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Posts from the ‘Education’ Category

Apr 30

Cross-Border Kid:  Where Should Kid with Dual Citizenship Live and Attend School?

Handing holding a globe in front of mountains and blue sky

Cross-Border Kid:  Where Should Kid with Dual Citizenship Live and Attend School?

In a recent case called Stoughton v. O’Ney, the court faced a unique problem that it described this way:

Sarah and Jessica are the parents of Rory who is a 4 year old boy. Currently, they share parenting time with him on an equal basis … Sarah lives in Niagara Falls, Ontario and Jessica lives in Niagara Falls, New York.  Rory is a dual citizen of Canada and the United States.  Because of the international border, it is not practical for Rory to continue this schedule once he attends school full-time. He must have primary residency with one parent and attend school either in the United States or Canada.  As he should begin school in September 2019, this issue must be resolved.

The court also prefaced its ruling with a comment on the difficulty of the task:

From all of the evidence that I have heard, it was evident that Rory is a lovable, intelligent child and that Rory has two loving mothers who want only the best for him.   Both mothers acknowledge that the other mother only wants what is best for Rory.

This makes the issue of where Rory should attend school, and what the arrangement for his custody should be, very difficult.

The court explained that Rory was born in 2014 in Buffalo, New York after Jessica was impregnated with an anonymous sperm donor. The couple then lived in Ontario immediately after they were married in Canada that same years.

The court started with the observation that joint custody was not an option in this scenario;  it would have to make a sole custody determination, which would in turn dictate both Rory’s primary residence, and the school he would attend.

After emphasizing that the best interests of the child always govern such determinations, the court noted in passing that even for same-sex parents, Rory’s best interests are also the sole governing test.  The law also states that for children conceived through assisted reproduction, each of the spouse are considered to be parents for these purposes, and both have an equal right to custody.  Finally, the goal of maximum contact with each parent is a mandatory consideration, but if the parents are to have joint custody, then there must be a high level of cooperation and communication.

Both mothers gave evidence, as did various extended family members on both sides.  The court heard a litany of testimony around various issues, including the details of their same-sex marriage ceremony in both New York and Canada, how each parent characterized the parenting skills of the other, allegations of dishonesty and abusive conduct, issues and conflict with extended family members, and numerous aspects pertaining to the relationship with the child.

The court also heard the respective plan that each parent had for Rory, in the event that sole custody was granted to them, including the plans relating to schooling.

Sarah’s plan involved having him attend a small U.S. private school close to her work.  It had very small class sizes and the capacity to deal with Rory’s special needs, and could accommodate his weekly speech therapy sessions.

Jessica, in contrast, had done little research on Ontario schools, other than to look into what schools were in her neighbourhood.  She had not explored what services might be available to Rory in Ontario schools.  The court heard the unbiased evidence of the private school principal, over that of Jessica whose evidence appeared to be self-serving.

While noting that both proposed plans had advantages for Rory, the court found the plan proposed by Sarah was overall stronger, and in Rory’s best interests.  It also noted differences in the cooperation levels between the two parents.  In an almost 300-paragraph ruling, the court summarized its conclusion this way:

Because of Jessica’s actions in the past, I have grave concerns that if she were granted sole custody and primary residence of Rory, she would effectively cut Sarah out of Rory’s life.  Because of the inclusive way that Sarah has acted in the past, I have no such concerns if she were granted sole custody and primary residence of Rory. …

I find that Sarah is clearly able to meet, and has been meeting, Rory’s needs, both emotional and physical.  Very importantly she has been doing this in a way that is very inclusive of Jessica, ensuring that Jessica is a part of that journey.

I find that after a gap of over one year, Jessica has taken steps in New York to provide for Rory’s needs, but has done it in a way that totally excludes Sarah from that process.

The court ordered Sarah to have sole custody of Rory, and he would attend school in the Niagara Region of Ontario. Jessica was allowed stipulated access (including overnights), and was ordered to pay a set level of child support, and was entitled to participate in parent/teacher interviews, and to be given copies of his report cards, among other things.

For the full text of the decision, see:

Stoughton v. O’Ney, 2019 

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

 

Apr 11

Lori Dubin joins the team at Russell Alexander Collaborative Family Lawyers

lawyer portrait

Lori Dubin is now an associate lawyer at Russell Alexander Collaborative Family Lawyers. She is recognized for her client-centered approach and efforts to provide practical and efficient advice in order to achieve the best possible results. She has extensive experience in resolving high conflict cases and successfully settles most of her cases prior to trial.

Lori has practiced law for over 15 years. Prior to working in family law, Lori had 11 years of experience as a criminal trial lawyer with a focus on crimes arising out of domestic relationships. During her academic career, Lori was the recipient of several scholarships based on her academic achievement at York University. She achieved magna cum laude in her final year of her Honours Bachelor of Arts degree program in Psychology and Mass Communications.

Lori studied for her LLB at Osgoode Hall Law School, graduated in 2003 and was called to the bar after a year of Articling for a prominent Toronto firm. She’s trained new lawyers at the Law Society of Ontario’s Law Practice Program, acted as an articling principle, adjunct professor at various institutions, and commentator on Court TV Canada. Lori is an active member of the Toronto Lawyers Association and the Toronto Family Law Association. She has served her community on numerous Legal Aid Panels and Pro Bono assignments.

Aside from working, Lori has a very active family and social life. She is a fitness enthusiast and loves dogs, especially her own toy poodle.

Welcome to the team, Lori!

 

 

Feb 27

Divorce Information Centre – New Section

resource

Divorce Information Centre announced a new section today titled, Working With Your Divorce Lawyer. The section provides access to information including:

Jan 11

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GM Oshawa Assembly Plant Closing & Divorce

The Ghosts of GM: Past, Present and Future

On November 26, 2018, the General Motors Company (GM) announced that it will cease allocating new product to its Oshawa assembly plant beyond the end of 2019. This came as a shock to the 2,500 employees who work at the Oshawa plant and the many more who depend on their income. While the jury is still out on whether GM will be laying off or re-training its 2,500 employees, one thing is certain—a large cohort of GM’s employees stand to lose their livelihood.

Whether laid off or re-trained, employees who have a potential, current or settled family law matter will need to govern themselves wisely to weather the impact that closure will have on their day-to-day lives. Accordingly, this post explores the likely, and, not so likely, family law implications of GM’s closure of its once thriving Oshawa assembly plant.

The Ghost of GM Past: Settled Family Law Matters

If your family law matter was previously settled by way of a Separation Agreement or Final Order, the loss of employment income may trigger a review of child support or spousal support, or parenting.

Support obligations

It is likely that the loss of employment income will mean that you cannot afford to pay child support and/or spousal support as set out in a Separation Agreement or Final Order. In the case of a Separation Agreement, you may be able to rely on a built-in review clause to revisit the issue of support. Most Separation Agreements contain a dispute resolution clause which may be the first place to start in this endeavor. In the case of a Final Order, you will likely want to bring a Motion to Change a Final Order if you and your ex-spouse cannot agree on the appropriate adjustment out of court. A qualified lawyer can assist with making this process as seamless as possible.

Parenting

It is not likely that your loss of income will impact settled parenting arrangements. However, you may find yourself needing to reduce your parenting time with the children in order to focus on finding a new job. In this scenario, you may likely need to rely on the dispute resolution clause in your Separation Agreement or bring a Motion to Change a Final Order altering an access schedule in order to achieve the desired relief.

The Ghost of GM Present: Current Family Law Matters

If you are currently going through a legal separation from your spouse, the loss of employment income may affect a number of aspects in your separation, including but not limited to, support, assets and liabilities and alternative career planning.

Child support and spousal support

You may have credible grounds by which to vary a temporary Order for support in your legal proceeding. As an Order for support would have been based on your GM income at the time, the Order may be varied by the new circumstances. You may seek such relief at a pre-trial conference or by bringing a motion. It is not likely, however, that your loss of income resulting from being laid off will extinguish your entire obligation to pay support. Rather, you may still be required to pay support on the basis of employment insurance income or imputed income. However, the extent of any such continuing obligation depends on the particular facts of your case.

Assets and liabilities

The loss of employment income may result in a budgetary deficit, impacting your ability to keep the matrimonial home. If you are no longer able to maintain your share of the mortgage and bills associated with the matrimonial home, it may have to be listed for sale—which may be the most poignant of all of your post-closure concerns. Worry not. There may be options available to you for preventing this outcome such as, a buy-out, borrowing or disposition of investments, RRSPs, RRIFs or your GM pension. However, the viability of these options to save the matrimonial home will need to be assessed against the surrounding issues in your proceeding such as support, equalization and other issues relevant to your case.

Alternative career planning

You may wish to delay your re-entry into the workforce to obtain credentials in a more stable industry. While this will yield economic benefits in the long run, your current financial obligations of support and solvency will be deciding factors. Delayed income generation caused by alternative career training may likely be manageable provided that the financial obligations of your ongoing separation are minimal. However, your freedom and ability to pursue such an undertaking may require a corresponding compromise and will depend on the unique facts of your case.

The Ghost of GM Future: Potential Family Law Matters

If you have been planning to separate from your spouse, the loss of employment income can have significant family law implications on a number of obligations arising in separation, including but not limited to, support, parenting and family property.

Child support and spousal support

It is not likely that being laid off will defer support obligations. You may be obligated to pay support if you receive employment insurance income sufficient enough to meet legislative minimums. If you do not qualify for employment insurance, your spouse may still seek support by imputing an income on you commensurate with your work experience, whereby you will be required to pay support. In either scenario, the obligation to pay child support and spousal support may survive the loss of income depending on the facts of your particular situation.

Parenting

It is likely that being laid off will mean expanded parenting time. While increased parenting time may yield social benefits, it may also impinge on your economic rehabilitation. Your spouse may expect you to dedicate your new found time to caring for young children who are not in school. These, and other significant changes to parenting time after initiating your separation, may likely hinder your re-entry into the workforce. A properly drafted parenting agreement can help by moderating unrealistic expectations.

Family property

You will have a legal duty upon separating from your spouse to avoid the reckless depletion of family property. While you may wish to list personal or real property for sale to help make ends meet, it is not likely that you will be able to freely dispose of family property after your date of separation without your spouse’s prior consent or proper accounting. You will have to be mindful of how you manage family property as mismanagement may prejudice the equalization of net family property and may result in a Court order.

Bottom line

The closure of GM’s Oshawa assembly plant in 2019 will disrupt the lives of many families, the impact of which might be felt most by those dealing with a potential, current or settled family law matter. Contacting a lawyer for legal advice tailored to the particular facts of your case is a proven way to mitigate the effects of an imminent disruption to income. While it may seem impossible to afford a lawyer at this time, there may be options available to finance the cost of much-needed legal representation.

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.

Nov 1

Russell Alexander Collaborative Family Lawyers’ First Annual Holiday Toy Drive

Poster for Russell Alexander Collaborative Family Lawyers' Toy Drive

 

Russell Alexander Collaborative Family Lawyers are pleased to announce the start of their First Annual Holiday Toy Drive. This year the drive will be supporting Bethesda House located in the Durham Region and A Place Called Home located in The City of Kawartha Lakes.

New, unwrapped gift donations can be made in the Brooklin office for the Bethesda House. They have informed us of the lack of gifts for children 13-17 years of age. Some gift suggestions for them include:

  • Sports equipment
  • Art supplies
  • Games
  • Movie passes and gift cards
  • Purses and backpacks
  • Make-up, lotion, perfume
  • Hats and scarves

The Lindsay office is accepting new, unwrapped gifts to be donated for A Place Called Home. There is no recommended age for donations for this organization.

If you wish to donate to the toy drive this year, it will be running from November 1, 2018 through to December 7, 2018. You may drop by with your donation in the Brooklin or Lindsay office any time between 9:00 a.m. and 5:00 p.m. on Monday to Friday. For further details, feel free to give our office a call at 905-655-6335.

Sep 19

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Religious School’s Barring Child of Same-Sex Couple Not a Breach of Human Rights

Image result for same sex marriage law

Religious School’s Barring Child of Same-Sex Couple Not a Breach of Human Rights

In a perhaps-surprising decision of an adjudicator of the Human Rights Tribunal of Ontario, a Christian evangelical school that refused to admit the adopted son of a married same-sex couple was held not to have breached the anti-discrimination provisions of the Ontario Human Rights Code (the “Code”).

The private school had justified barring the child from its preschool program on the basis that it had a long-established biblical stance against same-sex marriage, and that to allow the child to attend would clash with the school’s teaching and values.

Faced with the school’s rejection of their application, the couple brought a complaint under the Code for discrimination based on sex, creed, marital status and family status.

The adjudicator ruled that the school’s decision fell within a narrow “special interest” exception found in s. 18 of the Code.   That exception essentially permitted the school to discriminate in providing services where “membership or participation in a religious … organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.”  In other words, the school was not in breach of the Code if it could prove that it was effectively restricting participation in the school’s program to only those who were part of the religious group that it was designed to serve, even if that restriction was otherwise discriminatory.

The adjudicator concluded that the evangelical school fell within the definition of a “special interest” organization, and had not breached the Code-enforced right to equal treatment of services.  As the adjudicator stated:

The school has a well-defined and specific set of creedal beliefs, mission statement and mandate. The respondent [school’s] evidence was clear that the school requires all parents to share these values if they are considering the school for their family.

The adjudicator added that the parents chose to apply to the school precisely because of the opportunity to immerse the child in a Christian religious educational environment. The adjudicator added:

While I empathize with the parents’ feelings of unfairness that their child would not be admitted, the respondent [school] made no secret of its beliefs and was upfront that it may not be the right fit for every family.

Does this ruling come as a surprise?  What are your thoughts?

For the full-text of the decision, see:

H.S. v. The Private Academy

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

Aug 9

Wednesday’s Video Clip: How to Find More Information about Ontario Family Law

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

Dec 5

New Surrogacy and Parenting Declaration Laws Upcoming in Ontario

all-families-are-equal-act

New Surrogacy and Parenting Declaration Laws Upcoming in Ontario

Last week I wrote about the province’s new Bill 28, The All Families Are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016. This new legislation, which is at the Third Reading stage and thus likely to pass into valid law soon, makes several changes to existing statutes that govern the intricacies of parentage.

Specifically, it amends the Children’s Law Reform Act, (by establishing new surrogacy and parenting declaration rules) and the Change of Name Act and the Vital Statistics Act (relating to name changes and birth registrations, respectively).

Here are a few more of those upcoming changes:

Surrogacy

• There are new rules relating to surrogacy situations, including the provisions dealing with the agreement that governs the parties’ relationship, and various provisions relating to the surrogate providing her consent.

• The Bill also gives surrogates a seven-day “cooling off” period before the intended parent of the child take custody.

Parenting Declarations

• Specific provisions deal with the ability to apply for a court-ordered declaration that a person is or is not a parent of a child.

• In this regard, the making of a declaration is subject to the court’s considerations relating to the best interests of the child.

• Such a declaration can also be set aside in the right circumstances; otherwise, it is recognized for all purposes, and is deemed to be effective from the date of the child’s birth.

Other

The new Bill also amends the Vital Statistics Act and the Change of Names Act, to bring it in line with the various changes relating to determining and declaring parentage in assorted circumstances, including assistant reproductive technology. The amendments relate to document name changes and birth registrations.

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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