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Posts tagged ‘best interests of the child’

Family Law Now | Episode 3: OCL Office of the Children’s Lawyer

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On this episode, children's lawyer, Jarret Johnston defines his role, explains the legal process, and clarifies common misconceptions. 

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New Family Law Act in B.C. – An Updated Law for a Modern Society

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New Family Law Act in B.C. – An Updated Law for a Modern Society

On March 18, 2013, B.C. passed its new Family Law Act, which replaced the former Family Relations Act and made some sweeping changes to the law in that province, bringing it more in line with the governing legislation in Ontario, but adding some new elements as well.
Among the more important changes:

• In certain contexts – including spousal support entitlement – the term “spouse” has been expanded to include people who have lived together for less than two years but have had a child together (this is now in-line with the Ontario definition).

• The new Act now applies to both married and certain unmarried couples in connection with particular family law topics including division of property or debt.

• Unlike Ontario (where analogous provisions do not exist), the B.C. legislation specifically addresses situations where a parent wants to relocate with a child in a way that will interfere with another person’s ability to maintain his or her relationship with that child. Under the new Act, the parent must now give 60 days’ notice of an intended move in certain circumstances.

• There are new provisions to promote co-operation and dispute resolution between spouses.

The new Act also adds clarity and precision to certain terms: for example the concept of “excluded property” has been expanded to incorporate certain specific items. Likewise, the term “best interests of the child”, which is a test used in connection with determining matters such as which parent should have custody, now specifically incorporates elements such as the child’s emotional health and well-being, and consideration of his or views if appropriate.

Finally, certain language used in B.C. family legislation have been clarified and updated, and reference to the terms “custody” and ”access” are no longer used (however, they are still used in the federal Divorce Act). Instead, they have been

replaced by the more inclusive terms “guardianship”, “parenting arrangements”, “parental responsibilities”, “parenting time” and “contact”. This reflects the goal of modernizing the legislation to make it more reflective of the many different living arrangements and family relationships that exist in our Canadian society.

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 Russell Alexander.com

Affair Triangle Results in Birth of Girl – Biological Father Gets His Costs for Access Order

Affair Triangle Results in Birth of Girl – Biological Father Gets His Costs for Access Order

Last week I wrote about a case on who should pay the legal costs that had been needlessly run up by one of the parties to litigation.  This week, I have another interesting costs decision: – this time involving a man who wanted access to a daughter he had secretly fathered with a married woman.

The woman in question had been married to her husband since 1993.   Her affair with the other man began before the marriage but overlapped with it, and spanned about 10 years in total.   It resulted in her conceiving a female child with the other man; however, the woman kept this fact a secret and never told either her daughter or her husband about the girl’s true parentage.  (She had also been going through fertility treatments with the husband around the same time the daughter was conceived).  All along, the daughter was introduced to her biological father as a “family friend” and she called him “uncle”.

Over the years, the biological father continued to be involved with the family, and even lived with them for a while.  He was periodically invited to family dinners and gatherings, to the daughter’s soccer games, concerts or birthday parties, and was sometimes asked to pick her up from day care or take her on his own to a local park or shopping mall.    Despite the woman’s claims that he was merely a casual acquaintance, the evidence showed that he had been consistently involved with the daughter throughout her young life.

On the other hand, there was also evidence that he had an obsessive fixation on the woman, which included some stalking behaviour and aggressive episodes.   This resulted in some incidents which prompted the woman to eventually bar the biological father from having any further contact with the girl.

This did not sit well with the biological father;  he ultimately obtained an order for a paternity test, which confirmed his status as father.    A psychologist’s report was also commissioned, which suggested that the child best’s interests would be served by telling the girl his true identity and relationship to her, and allowing him to have access to her, even despite the unusual circumstances.

Needless to say the woman and her husband – both of whom preferred that the daughter never be told of her true parentage – opposed this access.   The matter came before the family court, which granted the biological father’s requests after applying the established legal principles.

The question then arose as to who should pay costs.  Specifically, the issue was whether the biological father – who was self-represented – should have to pay his out-of-pocket legal costs for bringing the access application, or whether the woman and her husband should have to reimburse him.  (Incidentally, at the costs hearing the biological father first submitted a costs bill of $27,000, but then submitted a second, higher one totalling $45,000.   This second bill was in response to the woman’s application to the court ordering the biological father to pay child support – a move that evidently took him by surprise).

In law, the general rule is that the successful party is entitled to his or her costs at trial.  Although it was true that the biological father did not get everything he asked for (he had been seeking full custody, but was granted only access), the court found that the issues were extremely important and difficult for all parties.

Moreover, the court commented that the parties had conducted themselves appropriately throughout the entire trial, despite the highly emotional nature of the issues.   For example, while the woman and her husband did not initially agree with the psychologist’s recommendations on giving the biological father access, once the trial decision had been handed down in the biological father’s favour, they complied with it immediately.  Conversely, the biological father was realistic in downgrading his custody application to one for access, after the psychologist had recommended it.

In the end, the husband and wife were ordered to pay the girl’s biological father about $18,000 in costs.  This reflected reimbursement to the biological father of his share of the psychologist’s assessment and trial preparation/attendance costs, together with some of the biological father’s lost wages and other out-of-pocket expenses that he incurred as a result of having to go to trial on this issue.

For the full text of the decision, see:

I. v. P., 2012 CarswellOnt 1036; costs hearing related to 2011 ONCJ 594 and 2011 ONCJ 584 (CanLII)   http://canlii.ca/t/fp3sb   http://canlii.ca/t/fp11z

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

New Ontario Bill Fosters Child-Grandparent Relationships

New Ontario Bill Fosters Child-Grandparent Relationships

The Ontario government has just introduced a new Bill that aims to promote the relationship between children and their grandparents, primarily in situations where the child’s parents have separated or divorced.

Bill 67, titled “An Act to amend the Children’s Law Reform Act with respect to the relationship between a child and the child’s grandparents”, received its first reading on April 17, 2012.   If passed, the Bill will amend those provisions in the existing Children’s Law Reform Act (CLRA) which govern custody or access, by prohibiting the parents (or anyone else who is entitled to custody) from creating or maintaining unreasonable barriers to the formation and continuation of a personal relationship between the child and the child’s grandparents.

Simply put, the amendments strive to promote such connections between children and grandparents, by prohibiting parents or others with custody from actively preventing or impeding such relationships.

Also, Bill 67 would affect custody and access applications under the CLRA, by adding the child-grandparent relationship to the list of considerations that must be applied by a court.

Currently, all applications of this type require the court to evaluate the “best interests” of the child, taking into account the child’s needs and circumstances; these include consideration of the love, affection and emotional ties between the child and a list of other people (including the person with custody or access or other family members).  If Bill 67 is passed, this list will now include the child’s grandparents.

Also, the mandated “best interests” test for the court currently includes the following:

• the child’s views and preferences, if they can reasonably be ascertained;

• the length of time the child has lived in a stable home environment;

• the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

• the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

• the permanence and stability of the family unit with which it is proposed that the child will live;

• the ability of each person applying for custody of or access to the child to act as a parent; and

• the relationship by blood or through an adoption order between the child and each person who is a party to the application.

The new law would augment this list, to include consideration of whether the parent applying for custody is willing to facilitate contact with the child’s grandparents.

Admittedly, the Bill is still in the very early stages, and needs to proceed through second and third readings before it could  become law in Ontario.  However, few could argue that it represents anything other than a positive addition to family law in the province.

For a full copy of the proposed Bill, see:

http://www.ontla.on.ca/bills/bills-files/40_Parliament/Session1/b067.pdf

Top 10 Observations About Parenting Arrangements From Moreira v. Garcia Dominguez

Top 10 Observations About Parenting Arrangements From Moreira v. Garcia Dominguez

An Ontario Court of Justice decision released just a few days ago, called Moreira v. Garcia Domueingz, contains an exhaustive discussion by the Honourable Mr. Justice M. Zuker about parenting arrangements after separation and divorce, including the objectives of various arrangements, and the policy behind Canadian law.  In fact, the judge makes so many important and noteworthy points, that I have split this Blog entry into two parts.  Here is the first of them:

Notable observations Mr. Justice Zuker:

About parenting arrangements generally:

1.  • “Family law is largely about distributing loss.  In separation and divorce, there are no winners.  When it is not possible for children to live in the same household with both parents, neither parent will usually have as much time with the children as he or she had during the intact marriage.  The greatest conflict often concerns parenting arrangements after separation.”

2.  • “The ties that bind parents together are only as strong as the bond between each parent and their children.”

3.  • “There are numerous barriers to the creation of good-enough co-parenting relationships and multiple reasons why, despite significant involvement of a parent while the relationship was continuing, this does not translate into successful post-separation involvement.”

4.  • “Increasingly, the term joint custody has been used to describe joint physical custody.  Joint physical custody does not necessarily, of course, mean equal time.  The trend in favour of mandatory parenting plans recognizes not only the advantages of advance planning for children, but also the changing demographics of the family.  Laws that encourage the meaningful involvement of both parents may be described as aspirational.”

About the best interests of children as it relates to parenting arrangements:

5.  • Quoting authors Paul Amato & Joan Gilbreth in “Nonresident Fathers and Children’s Well-Being: a Meta-analysis”, 61 J. Marriage & Fam. 557 (1999), the court observed:  “ … [E]motional closeness and, particularly, ‘authoritative parenting,’ are highly beneficial to children.  Authoritative parenting includes helping with homework, talking about problems, providing emotional support to children, praising children’s accomplishments and disciplining children for misbehaviour.  The researchers concluded that ‘how often fathers see children is less important than what fathers do when they are with their children.’

6. • “Measures to encourage a continuing relationship between non-resident parents and their children should be seen as highly desirable in the absence of high levels of ongoing conflict between the parents, irrespective of the division of roles between the parents when the marriage was intact.”

7.  • “As long as the parents live within a reasonable proximity to one another, there is a range of options for structuring parent-child contact, from limited involvement by the non-resident parent through to shared care. … It is in the best interests of children to try to reduce their exposure to conflict between their parents.  This requires a focus on how the best interests of children could be served by the processes of adjudication, as well as using the best interests test to determine the appropriate outcome of the dispute.”

8.  • “Of significance may be changes in the level of acrimony in the relationship with the other parent as time begins to heal the wounds of the separation and the initial grief, anger and resentment associated with relationship breakdown has subsided.  What may be the best available option for a child when parents are in very high conflict may not be the best at a later time when the parents are capable of a more civil and cooperative relationship.”

About shared parenting:

9.  • “There is a presumption in favour of equal shared parental responsibility.  This can be rebutted in cases where there is a history of violence or abuse.   … This court has a duty to consider whether an equal time arrangement is in the best interests of the child and reasonably practicable.  If equal time is not appropriate then the court must consider what is termed ‘substantial and significant time’.”

10.  • “Shared care arrangements do not necessarily last.  Shared care is dependent on the parents living in relatively close proximity to one another and, for school-age children, to the child’s school.  New partnerships or job opportunities for one or the other parent, or the need for one or both parents to move, may necessitate some adjustment to the shared care arrangements.”

For the full text of the decision, see:

Moreira v. Garcia Dominguez, 2012 ONCJ 128 (CanLII)  http://canlii.ca/t/fqjbl

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

 

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