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Posts from the ‘Grand Parent Access’ Category

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

You Be the Judge: Should Grandmother Be Included in Kid’s Custody Award? (Part 1)

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You Be the Judge: Should Grandmother Be Included in Kid’s Custody Award? (Part 1)

This is the first in a two-part Blog.

Custody battles are difficult enough when they are fought by the parents, but as I have written in a past Blogs grandparents may also have rights in relation to access (or even custody) of children of separation of divorce.

But even when the grandparents are not themselves asking for access, an interesting question arises: When making a custody determination between the parents, should courts take into account the role, participation and influence of the children’s respective grandparents? And should a grandparent be included in a custody award even over the objection of one of the parents?

This week’s Blog will give my readers a chance to answer that question themselves and play “amateur family lawyer”.
Consider the facts in the recent case of McGlade v Henry, where the young parents – who at age 19 had met online and immediately conceived a child – were fighting for custody of their now four-year-old autistic boy. The boy’s 45-year-old paternal grandmother also joined the court battle; she and her son (i.e. the boy’s father) wanted to share joint custody with the boy’s mother.

The court heard evidence of the significant extent to which the grandmother – who refused to let her son “run from his responsibilities” — had been involved right from the beginning in helping the inexperienced young parents’ raise their child. She gave both parents extensive financial and parenting support, and generously continued to help the boy’s mother even after they separated. (Which split, incidentally, was prompted by the boy’s father sending the mother a break-up text while she was away with the 3-week old boy visiting family. A second, final break-up was instigated by the boy’s father via Facebook message).

Indeed, throughout the four years of the boy’s life, the grandmother played a major role in his upbringing: She provided almost full-time babysitting, and encouraged and paid for the mother to go to school and find suitable employment. She furnished and bought / rented several suitable homes for the mother and boy to live in, paid the utility bills, and purchased groceries and baby supplies. During some periods she also gave the mother a monthly stipend of up to $500 for her expenses, and provided her with a car and cellphone. On one occasion, she gave her a $5,000 lump sum to “treat herself”. She also paid the boy’s school fees, liaised with his teachers, and took care of his medical and other needs.

However, there was routine friction in the relationship between the two women, and at one point the grandmother successfully obtained a court order for temporary custody of the boy. Eventually the parties ended up in court to resolve competing claims between the mother on the one hand, and the grandmother and father on the other.

The mother based her claim for sole custody on the feeling that the grandmother was too involved in the boy’s life, and that the boy’s father had abdicated his child-rearing and decision-making responsibilities about the child to her. As the court described it:

[The mother] believes that her proper role as [the boy’s] mother is inappropriately suppressed by [the grandmother’s] overwhelming directive influence over [the boy’s] life. [The mother] suggests that she needs sole custody or she will always give in to [the grandmother’s] views because she does not have the mental, physical, or financial resources to oppose [the grandmother’s] who always gets her way.

[The mother] wants peace and no arguing. She says she is afraid to make suggestions because an argument will start with [the grandmother]. She believes that joint custody will result in endless court actions and that sole custody is the only way to avoid every issue becoming a dispute with [the mother] …

In short, she believes that neither [the father] nor [the grandmother] support her role as [the boy’s] mother.
In terms of her desire to provide the boy with his primary residence, the court described the mother’s position this way:

[The mother] testified that she understood that it was initially difficult for [the boy] to leave [the grandmother] (with whom he frequently travels internationally, and who, according to [the mother] gives him anything he wants, including his own pony and any toy he points out while in a store) to live with [the mother] (who is a student, working part-time, and supported by Ontario Works), but she persevered in adjusting his expectations.

From a legal perspective, the court was asked to examine the best interests of the boy against the background of various factors and interests, giving rise to two competing scenarios:

• Should the claim for sole custody by the mother – who was his biological parent – trump any competing joint custody claim by anyone else, including the grandmother?

• Or should the grandmother (and notionally, the boy’s father) be part of a joint custody awarded in favour of all three of them?

How do you think the court ruled this case? Should the court consider the grandmother’s intensive involvement as a mature and reliable caregiver for the boy, in making its custody award?

Find out in the next Blog later this week.

For the full text of the decision, see:

McGlade v Henry, 2015 ONSC 3036 (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 www.RussellAlexander.com.

When Ontario Divorced Parents Can’t Agree on Legal Guardians

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I recently came across an interesting post “When Divorced Parents Can’t Agree on Legal Guardians“.

What happens if you are divorced and can’t come to an agreement with your ex-spouse as to who should raise your kids if something happens to you? Should you go ahead and document your own guardianship wishes anyway? And just whose wishes would hold up in court?

These are important questions with no simple answers.  But Cornwall Ontario Lawyer Michele Allinotte  takes a look at these important issues in her blog.  To read Michele’s views and her blog click here.

We will be featuring Michele Allinotte this Friday as a part our interview series with lawyers from across Canada (and beyond).

Children Denied Overseas Trip to Visit Ailing Grandmother; Court Suggests Using Skype Instead

Children Denied Overseas Trip to Visit Ailing Grandmother; Court Suggests Using Skype Instead

In Hamid v. Hamid, the primary issue for the court was whether the mother of the three children of the marriage (who were aged 11, 7, and 6) should be allowed to travel with her to Pakistan to visit their ailing grandmother.  The father, from whom the mother had been separated for two years, adamantly opposed the trip, partly on the basis that Pakistan is too dangerous for the children.

The mother’s evidence was that although the maternal grandmother was not dying, she was clearly ill. Despite being only 69, she had cancer, diabetes, and a cardiac condition.  The grandmother had applied to the Canadian government for a visitor’s visa in 2010, but had been denied on the basis that she was a risk to remain in Canada.    As such, the mother pointed out that the only way the children could visit with their grandmother – whom they had not seen since 2003 – was for them to travel to Pakistan.  In light of her poor health, the planned may be the only opportunity for the children to spend time with her before she dies.

The father, on the other hand, claimed that the chaotic political and social situation in Pakistan made it too dangerous, and that were the children to travel there, they would be exposed to an unwarranted risk of harm.  (He also claimed that the mother was a flight risk, and since Pakistan is not a signatory to the Hague convention, he would have no legal or court-ordered recourse if she decided to remain there.   However, in prior decisions the court has held that the mere fact that a parent applies to travel to a country that is not a signatory to the Hague Convention does not mean that the application should be denied unless there is evidence that the children might possibly be abducted.  There was no such evidence in this case.)

The court examined the father’s safety-based objections to the mother’s travel plans to Pakistan.   He had produced documentation about the current political and social climate in that country, including a recent 10-page travel advisory report from the Canadian government that started:  “OFFICIAL WARNING: Foreign Affairs and International Trade Canada advises against non-essential travel to Pakistan.”  The report described the current security situation as being “fragile” and “unpredictable”, and indicate that the threat of terrorism remained “very high,” and that they had taken place in “public areas, such as hotels, markets, transportation hubs, Western-style fast food outlets, restaurants, and religious sites, including places frequented by foreigners.  Only the best hotels, with stringent security, including metal detectors, should be used; however, no location should be considered free of risks.”

 The report also discussed other dangers such as kidnapping, armed robbery, random shootings, and armed car-jackings. .

To counter these reports, the mother filed evidence that the grandmother in Pakistan had not complained about any of the issues raised by the father, and that she had food, water, electricity, and medical care.   If allowed to go, the mother also committed to adhering to the travel advisories, to avoiding any “hot spots” while in the country, and to returning to Canada immediately if she felt the children were in danger.

While accepting that the mother was sincere and genuine in her desire not to place the children in harm’s way, the court stated:

“However, danger – whether it emanates from crime, terrorist attacks or other sources, by its very nature makes victims of similarly like-minded persons, specifically, persons who would not knowingly place themselves in threatening situations.  It is a truism that no one walks along a street knowing that a terrorist bomb is about to explode nearby; no one drives a car knowing it is about to be carjacked; no one would go to any location knowing in advance, they might be kidnapped, assaulted or terrorised in that location.  Yet people – ultimately victims – do these things unwittingly, and these terrible events do occur.”

While conceding that there was undoubtedly a benefit to allowing the children to see their grandmother – and while admitting that the children may feel let down by the court’s decision – the court emphasized that the potential benefits had to be balanced against the risk of harm to the children.  In this case, the benefits simply did not outweigh the risk.  The mother’s motion was dismissed, although the court indicated that if the climate in Pakistan were to change, the children may eventually be able to travel there to visit.  The court also suggested that in this technologically advanced world, the children could have face-to-face “visits” with the grandmother by way of Skype or footage on DVDs.

For the full-text of the decision, see:

Hamid v. Mahmood, 2012 ONCJ 474  http://canlii.ca/t/fs4nh

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.

New Ontario Bill Fosters Child-Grandparent Relationships

New Ontario Bill Fosters Child-Grandparent Relationships

The Ontario government has just introduced a new Bill that aims to promote the relationship between children and their grandparents, primarily in situations where the child’s parents have separated or divorced.

Bill 67, titled “An Act to amend the Children’s Law Reform Act with respect to the relationship between a child and the child’s grandparents”, received its first reading on April 17, 2012.   If passed, the Bill will amend those provisions in the existing Children’s Law Reform Act (CLRA) which govern custody or access, by prohibiting the parents (or anyone else who is entitled to custody) from creating or maintaining unreasonable barriers to the formation and continuation of a personal relationship between the child and the child’s grandparents.

Simply put, the amendments strive to promote such connections between children and grandparents, by prohibiting parents or others with custody from actively preventing or impeding such relationships.

Also, Bill 67 would affect custody and access applications under the CLRA, by adding the child-grandparent relationship to the list of considerations that must be applied by a court.

Currently, all applications of this type require the court to evaluate the “best interests” of the child, taking into account the child’s needs and circumstances; these include consideration of the love, affection and emotional ties between the child and a list of other people (including the person with custody or access or other family members).  If Bill 67 is passed, this list will now include the child’s grandparents.

Also, the mandated “best interests” test for the court currently includes the following:

• the child’s views and preferences, if they can reasonably be ascertained;

• the length of time the child has lived in a stable home environment;

• the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

• the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

• the permanence and stability of the family unit with which it is proposed that the child will live;

• the ability of each person applying for custody of or access to the child to act as a parent; and

• the relationship by blood or through an adoption order between the child and each person who is a party to the application.

The new law would augment this list, to include consideration of whether the parent applying for custody is willing to facilitate contact with the child’s grandparents.

Admittedly, the Bill is still in the very early stages, and needs to proceed through second and third readings before it could  become law in Ontario.  However, few could argue that it represents anything other than a positive addition to family law in the province.

For a full copy of the proposed Bill, see:

http://www.ontla.on.ca/bills/bills-files/40_Parliament/Session1/b067.pdf