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Posts tagged ‘child and spousal support’

Deciding to Separate?  Some Noteworthy Points About the “Valuation Date” in Family Law

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Deciding to Separate?  Some Noteworthy Points About the “Valuation Date” in Family Law

A basic concept in Ontario Family Law is that, once spouses decide to separate, their respective entitlement to the matrimonial property they have brought into the relationship and accumulated during the marriage has to be assessed.  That assessment takes place on what is described in section 4(1) of the Family Law Act (FLA) as the “valuation date,” which is defined as:

The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.

Often – but not always – the valuation date will be the same as the formal separation date, which is often the date one spouse moves out of the former matrimonial home. But as we all know, life is not always that simple, and relationships do not always end cleanly.

Here are some important points that the court has clarified about this “valuation date”, in a case called Strobele v. Strobele:

  • The purpose of this FLA definition is to fix the date on which the economic partnership should be fairly terminated.
  • This definition has two aspects:
    • The date on which the spouses separate; and
    • That there is no reasonable prospect that they will resume cohabitation. In other words, there concepts of separation and cohabitation are linked.
  • However, the two concepts, while related, are not interchangeable, i.e.:
    • “Separation” requires more than living under separate roofs, but rather involves a cessation of the “multi-levelled intricate relationship between couples.”
    • Likewise, “cohabitation” implies conjugality.

If a separated couple is not agreed on the exact date on which these two factors were met, a court may have to make the determination for them.  This involves an evaluation of numerous aspects of the relationship and its ending, not to mention the mindset of each spouse.  As the court points out:

Continuation of a relationship requires two people. Either can end the relationship without the consent of the other. As a matter of common sense, there will be many cases where one spouse knows that there will be no reconciliation and the other does not because the one has decided he or she does not wish to reconcile, but the other does not yet understand this. A fair determination of this issue requires that an objective eye be cast upon the unique circumstances of the couple. Thus it is that there are cases where couples are found to have met the test under section 4(1) even though they both continue to live in the matrimonial home….

The court goes on to emphasize that the test under this FLA provision has a clear purpose:

When was it that there was no reasonable prospect that they would resume cohabitation? … In considering this question, it is helpful to keep in mind the purpose for which the question is being asked. It is to set the valuation date, the date at which the parties ceased being one kind of entity for financial purposes – a couple – and became another, a separated couple. Surely it is obvious that there is no one moment in time that can be fixed as the objectively true separation date. Rather the Court should determine the date on which it is fair that the parties no longer share the financial consequences of being married.

Finally, it should be noted that the FLA also allows for the valuation date to be set earlier or later than a couple’s separation date, depending on the circumstances.  The court explains:

Where one spouse with the intention of ending the relationship transfers or dissipates assets, an early valuation date may be appropriate. Where one spouse has decided to terminate the relationship, but has not made this clear to the other spouse, then a valuation date that is later may be in order. However, the test is not purely subjective. Groundless hopes of reconciliation should not extend a valuation date where one spouse has been clear in his or her intentions to end the relationship.

For the full text of the decision, see:

Strobele v. Strobele

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

Wednesday’s Video Clip: Confidentiality

 

Wednesday’s Video Clip: Confidentiality

In this video Russell discuss how all information you provide to your lawyer is completely private and confidential. All the details of your case will be handled with the utmost confidentiality and respect for your privacy.

The privilege of confidentiality between solicitor and client is, in law, a protection which belongs to the client. Therefore, it is up to the client, only, whether or not that confidentiality is to be waived.

Please remember this when your family members or friends request information directly from your lawyer. Lawyers are frequently contacted by new partners, or other family members who want to discuss your case.

You have to give your lawyer specific instructions to permit that discussion to take place. Also, as the time spent by your lawyer will be time spent on your file, you will be billed for any time spent discussing your case with anyone at your request, or in the context of your file.

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

The Importance of Offers to Settle

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The Importance of Offers to Settle

It is often asked by clients why they need to prepare an Offer to Settle, and this article will examine that question by looking at the importance of Offers to Settle in the Family Law file.  As stated by Justice Blishen, “Under the Family Law Rules, O. Reg. 114-99, offers to settle are quasi obligatory.  Service of at least one offer to settle should be a basic step in every family law proceeding.”[i]

The Family Law Rules define an Offer as simply that, “…an offer to settle one or more claims in a case, motion, appeal or enforcement, and includes a counter offer.”[ii]  But how do you prepare one, and what is the benefit to preparing one, especially when you know the other party will not accept it?

An Offer to Settle needs to narrow the issues, and should be what you can except to achieve at a minimum.  The goal is to match or beat your Offer to Settle as if you do you will be rewarded (typically with costs).

Format of the Offer[iii]

An Offer to Settle is a settlement proposal as to the claims the person making the offer has advanced. This can be done even prior to commencing litigation, and provided that you have not withdrawn (formally told the other party that the offer is no longer available for acceptance or in the case of a time limited offer the expiration period has been met), any and all offers made remain open for acceptance and even better are available for cost arguments.  You should note that an Offer expires once the Court begins making a decision on the issue(s) contained in the Offer.

The Offer to Settle must be signed by you personally and if you are represented by counsel, your solicitor also.  Failure to abide by this term renders your Offer to Settle defunct (not able for acceptance).

Your Offer to Settle, needs to be about the issues before the Court, in other words, if you include issues in the Offer to Settle that are not being decided, the Offer will not meet the requirements under the Rules and may result in the loss of costs being awarded to you.  This issue can present at a Motion where the Notice of Motion does not reference the information in your Offer to Settle, or even at Trial, be mindful to always cross reference your pleadings to make sure that you are not seeking relief that you have no standing to claim.

It is crucial that you consult with your solicitor as to the impact of time limited Offers to Settle, as for costs to be awarded, your Offer needs to be open for acceptance at the time of the disposition of the Justice hearing your matter – time limited offers that have past their expiration points are the same as Offers to Settle that have been withdrawn.

When To Make an Offer

Typically, Offers to Settle are made:

  1. At the time of preparing Motion Materials;
  2. At the time of preparing for the Settlement Conference;
  3. After receipt of a parenting report/assessment;
  4. After the sale of property or after the exchange of financial information;
  5. During Trial preparations; and
  6. Such other times as advised by your solicitor.

Service of the Offer to Settle is important to note, there needs to be sufficient time for the other party to review and accept the Offer to Settle prior to the hearing (or next step) in your matter.  The Family Law Rules require that an Offer to Settle be made:

  • if for a motion, a minimum of one day in advance of the motion; and
  • if in advance of a trial or other step (conference), seven days in advance.

Costs

Many counsels have placed cost implications within the body of the Offer to Settle, the Family Law Rules however safeguard cost arguments by allowing either party to request costs if they were not claimed in the Offer to Settle.[iv]  You should speak with your solicitor more about the impacts of placing costs within the body of the Offer to Settle or leaving this up to the determination of the Justice at the hearing of the matter.

It is well settled law in Ontario that Offers to Settle are a yardstick by which to measure success and significant in considering both liability for costs and the amount of costs. See Osmar v. Osmar, 2000 CanLII 20380 (ON SC), 2000 CarswellOnt 2343 (S.D.J.).[v]

Failure to make an Offer to Settle can have serious repercussions, Justices have held that failure to make an Offer as “unreasonable”. [vi]

The Family Law Rules require that the parties and their counsel have a duty to act in a manner that takes into consideration any and all cost/time saving measures, narrow the issues focus on settlement and narrow the issues. The failure to serve an offer to settle will be an adverse factor when assessing costs. See Laing v. Mahmoud, 2011 ONSC 6737 (CanLII).

Summary 

Although you may feel the costs of preparing an Offer to Settle will not benefit you, after review of this article and the positions taken by Family Law Justices, you will see how important a role Offers to Settle play in the Family Law file.

[i] Justice Blishen, para 6, Laing v. Mahmoud, 2011 ONSC 6737 (CanLII)

[ii] FLR, 18 (1)

[iii] FLR, 18 (4)

[iv] FLR, 18 (11)

[v]    Madam Justice D. Summers, para 3, Stow v. Davidson, 2018 ONSC 3274 (CanLII)

[vi] Madam Justice D. Summers, para 13, Crump v. Crump, 2018 ONSC 3191 (CanLII)

Special thanks to Senior Law Clerk Amanda Crocker who authored this blog.  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’s Threat to Tell Child “Everything” About Custody Conflict Attracts Court’s Reproach

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Father’s Threat to Tell Child “Everything” About Custody Conflict Attracts Court’s Reproach

In a recent blog I point to what is really a recurring theme in past years:  The courts’ willingness to admonish litigants for an assortment of misbehaviour, including lack of cooperation, lack of full disclosure, and – very commonly – a lack of focus on what’s important in a family setting:  The best interest of the children.

This latter point was the court’s theme in Delisser v. Tefferi, where the father had made a request to expand his access to the 9-year old son “J.”, who was currently living with the mother under a sole custody arrangement.

The court heard the history of litigation between these now-separated parents, which featured the father having what the court called a “toxic” attitude toward the mother.  This included an incident where, rather than agree to pick up the boy from where he was playing basketball nearby, the father called the police, claiming that the mother had breached the strict letter of a court order by not having her at her home for pickup at the start of the father’s access time.

In contrast, the court noted the mother had shown considerable flexibility toward the father, including accommodating him when he needed to change plans.

But more troubling was what the court concluded was the father’s overall level of hostility toward the mother.  The court recounted another incident:

On yet another occasion mother asked father not to talk to the child about what was going on in court or in the proceedings between them. Father responded by saying to the mother: “You’re a piece of shit and J. will know everything you said”.

This kind of response by father demonstrates such poor judgment, that the court is almost at a loss for words to explain to father why this is so. But since father will hopefully be reading these reasons, I will attempt that explanation.

The court explained the fuller basis for its concerns:

Disputes by parents which involve children, and which take the parents into the courtroom, are adult matters. They are not matters for children. It is a fundamental premise that parents must make all necessary efforts to shield their children from these disputes.

Children who are exposed to parental conflict risk becoming emotionally harmed by that conflict. This risk of harm is so patently obvious that it has been recognized repeatedly by courts for many years. …

Furthermore, a parent who believes that a child, at the age of only 9 years, is capable of understanding the basis for parental conflict, has no real appreciation for the ages and stages of child development.

Additionally, when a parent sets out to tell his child “everything” the other parent said, he has no appreciation of the damage he is creating, either to his own relationship with that child, or the relationship between the other parent and the child.

The fact that the father in this case was prepared to acknowledge the foregoing statement, and to not apologize for it, or to not appreciate why it was so clearly the wrong thing to do, demonstrates not only very poor judgment, but also a complete lack of insight.

In court, during the course of testimony, the father called the mother a “crazy controlling person”.

A statement like this is, unfortunately, entirely consistent with the anger and poor judgment the father displayed when he insisted that the mother was a “piece of shit” and that he was going to tell the child “everything you said”.

If the father is prepared to make statements like this in a courtroom, in front of a judge, the court can only shudder at what the father might be saying to the mother, or about her, away from the court’s scrutiny.

The father’s anger and hostility toward the mother is palpable. The court’s concern is the extent to which this anger and hostility is impacting the child, and the extent to which that may have actually resulted in emotional harm to J.

The court was left to conclude that the father had “unremitting anger and vitriol” toward the mother, and a lack of insight as to how it might affect the child.  However, the father clearly loved the child as well.  This left the court to balance the competing tension between preserving the father-child relationship, but still expressing its abhorrence with the father’s behavior.

In the end, the court somewhat-reluctantly agreed that there had been sufficient “material change” since the original order was made seven years earlier, which warranted expanding the father’s access to the boy.

But after rendering the decision on the legal issue, the court added:

Final words

It is absolutely imperative that the father read these reasons with an open mind. It is critical that he understand how his current behavior risks doing serious emotional damage to his son who, I have no doubt, he loves.

The father must develop an understanding that regardless of his negative feelings toward the mother, maturity and being child-focused necessitates that he puts those feelings on the back-burner when it comes to J.. and the manner in which he involves himself in J..’s life.

The father needs to understand that J.. is entitled to two loving parents, both of whom are required to nurture and sustain J..’s relationship with the other parent – in other words, doing the opposite of what he has been doing so far, namely, denigrating the mother and exposing J.. to his own hostility toward the mother.

The father also must understand that unless he assimilates this information and changes his behavior, the risk of harm to J.. may become so great that the court could ultimately be left with no choice but to suspend or even terminate his access entirely.

If this were to occur, the ultimate loser would be J.., the person with whom the court is necessarily most concerned — and the person about whom father should be most concerned.

I encourage the mother to continue to demonstrate her flexibility toward the father where it is appropriate to do so in J..’s best interests.

I have no doubt the mother will continue to act as she has done in the past.

For the father, however, the court strongly urges a greater generosity of spirit toward the mother, not just for its own sake but, more importantly, for the sake of the healthy development of his son.

There are wise words indeed, for any parent going through the family litigation process.

For the full text of the decision, see:

Delisser v. Tefferi

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

Wednesday’s Video Clip: Russell Alexander, Family Lawyers


Wednesday’s Video Clip: Russell Alexander, Family Lawyers

At Russell Alexander Family Lawyers, we are committed to practicing exclusively in the area of family law. As a result, our team is experienced in dealing with all aspects of family law matters, including:

  • Separation and divorce
  • Child custody and access
  • Child support Spousal support
  • The Family Responsibility Office (FRO)
  • Division of family property
  • Family mediation and alternative forms of dispute resolution
  • Domestic contracts, including separation agreements, paternity agreements and marriage contracts

Because our work is focused solely on family law, we understand the difficulties individuals face when going through a separation or divorce. We understand that family law can be very complex, and that its complexity can be amplified when coupled with emotionally straining circumstances.

Our office will help you by providing you with guidance during what can be a very difficult time in your life. This means providing you with the information to help you to identify and understand the issues, as well as the options and opportunities available to you to help in this transition. It means working with you to design a plan to help you make progress and achieve your goals.

We will keep you informed about matters as they arise and discuss with you any significant decisions that you are required to make. We will provide you with our best legal advice, but ultimately you will make the final decisions and provide us with instructions. If you have any questions or would like to find out more about your individual situation and how a family lawyer can assist you to achieve your goals, please contact one of our offices.

Visit us at Russellalexander.com

When Does a Lawyer’s Courtroom Incivility Amount to Professional Misconduct

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Supreme Court Rules For When a Lawyer’s Courtroom Incivility Will Amount to Professional Misconduct

In the recent case of Groia v. Law Society of Upper Canada, the Supreme Court has overturned the decision of the Law Society of Ontario’s  finding that Mr. Groia was guilty of professional misconduct due to his incivility during the proceedings of R v. Felderhof. 

The issue was to determine the ‘reasonableness’ of a lawyer’s incivility to be that which will amount to professional misconduct. Thus, when determining incivility, the courts have shown willingness to impose a multi-factored and context-specific inquiry, opposed to a rigid and precise definition.

The court indicated that:

 It sets a reasonably precise benchmark that instructs lawyers as to the    permissible bounds of ethical courtroom behaviour by articulating a        series of contextual factors — what the lawyer said, the manner and      frequency in which it was said, and the presiding judge’s reaction to        the lawyer’s behaviour — that ought generally to be considered when    evaluating a lawyer’s conduct, and by describing how those factors          operate when assessing a lawyer’s behaviour.

 The approach, with which I take no issue, targets the type of conduct that can compromise trial fairness and diminish public confidence in the administration of justice. It allows for a proportionate balancing of the Law Society’s mandate to set and enforce standards of civility in the legal profession with a lawyer’s right to free speech. It is also sensitive to the lawyer’s duty of resolute advocacy and the client’s constitutional right to make full answer and defence.

The court also stressed that counsel holds the responsibility to not only advocate for their client, but to also uphold ‘constitutional imperatives’ to criticize state actors:

  …for criminal defence lawyers, fearless advocacy extends beyond ethical obligations into the realm of constitutional imperatives

  Defence lawyers must have sufficient latitude to advance their clients’ right to make full answer and defence by raising arguments about the propriety of state actors’ conduct without fear of reprisal

Mr. Groia has since commented on the ruling stating:

civility does have an important role to play in the legal system and in the judicial system, but where there is a conflict between civility and our duties to defend our clients’ interests, the Supreme Court has made it very clear that it’s going to require very serious misconduct before a defence lawyer can be criticized for doing his or her job.

The three dissenting judges viewed the majority had incorrectly applied the standard for breach of civility. Yet, despite the courts decision to follow a context-specific approach in determining incivility, this has been a 10-year ordeal for Mr. Groia and has been outspoken that the process has been stressful and one which no lawyer wishes to go through.

For the full text of the decision, see:

Groia v. Law Society of Upper Canada 

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 Your Spouse Moves Out, Can They Later Ask You to Pay Rent?

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If Your Spouse Moves Out, Can They Later Ask You to Pay Rent?

As was reported in a recent article in the Financial Post reported, the decision in a case called O’Brien v. O’Brien tackled the intriguing question of whether a spouse who stays behind in the matrimonial home after separation must pay “occupation rent” to the other spouse who has moved out pending their mutual divorce trial.

In this case, that divorce trial took place a full seven years after the separation, and it was the husband who continued to live in the jointly-held matrimonial home after separating from the wife.  Neither of them took steps to finalize the property-equalization process, and the home increased significantly in value during that time.  The husband also made some mortgage payments.

The husband continued to live the home, paid all the expenses, did renovations, and paid down some of the mortgage.  He claimed against the wife for her share of the maintenance and improvement costs, and the wife countered with a claim for occupation rent against the husband.  She claimed that he owed her $1,800 per month for approximately the past seven years, totalling about $78,000, and gave him notice of that claim only shortly before their divorce trial.

The court, in considering whether the husband was obliged to pay the wife a fair amount for the rent that he would otherwise be paying elsewhere, articulated some of the legal principles that must be factored in, namely:

  • The timing of the wife’s claim for occupation rent;
  • The duration of the husband’s occupancy;
  • The wife’s inability to realize on her equity in the property;
  • Any reasonable credits to be set off against the occupation rent potentially payable by the husband; and
  • Any other competing claims in the litigation.

Drawing from prior case precedent, the court listed some added factors that also needed assessment, specifically:

  • The wife’s conduct, including any failure to pay support (if previously ordered to do so);
  • The husband’s conduct, including any failure to pay support (if ordered);
  • Any delay by the wife in making her claim for occupation rent;
  • The extent to which the wife has been prevented from having access to her equity in the home;
  • Whether the wife moved out of the home so that it could be sold;
  • Whether the husband paid the mortgage and other carrying charges of the home;
  • Whether their children resided with the husband and whether the wife paid child support; and
  • Whether the husband increased the selling value of the property.

The court noted that the burden is on the wife in this case to satisfy the court that these factors are established – in whatever combination, and to the needed degree.  Also, it was up to the wife to provide specific evidence as to what the market value of the home would have been.

After reviewing all these components against the facts of this case – and despite the fact that the husband had in the former matrimonial home for more than 7 years pending trial – the court found that he did not owe the wife any occupation rent here.  Conversely, and in light of that conclusion, the husband was ineligible to make a claim against the wife for home maintenance and improvements, because he did that work for himself as an “occupier” of the home.

For the full text of the decisions, see:

O’Brien v. O’Brien

Griffiths v. Zambosco

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

Wednesday’s Video Clip: Can Parents Be Kept From Seeing Their Child If They Do Not Pay Child Support?

Wednesday’s Video Clip: Can Parents Be Kept From Seeing Their Child If They Do Not Pay Child Support?

No. The law assumes that it is usually good for a child to have a relationship with both parents. Keeping a parent from seeing his or her child is considered punishing the child. The law will not punish a child because his or her parent fails to pay child support.

The law gives parents who do not have custody “access” to their children so they can spend time together. Access can be refused or limited only if the parent’s behaviour is likely to harm the child. The courts will not refuse access because the parent does not pay support. And the parent with custody should not refuse access for this reason. There are other ways to get support from a non-paying parent.

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 Cites Former Israeli Prime Minister Golda Meir’s Wisdom in Rejecting Father’s Expanded Access Bid

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Court Cites Former Israeli Prime Minister Golda Meir’s Wisdom in Rejecting Father’s Expanded Access Bid

Some cases I write about here are good for illustrating what to do, if you are going to Family Court.  But here’s yet another one that falls under the “What Not to Do” category. And – rather uncommonly – the court even draws from the wisdom of an international political figure in making its decision.

In Lahey v. Gauthier, the couple had a brief common-law relationship, and had a 5-year old child together.    The mother had sole custody, and the father went to court to ask for very broad access rights.

The mother resisted; her concerns understandably arose from the father’s egregious history of litigation misconduct, and his pleadings had previously been struck out by the court.  He currently owed her more than $150,000 in unpaid child support and legal costs. Although she recognized the importance of his being involved with the child, and admitted that he was otherwise a good father, she asked the court to allow him access only on the strictest terms.

The court held a focused hearing to determine whether the father should have the very broad access rights that he requested.  It noted that the father’s misconduct in the current proceedings included wilful and deliberate refusal to pay child support, or comply with orders for costs, and prior findings of contempt.   According to the mother, he also refused to adhere to existing access times, and bullied, stalked and intimidated her.  This included sending her harassing emails, in which he essentially trying to brow-beat her into acceding to his request for increased access.  He also told the child that she was a “mean mommy” for limiting the time that they could spend together.

The court took note that the father, who was self-represented, had a similar history of misconduct in litigation involving his first wife and their two children. Indeed – as he had in the current litigation – he had been jailed in connection with those prior proceedings for non-compliance with court orders as well.

The court assessed the evidence and made the following observations:

In considering the history of both this litigation and that involving [the father’s] two eldest children, a clear pattern emerges. [The father] feels that he is answerable to no one but himself. As an access parent, he arrogates to himself the right to make decisions that he is not entitled to make or which should be made with the other parent. He is not a “team player” who can work with the other parent of his child(ren) to best secure their best interests. …

If [the father] were to gain the access rights he seeks, [the child] could suffer emotional harm. [The father] would have the opportunity to continually stir up trouble, whether by constantly haranguing the mother, disrupting [the child’s] routines, or ultimately utilizing the opportunity to turn the child against his mother.

While the father denies having berated the mother, his emails attached to her affidavit for trial tell a different story. They show him constantly badgering her about time with the child. He wrote of her “cheating” the child out the right to be with his father and abusing all three of his children. He described her parenting as being “suspect” and falling “short of good parenting”, a situation that he acerbically describes as “not surprising”. He accused her of “…messing up [the child’s] life and his right to his father.”

About the father’s refusal to pay support in particular, the court concluded:

[The father’s] failure to pay support, in itself is not sufficient to deny or even limit his access to [the child]. But it is part of a piece that represents his refusal to consider anyone’s needs above his own. He does not feel that he is financially responsible for his son if he does not have control over the child. He would cut off his child’s nose to spite the mother’s face.

In short, the father was clearly intransigent about increasing his role in the boy’s life, and was impervious to the influence of others. Not only did he feel he had a unique ability to decide what was in the children’s best interests, he was unwilling to cooperate with the mother, and would undermine his parenting unless he was limited to a clear and rigid schedule for access.

In contrast, the mother had a reasonable approach, never questioning – and indeed encouraging – that the father continue to exercise the existing level of access the courts had previously granted him.  These, she felt, already struck a fair balance in terms of the child’s relationship with his father.

In the end, the court rejected the father’s expanded access bid, adding the following admonishment and recommendation for counseling:

To paraphrase the late former Israeli prime minister, Golda Meir, peace will come to [the father’s] extended family only when he decides that he loves his children more than he despises their mothers. While that happy event has yet to occur, it is hoped that a strict regime will bring home to [the father] the consequences of his behavior. I reiterate to him the referral to counselling that [a prior court] so wisely made to him in 2012. Sadly that recommendation appears to have been honoured only in the breach.

For the full text of the decision, see:

Lahey v. Gauthier

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

Federal Government Announces Proposed Changes to the Divorce Act

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Federal Government Announces Proposed Changes to the Divorce Act

On May 22, 2018, the federal government tabled the proposed Bill C-78 (titled “An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act”) which would make significant changes to the Divorce Act and related legislation.

The overall intent of the Bill, which is only at first reading, is to modernize federal Family Law, by promoting faster, more cost-effect solutions to disputes.  In connection with the Divorce Act specifically, the Bill proposes to amend that legislation to enhance the protection of the “best interests of the child”, by adding new rights and obligations, namely:

  • Parenting Orders. Courts would be allowed to make “parenting orders” (instead of the current “custody orders”) allocating the exercise of parenting time and decision-making responsibility in respect of any “child of the marriage”.  Key points:
    • Only the bests interests of the child must be considered by the court, and the relevant factors will be specified in the legislation.
    • Either or both parents could apply for one, as can a non-parent (e.g. a grandparent) with the court’s permission.

 

  • Notice Obligations. A new process would be added, that requires parents who have decision-making responsibility or parenting time to give notice of an intent to change their or their child’s residence, or to relocate. Key points:
    • That notice must be given to any other person who also is entitled to exercise decision-making authority or parenting time, or who has a contact order.
    • A court may order that these notice requirements be dispensed with, but only where appropriate such as where there is a risk of family violence.
    • A person who receives such notice can apply to the court to object to the child being relocated.
    • Once again, the best interests of the child, as that assessment is informed by legislatively-specified factors, will inform the court’s decision.

The proposed Bill would make many other changes, and among the talking-points is the question of whether and how it might impact on individual rights established under the Charter of Rights and Freedoms.

Stay tuned for additional upcoming Blogs on this topic.

For the full text of Bill C-78, see:

BILL C-78, An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act

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