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Posts from the ‘Court Procedure’ Category

To Get or Vary Child Support, Do Your Kids Still have to be “Children”?

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To Get or Vary Child Support, Do Your Kids Still have to be “Children”?

An Ontario Court of Appeal decision recently brought to the forefront an interesting little legal point, about the court’s authority to make or change child support orders even after children are too old or too independent.

Under Canadian family law, section 15.1 of the federal Divorce Act allows a court to make an order requiring a parent to pay child support for any “children of the marriage”.   (And this term is defined by the Act to include: 1) a child under the age of majority (who has not otherwise withdrawn from his or her parent’s charge), and 2) a child who is over the age of majority but still dependent.)

Based on a prior ruling decided by the Supreme Court of Canada, a court only has the authority to make a child support order if, at the time of the initial application by the parent, the children fall under this “children of the marriage” definition.  In other words, if the support-recipient parent waits until the children are over the age of majority or no longer dependent, then he or she is out of luck since the court lacks jurisdiction to retrospectively make a child support order at that point.

A recent Ontario Court of Appeal decision called Colucci v. Colucci, the court considered a related question: Can a parent apply to the court to vary a child support order, even after the children stop being “children of the marriage”?

The facts of the case involved a father of two children who had been ordered to pay child support but eventually fell into arrears of more than $175,000.  By that time, both children ceased to be “children of the marriage.”  Faced by the prospect of a significant decline in his income as an unskilled labourer, the father brought a motion to change the child support order retroactively, and have his arrears rescinded on the ground that there had been a change in circumstances.

The Appeal Court reviewed the governing law when an order could be varied, as found s. 17 of the Divorce Act.  It was differently worded than the initial-support provision in section 15.1; the stated test for whether a court had the authority to vary an order was different from the test to make an order in the first place.  The Appeal Court concluded that based on that wording, a court did indeed have jurisdiction to vary an existing order even after the children are no longer dependents. (And from an Ontario family law perspective, it should be noted that this aligns with the court’s jurisdiction under the provincial Family Law Act to vary child support orders retroactively in such circumstances).

Although the Colucci decision does not foretell that every parent’s application to vary child support will succeed (since that must be determined on a case-by-case basis), the law is now abundantly clear that a court had the authority to change orders even after the children no longer fall within the “children of the marriage” definition.

For the full text of the decision, see:

Colucci v. Colucci

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

Saving the Golden Goose: Part II – Including Specialized Professions as An Alternative Option to the Traditional Court System

Saving the Golden Goose: Part II – Including Specialized Professions as An Alternative Option to the Traditional Court System

As mentioned in our previous blog Saving the Golden Goose: Part I, a court process allows for only a rights based determination of the issues at hand. However, there are many intricacies involved in the enmeshment of family business and the process of separation and divorce. As an alternative to a purely rights based approach, other options can be considered in the collaborative approach, including:

  • Family trusts or holding companies as a method of sharing income from the family business
  • Tax planning, avoiding the possibility of triggering a Canada Revenue Agency audit
  • Considering the formation of a new family trust
  • Employment of children in the family business
  • Estate, succession, and capacity planning
  • Ensuring insurance is in place to cushion the effects of any risks
  • Gifting shares or portions of the family business to children or other family members
  • Maintaining the privacy of the family business
  • Managing the continuation of income streams
  • Splitting income amongst family members
  • Delaying equalization or sharing business payments (Ie: if and when the family business sells)
  • Preserving the family legacy for generations
  • Recognizing and predicting the ebb and flow of the market and business patterns

Unlike the court system, the collaborative process is unique in that it offers the additional benefit of involving neutral professionals who specialize in associated areas, listed above. These neutrals are able to address relevant areas of the family law matter, often with more experience in their particular field than lawyers. Neutrals are also able to complete work at their hourly rate, rather than at the lawyer’s fee. They are also able to take on some of the information gathering that would alternatively be completed by the spouses, which can be stressful. This makes including neutrals an efficient way to deal with issues in a cost effective manner.

Financial Professionals

Collaborative Financial Specialists may be accountants, financial planners, and business valuators who have expertise in helping separating families address issues relating to the family business. They play a vital role in the collaborative process by ensuring that clients provide full and frank financial disclosure. Financial disclosure includes aspects such as income, liabilities, and assets of both the spouses and the business. A business valuator may value the business and, as in the case of many self employed individuals, complete an income analysis to determine yearly income for support purposes. In the collaborative process, family business owners can work alongside the financial professional and/or business valuator to assist them in understanding the intricacies of the business based on its unique field.

Financial Specialists thoroughly vet the documents and prepare detailed reports which help to streamline settlement discussions. Financial Specialists further add value to the collaborative process by educating clients about their finances and helping to manage their expectations from a neutral perspective. This impartial stance helps to keep client expectations realistic, making negotiated settlement more likely.

Another key benefit of financial professionals is their ability to “even the playing field”. In some family matters, one spouse may have been much more involved in the finances of the family business. The other spouse may feel they are ill equipped to negotiate the finances associated with the business, and may worry about being taken advantage of by their spouse. A financial neutral can spend time separately with both parties to ensure that all the cards are on the table, and that each spouse understands the basis upon which they are negotiating.

Family Professionals

While it may not immediately seem to be a common sense approach to include a family professional within the context of a family business matter, family professionals can often deal with may of the underlying issues associated with restructuring a family and a family business. Emotions can run additionally high when dealing with the very real and salient issues associated with the individuals which make up a family business team.

Much of the concept of “Interest Based Negotiation” centers on interests that are not purely financial. A family professional can assist in identifying and bringing these interests to the table. Anger, loss and grief are a natural part of divorce or separation, especially when a family’s livelihood is on the line. A family neutral gives families access to support and guidance for managing these emotions which can intensify the conflict and derail settlement attempts in traditional divorce.

Collaborative Family Professionals are counselors, social workers, psychologists or mediators who have specialized skills in handling the emotional aspects of the issues pertaining to separation and divorce. They further discuss parenting, and help ensure that feelings, needs, and concerns are understood and respected where children concerned. This is especially pertinent when there are children working within a family business, who have their own independent concerns about how the divorce will affect their future within the business context.

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

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Wednesday’s Video Clip: Does The Age of The Child Affect Child Support in Ontario?


Wednesday’s Video Clip: Does The Age of The Child Affect Child Support in Ontario?

Simply put, the age of a child does affect the amount of child support ordered. In this video we discuss how and when the age of the child could affect child support. Income considerations, age of the child and needs of the child should be considered.

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

Saving the Golden Goose: Part I – How Family Run Businesses can Survive and Thrive after Divorce

Saving the Golden Goose: Part I – How Family Run Businesses can Survive and Thrive after Divorce

One of the common fears of clients who own family run businesses is how a divorce will affect the business they have spent their life building. While business owners have control over the work they put into their business and the legacy they are building for their family, they may have little influence over a relationship breakdown. The worry in regards to the effects of this breakdown on a business can cause additional stress above and beyond the heartache associated with restructuring a family.

In many family law matters involving children, the spouses are able to agree to cooperate in order to address the best interests of the children. In many ways, a family business can be used as a similar incentive: spouses can agree to cooperate in order to address the best interests of the family business. While fueling conflict is an almost unavoidable side effect of the court system, a collaborative approach is a very effective method in reducing the impact of separation and divorce on family run businesses. This process seeks to ensure that the business remains viable for both spouses, as well as future generations.

What is Collaborative Practice?

Collaborative Practice Family Law offers an effective alternative to the inherently adversarial court process. Both parties must enter into the process voluntarily, and agree to resolve their issues respectfully. While the court process is oriented based on the legal rights and obligations of both parties, the collaborative process allows both parties to generate options that best suit their family. This allows the family much more self determination in creating an outcome based on their specific needs. Specially training collaborative lawyers work with both parties to guide them through the process, and are available to offer legal advice and support to their clients when appropriate.

Both parties’ lawyers also commit themselves to coming to a mutually agreeable resolution. The parties must agree in advance that should the collaborative process fail, neither party may use their collaborative lawyer to advance their position in court. This creates an environment conducive to negotiation and settlement, outside of court.

The underlying philosophy of the collaborative divorce process is that the parties mutually agree to completely avoid the court process, with the result being a faster, cheaper and more amicable divorce or separation.

A Flexible Alternative to Court

As mentioned above, the collaborative process allows spouses to shape the outcome of their separation and divorce. In contrast, judges in the court system have limited statutory options available them when presented with these disputes. Their analysis is built upon a determination of the legal rights and obligations of the parties under the Family Law Act. Furthermore, family law judges may struggle to understand the time and effort that goes into building and running a business, and the concept that income is not necessarily guaranteed or consistent. Issues such as liquidity of assets, the risks associated with owning a business, and ensuring that funding remains stable are complex, and family judges are not necessarily trained to analyze these concepts. Due to these restrictions, often a court process will result in the sale of business at a significant discount, which ultimately results in a significant loss of family wealth.

Collaborative family law is an option that operates outside of the court system. It allows the spouses much more privacy than a court process does, which a huge additional benefit to those owning family businesses. Issues such as tax planning or corporate share transfers can be done with reduced publicity. Both spouses are able to sit down with one another, and their lawyers, to discuss a solution that is beneficial to both the business and the family unit. Spouses can determine whether or not it is a realistic option to continue to operate the business jointly, or if one should step down. In the latter situation, flexible payment structures can be created to ensure that the business is not destroyed in the wake of one spouse leaving. This fosters the health of the family business, and promotes growth and stability for future income and the building of capital which ultimately supports the family.

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

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Should Family Law Claims Involving Indigenous Couples Be Governed by Indigenous Law?

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Should Family Law Claims Involving Indigenous Couples Be Governed by Indigenous Law?

In an uncommon recent Ontario family decision, the issue was whether a former couple of Indigenous heritage should have their family dispute governed by the laws that govern their particular clan, rather than by the family laws of Ontario.

The man was a wealthy Indigenous co-owner of the largest cigarette company on the Six Nations reserve, earning over $2.1 million per year tax-free.  He faced claims for child and spousal support from a woman with whom he had an 8-year-old son. She was claiming almost $86,000 per month in spousal support, and $33,000 per month in child support.

In a court hearing, the man argued that since he was part of the Haudenosaunee people, his family law dispute should be governed by Haudenosaunee laws, not by the usual Ontario family law.  He asserted that the Indigenous people had an inherent right to self-government, including the resolution of family law issues, and that for the Ontario court to apply a different law to them was a violation of the constitutional rights of the Indigenous.

(Incidentally, the woman disagreed with the man’s position, pointing out that she and her son are Tuscarora, but were not culturally Haudenosaunee.   They had neither a clan, an Indigenous name from a Clan Mother, nor a Long House that they attended on a regular basis. She was content to have the usual Ontario family laws govern their dispute).

After hearing and examining the man’s argument in detail, the court rejected his position.  The court was entitled to assume that the Ontario Family Law Act and the Children’s Law Reform Act, along with their associated Regulations, were all designed to promote a public interest; this meant that the man had to demonstrate how exempting him from the legislation’s operation would benefit the public (among other things).  The court found that he had completely failed to do so, adding:

 In the absence of even basic specifics regarding the Haudenosaunee laws and protocols that he is relying on, these assertions are akin to an empty shell.  This is particularly so given that the Children’s Law Reform Act likewise focusses on the best interests of children, and requires the court to give significant weight to a child’s aboriginal heritage and the importance of maintaining connections with that heritage. 

What are your thoughts? Should Indigenous people be governed only by Indigenous law?

For the full text of the decision, see:

Beaver v. Hill

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

 

 

 

Cousin Steals from Own Family Member – and Gets Slapped with $5,000 in Punitive Civil Damages

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Cousin Steals from Own Family Member – and Gets Slapped with $5,000 in Punitive Civil Damages

Although it still technically relates to “family” matters, a recent Ontario civil case was still interesting even though it falls outside the realm of the topics I normally cover.

The court set the stage:

On the morning of Wednesday, June 8, 2011, [the victim] left the house at 8:30 a.m. for his regular golf game. His wife … went to play tennis. Sometime between 9 a.m. and 11 a.m., someone entered the house, proceeded to [the victim’s] home office, used a key hidden in a briefcase to open a locked armoire, and removed jewelry, cash, and a Personal Video Recorder (PVR) which was part of a home security system and was hidden in a closet.  Nothing else in the house was disturbed.  The [victim] contacted the police the same day, and retained a private investigative agency two days later to attempt to locate the jewelry and find the perpetrators.

It turned out to be an “inside job” by the victim’s own first cousin, Esposito, and the victim’s housekeeper.  The court detailed how the victim had hired and occasionally loaned money to Esposito, who had no source of regular income and admitted to a gambling habit.

At the civil trial brought by the victims to have Esposito held liable for conversion and damages, the court had no trouble disbelieving Esposito’s evidence.  Among other things, he initially denied outright that he had any phone conversations with the housekeeper, until his phone records were produced at trial.  These showed 139 calls up to the date of the theft (including 7 on the morning of the theft alone), and only 2 calls afterward.  The phone records also showed lengthy conversations with her that Esposito claimed not to remember, or could not adequately explain.

The court also found that Esposito had first-hand knowledge of the cousin’s daily routine, knew the layout of his home, and had an obvious motive (in the form of the gambling habit).  Especially with his shoddy credibility, the court readily found Esposito to have been either the culprit, or else the mastermind behind the theft.

After finding him personally liable for damages for conversation and trespass, as well as breach of confidence, the court ordered him liable for the value of the jewelry and sums of cash in various currencies.

But what was especially interesting about the case, was he court’s decision to impose a hefty award of punitive damages against Esposito in these circumstances.  The court wrote:

I award punitive damages given the intrusion on the privacy and security of Esposito’s cousin and his family, the important sentimental value of the jewelry which was made known to Esposito within six days of the theft; and the betrayal of a cousin and misuse of family ties.  [The victim’s] evidence was that he trusted Esposito because he was a family member. Esposito’s conduct must be denounced. I award $5,000 in punitive damages.

What’s interesting about this case is that it’s a civil matter – not a criminal one – and is designed to restore the victim to where he was pre-theft, through the award of damages.  Although the court has the right to impose punitive damages in appropriate cases, it’s a bit unusual to have a court increase the awarded damages to account for the fact that the victim and perpetrator were both members of the same family.

What are your thoughts on that?

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

 

Supreme Court of Canada Hands Down Landmark Ruling on Text Message Privacy

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Supreme Court of Canada Hands Down Landmark Ruling on Text Message Privacy

In a Supreme Court of Canada ruling in a criminal case called R. v. Marakah, which was handed down just this past week, the nation’s top Court framed the essential questions in the opening lines:

Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination? Or is the state free, regardless of the circumstances, to access text messages from a recipient’s device without a warrant?

The accused, Nour Marakah, had been charged and convicted of trafficking in handguns.  Among the evidence used against him were certain incriminating text messages that he had sent to an accomplice’s iPhone.  The messages on his own phone (from where those messages to the accomplice were sent) had already been ruled inadmissible, since their use was found to have breached his Charter right to be protected against unreasonable search and seizure.

The Supreme Court of Canada ruled that the text messages that had been intercepted from the accomplice’s phone were private in the circumstances, and also inadmissible on the same Charter-based grounds.

The Court quickly added that outcome was not automatic: different facts may have led to a different result.  Among other things, the matter hinged on whether Marakah had a reasonable expectation that the texts would remain private.

From a general standpoint, the Court discussed the relevant legal analysis to be applied in these cases.  This involved evaluating the “totality of the circumstances” including the elements of whether the sender has control over the messages once they are sent.  Someone who sends texts messages has meaningful control over what they sent, and how and to whom they disclose the information.  For the purposes of the Charter’s s. 8 protections against unreasonable search and seizure, that control is not lost merely because another individual possesses or can access it.  In other words, even though the sender does not have exclusive control over his or her personal information – only shared control – that does not preclude him or her from reasonably expecting that the information will not be subject to state scrutiny.

Returning to Marakah’s specific case, he had an objectively reasonable expectation of privacy of the text messages on the iPhone of his accomplice. He fully expected their conversation to be private, and had repeatedly asked the accomplice to delete the incriminating messages from his iPhone. The “place” of the police search (i.e. the accomplice’s iPhone) was a private electronic space accessible the accomplice, so this factor also heightened Marakah’s legitimate privacy expectations.

In entertaining, but ultimately rejecting, the policy concerns around recognizing the privacy of text messages in some circumstances, the Court added:

There is nothing in the record to suggest that the justice system cannot adapt to the challenges of recognizing that some text message conversations may engage s. 8 of the Charter.

The Court found that there had been a breach of Marakah’s Charter rights in this case, and that admitting the text messages from the accomplice’s iPhone as evidence would bring the administration of justice into disrepute.  Without those texts, he would have been acquitted; to allow the conviction to stand would be a miscarriage of justice.

Although this Supreme Court ruling germinated from a criminal case with Charter implications, it may have eventual repercussions in the civil realm, including Family Law trials.

What are your thoughts on this ruling?  Should text messages be considered private at all times?

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

 

 

[1] 2017 SCC 59 (CanLII).

Ontario Courts Soon to Get Wi-Fi!

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Ontario Courts Soon to Get Wi-Fi!

You read that right.  And – no – you’re not reading an old Blog from 10 years ago.  It may come as surprise, but the Ontario courts’ arguably archaic infrastructure has not had Wi-Fi … until now. (Or soon).

According to a November 2017 announcement from the provincial Attorney General, Ontario’s courthouses will all be newly-equipped with Wi-Fi by 2019.  Additional upgrades will see the current paper-based system for delivering Jury summons will be replaced by one allowing for delivery by e-mail or text, and some divorce-related documents will eligible for on-line filing.

In announcing this long-overdue development, which is being positioned as a measure to improve access-to-justice especially in the Family Law realm, Attorney General Yasir Naqvi said:

“Our system is still very much a bricks and mortar system … The most advancement we’ve seen is we’ve moved from typewriters to desktops or paper filings to faxes. That’s where we’re starting.”

Obviously, these are just baby-steps towards bringing the physical resources into the modern age, it is one of several planned additional steps to modernizing the courts and justice process in the province.

As far as Family Law-related upgrades go specifically:  In April 2018, couples going through a joint divorce will be eligible to file their divorce applications on-line.  This augments a recent improvement to the document filing system, which saw the province set up a service allowing parents to update their child support agreements online.

For more information on this announcement, see:

Ontario’s new attorney general wants to modernize justice system

http://www.cbc.ca/news/canada/toronto/wifi-ontario-courts-electronic-1.4425300

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

New Joint Action Plan Announced for Improving Access to Family Law Services in Ontario

New Joint Action Plan Announced for Improving Access to Family Law Services in Ontario

The Law Society of Ontario has just announced its approval-in-principle of a joint action plan that is the culmination of a Family Legal Services Review commissioned last year in conjunction with the Ministry of the Attorney General.  The resulting Report makes 21 recommendations that are aimed at improving access to Family Law legal services, most notably by expanding the role of paralegals. Under the joint action plan being considered, the Law Society commits to the following:

  • To develop a license for licensed paralegals and others with appropriate training, to allow them to offer some Family Law legal services. The licence will support training on the topics of: legal process; completing Family Law forms, investigating certain financial information, Motions to Change, and uncontested divorces.  The Law Society indicates that training will be an intensive and rigorous process, of up to 14 months’ duration, along with testing.
  • To “engage in a robust evaluation of the success of the Family Law legal services license for service providers other than lawyers, and to make any adjustments that are in the public interest.”
  • To consider allowing lawyer candidates (e. articling students) to be given “experiential training” in the licensing process, including how they may support the delivery of Family Law legal services under appropriate supervision.
  • To review the Rules of Professional Conduct governing lawyers and paralegals, to see whether the current rules on the unauthorized practice of law are as clear as possible on the difference between legal information that is legal advice, versus legal information that might be provided by Court staff to unrepresented litigants. The intent is to effect a common-sense change to give Court staff more latitude to help self-represented litigants navigate the Family Law process.
  • To continue to support the expanded use of unbundled services and legal coaching, including offering Continuing Legal Education opportunities, as well as tools that address concerns over legal liability.

The Law Society indicates that it will also continue to assess what additional Family Law legal services (including advocacy in and out of the courtroom) should be made available by providers other than lawyers.   This again requires consideration of the public interest.

It should be noted as background to this newly-announced initiative, that the Law Society has also ramped up its lobbying efforts, in cooperation with the Bar, to encourage the Federal and Provincial governments to accelerate the implementation of Unified Family Courts to all jurisdiction in Ontario.  (Currently, there are only 17 Unified Family Courts are only available to litigants in the province, mostly in the greater Toronto region).

What are your thoughts on this new action plan?

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

 

Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

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Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

In a recent case heard by the Ontario Court of Appeal, the issue was whether the parents of a 17-year old girl had any right whatsoever to participate in a court proceeding declaring that she had officially and legally withdrawn from their control as parents.

The girl had gone to court for a “declaration” (which is a formal court statement pronouncing on the existence of a legal state of affairs) that she had withdrawn from parental control.  This had followed a period of extreme acrimony between her and her father, with whom she lived full-time, over numerous matters.  The main precipitating event was the girl’s unilateral decision to finish high-school in Ontario a year early, in order to attend the University of Miami where she had obtained a full scholarship.

The father strongly opposed her plans, and wanted her to stay in Ontario to finish grade 12.  He even began court proceedings in Florida to force the university to disclose the contents of her application file, which impelled the university to ask the girl for proof that she was an independent minor.   Since her father had repeatedly said he would “do everything he can to stop” her from going to Miami, she needed the formal court declaration; without it he could demand that the university withdraw both her application and the scholarship.

The lower court had granted her application without hesitation, adding that “[t]he evidence indicates that [the girl] is a remarkable young woman.”  The court found the parents had no right to be included in or even have notice of the proceedings.

The father appealed, claiming that the mere fact that the court had not allowed or invited both parents to participate – including the full right to object, file evidence, and cross-examine – was grounds enough to overturn the declaration.

The Appeal Court disagreed, but conceded that the parents did indeed have a right to be part of the proceedings.  But there was still no reversible error here, since the required level of parental participation had been met, even though neither mother nor father were ever made official parties to the girl’s application.

The court’s reasoning was technical:  First, it pointed out that under the CLRA the girl had a unilateral stand-alone legal right to withdraw from parental control once she reached age 16.  The court added:

Once a child declares an intention to withdraw from parental control, her independence may – as it was here – be recognized by the police and the schools. There is no formal court process for a child to withdraw. … Unlike jurisdictions such as Quebec which have procedures for “emancipation”, Ontario law does not have a formal process for withdrawing from parental control. The child simply has to take control of the incidents of custody which include decision making regarding residence and education. No court process is required.

However, there was a narrow distinction between withdrawing from parental control, and obtaining a declaration from the court to that effect.  The former was a legal right that the girl could exercise unilaterally; the latter was a request to the court that it exercise its jurisdiction to make a declaration.  Here, the girl had appeared before the court for the second item, the declaration, which triggered consideration of the various legal interests of both the child and the parents.  In this matter, some of those interests were in conflict and called for a balanced inquiry.  Also, the CLRA expressly provides that the parents must be before the court in any application in respect of a child.

In short, and based on the legislation and basic legal principles, the court found that the parents must indeed be parties to their own daughter’s application to withdraw from parental control, but that the court has a broad discretion to direct the extent of that participation.  Here, although the father had not initially been named as a party by the lower court judge, he had been allowed a certain level of involvement nonetheless. He had been allowed to file material and make submissions.

The court also concluded that the merits of the girl’s application justified the order made. The prior judge had fully considered the extensive court record, which included more than a dozen affidavits providing information on which the best interests of the girl could be assessed.  The judge’s findings were supported by the evidence, and there was no procedural unfairness in granting the declaration.

As the Appeal Court stated: “The declaratory relief was not exercised in a vacuum. There was a clear reason for it.”

The father’s appeal was dismissed.

R.G. v. K.G.,

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