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Posts from the ‘Residency’ Category

UK Tightens Immigration Rules for Foreign Spouses

UK Tightens Immigration Rules for Foreign Spouses

In a controversial decision the Supreme Court of the United Kingdom has recently upheld the legality of immigration rules that imposed requirements on its British citizens to have a certain level of income before they are able to bring their spouses into the country. These contentious “Minimum Income Rules”, which came into force in 2012, had been challenged by four couples who asserted that they breached their basic human right to have a family life.

The rules require that, before being allowed to bring a spouse to live with them from another country outside the European Economic Area, a British citizen (including a recognized refugee) must have a minimum annual income of at least £18,600 (around CDN$30,600). The couples who contested the rules had argued that the income threshold was set too high, particularly since it increased with each additional child that needed to be supported.

This addition of a set income requirement reflects a stark change from the previous rules, which prior to 2012 had required only that the spouses could establish an ability to support themselves without needing to avail themselves of welfare payments from the UK government.

Although the UK Supreme Court’s ruling confirms that the rules did not violate human rights legislation, it also recommends they be amended, since the current incarnation does not adequately account for the best interests of the children, and neglects to consider other sources of income that the spouses might have.

This UK development is in stark contrast to the immigration policy in Canada, where applicants must prove only that they have enough income to provide basic needs for the spouse or his or her dependent children. (Although those who want to sponsor parents or grandparents are subject to specific income-level requirements and a new process for applying starting in 2017).

And by announcement made December 15, 2016, the Canadian Government has indicated that the department of Immigration, Refugees and Citizenship Canada will be speeding up the processing for spousal sponsorship applicants, as part of its commitment to family reunification. Most applications will be processed within a year of a person applying.

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

Mobility Cases – B.C.’s Model for Reform

Mobility Cases – B.C.’s Model for Reform

In my other Blog post this week, I outlined a little primer on “mobility”, which involves consideration of when and whether one separated or divorce parent should be able to move with a child so that the other parent’s custody or access rights are potentially affected – for example a move to take a new job or pursue a new relationship in a different city or province.

In this regard, family law principles across Canada have developed and proceeded along a roughly uniform path.   However, in 2010 British Columbia put forth a comprehensive set of proposals for reform, as part of a White Paper put out by the government.   This in turn resulted in amendments to B.C.’s Family Law Act, which were enacted in late 2011 but which are not yet in force.  (The proposed in-force date is in approximately 12-18 months’ time).    The aim of these reforms is to make the law on relocation more certain, by reducing the unpredictability of outcomes, by encouraging settlement, and by allowing parents to plan their lives better.

For one thing, the B.C. amendments impose some firm rules surrounding the question of which parent bears the burden of establishing that the proposed move does (or does not) serve the child’s best interests.   Specifically, where the day-to-day care of a child is “substantially equal”, the parent who wants to move the child bears the burden of proof to show that the proposed relocation would be done in the child’s best interests, and in good faith.  On other hand, if responsibility for the care of the child is not split in a manner that is “substantially equal”, then the burden falls to the parent opposing the move to show that it would not be in the child’s best interests.  In either case, the parent who seeks to move the child is generally obliged to provide a concrete plan showing that “reasonable efforts” will be made to find ways to preserve the child’s relationship with the other parent.

In addition to these rules and presumption relating to burden of proof, the legislative changes also bring about certain enhancements in connection with mobility, including:

• Implementing mandatory notice of moves.  Generally, there will be a mandated 60-day notice period, by which any parent proposing a move (with or without the child) must give the other parent advanced notice.  (There are exceptions in cases where there is an ongoing risk of violence, or where the child has no relationship with the non-moving parent).

• Defining the concept of “relocation”.   This definition focuses on the impact of the child’s on existing primary relationships, rather than using factors such as distance moved or travel times.

• Providing criteria for the courts’ assessment of “good faith”.  Courts are specifically directed to consider such factors as:  the reasons for the move; the likelihood it would enhance the general quality of life of the child and the guardian proposing the move, including improved financial, emotional or educational opportunities; and any existing restrictions on relocation in an order or agreement.

• Requiring courts to aim to preserve existing parenting arrangements to the greatest extent possible.   This prevents the decision on whether to allow relocation from becoming an indirect re-litigation of the fundamental issues between the parents relating to custody and parenting.

In effecting these changes, British Columbia becomes the first Canadian to jurisdiction to address the legal issues surrounding mobility by way of specific legislation.  It will be interesting to see whether other Canadian jurisdictions follow suit.

Russell Alexander, Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. We are located in Ontario, and serve the communities of Oshawa, Whitby, Pickering, Ajax, Markham, Brooklin, and City of Kawartha Lakes (Lindsay).  To book an appointment, call:  1.905.655.6335

Wednesday’s Video Clip: Mobility and Who is Entitled to the Child

There is a general misconception that when a couple separates, the children must automatically stay with their mother. But in Ontario, the mother and father are equally entitled to custody of the child. If a parent wants to move a child, this step will require a sole custody order, the consent of the other parent or a court order permitting the move.

In this video discusses who is entitled to custody of the child, defacto custody, and mistake parents, often fathers, make regarding custody and the establishment of a status quo. This video also examines the difference between custody and access.

 

 

 

Family Law Matter? Pick a Court – and Pick a Province, Too

Family Law Mater?  Pick a Court – and Pick a Province, Too

In my Blog a few weeks ago, I reported on a recent case called Houle v. Trottier, where the court concluded that family law litigants were not permitted to go “court shopping”, by jumping from court to court in the process of resolving their disputes.

In another case called H. v. H., the Ontario Superior Court of Justice similarly concluded that a party could not jump from province to province either, in choosing a court to hear their divorce-related applications.

The facts involved a divorcing husband and wife who had one child together, but who collectively had five other children from previous marriages.  In the summer of 2009, the wife had accepted new employment in Edmonton, Alberta and had moved there without the children.  There was an issue as to whether the husband ever intended to join her there, but in any event, the couple formally separated in October of 2009.

During a visit back in Toronto at Thanksgiving, the wife was told by one of her daughters that the husband had engaged in “sexually inappropriate behaviour” toward her.  The wife reported the incident to Toronto Police, who charged the husband with sexual assault and interference.  However, the charges were withdrawn a year later, in July 2010.  The Edmonton police had also assisted Toronto police in the investigation; the mother attempted to have charges laid against the husband in Alberta as well.  She also took steps to have the Ontario charges revived.

Meanwhile, the parties’ divorce action was winding its way through the Ontario court, where they had originally launched their application for divorce and related motions for child support.  A custody application was also brought in Alberta at one point.

However eventually – and despite the fact that the husband, the children, and the wife’s former husband all lived in Ontario – the wife brought a motion to declare that the Ontario court had no jurisdiction to deal with the case.   She wanted it transferred to Alberta, claiming that the daughter who alleged to have been sexually molested by the husband was ordinarily resident in Alberta, by virtue of the father’s acquiescence and the passage of time.  Besides the wife and possibly the child’s therapist, there were no other potential witnesses who lived in Alberta.

The jurisdictional issue came before the court for its determination.

Legally, and because this was a case involving divorce, child custody and access, the precise question was whether the Alberta court could decide some of the issues (custody and access) while the Ontario court decided all other remaining issues (divorce and related matters).   Procedurally, the correct test was whether the court should transfer the case under the provisions of the federal Divorce Act, which allows for the transfer of divorce proceedings where there is a custody application.

In this case, the court concluded that no transfer should occur.  First of all, it could not be said that the husband had acquiesced to the daughter’s habitual residence being Alberta; he was facing criminal charges at the time, and was subject to restrictions, so he took no steps to obtain custody or access.

Next, the court pointed out that the wife herself had chosen Ontario as the proper jurisdiction when she commenced the divorce application and claimed custody in that province, and had raised the issue of jurisdiction only after the criminal charges against the father were withdrawn in July of 2010.   The wife had also taken various steps to obtain temporary orders in the Ontario court, relating to custody and access, and had chosen not to start a custody case in Alberta until steps were taken to fix a trial date for the divorce and related matters in Ontario.

Finally, the divorce had to proceed in Ontario because the wife did not meet the residency requirement in Alberta under the Divorce Act (which requires residence in the province for at least one year prior to commencing the divorce application).  Ontario was also the province that was most substantially connected to the dispute between the parties, it was in the child’s best interests to avoid delay, and it would further the administration of justice to consider the convenience of the parties and other witnesses.

Accordingly, the matter was set down for trial before an Ontario court.

For the full text of the decisions, see:

H v. H., 2011 ONSC 1569 (CanLII),  http://canlii.ca/t/fkhw9

Houle v. Trottier, 2012 ONSC 786 (CanLII) http://canlii.ca/t/fpwwl

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  www.RussellAlexander.com

 

 

Where in the World is “Home”?  Residency Issues in Family Law

Where in the World is “Home”?  Residency Issues in Family Law

We live in a fast-paced society where new experiences are easily brought to our doorstep via the internet.  And where those who prefer to experience the world first-hand can experience greater opportunities for travel and mobility than ever before.  For this latter group, determining where a person legally “resides” can become complex, as a recent Ontario court decision illustrates.

The spouses were married in California in 1988.   The wife was a citizen of Spain, who held both Canadian and U.S. citizenship as well.  The husband was a sea captain, and apparently moved around a great dea.  After they married, they had four children together, two of whom were born in Spain, with the other two being born in the U.S.

In 2005, the couple bought a condominium in Florida.  The husband lived there in 2008 so that he could accept an on-land teaching position.  The wife and the four children moved there to join him in early 2009.
In the summer of 2009, the husband’s father took ill with a terminal disease, so the husband moved back to Toronto to be near him.  The wife and children followed soon after, and moved into the ailing father’s Toronto condo. Unbeknownst to the wife, however, title to it had been transferred to the husband by this point.

Marital problems between the couple started to brew in late 2009, around the same time the husband’s father passed away.  Eventually, the wife and the children moved into a shelter and stayed there until summer of 2010, when a court order was granted giving the wife permission to move with the children to Florida.  Meanwhile, the husband transferred title to the Toronto condo over to his mother.  

Against this complex background, the wife brought a motion to have the court set aside that transfer, and to declare the Toronto condo a “matrimonial home” for the purposes of the Family Law Act, so that it could be sold and she could obtain about $54,000 in legal costs that was owing to her from the proceeds.

Two geographical questions arose:  

1) whether an Ontario court or a Florida court should hear the issue involving the Toronto condo; and

2) whether the parties’ divorce could be granted in Ontario, given the requirement under the Divorce Act that one of the spouses “has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”

By this time, the wife had begun child custody proceedings in Florida.  Eventually, the parties agreed to have all issued litigated in Ontario, but when it came time to serve the husband with the necessary court documents, he showed his address for service being in Florida.

As part of the legal wrangling as to which court (Ontario or Florida) had jurisdiction in connection with the parties’ divorce, the question arose as to whether the husband was “ordinarily resident” in Ontario for at least one year prior to the commencement of the proceeding.   The husband’s affidavit and other evidence on this point was all over the map (pun intended):   he deposed that he had returned to Florida in July and continued to return to Canada to visit his mother periodically.   However, the court found that this was inconsistent with the husband’s earlier assertion that he had already moved out by June.    In yet another set of court documents, the husband claimed that he had still been living in Ontario in July of that same year.   In one affidavit, he swore that he was using his father’s condo at some point, but that he was using a drop box in Florida as his address for service.  Sworn statements contained in various other affidavits had the husband living at three different Florida locations in July.  A September affidavit had him living in the Toronto Condo.

The wife, on the other hand, gave evidence that the husband never moved to Florida at all, and had only visited the children there once in July, at a park, and twice briefly in August.

Meanwhile, the husband asserted that in terms of his custody plans, he intended to have the children live with him in Canada; as an alternative he would move them permanently to Florida.

The court found that the phrase “ordinarily resident” embodied the concept that the person’s customary mode of life had to be examined; it did not cover a person’s special, occasional or casual residence.  This took into account the ordinary mode of living, and its “accessories” in terms of social relations, interests or conveniences at that particular location.

In this case, the husband was “ordinarily resident” in Ontario for the 12 months immediately prior to the wife’s divorce claim.  Noting that the husband’s own evidence on the point was inconsistent, and that he had failed to provide any documentation (such as driver’s license or proof of health coverage) which would show that he had moved to Florida.  Furthermore, his most recent affidavit asked the court to allow him to live in Ontario with the children.

Ultimately, the court found that – despite having visited or stayed in Florida on a few occasions in 2011 – the husband was ordinarily resident in Ontario at the material times.

As an aside, the court also had to contend with the husband’s conflicting and contradictory evidence relating to the date of the parties’ separation.   The husband’s evidence on this point was scattershot and inconsistent as well.  As to the husband’s credibility, the court wrote:

Although it is not necessary to my decision, I make a specific finding of credibility against the Respondent [the husband]. According to the real estate lawyer who handled the transfer from the Respondent to his mother in September 2010, the Respondent told him that he and his wife had separated long before she came to [the Toronto condo] and therefore it was not a matrimonial home. In so saying the Respondent withheld material information from the lawyer as to the family living arrangements, marriage counseling and final date of separation. … The Respondent made no reference to or any explanation whatsoever of the statements attributed to him by the lawyer.  In these circumstances it is, in my view in the interest of justice to draw an inference and make an adverse finding of credibility against him …

Next, the court had to grapple with the issue of whether the Ontario court or the Florida court was the most appropriate forum in which to have the trial itself.  (Procedurally the court has a right, in cases where another forum is more appropriate – after taking into account the location of the parties, the witnesses, the evidence, and various other procedural and geographical factors – to decline to exercise its jurisdiction to hear any court matter).    
In this case, the wife and children now lived in Florida, and the husband had visited them there on a few occasions.   In these circumstances, it would be unusual for an Ontario court to maintain jurisdiction over custody issues when the children were not even living there.    On the other hand, certain key witnesses and the grandmother (who would give evidence on issues relating to the matrimonial home) all lived in Ontario.  The Ontario court also had a certain legal advantage over the Florida court, in terms of the orders it was entitled to make.

In the end, the court ordered that:

• the Toronto condo was deemed to be a “matrimonial home”;

• title to the deceased’s father’s condo, which had been transferred to the mother, was revested into the husband’s name; and

• since Ontario had the closer connection to the dispute, the court declined to allow the matter to be heard in Florida; rather it was ordered to proceed to trial before an Ontario court.

For the full-text of the decision, see:

Alcaniz v. Willoughby, 2011 ONSC 7045  http://canlii.ca/t/fp7nr

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 www.RussellAlexander.com

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