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Posts tagged ‘pre-separation legal advice and assisting clients with family related issues including: custody and access’

Arizona may soon decide what happens to embryos after divorce

Arizona May Soon Decide What Happens To Embryos After Divorce

Senate Bill 1393 would require courts to give frozen embryos to the spouse who “intends to allow the embryos to develop to birth.”

It was reported that “If both adults want to use the embryos to have a baby, the court would have to give them to the one who “provides the best chance” of successfully doing so. … [and that] the spouse who does not receive the embryos would not have parental rights or responsibilities to any resulting children unless they agree to them.”

“Opponents say it would interfere in infertility treatment, could force exes to become parents against their will, and is a back-door way to change the legal definition of personhood in Arizona.”

It was also reported that “The influential Center for Arizona Policy, an anti-abortion advocacy group, is pushing the legislation.”

In Canada, Do Sperm Cells Constitute “Property” Subject to Division After Separation?

We previously reviewed a British Columbia Court decision that reviewed whether the sperm straws were “property”, and whether the best interests of the existing children, plus any future offspring from the same donor, should be considered in determining what should be done with them.

Ultimately – and while noting that “the court is ill-equipped to handle moral and philosophical arguments – it ruled that the 13 sperm straws were indeed “property”, and that they should be divided equally between the former partners. However, the best interests of the children that had already been born from the particular donor’s sperm straws, as well as any future children that might be born, were not part of the consideration. Trying to analyze (and potentially place limits on) the use to which a couple could use the sperms straws would be “borderline discriminatory”. Moreover, identifying the best interests of a child yet unborn would be merely speculation.

What is Ontario doing?

We previously reviewed the the All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 proposes some important government-initiated changes designed to provide “greater clarity to parenting laws in Ontario”. As for November 2, 2016, the Bill has been ordered for Third Reading, which means it’s one step closer to being enacted into a law.

The Bill makes various changes to existing legislation, most notably the Children’s Law Reform Act where it sets out new rules of “parentage” for the purposes of all Ontario laws; it also clarifies the interplay of those new laws with existing ones. In particular, new provisions are aimed specifically at rights relating to children born through assisted reproduction, as follows:

• The mere fact that a person provides reproductive materials (i.e. sperm or an ovum) or an embryo for use in assisted reproduction is not in itself sufficient to make that person a parent (except of course where those items are provided for the person’s own reproductive use).

• A child’s birth parent, meaning the person who gives birth to the child, is considered a parent of the child; the only exception is a surrogate (who under normal circumstances is not considered to be the child’s parent).

• If the child is conceived without assisted reproduction, then the child’s biological father is also considered to be a parent, although this is subject to rebuttable presumptions (expressly set out in the new law) as to how the biological father may be determined. There are special rules for insemination by a sperm donor.

• If a child is conceived through sexual intercourse, then the person who provided sperm is also a parent of the child. Rebuttable presumptions are set out respecting how that person may be determined; the biological parents may agree in advance in writing that the person providing the sperm does not intend to be a parent of the child.

• A birth parent’s spouse at the time a child is conceived – either through assisted reproduction or through insemination by a sperm donor – is presumed to be a parent of the child. This is also subject to a rebuttable presumption, and there are also exceptions.

• A birth parent may enter into a pre-conception parentage agreement, involving one or more persons, in which they agree together to be the parents of a child who has not yet been conceived. To be valid, the agreement must involve no more than four parties.

Obviously this is an evolving area of law for many jurisdictions with different governments and Courts having quite different approaches to the difficult question: What happens to embryos after divorce?

What do you think?

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

Is $122,858 USD a Month Enough to Live On?

 

Is $122,858 USD a Month Enough to Live On?

Recently it was reported that Tracey Hejailan-Amon was granted $122,858 USD as temporary monthly support. This is in addition to a lump-sum payment of $1,262,121. However, Tracey Hejailan-Amon says it “isn’t enough”.

Her husband Maurice Alain is apparently worth $1.4 billion.

The support order was made by a Monaco Court, but the wife would like to have the case heard in New York. Her lawyer stated that the wife:

“maintains that she was never domiciled in Monaco … [Maurice] contends that Tracey’s shoe collection … was in the Monaco home and this constitutes proof that she was a Monaco domiciliary. This case is a ‘shoe-in’ for the record books in Monaco — it’s well beyond the ‘War of Roses,’ it’s the ‘War of Louboutins.’ ”

This case, and the high monetary awards, are similar to the Bitcoin cases we recently wrote about and also the case where the wife claimed support that included a wine budget of over $10,000 where the court considered:

 a large figured that had been included in the mother’s annual budget for wine.:

There is a claim of £10,555 per annum for “Wine”. The child is aged seven and does not consume the wine. This appears to be a mixture of wine supplied by the mother to the parents of children when they visit her home, and some general entertaining.

So what do you think?

Would a $122,858 USD a month be enough to meet your budget or would you request more?

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

Parents Lose Custody for Failing to Respect Teenager’s Wish to Transgender

 

Parents Lose Custody for Failing to Respect Teenager’s Wish to Transgender

An Ohio Court was recently asked rule on who should make medical decisions for a teenage boy who sought hormone treatment to enable him to transgender.

The parents did not consent and sought the court’s authority to stop the treatment. The child was placed in care of Family Services pending the outcome of the hearing.

The parents argued that given the child’s mental state he was not “even close to being able to make such a life-altering decision”.  Medical experts disagreed and submitted that the father’s conduct was harming the child.

The grandparents requested custody and offered to care for the child and were willing to make medical decisions with the child. This proposal was supported by the child’s court appointed guardian.

Judge Sylvia Sieve Hendon ruled and CNN reported that:

The grandparents, rather than parents, will be the ones to help make medical decisions for the child going forward. But before any hormone treatment is allowed, the court ordered, the teen should be evaluated by a psychologist who is not affiliated with the current facility where he is receiving treatment, on “the issue of consistency in the child’s gender presentation, and feelings of non-conformity.”

 

In Ontario, we already have legislation to address this very issue. As we previously reviewed in “Gender Expression” Now Protected for Kids by Law Ontario’s amendments were aimed at:

courts, social workers, and adoption services. It mandates that when providing services or considering the best interests and welfare of a child, these entities must consider “race, ancestry, place of origin, color, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity, and gender expression.”

It also prevents parents from challenging a child’s same-sex orientation, or with identification not with the gender that he or she was born, but rather the opposite one.

This directive gives rise to a corollary assessment as well: Whether a child should be removed from a home where the parents oppose a child’s declaration of his or her homosexuality or choice of “gender”. The principle behind this part of the legislation is that a parent who refuses to recognize a child’s preference in this regard is actually perpetrating abuse; the child’s removal from the home environment and into child protection facilities would prevent further abuse from occurring.

It would appear that Ontario is ahead of the curve by crafting legislation designed to protect the rights of the individual and the best interest of children.

What are your thoughts?

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

Coffee With Lawyers

Coffee With Lawyers

From NBA to Law School. Enjoy your Friday evening with this light video introducing you to our Student at Law Ajit.

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

Appeal Court Overturns “Do-Over” Directive to Trial Judge

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Appeal Court Overturns “Do-Over” Directive to Trial Judge

A three-member panel of the Ontario Court of Appeal had a chance very recently to consider whether it was appropriate for another Appeal Judge to order a custody matter to be sent back to the original Trial Judge so that any “errors or inconsistencies” in the initial judgment could be remedied, and to allow the Trial judge to go back and rule on anything that was not completely dealt with in the first place – in other words, to give the Trial Judge a “second kick at the can”.

The family law proceedings involved custody, access and relocation issues between two parents of a three-year-old child. At trial, the mother had been awarded custody, and was allowed to move with the child from Ontario to England.

The father’s appeal was heard by a single Appeal Judge, who effectively affirmed the Trial Judge’s ruling but – in an unusual step – then remitted the matter back “to correct any errors or inconsistencies in its wording and to adjudicate on any particular matters that were not dealt with as completely as the [Trial] judge desires in her reasons for decision or in the order itself.” The Appeal Judge also left it open to the Trial Judge to determine whether to admit further submissions, either orally or in writing.

This unconventional procedural step gave rise to a second appeal to the Ontario Court of Appeal, to determine whether the Appeal Judge’s decision to remit the matter back essentially for a rehearing was legally appropriate.

The Ontario Court of Appeal began by emphasizing that the orders of trial judges in family law matters – including those relating to child custody – are ordinarily to be given a great deal of deference. This promotes finality in family law litigation, and respects trial judges’ manner of apprehending the evidence before them. It is therefore never the function of any subsequent appeal court to impose the decision it would have made in the circumstances, or to embark on a fresh analysis. Instead, the test on any appeal is simply whether the trial judge erred or made a material error on his or her appreciation of the facts.

With that in mind, the Ontario Court of Appeal concluded that the Appeal Judge’s decision to remit the matter back to the Trial Judge for a further hearing was incorrect.

First of all, the Appeal Judge had purported to rely on certain Family Court Rules allowing a later court to remit custody and access issues back to the original judge in some circumstances. However, under those provisions the judge is only allowed to go back and revisit those issues that were put before the court but never actually decided. In this case, the Trial Judge had actually dealt with all of the matters relating to custody and access; none had been overlooked. So the Appeal Judge’s reliance on this Rule was misguided.

Next, the Appeal Judge interpreted certain comments in the Trial Judge’s reasons as indicating that she though certain issues had been left out of her own ruling, or that she had not turned her mind to whether additional issues needed to be reheard or submissions made. (In particular, the Trial Judge had commented that a draft Order, prepared by one of the lawyers and intended to reflect the Trial Judge’s ruling, was “an improvement on my Order.”)

This, according to the Ontario Court of Appeal, was not proper ground for remitting the matter back to the Trial Judge.

Although – in the interests of justice – there may be some rare cases where a judge can modify his or her ruling or withdraw the reasons and re-hear the cases entirely, this was not one of them.

Here, the trial had been properly held, the ruling had been made, and the parties were at the point where they were settling the question of how the formal Court Order should be worded to best reflect the Trial Judge’s decision. This was not the time to re-argue the already-decided issues, re-open submissions, and potentially change the decided outcome.

The Appeal Judge simply therefore lacked the legal authority to remit the matter back to the Trial Judge, and any subsequent ruling that she made had no force and effect. Instead, the Trial Judge’s first ruling on custody and access was restored.

Chitsabesan v. Yuhendran, 2016 ONCA 105 (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

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 law 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 RussellAlexander.com

The Perils of “Homemade” Court Orders

courthouse

The Perils of “Homemade” Court Orders

We wrote recently about a case called Cinapri v. Fleck, where the main issue involved a dispute between the parents as toIn that context, the case highlights the difficulties that can arise when parents try – in good faith and with the best of intentions – to negotiate agreements for themselves, which are later endorsed by the court and incorporated into a formal document known as a Consent Order.

While this intent on parents’ behalf may be motivated by numerous factors – including the desire to minimize conflict, to advance the best interests of their children, and to save lawyers’ and court costs – the court in Cinapri v. Fleck summarized the problems inherent in this approach:

Every day, judges across the province make temporary or final orders in family law cases that are based on language engineered by the parties themselves. The parties or their counsel often wordsmith the terms of the consent, minutes of settlement or draft order with little or no input from the court upon reaching a resolution of the dispute between them. Even though the language used in a consent, minutes of settlement or a draft order are subject to the approval of the presiding judge, I think it would be fair to say that those consent documents often do not contain language that is as precise as the terms a judge would normally craft when making an order after a contested hearing. This is one of the reasons why language in a Consent Order is often contentious, particularly where the parenting of a child is involved.

In that case, the particular quibble between the parents that required their return to court was whether their use of the mandatory “shall” in the Consent Order was to be strictly observed. The father insisted it was; the mother claimed that she performed her obligations in good faith and that the father was holding her to a standard not required by either the spirit or the letter of the Consent Order.

After scrutinizing the wording of seven specific paragraphs of the Consent Order, and after reviewing whether the mother had complied to a legally-sufficient extent, the court made further detailed orders to clarify what she still needed to do.

In this case the parents may have thought they were speeding their litigation along, negotiating their own solutions, and saving themselves legal fees in the process. All of which is admirable – but in the end they still had to hire lawyers to represent them before the court to sort out a relatively minor technical dispute, focused on the meaning and intent of the words they used in the Consent Order.

For the full text of the decision, see:

Cinapri v Fleck, 2016 ONSC 1297 (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

Seven Adult Kids Pool Their Money So Mom Can Buy Family Home – So Whose House is it?

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Seven Adult Kids Pool Their Money So Mom Can Buy Family Home – So Whose House is it?

The dispute in Andrade v. Andrade was factually-complicated in the way that only family arrangements can be: At its heart was the legal ownership of a home that had been in the family for 40 years. It involved a mother of seven children in a very tight-knit family, together with commingled family funds and undocumented intentions. And it was triggered by a daughter-in law’s desire to have her deceased husband’s contribution toward the home’s purchase-price recognized in law.

The mother of those seven children was named Luisa; she lived in the home from the time it was purchased in 1974, right up to her death in 2014. The initial problem was that both the $58,500 purchase price for the home, as well as virtually all the money needed for mortgage payments and upkeep, had historically come from her unmarried (and now-adult) children, not from Luisa herself. As the trial judge explained:

Everyone who testified at trial … described a tight-knit family that greatly respected and continuously supported their mother, and that tended to pool resources to an unusual extent. As each child left school and began their working lives, they contributed their paycheques (or a substantial portion thereof) to their mother for her support and for support of the children still too young to work.

For each of Luisa’s seven children, this pooled-earnings arrangement ended only when they married and moved out of the home. This meant that the source of the money used to purchase and maintain the home had always been commingled and indistinct.

But an added legal problem arose from the manner in which title to the home was taken: Soon after it was purchased in 1974 the home was put in the names of two of Luisa’s sons, one of whom was named Joseph. Along with his other unmarried siblings, Joseph had been contributing his earnings to the pooled family funds, until he married a woman named Manuela.

After Joseph died, it was this Manuela (i.e. Luisa’s daughter-in-law) who brought an action to have the court make a declaration as to the rightful ownership of the family home that Luisa still lived in. In the role of widow and executor of her deceased husband Joseph’s estate, Manuela asked the court to declare her to be a beneficial owner of a half-interest in the home, in recognition of Joseph’s financial contribution towards its purchase and maintenance, as well as his status on title.

Luisa, in contrast, asked the court to declare that she owned the entire home herself, even technically though she did not hold legal title. (And Luisa died before the trial, but the action was carried on by her estate. She was unsuccessful, and her estate appealed).

Central to the trial court’s earlier ruling was the conclusion that – light of the family’s pooled-fund arrangement – Luisa “had no money of her own”. This meant she could not have made any financial or other legally-recognized contribution to the house that she technically did not even hold title to.

This conclusion, the Appeal Court found, was a mistake. Simply because the source of Luisa’s money was through gifts from her unmarried adult children (rather than employment income that Luisa may have earned herself), this did not mean it was not her money. This conclusion remained true even if those adult children gave with the intention that Luisa would use the money to support other family members.

Moreover, at various times over the years Luisa had single-handedly rented out parts of the home and was also in receipt of both old age security and a legal settlement, all of which funds were deposited into her own bank account and used for mortgage payments, home maintenance, and expenses. These funds also counted as Luisa’s money for the purposes of crediting her with a contribution to the home. In contrast, none of the adult children ever made such payments or contributions, and the court found that none were expected to.

The key time for assessing the legal situation, and Luisa’s intentions especially, was at the time the property was purchased in 1974. Using that reference-point, there was nothing to indicate that Luisa intended to buy the home for her children’s legal benefit, or to gift it to two of her sons, even though she may have put title into their names.
The Appeal Court found that the situation gave rise to a “purchase money resulting trust” in Luisa’s favour for the full value of the home; this recognized Luisa’s legal interest notwithstanding that title was registered to her two sons.

For the full text of the decision, see:

Andrade v. Andrade, 2016 ONCA 368 (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