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Posts from the ‘Hague Convention’ Category

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

Travel Outside Canada: Will My Child Custody Arrangement Be Recognized?

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Travel Outside Canada: Will My Child Custody Arrangement Be Recognized?

Recently I wrote about how to apply for a Canadian Passport for a child. But with the prospect of Canadian children travelling abroad, separated or divorced parents may have concerns over what might happen if their child custody issues flare up while they are at their destinations or even en route. Here are some things to think about:

First Things First

• Long before you even decide to travel with your child out of Canada, make sure your specific custody agreement or separation/divorce order allows it. This may involve some consultation with a lawyer, but it will avoid last-minute disputes or disappointments after you have already incurred the expense of travel.

• Make sure you have a Letter or Permission (sometimes called a Letter of Consent), signed by the other parent, which gives you his or her permission to enter or leave the country with the child. Although it is not a legal requirement in Canada, it can make travel much easier because some foreign immigration authorities may ask to see it before allowing you to enter or leave.

• Ensure that you have proper identification for both you and your child. This includes not only a valid Passport for each of you, but also evidence of residency, and documents to provide evidence of your custodial rights as well.

• Consult with the Government of Canada website [link to https://travel.gc.ca/] that provide various Guides for parents considering travel with their children.

Could My Canada-Issued Custody Order Come into Question?

Be prepared for the possibility that your Canadian child custody order – though validly issued and fully enforceable in Canada – may not automatically be recognized in the country to which you are travelling. This may result in difficulties when leaving the country.

In countries where you think this may become an issue, you may want to confirm your own status or that of your child with the country’s Embassy or Consulate in Canada, before you travel.

What if a Custody Issue Arises While We Are Away?

Ideally, you and your child will be travelling with either the written consent of the other parent, or with proof of court-ordered entitlement. However, in some unfortunate situations, a custody dispute might arise while you and your child are abroad.

In that case, you can contact the Case Management Division of Global Affairs Canada. These officials can provide you with information about:

• The legal system in which you are travelling, and specifically relating to family law and local customs;

• The contact information for local lawyers, as well as that of family counsellors and social workers; and

• How to answer questions posed by local officials as to the purpose and certification of the Letter of Permission that you have supplied in the course of travelling.

These officials may also serve as a liaison for you between local authorities and Canadian ones (such as law enforcement, social services, etc.).

With that said, note that Canadian government officials located abroad do not have authority to:

• Intervene in private legal matters (including your family and custody dispute);

• Provide legal advice;

• Take legal procedural steps towards enforcing your Canadian custody agreement in that other country;

• Force the other country to make a specific determination in your custody case; or

• Provide financial assistance to you in connection with pursuing your legal rights, or for travel, accommodation or other expenses.

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 I Move Away with My Kid? You May Have to Jump Some Legal Hurdles First

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Can I Move Away with My Kid? You May Have to Jump Some Legal Hurdles First

I’ve talked before about whether a parent who has sole or joint custody of a child is entitled, after separation or divorce, to move with that child to another location, but one that makes it hard for the other parent (who we will call the “access parent”) to exercise his or her access or custody rights.

In deciding whether to allow such a move, court will consider the facts and assess various factors. First of all, there are some guiding principles that will dictate a court’s decision:

• The access parent’s contact with the child must be maximized, and the move must be in the child’s “best interests”. These are the two key factors in the court’s decision.

• That is not to say that a move is always a bad thing, or that it will always be prevented by a court. A move by the parent that effectively restricts the other parent’s access can nonetheless still be in the child’s “best interests.”

• In cases where the proposed move is to a location far away, a court may have to balance the impact on the child of losing the relationship with the access parent, versus the impact of losing the relationship with the custodial parent.

• The wishes of the child, particularly an order child, can be considered by the court in making its determination.

• The plan to move must be specific. The court may refuse to allow the move to take place unless the parent proposing it has put forward a specific, realistic plan for relocating to a specific location. A blanket request to move somewhere – anywhere – else may not be granted.

Against those background principles, there are certain other factors as well:

• The parent’s reason for the move is generally not a consideration – unless the motive or reason actually reflects badly on that parent’s assessment of the child’s needs, or on the parent’s’ judgment about how those needs should be fulfilled.

• Similarly, the necessity for a move (for example to find work) is not relevant except in exceptional circumstances. The relationship of the child to each of its parents is a far more important factor.

• Certain other factors are do not govern the outcome – unless they relate directly to the child’s best interests. These include: the lifestyles benefits of moving; the custodial parent’s own views and personal preferences about the move; and his or her level of “happiness” in the current location.

Finally, the court can consider some external factors as well:

• A new relationship is not always a good reason to move. Specifically, if the parent’s plan to move the child is prompted by the desire to join a new relationship partner in another city, the court can consider the strength of that new relationship in making its decision, as part of many other considerations listed above.

• Similarly, a court may refuse a parent’s request to move even to accept a job in another city, if it is not satisfied that he or she has made genuine efforts to find comparable work locally.

• The proposed move must be legitimately-motivated. For example if the parent is proposing to move with the child solely to frustrate the other parent’s access, the court will certainly refuse to grant the request.

Note that a parent’s unsuccessful bid to move with a child can have some unintended or unanticipated consequences: the court can take the opportunity to change custody, i.e. give it to the former access parent instead.
Are you considering a move in the near future, and one that would move your child away from his or her other parent? We can give you quality, fact-specific advice.

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.

So what do you think?  What factors should decide whether or not a parent should be allowed to move with a child?

Watch Those Exclamation Marks and All-Caps – The Court Reads Your Emails!

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Watch Those Exclamation Marks and All-Caps – The Court Reads Your Emails!

As I mentioned in a recent post Texting and Family Law – Top 3 Things to Know , the costs decision in Martin v. Czarniecki saw the court considering the sheer volume of the two parents’ text communications with each other, and concluding that the trial was needlessly lengthened by the cross-examinations that became necessary because of it.

In the trial decision for this same case, the court also examined the couple’s email interactions in an unusually-detailed manner – right down to how many exclamations points were used.

The mother and father had met while on separate holidays in Cuba and as the court put it, “one thing led to another”. They stayed in contact and visited each other over the next three years; the mother learned she was pregnant in 2008. Their son was born in Germany, and the father went there to visit for two months. Eventually the mother moved to Canada with the boy and they got married in 2009.

To make a long story short, the relationship soured in about 2011 and the mother took the boy back to Germany without the father’s consent. Various legal proceedings in both that country and Canada, including a Hague Convention application, followed. The mother was ordered by a German court to return the boy to his father, which she did. They all eventually returned to Canada to continue their legal wrangling over which of them would have custody of the boy, and in which country he would live.

The Ontario court’s decision is long and legally complex; ultimately the court determined the father should have sole custody of the child, and if the mother chose to remain in Canada as well, then she could have access to him on a specified schedule. (If on the other hand she returned to Germany, she would have access on a different schedule, mainly around holidays, that took the long-distance element into account).

But in making this determination the court literally scrutinized of the various emails that went back and forth between the couple, using the information to draw conclusions about each party’s state of mind and ability to parent. About the mother (who was the “applicant”), the court wrote:

An unbiased look at all of the evidence does support [the social worker’s] conclusion that the respondent to this day remains more than a little angry with the applicant. Examples include an email exchange regarding the swimmer’s ear issue.[6] In her email of August 23, 2012, the respondent asks the applicant whether he was mentally ill. Her question is followed by three exclamation marks and nine question marks. In other emails around the same time dealing with the same topic, the respondent resorts to “shouting” and the heavy use of exclamation marks. When the applicant would not provide her with the answers to various questions regarding Max’s schedule, his meals, whom he saw, and other things, she became more and more demanding, and the tone of her emails became more and more angry. A careful reading of those emails readily demonstrates that the respondent was making excessive and unreasonable demands for information. One example was the demand by the respondent for the full legal names and addresses of Sonja (the applicant’s girlfriend) and any other people with whom Max spent time, with whom he talked, or who took care of him. Another was her demand not just to know what Max’s meal schedule was when with the applicant, but the exact contents of every meal.

In another more recent email in late October 2012, concerning Halloween, the respondent wrote “you [the applicant] disgust me”. The respondent has several times said in emails that she does not want the applicant opening his mouth in her direction during access exchanges (meaning not talking to her). At some point, the respondent stopped coming out of her residence for access exchanges so that she did not have to be face-to-face with the applicant. Before that happened, the applicant testified that the respondent would mouth the word “asshole” at him during access exchanges. While one can certainly be sympathetic to the respondent with respect to the applicant’s at times relentless attempts to be cheerful in front of Max and to show Max that his parents can communicate, again the language and tone of her emails show both a profound and continuing anger.

The court had similar observations about some of the communication by the father towards the mother. It summed up the overall situation this way:

Often a multitude of emails passed back and forth. I have examined those emails and reviewed the testimony. I can do no better than repeat what I said out loud in the court room – that all too frequently, neither party appeared ready to budge an inch. While they almost always reached a solution, it took an incredible amount of time and energy to do so.

The tone of this correspondence naturally reflected on the couple’s ability to parent their child in a co-operative manner going-forward. In fact, the court used the emails to conclude (among other things) that: 1) both parties acted unreasonably at times and were all too ready to blame the other for any problems that arose; 2) the mother had intense anger for the father that clouded her judgment; and 2) the father was deliberately pushing the mother to communicate even when she did not want to, but that this provocation was motivated by a genuine to model good communication between parents for their son.

The fact that a court might scrutinize emails this way, to divine a conclusion as to how parenting should be shared, is an important consideration to take into account before you hit “send” on that note to your former spouse or partner.

For the full text of the decision , see:

Martin v. Czarniecki, 2013 ONSC 46  http://canlii.ca/t/fvm3h

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.

Should a Mother Lose Custody for Being in a “Dangerous Cult”?

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Should a Mother Lose Custody for Being in a “Dangerous Cult”?

The man and woman met on the Internet, and the woman moved from the U.S. to be with him. They moved in together and when the woman became pregnant, they decided to marry. However, the marriage was short and tumultuous: they married in 2010, had the child in January of 2011, and separated 6 months later. The relationship was punctuated by incidents involving violence and according to the court, both parties had “troubled histories.”

When they separated, the mother fled with the child to California, but was forced to return the child to Canada 8 months later under an Order issued pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, 1980.

The father applied in Canada for sole custody. (He already had court-ordered temporary custody, having been deemed by the Children’s Aid Society to provide the child with appropriate care pending a final determination).
In support of his application, he claimed among other things that the mother was a member of a dangerous cult in California, called the “Trumpet Call of God.” It was apparently run by a man named Timothy who claimed he was a “Prophet.”

The mother’s activities, according to the father, were not conductive to the child’s best interests. For example, the mother had participated in spreading cult messages by posting leaflets on her apartment window, and by passing them out to the public – and had taken the child with her when doing this leaflet-distribution work. Since the cult also advocated home-schooling, the mother had taken the child out of school in order to adhere to those doctrines. Not only was the mother an active member, according to the father, but she also aspired to become one of the “Prophetesses” of the cult someday.

To support his contention to the court that the mother’s participation in the cult was harmful, the father submitted a report, written by an U.S. authority on cults, which described the activities of the Trumpet Call of God group and identified potential financial and sexual exploitation of members by the cult leader Timothy. The report’s author concluded that the group was a “destructive cult” and a “potentially dangerous group”.

In considering the father’s application for sole custody, the court began by ruling on a procedural issue: the mother had fired her former lawyer and declined to appear at the hearing, but instead sent an e-mail which stated:
I do not wish to withdraw from the trial. I am simply stating that Jesus Christ will be appearing on my behalf and in my defense (sic). This fact will become self-evident in the days to come. Please be advised that my signature is not required as my letter, including a print out of this correspondence should suffice as evidence for the courts should you still feel the need to proceed.

In light of this letter, the court found it appropriate to proceed with the hearing on uncontested basis, in the mother’s absence.

Next, the court considered the merits on custody. Both parents certainly had their strengths and weaknesses: the father had an extensive criminal record (including partner-assaults) and some prior history with Child Protection Services in connection with his other children. Overall, however, the Children’s Aid Society had no concerns about the father’s ability to care for parent the child. Other evidence showed that he was a good father.

The mother, in contrast, had demonstrated a history of transiency, poor partner choices, and minimal stable resources. There was evidence that she had left the child alone on occasions, and that the child sometimes appeared neglected. Despite being only 24 years old, she had had 2 marriages, one common-law relationship, and two children both of whom were the products of unstable relationships. The mother was clearly unable to see past her own needs; according to the court her fleeing to California was one example of her “selfish and childish behavior”. Furthermore, according to her former lawyer, she was currently living in California and receiving state social assistance. To top it off, the evidence of the mother’s involvement with the cult was abundant.

The father was therefore granted sole custody. The mother’s access rights were not formally truncated, but rather were granted on a limited basis with some structure imposed. The court wrote:

44 The Mother was last on social welfare in California, has no record of work of which I am aware, and has no money. She abandoned her right to be at the Trial, and while her faith in Jesus is strong, it is not helpful in determining what is in [the child’s] best interests. If she is to have any access to [the child], it shall be supervised access at a supervised access centre in Toronto, or supervised by one of the Father’s friends and/or relatives. All arrangements shall be made in writing, either between the parties, or through their counsel. Nothing shall be arranged on an ad hoc basis, if the Mother simply arrives in Canada and demands access.

45 In the past, the Mother had access through Skype and by telephone, which can continue to take place with the Father’s assistance on a once per week basis only. In my view, each party has to learn to live in an orderly and organized fashion, hopefully around a work schedule. Access by this method cannot simply take place on a whim of the Mother.

For the full text of the decision, see:

Ali v. Ali, 2012 CarswellOnt 13854; 2012 ONSC 6006 (Ont. S.C.J.) 

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.