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Posts tagged ‘Separation Agreements’

Should Dad Be Forced to Cook Gluten-Free?

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Should Dad Be Forced to Cook Gluten-Free?

In the recent decision in Beaulieu v. Beaudoin, the court was asked to rule on several continuing disputes between now-divorced parents in relation to the custody, access and care of their four children, three of whom had special needs. Specifically, one child had been diagnosed with autism and ADHD, while two others had severe behavioral issues.

In the context of a hearing to resolve several ongoing and acrimonious issues, the mother asked the court for an order to force the father to follow children’s gluten-free diet when they are in his care.

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The court explained the mother’s position:

The [mother] says that she has invested significant time and energy into learning how to support the children’s needs and how to stabilize their symptoms through medication and diet. Her research has led her to believe that gluten free and casein free diets have been shown to have positive effects on children with autism and ADHD. She asks that the [father] be ordered to adhere to their dietary requirements.

The father resisted;  although he acknowledged that some of the children had special needs, he disputed the effect of gluten on their behaviour.  He had consulted the children’s doctors on his own about the role of gluten, and they advised that it was unlikely to have any impact.  The court added, “He goes on to list the [the mother’s] long list of dietary restrictions which he believes illustrates [her] own obsession with food and her need to correlate everything about the children’s behaviour on what they eat.”

The court considered evidence, in the form of a letter, from one of the children’s pediatricians.  While stopping short of prescribing a gluten-free lifestyle, it indicated “some evidence” that such a diet can be helpful for children on the autism spectrum, and that “Mom feels that she is doing much better.”

The court effectively discounted the pediatrician’s letter, noting:

He does not prescribe a gluten-free diet. Dr. James’ letter only reports what the [mother] has told him; this is double hearsay and has very little probative value. I am reluctant to make the [mother’s] dietary demands a term of any order without more persuasive evidence. To do so would expose the [father] to allegations of a breach of a court order. At the same time, the children are spending most of their time in their mother’s care and it is problematic if the [father] ignores her concerns altogether. This is a high conflict case. The parties do not need to be looking for new ways to antagonize each other.

In the end, the court resolved this narrow issue by ordering that the father must “respect the children’s dietary regime within reasonable limits.”  The court then went on to rule on a host of other contentious, equally-narrow issues between this warring former couple.  (These will be the subject of future Blogs.)

For the full text of the decision, see:

Beaulieu v. Beaudoin, 2018 

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

Wednesday’s Video Clip: Client Testimonial 

 

Wednesday’s Video Clip: Client Testimonial 

In this short video our client Wendy discusses the services, support and assistance she received at Russell Alexander, Family Lawyers.

Thank you for your support and kind recommendation Wendy. From the all our staff and lawyers we wish you the very best.

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

An Example of How Family Violence is Addressed in Family Law

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An Example of How Family Violence is Addressed in Family Law

There’s no doubt:  Family law disputes can get nasty.   Emotions run high, and intemperate conduct can quickly escalate.  A recent B.C. case addressed illustrated the type of misbehaviour that can result in one spouse getting a protection order against the other.

The wealthy couple – who owned assets around the world estimated to be worth $50 million – were in the midst of a very high-conflict matrimonial proceeding. They were scheduled for an upcoming trial to decide their property division matters, and their child support issues in relation to their 17-year old daughter.

The wife had earlier obtained a protection order against the husband, under the provincial Family Law Act.  To do so, she established to the court’s satisfaction that she was an “at-risk person” whose safety and security was likely at risk from family violence carried out by the husband. The court described the contents of that order:

The protection order included the following terms: it restrained the [husband] from attending at the family home in West Vancouver or [their daughter’s] school with a police assistance clause; it restrained the [husband] from possessing a weapon or firearms; it authorized the police to seize any such weapons and, for that purpose, the [husband] was required to provide the security code to the gun safe in the family home to the [wife’s] counsel; and, it restrained the [husband] from communicating with the [wife or daughter], save through counsel. The protection order was stated to expire after one year …

The protection order had been made necessary by the abusive conduct of the husband mainly toward the wife, but sometimes directed at their daughter as well. The court encapsulated that misconduct this way:

The vitriolic and abusive comments of the [husband] directed at the [wife] continued and continues to this day. The description of these communications by the [husband] by his counsel as “intemperate” hardly does justice to the word. He alleges, as of late May 2017, that the [wife] is “fat and laid back” and that she was a prostitute. These past and continuing comments are simply abusive, vile and hateful.

Nonetheless, about nine months after the order was granted, the husband applied to the court to have it set aside.

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The court reviewed the provisions of the provincial Family legislation dealing with protection orders, noting that the criteria included consideration of whether family violence “is likely to occur” against an at-risk family member.  In making this assessment the court was entitled to consider several factors, including: any history of family violence; whether it is repetitive or escalating; whether there is a pattern of abuse or controlling behavior; and the couple’s recent separation.  The court noted that for these purposes, “family violence” was defined to include psychological or emotional abuse (including intimidation, harassment, coercion or threats) and unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy.

In terms of satisfying those criteria, the court described only some of the evidence put forward by the wife:

The evidence of the [wife] in her Affidavit … is replete with instances where the [husband] has directed both psychological and emotional abuse toward both her and [the daughter]. He has repeatedly threatened, intimidated and humiliated both of them. It appears that this controlling behavior on the part of the [husband] began at least as early as September 2015 and escalated to the time of the filing of the Notice of Family Claim.

There was a visit by the [husband] in late April 2016 which was strained to say the least. During that visit, the [husband] was screaming at [the daughter] such that the [wife] was concerned that he was going to hit their daughter. The [wife] tried to push the [husband] and the [husband] shoved her out of the way.

I had no hesitation in August 2016 in finding that the actions of the [husband] toward the [wife] and [the daughter] in the period leading to August 2016 constituted family violence.

Likewise, the court rejected the notion that the provisions dealing with firearms prohibition were overreaching in these circumstances.

In doing so, the court considered the husband’s argument that the initial protection order had been premature, since he was currently living in Singapore and there was no evidence that he planned to show up in Vancouver (where the wife and daughter lived) to harass them.

The court pointed out that – to the contrary – the husband had sent the wife an email asking for keys to their Vancouver condominium, and stating that he planned to go there within two months. The court added:

To accept the [husband]’s argument is to contend that the [wife] had to wait until he showed up on the doorstop of the West Vancouver family home before she could allege urgency. The evidence established that the [husband] came to Vancouver on a regular basis and, given the acrimony in their relationship, the [wife] could not have expected that she would be given sufficient notice of a visit to seek a protection order. There was also ample evidence to support that giving notice of an application seeking a protection order would have exposed the [wife] and [the daughter] to further abuse and threats and possible physical altercations. 

After stating that it was more than satisfied that the initial protection order had been well-supported by the evidence, the court dismissed the husband’s application to have it set aside.

(Note that although Devathasan v. Devathasan is a B.C. case, an analogous remedy is also available in Ontario, where in certain circumstance a spouse, partner, or someone with whom the person had a child, can apply to the Family Court for a restraining order. The person making the application must prove reasonable grounds for fearing for his or her safety or that of any child in the person’s custody.  This is established through affidavit or oral evidence presented to the court.)

These types of orders are aimed at protecting family members who are at risk.  Are they the right solution?  What are your thoughts?

For the full text of the decision, see:

Devathasan v. Devathasan, 2017

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

 

Court Declares Excuses “Ludicrous” and “Preposterous”

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Court Declares Excuses “Ludicrous” and “Preposterous”

Family Court judges hear cases all day long, and it’s likely fair to say that they’ve “heard it all.”

More to the point, they’ve likely heard a wide array of what are (at best) improbable excuses from litigants, who are called to task for non-compliance with court orders, especially those relating to a failure to provide full and frank disclosure.

In a case called Q.X. v. J.R.L., the court dealt with the property and support disputes between a former couple who were born and raised in China, met online, and then married in Vegas a little over a year later when they learned the woman was pregnant. The marriage lasted 18 months.  The court was left to untangle a complex, often-contradictory narrative from the husband in particular, about his Canadian and foreign income, investments, family businesses, and other financial information that was relevant to determining the issues between the parties.  The court described some of his evidence this way:

[The husband] J.R.L. has provided no mortgage application for any of the properties he owns in British Columbia. He claims that he came to Canada when banks lent money fairly freely and it was not necessary for him to complete a mortgage application form. He has produced “loan” documents from his father, mother, and sister, but gave no evidence relating to the loan documents, and I question the validity of the documents. He provided some documents relating to his immigration to Canada, but they do not appear to be his application form, and of the documents he did disclose, it is not possible to tell if there was a declaration of income, because J.R.L. blacked out portions of the document.

J.R.L. has failed to disclose his President’s Choice Financial chequing account statements from December 2011 to April 2012. He has failed to disclose or produce any bank statements for his bank accounts in China. In particular, he has failed to disclose his Bank of China term deposit statements from April 2011 to April 2013; his Bank of China savings account statement from April 2011 to April 2013; and his China Merchant Bank statements. He makes the preposterous claim that the banks in China do not provide bank statements. He is not telling the truth because Q.X. provided her Bank of China bank statements, showing that banks in China are able to, and do provide bank statements.

Likewise, in a recent case called Farrukh v Farrukh Amin the court’s credibility assessment of the husband was short and to-the-point:  It gave no credence to his proffered excuses for failing to comply with previous court orders, specifically in connection with producing documents and paying Costs previously awarded to the wife.  The court started its brief ruling this way:

On the evidence before me it appears that the [husband] does not think court orders apply to him when it comes to the payment of costs and the production of documents.

First, the court took issue with the husband’s contention that he had indeed filed the financial documentation required by the Family Law Rules:  It noted that the materials were simply not in the court file as they otherwise would be.

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Next, it outright disbelieved him on the reason for his failure to pay Costs under a prior order:

To submit to the court that he did not know where to pay the costs is simply a ludicrous answer to the question of why he did not pay them.

The court noted that the husband’s lack of cooperation and excuses put the wife at a disadvantage, and precluded both early settlement and the court’s full determination of the issues between them.

And, to add to the husband’s legal woes, the court hit him for an additional $16,000 in costs and disbursements, for the latest hearing that his past non-cooperation and non-compliance made necessary.

For the full text of the decisions, see:

Q.X. v. J.R.L., 2015 

Farrukh v Farrukh Amin, 2018

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

Wednesday’s Video Clip: The Path to a Successful Divorce

Wednesday’s Video Clip: The Path to a Successful Divorce

While the breakdown of a marriage is never an easy or happy time, the process can go smoothly or it can be a roller coaster. On top of all the emotional turmoil, it is time-consuming, costly and very confusing. That’s why Russell Alexander has written a book outlining the path to a successful divorce, taking readers step-by-step through the process from finding a lawyer to handling post-litigation issues. In 300+ pages, Alexander’s new book, readers will find a solid grounding on the key questions about family law that they’ll face as they go through a divorce, including whether they’ll need a separation agreement first, how courts view adultery and why representing yourself is a bad idea.

At Russell Alexander Collaborative 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

Texas Wife ‘Blows Up’ Marriage Memorabilia to Celebrate Divorce Being Finalized 

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Texas Wife ‘Blows Up’ Marriage Memorabilia to Celebrate Divorce Being Finalized 

On the Saturday night of November 10th, Kimberly Santleben-Stiteler held a party consisting of about 40 guests in Medina County, Texas. This party was to celebrate the finalization of ending of her ‘miserable’ marriage of 14 years.

During the party, the wife compiled a garage full of items such as the wedding ring, photos during the marriage, and the wedding dress, which was then attached to 20 pounds of explosives. She then proceeded to shoot the garage with a rifle from 200 yards away, resulting in an explosion that could be seen from up to 15 miles away.

The Texan summarized the event as a “liberating and gave a feeling of closure”.

For more information on this story visit: https://www.star-telegram.com/news/state/texas/article221527670.html

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

 

 

Cross-Border Abductions by Parents: Supreme Court Rules on Child’s “Habitual Residence” Under the Hague Convention

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Cross-Border Abductions by Parents: Supreme Court Rules on Child’s “Habitual Residence” Under the Hague Convention

A recent decision from the Supreme Court of Canada hones in on a narrow-but-important issue that arises in parental abduction across international borders – meaning situations where one parent removes a child to another country over the objection of the other, and in contravention of existing custody/access arrangements in force at the time.

In Office of the Children’s Lawyer v. Balev  the crux of the case was whether the Ontario court had jurisdiction to order the children returned to their father in Germany, even though they were happily living with the mother in Ontario.   The Supreme Court of Canada introduced the factual narrative of the case this way:

The story begins in Germany, where the family — a father, a mother, and two children, all citizens of Canada — were living. Because the children were struggling in school, the parents decided that the mother should take the children to Canada for 16 months to experience the Canadian school system. During that period, the father [suspecting the children would not be returned] purported to revoke his consent and brought an action under the Hague Convention for an order that the children be returned. While he pursued remedies in the German courts — unsuccessfully — the period of consent expired and the mother remained in Canada with the children. After the father resumed the application, a judge of the Ontario Superior Court of Justice ordered that the children be returned to Germany. The Divisional Court reversed this decision [on later appeal]. The Court of Appeal reinstated it. That decision was appealed to this Court.

From these facts, the legal issue arose as to whether the children in this scenario were “habitually resident” in Ontario for the purposes of the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”).  If so, the Ontario court could grant an order in the father’s favour to have the children returned.  Unfortunately, the term “habitually resident” is not defined in the Convention itself, although it has been considered by the courts of other subscribing states around the world.

In considering the matter afresh after several levels of appeal, the Supreme Court first noted the two main goals of the Hague Convention, which are:

  • Enforcing parents’ custody rights; and
  • Ensuring the prompt return of children to their “habitual residence” where they have been wrongfully-removed to or wrongfully-retained elsewhere.

The Court added that a determination under the Convention is not a custody order, but merely a mechanism for restoring the status quo.

The concept of a “habitual residence” could be considered either from the perspective of the parents, or from that of the child, the Court found.  Historically in Canada, it has typically been the parents intention (rather than the child’s level of acclimatization and wishes) that governs the issue of where the child lives.    Nonetheless, the Court concluded that a “hybrid” approach was more appropriate, meaning one that focuses on relevant considerations that arise from the facts of the specific case. That hybrid approach requires a court to look at:

  • The child’s links to country A and overall circumstances;
  • The circumstances of the child’s move from country A to country B; and
  • The child’s links to and circumstances in country B.

Pertinent considerations include the duration, regularity, conditions, and reasons for the child’s stay in a member state and the child’s nationality. No single factor dominates the analysis.

With that said, the Hague Convention does include an exception to the general rule that a wrongfully-removed or retrained child must be returned to his or her country of habitual residence in cases where:

  1. The child has reached an appropriate age and degree of maturity at which his or her views can be taken into account, and
  2. the child objects to return.

The Court concluded that these factors call for a straightforward assessment by the court.

In the end, the described hybrid approach to the concept of “habitual residence” best adheres to the principles that inform the rulings from other countries on this point, not to mention the overall intentions and goals of the Hague Convention itself.  These goals all have a harmonizing purpose that has been agreed-to by its contracting member states.

Having looked at the background legal principles, the Court resumed its review of the facts even though the issue was moot. (In 2017 a German court had granted the mother custody and they had been returned to Ontario).  It vindicated the father nonetheless, finding that an earlier court was correct in declaring the children were “habitually resident” in Germany and should have been returned there.

For the full text of the decision, see:

Office of the Children’s Lawyer v. Balev, 2018 

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

 

Did Remorseful Husband Succeed in Ending Arranged Marriage?

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Did Remorseful Husband Succeed in Ending Arranged Marriage?

A recent Ontario case casts light on what happens when cultural marriage traditions must be scrutinized under a Canadian legal microscope.  The court introduced the facts this way:

This application involves the fall-out from an arranged marriage that did not last. There were no children of this marriage.

In 2012, … [the wife] was a 22-year-old Pakistani woman who studied in the Master of Business Administration program at .. University. 

[The husband] was then a 28-year-old Canadian man whose parents had emigrated from Pakistan a generation earlier. [The husband] had graduated from secondary school in Toronto and was pursuing a career in the financial sector. [The husband’s]  mother set upon arranging for [the husband] to marry a woman from Pakistan.

[The husband’s] mother contacted [the wife’s] mother and they arranged for [the wife] to marry [the husband]. … The couple met for the first time in the days before the wedding and were married on July 6, 2012. …  After the wedding, [the wife] left her home to reside with [the husband] for about a week in a relative’s house. [The wife] testified that she and [the husband] consummated their marriage. [The husband] testified that they did not.

[The wife] recalled that she and her new husband happily celebrated with family members in the week after their wedding. [The husband] testified that he was immediately overcome with remorse. He had gone along with the arranged marriage to please his traditional parents, and to maintain cultural values, but was saddened to be married to someone he did not know and with whom he had little in common.

According to the reluctant husband’s evidence, and unbeknownst to the wife, he decided to divorce her by invoking a traditional religious divorce ceremony – which is recognized under Canadian law when validly performed.   The court continues the narrative:

[The husband] testified that late in the evening of May 28, 2013, he spoke with his mother and told her that he had decided that he could no longer remain married to [the wife]. He felt anxious and ill and wanted to terminate the relationship. [The husband] testified that he understood from his mother that as his marriage had not been consummated, it could be annulled if he convened a meeting with [the wife], her family, and a village elder, and spoke the word “Talaq” to [the wife] three times.

This conversation took place in Pakistan, where the husband, wife, and extended family members were all assembled to celebrate the wedding of another family member.  The husband testified to the court that he performed this religious ritual before the wife and other required parties the next day, on May 29, 2013.

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However, the wife’s version of the day’s events diverged significantly:  She claimed they simply spent the day happily shopping and dining together.  As the court explained:

[The wife] testified that [the husband] is “totally lying”. She states that there simply was no such ceremony. [The wife] is adamant that [the husband] did not attempt to divorce her in 2013 and that he did not even tell her that he wanted out of the marriage.

 

Thus the question of whether the couple were divorced under both Pakistani and Canadian came down to a matter of credibility.  The husband bore the onus of determining that a religious divorce had taken place on that day in May, as he claimed.

The court looked at the overall evidence presented, and disbelieved the husband outright.

For one thing, the subsequent email correspondence between him and the wife (who had remained in Pakistan) consisted of “the usual dialogue between a couple planning to get together after a time apart.”   The husband had taken no steps with the civil authorities in Pakistan to legalize the alleged divorce, and did not attend the country’s central registry to change his marital status.  Nor did he consult with a local lawyer to ensure the ceremonial steps he took complied with Pakistani divorce requirements.

Even looking at matters from the wife’s side, her conduct after May 29, 2013 was not consistent with someone who had been told her husband was leaving the marriage. Instead, she continued to prepare to reunite with her new husband in Canada, and to establish a married life with him.

Having ruled that the husband had not achieved a religion-based divorce as claimed, the couple remained legal spouses at the time of the hearing.  In a 100-paragraph judgment, the court went on to deal with numerous issues relating to property division and support, pending their upcoming divorce under Canadian law.

For the full text of the decision, see:

A.S.1 v. A.A.S., 2018

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