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Posts from the ‘Ontario Child Support’ Category

Indigenous Father Appeals Ruling Giving Ontario Courts Jurisdiction Over Mother’s $117,000 Monthly Support Claim

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Indigenous Father Appeals Ruling Giving Ontario Courts Jurisdiction Over Mother’s $117,000 Monthly Support Claim

Late last year, I reported on an unusual Ontario family law decision called Beaver v. Hill, in which the issue was whether an Indigenous former couple’s family dispute should decided pursuant to the laws that govern their particular clan, rather than by the family laws of Ontario.

The man, Ken Hill, who is a wealthy Indigenous co-owner of the largest cigarette company on the Six Nations reserve, had resisted his former romantic partner Brittany Beaver’s claim for almost $86,000 a month in spousal support, and $33,000 a month in child support for the 8-year old child they had together.   Hill earns about $2.1 million per year, tax-free.

Among Hill’s arguments to the Ontario court was that his Indigenous Haudenosaunee laws should be applied to decide the support claims by Beaver against him.  That court dismissed his argument.

Now, Hill has filed an appeal which includes a Charter challenge to be heard by the Ontario Court of Appeal.

Hill intends to argue that the decision to allow the Ontario family courts to decide the dispute between him and Beaver would violate the constitutional rights of Indigenous peoples.  In Hill’s view, the family-related disputes of the Haudenosaunee people should be resolved according to their own laws and governance.

Hill’s appeal is slated to be heard by the Ontario Court of Appeal in June of 2018.

For the full-text of the lower court decision currently under appeal, 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

Court Rules Kids’ “Adaptability to Change” Is a Factor Letting Him Move with Mother to the U.S.

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Court Rules Kids’ “Adaptability to Change” Is a Factor Letting Him Move with Mother to the U.S.

In a recent Newfoundland decision, called Sexton v. Tipping, the court made what is arguably a sensible and realistic observation about children’s adaptability to change, especially at a young age, and how that can bolster a court’s decision-making on factors relating to custody and primary care.

In that case, the court wrote:

It is a reality of the times in which we live that many couples with children come together through partnership or marriage, separate or divorce after a period of time and then move on with their lives. … The crux of these scenarios is change – for the parents and for the children.

Change is a constant in all our lives. As a general principle, children are adaptable in their lives. They change communities. They change schools. They change friends. Many change families, not because of their actions but because of the actions of their parents. That has happened in this matter.

On the facts of that case, the court took comfort from that reality as part of its rationale for allowing a change to the custody arrangement. In light of the child’s best interests, he was placed in the joint custody of both parents, but would have primary residence with his mother, who was allowed to relocate to Arizona with the boy.

Arguably, for any child the move to an entirely new country is quite a drastic change. Yet the court seems to be saying that divorce, separation and changes to family dynamics are so commonplace in “the times in which we live” that the seriousness of its impact on children may have been diluted, especially for the younger ones.

Should the reality of widespread divorce and broken families in our society diminish court’s focus on the “best interests of the child,” which legislatively-mandated to be the paramount criterion in child custody and access matters?

What are your thoughts?

For the full text of the decision, see: Sexton v. Tipping

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

Self-Represented Litigants:  Doing the Math on “Counsel Fees” For Yourself

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Self-Represented Litigants:  Doing the Math on “Counsel Fees” For Yourself

More and more, Family litigants are opting to represent themselves in court, and in legal proceedings generally. As I have written before, this can raise the related issue of whether these litigants are entitled to fees – meaning the legal fees they would have paid to a lawyer to represent them, instead.

Courts have had to grapple with the issue on some occasions. Some years ago, in a case called Fong. v. Chan the Ontario Court of Appeal confirmed that self-represented litigants are indeed entitled to claim for fees in principle – but on a reduced scale.  And as I illustrated in a more recent blog the assessment is based on the court’s evaluation of the litigant’s “performance” in that self-represented role, which requires assessing his or her level of preparation, the attempt to make a coherent case, organize the materials, and marshal the evidence.

With those principles and factors established, the court must still go on to put a practical, dollar-value on the costs figure to which the litigant is entitled.  In a case from a last week called Roach v. Lashley, the court illuminates the mathematical part of the exercise.

There, the woman in a Family law case represented herself and in terms of the final outcome, was the successful party overall.  The court adjudged her as being entitled to her costs of trial.  The question was what her properly hourly rate should be – she had claimed $75 per hour (or $600 for an 8-hour day) for appearing in court and for out-of-court trial preparation. These were to cover her own costs as a self-represented party.

Unfortunately, there has never been a set rate established; a few years ago, in a case called Blustein v. Kronby the court set what it termed a “now-accepted rate of $60 per hour for self-represented litigants”.  Yet another case from around that same time, Jahn-Cartwright v. Cartwright, the court allowed a layperson litigant a fee of $200 an hour, but deducted the income that the person would have lost for attending in court anyway.

The court noted that the hourly rate of self-represented litigants must be set with reference to the skills and trial presentation by the self-represented person, especially in light of the complexity of the case.  It also noted that the Family Law Rules did allow courts to assess costs based on “lawyer’s rates” as well as the “time properly spent on the case”.

Returning to Roach v. Lashley, the court praised the woman as having “demonstrated a surprising degree of skill in preparing for and conducting her case at trial.”  This included preparing the financial documents the court needed to assess child support, organizing her documents, and providing a Net Family Property statement. She also conducted an effective cross-examination of her former partner, and managed to establish and prove the value of assets that he himself had not provided even as late as the eve of trial.  It was as complicated for her to do this as it would have been for any lawyer that she hired.

With all this in mind, the court found that the woman’s proposed $75 per hour as a so-called “counsel fee” was entirely reasonable, as was the 35 hours of trial-preparation time that she claimed.  However, the court did deduct an amount representing the loss of income for each day of trial, since she would have had to show up for it whether she had a lawyer or not.  The woman disclosed that this amount was $300 per day.

In the end, the court awarded her $300 per day for trial attendance, and $75 per hour for trial preparation.  She was also entitled to another $150 for preparing the Bill of Costs and her costs submissions.

For the full text of the cited decisions, see:

Roach v. Lashley

Fong v. Chan

Blustein v. Kronby

Jahn-Cartwright v. Cartwright

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

Obstinate Father Pays the Ultimate (Litigation) Price

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Obstinate Father Pays the Ultimate (Litigation) Price

Even the most acrimonious of court disputes between former spouses hinges on a premise: That, having agreed to give the court power to settle their dispute once and for all, the spouses will each obey any orders the court eventually makes.  Otherwise, there is no real point in both parties showing up to participate.

In a very recent decision by the Ontario Court of Appeal in Del Vecchio v. Del Vecchio, the husband stubbornly refused to play by that simple rule – and the court had no choice but to eject him from the process.  The court set the stage:

This contentious family law litigation has been ongoing for much longer than it should primarily because of the [husband’s] refusal to obey orders of the court.

The court itemized some of those defalcations on the husband’s part:

  • He did not pay child and spousal support arrears as he had been ordered to do, nor did he ask for extra time to pay.
  • He was ordered to pay costs to the wife on numerous occasions, arising out of unsuccessful motions on his part. He never paid them.
  • He repeatedly failed to file materials in satisfaction of his financial disclosure obligations, by ignoring court orders to file financial statements, his tax returns, and to obtain an expert valuation of his businesses and investments.
  • Other materials that he did file, under compulsion, were late and incomplete.
  • He delivered a court-requested expert report long after the deadline, but it still had a good deal of information “unfinalized” and pending.
  • He did not follow proper procedure for appealing, missed the deadline to do so, and did not ask the court for a filing extension.

In short, throughout the proceedings the husband wholly failed to comply with court orders and – even giving him the benefit of the doubt – never asked for extensions so he could do so.  Nor did he bring any appeals of those orders, as he could have done if he took issue with their substance.

The court noted that the husband’s pleadings were struck once previously in the same litigation, two years earlier, but he was given another chance.   A year later he was on the brink of having his pleadings struck again, and was warned by the court that there would be no additional chances given unless he fulfilled certain obligations, including paying outstanding costs.  Yet again, the husband still failed to comply.

It was at this point that the wife successfully “pulled the trigger” on asking the court to strike his pleadings. Only in response to that motion did the husband finally take some concrete steps: He filed a few documents and said he paid the arrears, but claimed there was some “mix up” at the Court administrative so that his payments were not credited.  The court did not buy it:

The [husband] was given numerous chances to comply with and meet his obligations – he simply refused. Not until the very last minute did he take any steps to attempt to show he was not in arrears in respect of the support orders. He still had not complied with the obligations requiring financial production and unilaterally reduced his support payments. He remains in serious violation of a number of court orders.

The court added:

The only reasonable conclusion on all the evidence before this court is that the [husband] simply does not accept that he is in arrears of support. … He is mistaken. He remains in non-compliance to this date. He has had many, many chances to rectify his situation but refused to do so. If court orders are to have any meaning they must be respected.

The court upheld the prior ruling to strike the husband’s pleadings, and confirmed that the wife would be allowed the wife to go forward without his participation in the proceedings, in an uncontested trial.

Bottom line:  In Family Court, have to play by the rules.

For the full text of the decision, see:

Del Vecchio v. Del Vecchio

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

 

Does Husband’s Bankruptcy Suspend His Obligation to Pay Costs Order in Wife’s Favour?

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Does Husband’s Bankruptcy Suspend His Obligation to Pay Costs Order in Wife’s Favor?

Here’s a legal scenario to consider:

  • The husband in a divorce proceeding is ordered by the court to pay $35,000 in legal costs to the wife. He fails to pay – or even to make any attempt to pay.
  • The wife succeeds in getting a court order to have the husband’s pleadings struck out entirely, for failure to pay the ordered costs. The court also orders that he be prevented from participating in the trial going-forward (e. he cannot testify, call or cross-examine witnesses, or make submissions).
  • However, given the drastic outcome, the court gives the husband a little extra time to pay the $35,000 before finalizing the part where his pleadings get struck out.
  • In the meantime, the husband makes an assignment in bankruptcy. He never does pay.

This was the situation in a case called Clark v. Moxley. The legal twist is that under Canadian federal bankruptcy legislation, all costs decisions against the husband were automatically stayed (i.e. suspended) the moment he declared bankruptcy.  After that point, creditors – including the wife with the $35,000 order in her favour – could no longer take individual steps to pursue payment from him, except via the trustee in bankruptcy.

So the legal question for the court was this:  If the wife was not in a position to enforce the costs order in her favour, did this still mean the husband’s pleadings could be struck out for non-payment?

Naturally, the husband was against this outcome:  He claimed that in light of his bankruptcy the order should not be given effect – especially since there were significant and serious custody / parenting issues outstanding, not to mention efforts on the wife’s part to exclude him from the child’s life.  If his pleadings were struck out, he would be alienated from the child.

Rather unsympathetically, the court noted that the husband was on the brink of a rather dire situation because of his own decision not to pay the ordered costs.  However, under federal bankruptcy law, that order was technically no longer enforceable once he assigned himself into bankruptcy.  That non-enforceability stripped the court of its legal justification to strike his pleadings.   Also, the husband’s bankruptcy had occurred before the motion to strike his pleadings was fully concluded.

The court therefore declined to strike the husband’s pleadings at this juncture.  It added the decision to strike pleadings is traditionally considered one of a last resort, to be used in a proportionate manner, and where there are no other remedies.

The court observed that the wife would still be eligible to fully participate in the husband’s bankruptcy proceedings, and to oppose his discharge from it.   If the costs survived the bankruptcy, then the court could still order the husband to pay them after-the-fact, or could ask for security for costs if the husband wanted to return to court to make a new application.

For the full text of the decision, see:

Clark v. Moxley

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

Father Says Kid’s Karate is OK, but MMA is Not; Court Rules on Special Expenses

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Father Says Kid’s Karate is OK, but MMA is Not; Court Rules on Special Expenses

As readers of my Blog will know, under the rules relating to child support in Ontario, parents are obliged to financially support their children, and this duty comes to the forefront when the parents are separated or divorced.

However, there are actually two distinct aspects of that mandatory child support:  1) The one for basic support that is set out in the Child Support Guidelines (CSGs); and 2) the “special or extraordinary expenses” that are allowed for in s. 7 of those same Guidelines.

“Special or extraordinary expenses” are defined to include items such as:

  • Child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment
  • The portion of the medical and dental insurance premiums attributable to the child
  • Certain health-related expenses
  • Extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs
  • Expenses for post-secondary education
  • Extraordinary expenses for extracurricular activities

If one parent refuses to agree to pay for a particular special expense, the other parent may have to apply to the court to have a judge make a determination, the legal test being whether it is both “reasonable” and “necessary” in the circumstances.

This was the situation in the very recent case of Newstead v. Hachey, where the court considered whether the child’s Mixed Martial Arts (MMA) training – which the mother had unilaterally enrolled him in – was justifiably a section 7 special expense.   Although the child was also enrolled in Karate, the father thought the MMA training was inappropriate because of its violent focus.  He continued to help pay for it under protest, but asked the court to decide.  The court explained:

While the husband is not happy with certain expenses being incurred by the wife for the children without his consultation or approval, he has not balked at paying.  … He did not agree with the wife’s decision to put [the son] into Mixed Martial Arts.  His view is that while Karate provided a benefit to the child, MMA is different as the only objective of the sport is to hurt or subdue the opponent.  He is afraid that sends the wrong message to [the son], who has had behavioral issues which times included aggression.  Still, despite his protests, the husband is not refusing to contribute to these expenses.

The court pointed out that section 7 of the Guidelines does require the parents to consult or agree to the MMA lessons, but it was a factor the court could take into account in assessing reasonableness:

Section 7 does not specifically require prior consultation for allowable expenses; the test rather is that the expense must be reasonable and necessary.  Section 7(1) of the CSGs says “the court may … provide for an amount”.  The relief, as such, is discretionary.  It follows that a failure or refusal by a claiming parent to discuss the expense with the other parent in advance could bear on the court’s exercise of its discretion in determining whether the expense is reasonable or, for that matter, whether it is necessary.

In the end, the court essentially allowed for the MMA expense to be shared in the overall support calculations, but admonished the wife that she could have those kinds of costs denied in the future simply because she failed to consult with the father beforehand.  The court said:

I encourage the parties and in particular the wife to have these discussions in advance, and simply caution both parties that how they approach future expenditures could impact whether they would be allowed by the court if contested.

For the full text of the decision, see:

Newstead v. Hachey

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

Despite Parent’s Objection, Court Grants Other Parent the Right to Move Child to Nova Scotia

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Despite Parent’s Objection, Court Grants Other Parent the Right to Move Child to Nova Scotia

In an interesting recent Court of Appeal decision, the court demonstrated the sensitivity with which custody applications must be assessed, particularly where one parent wants to move away with the child to a different province entirely.

The same-sex parents, Ms. B and Ms. R, separated after nine years of marriage.  Together they had a son who was currently 6 years old.  They went to court because they were in dispute over the boy’s custody: Ms. B wanted joint custody, and asked that the boy remain in Toronto where they had lived while they were a couple.  Ms. R wanted sole custody, together with the court’s permission to move with the boy to Nova Scotia, where her parents live and where the son had spent considerable time.

After a 7-day trial with 17 witnesses the trial judge granted Ms. R’s sole custody request, and allowed her to move to Nova Scotia with the boy. (The court did allow Ms. B reasonable access, but this was naturally constrained by the distance).  Ms. B appealed.

The Court of Appeal started by noting that traditionally the decision of a trial judge as to custody and relocation were given significant deference on appeal.   Still, the court reviewed carefully the trial judge’s ruling on the custody issue, and began its appeal decision with these comments:

Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent’s legitimate interest in relocating with the non-custodial parent’s legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.

In reviewing the various facts, the Appeal Court noted that this was not a typical scenario; it was not a situation where allowing relocation will sever a longstanding bond between the son, Ms. B and her family.  For most of the boy’s life, he had no relationship at all with Ms. B’s family at all.   Moreover, the boy was familiar with Nova Scotia because he had spent a great deal of time there, and also enjoyed the support of his extended family and the community there.  Indeed – as the trial judge had concluded – from the boy’s perspective Nova Scotia was what is “known” to him.   The court added that since he was only 6 years old, the boy was at an age where adaptability to change was not as big a factor, and there would be less disruption now than when he is older.

The Court of Appeal also added that this was one of those exceptional cases where Ms. R’s reasons for relocating were to be considered. These included surrounding herself with the support of her family in friends in the East Coast, and making a physical move in the boy’s best interests to somewhere that he was familiar and had established connections.

Finally, the court observed that Ms. B would still be entitled to access to her son, even though it would require some effort and planning to see him.  The “maximum contact” principle, through which courts were encouraged to make custody/access rulings that fostered the access rights of the non-custodial parent in the most optimal manner, had not been overlooked by the trial judge here.  Importantly, both lower and Appeal Courts noted that there was no evidence that Ms. R’s proposal to move was motivated by a desire to shut Ms. B out of the boy’s life.

In the end, and having found that the trial judge sensitively balanced the two parent’s competing rights, the Court dismissed Ms. B’s appeal and confirmed the order allowing relocation, since it was in the boy’s best interests.

What are your thoughts?  Did both courts decide this correctly?

For the full text of the decision:

Reeves v. Brand

Lower court decision:

Reeves v. Brand

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

If You are Divorced in a Foreign Country, Can a Canadian Court Make Orders Too?

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If You are Divorced in a Foreign Country, Can a Canadian Court Make Orders Too?

The facts in Cheng v. Liu are a little unusual, but the core question was this:

If a couple’s divorce is validly granted outside of Canada by a foreign court, does this preclude a Canadian court from later making any corollary orders – such as rulings on issues of support or custody – arising from that same divorce?

The husband, an engineer, was a Canadian citizen who lived in Canada.  The wife lived in China and had never been to Canada.  They got married in China in 2006 and had a daughter who lived with the wife in China her entire life.  They separated about a year after getting married, in around late 2007 or early 2008.

The wife then covered all the legal bases:  She applied in China for a divorce, and custody of their child.  She also applied in Canadian, under the federal Divorce Act, to ask for a divorce, as well as spousal support, child support, and custody.  Finally, also in Canada under the Ontario Family Law Act, she asked for equalization of net family property.

Meanwhile, the Chinese court granted the wife her divorce and awarded her sole custody of the child.  The wife’s other Ontario-based claims were still pending.

The husband, faced with all of these competing actions requiring his response, asked the Ontario court to suspend (or “stay”) the proceedings so that the entire matter could be determined in China.  This led to several rulings and some procedural wrangling, and ultimately a hearing before the Ontario Court of Appeal for its determination.

Against this complicated background the Ontario Court of Appeal had a simple question to consider:  In light of the Chinese divorce order, could a Canadian court make additional orders relating to child support, spousal support, and equalization of property?

The Court’s conclusion was mixed:  The divorce-related issues were closed for consideration, but the child support issues were still up for an Ontario Family court to rule on.

On the first point – and based on longstanding precedent that considered the provisions of the federal Divorce Act – the law states that once the foreign Chinese court had made a valid divorce order, this removes the authority of the Ontario court to hear and determine corollary matters.  So on the remaining divorce-related issues, the Ontario court had no authority.

However, the situation under the provincial Family Law Act was different:  the Ontario court could still rule on questions relating to child support, since the foreign court in China had not already done so in its divorce order.   The Family Law Act allowed child support claims to be made even after a divorce, and the foreign divorce order had no impact on that.  Indeed, the whole purpose for the Ontario legislation was to ensure that parents provide financial support for their dependent children.  Allowing the Ontario court to continuing to make orders under the Family Law Act even though the Divorce Act provisions had been trumped was actually a harmonious outcome to ensure child support would be covered.

For the full text of the decision, see:

Cheng v. Liu

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

 

Custody Battle Gone Very Wrong:  Mom’s Cellphone Tracker Shows How Misguided Dad Really Is

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Custody Battle Gone Very Wrong:  Mom’s Cellphone Tracker Shows How Misguided Dad Really Is

I have reported previously about a case called M.M.B. (V.) v. C.M.V., the background facts of which are not terribly unique:  After their split in 2013 the parents had agreed to a “parallel parenting” and equal-time arrangement for their three children.  The mother now claimed that in the time since, the father had been engaging in a concerted effort to alienate her from them.  She asked for sole custody and an order that the father undergo therapy.

What’s more noteworthy is the rather epic court ruling in their case, which spanned over 1200 paragraphs, where the court recounted a dizzying array of tactics by each of the parents; overwhelmingly, however, the ruling focused on the misconduct of the father, who the court repeatedly noted had viewed himself as being “in a war” with his former spouse and determined to “win” at all costs.

Among the many accusations of rather mind-boggling misconduct on his part, one of the more interesting ones involved him using an app installed on the mother’s own cell phone to “track” her location.  As the court explained the gist of the mother’s testimony:

During the last two years of the relationship prior to separation, her evidence is that the [father] became more volatile and threw things at or near her. The [mother] testified that he was obsessed with the idea that she was having an affair. Her evidence is that she had never had an affair during the marriage.

 She further testified that the [father] had a constant need to be “in control” and that he utilized a feature on her cell phone to be able to track her whereabouts. Two examples that she cited were, on one occasion when she attended at a lawyer’s office in July 2011, he telephoned her four times during her appointment with the lawyer, knowing exactly where she was at the time. The second example she gave happened in August 2011. They were in New York for a few days and she left early to return to school. While the [mother] was still in New York, she claims that he was able to track her whereabouts and knew that she had taken a different route home. She says that she did so in order to look at possible housing for her and the children. He accused her that she was travelling to a residence for purposes of having an affair.

 As further proof that he was tracking her whereabouts through her cell phone, she indicated that she, as a result of these situations, learned that there was a “track my phone” feature on her phone which she then disabled. Shortly thereafter, however, she testified that he insisted on having her cell phone for some unrelated purpose. When he returned it to her she noticed that that the tracker had been reconnected. …

 When asked about the allegation of tracking the [mother] on her cell phone, his explanation for his knowledge of her going to a lawyer is that their cleaning lady told him this in July 2011 when the [mother] was going to the lawyer.

 When asked about the feature of “find my phone” so that he could allegedly track her whereabouts from his phone, he has a very “plausible” explanation. He claims that because he was using his phone for Association work they jointly downloaded this app so that she would be able to find his phone in the event that he lost it.

 Regarding the knowledge that he had that the [mother] was on a different route on the way home from New York City, the [father] once again has a “plausible” explanation. His brother who is a real estate agent, by happenstance, was showing a house across the road from where the [mother] was driving. His brother took it upon himself to call the [father] to report that he had seen his vehicle, thinking that it was the [father] but of course it was the [mother].

 This court views each of these explanations with a great deal of cynicism.

That cynicism was borne from many other conflicting and incredible explanations by the father, including one piece of “smoking gun” evidence noted by the court several hundred paragraphs later:

In response to the [mother’s] concern that the [father] was tracking her and the children’s whereabouts, the [father’s] response is somewhat contradictory. On the one hand, he “denied this” and stated that he “doesn’t care where she goes”. On the other hand, on several occasions, he admitted to “wanting to locate the children and not her”, which he believes to be a safety issue. He said he ”was able to locate the children by their cell phone devices”.

 This was an admission by the [father] that the court finds is consistent with the evidence given by the [mother] at trial; that she knew that the [father] was tracking her movements through her cell phone. The court finds that this is inconsistent with the [father’s] “explanations” of how he knew the [mother’s] whereabouts on two separate occasions at about the time of the separation. He specifically denied under oath at trial that he was tracking her whereabouts through her cell phone. Undoubtedly, he had forgotten what he said during the assessment, or did not expect this court would take the time to read all of the exhibits.

Particularly as it relates to the father’s highly misguided win-at-all-costs focus, the M.M.B. (V.) v. C.M.V. decision is a virtual judicial textbook on “How Not to Behave” in the post-separation phase.  It could be interesting reading for those who can get through the 1,200-paragraph judgment.

For the full-text of the decision, see

M.M.B. (V.) v. C.M.V.

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

 

 

A Day in the Life:  Court Uses “Ladder” Metaphor to Get Through to Firefighter Dad

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A Day in the Life:  Court Uses “Ladder” Metaphor to Get Through to Firefighter Dad

In an upcoming blog about an Ontario court decision in which the court was tasked with sorting out a particularly acrimonious, high-conflict separation and divorce between couple.  The result was a written court ruling that took up more than 1,200 paragraphs.

Obviously, the court had quite a lot to say.  And what was especially noteworthy was the court’s attempt to “get through to” the parents in a manner that they will understand.

The court prefaces that unusually-lengthy ruling with the following comments:

In addition, of course, to the monies spent by the parties, there has been an incredible expenditure of community resources in an attempt to address the conflict this family faces.

The financial cost is just one aspect of the damage done to this family.

The emotional cost to the parties, and in particular to the children, is something that cannot be quantified.

This court heard fourteen days of trial.

This court, at the risk of being accused of being delusional or blinded by eternal optimism, has crafted a decision pursuant to which the court is optimistic that the respondent father’s mentality can be changed from one of “war” as it has been described until now, to one in which the objective is changed from “winning” and “destroying” the other parent to one in which the objective is to have an environment pursuant to which the children can be free to love both parents and can freely move back and forth between them willingly, happily and without the need for the intervention of any of the resources earlier referred to.

This court is not naïve and does not expect that that will occur overnight but on the other hand, this court believes that if it did not try to create that situation it would have let these children down and simply “given up” on them. This court is not prepared to do that.

The court’s next step was to comment on the approach taken by each of the parents throughout the protracted litigation, first to castigate the father, and then to laud the mother. About the father, the court used a metaphor that it hoped would resonate with the father, writing:

As will be seen in this judgment, this court has found that the respondent father has engaged in a “war” as two witnesses have indicated he characterized it at the beginning. The respondent of course denies that he said this but his actions speak far louder than any words that he could have uttered.

The respondent is an acting District Fire Chief and therefore the court has found it appropriate to use a word picture involving a ladder, being a piece of equipment associated with firefighting.

This court finds that the respondent has climbed a ladder and reached the top almost realizing his perceived goal. That goal was to have control over the children and to be in a situation where the mother of those children, being a mother whom he chose for them, was totally marginalized. He almost achieved that goal in that the children at their current ages have each expressed that they do not wish at the current time to have any meaningful relationship with their mother, nor to spend time with her on a regular basis.

This court hopes that the respondent father will see, as this court sees so clearly, that the wall that his ladder should have been against, and the wall that hopefully he will climb after he climbs down from this current ladder is one in which at the top of the wall is a situation whereby the children have a healthy relationship with both parents and can freely love each of them without feeling any guilt towards the other. Love is not a finite quantity pursuant to which if you give love to one of your parents you must take it away from the other. In fact, the children can also love the respondent father’s girlfriend as a “stepmother” without having to feel that by doing so they need to thereby not love their biological mother.

In contrast was the mother’s conduct throughout, which the court found was praise-worthy overall:

This court would be remiss if, in its summary of this case, it did not comment on the applicant mother. This court finds, as with any parent, the applicant mother is far from perfect. In fact, some of her actions, likely taken out of fear of losing her children, exacerbated the situation. This court finds that her parenting style is far more structured than that of the respondent father which “played into” his desire to alienate the children from their mother.

Having said that, the applicant mother has been subjected to not only emotionally abusive treatment from the respondent father and those under his “control” but emotionally and even physically abusive behavior from the children. The court does not “blame” the children as, there is an obvious reason why they are behaving in the manner in which they are behaving.

Many, and in fact probably most, mothers even those who deeply love their children would have “thrown in the towel” by now, but the applicant mother did not. That, this court finds, is not only to her credit but will be something that this court anticipates in years to come will be greatly appreciated by her children.

With that preface to the subsequent 1,200 paragraph’s worth of specific rulings designed to resolve the couple’s dispute, the court added – perhaps optimistically – that:

… this court has crafted a decision that it believes is one that could result in a 180° change being made in their lives from one of adversarial conflict between their parents, the extended families, and unfortunately the children themselves and their mother, to one in which they are allowed once again to “be children” and not have to constantly be concerned about the conflict between their parents.

The court’s stated objective is a good one, and it applies with equal pertinence to anyone embroiled in family litigation involving custody and access issues.

For the full text of the decision, see:

M.M.B. (V.) v C.M.V.

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