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Pregnant After Dating a Week … Can Dad Force Mom to Stay in Ontario?

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Pregnant After Dating a Week … Can Dad Force Mom to Stay in Ontario?

In an interesting recent case called White v. Noel, the court was asked to balance two competing rights: the rights of one parent to have legal and geographical access to his child, and the rights of the other parent to move the child away in order to seek a better life.

The background facts were a little unusual: The man and woman had known each other for only about a week when the woman unexpectedly became pregnant. The woman moved in with the man, but the relationship ended about three months after their son was born, after a physical altercation where police were called. By way of a court order in 2007, the woman was given custody of the boy, and the father was granted access every other weekend. That same order stipulated that the woman was not to remove child from Ontario, except for holiday purposes.

Since that time, both of them stayed in Ontario, with the 39-year-old man continuing to work as a roofer in the summer and doing snow removal in the winter. Meanwhile the 47-year-old woman was for the most part unemployed, and despite numerous efforts to train and obtain work, had to support herself and the boy through public assistance programs.

Furthermore, her unavoidable interactions with the man over access and scheduling frequently ended in dispute, and the police had to be called on occasion. She often suspected that he was impaired by cocaine or alcohol while in a care-giving role to the child.

Perhaps not surprisingly, the woman was very unhappy in Ontario, and wanted to return to her native New Brunswick. She went back there on vacation in 2012, and decided to stay permanently. The man did not make any effort to see the child after that, and told the woman that he wanted nothing further to do with the boy unless he was returned to Ontario.

Before the court, the woman brought a motion to vary the earlier custody/access order, based on a “material change in circumstances” – being her own unilateral decision to move to New Brunswick. The man responded with his own motion for an order citing the woman in contempt of court for moving away with the child in breach of that earlier order.

In balancing the competing rights and interests of these parents, the court looked at the man’s position: at the time of the motion, he had not seen his child since 2012, and it was clear that their relationship had diminished as a result. The law did require the court to strive for maximum contact between the child and his father (among other things); in light of the man’s threat that he wanted nothing to do with the boy if he stayed in New Brunswick, the only way for the court to do that was to order for the woman to return the child to Ontario.

However, the question of what was in the child’s best interests was still the overall governing factor.

Turning to the woman’s position: The court noted that she had primary custody and was the primary caregiver for the boy since his birth. She had moved to New Brunswick in order to make a better life for the two of them.

To that end, she had found a job in New Brunswick and had secured an apartment that was close to her family. And while living in Ontario her interactions with the man while living in Ontario had been toxic, and she had genuine concerns about his ongoing cocaine use (and, the court noted, he had failed to submit to drug testing as he had been previously ordered).

In short: Moving the child out of the woman’s primary care would be disastrous, since the child was currently thriving and the woman had shown through her well thought-out plans that she was able to care for his needs. In contrast, the father’s plan was more aimed at punishing the mother for the disobeying the court order not to move. Even in purporting to seek custody he likely had an ulterior motive, as the court explained:

In this case, although the father seeks custody, it is clear to me what he really wants is the situation to return to the way it was before the mother moved.

He would like to continue to be the access parent and be able to visit with [the boy] whenever he wants. His custodial plan was very poorly thought out and had no air of reality.

Overall – and especially in light of the fact that the mother’s motive for the unilateral move was not improper – the court found that it was in the child’s best interests to continue to live with the woman in New Brunswick, even if it meant that practically speaking the man’s access would be curtailed.

For the full text of the decision, see:

White v. Noel (2014), 2014 CarswellOnt 14923, 2014 ONCJ 555, P.J. Jones J. (Ont. C.J.)

 

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.

Father accused of slashing his wife’s throat while on vacation in Jamaica awarded equal and unsupervised access to his two young children

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Father accused of slashing his wife’s throat while on vacation in Jamaica awarded equal and unsupervised access to his two young children

An Ontario Superior Court Justice recently ruled that a father accused of slashing his wife’s throat while on vacation in Jamaica should be awarded equal and unsupervised access to his two young children.

Despite having conducted a lengthily trial and listening to the parents testify, the Judge was unable to determine what had happened in Jamaica.

The mother has since appealed this decision.

The Divisional Court expressed concerns about the process and the circumstances in which the order was made and concluded that the underlying order was unsafe.  In ordering a stay of the trial Judge’s decision, the Divisional Court noted:

” …the decision appears to be, regrettably, unfortunately, a profound violation of the principles of natural justice …

 … I cannot conceive of how it could possibly be in the best interests of the children for them to be told out of the blue, without any warning, a day and a half before Christmas, that for the first time in four years they will be spending a week with their father without supervision.”

For the full text of the Divisional Court decision (staying the trial Judge’s decision), see:

Clayson v. Martin, 2014 ONSC 7506

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.

Wife Will Drop Criminal Charges Only if Husband Signs Her Version of a Marriage Contract – Should Court Overturn it?

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Wife Will Drop Criminal Charges Only if Husband Signs Her Version of a Marriage Contract – Should Court Overturn it?

The couple’s 2.5-year relationship started when they met through an online dating service in 2011 and married in mid-2012. In January of 2013 after returning from a vacation in St. Maarten, they started to think about negotiating a marriage contract.

However, they could not come to terms, and the entire exercise was very tense, acrimonious, and stressful. Indeed, their broader differences started to surface and as the court put it, “they knew how to push each other’s buttons and often they did just that.”

By May 2013, things between them had started to deteriorate and the husband was charged with assaulting the wife after an argument. The altercation involved the husband lashing out verbally at the wife, grabbing her hand, and removing her wedding ring. The wife left the house, refused to return, and had the husband arrested, fingerprinted and charged.

The husband was greatly concerned that the fingerprinting and assault charge would find their way into the FBI database and prevent him from traveling to the U.S., as his senior job with the Department of National Defence required him to do. He therefore asked the wife to drop the criminal charges. She agreed – but only if he complied with several conditions, the most important one being that he sign a particular version of the marriage contract she wanted, and one in which (conveniently) she would get considerably more spousal support than she would otherwise be entitled under Ontario family law.

On the eve of his scheduled court appearance on the assault charge, and with his career hanging in the balance, the husband reluctantly signed the wife’s version of the agreement in June 2013. As the court put it: “There was a real power imbalance at that point; she held all the cards.”

The wife formally dropped the assault charge about six months later. The husband then brought divorce proceedings which included a request to have the agreement set aside.

Perhaps not surprisingly, he was successful. The contract was clearly signed under emotional duress.

By demanding the four conditions, including the signing of an agreement that greatly benefited her, the court found that the wife placed the husband in a desperate position. He complied with the four conditions imposed by the wife based on his belief at the time that he had no other option. This amounted to a situation of duress, and it meant that the husband had not signed the agreement freely and voluntarily. As such, the marriage contract was set aside.

For the full text of the decision, see:

Stergiopoulos v. Von Biehler (2014), 2014 CarswellOnt 15786, 2014 ONSC 6391, Moore J. (Ont. S.C.J.) [Ontario]

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.

Top 3 things you should know about passports for children – video

 
 

Wednesday’s Video Clip: Top 3 things you should know about passports for children

In this video we review the top three things Canadians should to know passports for children, including the fact that children who travel need a Canadian passport.

Passport Canada has a number of rules pertaining to passports, which included specific provisions applicable to children anyone aged 3 to 16 and infants anyone under the age of 3. Specifically:

We hope you have found this video helpful. If you require further information about please give us a call or visit our website at www.russellalexander.com or For further information, visit the Passport Canada website at: http://www.ppt.gc.ca/index.aspx

Need a New Year’s Resolution? Update Your Important Documents!

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Need a New Year’s Resolution? Update Your Important Documents!

We recently wrote about certain changes to the Canadian Passport application process had been implemented recently, and that with the holidays approaching it was important for those who intended to travel to ensure their documents were in order.

The truth is, there is no need to wait until travel plans are imminent or until other important milestones occur (such as a marriage or divorce, or a death in the family) to do a little checking up on the state of your important documents. Consider it a New Year’s resolution to add to your list (but one that you actually stick to).

Here are a few suggestions to consider:

• Travel, Health and Medical Information. In addition to making sure that these documents are safeguarded in a secure-but-accessible location, it’s also important to verify that they are current. Is your Passport due to expire soon? Do you have ready access to your Health Card if needed? For any children that you have, are their Immunization Records up-to-date?

• Testamentary Instruments. It’s never a bad idea to review your Will regularly – perhaps every year or two. While this is particularly true where life events have prompted a needed change to designated beneficiaries (for example where there has been a divorce or where a beneficiary under your Will has died), other personal circumstances or simply the sheer passage of time may prompt your wanting a change.

• Insurance and Investments. Similarly, anytime you have designated a beneficiary, for example in connection with your life insurance policy, or in an RRSP, it is important that you give periodic consideration to whether the designation remains appropriate as time passes. You should also give some thought to whether a secondary or residual beneficiary should be named, in case the primary beneficiary passes away first.

• Powers of Attorney. Whether you have a Power of Attorney for Property or a Power of Attorney for Personal Care (or both), you should review these documents on a periodic basis and consider whether they still reflect your wishes in the event you become incapacitated.

There are many other documents and personal information that could benefit from a periodic review; this list is merely a good starting point.
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.

Top Five Misconceptions About Divorce? – video


Wednesday’s Video Clip: Top Five Misconceptions About Divorce?

When spouses face the unexpected (and sometimes unwanted) prospect of embarking on a divorce, they often operate under pre-conceived notions as to the timing and nature of the process. There are many misconceptions about the divorce process in Ontario, and our video reviews 5 of the most common ones

Husband Pays Wife $125K as Income-Splitting; Then Fires Her After Split – What Happens Next?

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Husband Pays Wife $125K as Income-Splitting; Then Fires Her After Split – What Happens Next?

The couple had been married for 21 years. The wife had not actually worked since 2000, but was nonetheless paid $125,000 per year in the role of a non-voting shareholder, as a means of income-splitting for income tax purposes. She provided no real services to the corporation in return for this “salary”.

When the husband and wife split up in 2013, the husband terminated the wife’s employment with the corporation, and immediately cut off her health and medical benefits (although after an exchange of lawyer’s letters, those benefits were later reinstated).

Although the couple agreed that after separation the wife was entitled to temporary support until their divorce, they disagreed on the amount: the husband suggested $5,500 per month, while the wife thought it should be $8,500 per month, based on the husband’s roughly $300,000 in annual income.

The court granted support to the wife at the $8,500-per-month level she requested. One of the governing rules for determining the amount of interim support pending the divorce, is that – provided the husband could afford it – the amount should be sufficient to allow the wife to continue living at the same standard of living enjoyed prior to separation.

In this case, the couple had lived comfortably while married; the husband consistently earned in the low six figures, but he put the retained earnings into a corporate investment account which now had a balance of over $1.3 million. In terms of their day-to-day lifestyle, the court described it this way:

During their marriage, the parties enjoyed a comfortable lifestyle. They owned a vacation property in Scottsdale, Arizona which was sold following their separation for approximately $215,000 (USD). They jointly own a condominium in Toronto which has been valued at $810,000 as of January, 2014. The parties own multiple pieces of fine art, both personally and through the Corporation. The corporate art collection has been appraised at $171,000 and the value of their personally-owned work exceeds $85,000. During their marriage, the parties took a number of trips outside Canada, largely connected with the respondent’s business, and dined out frequently.

In addition to this background context, the court also considered the fact that since separation the wife had adjusted her expenses downward to reflect the low amount of support that the husband was voluntarily paying her since separation, but that it would be unfair to ask her to keep that up, particularly in light of the money that was at the husband’s disposal through corporate earnings.

The husband was therefore ordered to pay the wife $8,500 per month, and to keep the wife on his benefits as long as possible.
For the full text of the decision, see:

Woodruff v. Howard, 2014 ONSC 5723

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 our main site.

Second Families – Should Support-Paying Dad Get a Break Because He Supports Seven Other Kids?

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Second Families – Should Support-Paying Dad Get a Break Because He Supports Seven Other Kids?

The question in Fiddler v. Fiddler was whether a husband should be allowed to pay his first wife little or no spousal support simply because he had voluntarily assumed financial responsibility for numerous children with his new partner – even though most of them were not biologically his.

The court’s answer was: “No”.

The husband and wife had been married for seven years and had a 13-year-old daughter when they split up. Almost immediately the husband moved in with another woman and they eventually had two children together. She also had four other children of her own from a prior relationship, and for whom she received no child support from the biological father. The six children all lived with the husband and the new partner in a remote Ontario location; the brood was increased to seven during the summer months only, when the husband’s 17-year-old child from yet another relationship joined them.

Although the husband the first wife agreed that he should pay child support for the daughter, they disagreed on the wife’s entitlement to spousal support. She therefore applied to the court for an order forcing the husband to pay on an interim basis pending their divorce trial.

The court examined the facts: Here, the wife had been the primary caregiver for their now-13-year-old daughter during the marriage, and had made sacrifices to allow the husband to advance his career. The husband earned about $110,000 per year; the wife earned about one-quarter of that: i.e. just under $30,000. She had advised the husband soon after their separation that she was intending to ask for spousal support, so it could not be said that he was caught off-guard.

More importantly, it was the husband’s own choice to take on the responsibility of a second family, including financial responsibility for numerous children that are not his own. His self-imposed obligation to support those children should not be a factor in considering whether the first wife should get support, nor should it be used as a reason to reduce the support to which she was otherwise entitled.

The court granted the wife’s request; however it made one concession to the husband’s situation in that – given the living expenses in his remote location and the travel costs of exercising access to their mutual child – he was allowed to pay on the low end of the range recommended by the SSAGs in all the circumstances.

For the full text of the decision, see:

Fiddler v. Fiddler (2014), 2014 ONSC 4068

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 our main site.

Have a safe and Merry Christmas

christmas 2014

Have a safe and Merry Christmas.

Child Support and Different Custody Arrangements – video


 

Wednesday’s Video Clip: Child Support and Different Custody Arrangements

In this video Aleksandra review show different custody arrangements affect child support obligations.

Shared custody

If each parent has the child at least 40% of the time, the Child Support Guidelines say there is “shared custody.”

There is no formula in the Guidelines for determining how much time is spent with each parent in a shared parenting scenario. The onus is on the parent who claims they have shared custody to show that the child is with him or her at least 40% of the time.

If the judge finds that the child spends at least 40% of their time with the parent who pays support, the Guideline table amount will no longer apply.

Split custody

Sometimes when parents with more than one child separate, one or more of the children will live with each parent. When this happens, child support depends on the income of both parents.

Sole custody

When a parent has sole custody of a child, this means that they are solely authorized to make major decisions for the child, to the exclusion of the other parent. In these cases, it makes sense that the child’s primary residence will be with the parent having sole custody.

We hope you have found this video helpful. If you require further information about different custody arrangements please give us a call or visit our website at www.russellalexander.com