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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

Whether a parent has a right to move with a child — the concept of “mobility” in family law – video

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.

Considerations for Separated Parents Traveling Abroad

travel

Considerations for Separated Parents Traveling Abroad

We were recently browsing through Jeff Lander’s article Divorced Women: Take Precautions Before Your Children Travel Internationally With Your Ex-Husband published in Forbes. Jeff offers an interesting take on the dangers of allowing your children to travel internationally with your husband, although really these warnings could be equally applicable for either spouse.

The warnings presented by Jeff in his article should be considered seriously by divorced parents in Ontario, but it may be wise to take a second and consider whether it would be preferable to avoid escalating things. Jeff’s advice to require a bond or financial insurance from your spouse before allowing travel should not be the status quo for most divorced couples and although the article makes the practice of requesting a “Ne Exeat” bond seem typical this is not the case in Ontario.

 

In Ontario, even though you may not trust your spouse, unless you have evidence proving that s/he is a flight risk, the default assumption is that s/he should be allowed to travel internationally with your children. This is the position that most courts would take in Ontario and it would be wise to keep that in mind before trying anything rash. The court will decide these kinds of custody and access issues by considering the “best interests” of the children and in most cases it will be found to be in the children’s interests to be allowed to go on a vacation with either spouse.

In the case where you do believe that the other parent is a flight risk Ontario women can take steps to protect their children. If seriously concerned it may be the best course of action to immediately initiate a court action in order to keep the children in a safe place or to get a court order for possession of their passports. In situations where it is only a possible flight risk, then it may not be wise or financially plausible to take this route. An alternate solution would be to take a page out of Mr. Lander’s article and negotiate having your spouse pay a bond into court or to you in the style mentioned in the article. This middle of the road solution could save you from an otherwise heated and expensive battle in court.

In most cases in Ontario, when a parent wants to travel internationally with their children, the only thing they require is a letter of consent to travel from their spouse. A consent letter may be requested by immigration authorities when leaving the country, when entering or leaving a foreign country or upon re-entry to Canada. A common courtesy in this situation is for the traveling parent to provide the travel itinerary for the children in advance of the trip to the parent remaining at home and all relevant contact information. This is not a requirement under Ontario law but it can be incorporated as a requirement under a separation agreement or in a court order where young children are involved.

To learn more about divorce in Ontario, contact Russell Alexander, Collaborative Family Lawyers. Russell Alexander focuses exclusively on 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 our main site.

Mom Reneges on Deal to Live Near Kids’ Dad – Should Their Primary Residence be Shifted to Him?

mom renege

Mom Reneges on Deal to Live Near Kids’ Dad – Should Their Primary Residence be Shifted to Him?

In a recent Blog I recounted the case of White v. Noel, where the mother had moved with the child to another province, in breach of an earlier court order. The court had to consider whether the best interests of the child were served nonetheless, and whether it should allow the mother to stay there anyway, in order to make a better life for herself and the child. In that particular case, the court concluded that it should.

But that decision was rather unique – courts usually do not retroactively endorse such self-help initiatives on the part of parents. Indeed, the results are usually quite to the contrary.
For example, in another recent case called Jones v. Jones, the mother’s unilateral decision to move away with the children had an entirely different initial outcome: The court removed her right to have the children reside primarily with her under a joint custody arrangement, and gave that right to the father instead. This meant the children had to move from Lindsay, Ontario where they were living with the mother, back to Waterloo, Ontario where the father still lived. The court ordered that the situation was to remain in place unless and until the mother moved back to Waterloo.

In that case, the mother’s relocation had been prompted by a desire to be closer to her family and upgrade her education; however, the move was in breach of a separation agreement between her and the father, the terms of which were incorporated into a court order.

That joint custody order mandated primary residence of the children was to be with the mother, but also called for her to try to find a job in Waterloo, Ontario after finishing her studies, which she did not do. Instead, she took a job in Lindsay and continued to live there.

The father brought a motion to have the mother cited in contempt of court (among other things); the mother made an unsuccessful bid to have the court order switching primary custody changed. She eventually appealed to the Ontario Court of Appeal, where a panel of three judges heard her submissions.

In short, the Appeal panel found that – although the lower court had considered some of the relevant factors – it had overlooked providing a valid legal and factual basis for switching the primary residence of the children in this particular case. The matter was sent back for a new hearing on this point.

First of all, the lower court had been correct in concluding that the mother’s failure or refusal to move to Waterloo as promised was a “material change” that triggered its ability to fully review all the circumstances, including whether moving the children’s primary residence from Lindsay (with their mother) to Waterloo (with their father) was in their best interests.

Next, the lower court had given some consideration to the question of whatever benefits might accrue to the children if they lived closed to both parents and did not have to travel frequently between Lindsay and Waterloo to see them both. But what it failed to do, was to expressly determine and rule on whether the best interests of the children would be served by switching primary residence from the mother to the father, and to consider what impact it might have on the children in view of the legal test.
This being the case, the only option was therefore to set aside the earlier order and have a new hearing on the primary residence issue.

For the full text of the decision, see:

Jones v. Jones (2014), 2014 CarswellOnt 16443, 2014 ONCA 822; reversing (2013), 2013 ONCJ 383, 2013 CarswellOnt 9680 (Ont. C.J.); and reversing (2014), 2014 ONSC 2122.

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.

Pregnant After Dating a Week … Can Dad Force Mom to Stay in Ontario?

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Pregnant After Dating a Week … Can Dad Force Mom to Stay in Ontario?

In an interesting recent case called White v. Noel, the court was asked to balance two competing rights: the rights of one parent to have legal and geographical access to his child, and the rights of the other parent to move the child away in order to seek a better life.

The background facts were a little unusual: The man and woman had known each other for only about a week when the woman unexpectedly became pregnant. The woman moved in with the man, but the relationship ended about three months after their son was born, after a physical altercation where police were called. By way of a court order in 2007, the woman was given custody of the boy, and the father was granted access every other weekend. That same order stipulated that the woman was not to remove child from Ontario, except for holiday purposes.

Since that time, both of them stayed in Ontario, with the 39-year-old man continuing to work as a roofer in the summer and doing snow removal in the winter. Meanwhile the 47-year-old woman was for the most part unemployed, and despite numerous efforts to train and obtain work, had to support herself and the boy through public assistance programs.

Furthermore, her unavoidable interactions with the man over access and scheduling frequently ended in dispute, and the police had to be called on occasion. She often suspected that he was impaired by cocaine or alcohol while in a care-giving role to the child.

Perhaps not surprisingly, the woman was very unhappy in Ontario, and wanted to return to her native New Brunswick. She went back there on vacation in 2012, and decided to stay permanently. The man did not make any effort to see the child after that, and told the woman that he wanted nothing further to do with the boy unless he was returned to Ontario.

Before the court, the woman brought a motion to vary the earlier custody/access order, based on a “material change in circumstances” – being her own unilateral decision to move to New Brunswick. The man responded with his own motion for an order citing the woman in contempt of court for moving away with the child in breach of that earlier order.

In balancing the competing rights and interests of these parents, the court looked at the man’s position: at the time of the motion, he had not seen his child since 2012, and it was clear that their relationship had diminished as a result. The law did require the court to strive for maximum contact between the child and his father (among other things); in light of the man’s threat that he wanted nothing to do with the boy if he stayed in New Brunswick, the only way for the court to do that was to order for the woman to return the child to Ontario.

However, the question of what was in the child’s best interests was still the overall governing factor.

Turning to the woman’s position: The court noted that she had primary custody and was the primary caregiver for the boy since his birth. She had moved to New Brunswick in order to make a better life for the two of them.

To that end, she had found a job in New Brunswick and had secured an apartment that was close to her family. And while living in Ontario her interactions with the man while living in Ontario had been toxic, and she had genuine concerns about his ongoing cocaine use (and, the court noted, he had failed to submit to drug testing as he had been previously ordered).

In short: Moving the child out of the woman’s primary care would be disastrous, since the child was currently thriving and the woman had shown through her well thought-out plans that she was able to care for his needs. In contrast, the father’s plan was more aimed at punishing the mother for the disobeying the court order not to move. Even in purporting to seek custody he likely had an ulterior motive, as the court explained:

In this case, although the father seeks custody, it is clear to me what he really wants is the situation to return to the way it was before the mother moved.

He would like to continue to be the access parent and be able to visit with [the boy] whenever he wants. His custodial plan was very poorly thought out and had no air of reality.

Overall – and especially in light of the fact that the mother’s motive for the unilateral move was not improper – the court found that it was in the child’s best interests to continue to live with the woman in New Brunswick, even if it meant that practically speaking the man’s access would be curtailed.

For the full text of the decision, see:

White v. Noel (2014), 2014 CarswellOnt 14923, 2014 ONCJ 555, P.J. Jones J. (Ont. 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.

Kids and Travel – Interactive On-line Form for Letter of Consent

passport 2

Kids and Travel – Interactive On-line Form for Letter of Consent

In past Blogs we have discussed the various issues and requirements around children’s Passports,  and the application process for obtaining them. Obtaining a Passport for a child becomes particularly important in situations of separation and divorce, since if one parent wants to travel with the child, then the other parent must usually agree to (or at least condone) the intended plans.

The Government of Canada strongly recommends that even after a valid Passport has been issued, any time there are plans made by one parent for a child to travel outside Canada, whether accompanied by that parent, alone, or with another person (e.g. a relative or family friend or in a group), a Letter of Consent should be obtained from the other parent. For these purposes, a “child” is anyone under the age of majority.

While strictly speaking it is not mandatory, the Letter of Consent serves as evidence that the child has the consent of both parents to travel. It is signed primarily by the individual(s) with the legal right to make major decisions for the child (i.e. the custodial parent or guardian); however, even if it is a parent with sole custody who is travelling with the child, to be on the safe side it is recommended that Letter of Consent be filled out by any parent or other individual with access rights.

The Letter of Consent can be presented upon demand by immigration authorities when entering or leaving a foreign country, or by Canadian immigration officials upon the child’s return. While having a Letter of Consent handy does not guarantee that there will be no difficulties crossing a border, it will likely make the process much faster and easier.
Although there is no standard form, and no official guidelines for its contents, the federal government website now has a interactive on-line form that can be modified and filled out to fit each situation. It is always recommended that the Letter be completed with as much detail as possible.

Finally, the Government of Canada has a useful Frequently Asked Questions page , which sets out the answers to questions arising in various travel scenarios.

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 our main site.

Can Tardy Dad Force Mom to Move Back to Ontario?

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Can Tardy Dad Force Mom to Move Back to Ontario?

In situations where parents are separated or divorced and share custody, courts are sometimes called upon to decide whether one of them can permanently move away with the child, often to pursue new work or a new relationship. In such cases courts must give careful scrutiny to all of the circumstances before deciding; this includes examining the existing parenting/financial arrangements and support network, and how those will change either the benefit or detriment of the child. After such scrutiny, in some cases the court will reject the parent’s proposed relocation outright.

Some parents will proactively take matters into their own hands: They unilaterally decide to pre-emptively move away with the child first, and then return to court after-the-fact, asking for retroactive permission. Courts resoundingly condemn this self-help approach: it not only alters the status quo for the child, but it is also patently unfair to the other parent who resists the move and now has to get a court order to “undo” it.
This was precisely the situation in Rifai v. Green, where the father and mother had ended their marriage almost nine months before their (now) 1-year-old child was born. The father brought an emergency motion to undo a pre-emptive relocation to another province by the mother which had taken place about eight months earlier, when the child was three months old.

Arguably, until this point the father had been rather indifferent to his infant daughter: She had been in the mother’s custody since birth, and he had had no contact with her at all since she was two months old. Nonetheless, he brought a motion to force the mother to return from Alberta, where – with his permission – she had gone with the father’s permission for a 6-week stay to visit an ailing grandmother. Shortly after arriving, however, the mother advised the father that she was not planning to come back. In fact, she never did return to Ontario with the child.

A few months passed and the father continued to stay in contact though his lawyers, but mainly to dispute paternity and try to have DNA testing done. Meanwhile, throughout this period spanning much of 2013 the father paid no child support whatsoever, even though he was earning $45,000 per year.

In considering the father’s early-2014 emergency motion to force the mother to return, the court began by expressing its concern that the mother had engaged in self-help and had altered the status quo with the pre-emptive move. On the other hand, it also pointed to the father’s complete lack of support before and since the daughter’s birth, including his sporadic visits during her first two months of life, his lack of financial support, and his focus on denying paternity. Indeed, the father seemed uninterested in having more access until paternity was confirmed – and process which was stalled due in part to the father’s own foot-dragging. As the court put it:

[The mother] felt the [father] wasn’t actually interested in [the daughter’s] life – but he wanted to keep his options open. The [mother] couldn’t wait while the [father] made up his mind about whether he wanted to be a father. She made a life for herself and her daughter in Alberta. And now that’s the child’s habitual residence.
The reality was that as long as she stayed in Ontario, the mother was forced to struggle in the effective role of “single mom”, since the father had shown no interest in the child other than to try to refute paternity. In contrast, in Alberta she had family and friends who could provide her with the assistance and emotional support she needed.

The court observed:

There are consequences to the fact that the [father] ended up doing nothing – for eight full months. Time moves on. Children move on. The [mother] and [daughter] moved on. And really, it is difficult to blame the mother for seeking out a family support network, in the face of such ambiguous and half-hearted involvement from the father.

In short: even though the court disapproved of the mother’s unilateral change to the status quo, it was equally critical of the father’s 8-month delay in bringing his “emergency” motion. It said:

Eight months is a conspicuously long time, particularly when you factor in that it’s really been 10 months since the [father] last saw his child.

The court therefore denied his request for an order compelling the mother to move back with the child.

For the full text of the decision, see:

Rifai v. Green, 2014 ONSC 1377 (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 our main site.

Relocating with a Child – Can Courts Assume Some Parts of the World are Dangerous?

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Relocating with a Child – Can Courts Assume Some Parts of the World are Dangerous?

A certain category of family law cases involve what are known as “mobility” disputes, which focus on deciding whether one separated or divorced parent may move away with a child to a new location – one that is not conveniently close to the other parent in terms of their being able to exercise their custody and access rights.

Frequently in such cases the other parent will object to the move on various grounds, so the matter will go before the court for its determination. At the hearing, the objecting parent can then put forward evidence on why the proposed move is not in the child’s best interests. In many cases, this takes the form of documents and other materials showing that the proposed location or country is unsafe for the child, either because the child would be returning to an unhealthy family environment, or because the country is plagued by war, violence, crime or persecution of certain ethnic groups.

This in turn raises questions about the type of evidence that can be put forward, how it is to be received and assessed, and whether the court can rely on its own “common knowledge” to assume that some parts of the world are inherently dangerous. In other words, in these modern times of Google searches and collective-authorship Wiki articles, it becomes important for a court to be able to vet the information it is provided.

This was precisely the issue in a recent case called B.T.O. v. A.A., 2013 ONCJ 708 (CanLII) where the mother wanted to relocate with the child back to Nigeria. The father wanted to provide the court with evidence to establish that, due to the significant crime levels, kidnappings, and other safety and health concerns, a move back would to that country put the child at significant risk.

The court was left to grapple with assessing the father’s evidence, which included newspaper reports and internet articles about Nigeria, as well as reports from the U.S. State Department and Canadian government that identified travel concerns.

While pointing out that each case was unique, the court concluded that the government reports – despite amounting to hearsay – were sufficiently reliable to be admitted even though the mother had not had a chance to cross-examine on them. The newspaper and internet articles, on the other hand, did not meet this test.

(And ultimately, after taking into account all of this contentious evidence, the court allowed the mother to move to Nigeria, pointing out among other things that, “[d]espite his security concerns, the father permitted the children to travel to Nigeria on several occasions while he lived with the mother. He has travelled to Nigeria on several occasions and has not experienced any safety issue on these trips.”).

For the full text of the decision, see:

B.T.O. v. A.A., 2013 ONCJ 708 (CanLII) http://canlii.ca/t/g2dxf

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.

 

Whether a parent has a right to move with a child — the concept of “mobility” in family law – video


 

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.

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 this video we review this concept known as a “mobility” issue.

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?