. In particular, the clarity and meaning of the latter term would benefit from incorporating specified factors such as the impact of the child’s cultural, linguistic or spiritual upbringing, as well as the question of whether there is domestic violence in his or her home life.
If for no other reason, from a sheer temporal standpoint this kind of “freshening up” of the Divorce Act is long overdue, since it’s provisions have not been significantly amended for 30 years.

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

“If Only He’d Have Been Nice to Fluffy”

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“If Only He’d Have Been Nice to Fluffy”

Justice Pazaratz, known for the colourful writing in his family litigation rulings, begins his judgment in a particularly acrimonious custody case this way:

If only he’d been nice to Fluffy.

Sometimes in custody trials it’s the little things — literally — that help judges figure out what’s really going on.

Because believe it or not, judges realize that how people present themselves in affidavits and on the witness stand, is not necessarily how they behave when no one is looking.

Sometimes the little things can speak volumes.

In this case, among the “little things” that the judge referred to a stuffed animal that was dear to the child that the warring parents had together.

The back-story was this: The couple had met when they both worked as flight attendants.  When she unexpectedly became pregnant with his child, they agreed that she would move in with him, but she moved out about 6 weeks later because he was inflexible and domineering with her and with her two older twins from another relationship.  The acrimony continued – and indeed was heightened – in the time following separation, when the parents had numerous conflicts over sharing custody and their different approaches to caring for the child.  They now appeared before Justice Pazaratz to determine who should have sole custody of their 3.5-year-old child (and neither of them was willing to compromise with joint custody or parallel parenting).

Justice Pazaratz chronicled numerous incidents between the couple, with the pervasive theme being the intransigence of the father in his dealings with the mother and their child.  The judge wrote:

FLUFFY

But perhaps the most mind-boggling expression of the [father’s] hostility and defiance toward the [mother] relates to Fluffy: a small, white, stuffed animal [the daughter] became attached to when she was about seven months old. The [mother] testified at length about this — and the [father] didn’t deny any of her allegations.

The first incident occurred in March 2015:

  1. [The daughter] was experiencing separation anxiety when she went on visits with the [father].
  2. So the [mother] said she “negotiated” with [the daughter] that she could take Fluffy with her when she went on visits.
  3. When the [father] arrived at the front of her home to pick [the daughter] up for a visit he immediately pulled Fluffy from [the daughter’s] arm, pushed Fluffy into the [mother’s] face, and told her “I have my own stuffed animals.”
  4. The [mother] testified [the daughter] became hysterical, but the [father] simply left with the child. Fluffy stayed behind.

The second incident occurred in April 2015:

  1. The [wife] sent the [husband] an e-mail explaining that [daughter] was still experiencing separation anxiety and that the child would be bringing Fluffy with her because she found the stuffed animal emotionally reassuring.
  2. However, when the [father] attended at the front of her home to pick [the daughter] up, he again removed Fluffy from the child’s arms, this time throwing Fluffy onto the driveway.
  3. Once again [the daughter] became hysterical. The [father] took her for the visit. The [mother] retrieved Fluffy and went back in her house.

The [mother] testified that later in 2015 they went to court and negotiated a resolution of the Fluffy issue. (Pause for a moment to let that sink in: They went to court to negotiate a Fluffy resolution.) The [father] finally agreed that Fluffy could accompany [the daughter] during visits.

But it turned out to be a pyrrhic victory for common sense.

  1. The [father] developed a new routine:
  2. At the beginning of each visit, when he came to pick up [the daughter], she was allowed to bring Fluffy with her.
  3. But as soon as they got to his car, the [father] tossed Fluffy into his trunk and closed it. They then drove away.
  4. To the [mother’s] knowledge, Fluffy remained in the trunk during the entire visit.
  5. At the end of visits, the [father] retrieved Fluffy from his trunk, and handed the doll back to [the daughter].
  6. I suppose technically Fluffy got to come along for the ride.

But things got even worse for Fluffy.

  1. The [mother] testified that after a while, whenever Fluffy came out of the [father’s] trunk, the little stuffed animal smelled terrible. Fluffy gave off a noxious odor, as if dipped in Vicks VapoRub or camphor oil.
  2. The [mother] said on three occasions she had to wash Fluffy because [the daughter] couldn’t possibly play with a toy which had apparently been doused in an offensive and potentially dangerous substance.
  3. The [mother] e-mailed the [father] asking why he was damaging the child’s prized possession.
  4. The [father] accused her of fabricating a complaint.
  5. The [mother] said she finally gave up and stopped sending Fluffy.

 

I have no idea why the [father] allowed Fluffy to turn into such a major and unwinnable competition.

  1. He doesn’t like the [mother]. I get it.

  1. But Fluffy was just….Fluffy.
  2. Just a harmless little toy of no consequence to anyone….except a vulnerable two year old caught in the middle of a bitter custody dispute.
  3. Would it have killed him to just let the child hang on to her toy?
  4. Was it really necessary to make his daughter cry, just to flex his need for control?
  5. In Coe v. Tope, 2014 ONSC 4002 (Ont. S.C.J.) this court offered some very simple advice for situations like this: Stop acting like you hate your ex more than you love your child.

Despite finding that they were both good parents and both loved the child equally, Justice Pazaratz concluded as follows:

The bottom line: Despite unquestioning love, incredible passion, and impressive credentials — the [father] has given us every reason to worry that if he is granted decision making authority, he will not promote the [wife] in [the daughter’s] life. There is a real danger he will shut the mother out.

In contrast, the [mother] has provided overwhelming reassurance that she has always made good and fair decisions for [the daughter], and she will continue to co-parent with the [father].

Family Court Judges don’t have a crystal ball. We can only go on the basis of how parents have behaved so far.

After reviewing all the circumstances in detailed and lengthy reasons, Justice Pazaratz concluded that it was in child’s best interests that mother be granted sole custody.  And – true to form – he added the following admonishment to the father, at the end of the judgment:

POSTSCRIPT

If only he’d been nice to Fluffy.

If only he’d been nice to the [mother].

If only the [father] had remembered the two magic words of custody cases.

”Be nice.”

For the full text of the decision, see:

Chomos v Hamilton

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

If You are Divorced in a Foreign Country, Can a Canadian Court Make Orders Too?

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If You are Divorced in a Foreign Country, Can a Canadian Court Make Orders Too?

The facts in Cheng v. Liu are a little unusual, but the core question was this:

If a couple’s divorce is validly granted outside of Canada by a foreign court, does this preclude a Canadian court from later making any corollary orders – such as rulings on issues of support or custody – arising from that same divorce?

The husband, an engineer, was a Canadian citizen who lived in Canada.  The wife lived in China and had never been to Canada.  They got married in China in 2006 and had a daughter who lived with the wife in China her entire life.  They separated about a year after getting married, in around late 2007 or early 2008.

The wife then covered all the legal bases:  She applied in China for a divorce, and custody of their child.  She also applied in Canadian, under the federal Divorce Act, to ask for a divorce, as well as spousal support, child support, and custody.  Finally, also in Canada under the Ontario Family Law Act, she asked for equalization of net family property.

Meanwhile, the Chinese court granted the wife her divorce and awarded her sole custody of the child.  The wife’s other Ontario-based claims were still pending.

The husband, faced with all of these competing actions requiring his response, asked the Ontario court to suspend (or “stay”) the proceedings so that the entire matter could be determined in China.  This led to several rulings and some procedural wrangling, and ultimately a hearing before the Ontario Court of Appeal for its determination.

Against this complicated background the Ontario Court of Appeal had a simple question to consider:  In light of the Chinese divorce order, could a Canadian court make additional orders relating to child support, spousal support, and equalization of property?

The Court’s conclusion was mixed:  The divorce-related issues were closed for consideration, but the child support issues were still up for an Ontario Family court to rule on.

On the first point – and based on longstanding precedent that considered the provisions of the federal Divorce Act – the law states that once the foreign Chinese court had made a valid divorce order, this removes the authority of the Ontario court to hear and determine corollary matters.  So on the remaining divorce-related issues, the Ontario court had no authority.

However, the situation under the provincial Family Law Act was different:  the Ontario court could still rule on questions relating to child support, since the foreign court in China had not already done so in its divorce order.   The Family Law Act allowed child support claims to be made even after a divorce, and the foreign divorce order had no impact on that.  Indeed, the whole purpose for the Ontario legislation was to ensure that parents provide financial support for their dependent children.  Allowing the Ontario court to continuing to make orders under the Family Law Act even though the Divorce Act provisions had been trumped was actually a harmonious outcome to ensure child support would be covered.

For the full text of the decision, see:

Cheng v. Liu

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

 

Thinking of Doing Some Cyber-Sleuthing? Think Again

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Thinking of Doing Some Cyber-Sleuthing? Think Again

I wrote a recent Blog about the admissibility of surreptitiously-recorded telephone conversations in Family law proceedings.  I have also written several times on how courts approach the admission of Facebook evidence.

Particularly in nasty divorce and custody disputes, it is likely that courts will have to grapple with these kinds of issues regularly, given how easy its become for spouses to try to secretly gather evidence against each other, using a Smartphone, keystroke logger, spyware, etc.

But for the average embattled spouse locked in bitter litigation, how effective is this as an evidence-gathering mechanism for use in Family court?

The answer:  Not very.

Under Canadian law, secretly-gathered computer data, emails, internet history, video, audio and similar evidence is generally not admissible in routine Family law hearings, except in unusual circumstances and only after a court has held a separate mini-hearing, called a voir dire, on the specific issue.  Overall, the odds are not very good that such evidence will be admitted.

Case in point:  In a called T. (T.) v. J.(T.) the court considered a situation where the husband had hacked into his wife’s private email, using the password she had allowed him to have when the marriage was in happier times.   The emails disclosed what was, in the court’s words, “an arguably disturbing exchange between [the wife] and her lawyer, which could be interpreted as evidencing some potential risk or threat to his safety.”  Still, the court found the husband’s email hacking was not only unjustified, it was a clear violation of the wife’s privacy rights.  The court also concluded that the email evidence irrelevant and inadmissible.

Similarly, in a decision in U. (A.J.) v. U. (G.S.) the court considered whether to admit evidence that the husband had collected through the use of spyware he had illegally installed on his former wife’s laptop.  The evidence showed the wife’s activities on internet chat rooms, and established that she had engaged in extra-marital sex.  The court examined the issue in the context of the couple’s dispute over custody and access issues, ultimately concluding that the affair and the online activity was out-of-character for the wife, and was not reflective of her ability to parent the children of the marriage.  The court added that it would be “a rare case” that illegally-obtained evidence should be admitted, and only after the trial judge holds a hearing to determine its admissibility.  The burden was always on the party seeking to enter such evidence to establish “a compelling reason to do so.”

For the full text of the decisions, see:

(A.J.) v. U. (G.S.)

(T.) v. J. (T.)

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

 

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