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Posts from the ‘Family Responsibility Office, FRO’ Category

Varying Child Support – How Long is Too Long to Wait

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Varying Child Support – How Long is Too Long to Wait ?

In this case, the mother of a child – whose finances had taken a downturn for a few years – narrowly missed being deemed too late to have her child support obligations reduced accordingly.

The child’s father agreed to have custody when he and the mother split up in 2007. At that time the mother was ordered to pay him $211 per month in child support, based on income that the court had to guess was in the range of $25,000 per year.

Three years later, in 2010, the mother brought an application to vary that order, to have the support reduced in line with her lower-income during those subsequent years. (And it must be noted that she was in arrears under the original order at the time of her application).

The mother explained that her circumstanced had changed: she had held a variety of jobs and had been fired from at least two of them because the Family Responsibility Office was taking enforcement measures against her salary. She was in the process of trying to build a photography business with her new boyfriend, but it was faltering and was in fact operating at a loss.

The mother therefore asked the court for a support adjustment, to bring it in line with her $18,000 income for 2007, and her $0 income for both 2009 and 2010, when the photography business was losing money. At the same time she asked the court for an after-the-fact extension of the time for her to file her variation application. (The child’s father did not object to the mother’s application in this regard, and filed no material to refute the mother’s figures.)

The mother was largely successful on her application, though the court refused to vary her support obligation for 2007. However, it agreed to reduce her support liability to $157 per month for 2008, $40 per month for 2009, and $28 for 2010. For the years 2011 and 2012 she was relieved of child support obligations entirely. The child turned 18 in late 2012, so child support after that time would cease in any event.

Although the court commented on her 3-year delay, it concluded that the mother – who was unrepresented – had not intended to let the matter drag on; rather, she was unaware of the correct deadlines for doing so, and unsure of the proper documents to file.

More importantly, the court found that the significant reductions in the mother’s income were a “material change in circumstances” under the law, and were of the type that warranted a corresponding reduction in her child support obligations.

What’s the lesson to be learned? Don’t delay in bringing your variation application! And get a lawyer, so that you know your rights!

For the full text of the decision, see:

Stirling v. Willrich, 2013 ONSC 2003 http://canlii.ca/t/fwx5s

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 Russell Alexander.com

Ticket to Space, Anyone? Court Orders Sale of Space Flight Tickets to Satisfy Support Arrears

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Ticket to Space, Anyone? Court Orders Sale of Space Flight Tickets to Satisfy Support Arrears

Family law cases come in all shapes and sizes. A decision from a few years ago called Gibson v. Gibson caught my eye recently. It begins:

Peter Gibson feared financial ruin. So he put money out of his wife, Melanie’s, reach. Then he bought a ticket for a flight into space. Cost: $218,700.

Peter feared financial ruin. So he started spending on himself. Then he took a trip to Arizona, trips around the world and a trip to Las Vegas. Cost: $100,000.00.


Theirs was a lavish lifestyle that an income of over $1 million could not support. Much of this four week trial focused on exorbitant spending by both Peter and Melanie. Allegations were made of hidden bank accounts, dissipation of assets, fraud.

While unusual in its details, this case illustrates the types of challenges that courts face: Whether it involves a family of substantial means or one with more modest budgets, the courts must examine the financial circumstances of the parties leading up to and after separation, including the mis-management and squandering of funds. The court does so as part-and-parcel of its role in making determinations in connection with child and spousal support issues upon divorce.

To help the spouses meet their obligations and untangle themselves financially, the court will use a large arsenal of tools at its disposal; primary among them is to make Orders to achieve an appropriate allocation of income and assets so that child and spousal support obligations can be satisfied. To do this, the court may:

• assess income (both actual and potential, in the case of deliberate under-employment by a spouse)

• consider the effect that any change in circumstances may have on income levels (for example, where one of the spouses has lost his or her job)

• consider the ability by any children of the marriage to contribute to their own support

• trace funds and examine inappropriate / hidden spending

• order the sale of existing assets

• examining in minute detail both the needs and the spending habits of the parties

In the case of Gibson v. Gibson, the court clearly had its work cut out for it. Despite both parties enjoying a lavish lifestyle (which description the court said was an “understatement”), the court concluded that “both Melanie and Peter have issues with financial control and restraint.”

In particular, the husband professed an inability to meet his spousal and child support obligations, and had racked up significant amount of arrears. Part of the various courts’ role in the case was therefore to make detailed Orders to assist him to arrange his financial affairs so that those obligations could be me. For example:

In his endorsement, Nelson J. found that Peter’s issue was not an income problem but rather a cash flow problem. To remedy this, the court suggested that Peter sell his ticket to space. Peter did so. On January 26, 2010, Peter received $175,712.00 from the sale of his ticket. Of this, $70,000 was paid to FRO [Family Responsibility Office], reducing the arrears of support to $39,619.49.

Not many of us have Tickets to Space to sell, but all separating and divorcing couples have the duty to structure their financial affairs so that their obligations will be met. One way or the other, they will find themselves legally forced to by a court.

For the full text of the decision, see:

Gibson v. Gibson, 2011 ONSC 4406 (CanLII)   http://canlii.ca/t/fmf26

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 Russell Alexander.com

Common Questions About Child Support


 

Wednesday’s Video Clip: Common Questions About Child Support

In this video, family lawyer Russell Alexander discusses common questions lawyers are asked about child support, including undue hardship, reducing support, information required, and when support ends

Wednesday’s Video Clip: How Long Does Child Support Continue?

 

Wednesday’s Video Clip: How Long Does Child Support Continue?

In this video, family lawyer Russell Alexander discusses how long child support continues and when a court, or parents, should consider stopping or terminating child support payments.

Top 5 Tips for Dealing with the Family Responsibility Office

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Top 5 Tips for Dealing with the Family Responsibility Office

A while ago I wrote about the role of the provincial Family Responsibility Office (FRO) More About The Family Responsibility Office, Some Common Problems Addressed.  (For those who aren’t aware: In Ontario, all child support orders are automatically filed with the FRO, which operates under legislation giving it an arsenal of mechanisms by which to encourage and enforce timely payment of support on the part of the paying parent.)

If you are such a payor pursuant to a court-issued Support Order, here are five tips for dealing with the FRO:

1. Always keep the FRO updated on address changes.

Otherwise, you may miss out on receiving the various noticed that the FRO is required by law to give you. These may include a warning that the enforcement mechanisms that can be levied against you are about to be stepped up – for example a notice that your driver’s license is about to be suspended.

2. Keep the FRO apprised of your employment situation.

If you have lost your job, have been laid off work, or have had your income reduced due to disability or a reduction of overtime, then the FRO should be made aware. In such situations your next step may be to obtain a variation of the filed child support order that triggers the FRO’s involvement in the first place, which will in turn affect the FRO’s role and mandate in the enforcement process.

3. Don’t ignore anything you have received from the FRO.

Many of the processes involving the FRO allow for only a few days for you to respond; the FRO may quickly escalate the remedies available to assist with collection and you don’t want to be surprised by any of them. The FRO’s available avenues for encouraging your compliance and payment can include: suspending your driver’s license or passport, a garnishee of your wages (via a “Support Deduction Order” sent to your employer), filing writs or liens against your property, seizing your income tax refunds and HST rebates, seizing your bank accounts and – last but not least – imposing jail time of up to 180 days.

4. Document everything.

This includes not only your correspondence with the FRO, but also the paper trail of any support payments that you have made. Payments to the FRO can be made by way of internet banking or telephone banking and may be the easiest to document; payments by cheque or money order are more cumbersome to track. But regardless of the method, make sure to designate the FRO case number on any payment that you make.

5. Always make the mandated support payments if you can.

As mentioned, the FRO has a wide arsenal of options to deal with delays or non-payment, including jail time if necessary. Naturally, these shorter-term consequences should be avoided if at all possible. But there can be longer-term drawbacks as well: arrears in child support payments will show up negatively on your credit bureau report, which can affect you for years to come.

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 http://www.russellalexander.com/practice/family-responsibility-office-fro-and-default-hearings/

So what do you think?  Do you have any tips or comments for dealing with FRO?

Ontario Divorce: Does The Age of The Child Affect and Child Support in Ontario. Wednesday’s Video Clip


 

Ontario Divorce: Does The Age of The Child Affect and Child Support in Ontario. Wednesday’s Video Clip

In this video, Shelley, a Law Clerk with Russell Alexander Family Lawyers, discusses how and when the age of the child could affect child support.  Income considerations, age of the child and needs of the child should be considered.

Wednesday’s Video Clip: 4 Ways To Enforce Child and Spousal Support Orders in Ontario

 
Wednesday’s Video Clip: 4 Ways To Enforce Child and Spousal Support Orders in Ontario

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are several points about the enforcement of such orders or agreements that are noteworthy, this video reviews some important points to consider:

1. Filing and deduction is automatic.

If the obligation to pay support arises through a court order, these are automatically filed with the Ontario government’s Family Responsibility Office ( or “FRO”). The role of the FRO is to process child and spousal support orders and to provide enforcement support for recipients through various means. The court will also make a “support deduction order” which is filed with the FRO, which directs the paying spouse’s employer to deduct specified support amounts from the paying spouse’s regular pay, and to send those amounts directly to the FRO.

2. Other support agreements filed voluntarily.

In cases where the support obligation comes not from a court order but rather under a domestic contract (such as a separation agreement, cohabitation agreement, or paternity agreement), the support payments can be enforced privately, or if necessary they can still be processed through the FRO. For this to occur, the contract must first be filed with the court, and then filed with the FRO.

3. Enforcement of support payments.

In cases where the paying spouse has not been making the required child or spousal support payments, or has not been making them on time or in full, then the recipient spouse can take legal action to recover the money owed. Potential avenues of individual recourse include having the paying spouse’s wages or bank account garnished, seizing his or her RRSP, or registering the support order as charge or filing a writ on his or her home. The recipient spouse can also request a hearing before a court to obtain an order for payment from the paying spouse, failing which, he or she may be sent to jail. All of these steps can also be taken by the FRO on behalf of a recipient spouse, if the obligation to pay arises pursuant to a court order or if a domestic agreement has been filed with the FRO.

4. Additional enforcement mechanisms through the FRO.

In addition to the list of legal remedies above, the FRO has certain other avenues of recourse and powers available to it, including:

• forcing public officials or individuals to product any records containing information about the paying spouse’s employment and financial circumstances;

• deducting at source any money owed by the federal government to the paying spouse (for example, income tax refunds and/or Employment Insurance benefits);

• suspending the paying spouse’s driver’s license;

• reporting the paying spouse’s default to a credit bureau; and

• taking steps with the paying spouse’s employer to achieve court-ordered enforcement of the support deduction order that has been imposed

We hope you have found this video helpful.  If you require further information about enforcing support payments please give us a call or visit our website at www.russellalexander.com

Parent as “Nothing More Than a Wallet”

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Parent as “Nothing More Than a Wallet”

A while ago, I highlighted some cases in  our blog Do You Have an Obligation to Support a Child Who Wants Nothing to Do With You?  which examined whether a parent’s obligation to support a child can be affected by the fact that the relationship between parent and child is strained or irreparably broken.

These kinds of cases are glibly referred to as being of the “parent as wallet” variety; a recent case called Veneman v. Veneman is one of them. The question before the court was whether the father should be obliged to continuing paying child support in connection with the post-secondary education expenses of the couple’s 19-year-old daughter. The wrinkle in the story was that the daughter – despite the father’s efforts – wanted nothing to do with him. The father felt that he was entitled to be relieved of his usual support obligation in the circumstances.

In evaluating the father’s application, the court considered an earlier Ontario case, called Nitkin v. Nitkin, which was similar. The court in that case summed up the father’s position as follows:

Mr. Nitkin feels that in the absence of any just cause for terminating her relationship with him, he is viewed as nothing more than “a wallet” or cash machine by Brenna and her mother. He submits that Mrs. Nitkin-Siegal’s alienating influences have resulted in Brenna rejecting him. No court has found Mr. Nitkin’s conduct to be deserving of this result.

The court in Nitkin had found that the daughter was a “mature young lady” of 18 who had nonetheless unilaterally terminated the relationship with her father without any apparent reason. This played into the court’s evaluation of whether the daughter was still a “child of the marriage”, and by extension whether the father still had support obligations toward her. After taking into account the daughter’s current efforts and future plans for university education, and her financial dependence, the court found that she was still a “child of the marriage” requiring the father’s support, despite the fact that her relationship with him had been unilaterally severed.

Returning to the more recent Veneman case, the court took arrived at the same conclusion, but for different reasons. First of all, the court attributed appropriate blame on both parties for the estrangement of the 19-year old daughter as well as their other younger child. The court wrote:

I certainly appreciate and understand the view advanced by [the father’s lawyers]. Once a child has become an adult, and he or she chooses to have no relationship whatsoever with a parent, one can easily sympathize with the parent’s view that it is unfair to require any further financial contribution to the child’s welfare. As noted by Professor James McLeod in an annotation to Filice v. Lepore … “A parent has a right to be more than a wallet.”

In this case, there can be no question that Mr. Veneman is nothing more than a wallet. While the allocation of fault or blame for situations of this sort is difficult, at best, it seems to me that in this case both parents must assume a share of the blame.

While Ms. Veneman denied it in her evidence before me, I think it is clear that she allowed her view of Mr. Veneman’s new companion to rub off on her children. When she became apprised of the relationship, she knew nothing more about Ms. Gore than the fact that she had met Mr. Veneman over the internet and that she had children of her own. This was hardly enough reason to refer to her as an “Internet Whore”. Many people seeking companionship meet over the internet, and some solid relationships, including this one, develop. It is clear from Ms. Veneman’s email communications that she did not want Ms. Gore associating with her children. I have no doubt that the children understood this, and responded accordingly. They knew nothing more about Ms. Gore than their mother did.

Mr. Veneman’s attempts to foster a meeting between his children and Ms. Gore were admittedly clumsy and insensitive. It is not unusual for young girls to undergo emotional turmoil when their father develops a new relationship. He should have handled the situation better. However, hundreds of new relationships are developed every year. Almost invariably, children adapt to the new circumstances, even if their parents’ attempts to introduce new partners are handled in less than ideal ways.

In the final analysis, the rupture of the relationship here is entirely irrational, and could and should have been avoided.

I have no doubt that in due course, perhaps later in their adulthood, the children will come to wonder why they hate their father so much. They will have no good answer. Their father did not beat them, or ignore them. Indeed, he made superhuman efforts to reach out to them.

Nonetheless, the court observed that the father had consented to paying support despite the parent-child rift — and indeed at a time when that situation of estrangement was already in place. There was no legal reason to change that obligation now. However, the court did add that the daughter must contribute more than a nominal amount towards her own education; specifically she was ordered to pay 75% of the approximately $10,000 she herself earned in part-time employment.

For the full text of the decisions, see:

Veneman v. Veneman, 2012 ONSC 6324  http://canlii.ca/t/ftss5

Nitkin v. Nitkin, 2006 CanLII 23153 (Ont. S.C.J.)  http://canlii.ca/t/1nwn7

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 www.RussellAlexander.com.

Top 10 Familyllb’s Blogs of 2012

top 10

Top 10 Familyllb’s Blogs of 2012

Well it has been another busy year for us as our blog has been viewed over 150, 000 times and we have received over 500 comments.  Thank you to everyone for your continued comments and support.

So in keeping with the year in review theme, here are our Top 10 Blog posting for 2012.

Number 10: New Proof of Parentage Requirements When Travelling with Children

This Blog examined why it’s important for parents to know that effective December 1, 2011, there are new proof-of-parentage requires for applications relating to travel by a child. These requirements are aimed at protecting Canadian children against child abduction, and designed to further enhance the security of the Canadian passport system.

New “proof of parentage” documentation required.

After December 1, 2011, for standard passport applications respecting children under the age of 16, the change involves a new requirement:  every application must be accompanied by “proof of parentage” documentation.

Number 9: Top Five Lottery Cases in Family Law

Lottery wins are a once-in-the-lifetime stroke of good fortune.   (At the least, they certainly happen less frequently than anyone hopes).  But in the case of married or common-law couples who buy the winning ticket, the joy of having a monetary windfall can quickly become tainted if they later separate or divorce, because issues often arises as to who gets the money, or how it is to be split.

So, in the unlikely event that these become relevant to our readers, this Blog reviewed the top five interesting lottery cases from across Canada.

Number 8: Ontario’s Bill 133 & Regulation for Pension Division to Commence January 2012

This Blog reviewed Ontario’s Attorney General Chris Bentley report that starting January 1, 2012, the pension division and valuation provisions in the Family Statute Law Amendment Act, 2009 will come into force. The changes are designed to make the family justice system more affordable, faster, simpler and less confrontational

Number 7: Top 5 Web Resources for Kids of Divorcing Parents

One of the most regrettable and usually unavoidable aspects of separation and divorce is the impact it can have on the children of the marriage. Even the most amicable separation-and-divorce scenarios are rife with challenges for all the parties, not the least of which are endured by the children who are the most emotionally ill-equipped to handle them. Parents may have difficulty knowing how best to support and accommodate their children’s needs during the difficult transitional period that inevitably accompanies the change in family lifestyle.

This Blog provided a list of the “Top 5” websites aimed at helping children through this phase.

Number 6: Wife Plans to Sue Ontario Family Responsibility Office for Husband’s Suicide

In the past few years, the government of Ontario implemented legislative amendments allowing drivers’ cars to be impounded and / or their licenses to be suspended in cases where they have failed to pay child support. This Blog took a look at how, according to a London, Ontario woman, this impact has directly caused the suicide of her common-law husband.

Number 5: 5 Ways to Make Sure Your Separation Agreement is Valid

Separation agreements can be a useful means by which separating spouses can take first steps toward unwinding their financial and family-related affairs by way of a mutual agreement. This Blog provided aa list of the top five ways to ensure that a separation agreement is valid and enforceable in Ontario.

Number 4: Top 5 Things to Know About the Canada Child Tax Benefit

 Soon it will be time to start thinking about individual income taxes, and all of the various components that go into providing the federal government with a financial “snapshot” for the past year.

For separated or divorcing spouses with children, one of those components is the Canada Child Tax Benefit (CCTB).

The Canada Revenue Agency (CRA) administers the CCTB, which is a monthly, tax-free benefit received on behalf of a child under the age of 18. Its purpose is to assist families with child-raising costs, and its value depends on family income, among other things.

This Blog examined 5 things to keep in mind about the CCTB.

Number 3: Top 10 Things to Know About Children and Passports

In this Blog we examined the relatively recent changes to children and the need to travel with passports.

Since June 1, 2009 all Canadians, including children travelling to the U.S., must present a document that is compliant with the Western Hemisphere Travel Initiative (WHTI). For entry into the U.S., this includes a Canadian passport or a NEXUS card when available.

Number 2: Top 5 Questions About Adultery and Divorce in Ontario

It seems that celebrity gossip tabloids will never have a shortage of topics to cover, as long as there are stories about extramarital affairs by successful, high-profile celebrities. Most recently, it has been alleged that Arnold Schwartzenegger fathered a child with the housekeeper employed in the home he shared with his wife of 25 years; prior to that, Tiger Woods has admitted to having sexual trysts with at least 14 women outside of his relatively short marriage.

In this blog we examine the role of adultery and Divorce in Ontario.

Number 1: 10 Things You Should Know About Child Support

This continues to be a very popular post and is evidence of the ongoing need that parents have to for information about child support.  This blog examines how all dependent children have a legal right to be financially supported by their parents. When parents live together with their children, they support the children together. Parents who do not live together often have an arrangement in which a child lives most of the time with one parent. That parent is said to have custody of the child. This arrangement can be written in a separation agreement or court order (sometimes called legal custody), or may occur without a written agreement or court order (sometimes called “de facto” custody). Either way, the parent with custody has the main responsibility for the day-to-day care of the child and has most of the ordinary expenses of raising the child. The other parent should help with those expenses by paying money to the parent with custody. This is called child support.

There you have it.  Our Top 10 Blogs for 2012.  Thank you  again to everyone who have visited our Blog and all your continued comments and support.

No “Get Out of Jail Free” Card – What NOT to do When You Owe Child Support

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No “Get Out of Jail Free” Card – What NOT to do When You Owe Child Support

A recent Ontario decision illustrates that courts will get tough with payor spouses who allow themselves to accumulate significant child support arrears by putting their other interests in priority to their support obligations.

The facts were rather typical: Commencing in January of 2007, the father had been ordered to pay $300 in child support. However, over time he fell into significant arrears, to the point where he owed almost $10,000.

Faced with the father’s ongoing default in payment, the Family Responsibility Office (FRO) started proceedings against him. A total of 14 court appearances were required in order to try to deal with the matter. Eventually, the father agreed to pay $500 per month, comprised of the original $300 in ongoing support, and an additional $200 to be paid toward the outstanding arrears. As part of this order, the court decreed that for each missed payment, the father would spend three days in jail.

Once again, however, the father missed payments, but then in August 2011 – faced with what would otherwise be his imminent arrest – he paid off what now totalled $12,000 in arrears.

After that time, the father made no further voluntary payments at all. (It was conceded, however, that at one point he had lost his job as a chef and had been receiving Employment Insurance benefits. Some of the EI benefits had been subject to garnishment by the FRO.)

However, even after the father found another job, he was not particularly forthcoming with his payments. After more pressure from the FRO, he indicated that he was content to have his wages garnished at the 50% rate, and was willing to consent to paying $800 per month going-forward, with $300 in monthly ongoing support and $500 allocated towards the arrears.

Nonetheless, the FRO was not satisfied with this plan, as there was concern that the father would not follow up with or follow through on it. The FRO pointed out that in August of 2011, for example, when he was on the brink of being incarcerated, the father had agreed to have his wages garnished at 50%, but then he sat back and did nothing, waiting instead until the FRO took additional steps against him.

The FRO therefore applied to the court for a default order, requiring that required the father to pay arrears, and which allowed the FRO permission to apply for any future arrest warrants without giving the father notice (as was normally a requirement).

The court granted the FRO’s request.

It considered the father’s chequered history of defaulting on his support payments, the fact that he had been recalcitrant for years (i.e. since the original order in 2007), and the fact that he had been given many prior chances. The court wrote:

Having regard to the history of this matter, and the significant length of time over which the payor has had the opportunity to organize his financial affairs, the time has come for him to treat this obligation with the importance it deserves.

The payor is no longer entitled to put his own interests ahead of those who are entitled to child support.

It would appear that the tasks he is required to perform in his work are not so onerous that he could not give realistic consideration to supplementing his income through other forms of employment.

Furthermore, the payor may have to prevail upon other family members in an effort to assist him in paying the arrears. He can then make private arrangements as to an appropriate repayment schedule. Someone other than the Family Responsibility Office must now be either the banker or broker.

The father was ordered by the court to pay arrears of almost $10,000 by a specified date, failing which a warrant of committal could be issued to incarcerate him for 60 days. The order for $300 per month in ongoing support, with a 3-day jail term for each missed payment, was allowed to stand.

Ontario (Director, Family Responsibility Office) v. McLaughlin (2012), 2012 ONCJ 334  http://canlii.ca/t/frlmw

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 www.RussellAlexander.com.