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Posts from the ‘Parental Alienation’ Category

Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

Image result for running away

Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

In a recent case heard by the Ontario Court of Appeal, the issue was whether the parents of a 17-year old girl had any right whatsoever to participate in a court proceeding declaring that she had officially and legally withdrawn from their control as parents.

The girl had gone to court for a “declaration” (which is a formal court statement pronouncing on the existence of a legal state of affairs) that she had withdrawn from parental control.  This had followed a period of extreme acrimony between her and her father, with whom she lived full-time, over numerous matters.  The main precipitating event was the girl’s unilateral decision to finish high-school in Ontario a year early, in order to attend the University of Miami where she had obtained a full scholarship.

The father strongly opposed her plans, and wanted her to stay in Ontario to finish grade 12.  He even began court proceedings in Florida to force the university to disclose the contents of her application file, which impelled the university to ask the girl for proof that she was an independent minor.   Since her father had repeatedly said he would “do everything he can to stop” her from going to Miami, she needed the formal court declaration; without it he could demand that the university withdraw both her application and the scholarship.

The lower court had granted her application without hesitation, adding that “[t]he evidence indicates that [the girl] is a remarkable young woman.”  The court found the parents had no right to be included in or even have notice of the proceedings.

The father appealed, claiming that the mere fact that the court had not allowed or invited both parents to participate – including the full right to object, file evidence, and cross-examine – was grounds enough to overturn the declaration.

The Appeal Court disagreed, but conceded that the parents did indeed have a right to be part of the proceedings.  But there was still no reversible error here, since the required level of parental participation had been met, even though neither mother nor father were ever made official parties to the girl’s application.

The court’s reasoning was technical:  First, it pointed out that under the CLRA the girl had a unilateral stand-alone legal right to withdraw from parental control once she reached age 16.  The court added:

Once a child declares an intention to withdraw from parental control, her independence may – as it was here – be recognized by the police and the schools. There is no formal court process for a child to withdraw. … Unlike jurisdictions such as Quebec which have procedures for “emancipation”, Ontario law does not have a formal process for withdrawing from parental control. The child simply has to take control of the incidents of custody which include decision making regarding residence and education. No court process is required.

However, there was a narrow distinction between withdrawing from parental control, and obtaining a declaration from the court to that effect.  The former was a legal right that the girl could exercise unilaterally; the latter was a request to the court that it exercise its jurisdiction to make a declaration.  Here, the girl had appeared before the court for the second item, the declaration, which triggered consideration of the various legal interests of both the child and the parents.  In this matter, some of those interests were in conflict and called for a balanced inquiry.  Also, the CLRA expressly provides that the parents must be before the court in any application in respect of a child.

In short, and based on the legislation and basic legal principles, the court found that the parents must indeed be parties to their own daughter’s application to withdraw from parental control, but that the court has a broad discretion to direct the extent of that participation.  Here, although the father had not initially been named as a party by the lower court judge, he had been allowed a certain level of involvement nonetheless. He had been allowed to file material and make submissions.

The court also concluded that the merits of the girl’s application justified the order made. The prior judge had fully considered the extensive court record, which included more than a dozen affidavits providing information on which the best interests of the girl could be assessed.  The judge’s findings were supported by the evidence, and there was no procedural unfairness in granting the declaration.

As the Appeal Court stated: “The declaratory relief was not exercised in a vacuum. There was a clear reason for it.”

The father’s appeal was dismissed.

R.G. v. K.G.,

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

 

Getting Kids to Comply with Court Orders: Parents Must Take Active Steps

Uncooperative Child

Getting Kids to Comply with Court Orders: Parents Must Take Active Steps

In a Blog a little while ago How Far Must Parents Go, to Ensure a Kid Complies with a Court Order?, I discussed the obligation on parents to ensure, to the best of their ability, that a child complies with a custody or access order. Not only does this accord with our general sense of justice, but in some circumstances if an order is breached because a child is uncooperative, his or her parent can even be found in contempt of court.

But as custodial parents will attest, the practical task of ensuring that kids comply with a court-ordered access/visitation schedule can seem impossible, particularly when the child is reluctant, resistant, or downright defiant. Forcing an unwilling child to participate only engenders bad feelings on the part of both parents, not to mention the child him or herself.

Still, Canadian family law principles make it clear that a parent cannot simply leave participation and compliance with custody and access orders up to the child; courts have repeatedly stated that to do so amounts to “an abdication of parental responsibility” and more importantly amounts to a shortfall in the parent’s positive obligation under the court-imposed order.

Over the years, various courts have expanded on this general principle, providing a list of the concrete steps that parents must take in order to fulfill their responsibility to coax an uncooperative child to comply with a custody or access order.

Here are the points to know:

• Although courts do recognize that it may be increasingly difficult, a parent’s obligation to compel a child to comply does not diminish as the child gets older.

• A parent must go beyond simply “accommodating” access (i.e. making the child available and encouraging him or her to comply); rather, the parent must require the child to participate, and must actively facilitate that participation.

• A parent must take concrete measures to apply normal parental authority to have the child comply. In assessing whether those measures are sufficient, the court will consider whether the parent:

o Engaged in a discussion with the child to determine why he or she is refusing to go with the other parent;

o Communicated with the other parent about the child’s resistance, and how to overcome it;

o Offered the child an incentive to cooperate; and

o Stated clear disciplinary consequences for the child, if he or she continues to refuse to comply.

The obligations, steps, and responsive measures will vary with each case, and will also depend on the child’s age and emotional condition.

There are many cases that discuss these principles. See for example:

Geremia v. Harb, 2007 CanLII 30750 (ON SC)

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

What is “Contempt of Court” in Family Law, Anyway? – Part I

Daddy

What is “Contempt of Court” in Family Law, Anyway? – Part I

A recent Ontario family law judgment in Jackson v. Jackson contains a comprehensive look at a narrow topic: Contempt of court in family proceedings.

As part of their child custody dispute, the divorcing parents of two children had been to court several times, and various temporary access orders had been made. One of them required the father, who had custody, to make the children available to the mother for two-hour supervised access visits.

Some of the supervised access visits had gone ahead as scheduled; however, the mother complained about the father’s conduct in relation to three of them, where she felt her access had been thwarted or that he had not fully cooperated. She accused him of engaging in a larger campaign to frustrate her access rights and to alienate the children from her, and asked the court for an order finding him in contempt.

The father rejected the allegations, insisting that he had complied with the spirit of the orders, and denied trying to eliminate the mother from the children’s lives.

In this context, the court reflected on the general nature of contempt of court, observing it can arise whenever a person – whether a party to proceeding or not — does any act which may tend to hinder the course of justice or show disrespect to the court’s authority. It also includes obstructing or attempting to obstruct the administration of justice.

Examples may include:

• a lawyer failing to appear in court when scheduled,

• a witness refusing to be sworn or answer questions,

• insulting the court, and

• interrupting or being aggressive during proceedings.

It also includes:

• wilful breach of a court order,

• interfering with witness, counsel or juror,

• counselling perjury,

• fabricating evidence and

• breaching a court undertaking.

In family law proceedings, contempt motions are governed by the Family Law Rules, which in the right circumstances allows a court to make an order even if another penalty is available. As they relate to custody and access situations specifically, the court must also factor whether the breach of the order resulted not form the parent’s conduct, but rather from the child’s refusal to comply. (This in turns gives rise to complicated issues relating to how far a parent must go to insist or even coerce a child comply with the order so that no breach results, which will be the subject of another Blog.

Overall, the contempt remedy is designed to emphasize that court orders cannot be ignored or disobeyed. It reinforces the point that any wilful disobedience of court orders is a very serious matter that strikes at the very heart of the justice system. With that said – and since the penalty is a serious one – it must be used cautiously and with great restraint, but ultimately it is a matter for the court’s discretion.

In Part II I will examine the specific tests that the mother had to meet in the Jackson v. Jackson case, in obtaining an order holding the father in contempt of court.
For the full text of the decision, see:

Jackson v Jackson, 2016 ONSC 3466 (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

Custodial Parent Has Duty to Promote Other Parent’s Access

Unhappy with their arguments

Custodial Parent Has Duty to Promote Other Parent’s Access

In these Blogs we have often chronicled the stories of separated and divorcing parents who have fought tooth-and-nail to try to block each other’s rights and access to the child they co-parent in some permutation of post-split custody/access.

Although courts openly lament this sort of uncooperative behaviour, there is no strict rule to prohibit either parent from taking a hard-line approach. (And it does seem to be the way many parents approach these matters).

Yet in an older case called Black v. Barnett the court went so far as to essentially impose a positive duty on custodial parents to foster and promote the relationship between the child and the parent with only access rights.

As background, the case involved a custody/access battle over a 3-year old boy, who was currently in the mother’s custody. The father had essentially abandoned the mother during her pregnancy (and had suggested adoption or abortion instead), but then resurfaced to assert his access rights once the child was born. The court described the trajectory of the father’s interest-level this way:

On August 15th, 1988 mother notified father of the birth. He was told [the boy] was not expected to survive, that if [the father] wished to visit [the boy], he’d best do so before it was too late. The father, his mother … and other family members promptly arrived at the hospital. The prior lack of interest was soon marshalled into an avalanche of parental rectitude and outward devotion for [the boy].

Intense conflict and bitter disagreement over visitation soon marked the hostile parental relationships. Thus the stage was set for continuation of this acrimonious access dispute.

The father’s access to the boy had been set by an earlier court, and he now wanted it increased from its current level of once-a-week for four hours. In entertaining the father’s request, the court pin-pointed the human impetus behind many such access disputes, as follows:

Access applications, unlike other proceedings, are often triggered and propelled by instinctive or complex patterns of behaviour that take on a life of their own. This behaviour may disguise the underlying causation for and purpose surrounding the ongoing parental acrimony.

Despite that reality, the court saw fit to impose a positive duty on parents in these circumstances:

The difficulty in ever-increasing protracted access disputes is determination of the extent, if any, of the entitlement of access. Unless shown otherwise, bitter parental relationships ought not to extinguish the opportunity of the child to share in the unique, separate and mutual benefits derived from the custodial and non-custodial parent. It is only logical where more than one parent influences a child’s development in offering affection, comfort and guidance, the greater the benefits for the child.

The court added that custodial parents have greater role and thus a correspondingly larger obligation to foster the child’s relationship with the access parent:

As the influence and direction of a custodial parent on a regular and ongoing basis is far greater than the non-custodial parent, there is an obligation upon the custodial parent to promote and encourage access. Obstacles and unwarranted conditions to the child’s unfettered enjoyment are expected to be minimized, if not eliminated.

Still, the court reverted to its more pragmatic view:

The practical implementation of these principles, having regard to the nature of the human condition, is the difficulty. It is easier said than done.

Ultimately – and despite expressing serious concern at the poor communication between the parents – the court applied these principles and granted the father’s request, finding overall that it remained in the best interests of the child to do so.

It crafted an Order allowed for significantly-increased access to the father; it also rejected the idea that the transfer of the child from one parent to the other needed to take place at a neutral location with the supervision of a third party. The court found this would create a “stumbling block” and hamper the boy’s enjoyment of the visitation, and noted that the attempt to delegate to others “allows the parents to avoid their duty and obligations as parents to act as parents.”

For the full text of the decision, see:

Black v. Barnett, 1991 CarswellOnt 1455, [1991] W.D.F.L. 965, 28 A.C.W.S. (3d) 208

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

Mom Fails to Tell Dad that Their Kid is in Santa Parade – One of Many Instances of Parental Alienation, Court Finds

parade

Mom Fails to Tell Dad that Their Kid is in Santa Parade – One of Many Instances of Parental Alienation, Court Finds

In a case called Ottewell v. Ottewell, the parents were married about five years when they separated. Since that time, the mother had custody of the two children, with the father regular access on an informal schedule that was reached without the court’s direct involvement.

In light of his ongoing frustration with the mother and what he viewed were her attempts to squeeze him out of the children’s lives entirely, the father went to court to have a formal determination on custody and access. He also put forward a Proposed Parenting Plan for the court’s approval.

After praising the father for his clear care and concern for the children, for his straightforward and forthright testimony, and for his rational and thoughtful approach to keeping his children’s best interests uppermost, the court had less kind words for the mother. It declared her to be “consistently evasive, woefully inconsistent and wholly unreliable as a witness”, adding that “[h]er credibility was undermined, not just by her own confusing, contradictory and unsupported direct testimony, but also by her pattern of evasiveness in answering direct questions put to her…”

In assessing the custody and access issue, the court focused on what it concluded were demonstrable attempts by the mother to alienate the children from the father. These included incidents where she:

• Refused to speak with the father directly, made derogatory statements about him to the children, and portrayed him as dangerous.

• Exaggerated his negative attributes, omitted the positive ones, and tacitly approved the children’s critical or negative behaviour or comments toward him.

• Made numerous allegations about the father to the Children’s Aid Society.

• Spoke disparagingly about the father’s new girlfriend, which confused the children about how they should behave since they had fun while with her.

• Raised questionable concerns about matters such as the children’s safety, unilaterally altered the agreed times and dates of the children’s access to their father, and undermined his authority in front of them.

The court illustrated the mother’s overall strategy towards alienation with some concrete incidents. For example:

• At the children’s school – and in front of the children and others – she threw away the lunch prepared by father, and replaced it with a lunch that she had prepared.

• She told the father the children were “unavailable” on a day he wanted to take them to a work-related Christmas party, when in fact the son was part of a float at a Santa Claus parade. (The father testified that he would have attended the parade to spend time with the children if he had been advised of the event).

In the end, the court found that this pattern of alienating and disenfranchising the father “should be viewed as grave”, concluding as follows:

In the case at bar, I find that the mother has chosen a course of conduct that is injurious to the children’s healthy contact with their father. She clearly has no insight into how her conduct is impacting negatively on the children. She has shown no willingness to take responsibility for the conflicts and stress that have dominated this unfortunate situation. … She has used her time and energies to thwart access.

Both the Children’s Law Reform Act and the Divorce Act direct that court only take into account a parent’s past conduct if it is relevant to the person’s ability to act as a parent. I find that the past conduct of the mother, which has continued up to the present, must be taken into account. A parent must be prepared to promote the other parent as an important part of the children’s lives and refrain from denigrating, minimizing, or alienating that other parent. This, [the mother] has been unwilling or unable to do. I have no confidence that this pattern of conduct will cease.

The court ordered that the father was to have primary care of the children, and confirmed that his Proposed Parenting Plan had the best chance of achieving stability and predictability for the children, while still maximizing the time spent with each parent.

For the full text of the decision, see:

Ottewell v. Ottewell, 2012 ONSC 5201 (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

sad santa

U.S. Judge Sends Kids to Jail for Snubbing Dad

bad boys

U.S. Judge Sends Kids to Jail for Snubbing Dad

We all know that the break-up of a family can be hard on children, partly because they may feel they are being unwillingly wrenched away from one of their parents, or because they may feel they have to “choose” between them. The situation gets even more fraught when the acrimony between parents gets transferred to the children, by way of one parent trying to “poison” the children against the other one.

In a Michigan case heard in late June of this year, the judge concluded that three children had been subject to this sort of “brainwashing” – better known in legal circles as “parental alienation” – by their mother against their father. Against the background of five full years of legal wrangling by the parents, the children (aged 9, 10, and 15, and living full-time with the mother) refused to have anything to do with the father, and would not even talk to him.

Despite placing the blame squarely on the mother for the children’s uncooperative conduct, the judge declared the kids in contempt, primarily for being completely unwilling to establish a healthy relationship with their father. She initially ordered all three to spend the rest of the summer in a juvenile detention facility, and added that they would not be permitted to visit with their mother (who was herself in breach of several court orders). The detention order would be reviewed, the judge said, when the children indicated willingness to at least dine with their father and be “normal human beings”.

The judge made this contentious order over the objections of both parents, but noted that the children were each represented by lawyers who had no concerns about this admittedly unusual ruling.

Needless to say, the judge’s order garnered significant controversy and backlash in the media and among the legal community. The judge subsequently defended her decision to the press, pointing out that this was an unusual scenario and that all other avenues had been exhausted. She also noted that the children were housed in a short-term facility within the juvenile detention center, and not amongst the young criminal offenders.

(In a later development in early July, after the children had already spent a few weeks in juvenile detention, the judge reversed her initial order and had the children transferred to a summer camp instead).

Do you think that the judge went too far in this case? Should kids be strong-armed into maintaining a relationship with one or both of their parents?

For a sampling of some of the media coverage of this story, see these links:

media coverage 1

media coverage 2

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

 

Ontario Child Custody, Who is Considered a Parent? – video


Wednesday’s Video Clip: Ontario Child Custody and Who is Considered a Parent?

When it relates to family law, a parent can be the birth mother or father, an adoptive parent, or a step-parent.

In this video we review who is considered a parent for the purpose of child support, along with the role of step parents.

Show me the Money!!

MC 

Show me the Money!!

Popular gossip magazines and entertainment shows track the steps and missteps of high-paid young stars and entertainers like our own Canadian-grown Justin Bieber. While few of us will ever have minor-aged children who earn megabucks in the entertainment industry, most of us could face a situation where our children receive money or property before they turn 18. For example, a child may inherit money from grandparents, or may be entitled to receive accident benefits or the proceeds of an insurance policy for which the he or she is the beneficiary.

So who manages the money?

Parents often assume – quite incorrectly – that they are automatically entitled to have control over any funds that their under-aged child might be entitled to. This is simply not the case. Nor is it correct to assume that the child always gets the money directly.

Rather, under an Ontario law called the Children’s Law Reform Act, a child is only entitled to receive the money directly into his or her hands if the amount is under $10,000 and the child has a legal obligation to support another person. Funds under that dollar-figure can also be paid to a parent or person with lawful custody.

Otherwise, if the amount that the child is receiving or inheriting is over $10,000, then the money is “paid into court” to the Accountant of the Ontario Superior Court of Justice, who takes legal control of it in trust for the child, and holds it for the child’s benefit until he or she turns 18.

However, the law allows for one or both of the child’s parents to apply to the court to be appointed as “guardian” of the money, and become responsible for its management. (And the Office of the Children’s Lawyer must get notice of these kinds of applications). In deciding whether to grant this kind of appointment, the court must take into account various factors including:

• The guardian’s ability to manage the child’s property;

• The merits of the guardian’s proposed plan for the management and care of the child’s property; and

• The child’s views and preferences.

A parent appointed as guardian has a legal obligation to account for every transaction that involves the child’s funds, and must undertake meticulous record-keeping. He or she is also entitled to be paid compensation in a specific court-ordered amount, in return for those money-management duties.

If you are in a situation where you are considering applying to be appointed legal guardian over the money or property belonging to your child, we can help explain your rights and obligations.
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with all 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.

Family Matters Season 2 Trailer is Out

Family Matters Season 2 Trailer is Out

 
In its second season Family Matters with Justice Harvey Brownstone, is the only TV show ever hosted by an actual sitting judge. Justice Brownstone is the author of the bestseller: Tug of War: a Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court. He is considered the ‘face and voice of the Canadian justice system;’ and is likely the most recognizable judge in the country.

Family Matters focuses on the relationship between modern family issues and the justice system, covering topics such as Internet dating, spousal and child support, addictions, parenting, social media, bullying, domestic violence, same-sex marriage/parenting, adoption, child protection, and infidelity. Justice Brownstone interviews social workers, lawyers, mediators, judges, psychologists, and everyday people to inform and entertain viewers on topics usually not discussed in a sophisticated, intelligent manner on TV.

To learn more visit Family Matters online.

Do Sperm Cells Constitute “Property” Subject to Division After Separation?

sperm

Do Sperm Cells Constitute “Property” Subject to Division After Separation?

Here’s a new one: In a recent British Columbia case called M. (J.C.) v. A. (A.N.), the court was asked to consider the interesting issue of whether 13 sperm straws (which are the vials containing a sperm donation), were “property” in the context of a Family Law case involving a separated couple.

During their 8-year relationship, the female same-sex partners had each given birth to one child apiece, with the children having been conceived through therapeutic insemination with sperm from the same donor.

When the couple later separated, they entered into a separation agreement which dealt with child custody and support. It also purported to deal with division of their joint property; however, the division of the sperm straws, which were being stored at a fertility clinic, was inadvertently overlooked. Each sperm straw had cost about $250, and had been donated by a donor who had “retired from the program” and was no longer giving donations.

When one of the ex-partners later entered into a new relationship, she wanted to have a second child using the remaining sperm straws that were stored at the clinic. (This would ensure that her second child was biologically related to the first one). She offered to pay her first spouse $250 each for half of the sperm straws. The first spouse, however, preferred to have them destroyed.

This is when the matter came before the court for a ruling.

The court was asked to decide whether the sperm straws were “property”, and whether the best interests of the existing children, plus any future offspring from the same donor, should be considered in determining what should be done with them.

The court considered a selection of cases from around the world, illustrating how the courts of different jurisdictions had treated the important legal and ethical issues that arise from dealing with the ownership of items such as semen samples, embryos, sperm, corpses, human body parts, and other substances that are “generated by the human body.”

Ultimately – and while noting that “the court is ill-equipped to handle moral and philosophical arguments – it ruled that the 13 sperm straws were indeed “property”, and that they should be divided equally between the former partners. However, the best interests of the children that had already been born from the particular donor’s sperm straws, as well as any future children that might be born, were not part of the consideration. Trying to analyze (and potentially place limits on) the use to which a couple could use the sperms straws would be “borderline discriminatory”. Moreover, identifying the best interests of a child yet unborn would be merely speculation.

For the full text of the decision, see:

M. (J.C.) v. A. (A.N.), 2012 BCSC 584 http://canlii.ca/t/fr3z5

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