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Posts from the ‘Custody’ Category

Regret is No Excuse for Disobeying Consent Order: Mom Blocks Grandmother’s Access to Kid

Regret is No Excuse for Disobeying Consent Order: Mom Blocks Grandmother’s Access to Kid

In some Family Law cases, one can speculate about the good intentions behind a parent’s actions, even when they end up being contrary to an agreement with the other parent, or to a court order. Still, it behooves the court to enforce its prior orders and agreements, to maintain the semblance of fairness and respect for the judicial process.

This was the situation in a case called Perna v Foss. The mother and father had married only a month before their child was born, and separated 18 months later.   The father eventually agreed to give sole custody to the mother.

When the boy was around 7 years old, the mother agreed to allow the boy’s grandmother (on the father’s side) to have access to him one day a week. In view of the mother’s acquiescence, the court granted a consent order accordingly.

However, the mother stopped facilitating the access altogether when she formed the opinion that the grandmother was “having conversations with [the boy] regarding serious issues” during those visits. She explained her move to block access in texts and Skype conversations with the grandmother, one of which read as follows:

I will consider giving you ur (sic) time back if u can promise me only good times and no conversations w Jackson about moving or living in Dominican Republic. I want the pressure off of him completely.  I never said I wanted you out of his life Sandra.  I just don’t want him having to answer questions about how he showers or what mommy does.  It’s not fair.  If you agree to this we can start visits again.  …

Evidently the two women were unable to come to an understanding; the mother continued to deny access, which prompted the grandmother to bring a motion for a court order finding her in contempt. The mother ignored the motion, and did not appear in court. (Nor had she taken any steps to vary the initial consent order granting the grandmother access in the first place, which would have been the ordinary course to take if she now took issue with it).

The court considered the circumstances, and agreed that the mother should indeed be held in contempt.

She was clearly aware of the consent order, and could not claim to be confused about its interpretation. She freely admitted to disobeying it on more than one occasion, as her texts and Skype sessions showed. In fact, she had announced both her deliberate intent to block the grandmother’s access, and her reasons for doing so.

The court speculated that the mother perhaps regretted having agreed to giving the grandmother access in the first place, but this did not give her justification or excuse for failing to honour her obligations under the consent order. She did not have the right to unilaterally refuse to comply.

In light of the contempt finding, the court refused to hear any further motions by the mothers – including one she had brought recently for permission to remain in the Dominican Republic with the child – until the contempt was purged.

For the full text of the decision, see:

Perna v Foss, 2015 ONSC 5636 (CanLII)

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

 

 

 

 

 

Recent Child Abduction Case – Just One of Many

Recent Child Abduction Case – Just One of Many

You may have read in the newspapers recently about latest development in a custody battle over a 9-year-old girl that has resulted in the mother being arrested and charged with her abduction. It seems that rather than return the girl to her father on December 1 as required, the mother opted to essentially “run and hide”, taking the girl with her in violation of a custody order. After an Amber Alert prompted tips from the public, police found the mother and daughter living in Hamilton.

The child’s father, Mohamed Abdel-Motaleb, is in Canada from Egypt on a visitor’s visa and is seeking custody here after not knowing the daughter’s whereabouts for over a year. He claimed that without his consent, the mother secreted the daughter from Egypt – travelling part of the route by camel – in order to make their way to Canada where her parents live.

The parents have a history of high conflict over the child, and through their lawyers have levelled accusations against each other. The mother’s family and friends have stood by her in support, believing that she was motived by a desire to protect her daughter and avoid a court battle with the father, whom she claimed to fear. The abduction for which she is formally charged took place only one day before a scheduled court date in their ongoing custody dispute.

Canadian courts universally frown on such self-help measures in child custody disputes, even where the abducting parent has the child’s best interests at heart. Sentences can also be stiff: In the most recent decision out of Alberta, a father who had plead guilty to abducting his 7-year-old son and removing him to Lebanon contrary to a custody order was sentenced to 12 months incarceration including 45 days spent in jail after being arrested.

In that case, the abduction had been premeditated, with the father having planned to sell his home and dispose of all his affairs in Canada in anticipation of moving to Lebanon with the boy. He even created a website explaining his reasons for abducting the child.

In response to the father’s unilateral actions, the mother had been forced to fly to Lebanon to try to find her son. This involved her leaving her home and job, spending her savings, max-ing out her credit cards, and withdrawing from her RRSP. While in Lebanon she visited more than 30 different schools to try to find him, and once she did, she was ordered by the court to post a US$50,000 bond in return for getting access.

In imposing sentence, the court considered an earlier B.C. decision in which the accused father spent a total of three years being incarcerated for abducting his own child, in that case through violent means and involving a car chase which endangered not only the child, but the public as well.

As with these Alberta and B.C. cases, the Ontario courts see many similar scenarios. And whle it’s admittedly vital that courts condemn such self-help solutions, and reinforce respect and compliance with legal process and custody orders, it’s not hard to feel compassion for the situation both parents themselves in.

What are your thoughts on child abduction cases like these? Are the penalties too stiff? Too lenient?

For the full text of the decision, see:

R. v. M.E., 2016 ABPC 250 (CanLII)
R. v. C.M.N, 2002 BCCA 76 (CanLII)

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

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

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

Father Punches His Own Dad in the Face at Christmas Gathering; Can Mother Deny Him Access to their Child?

Father Punches His Own Dad in the Face at Christmas Gathering; Can Mother Deny Him Access to their Child?

Here’s a good question: Is a mother entitled to unilaterally deprive the father of his access rights to their child, based on an incident – that she did not witness – in which the father punched the child’s grandfather in the face? Does it matter that she heard the news from the father’s recently-estranged ex-girlfriend?

Before you answer, here are the fuller facts:

The mother and father had a child together, and split up a few years later. The father, who had been dating and living with someone new for about a year, enjoyed unsupervised access to the now 6-year old boy, pursuant to a court order.

Things were going well with the arrangement until December of 2015. That’s when the father, the child, and his new girlfriend attended a Christmas family function hosted by father’s parents (i.e. the child’s grandparents).

The court, describing the recount of the incident given by the girlfriend in her court-filed affidavit, picks up the story:

She states that “the first time I witnessed [the father’s] rage was at his parent’s home”, about a week after Christmas. She states that they were about to sit down for breakfast when the [the father] became enraged because his mother did not prepare a vegan breakfast for him. She alleges he called his mother a “dustbag” and said “I hope you die”. He then went outside to have a cigarette. His brother … went out to calm him down and they started yelling at each other. [The girlfriend] went outside and saw the [father] swinging his fists at [his brother]. His father came out and intervened, and the [father] punched his father in the face.

Fast-forward two months. The father had recently broken up with his girlfriend (now ex-girlfriend), who took it upon herself to text the mother, complaining about the father’s behavior. In particular, the ex-girlfriend warned the mother about the incident at the Christmas family gathering that the mother did not attend.

The ex-girlfriend’s version of events was confirmed in an affidavit by the father’s brother; however the grandfather himself denied that the incident took place or that he was punched in the face.

Shortly after receiving the ex-girlfriend’s text the mother, apparently fearing for the child’s safety, decided of her own initiative that the father should no longer have access to the child, and refused to cooperate with his attempts. (She tried to get a court order without giving notice to the father, but it was rejected). In the following weeks, the father sent her three letters, putting her on notice that she was in breach of the court order. She continued to foil his access, until the father applied to the court to have the mother held in contempt.

The court considered all aspects of this rather unique scenario. By her own admission, the mother had disobeyed the court order, and persisted even after the father complained by letter. Her was motive clearly stemmed from concern over the child’s safety. But the key question was whether her disobedience was legally justified, due to the presence of serious risk of harm to the child.

After reviewing the evidence, the competing versions of the incident, and legal test for contempt, the court wrote:

In my view, the Christmas incident reported by [ex-girlfriend] falls short of demonstrating a serious risk of harm to the child. The child was not directly involved in the incident, and was apparently unaffected by it. It is noteworthy that, according to [the ex-girlfriend], this was “the first time” she was exposed to the [the father’s] “rage” even though they had been a couple since the preceding May. This suggests that this incident was an isolated one, and not part of a continuing course of conduct.

There is nothing about the December incident that gave rise to a situation of serious risk to the child that justified the unilateral action of the [the mother] in choosing to defy the access order. It is significant that the incident had occurred two months before she even became aware of it, and throughout that period she was of the view that access was going well.

In short, the mother’s decision was a gross overreaction to the information she received from the ex-girlfriend. The court found her in contempt.

For the full text of the decision, see:

Houben v Maxwell, 2016 ONSC 2846 (CanLII)

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

Wednesday’s Video Clip: Ontario Custody and Access – Who Is Entitled To The Child?

Wednesday’s Video Clip: Ontario Custody and Access – Who Is Entitled To The Child?

There is a general misconception that when a couple separates, the children must automatically stay with their mother. But in Ontario, the mother and father are equally entitled to custody of the child.

In this video we discuss who is entitled to custody of the child, defacto custody, and mistake parents, often fathers, make regarding custody and the establishment of a status quo. We also explain the difference between custody and access.

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: Whether a Parent has a Right to Move with a Child – The Concept of “Mobility” in Family Law


Wednesday’s Video Clip: Whether a Parent has a Right to Move with a Child – The Concept of “Mobility” in Family Law

The moment that the parents of a child separate, everyone’s life circumstances change immediately: there are usually new living arrangements and a custody and access schedule put in place.

But as time passes, there may be other developments as well; for example the parents may embark on new relationships with new partners, or may change jobs.

The potential impact on any court-ordered support, custody or specific access arrangement, and the effect on each parent’s rights must be assessed and weighed.

In cases where one parent’s new relationships or new jobs require a move to another city or province, the concern is even greater. This is because such scenarios give rise the a legal issue of whether the circumstances and preferences of the parents should be allowed to dictate the child’s living circumstances, whether such moves should be allowed and by whom, and — if so — what happens to the custody and access arrangements that are in place.

In family law, this is known as a “mobility” issue.

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.

When a Judge “Breaks Up” with a Squabbling Couple

judge-with-couple

When a Judge “Breaks Up” with a Squabbling Couple

The scenario was not atypical: The parents of a now four-year-old girl had spent the past several years since their separation making numerous trips to court to resolve various custody and access issues. Historically, these disputes had involved significant issues around custody and access, but lately had included clashes over more minor things like whether the girl was getting regular naps when with the father, and whether continued breastfeeding and co-sleeping with the mother was impacting her relationship with both of them.

Indeed, each parent’s complaints about the other sometimes drifted into the more petty and mundane: The mother, for instance, had complained that when the girl was on overnight visits with her father, she was distracted during their bedtime FaceTime sessions, because she had been allowed to watch cartoons immediately beforehand. In turn, the father had objected that the mother routinely sent his emails to her junk folder unread (which the judge decried as “sheer nonsense” which “must end immediately”).

Against the backdrop of these unresolved matters – and after making orders to specifically address those already before him – the judge essentially opted out of making any further rulings in the case between this particular couple. The judge wrote:

I believe the time has come for me to direct that I will not in future hear matters pertaining to these parties, unless there is some emergent situation and no other judge is available. I say this because I now have a real concern that rather than struggle to reach a fair compromise on issues, these parties, and particularly the Father, will elect to have someone who knows all about them resolve the issue. In a sense, I am a known quantity. I believe the time has come for these parties to face perhaps an unknown quantity, a new judge in this court, if they cannot, including with the help of, for example, a parenting coordinator, reach agreement themselves.
I think having to face a new judge who knows nothing about them will add a strong incentive or impetus to their resolving issues outside court, rather than litigating them before a known judge.

In other words, the judge decided that it was in everyone’s best interests, most especially that of the 4-year-old girl, that he step away from adjudicating on the dispute in order to give another judge a “fresh eye”, and to encourage the parties themselves to settled their differences without court interventions.

Was the judge’s idea a good one? What are your thoughts?

Z.S.R. v. R.S., 2016 BCPC 200 (CanLII)

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

If Custody Switches Every Day, Where Should Kid Attend School?

Mother seeing son off at bus stop

If Custody Switches Every Day, Where Should Kid Attend School?

The parents had joint custody of their 5-year old son, which arrangement featured each of them having equal time with the boy, as well as equal input into decision-making on health, education, religion and extra-curricular activities. They had agreed to a rotating schedule that had the boy’s residence alternate every single day, with weekends alternating on a set schedule.

The problem was that this schedule made it impossible for the boy to attend school in any one place. The parents lived relatively far from each other; the father wanted the boy to attend a school near his home in Richmond Hill; the mother wanted him to attend school near her residence in Toronto. Although by court order any disagreements were to be resolved with the assistance of a parenting co-ordinator, the parents had not been able to reach an agreement on this issue.

Recognizing that the choice should be governed by whatever was in the boy’s best interests, the parents asked the court to impose a solution. In doing so, the court considered the test set out in another case called Askalan v. Taleb, which provided a useful guideline for whenever this issue was to be considered. Among other things, that task primarily involves:

1) Assessing any impact on the child’s stability;

2) Examining how many years the child has attended his or her current school;

3) Considering whether there is any prospect of one of the parents moving in the near future;

4) Considering where the child was born and raised;

5) Assessing whether a move will mean new child care providers or other unsettling features;

6) Examining the decisions that were made by the parents prior to the separation or at the time of separation with respect to schooling; and

7) Considering any problems there may be with the present school.

The court also added that the choice is not to be guided by the proximity of the school to either parent, or whether it is convenient for the child to attend the nearest school. Rather, the decision has to be made on the merits, with consideration of the child’s needs as well. Finally, the court added:

Of paramount consideration is the school that will give the child the best competitive advantage, or provide the greatest confidence and motivation, or that will facilitate the child’s relationship with others, including his parents and classmates, or best promote his all-around development.

The court evaluated these factors in detail, and found overall that although both schools had their advantages and disadvantages, attending the Richmond Hill school proposed by the father would eliminate the need for the boy to wake up two hours earlier each day. This choice was more consistent with the boy’s best interests.

For the full text of the decision, see:

Hamid v. Hamid, 2016 ONSC 5013 (CanLII)

Askalan v. Taleb, 2012 ONSC 4746 (CanLII)

Wilson v. Wilson, 2015 ONSC 479 (CanLII)

Schloegl v. McCroary, 2012 BCSC 1606 (CanLII)

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

Wise Words from an Ontario Judge: A Custody Trial “Speaks Volumes About the Parents”

Custody Battle

Wise Words from an Ontario Judge: A Custody Trial “Speaks Volumes About the Parents”

In a decision from earlier this year called Jackson v. Mayerle, seasoned family court judge Mr. Justice Pazaratz began his judgment with these perceptive and disheartened-sounding comments:

1. Why would we need a 36-day custody trial where the basic facts are pretty straightforward?

a. One child. A delightful eight-year-old girl with minor academic issues but no special needs.

b. She loves both parents equally. She wants to spend as much time as possible with each of them.

c. Both parents are equally capable and dedicated to meeting all her needs.

d. But the parents can’t get along or communicate with one another. Not at all.

2. Not such a tough set of facts, really. Nothing we don’t see in family court every day.

3. So why did we need a 36 day trial?

4. Why did we need 20 witnesses, including teachers, a principal and vice-principal, CAS workers, a family doctor, and a custody/access assessor?

5. Why did parents of modest means choose to impoverish themselves – and their daughter’s future — for a needlessly destructive three-year court battle?

6. For the sake of the child?

7. Not a chance.

8. Custody trials are supposed to be about children. But 36 days – that speaks volumes about the parents.

(And the emphasized words are those of the justice himself).

Indeed, it’s common knowledge that there is no shortage of high-conflict family law disputes in our society, and not merely those that end up in court. Virtually everyone knows someone first-hand – be it a family member, friend or acquaintance – who is embroiled in seemingly-endless and costly divorce or custody litigation. It almost seems to be the rule, rather than the exception these days.

Is Justice Pazaratz right? Is acrimonious child custody litigation more about the parents, i.e. their own egos and latent agendas, rather than the best interests of the child? Is it just a thinly-veiled battle between the parents, in the guise of asserting their respective rights in relation to the care of child?

What are your thoughts?

For the full text of the decision, see:

Jackson v. Mayerle, 2016 ONSC 72 (CanLII)

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

Court Refuses to Sever Couple’s Divorce from Other Still-Disputed Issues

Divorce Issues

Court Refuses to Sever Couple’s Divorce from Other Still-Disputed Issues

When a marriage breaks down, the former couple is left to sort out a great number of issues between them in the short term. These often include matters such as child custody, access (and related scheduling), restrictions on relocating the child, interim financial support (both relating to child support and spousal support), plus decisions relating to their mutual assets, such as who gets temporary possession of the matrimonial home, and who gets possession of any recreational properties, etc.

The list goes on and on.

The question sometimes arises whether it’s possible – or desirable – to isolate or “sever” the divorce judgment itself from all other claims in litigation between the couple, as a means of “speeding up” that part of the process, to let the couple move on with that aspect of their personal lives. This question arises most often where there are a lot of complex and contentious issues that are unlikely to get resolved anytime soon.

In a recent Ontario case, the court made an unusual – though not unheard-of – ruling: it refused to sever the divorce itself from the other disputed matters. This was despite the fact that it was a high-conflict uncoupling; it was also despite the fact that the husband was now in a new relationship and simply wanted to move on with his life.

However, under the Family Law Rules, the court is only authorized to sever the divorce from the other issues where it concludes that: a) neither spouse will be disadvantaged by it; and b) reasonable arrangements have been made for the support of any children of the marriage.

In this case, the children were well-provided for, so that was not an issue. But the court found that the wife would suffer a disadvantage if the divorce were granted now because she would lose the medical benefits to which she was otherwise entitled as a “spouse” under the husband’s current medical plan.

It was true that the husband claimed that the wife would be covered under his group insurance plan nonetheless, and in any case promised to arrange to keep her covered until trial, either way.

But the court found that the husband had not met the legal burden of proving that this was definitely the case: a letter he provided from the medical plan’s benefit specialist did not persuade the court with sufficient certainty. (And the court pointed out that the husband could have easily met that burden by providing it with a copy of the relevant group insurance plan, so that it could assess whether the wife would still meet the definition of “spouse” in the event that they divorced. However – for whatever reason – the husband had chosen not to.)

As it happened, the wife had a number of health-related conditions, which it all the more prejudicial to her if the benefits ceased with the divorce Order. However, the court added that “even if [the wife] was completely healthy, the loss of medical coverage would still be prejudicial and disadvantageous.”

The court accordingly refused to sever the divorce from the other issues.

For the full text of the decision, see:

Shawyer v. Shawyer, 2016 ONSC 830 (CanLII)

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