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Posts from the ‘Custody’ Category

With Joint and Shared Custody, Can There Still be a “Primary Caregiver”?

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With Joint and Shared Custody, Can There Still be a “Primary Caregiver”?

In 2015, the parents of a 5-year-old boy separated, and agreed to an arrangement involving joint custody, as well as shared parenting.  This agreement was brought before the court for its endorsement in a court order.

In the context of the mother’s bid to relocate the boy to another city (which was the subject of a prior blog a narrow legal question arose:  If there is “joint custody”, together with “shared parenting”, can there still be a “primary caregiver”?

The question is important because under the family law principles relating to mobility – meaning the ability of a parent to move elsewhere with the child – the decisions of the “primary caregiver” are given added weight by a court in evaluating the plan to relocate.  (This principle will be the subject of an upcoming Blog).  But the question is arguably muddy when, as in this case, the parents have agreed to a joint custody and shared parenting model.

The Ontario Court of Appeal cleared up any doubt:  In rejecting the motion judge’s conclusion that in such cases there can no “primary caregiver” in law, the three-member panel of the Court wrote:

We do not agree that the legal status of joint and shared custody forecloses the possibility that one parent can be, for the purposes of a mobility motion, the primary caregiver. On the record before us, it is evident that although the parties have joint and shared custody, the mother is nevertheless the primary caregiver. This conclusion is not only supported by the mother’s evidence, but from the father’s admission on his …affidavit, his answers in cross-examination, and affidavits from two of the father’s aunts.

Accordingly, with the mother designated as having the primary caregiver role, the court gave her reasons for moving the child special consideration, relative to other factors including the father’s objection to the plan.

For the full text of the decision, see:

Porter v. Bryan

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

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


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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

Ultimately the court said:

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

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

For the full text of the decision, see:

MacLeod v Rae

 

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

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

 

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

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

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

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

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

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

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

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

For the full text of the decision, see:

Ralhan v. Singh

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

 

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


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

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

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

 

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

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