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At Wife’s Request, Court Force Sale of Husband’s “Life’s Work”

boutique

At Wife’s Request, Court Force Sale of Husband’s “Life’s Work”

The recent case of Reiss v. Garten had a lot of interesting elements: The demise of a 35-year marriage between wealthy spouses. Numerous commercial properties, assets, and investments to evaluate and divide. Complex lawsuits in both family and civil court to untangle the complicated web of their finances. Multiple trial date that might be years away. And amongst the jewels in the couple’s commercial-holdings tapestry:

A mid-town Toronto office building, that generated nearly a $1 million in yearly income – and one that the wife wanted sold immediately, by court order if necessary.

The question was: should the court allow it?

For his part, the husband objected to the sale of the property, which was located on Merton Street and consisted of a “boutique five-story”, fully-tenanted commercial building. During their long-term marriage, the spouses had used the $850,000 annual income generated from the property to meet their expenses. The husband considered the Merton property to be his “life’s work”.

The wife countered by pointing out that she and the husband were the two sole shareholders of the property (which was mortgage-free): She held 49 percent; he held 51 percent, and it tied up a good deal of their joint assets. She was asking for its immediate sale because after the demise of the marriage she wanted to return to the U.S. (where she was a citizen), in order to get a “fresh start” and care for her elderly and infirm mother in New York City. The wife had been trying to sell the property since mid-2013, but – despite previous expressions of interest by potential buyers – the husband refused to even consider it; this prompted several lawsuits. Based in a proposal put together by a property marketing company she had hired, the property would sell very quickly. (Besides, the wife pointed out, the husband was free to bid on the Merton property himself in response to the sale, if he wanted to keep it so badly.)

She proposed a roughly 50/50 split of the proceeds, and asserted her right to force a sale under the Ontario Family Law Act, the Partition Act, the Family Law Rules and the Ontario Business Corporations Act, as well as the court’s inherent jurisdiction.

After assessing all the facts, the court agreed with the wife. It granted her motion for an immediate sale of the property, and in doing so commented on the following:

• The litigation had started in 2013 and the trial itself was likely at least a year away; yet the now-divorced spouses were still no closer to resolving their financial affairs.

• Even though they separated in 2011, the husband had made any sort of advance on the sizeable equalization payment he was certain to owe the wife (estimated at $5.5 million).

• The Merton property was worth at least as much as the net value of all the other corporate properties in contention, combined. It was also the most readily marketable.

• The Canadian dollar was no longer on par with the U.S. dollar, as it had been when the litigation had commenced.

Not only would the sale of the Merton property at this point be “just and convenient”, but the court found that to compel the wife to wait until trial would actually prejudice her financially: she clearly needed the funds now. Yet, despite being a minority shareholder with a direct interest in the property, those funds had been tied up for four years. In short, the court found that selling the property now, rather as part of a sale of all the assets at the same time, was a “sensible approach”.

For the full text of the decision, see:

Reiss v. Garten, 2015 CarswellOnt 7859

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

Child Support & Parents on Social Assistance in Ontario – video

Wednesday’s Video Clip: Child Support & Parents on Social Assistance in Ontario

Parents on social assistance who have custody of their children must make reasonable efforts to get support from the other parent. If they do not, they may receive less assistance, or none at all. If they do not already have a support agreement or order, they are expected to get one. They must give information about the other parent to a family support worker who can help them get a support agreement or order.

They should get legal advice before signing any agreement worked out on their behalf.

They may not have to try to get support if the other parent:

• has a history of violence towards them or their child

• cannot be found (but they must give their worker any information they have that might help find the other parent),

• or is not working and cannot afford to pay support (if he or she starts working again, then support can be re-ordered).

The amount of any child support they receive is deducted from their social assistance. So, their total income does not change because of the child support.

Usually, the payments go directly to them, and that same amount is deducted from their monthly social assistance cheque. But if there is a history of non-payment, the child support payments can be assigned to Ontario Works (OW) or the Ontario Disability Support Program (ODSP). Then they will get their whole social assistance cheque, even when the support payments are not paid.

Parents on social assistance who do not have custody are expected to pay child support to the extent that they can, as set out in the Child Support Guidelines. Currently, the Guidelines do not require support payments from parents whose income is less than about $6,700 a year.

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 Laments a Litany of Lies

liar

Judge Laments a Litany of Lies

Have you ever wondered what it’s like to be a Family Law judge tasked with the job of finding the truth?

The recent Ontario decision in Blatherwick v. Blatherwick illustrates the challenges and frustrations inherent in that job. The couple had been married for just under 40 years. In 1999, they started what turned into a highly successful business in Canada selling Hallowe’en costumes all over the world. After they separated in 2010, the only legal issue for the court related to spousal support and equalization, both of which required an assessment of the husband’s finances. This in turn necessitated analysis of a complex web of multiple key corporations, numerous related companies, and several offshore corporations in which the husband was involved.

The judge lamented the overall course of the litigation this way:

By the time this matter got to trial, these issues were reduced to two highly contentious issues: What is [the husband’s] income? What was the value of his corporate interests at the time of separation?

Four and a half years of litigation, over $2,000,000 in legal and expert fees, and the answer to these two questions are not capable of precise determination. Why?

The judge went on to catalogue in detail the various reasons:

The first is that [the husband] admits there is a “brotherhood of trust” amongst him and his partners in the Seasons Halloween Business. This brotherhood of trust “looks after each other”. During his cross-examination [the husband] responded as follows:

Question: “In the event that one of you get into trouble in matrimonial proceedings, your partners quickly come to the rescue?”

Answer: “Yes”.

The husband had also engaged in “deliberate and flagrant disregard for any and all court orders”, according to the judge, and was “not deterred from pressing on to do whatever he pleased regardless of whether he knew it continued to breach a court order.”

Next, the judge pointed out that the husband was less-than- truthful, and his evidence shifted freely, to suit the circumstances:

The second [reason] is that [the husband] admitted he was a liar and a cheat before Justice Lemon. He was asked at trial whether he conceded at trial that he is a liar and a cheat and carries on business with partners that are the same. His answer was “I concede that”. …

[The husband’s] evidence changed, dramatically and on significant issues, regardless of whether his prior positions were in writing or under oath. Nothing short of fundamental changes in position of cataclysmic proportions were announced by [the husband] at trial. …

The obfuscation of the facts by [the husband] began. Suspension of reality was a phrase that continually came to mind during the evidence.

The difficulty of the judge’s task was also amplified by the nature and scope of the corporate interests held by the husband, and his unwillingness to be forthright about them:

[T]he companies which form the Seasons Halloween Business are located in China and the BVI. Complete financial disclosure was not produced by [the husband]. The little corporate documents that exist are entirely unreliable. [The husband’s] excuses for the lack of disclosure of many documents were fanciful and unbelievable. [The husband] decided to engage in a “catch me if you can” game.

Finally, the judge summed up the source of its frustration this way:

At the end of the trial, it is clear that [the husband] has, and continues to earn, or has available to him, a substantial income. Clearly, [the husband] had no desire to part with a reasonable amount of his income to [the wife] as support. He has gone to great lengths to hide his real income.

At the time of separation, [the husband] corporate interests in the Seasons Halloween Business were complex, stretching from China to the BVI, with sales through many countries in the world. These corporate interests had and have substantial value.

These corporate interests generated and continue to generate large profits for the partners.

[The husband] threatened his wife that she would not be able to “get at” his offshore business interests. He has done everything he can to carry out that threat.

Do you sympathize with the judge’s plight in trying to uncover the truth, when faced with a litigant who is determined not to reveal it? What are your thoughts?

For the full text of the decision, see:

Blatherwick v. Blatherwick, 2015 ONSC 2606, 2015 CarswellOnt 6124

 

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

Can You Pay Support to a Child Directly after They Reach 18?

18

Can You Pay Support to a Child Directly after They Reach 18?

In a recent Blog we pointed out that a support-paying parent is not entitled to unilaterally choose to substitute gifts or tangible items in place of his or her monetary child support obligation. A related question is whether a parent can choose to pay support to an older child directly, for example where the child is over 18 but in the circumstances is still entitled to support.

Once again, the answer is generally “No”.

Unless a court specifically orders otherwise – and regardless of whether the child is of the age of majority – a parent is not entitled to innovate in this manner and purport to pay financial support directly to the child; it must be paid to the other parent. For one thing, this avoids predictable disputes over whether and how much the child has actually received and how it was spent; the money is better put into the hands of the other parent where it can be controlled and accounted for.

With that said, a paying parent might ask for a court order allowing for such an arrangement, but it will likely be granted only if there is a good reason to do so. For example, in a Saskatchewan case called Bourque v. Janzen, the parents had a highly acrimonious split, and the mother allowed more than $60,000 in child support that had been paid into court to languish there, while she lived in near poverty with their six children. (The mother had thwarted the father’s attempts at access, and apparently didn’t want to capitulate on the support until that other issue was resolved).

Since the mother refused to accept and use the money for the children’s benefit, the father applied to court to allow for it to be paid to the children directly, if for nothing else because they deserved the money for the chores they performed at the family farm. He also claimed that the mother, who was self-represented, would squander the child support money on litigation if it was paid directly to her. (She had filed voluminous materials in court, alleging political persecution and Satanism, among other things).

Faced with this situation (which it conceded was unusual) the court nonetheless found no reason to order that the child support payments should be made directly to the children. That type of order, the court found, was generally reserved for situations where it was clear that the custodial parent would not apply the money towards maintaining a home for the child as intended. In this case, the mother not only incurred home-related expenses but had actually borrowed money to meet the children’s needs. Plus, the fact that she was self-represented spoke against the allegation that she would fritter away the money on litigation; indeed she had testified that she planned to $60,000 to retire the family debt and fund the children’s education once the access litigation was resolved.

Even in the face of some out-of-the-ordinary scenarios like those found in Bourque v. Janzen, the bottom line is that child support payments are generally made from the paying parent, to the custodial one. A court may allow exceptions to that basic rule, but those cases will be few and far between.

For the decisions that establish and apply these principles, see:

Taylor v. Taylor (1988), 64 O.R. (2d) 326, [1988] O.J. No. 878 (Dist. Ct.).

Bourque v. Janzen, [2012] S.J. No. 705, 2012 SKQB 458 (Q.B. (Fam. Div.)

Del Pozo v. Del Pozo (1992), 7 O.R. (3d) 591, [1992] O.J. No. 220 (Ont. Prov. Div.)

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.

How Are Decisions Made About Custody in Ontario – video

 

Wednesday’s Video Clip: How Are Decisions Made About Custody in Ontario

In this vide we examine how decisions are made about custody of children.

Often, deciding on a parenting arrangement after a marriage is over is not easy. Under the Divorce Act one or both parents may have custody of the children.

If you cannot agree on a parenting arrangement, the divorce law sets out some basic principles that a judge must use when making decisions about children:

• The best interests of the children come first.

• Children should have as much contact as possible with both parents so long as this is in the children’s best interests.

• The past behaviour of a parent cannot be taken into consideration by the court unless that behaviour reflects on the person’s ability to act as a parent.

When deciding on the best interests of the child, the judge will take into account a number of factors including:

• Care arrangements before the separation. (Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extracurricular activities? Who dealt with the child’s school and teachers?)

• The parent-child relationship and bonding.

• Parenting abilities.

• The parents’ mental, physical and emotional health.

• The parents’ and the child’s schedules.

• Support systems (for example, help and involvement from grandparents and other close relatives).

• Sibling issues. Generally, brothers and sisters remain together, but under some circumstances it may be necessary to consider separating them.

• The child’s wishes. (There is no magic age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child’s wishes as the child matures. An older teenager’s wishes will often be decisive.)

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.

“Beer, Bingo and Boyfriends” – Should Support Payors Have a Say in How Money is Spent?

bingo

“Beer, Bingo and Boyfriends” – Should Support Payors Have a Say in How Money is Spent?

In a recent Blog  we wrote that in Ontario, support-paying parents are not given sway over how their child support payments are spent and allocated: Once the support payment is in the hands of the recipient (custodial) parent, they are free to use the money for the child’s benefit as they see fit. The parent who provided the funds has no say in the matter.

An obvious related question is this: Does the same rule apply to spousal support payments as well?

This was one of the issues in an older case called Reniewick v. Reniewick, 1985 CarswellOnt 345, [1985] O.J. No. 812 (Ont. Prov. Ct.).

Under the particular court order that dealt the former couple’s support obligations toward each other, the husband had been ordered to financially support the wife until she either remarried or began living with another man. When the husband found out that the wife had a new boyfriend he became convinced – based on the findings of a private investigator he hired – that the two were living together, and stopped paying support. However, the wife claimed it was not a cohabitation arrangement within the wording of the court order, that she and the new boyfriend were just dating, and that the husband’s support obligations should therefore continue.

Not surprisingly, this gave rise to a perhaps-awkward dispute between the former couple, and the matter went before the court for its resolution. Using a long list of the established legal hallmarks of “cohabitation”, the court had the task of examining in detailing the dating and sleeping arrangements of the wife and her new boyfriend. It found that although the boyfriend often stayed over with the wife, he kept his own home and did not contribute to the upkeep of hers; at present they had no plans to get married or live together. At most, they had what the court called a “serious romantic attachment and sexual relationship” that was “of no concern to this court or to the [husband]”.

In this context, the court stated:

Counsel for [the husband] submitted to this court that his client is indirectly supporting [the new boyfriend] because that man makes no financial contribution to his former wife’s household. There was, however, no evidence presented before me that [the boyfriend] was exploiting or consuming his host’s resources and I am not prepared to draw any inferences to that effect merely from the fact that he is allowed to stay at the residence overnight. It is not uncommon for husbands or former husbands to complain before the court, “But Your Honour, she spends the money I give her on beer, bingo and boyfriends”. The standard response of the law is that, once the support money is in the woman’s hands, it is none of this court’s business nor that of the payor to dictate how she should spend it …

Therefore, having failed to establish that the court-ordered “cohabitation” threshold for ending support had been met, the husband’s application to terminate spousal support was dismissed.

For the full text of the decision, see:

Reniewick v. Reniewick, 1985 CanLII 1822 (ON CJ)

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.

What Does it Mean to be “Living Together”, Exactly?

living together

What Does it Mean to be “Living Together”, Exactly?

A few weeks ago I considered a case  that addressed whether support payors should have any input on how their support payments are spent. In reflecting on that question, the court speculated on the support payor’s disgruntlement at seeing his former spouse spend support payments on “beer, bingo and boyfriends”.

This kind of scenario provides a good jumping-off point for a related issue: If the former spouses both agree that support will terminate if the recipient spouse “lives with” a new partner, when does that threshold get crossed, exactly?

Although there are many cases from Ontario that consider this, I noticed a good discussion in an older Newfoundland case called Cooper v. Cooper. There, the husband had agreed to pay support to his ex-wife, with whom he had a traditional marriage for 28 years. However, the now-divorced couple agreed that spousal support would end if the ex-wife decides to “remarry or reside with another man, as husband and wife.”

In 1993, about a year after the divorce, the wife started a relationship with another man, with whom she lived in Florida for the winter months of each year (and particularly so since she had been declared redundant at her work). About five years after that, the husband finally asked the court to terminate his support obligations to her, on the basis that his ex-wife had been “living with” another man within the wording of their agreement.

In order to determine the issue, the court gave detailed consideration to the relationship between the ex-wife and her boyfriend. In making this assessment, it considered a prior judgment in a case called Soper v. Soper where the court said:

I think it would be fair to say that to establish a common law relationship there must be some sort of a stable relationship which involves not only sexual activity but a commitment between the parties. It would normally necessitate living together under the same roof with shared household duties and responsibilities as well as financial support. I would also think that such a couple would present themselves to society as a couple who were living together as man and wife. All or none of these elements may be necessary depending upon the intent of the parties.

Here, the evidence pointed to something more casual and less full-fledged than a common law marriage:

Although they lived together in Florida periodically – where they participated in neighbourhood, community and social activities together – the ex-wife kept her own apartment. They did not share bank accounts or property ownership, preferring to keep their financial affairs separate. They did not share financial information with each other, either. The boyfriend paid for expenses, while he ex-wife paid for food costs and her own long distance calls. And while they did have a sexually-exclusive relationship, the ex-wife stressed that she was a free and independent woman.

In assessing this arrangement, the court kept in mind the observations in an earlier case called Deering v. Deering:

According to the evidence, Mr. Smith and Mrs. Deering keep constant company with each other but do not live together as man and wife. They do have sexual intercourse with each other and she sometimes will prepare his meals.

If there prevails what is generally known as a common law relationship or a domestic relationship, then it seems unfair and indeed improper that a person should be called upon to contribute to the support and maintenance of the former spouse who is a party to such a relationship.

There may, however, be only a social relationship which may or may not involve intimacies but which would not of itself preclude the spouse from claiming maintenance from his or her former spouse.

The relationship that prevails between Mr. Smith and Mrs. Deering falls somewhere between these two, closer to the former than the latter. There is a business relationship also because Mrs. Deering pays rent to Mr. Smith. They frequently share each other’s beds and bodies and dining table but fall short, albeit by little, of having an actual common law relationship.

Returning back to the facts of the present case, the court added:

I question whether one should automatically regard it as unfair for support to continue merely because the ex-wife ends up in a common law relationship, after a lengthy traditional marriage as in the present case, where the wife has probably been economically disadvantaged by her involvement in raising children.

The clause in the former spouses’ agreement governed; there was no husband-and-wife relationship between the ex-wife and boyfriend, so the threshold for ending support had not been met. The husband was obliged to continue his financial obligations (and his subsequent appeal of the ruling was dismissed).

For the full text of the decision, see:

Cooper v. Cooper (1998), 168 Nfld & PEIR 58; 42 RFL (4th) 317 (NL SCTD)

Cooper v. Cooper, 2001 CarswellNfld 17, 2001 NFCA 4, [2001] N.J. No. 19 (Nfld. C.A.)

Soper v. Soper (1985), 44 R.F.L. (2d) 308; 67 N.S.R. (2d) 49 (N.S.C.A.)

Deering v. Deering (1986), 60 Nfld. & P.E.I.R. 230 (Nfld. T.D.)

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.

How To Find More Information About Ontario Family Law – video

 

Wednesday’s Video Clip: How To Find More Information About Ontario Family Law

In this video we review the different ways you can get more information about family law.

There are many professional people, organizations and other sources that can help you or provide information about family law issues, including:

1. An information centre specializing in family justice

2. A parent education course for separating parents

3. Duty counsel at a legal aid office

4. A community legal clinic

5. A university law school with a student-run legal information service

6. A law society or bar association referral service for a lawyer

7. A divorce support or self-help group

8. Relevant library books and videos

9. The yellow pages, white pages or blue pages in your telephone book have listings for
many of these resources, and

10. A librarian at your public library may also be able to help you.

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.

U.S. Judge Sends Kids to Jail for Snubbing Dad

bad boys

U.S. Judge Sends Kids to Jail for Snubbing Dad

We all know that the break-up of a family can be hard on children, partly because they may feel they are being unwillingly wrenched away from one of their parents, or because they may feel they have to “choose” between them. The situation gets even more fraught when the acrimony between parents gets transferred to the children, by way of one parent trying to “poison” the children against the other one.

In a Michigan case heard in late June of this year, the judge concluded that three children had been subject to this sort of “brainwashing” – better known in legal circles as “parental alienation” – by their mother against their father. Against the background of five full years of legal wrangling by the parents, the children (aged 9, 10, and 15, and living full-time with the mother) refused to have anything to do with the father, and would not even talk to him.

Despite placing the blame squarely on the mother for the children’s uncooperative conduct, the judge declared the kids in contempt, primarily for being completely unwilling to establish a healthy relationship with their father. She initially ordered all three to spend the rest of the summer in a juvenile detention facility, and added that they would not be permitted to visit with their mother (who was herself in breach of several court orders). The detention order would be reviewed, the judge said, when the children indicated willingness to at least dine with their father and be “normal human beings”.

The judge made this contentious order over the objections of both parents, but noted that the children were each represented by lawyers who had no concerns about this admittedly unusual ruling.

Needless to say, the judge’s order garnered significant controversy and backlash in the media and among the legal community. The judge subsequently defended her decision to the press, pointing out that this was an unusual scenario and that all other avenues had been exhausted. She also noted that the children were housed in a short-term facility within the juvenile detention center, and not amongst the young criminal offenders.

(In a later development in early July, after the children had already spent a few weeks in juvenile detention, the judge reversed her initial order and had the children transferred to a summer camp instead).

Do you think that the judge went too far in this case? Should kids be strong-armed into maintaining a relationship with one or both of their parents?

For a sampling of some of the media coverage of this story, see these links:

media coverage 1

media coverage 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

 

You Be the Judge (Part 2): Should Grandmother Be Included in Kid’s Custody Award?

granmother 2

You Be the Judge (Part 2): Should Grandmother Be Included in Kid’s Custody Award?

In our recent blog we asked our readers to consider how they themselves would rule in light of the facts in a recent case called McGlade v Henry. It featured two of young parents whose 4-year old child received an exceptional level of care, financial support, and emotional guidance from his grandmother on the father’s side. The grandmother had teamed up with the child’s father to ask the court for three-way joint custody (i.e. mother, father and grandmother); however the mother resisted and asked the court to grant her sole custody instead.

We asked the following question for readers to consider: Should the court, in the context of deciding which of the parents should have custody, take into account the grandmother’s role, extensive involvement, and influence? Should the grandmother be included in the court’s custody award if one or both parents object?

The court’s judgment began with a review of all the facts, including a detailed examination the parties’ current and historical interactions and interrelationship with each other, and with the child. Under the relevant family legislation, the court pointed out, it had to consider the boy’s needs and circumstances, including the love, affection and emotional ties between the child and anyone else who might claim custody or access – which in this case would include the grandmother. The legislation also required the court to consider her ability and willingness to act as “parent”, and to provide the boy with guidance, education, and the necessaries of life.

The court also underlined the fact that legally – and perhaps surprisingly – biological parents are not necessarily given preference in terms of getting custody of their own child. Rather, the child’s best interests must govern at all times; the fact that an applicant for custody happens to be a biological parent is only one of many relevant factors. As the court put it:

Accordingly, [the mother] and/or [the father] do not have general preferential custodial status over [the grandmother] simply because they are the biological parents of [the boy], but the difference in their blood relationships with [the boy] will be one of the factors considered by the court in determining [his] best interests. Nevertheless, [the mother’s] claim for sole custody will be given serious consideration because she is a biological parent of [the boy], and [the father’s] claim for joint custody will be given serious consideration for the same reason.

The law also indicates that grandparents should not be given preference in relation to custody solely because they are more mature, have more parenting experience, and have access to greater material resources than biological parents, because, otherwise, grandparents would often be in a favoured position compared to adequate biological parents, and the closer blood relationship between adequate natural parents and their children would, in many cases, be susceptible to being outweighed by those considerations …

The court added:

None of these imperatives imply, however, that [the grandmother’s] claim for joint custody should not be given serious consideration. In fact, in all of the circumstances of this case, her claim also deserves serious consideration.

With that said, the grandmother’s extraordinary level of involvement, and the fact that she had been “remarkably financially generous” to the boy and the mother, had what the court considered to be somewhat of a down-side. As the court explained:

Further, there is uncontradicted evidence that she overindulgently gives [the boy] anything he wants and, as a result, he has been prone to behavioural acting out when he does not get what he wants.

Additionally, although she is always glad to have [the boy] spend time with her when his mother or father are not available, the evidence indicates that she may have, intentionally or unintentionally, disempowered them, at least to some extent, by taking a controlling and directive approach in relation to [the boy] and using her superior resources to do so.

The court does not doubt that she has [the boy’s] best interests at heart, but she might, intentionally or unintentionally, not be advancing those best interests at all times.

After taking everything into account, the court summarized the key factors. From the boy’s perspective, it was very important that he have continued and significant contact with all three parties; they each had what the court called “a very strong love” for him. Depriving him of that exposure would be emotionally disruptive and harmful.

From the mother’s perspective, there was an evident adverse effect to the grandmother’s extreme financial generosity and support: it diminished her own role and authority as the boy’s parent. The grandmother had implicitly – though likely unwittingly – undermined the mother over the years.

As for the father, the court concluded that he was clearly devoted to the boy as well, but was the least involved amongst the three caregivers. More importantly he still lacked the maturity needed to be an effective parent and key decision-maker for the boy.

In the end, the court found that joint custody shared by all three parties was not in the boy’s best interests – though not because of the grandmother’s heavy-handed involvement. Rather, to recognize both women’s contributions (both past and future), it “parcelled out” certain aspects of the boy’s care and upbringing to the mother and grandmother, while relegating the father to a more secondary role overall.

Specifically, the mother was to provide the boy’s primary residence, and was given sole custody in relation to his hygiene and health, and his religious upbringing and welfare. However major decisions on education were to be made jointly by the mother and grandmother. The court summed up its ruling this way:

In summary, the court finds that it is in [the boy’s] best interests to strengthen [the mother’s] maternal role, while maintaining [the grandmother’s] vital role in relation to his education, and encouraging all three parties to continue to nurture their critically important emotional ties with [the boy].

To our readers: Is this the way you would have settled this dispute? What are your thoughts on this outcome?

For the full text of the decision, see:

McGlade v Henry, 2015 ONSC 3036 (CanLII)

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