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Mother Tries to Alienate Child from Father – Court Cuts Off her Access Entirely

Mom with kid

Mother Tries to Alienate Child from Father – Court Cuts Off her Access Entirely

Recently I wrote about a case titled “Kids Live with Mom Their Whole Lives – But Her Alienation Efforts Prompts Court to Transfer Sole Custody to Dad” in which the mother of three children lost sole custody of them primarily because she was trying to alienate them from their father, even though the children had lived with her their entire lives.

In a similar case called A.P.V. v. J.L.R., the Ontario court imposed an even more drastic remedy: The mother was prevented from even have access to her daughter (never mind custody), because she was obviously attempting to cut the father out of both their lives entirely.

In that case, the 10-year old child had been the subject of an intense custody battle between the parents since she was only five months old. Both custody and access had shifted back and forth between the parents throughout that time, sometimes by their agreement, but often by way of contested court proceedings. The father had recently been granted temporary sole custody, with supervised access to the mother; however, the mother’s access had been gradually increased to the point where she spent about 40 percent of her time with the mother.

Then, in violation of a court order, the child ran away from the father’s home altogether, and had been living with the mother ever since. The girl refused to see the father, and the court was asked to resolve the matter of custody and access.

The court summarized its dilemma this way:

At trial, both parties were seeking sole custody. And while each party had a plan for some access to the other; it was clear that the choice before the court was much starker: Whichever parent [the daughter] resided with, she could not, for very different reasons, have access to the other.

The evidence showed that the daughter may have adopted as her own various misimpressions and unfounded conclusions about her father that had actually been fed to her by her mother. This included a story that he had allegedly killed a pet cat that she had, that he was “not a nice person”, and that the father refused to pay child support and that he was taking the mother to court because of it. During access visits the mother also routinely spent her time com-plaining at length about the father’s deficiencies as both a person and a parent.

In light of these kinds of incidents (among many, many others) the court reasoned that to give the mother any form of access to the child would undermine the stability of the father’s relationship with her; indeed it might even rupture entirely as it had in the past, during the episode where the girl had precipitously run away from the father’s home, for example. The court also noted that allowing the mother to have supervised visits while attending counselling had clearly not worked in the past: there had been unfavourable assessment of the mother’s parenting skills by various professionals, as well as complaint-prompted investigations by the Children’s Aid Society and police.

Equally important was that despite claiming to support the child’s relationship with her father, the mother clearly preferred for the child to have no relationship with him at all. This did not bode well for the child’s future well-being and spoke poorly for the mother’s parenting ability as well. As the court put it: “The ability of a person to act as a parent includes their ability to support the child’s relationship with the other parent.”

While noting that the court will not automatically order a change custody if the custodial parent refuses access or otherwise interferes with the development of the other’s parent’s normal relationship with the child, it was within the court’s authority to do so in the right case. The court was also entitled to go further where appropriate and deprive the former custodial parent of access as part of the order. As always, the decision depended on what was in the best interests of the child.

In this case, the child deserved stability, permanence and emotional security and she was most likely to obtain that in the father’s full-time care, since he had proven himself better equipped to meet the child’s emotional needs. The court allowed the father’s application for sole custody, and then went on to forbid the mother from having access to the child whatsoever.

For the full text of the decision, see:

A.P.V. v. J.L.R., 2012 ONCJ 658 (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

You Be the Judge: Did Order Require Father to Take Legal Advice from the OCL’s Lawyer?

lawyer with client

You Be the Judge: Did Order Require Father to Take Legal Advice from the OCL’s Lawyer?

In an Ontario Court of Appeal case called Mwanri v. Mwanri, the couple had had two children together, both of whom were eventually in the sole custody of the father, with access to the mother. The parents had been involved in various motions and other court proceedings to settle some of their disputes around custody and access. In the latest round, the father took issue with an earlier order by the motion judge on various custody- and support-related matters.

From among several different grounds of appeal that he raised, the father complained that the motion judge’s order had included the following single line:

The parenting/access schedule in this Order shall be monitored by the Office of the Children’s Lawyer and both of the parents shall cooperate with the OCL’s counsel and follow his direction as to the interpretation of this Order.

This prompted a complaint by the father about whether the “follow his direction as to the interpretation” portion of the order was a legally-appropriate order for the motion judge to make, since it seemed to require him to essentially take legal advice from the OCL’s own lawyer, thus constraining his right to consult a lawyer of his own.

The Court of Appeal disagreed with this line of reasoning (although it ultimately allowed part of the father’s appeal on different grounds altogether). The Court explained its conclusion this way:

…[C]ontrary to the father’s submission, nothing in the direction requires the father to seek or follow legal advice from the OCL’s lawyer. The direction stipulates that the parties are to co-operate with counsel for the OCL in respect of the interim custody and access arrangements ordered by the motions judge. It requires the parties to “follow his direction as to the interpretation” of the motions judge’s order. This language simply obliges the parties to follow the OCL’s direction in the event of any disagreement about the terms of the motions judge’s interim order. It in no way prevents either party from consulting with their own counsel and, if so advised, returning any matter of disagreement before the Superior Court for reconsideration or clarification. The parties remain free to retain, consult and instruct counsel of their choice on all matters in dispute.

It’s a narrow distinction, but do you think it is a valid one? Does the Appeal Court’s logic make sense?

For the full text of the decision, see:

Mwanri v. Mwanri, 2015 ONCA 843

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

Wednesday’s Video Clip: How are Child Payments Taxed?

 

Wednesday’s Video Clip: How are Child Payments Taxed?

In this video we discuss the tax consequences of child support.

Parents who receive child support payments under an agreement or court order made after April 30, 1997, do not have to include those payments in their taxable income. Parents who make these payments cannot deduct the payments from their taxable income.

This tax rule does not apply to continuing support paid under agreements or court orders made before May 1, 1997. The old rule still applies until the agreement or order is changed. Under the old rule, parents receiving support must pay tax on the amount received, and parents paying support can deduct the payments from their taxable income.

The new tax rule means that more of the support money received by the parent with custody is available to spend on the children. It also means that parents paying child support under an agreement or court order made after April 30, 1997, will have less after-tax income than parents paying the same amount according to an agreement or order made under the old tax rule. Courts take this into account when making new support orders.

Parents who have a support arrangement under the old tax rule may agree that they want the new tax rule to apply. They can do this if they both sign a form called “Election for Child Support Payments (T1157)”, that says they want the amount of support to stay the same but the new tax rule to apply.

You can get this form from any tax services office. Or you can call the Canada Revenue Agency (CRA) at 1-800-959-2221 and ask to have a copy mailed to you, or download a copy from their web site at www.cra-are.gc.ca/forms.

If one parent wants to change to the new tax rule, but the other does not, the parent who wants the change must apply to court to change the existing child support order or agreement. Parents thinking of doing this should be aware that when the court makes a new child support order or changes an existing order or agreement, it must apply the Child Support Guidelines.

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

Kids Live with Mom Their Whole Lives – But Her Alienation Efforts Prompts Court to Transfer Sole Custody to Dad

Good dad

Kids Live with Mom Their Whole Lives – But Her Alienation Efforts Prompts Court to Transfer Sole Custody to Dad

In a recent blog I discussed the concept of “parental alienation”, and in particular how some separated or divorced custodial parents make concerted long-term efforts to influence (one might say, brainwash) a child so that he or she does not want to spend time with the other access parent. In many cases, it’s part of a parental plot to eliminate the access parent from the child’s life entirely.

From the custodial parent’s standpoint, the sanctions and repercussions for that sort of behavior can be severe. In an unusual-but-important case from several years ago, the court ordered that three children, age 14, 11, and 9, who had been in their mother’s custody their entire lives, were nonetheless to be immediately placed in the custody of their father.

The couple had met while working as medical professionals in the same hospital. Even after realizing that they were expecting a child together, the mother and her extended family took steps to distance themselves from the father. Eventually, the couple married and had two more children, and when they later separated, there was no formal order obtained in order to deal with child custody. Instead, they went to live with the mother essentially by default. What followed was a concerted campaign by the mother to thwart the father’s every effort to see or maintain a relationship with them, as the court found.

Still – and despite the mother’s steadfast manoeuvers — the father persisted in asserting his legal rights over the years, culminating in a series of court orders and then a successful application to have custody switched to him outright.

The court explained some of the factual background, as well as its rationale for changing custody in such a dramatic way:

The three children of the marriage have been alienated from the [father] over a long period because [the mother] is unable to accept that it is in the best interests of the children to have a relationship with their father. She has been given several opportunities to change her behaviour over many years, and refuses to do so. I find that her unrelenting behaviour toward the children is tantamount to emotional abuse … The views and preferences of the two older children are not their own. And for the children to have any further contact with the [mother], significant therapeutic intervention is necessary.

It is remarkable that [the father] has not given-in to the [mother’s] persistence in keeping his children from him over the last fourteen years and simply gone on with his life without the children as, no doubt, many other parents in the same situation would have and, indeed, have done. It is now time for his and the children’s fates to be free from [the mother’s] control. She has shown that she cannot be entrusted with it.

The best interests of these children require an order for [the father] to have sole custody of them.

For the full text of the decision, see:

A.G.L. v. K. B. D., 2009 CanLII 943 (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

When the Litigation Lasts Longer than the Marriage Did

Litigation Papers

When the Litigation Lasts Longer than the Marriage Did

A frequent complaint about family litigation in particular is that it’s a costly and inordinately long process, with cases tied up in the family courts for years.

It’s actually surprisingly common for the duration of the litigation between a former couple to far exceed the length of the marriage or relationship itself!

In Geremia v. Harb, Justice Quinn of the Ontario Superior Court commented on this very point:

The parties have a short marital history: they were married in 1999, had a child in 2000, separated in 2001 and were divorced in 2002. Since then, the litigation has been unrelenting. The parties have logged more hours in the court house than many part-time court employees. The continuing record consists of 10 volumes. Theirs is a blueprint for how not to handle a separation.

At the point when Justice Quinn made these observations it was already 5 years after the former couple’s divorce, and the litigation continued beyond that for at least another year.

But even in somewhat longer marriages, the litigation can still quickly outstrip the duration of the union itself.

In a case called Anderson v. McWatt, the couple had been married for 11 years, but had been living together for several years before that. But by the time of their 2015 hearing before the Ontario Court of Appeal, they had been embroiled in 15 years’ worth of what the court called “high conflict” litigation over the retroactive child support for their now-grown children, and over a business they had initially started and run together.

These are just two of many, many examples. Does it still count as a “relationship” when a couple sees each other only in court?

For the full text of these decisions, see:

Geremia v. Harb, 2006 CanLII 38350 (ON SC)

Anderson v. McWatt, 2015 CarswellOnt 14225, 258 A.C.W.S. (3d) 7

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: Finding A Lawyer

 

Wednesday’s Video Clip: Finding A Lawyer

In this video we discuss the various ways people can find a lawyer to help them, including:

Community Legal Clinics

Community legal clinics provide legal services to low-income people in areas such as housing, employment insurance, income support, immigration, human rights, and workers’ compensation. Some clinics also provide assistance with wills, powers of attorney, and education law. To find the community legal clinic nearest you, visit the Legal Aid Ontario web site or call Legal Aid Ontario.

Law Office of Russell I Alexander, Family Lawyers

This law firm focuses exclusively on family law. Russell I Alexander offers pre-separation legal advice and helps clients who are going through a separation and/or a divorce. This office assists 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. Their lawyers negotiate settlements for their clients, and if a fair and reasonable settlement cannot be achieved they prepare and argue motions and trials.

1-905-655-6335

www.russellalexander.com

Law Society of Upper Canada

Offers information on finding and working with a lawyer, web site:
www.lsuc.on.ca

Legal Advice for Victims of Domestic Violence

Legal Aid Ontario can provide authorization for a two-hour consultation with a family law lawyer through a form called “Advice Lawyer Family Violence Authorization.”

Community legal clinics, student legal aid societies, and women’s shelters should have these forms to give to abused women. Contact the women’s shelter in your community or call Legal Aid Ontario for the phone number and location of the legal clinic or student legal aid society nearest you.

Legal Aid Ontario

1-800-668-8258 (bilingual)

www.legalaid.on.ca

Office of the Children’s Lawyer

Provides court-appointed legal representation for children up to 18 years of age, call:
416-314-8000 (bilingual – accepts collect calls)

Legal and Family Resources

Advocacy Centre for the Elderly

Provides legal advice and information to low-income seniors 60 years of age and older on issues such as elder abuse, home care, nursing homes and homes for the aged, and powers of attorney; phone and web site:

1-416-598-2656

www.advocacycentreelderly.org

ARCH Disability Law Centre

Provides legal information to people with disabilities, and some representation in precedent-setting cases involving disability issues. ARCH has an accessible library of materials on disability-related issues that is open to the public; phone and web site:

1-866-482-2724

www.archdisabilitylaw.ca

Centre for Addiction and Mental Health

Provides support, treatment, and education for people with mental health and addiction problems and their families. Publications on youth and addiction, and information on drug and alcohol policies in Ontario schools are available through their web site:

1-800-463-6273 (bilingual)

www.camh.net/index.html

CLEO (Community Legal Education Ontario / Éducation juridique communautaire Ontario)

Provides clear language legal education and information materials for low-income and disadvantaged people in Ontario. CLEO’s materials address issues in many areas of law, including family, domestic violence, social assistance, housing, and immigration and refugee law. Most materials are also available in French. All print publications are free and can be viewed online.

1-416-408-4420 (accepts collect calls)

www.cleo.on.ca

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 has to Prove Contempt of Court? – Part III

Contempt

Who has to Prove Contempt of Court? – Part III

A recurring topic in some of the recent Blogs has been the court-imposed “contempt of court” remedy (What is “Contempt of Court” in Family Law, Anyway – Part I, and Part II), and in particular those scenarios where a custodial parent has failed to abide by a court order requiring him or her to make the child available for the other parent to exercise access rights. In the face of the custodial parent’s steadfast refusal to comply, the court may (among its other remedies) make a finding of contempt, with the penalty being a monetary fine or even jail for the obstinate parent.

The availability of this remedy gives rise to a related question: which parent bears the burden to prove that that contempt has (or has not) occurred?

Is it the parent who claims to be fulfilling the order’s terms? Or is it the one whose legal rights are being thwarted by the other’s lack of compliance – or by inadequate efforts to get a child to comply?

The answer may surprise you: it’s the parent making the contempt accusation who must bring the proof. That means he or she has the burden of establishing that the other, uncooperative parent has actively breached one or more court-ordered obligations, or that the parent did not take all reasonable steps to make sure it is complied with (either personally, or by the child).

For the parent who does the accusing, this will involve providing the court with:

• the particular order that is claimed to have been breached

• evidence that the other parent knew about the order

• indications that the order clearly states what should and should not be done

• the precise day-to-day elements (from a practical standpoint) that would fulfil the requirements inherent in the order

• details as to the dates, times, and other specifics that show that the other parent has fallen down on the duty to comply with those requirements

• evidence showing the non-compliant parent disobeyed the order deliberately and willfully

• proof that the non-compliant parent had notice that a contempt finding was being sought against him or her

In the context of those difficult situations where the court order is being because the child is unwilling to cooperate, this obligation may seem especially harsh, because the parent asserting contempt must also show that the non-compliant parent has failed to take active steps to ensure the child complies. (These steps were the subject of an earlier Blog here.)

Because parents in such situations usually no longer live together, it may be challenging to identify and critique (from afar) the non-compliant parent’s shortcomings in this regard, at least to court’s satisfaction. This may not seem fair, because the “innocent” parent is being forced to marshal proof of the other parent’s default. It seems more reasonable that the non-compliant parent should be the one to come forward with all of the measures he or she took to try to coerce the child and satisfy the requirements under the order, and prove that there was no contempt. Yet that’s not how Ontario law works: it’s the innocent parent who must show that the other parent did not do what was required.

Seems like a difficult hurdle? It can be. Moreover – because a contempt hearing is considered quasi-criminal in nature – the burden of proof is high: these elements must be proven to the court “beyond a reasonable doubt” by the parent making the accusation.

See for example:

Jackson v. Jackson, 2016 ONSC 3466 (CanLII)

Funnell v. Jackscha, 2012 ONSC 4234 (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

Thank You for Nominating FamilyLLB for ABA’s Top 100

1450280610958

Thank You!

Thanks to all of our readers for your continued support, comments and feedback.

We are honoured to be nominated for the ABA Journal’s 10th Annual Blawg 100 Amici.

If you’ve enjoyed reading about the latest hot topics and precedent setting decisions on our blog, please consider nominating FamilyLLB as one of your favourite legal blogs at Blawg 100 Amici.  Votes are tallied by total nominations received. This award recognizes blogs that offer unique and original insights into the practice of law. You can submit your nominations here.

Once again, thank you for your readership.

Wednesdays Video Clip: How Base Child Support is Calculated

 

How Base Child Support is Calculated

In this video we discuss how the Child Support Table in the Guidelines sets out the amounts of support to be paid, depending on the “gross income” of the paying parent and the number of children that the support order covers. Gross income means before taxes and most other deductions. The amounts to be paid are based on the average amounts of money that parents at various income levels spend to raise a child.

In simple cases, the table alone will determine how much money will be paid. In more complicated cases, the table is used as the starting point. There is a different table for each province and territory.

If both parents live in Ontario, the Ontario table applies. Also, if the paying parent lives outside of Canada and the parent with custody lives in Ontario, the Ontario table applies. But if the paying parent lives in another province or territory, the table for that province or territory is the one that applies.

You can get a copy of the Child Support Table for Ontario by phoning 1-888-373-2222.

Or you can visit the Department of Justice Canada’s web site at www.canada.justice.gc.ca/en/ps/sup and click on “Simplified Federal Child Support Tables” to find the table for each province and territory.

The table sets out the amount of support that must be paid at different income levels from $8,000 to $150,000, depending on the number of children. A base amount is given for every $1,000 increase in income, along with a way to calculate amounts in between.

There is also a Simplified Table where you can look up the paying parent’s income to the nearest $100, without having to do any calculations.

Sometimes, a judge does not accept a parent’s statement of income. Instead the judge uses an amount of income that is reasonable based on things such as the parent’s work history, past income, and education. The judge will then apply the table to that income.

A judge might do this if the parent:

• fails to provide the required income information

• is deliberately unemployed or under employed, or

• is self-employed or working “under the table”, and there is reason to believe they do not report all of their income

Before the Guidelines came into effect, judges had more flexibility in deciding the amount of support. Now, in simple cases, judges must order the amount shown in the table. Judges can order different amounts, but only in special cases. And they must use the table amount as a guide.

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