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Posts from the ‘Ontario Custody’ Category

Wednesday’s Video Clip: When Can A Parent Apply For Child Support

Wednesday’s Video Clip: When Can A Parent Apply For Child Support

In this video we discuss how parents who have their children living with them after separation can apply for child support at any time. Usually they apply right after they separate or as part of their divorce application. They often apply for custody and child support at the same time. It is usually best to deal with these matters as early as possible. Sometimes parents with custody do not want or need child support at first, but later their situation changes.

They can apply for child support when the need occurs, even after a divorce and all other matters arising from the separation have been settled. But if a step-parent is asked to pay support, the more time that has passed since the step-parent had an ongoing relationship with the child, the less likely it is that the court will order support payments. This is especially true if the step-parent’s social and emotional relationship with the child has ended. A parent can apply for custody and support even while living separately under the same roof after their relationship with the other parent is over. But usually the court will not make any order for custody and support until one parent has actually moved out.

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

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


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

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

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

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

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

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

Can a Kid’s Foster Parent Participate in Child Protection Proceedings?

Can a Kid’s Foster Parent Participate in Child Protection Proceedings?

The Ontario Court of Appeal has considered an interesting question relating to child protection proceedings: Whether a child’s foster parent is entitled to be granted status by the court, so that he or she can participate in the case.

In A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell the child was made a ward of children’s aid organization named Valoris pour enfants et adultes de Prescott-Russell (the “Society”) when he was two months old. At seven months of age, he was placed with a “foster-to-adopt” mother (the “F-A Mother”), who was assessed as a potential adoptee and with whom the child was placed with the ultimate goal of adoption.

Meanwhile, the Society filed an application asking that the child be made a Crown ward with the biological parents being stripped of their access rights.   The Crown supported the F-A Mother becoming the child’s adoptive parent. (Although the biological parents were given the chance to participate in a trial concerning wardship, they did not do so).

However, in 2016 an aunt and her partner expressed an intention to adopt the child, and the Society decided to support that plan instead. The aunt asked the court to be allowed to be added as parties, and to be granted a temporary order to care for the child.

The question arose as to whether the F-A Mother could be added as a party to those proceedings. A motion judge held that she could; the Divisional Court later overturned that decision. The matter was sent to be heard by a third court – the Ontario Court of Appeal – where the outcome was reversed again.

First of all, the Court confirmed that procedurally, the provincial Child and Family Services Act allows for non-parties, including foster parents, to be added to a child protection proceeding in the right circumstances. The legislatively-prescribed considerations which would favour not granting her such status, such as any procedural delay that might be added, were not of concern here.

Next, in allowing the F-A Mother’s participation, the Court explained that she was in the best position to inform the court on a Crown wardship hearing as to what the child’s needs and best interests involved. It was those best interests of the child, not the rights of the family or the foster parents, that is determinative. The F-A Mother also had a legal interest in the proceeding, especially since the Society had changed its mind about supporting her adoption bid in favour of backing up the child’s aunt. If the F-A Mother was not involved in the proceedings, her chance to adopt the child might be foreclosed.

Ultimately, the Appeal Court found that the Divisional Court in our view erred in interfering in the motion judge’s reasonable exercise of discretion, and it allowed the appeal, and granted the F-A mother status as a party to the child protection proceedings about the child.

For the full text of the decision, see:

A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 (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

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More on Upcoming Changes to the Ontario Law Relating to Kids and Youth

More on Upcoming Changes to the Ontario Law Relating to Kids and Youth

I reported recently that the Supporting Children, Youth and Families Act, 2017 (CYFSA) was given Royal Assent on June 1, 2017. Although it is not yet officially in force, once proclaimed it will make numerous changes to existing child-focused legislation in Ontario.

Most notably, the CYFSA repeals and replaces the longstanding Child and Family Services Act, and amends 36 other pieces of family- and child-related legislation.  Although the upcoming amendments are numerous and broad-ranging, one of their overriding goals is to focus on government-provided child and youth services, and to put children at the centre of decision-making.   They also aim to increase accountability, responsivity, and accessibility in relation to services and service providers.

Specifically, the new legislation sets out that the purpose of the CYFSA is to promote the best interests, protection and well-being of children. It recognizes that services to children and young persons should be provided in a manner that:

  • Respects regional differences wherever possible, and takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons;
  • Respects a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression; and
  • Respects a child’s or young person’s cultural and linguistic needs.

Next, the CYFSA also expressly recognizes that services to children and young persons and their families should be provided in a manner that builds on the strengths of the families wherever possible. It also gives special recognition to the needs and traditions of Indian and native children and families.

Other key changes include:

  • Increasing the age of protection to include 16- and 17-year-olds. Children of this age may be found to be in need of protection; certain added circumstances apply to this age-group in making that determination.  However, 16- and 17-year-olds may not be brought to a place of safety without their consent.
  • Authorizing children’s aid societies to enter into agreements with 16- and 17-year-olds in need of protection, and to bring applications to court.
  • Strengthening the focus on early intervention, helping prevent children and families from reaching crisis situations at home.
  • Making government-provided services more culturally-appropriate for all children and youth in the child welfare system. This includes ensuring indigenous and Black children and youth receive optimum support.
  • In connection with adoption, changing the matters that must be considered in determining the best interests of the child, in keeping with the nature of the changes that are implemented in other parts of the CYFSA. It also adds a new two-stage process for adoptions from outside Canada.

Finally, the CYFSA also sets out extensive rules for the collection, use and disclosure of personal information by government and service providers, and sets out new rules for obtaining consent and access to personal records, which are driven by privacy considerations.

These changes build upon feedback received by the government through the 2015 review of the Child and Family Services Act (CFSA). Note that the former Child and Family Services Act remains in-force until the new CYFSA is proclaimed in force.

For the full text of the yet-to-be-enacted legislation, see:

Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1

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

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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

Wednesday’s Video Clip: Child Support & Access Rights in Ontario

 

Wednesday’s Video Clip: Child Support & Access Rights in Ontario

In this video we discuss child support in relationship to access rights. A parent cannot cut off contact to a child simply because child support is not being paid

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


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

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

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

 

Wednesday’s Video Clip: Whether a Parent has a Right to Move with a Child – the Concept of “Mobility” in Family Law.


Wednesday’s Video Clip: Whether a Parent has a Right to Move with a Child – the Concept of “Mobility” in Family Law.

The moment that the parents of a child separate, everyone’s life circumstances change immediately: there are usually new living arrangements and a custody and access schedule put in place.

But as time passes, there may be other developments as well; for example the parents may embark on new relationships with new partners, or may change jobs.

The potential impact on any court-ordered support, custody or specific access arrangement, and the effect on each parent’s rights must be assessed and weighed.

In cases where one parent’s new relationships or new jobs require a move to another city or province, the concern is even greater. This is because such scenarios give rise the a legal issue of whether the circumstances and preferences of the parents should be allowed to dictate the child’s living circumstances, whether such moves should be allowed and by whom, and — if so — what happens to the custody and access arrangements that are in place.

In family law, this is known as a “mobility” issue.

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

Regret is No Excuse for Disobeying Consent Order: Mom Blocks Grandmother’s Access to Kid

Regret is No Excuse for Disobeying Consent Order: Mom Blocks Grandmother’s Access to Kid

In some Family Law cases, one can speculate about the good intentions behind a parent’s actions, even when they end up being contrary to an agreement with the other parent, or to a court order. Still, it behooves the court to enforce its prior orders and agreements, to maintain the semblance of fairness and respect for the judicial process.

This was the situation in a case called Perna v Foss. The mother and father had married only a month before their child was born, and separated 18 months later.   The father eventually agreed to give sole custody to the mother.

When the boy was around 7 years old, the mother agreed to allow the boy’s grandmother (on the father’s side) to have access to him one day a week. In view of the mother’s acquiescence, the court granted a consent order accordingly.

However, the mother stopped facilitating the access altogether when she formed the opinion that the grandmother was “having conversations with [the boy] regarding serious issues” during those visits. She explained her move to block access in texts and Skype conversations with the grandmother, one of which read as follows:

I will consider giving you ur (sic) time back if u can promise me only good times and no conversations w Jackson about moving or living in Dominican Republic. I want the pressure off of him completely.  I never said I wanted you out of his life Sandra.  I just don’t want him having to answer questions about how he showers or what mommy does.  It’s not fair.  If you agree to this we can start visits again.  …

Evidently the two women were unable to come to an understanding; the mother continued to deny access, which prompted the grandmother to bring a motion for a court order finding her in contempt. The mother ignored the motion, and did not appear in court. (Nor had she taken any steps to vary the initial consent order granting the grandmother access in the first place, which would have been the ordinary course to take if she now took issue with it).

The court considered the circumstances, and agreed that the mother should indeed be held in contempt.

She was clearly aware of the consent order, and could not claim to be confused about its interpretation. She freely admitted to disobeying it on more than one occasion, as her texts and Skype sessions showed. In fact, she had announced both her deliberate intent to block the grandmother’s access, and her reasons for doing so.

The court speculated that the mother perhaps regretted having agreed to giving the grandmother access in the first place, but this did not give her justification or excuse for failing to honour her obligations under the consent order. She did not have the right to unilaterally refuse to comply.

In light of the contempt finding, the court refused to hear any further motions by the mothers – including one she had brought recently for permission to remain in the Dominican Republic with the child – until the contempt was purged.

For the full text of the decision, see:

Perna v Foss, 2015 ONSC 5636 (CanLII)

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

 

 

 

 

 

Recent Child Abduction Case – Just One of Many

Recent Child Abduction Case – Just One of Many

You may have read in the newspapers recently about latest development in a custody battle over a 9-year-old girl that has resulted in the mother being arrested and charged with her abduction. It seems that rather than return the girl to her father on December 1 as required, the mother opted to essentially “run and hide”, taking the girl with her in violation of a custody order. After an Amber Alert prompted tips from the public, police found the mother and daughter living in Hamilton.

The child’s father, Mohamed Abdel-Motaleb, is in Canada from Egypt on a visitor’s visa and is seeking custody here after not knowing the daughter’s whereabouts for over a year. He claimed that without his consent, the mother secreted the daughter from Egypt – travelling part of the route by camel – in order to make their way to Canada where her parents live.

The parents have a history of high conflict over the child, and through their lawyers have levelled accusations against each other. The mother’s family and friends have stood by her in support, believing that she was motived by a desire to protect her daughter and avoid a court battle with the father, whom she claimed to fear. The abduction for which she is formally charged took place only one day before a scheduled court date in their ongoing custody dispute.

Canadian courts universally frown on such self-help measures in child custody disputes, even where the abducting parent has the child’s best interests at heart. Sentences can also be stiff: In the most recent decision out of Alberta, a father who had plead guilty to abducting his 7-year-old son and removing him to Lebanon contrary to a custody order was sentenced to 12 months incarceration including 45 days spent in jail after being arrested.

In that case, the abduction had been premeditated, with the father having planned to sell his home and dispose of all his affairs in Canada in anticipation of moving to Lebanon with the boy. He even created a website explaining his reasons for abducting the child.

In response to the father’s unilateral actions, the mother had been forced to fly to Lebanon to try to find her son. This involved her leaving her home and job, spending her savings, max-ing out her credit cards, and withdrawing from her RRSP. While in Lebanon she visited more than 30 different schools to try to find him, and once she did, she was ordered by the court to post a US$50,000 bond in return for getting access.

In imposing sentence, the court considered an earlier B.C. decision in which the accused father spent a total of three years being incarcerated for abducting his own child, in that case through violent means and involving a car chase which endangered not only the child, but the public as well.

As with these Alberta and B.C. cases, the Ontario courts see many similar scenarios. And whle it’s admittedly vital that courts condemn such self-help solutions, and reinforce respect and compliance with legal process and custody orders, it’s not hard to feel compassion for the situation both parents themselves in.

What are your thoughts on child abduction cases like these? Are the penalties too stiff? Too lenient?

For the full text of the decision, see:

R. v. M.E., 2016 ABPC 250 (CanLII)
R. v. C.M.N, 2002 BCCA 76 (CanLII)

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