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Posts from the ‘Step-Children’ Category

If a Biological Parent is Paying Child Support, Does a Step-Parent Still Have to Pay?

If a Biological Parent is Paying Child Support, Does a Step-Parent Still Have to Pay?

In Stetler v. Stetler, the mother and had a child with a man (the biological father). The mother then married a second man (the step-father), and the relationship lasted eight years before they separated. During that entire time, the step-father treated the girl as his own, and supporter her financially as part of his role in the new family.

Meanwhile, the mother was still receiving child support from the girl’s biological father, even though he had never seen or even met his daughter.

When the mother and the step-father eventually separated, the step-father took the opportunity to deny having any obligation to support the girl, who was now 13 years old. He bolstered this position by pointing out that she no longer wanted to see him after he separated from the mother. (Apparently, however, this estrangement could have been remedied had the step-father apologized to the girl for a particular incident, which he stubbornly refused to do).

Despite the continued payment of child support from the biological father, the mother brought a court application claiming child support from the step-father as well. Among the legal issues was whether in these circumstances the step-father should still be obligated post-separation, particularly in light of his evident intention during the marriage to support her as a parent would.

The court concluded that he was. As the court put it:

The [step-father] seeks relief on support for [the child] because of what he calls “double dipping”, represented by the support currently being paid by the biological father. Gratuitously, he argues that [the child] chose not to see him and he shouldn’t have to pay support because of the biological father’s support. … With respect to [the child], I am guided by s.5 of the Child Support Guidelines.

Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these guidelines and any other parent’s legal duty to support the child.

The unseen biological father of [the child] has been fulfilling his obligation to the letter of the law the whole while. This does not give the [the step-father] a free ride. The [step-father] has an obligation to support this child and in my view, the appropriate order is set out in the Supreme Court of Canada case, Chartier v. Chartier, … which says this:

The contribution to be paid by the biological parent should be assessed independently of the obligations of the step-parent. The obligation to support a child arises as soon as that child is determined to be “a child of the marriage”. The obligation of parents for a child are all joint and several. The issue of contribution is one between all of the parents who have obligations toward the child, whether they are biological parents or step-parents; it should not affect a child.

In the end, the court ordered the step-father to pay one-third of the total child support owing for the girl, with the unseen biological father to continue paying the remaining two-thirds.

For the full text of the decision, see:

Stetler v. Stetler, 2012 ONSC 4466 (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

Biological Father Responds to Court Documents by Scribbling “a Very Offensive Word” – Can His Consent to Adoption be Dispensed With?

offensive

Biological Father Responds to Court Documents by Scribbling “a Very Offensive Word” – Can His Consent to Adoption be Dispensed With?

Under what circumstances will a court trump a biological parent’s legal right to give consent to the adoption of his or her child by another person?

This was the issue raised in a recent Ontario decision. The step-father of the 10-year-old girl had married her mother (who had sole custody), after dating her for about five years and living with her for four. He had always treated the girl as his own, and had supported her financially, emotionally, and physically. He participated in her education, made medical decisions for her, and they shared a deep emotional connection. Plus, the girl had always viewed the stepfather as her parent and called him “dad” of her own accord.

In stark contrast, the girl’s biological father had absolutely no relationship with her: Not only had he not seen her for the past 8.5 years, he had never even asked to do so. Child support was something he paid only involuntarily. He had been verbally and physically abusive to the mother throughout their 5-year relationship, which started when she was just 17 years old.

After being advised repeatedly that the stepfather wanted to adopt the 10-year-old girl as his own, the biological father contacted the mother through Facebook to suggest that he would give his consent in exchange a $10,000 fee.

Instead of paying up, the stepfather simply applied to the court, asking for an order that the biological father’s consent to the proposed adoption could be dispensed with.

The court readily agreed.

For one thing, even at her current young age the girl herself had consented to the adoption, and was keen for it to proceed. She was very family-oriented, and – since the stepfather and the girl’s mother had a 3-year old together, and were expecting another child – it made her anxious and distressed that the rest of her family and siblings had a different last name. That last name was really her only tie to her biological father, since she had no recollection of him.

In light of the biological father’s obvious disinterest in the girl, and the stepfather’s unfailingly positive involvement, it was clearly in the girls’ best interests to grant the order, the court found.

Incidentally, the biological father did nothing to help his own case: despite being properly served with the stepfather’s court documents, he failed to even file a response and did not appear in court. Indeed, he returned the court documents in a less-than-mature and uncooperative manner, as the court explained:

He apparently opened the envelope, read the contents, scribbled randomly on one of the pages of an affidavit; wrote a very offensive word in bold letters on one of the pages, and then re-sealed and sent the envelope back to the [mother’s] counsel marked “Return to Sender”.

For the full text of the decision, see:

S.M.L.L. v. J.K.M., [2016] O.J. No. 2519, 2016 ONSC 3198

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

Who Pays Child Support in Ontario?


Wednesday’s Video Clip: Who Pays Child Support in Ontario?

Parents have a legal responsibility to support their dependent children to the extent that they can. In this video, we discuss who is responsible to pay child support and why.

How is Shared Custody Calculated? Daily? Hourly?

calculation

How is Shared Custody Calculated? Daily? Hourly?

Under the federal Child Support Guidelines, there are certain rules that apply specifically to calculating child support in cases where a “shared custody” arrangement is in place. The Guidelines define this as being those situations where a parent has access or physical custody of a child for “not less than 40 percent of the time over the course of the year”. (And note that the fact that parent with access newly hits that 40 percent mark does not mean that he or she automatically pays less child support; it means only that a court is required to take certain specified factors into account in setting support amounts in such cases).

But how is that 40 percent threshold properly determined? By counting days? Hours? Minutes?

A recent case called L. (L.) v. C. (M.) adds clarity to this precise question. The court described the problem it was being asked to consider this way:

The mother and father have both provided calendars that apply their interpretation of the access and custody order. The father, who calculates his time in days (overnights), concludes that his access time is over 40 per cent. The mother, who calculates in hours, concludes that the father’s access falls well below 40 per cent. Both parties are very aware that this 40 per cent threshold is significant. I have now calculated based on their assertions and my conclusions and clarification.

The court then turned to reviewing the process by which the 40 percent custody is to be evaluated. For one thing, it noted that the Guidelines are not clear on precisely how the calculation is to be realized, and there is no court-endorsed universal method. On the other hand, it is clear that the threshold is strict, and that a court is not entitled to “round up” in cases that are on the border.

Next, the court observed that if a “days”-based approach is used, then a parent with access must have the child in his or her care for 146 days per year. If the calculation is based on “hours”, then the 40 percent threshold lies at 3504 hours per year. The method used can make a big difference. The court wrote:

With the changes in support that can stem from proceeding under s. 9 [the Guideline’s “shared parenting” provision] and the strict setting of the 40 per cent threshold, this calculation can be extremely significant. At times, calculating in days versus hours makes just the difference that moves the access parent into a situation where they exercise 40 per cent access …. For this reason, applying the appropriate method of calculation is crucial.
The answer as to which approach to take, according to the court, may have to be determined case-by-case. The Guidelines do advocate for a flexible and robust consideration of the parents’ individual circumstances; in some (though not all) circumstances, units smaller than days may be the fairest method of determining whether the 40 percent threshold has been reached. This can include an hourly accounting of time in the right circumstances.

(And as an aside, it is important to note that the calculation is based on the time the child is in the care and control of the parent, including time spent with nannies, or at school or day care, and time that the child spends sleeping at the parent’s house, etc. It does not count that the parent is merely physically present with the child).

Here, the court used the hourly approach and determined that the child was in the mother’s custody 67.4 percent of the time, and was with the father 32.6 percent of the time. The “shared parenting” threshold of 40 percent was not met in this case.

For the full text of the decision, see:

L. (L.) v. C. (M.), 2013 ONSC 1801 http://canlii.ca/t/fwslt

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.

Does The Age of The Child Affect Child Support in Ontario?


 

Wednesday’s Video Clip: Does The Age of The Child Affect Child Support in Ontario?

In this video Shelley discusses how and when the age of the child could affect child support and the importance of income, and how the age and needs of the child  should be considered.

Top 5 Kids’ Books About Divorce

top 5

Top 5 Kids’ Books About Divorce

When parents decide to divorce, their immediate focus tends to be on the details of their separation and the impending legal processes, which include making arrangements for day-to-day living, negotiating for proper support, and agreeing on and arranging for the division of property. And although the physical care and custody of any children of the marriage is often uppermost in most parents’ minds, the psychological well-being of the children can often get temporarily overlooked.

Here are some of the best books – aimed at the children themselves – that can help them deal with this difficult period:

1. When Mom And Dad Divorce

by Emily Menendez-Aponte and R. W. Alley (Jul 21 2006)

This book, which is available both in paperback and for download on Kindle, is written in a warm and reassuring tone, and is filled with comforting messages designed to help kids understand that they are not alone. It also emphasizes the point that the future will be alright – even if it is different from what they are accustomed to.

2. Two Homes

by Claire Masurel and Kady MacDonald Denton (Jul 14 2003)

Written in a positive and matter-of-fact tone, this book has a unique slant on divorce from a kid’s point of view, by focusing on what might be gained in the process rather than lost. It underlines the benefits to children of having two loving homes, each with their own environments and advantages.

3. Dinosaurs Divorce

by Marc Brown and Laurie Krasny Brown (Sep 1 1998)

This book is written for very young children, and features lively cartoon illustrations to help convey upbeat but straightforward information about why parents divorce, how living arrangements will change, what it means to have step-parents, and whether and how to tell friends.

4. The Suitcase Kid

by Jacqueline Wilson and Vicky Ireland (Nov 9 2010)

This book, available in paperback, hardcover, audiobook, and for Kindle, tells the fictional story of Andy West, a 10-year-old girl whose parents decide to divorce. Now that they have both remarried, Andy finds herself living out of her suitcase as she is shuttled back and forth between two houses, each of which feature new routines and new family members (in the form of step-parents and step-siblings). The book illustrates many important issues that plague the children of divorce, including an intense longing for the way things used to be.

5. What In The World Do You Do When Your Parent Divorce?: A Survival Guide for Kids

by Kent Winchester and Roberta Beyer (Mar 7 2007)

With its unusual question-and-answer format, this book sensitively answers those questions that kids have about divorce: what it is, why it happens, the logistics of living arrangements, and how to deal with the strong and confusing emotions that arise for those kids who find themselves in these scenarios. It is available in both paperback and for Kindle.

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 Russell Alexander.com

Don’t Use Your Kids as Messengers

messanger

Don’t Use Your Kids as Messengers

At one stage or another, almost every set of divorcing parents will experience situations of ill-will, conflict, heated arguments, (whether verbally or by email or text), and misunderstandings between themselves. Yet in most cases these same divorcing parents must nonetheless figure out a way to effectively communicate and deal with each other on an ongoing basis, since they will remain involved in the joint upbringing of their child.

In such scenarios, there are many ways to go wrong – but one of the most devastating and harmful mistakes from the standpoint of a child’s personal and emotional development, is to have the child serve as a “messenger” between the parents.

This involves asking or depending on the child to relay messages from one parent to the other, and can include things like:

• Requesting changes to access or custody schedules (“Tell your mother I can’t pick you up on Friday night this weekend, but I’ll come at 10 a.m. on Saturday”);

• Asking the other parent to take care of school or health-related obligations (“Ask your father if he made that appointment with your pediatrician, or whether I’m supposed to do it”);

• Soliciting information about general day-to-day matters (“Ask your mom if she knows where your blue ski jacket is”).

This is unhealthy for so many reasons. For one thing, it puts the child directly in the middle of any conflict between the parents, which is never a comfortable place for any child of any age to be. And all the more so where both parents have unresolved negative feelings toward each other, and end up inadvertently (or sometimes deliberately) conveying their anger or hurt through the child.

But even if the split is amicable, a child will naturally have intense feelings about the separation or divorce, and will feel conflicted about playing go-between.

Secondly, this places a great burden on the child, in terms of ensuring that the messages that are conveyed are accurate and timely. Yet as any parent knows, children are already notorious for not fully applying their listening skills and for forgetting things at the best of times, so to burden them with the responsibility of being an accurate messenger is unfair.

Bottom line: One of the duties of being an adult is to take responsibility for your own communications. More importantly, one of the responsibilities of being a parent is to do what’s best for your children. So keep the kids out of 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  Russell Alexander.com

So what are your thoughts and comments about using kids as messengers?

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/

Should Stepfather Pay Support if Biological Father Given a Pass?

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Should Stepfather Pay Support if Biological Father Given a Pass?

A recent Ontario case considered the question of whether a stepfather, who voluntarily assumed support responsibility for a stepchild, can have that obligation reduced because the child’smother fails or refuses to legally pursue a contribution toward that support from the child’s biological father.

In Truong v. Truong, the couple were married in 2003 and had one child together.  However the woman had been married before, and had a child from that relationship who was now 18 years old.   When the couple decided to separate and divorce, they agreed that the man would pay $1,000 per month for support for both children, based on his $72,000 annual income.  Primary custody was to remain with the mother.  

The man had been voluntarily contributing to the support of his 18-year-old stepson throughout the relationship, and had assumed a parental role toward him.   As such – in keeping with Canadian law in such circumstances – he did not dispute that he was obliged to pay child support after the separation.  However, the stepfather contended that the stepson’s natural father ought to pay child support as well, and that at the least, such support obligation should be shared between the two men.

Indeed, over the course of their relationship the stepfather had periodically raised the issue with the mother, but she had flatly told him that she would not be pursuing any support contribution from the biological father.  For one thing, she claimed she did not know his whereabouts; however the stepfather   she could easily find out through connections in the parties’cultural community.  In any case, the stepfather never pushed the issue during the relationship, since on their combined incomes money was not a concern and there was no pressing need for contribution from the boy’s biological father at that point.

Once the parties separated, however, the stepfather claimed that the mother should pursue such contribution, and that his corresponding support obligation should be reduced accordingly.

The mother resisted, pointing out that the stepson’s biological father had not been in contact with him since he was about five years of age.   In fact, over the years she had essentially received no support from the biological father at all, and she had never pursued him for it via the legal process, despite the fact that he was apparently living in the U.S. and earning over $100,000 per year.   He had remarried and had other children.  The court found that she had apparently told the biological father that she would forego her right to child support from him provided he did not pursue his custody or access rights.

In determining whether the stepfather’s support obligation should be reduced in the circumstances, the court also evaluated the source of both his and the biological father’s support responsibilities to the stepson.  First of all, it confirmed that under the Child Support Guidelines, the biological father    to pay child support in accord with the Guideline amounts.  With respect to the stepfather, however, the Child Support Guidelines indicate that where there is a person who “stand in the place of” a parent for a child, that person may be obliged to pay child support in an amount that the court considers to be appropriate, having regard to the Guidelines and any other legal duty to support the child.

In addition, the court confirmed the following general principles:

• a step-parent can be obliged to pay support, even when the biological parent does not;
 
• a step-parent is entitled to commence a separate action to seek contribution from the biological parent;
 
• there is no obligation on a recipient parent (here, the mother) to legally pursue support from the biological parent.
 

In this case, the court surmised that the mother had avoided pursuing support from the biological father because she was content to not have involved in their lives and did not want to trigger him to pursue custody or access to the boy.  

However, the court stated that if the mother did not earnestly pursue support from the biological father, then the stepfather should not be obliged to contribute the entire amount.  The mother was simply not entitled to “elect” to choose between two possible payors, one of which was the stepfather, and could not unilaterally transfer the full support obligation onto him.    

In the end, the court concluded that stepfather should not be required to pay the full Guideline amount merely because the mother had chosen not to pursue the stepson’s biological father for it.

The court accordingly ordered that the stepfather should pay $225 for the boy, notwithstanding the fact that he had previously agreed on consent to pay $1,000 per month.

For the full text of the decision, see:

Truong v. Truong, 2012 ONSC 3455  http://canlii.ca/t/frsvj

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.

Son-In-Law Gets Lifelong Licence to Use Mother-in-Law’s Portion of Family Island

Son-In-Law Gets Lifelong Licence to Use Mother-in-Law’s Portion of Family Island

One of the main components of my Family Law practice is guiding clients through the process of property division upon separation and divorce. The question of how to divide property is not always easy; some properties are unusual, have long family histories, or have sentimental memories attached to them.

The recent decision in Clarke v. Johnson is precisely such a case: the property in question was a family-owned island, and a camp that had been built on it. The issue was whether a son-in-law – who had separated from his wife – should be entitled to use the portion of a family island owned by his former mother-in-law.

The matriarch of family, Martha, was one-third owner of a Sudbury-area island on Lake Panache, which had been purchased around 1971 with her now-deceased husband. The remainder of the island was owned by her brother-in-law and sister-in-law, who each owned a one-third share. Under an informal and unwritten agreement, each owner (together with his or her family) was entitled to use their own one-third, although a “Main Lodge” building was reserved for common use by all.

Martha’s daughter Victoria had married a man named Donald, and they had two children together. Early on in their marriage, and with Martha’s permission, Victoria and Donald had built a camp on Martha’s share of the island, using $5,700 from Donald’s RRSP, and $17,000 loan from Martha’s husband (which was never repaid, apparently with his concurrence). Victoria and Donald placed a $15,000 prefabricated cottage on the property.

Victoria and Donald separated in 1991. Since that time – and because in the separation process Victoria had “washed her hands of the camp” and now “wanted no part of it” – Donald and the children had enjoyed exclusive of the camp on the island. According to Victoria, the camp was not Donald’s to deal with, but she was content to have him and the children use it, as long as he maintained it. She never once visited the camp since the 1991 separation.

Enter Wesley, the son of Victoria and Donald. Wesley had been living out west for 10 years, but had moved back to Sudbury. He expressed an interest in using the camp, which was fine with Donald as long as it did not interfere with his own planned use. Unfortunately, Donald and his son Wesley could not come to terms on this point, and their relationship became strained. Donald then decided to refuse to allow Wesley to use the camp at all.

This was where Martha stepped in again. Pointing out that she was the legal owner of the one-third of the island on which the camp was situated, and asserting that her son-in-law Donald’s use was predicated on his willingness to share it with the children, she claimed that she would terminate Donald’s use, and issue a trespass notice to him.

Donald brought an action to determine his rights in connection with the island, claiming that while he was not himself an owner of the island itself, he was an owner of the camp that was situated on it. More to the point, Donald claimed that he had an equitable right to occupy the property and the camp, based on the principle of unjust enrichment.

After hearing a good deal of evidence, the court allowed Donald’s action. First of all, it had to characterize the camp structure itself: despite its prefabricated nature, it had become a permanent structure on the land when Donald and Victoria had it installed. It was not merely a “chattel” that could be removed.

Next, the court found that Donald had successfully established a legal claim for “unjust enrichment,” by showing that: 1) Martha had been enriched by Donald’s actions; 2) Donald had suffered a corresponding deprivation as a result; and 3) there was no juristic (legal) reason for the enrichment.

Legally, it was clear that his former mother-in-law Martha still owned the portion of the island in question. However, Donald had not only contributed funds to constructing the camp in the first place, but over the subsequent 20 years he had also paid the bills, made improvements, and had sole responsibility for upkeep and maintenance. All of these benefited Martha. Furthermore Martha never occupied the camp herself, whereas Donald had enjoyed exclusive possession of it for about 20 years.
In these circumstances, there was clear enrichment to Martha, deprivation by Donald, and no juristic reason for it. The court was then left to craft the appropriate remedy.

Given what the court called Donald’s “very real and significant emotional attachment” to the camp – and the fact that this could not easily be quantified in dollars – the proper legal remedy was to impose a constructive trust on the camp, which would reflect Donald’s interest. Also, given his long period of uninterrupted use and sole responsibility for maintenance, Donald was also entitled to regulate the use of the camp by his children. This, the court found, would reflect the legitimate expectations of the parties.

As such, the court’s solution was to give Donald a licence to occupy the camp until he died, or until he was no longer physically able to attend there. Such a licence was personal to him, and could not be assigned or sold in any way. Moreover, the court imposed a condition that he was required to maintain the camp in a good state of repair, to refrain from materially altering its nature or character, and to pay taxes and utility costs related to it.

For the full text of the decision, see:

Clarke v. Johnson (2012), 2012 ONSC 4320, 2012  http://canlii.ca/t/fs65x

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.