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Obligations to Pay Child Support Even with Undue Hardship

 

Obligations to Pay Child Support Even with Undue Hardship

In this video we review a court decision from earlier this year, the court confirmed that a father was still obligated to pay support for his two children from a first marriage even though:

1) he no longer had a relationship with them;

2) he had a new family (and two other small children) to support; and

3) the child support obligation would cause him undue hardship, in light of his difficult financial circumstances.

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.

Amanda Receives Client Service Award

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Amanda Receives Client Service Award

We are pleased to announce that Amanda recently received our Client Service Award for her excellent commitment to helping our clients.

Amanda’s attention to detail and friendly prompt service makes her a valued member or our team. Congratulation Amanda.  (pictured: Amanda and Managing Associate Lawyer Nafisa)

Wasting Money In Family Court

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Wasting Money In Family Court

Family Court is frequently the setting for high emotions, relentless acrimony, and what can turn out to be very costly litigation. All too often, the proceedings are driven not by what’s in the best interests of the children, but rather by the ego of the parents, who are determined to “win” at all costs.

However, what these parents often overlook is that the financial costs they incur to participate in the unnecessary wrangling between them is actually depriving their own children of needed resources that could be far better spent. Not surprisingly, this reality has not escaped the attention of the courts themselves.

In a case called Beckett v. Beckett, the court said:

Too often, protracted litigation impoverishes separated families. Both parents suffer – and inevitably their children suffer — when limited financial resources are wasted on motions and trials which could have been avoided.

This source of the court’s concern was well-illustrated in another family law case called Delichte v Rogers. There, the mother had attempted to cancel a case management hearing on short notice; this meant that the half-day scheduled time-slot would not be available to other litigants. Pointing out that the time deadlines for filing affidavits and conducting cross-examinations for the case management meetings could not be “casually disregarded,” the court took the mother to task. It said:

The court has a duty to administer its scarce resources wisely and cannot allow litigants to run roughshod over its own process by ignoring deadlines, the rules of court and capriciously failing to show up at scheduled hearings.

But more importantly, the court chastised the mother for wasting the father’s – and by extension, the children’s – money. Even though she was an unrepresented litigant, the court concluded that the mother must or ought to have known that the father would have already incurred significant legal costs in adhering to those same deadlines. The court said:

Somehow the mother is also oblivious to the obvious fact that by running up the father’s legal bills she is also depriving her children of potential financial resources.

Finally, the court added:

The attitude and behaviour that the mother brings to this litigation is troubling as it only increases the intensity of the conflict and creates an environment in which any kind of settlement discussions are impossible.

The message to take from these kinds of cases is this: It’s never wise to run up costs unnecessarily. But leaving aside whether the parents’ disputes have substantive merit, they should never lose sight of who the real victim might be: – it could be the kids.

For the full text of the decisions, see:

Beckett v. Beckett, 2010 ONSC 2706 (CanLII)

Delichte v Rogers, [2013] M.J. No. 113, 2013 MBQB 93 (CanLII)

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

Parents Use Kids as “Pawns”; Court Appoints Them a Separate Lawyer

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Parents Use Kids as “Pawns”; Court Appoints Them a Separate Lawyer

When parents’ disputes over custody and access get particularly ugly, should the kids have their own lawyer appointed?

In an unusual case called Liske v. Liske, the court evidently thought so.

The parents’ separation had been acrimonious, and despite the lapse of seven years they were still in-and-out of court to resolve custody and access issues related to their two children, aged 14 and 12. According to the court, both parents clearly had “unresolved emotional issues” that made them “bitter”; even though they had both remarried they persisted in focusing on their own interests rather than those of the children. A home assessment report confirmed that the parents’ ongoing conflict was impacting the children negatively, and counselling had failed to help them resolve their differences.

Against this factual background, the legal issue was whether in these circumstances the court should appoint an independent counsel for the children, in order to give them separate representation.

The court reflected on the merits of this proposition. It observed that the appointment of a separate lawyer for the children was a matter within the court’s discretion, but was not something that should necessarily be done routinely each time. Indeed, the general rule was that children should not be separately represented, because it would place them in a position where they would have to choose between their parents, which was undesirable. Instead, in order to ascertain the views and best interests of the children, the court could take their evidence, and could receive the opinions of the appointed family counsellor by way of affidavit, all with a view towards allowing it to assess the children’s best interests without the necessity of separate representation.

With that said, the court recognized that in some less common cases it was desirable for the court to appoint separate lawyers for the children, in situations where they had separate interests and points of view from both of their parents.
This was precisely the case here. The loyalties of the children had been oscillating between the mother and the father, and there was evidence that they were being used as pawns “in a custody/access game played by their parents”. The best option for bringing the children’s own best interests to the forefront was to appoint them a separate lawyer. As the court explained:

The parties to this action have both abdicated a leadership role in determining what is best for their children in spite of able counsel and the assistance of the courts. In this situation, the focus of the court must shift from the parents’ view to what is best for the children. What is best for these children, given the long and bitter relationship of their natural parents, is to have their own lawyer who can put forth their individual positions and perhaps impress upon the parties to this action that their mutual conflict in the eyes of the court is only a secondary and minor concern.

The court continued:

…this is not a situation where the children are being asked to choose between their natural parents, but rather a situation where both parents, by their conduct have removed themselves from realistically representing what is best for their children. After seven years parents who were willing to put the best interest of their children first would have worked out an acceptable accommodation. This has not happened and will not happen until the children’s interest are given a dominant role in this litigation. This is best accomplished by the appointment of counsel.

Do you think this solution has broader benefits? Should children have their own legal representation as a matter of course?

For the full text of the decision, see:

Liske v. Liske, [1995] M.J. No. 362, 105 Man.R. (2d) 256

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 5 questions about spousal support in Ontario, Canada – video

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 www.RussellAlexander.com.

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Cyber-Bullying Law Struck Down

Two years ago, the Nova Scotia government enacted the Cyber-safety Act [the “CSA”], making it the first Canadian province to address the widespread problem of cyber-bullying.

However, just two years after it was proclaimed in force, the CSA was struck down by the Nova Scotia Supreme Court on the basis that it violated the Canadian Charter of Rights and Freedoms. In particular, the court found that the CSA violated the Charter sections that protect the right to freedom of thought, belief, opinion and expression (section 2), and the right to life, liberty and security of the person (section 7).

That decision to strike down the CSA arose in the context of a case called Crouch v Snell, which involved two co-founders of a company. After their business relationship went sour, one of them (Mr. Crouch) aired passive-aggressive online attacks against the other (Mr. Snell).

Mr. Crouch was granted a Protection Order under the CSA, which ordered Mr. Snell not to communicate with him and to remove all social media postings that referred to Mr. Crouch either directly or indirectly.

Against this background, the court considered the provisions of the CSA, which was aimed at text or instant messaging, emails, and “any electronic communication through the use of technology” that is intended or reasonably ought to be expected to “cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation”.

After applying the well-established Charter principles, the court found that Mr. Crouch’s comments about Mr. Snell – while arguably distasteful or unpopular but otherwise non-violent in tone – were a protected form of expression. More generally, the court went on to find that the CSA itself purported to restricted protected forms of expression, and could not be demonstrably justified in a free and democratic society. The CSA was therefore ruled unconstitutional, and was accordingly struck down.

Despite being a case emanating from Nova Scotia, the decision to strike down the CSA is interesting from a more local standpoint as well, since in 2012 the Ontario government passed amendments to the provincial Education Act that include a “cyber-bullying” definition. Although that definition (and the legislation itself) applies only to cyber-bullying in the context of education, it will be interesting to see how Charter-protected freedoms are applied to such statutory attempts to impose restrictions on individual expressions that happen to be conveyed electronically. Time will tell how these legislative initiatives will hold up to such scrutiny.

Your thoughts on cyber-bullying laws?

For the full text of the legislation and the cited decision, see:

Cyber-safety Act, SNS 2013, c. 2

Crouch v. Snell, 2015 NSSC 340 (CanLII)

Education Act, R.S.O. 1990, c. E.2

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

Need a Restraining Order? Here’s What You Need to Know

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Need a Restraining Order? Here’s What You Need to Know

Not to drift too far from the spirit of the holiday season, I wanted to revisit the law on Restraining Orders, which was featured in a recent blog on a case called McCall v. Res. There, the court considered whether to grant a Restraining Order and in particular assessed the test under section 46 of the Family Law Act of whether the person applying has “reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.”

For those who are considering an application for a Restraining Order, it’s important to note that this section 46 threshold test has certain embedded components. In an earlier case called Fuda v. Fuda, the court established that in order to obtain a Restraining Order:

• The applicant’s fear must be reasonable.

• It can be of a personal or subjective nature, as long as it is legitimate.

• The fear may relate to either psychological or physical safety.

• The fear need not arise from the other person actually committing an act, gesture or words of harassment; it is enough that the person applying has a legitimate fear of them being committed.

• The person applying must be able to associate his or her fears with the other person’s actions or words.

Incidentally, the court pointed out that in order to be eligible to obtain a Restraining Order the person applying does not have to have an overwhelming fear that “could be understood by almost everyone”; on the other hand, a Restraining Order cannot be granted to forestall every perceived fear of insult or possible harm (unless there are compelling facts in justification).
Finally, as for the terms of the Restraining Order granted against a person, the court has wide discretion to make an order that it “considers appropriate”. This can specifically include an Order that the person:

• Not contact or communication with the person applying or any child in his or her company; or

• Not come within a specified distance of one or more locations.

One final point (but a very important one): A Restraining Order can only be granted against a specified class of people, namely a spouse or former spouse of the person applying, or else a person who is currently living with, or formerly lived with him or her – and there is no minimum time limit for the living-together period.

For the full text of the decisions, see:

McCall v. Res, 2013 ONCJ 254 (CanLII)

Fuda v. Fuda 2011 ONSC 154 (CanLII)

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

Judge who is (or will be subject) to a Restraining Order after challenging public defender to fist fight to lose his job – video

Wednesday’s Video Clip: Judge who is (or should be subject) to a Restraining Order after challenging public defender to fist fight to lose his job

We first took a look at this video in an previous blog. The ABA Journal reports:

Rejecting a recommended 120-day suspension and $50,000 fine for a Florida judge who challenged a public defender to a fistfight last year, the state supreme court on Thursday removed him from office.

Calling the June 2014 incident in Brevard County Judge John Murphy’s courtroom a “national spectacle” that was “fundamentally inconsistent with the responsibilities of judicial office,” the Florida Supreme Court said removal was the appropriate sanction…

So what do you think?  Was this Judge entitled to have a ‘bad day’ or should he be removed from he bench?

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.

Restraining Order: Was Mother’s Fear of Father Real? Or Was it Caused by her Brain Injury?

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Restraining Order: Was Mother’s Fear of Father Real? Or Was it Caused by her Brain Injury?

Recently, we wrote a Blog about an Ontario case  in which the court was asked to grant a Restraining Order to prevent a man from posting scandalous details about his Ex’s “private intimate information” on the Internet.

I also wrote recently about a case called McCall v. Res  which involved a separated parents in high-conflict. There, the same court considered the mother’s request for a Restraining Order, this time in response to many incidents involving the father (which he did not deny). In the mother’s own words:

• “[he] shoved me to the floor while swearing angrily at me”.

• “knowing I was pregnant”, he slapped [me] in the face “extremely hard, threw a banana at the wall and stomped around the house in an infuriated state”.

• “grabbed the chair I was sitting in, when he felt I was taking too long at the computer, and forcefully wheeled it to the front door of the home, and threatened to eject me out the front door and into the street, while he was cursing at me and telling me to get out of his home, which was also my home at the time”.

• “on one occasion he left the house, commenting that I would end up giving birth to a ‘cripple’, due specifically to my eating habits”.

The court said this was “but a few of the many examples of harassing behaviour” that the father had inflicted on the mother in the past, and added that there were several other incidents that the court could certainly have drawn from.

Still, the case was a little unusual because it focused on whether the mother’s fear of the father was reasonable. In considering her request, the court remained mindful that under s. 46 of the Ontario Family Law Act, courts only had the authority to grant a Restraining Order if:

1) the person applying is a spouse, former spouse, or a person currently for formerly living with the person against whom the Order is sought; and

2) the person applying has “reasonable grounds to fear for his or her own safety or for the safety of any child in his or her lawful custody.”

On this second point, the McCall case had an interesting twist: the father claimed the mother’s feelings of so-called torment were not truly because of his conduct, but rather were caused (or magnified) by the fact that she had suffered a brain injury in a motor vehicle accident. After being comatose for a period, she was able to live independently and was now leading an “almost typically normal life”, but had problems with cognition and (as the court put it) was “somewhat vulnerable to the influences of those she is close to.”

But in the end, the court was not swayed. Even taking into the mother’s injury-related challenges, and even taking a narrow view of the many prior incidents instigated by the father, there was more than sufficient reason for the mother to have a reasonable, legitimate, and subjective fear of being harassed and manipulated by him. The court granted the Restraining Order against the husband, on specified terms.

For the full text of the decision, see:

McCall v. Res, 2013 ONCJ 254 (CanLII)

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

Two Things I’ve Learned in 2015 About Ontario Family Proceedings

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Two Things I’ve Learned in 2015 About Ontario Family Proceedings

The past year has seen the usual stream of Family Law cases coming out of the Ontario courts. Not atypically, they feature acrimony, bitterly-disputed issues, and an undertone of intense human emotion running through it all.

Nothing new there.

But in reading the cases I have noticed two strong trends in the jurisprudence in 2015:

1) Self Representation is Still Not a Good Idea

Forgive the pun: But self-represented family litigants simply don’t do themselves justice. Although Ontario courts strain to assist such parties – by providing on-the-spot assistance, giving them leeway, and exercising patience at their inadvertent ignorance of legal procedure – the end result is almost always a proceeding that is longer, costlier, and feels less fair and just than if there had been experienced legal representation helping one or both parties along.

As in years past, the family cases are replete with instances in which courts comment on the upsurge in self-represented litigants, but at the same time express judicial impatience at the lack of knowledge and organization of these individuals, and the resulting delay and extra cost of the proceedings.

In one 2014 case called Martin v. Sansome for example, the case went all the way to the Ontario Court of Appeal because one of the parties, who was self-represented, felt that the judge was biased against him and that he did not receive a fair hearing as a result. (Among the complaints was that the judge had been clearly impatient and annoyed with him, and at one point indicated that he was an “idiot”).

The same trend continues unabated throughout 2015. A good example is found in a case I wrote about previously called De Cruz-Lee v. Lee, where the court went on at length to lament all the disadvantage and hidden costs of one litigant’s unwise choice to represent herself in relatively simple proceedings.

2) Judges are Becoming More Candid

In this Blog over the past year(s) I have chronicled some of the more surprising comments and opinions offered by judges in the context of their rulings in Ontario family law cases. Gone is some of the judicial reluctance to offer sheer opinion, to express frustration, or to convey dissatisfaction – whether it’s with delays in the judicial process, with the backlog of court cases, or with the conduct of litigants. Some judges have been more candid about these kinds of flaws in the system, or have been more openly disapproving about litigants’ strategic tactics.

Maybe judges are seeing a deterioration of conduct and due process, or maybe they are simply less reticent to speak up. Either way, it has made for some interesting – and sometimes very surprising reading this year.

Your thoughts?

For the full text of the cited decisions, see:

Martin v. Sansome (2014), 118 O.R. (3d) 522, 2014 ONCA 14

De Cruz-Lee v. Lee, 2015 ONSC 1900 (CanLII)

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