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Posts from the ‘Spouse’ Category

Court Finds Husband Just “Going Through the Motions” on His Job Search

Court Finds Husband Just “Going Through the Motions” on His Job Search

One of the basic principles underpinning Ontario family law, is that the parties must behave with good faith towards each other in when participating in the separation and divorce process. And courts are wary – and frequently critical – of spouses who do not behave this way.

This is illustrated in the decision in Cammaroto v. Cammaroto. There, the couple had married in 2000 after a 2-year long distance relationship, with the 48-year-old husband moving from New York to be with the wife in Ontario. He had expected to easily find work in the retail travel industry, but this never panned out, and he began to drink heavily. Meanwhile the wife, aged 44, was working 12-hour shifts in her job as a nurse.

By 2008, the relationship deteriorated to the point where the husband communicated with the wife mainly by giving her notes and list. Still, the couple continued to live together under the same roof for several more years.

As part of their divorce proceedings, the court had to decide whether the husband should be entitled to spousal support from the wife, who had been supporting him for the entirety of their marriage.

To make this determination, the court had to consider the couple’s overall relationship. In the husband’s favour was the fact that he had moved from New York and left behind a secure job. But by 2006, which was 6 years into the marriage, he had made virtually no genuine effort to find work and the wife had clearly run out of patience. The court concluded that the husband’s failure had been “a very significant cause of the marriage break-down”, and that his alcohol consumption also contributed to it.

The court itemized the husband’s so-called efforts to find work in this manner:

Exhibit 29 records [the husband’s] attempts to find employment. It illustrates a wide ranging attempt at looking into potential jobs, even low level employment such as flyer deliveries, gas bar employment and entry level sales positions. It records a range of dozens of small local employers as well as large chains such as Walmart, Staples, Rogers, Canadian Tie, Home Depot, the LCBO, several hotel chains, Zellers and Leons.

The most impressive aspect of [the husband’s] attempts to find employment are the personalized and well-written cover letters that he sent with resumes or job applications. Superficially, the documentation of [the husband’s] employment search over the years 2000 – 2006 is impressive. However, on closer examination it is apparent that [the husband] was “going through the motions”, documenting many contacts from ads for jobs that he must have known he could not do or would not accept even if he could get a job interview. Some of the content of Exhibit 29 is clearly an attempt to “pad” his efforts to find employment. For example, it is rather silly to include employment as a flight attendant, a short-order cook, a store manager, etcetera. The actual number of job interviews he got over the years was few.

In 2001, [the husband] applied for 17 jobs in total, never more than three in any given month. He agreed on cross-examination that it was not a “diligent” job search that year. In 2002, he made one job application and in 2003, 31. He admitted on cross-examination that many of the “applications” were for jobs he could not do anyway. …

It is also hard to escape the inference that Mr. Cammaroto deliberately sabotaged the only successes he had.

He obtained a job in the travel industry in 2003 but quit the job after taking the initiative with U.S. authorities to check if he could be “in trouble” as a U.S. citizen selling trips to Cuba. He blew the whistle on himself. Then, when told it was not a problem to work for a travel agency selling trips to Cuba so long as he didn’t do so personally, he quit the job anyway.

He was hired as a security guard in December 2005 or January 2006 but quit that job before his first shift to take another travel agency job that lasted only a few weeks.

In April 2006 he was hired at Stock Transportation to drive autistic children in a van but quit during the training session because the children were “wild and noisy” and he was afraid he would crash the vehicle.

There are other examples of how he thwarted actual employment opportunities himself or wasted his time on obviously fruitless pursuits. It is hard to know whether he was genuinely interested in working or just kidding himself. He turned looking for a job and the documentation of his efforts into a job itself. By 2006 he had given up any real effort. Perhaps even before that.

The court also noted that by 2010, when he and the wife were still living together, he was actively looking for other relationships on Match.com under what he called his “contingency plan”. It ultimately concluded that the husband’s lack of genuine job-hunting had been deliberate:

[The husband] admitted that as early as 2008 he was aware of the “rule of 65” in the spousal support advisory guidelines, referencing the principle that if a dependent spouse’s age plus years of marriage equals or exceeds 65 then recommended spousal support should be for an “indefinite” duration.

It is clear from all the evidence that [the husband] was determined to delay the inevitable separation as long as possible to maximize his entitlement to support and not because there was any realistic hope, even in his own mind, that a true marital relationship would ever resume.

Still, the court observed that at the time of the trial, the husband had been out of the workforce for 15 years, and had depression, anxiety, and some other mental health issues that clearly pre-dated the marriage. In these circumstances, he was entitled to some time-limited support from the wife, who had the ability to pay from her $90,000 income as a nurse.

For the full text of the decision, see:

Cammaroto v. Cammaroto, 2015 ONSC 3968

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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Personal Injury Structured Settlements: Are They “Property” or “Income” Upon Divorce?

Personal Injury Structured Settlements: Are They “Property” or “Income” Upon Divorce?

In a recent family case called Hunks v. Hunks, the court considered whether structured settlements – such as the type that are reached as part of a personal injury claim – are considered “property” or else “income” for the purposes of the property-division and equalization regime under the Ontario Family Law Act (the “FLA”).

In that case, Donna and Gary got married in 1995. A few months later, Donna suffered an injury at a supermarket that left her disabled.   She successfully sued the supermarket, and was awarded more than $500,000 in compensation. After using spending about $200,000 for family-related needs, she used the rest to purchase a structured settlement (which is a mechanism by which a personal injury victim such as Donna could receive her settlement funds on a fixed schedule, rather than all up-front).

That structured settlement was arranged so that she would receive $1,290 per month for the rest of her life, as well as a lump-sum payment of $15,000 every five years (to a maximum of four such payments). All of this was subject to a small annual increase.

Unfortunately, the marriage between Donna and Gary did not flourish, and they separated about 15 years after Donna’s accident. In the course of settling out their financial affairs through the customary equalization process mandated by the FLA, the issue arose as to how the structured settlement should be properly characterized.

A lower court found that conceptually, a structured settlement was similar to a “pension” and rather than be excluded it formed part of Donna’s matrimonial property that was subject to equalization.

However, the Court of Appeal later overturned that ruling.   That court found that the structured settlement was essentially a special type of annuity, and it was more analogous to disability benefits. Under Ontario law, such benefits are considered “income” for FLA purposes, and while not subject to the equalization process per se, they are considered in determining spousal support levels.

For the full text of the decision, see:

Hunks v. Hunks, 2017 ONCA 247 (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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Wednesday’s Video Clip: Top 5 Questions About Spousal Support in Ontario, Canada


Wednesday’s Video Clip: Top 5 Questions About Spousal Support in Ontario, Canada

In this video we review the top 5 questions about spousal support in Ontario, Canada.

Spousal support – which is sometimes called “maintenance” or (especially in the U.S.) “alimony” – is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship. Either spouse can make a claim for it, provided:

• the spouses have lived together in a “marriage-like relationship” for at least three years; and
• the claim for spousal support is made within one year of couples’ separation.

The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.

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

Does the End of the Relationship Have to be a Two-Sided Decision?

Does the End of the Relationship Have to be a Two-Sided Decision?

In an older case called Strobele v. Strobele, the court considered a narrow and easily-overlooked question:  If spouses agree to separate and one of them wants to reconcile but the other does not, how do you know when the marriage is officially over for the purposes of valuing the marital property?

After a lengthy marriage, the couple was beginning to have marital difficulties.  After enlisting the help of another couple who were mutual longtime friends, they agreed to a written plan of action that involved the wife leaving the matrimonial home for two months.  The idea was that the spouses would get some time and space from each other, seek support and perhaps some counselling, and then regroup to re-evaluate their marriage.

The court heard evidence that although even though it was not his idea, the husband was willing to participate in the plan, even though the wife had a “firmer goal” of reconciling than he did at that point. As the court explained:

[The wife] sought a commitment from [the husband] that he would not have other women in the house during that time. [The husband] demurred and it was left that each would do as she or he pleased during that time apart. … [The wife] makes the point that she only agreed to leave on the understanding that she was not abandoning the home or the relationship and I accept and I think it is clear that she was not abandoning either at that time. It does seem clear that [the husband] was more ambivalent about the long-term prospects than was [the wife]. He would not agree to the monogamy stipulation during the time apart and he required the two-month limit on the period they would cohabit after the time apart.

As it turned out, when the two months was up the husband told the wife that he did not wish to reunite after all, and that the relationship was over.  After a brief return to what was now a tension-filled home, the wife moved out permanently and started divorce proceedings.

This gave rise to a legal question, namely the date on which the couple could be said to have formally separated, for the purposes of pinpointing the valuation date for the equalization of their matrimonial property.  The wife placed the separation date as being the point at which the husband stated he did not wish to reconcile (i.e. after the two-month break), whereas the husband claimed it was a full six months earlier.

The court pointed out that under the Ontario Family Law Act, the valuation date is defined to be “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.”  Although there is no single factor that determines when this legislative test has been met, the key issue is when the parties know, or – acting reasonably – ought to have known that their relationship was over and would not resume.  The court said:

Continuation of a relationship requires two people. Either can end the relationship without the consent of the other. As a matter of common sense, there will be many cases where one spouse knows that there will be no reconciliation and the other does not because the one has decided he or she does not wish to reconcile, but the other does not yet understand this. A fair determination of this issue requires that an objective eye be cast upon the unique circumstances of the couple. 

Turning that “objective eye” to the couple’s situation, the court ascertained that the separation date was immediately after the two-month break, when the husband indicated a firm intent not to reconcile. At that point, there was no reasonable or foreseeable prospect that they would resume cohabitation, and the marriage had irretrievably broken down.

In contrast, the earlier negotiations mediated by the other couple, and the action plan involving the two-month separation, still pointed to both spouses entertaining the possibility that the marriage could be saved, even if the wife was hoping for that outcome more than the husband.For the full text of the decision, see:

Strobele v. Strobele, [2005] O.J. No. 6312, 34 R.F.L. (6th) 111

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: Two Necessary Evils – Know Your Obligations Re: Income Tax and Spousal/Child Support


Wednesday’s Video Clip: Two Necessary Evils – Know Your Obligations Re: Income Tax and Spousal/Child Support

Income tax: Not a popular concept even at the best of times. But add in the obligations, which arise in the context of paying child or spousal support, and it’s enough to cause heart palpitations in most Canadians.

This is because the Canada Revenue Agency rules relating to how support payments are to be treated are quite complex. To make things more confusing, the federal Income Tax Act has separate rules for spousal support as opposed to child support.

In this video we review some key points to keep in mind.

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

Justice Pazaratz Blasts Father for Using Mother’s Sexy Selfies in Court

Justice Pazaratz Blasts Father for Using Mother’s Sexy Selfies in Court

Recently I’ve highlighted some of the rulings by the often-outspoken Ontario Superior Court Justice Pazaratz. The decision in S. (J.) v M. (M.) is the next in line, and involves Justice Pazaratz lambasting the father in a custody battle for filing inappropriate materials with the court as part of the parties’ custody battle. Specifically, he filed sexually-explicit selfies that he had retrieved from the mother’s discarded cell phone, among other salacious images and text.

In a sharply-worded preface to his finding that the irrelevant and scandalous materials did nothing to assist the father in his interim custody determination, Justice Pazaratz focused on the impact of his conduct from the child’s perspective, and on the needlessly-hurtful approach to the parents’ litigation.

Justice Pazaratz wrote:

Do nude pictures of parents help judges decide who should get custody?

A silly question?

Why then, on this motion for temporary custody, has the Applicant father attached to his affidavit a series of sexually explicit “selfies” of the mother, retrieved from her discarded cell phone?

And why did he attach dozens of screen shots of the mother “sexting” with another man, describing her sexual preferences in graphic detail?

If the objective was to humiliate the mother, undoubtedly the father succeeded.

But how does humiliation help in family court?

How does irrelevant and scandalous information help a judge determine the best interests of the child?

More importantly — from the child’s perspective — what is the long-term impact of this needlessly hurtful approach to litigation?

a. How will this family ever heal?

b. How will the parents ever again be able to get along?

c. Can cheap shots ever be forgiven?

Justice Pazaratz also lamented the lack of decorum and privacy sensitivity by Family litigants:

Separating parents are already in crisis.  Our court process can either make things better or worse.  And our success will hinge in part on our ability to address the modern realities of technology and social media.

Between e-mails, Facebook, Twitter, texts and selfies — privacy and discretion seem a thing of the past.  These days there’s no shortage of really embarrassing stuff couples can dredge up against one another — if that’s really the path we want to encourage.

But what about relevance (never mind dignity)?

Finally, in his customary blunt manner, Justice Pazaratz summed up his impressions of the father’s “cheap shot” tactics this way:

… [W]here behaviour is neither unusual, illegal nor disputed, there’s no need to inflame tensions by attaching texts and pictures that tell us nothing we need to know.

In this case, a fundamental evidentiary issue relates to the father’s unauthorized use of the mother’s discarded cell phone.

But more to the point, the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet:  The mother has a sex life.

Big deal.

For the full text of the decision, see:

J.S. v M.M., 2016 ONSC 2179 (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

Ontario Superior Court Justice Pazaratz Speaks Out Against Legal Aid Squandering – Again

Ontario Superior Court Justice Pazaratz Speaks Out Against Legal Aid Squandering – Again

A recent Family law decision by Justice Pazaratz of the Ontario Superior Court of Justice caused a stir this past few weeks. In his written endorsement of a consent order, he bluntly stated that the case before him should not have been dragged out so long, and should not have been funded by public coffers so indiscriminately. He chastised both Legal Aid Ontario and the parties themselves for “squandering scarce judicial and community resources”, writing:

After confirming that Legal Aid was paying for all of this, I couldn’t help but ask some obvious questions:

a. Is it fair for people who have never paid any taxes to be so cavalier about how they spend other people’s money?

b. Is it fair that Legal Aid has decided to fund this easily resolvable case, when every day I see people with much more serious and complex problems who have been denied any help by Legal Aid?

c. Is it fair that more important cases, many involving the well-being of children, couldn’t be dealt with on March 9, 2017 because our court was required to devote one of our limited timeslots to this case?

The balance of the decision has much the same no-holds-barred tone. And while his comments might be unusually critical and frank for a judge, this isn’t the first time Justice Pazaratz has spoken out this way.

In several prior cases he provided similar disapproval of profligate spending on needless motions and other procedural wrangling — whether paid by from the public purse or otherwise.

For example, in Scipione v Scipione, he railed against Family law litigants who run up legal costs, and then ask the losing party to pay them. In explaining that costs rulings are to be directed by an “overall sense of reasonableness and fairness”, he added that “The Rules [of court] do not require the court to allow the successful party to demand a blank cheque for their costs.”

Next, displaying perhaps a little more creative flair, in Izyuk v Bilousov, Justice Pazaratz wrote:

The popular beverage has a catchy slogan: “Red Bull gives you wings.”

But at this costs hearing, the self-represented Respondent father suggested a wry variation:  “Legal Aid gives you wings.”

He now seeks costs in relation to a 1- day custody trial … He won; sole custody.  The Applicant mother was represented by counsel.  Her poor finances qualified her for Legal Aid.   Now she says those same poor finances should excuse her from paying costs.

The Respondent asks a valid question:   Does she have wings?   Can she do whatever she wants in court, without ever worrying about fees – hers or anyone else’s?

Justice Pazaratz ultimately made the following ruling:

In the case at bar, the Applicant conducted herself as if her Legal Aid certificate amounted to a blank cheque – unlimited resources which most unrepresented Respondents would be hard-pressed to match.  A scheduled 3-4 day trial turned into 17 days, largely because the Applicant fought every issue and pursued every dubious allegation, to the bitter end.  She appeared to make up evidence and allegations as she went along.  She defied court orders directly impacting on the child, even while the trial was underway. There have to be consequences.  Either we sanction this irresponsible and destructive behaviour, or we invite more of the same.

Encouraging settlement and discouraging inappropriate behaviour by litigants is important in all litigation – but particularly in family law, and most particularly in custody cases.  No litigant should perceive they have “wings” – the ability to say or do anything they want in court, without consequences.

Returning to the most recent of decision that is now under controversy: It’s a 2017 case called Abdulaali Salih in which Justice Pazaratz simply turns up the volume a little, on what has apparently become a recurring theme with him.

To give his latest comments context: The divorcing husband and wife, both of whom had immigrated from Iraq and had never worked in Canada, were both monthly recipients of government money from the Ontario Disability Support Program. Their litigation was being funded by Legal Aid Ontario, and since they had “no children. No jobs. No income. No property. Nothing to divide.”, he added that it should be “a simple case”.

Yet the couple had repeatedly returned to court to settle even minor issues, and seemed to have no impetus to slow down the steady stream of hearings between them. In expressing his exasperation at the needless dissipation of public money, Justice Pazaratz wrote:

At the March 9, 2017 attendance, apart from paying for the lawyers, taxpayers also had to pay for the following government employees to be present in Courtroom #5 to deal with this matter:

 a. A Court Services Officer.

 b. A Court Reporter.

 c. A Court Registrar.

 d. And me.

I have no idea how much the other players in the courtroom get paid. But as a Superior Court Judge I receive approximately $308,600.00 per year. So you can see that not even counting overhead charges and administrative staff in the building, every hour of court time is hugely expensive.

Many taxpayers can’t afford their own lawyers, and don’t qualify for free assistance through Legal Aid. So they end up representing themselves in court. Or facing financial reality and settling without going to court.

But when you pay no taxes and Legal Aid gives you a free lawyer, there’s no incentive to be sensible. Why worry about the cost when some unsuspecting taxpayer out there is footing the bill?

Clearly Justice Pazaratz has an axe to grind. Does he go too far? Or is he right?

For the full text of the decisions, see:

Scipione v Scipione, 2015 ONSC 5982 (CanLII)

Izyuk v Bilousov, 2011 ONSC 7476 (CanLII)

Abdulaali v Salih, 2017 ONSC 1609 (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

 

UK Tightens Immigration Rules for Foreign Spouses

UK Tightens Immigration Rules for Foreign Spouses

In a controversial decision the Supreme Court of the United Kingdom has recently upheld the legality of immigration rules that imposed requirements on its British citizens to have a certain level of income before they are able to bring their spouses into the country. These contentious “Minimum Income Rules”, which came into force in 2012, had been challenged by four couples who asserted that they breached their basic human right to have a family life.

The rules require that, before being allowed to bring a spouse to live with them from another country outside the European Economic Area, a British citizen (including a recognized refugee) must have a minimum annual income of at least £18,600 (around CDN$30,600). The couples who contested the rules had argued that the income threshold was set too high, particularly since it increased with each additional child that needed to be supported.

This addition of a set income requirement reflects a stark change from the previous rules, which prior to 2012 had required only that the spouses could establish an ability to support themselves without needing to avail themselves of welfare payments from the UK government.

Although the UK Supreme Court’s ruling confirms that the rules did not violate human rights legislation, it also recommends they be amended, since the current incarnation does not adequately account for the best interests of the children, and neglects to consider other sources of income that the spouses might have.

This UK development is in stark contrast to the immigration policy in Canada, where applicants must prove only that they have enough income to provide basic needs for the spouse or his or her dependent children. (Although those who want to sponsor parents or grandparents are subject to specific income-level requirements and a new process for applying starting in 2017).

And by announcement made December 15, 2016, the Canadian Government has indicated that the department of Immigration, Refugees and Citizenship Canada will be speeding up the processing for spousal sponsorship applicants, as part of its commitment to family reunification. Most applications will be processed within a year of a person applying.

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

Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

I have written previously about a relatively new cause of action in Canada called “intrusion into seclusion.” It is essentially a privacy-based tort claim that a person can assert by establishing damages from an unauthorized intrusion into his or her private affairs by someone else.

Recently, this new type of tort has been successfully claimed in the Family Law context by a wife against her estranged husband, in a case called Patel v Sheth.

The couple had been married for about 3 years when they separated for the first time, with the wife moving out of the matrimonial home. Shortly after they made an effort to reconcile, but matters became increasingly acrimonious and they separated for a final time about 8 months later.

At one point during their reconciliation attempt, when the wife was taking steps to gradually move back into the home, the husband surreptitiously installed a video camera in the bedroom, hiding it in a BMW keychain placed on an armoire. The camera faced the bathroom.   Given its placement, the camera would have caught the wife in the act of getting undressed.

The wife found the camera in the bedroom after their final separation, when she was moving furniture around.

As part of their later divorce proceedings, the wife added a $50,000 claim in damages against the husband, for his having intruded on and breached her privacy by installing the hidden camera in such a highly personal area of the home.   She asserted that she was offended and embarrassed.

In explanation, the husband claimed he installed the camera ostensibly for his own protection, since at one point the wife had falsely accused him of assault. Claiming that he never downloaded any of the images it may have recorded, he asserted that the wife suffered no damages.

In considering this scenario, the court concluded that even though the cameras did not capture any explicit images, the potential to do so was real. The privacy intrusion took place in the context of a domestic relationship, and in the court’s view it was also an “extremely aggravating” factor that the husband had initially lied about the camera under oath during discovery, and even tried to blame the wife.  (He later admitted to that lie at trial).

Furthermore, the husband’s explanation for installing the camera made no sense: If he was concerned about further assault allegations being levelled at him, there were many other rooms in the house where physical violence could conceivably take place. Yet he did not bother to plant hidden cameras anywhere but the bedroom.

The court ultimately held that the wife was entitled to damages of $15,000, observing that although she was shocked and embarrassed, there was no medical evidence filed to support any significant effect on her health. The court also held that this was not a case for additional punitive damages to be awarded.

For the full text of the decision, see:

Patel v Sheth, 2016 ONSC 6964 (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