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Should an unhappy mother be allowed to move from Canada back to Italy with her children?

Should an unhappy mother be allowed to move from Canada back to Italy with her children?

This was the issue a Court recently decided in a case we examine in our blog Parents Neither Separated Nor Divorced – But Mother Permitted to Move Them Back to Italy

What do you think?

Please read our responses or submit your own comments.

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Parents Neither Separated Nor Divorced – But Mother Permitted to Move Them Back to Italy

Parents Neither Separated Nor Divorced – But Mother Permitted to Move Them Back to Italy

In this unusual Ontario case, the court allowed the mother to move back to Italy with the children of the marriage, even though she and the father had not filed for divorce and were not even formally separated.

The couple married in 2002 and initially lived in Rome, where their two children (now aged 6 and 9) were born. They moved to Toronto in 2007. The mother, who was 41 and had limited understanding in English, had worked as a lawyer in Italy but was unemployed while living in Canada. She had taken English classes and was trying to re-qualify as a Canadian lawyer, but this essentially required her to start law school all over again, which the couple did not have the money to do. She had therefore spent her entire time in Canada acting as the children’s primary caregiver. Meanwhile, the father worked at his cousin’s downtown restaurant earning $32,000 per year.

Unfortunately, the couple argued frequently and were in marriage counselling. The mother was miserable in Canada, had serious health problems, and did not get along with the father’s parents. She was frustrated at not being able to pursue her chosen profession, and alleged that she had endured some physical violence at the father’s hands. However, the couple had never formally separated, but rather continued to live together for financial reasons.

Against this background, the mother came to court to have it rule on a single question: whether she should be allowed to move back to Rome and take the children with her. The father wholeheartedly opposed her plan, as he feared he would inevitably lose contact with his children.

In hearing the matter, the court summarized the mother’s position as follows:

In essence, Mother says she is miserable here. Things did not work out as they had hoped. They have no money, she cannot work. She is cooped up in a small apartment, receiving no income and requiring government subsidies for daycare. She is isolated and terribly unhappy. This is why she wants to return to Italy with the children.

Mother’s parents bought her an apartment near to them and to schools in a nice neighborhood of Rome. If she returns to Italy, she can practise her chosen profession and earn a good income. She has two job opportunities available to her already. In Rome, she would enjoy the support of her extended family (which is considerable). Language would no longer be an issue for her.

The court applied the established legal tests to the situation, and considered all the factors including the mother’s historical status as primary caregiver, her reasons for moving, the desire to maximize contact with both parents, and the children’s own views. It also considered the dynamic between the children and various individuals, including their parents, both sets of grandparents, and other extended family.

In this case – and while acknowledging that both parents loved and wanted the best for the children – the court concluded that the mother’s plan to move back to Italy was in their best interests. For one thing, the move would optimize her ability to find remunerative and fulfilling work, which would in turn impact positively on the children’s lifestyle. The mother also had a supportive extended family, which included devoted and wealthy parents (they owned an apartment in Rome, a cottage in northern Italy, a beach house in southern Italy, and a timeshare condominium in Manhattan, all of which were available for the mother to use). The children were both Italian citizens and were fluent in the language; they would have very little difficulty adjusting to the move.
In coming to this conclusion, the court also took into account the impact on the father, primarily that he would no longer have frequent contact with the children. (And noted that the father had not decided on whether he was willing to move to Italy as well). Nonetheless, it was satisfied that the economic prospects of the mother (alone) in Italy would exceed the parent’s combined family’s economic prospects, were they to remain in Canada.

Accordingly, the court granted the mother’s request, and allowed her to move with the children back to Rome.

Trisolino v. De Marzi (2012), 2012 ONSC 3921  http://canlii.ca/t/fs3bs
Russell Alexander, Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. For further information, or to schedule an appointment, call 1.905.655.6335.

 

Wednesday’s Video Clip: Justice Brownstone & Children’s Lawyers

 

 

Wednesday’s Video Clip: Justice Brownstone & Children’s Lawyers

Do children need lawyers? Yes, in some circumstance they do. In this episode, Justice Brownstone interviews two lawyers from the Ontario Office of the Children’s Lawyer.

Justice Brownstone also introduces us to his TV series family matters.

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

Whether a Parent Has a Right to Move with a Child – The Concept of “Mobility” in Family Law

Whether a Parent Has a Right to Move with a Child – The Concept of “Mobility” in Family Law

The moment that the parents of a child separate, everyone’s life circumstances change immediately:  there are usually new living arrangements and a custody and access schedule put in place.  But as time passes, there may be other developments as well; for example the parents may embark on new relationships with new partners, or may change jobs.   The potential impact on any court-ordered support, custody or specific access arrangement, and the effect on each parent’s rights must be assessed and weighed.

In cases where one parent’s new relationships or new jobs require a move to another city or province, the concern is even greater.  This is because such scenarios give rise the a legal issue of whether the circumstances and preferences of the parents should be allowed to dictate the child’s living circumstances, whether such moves should be allowed and by whom, and – if so – what happens to the custody and access arrangements that are in place.

In family law, this is known as a “mobility” issue.

In Canada, courts generally recognize that the well-being of a child is fundamentally interrelated with the well-being of the custodial parent; indeed, a 1996 Supreme Court of Canada ruling in a case called Gordon v. Goertz established conclusively that judges must apply the “best interests of the child” test in making decisions about whether a parent should be allowed to relocate with a child, which in turn requires an individual, fact-specific assessment.   As the court put it:

“The focus is on the best interests of the child, not the interests and rights of the parents.”

Courts are required to make a “full and sensitive” inquiry.  This means that they are obliged to take into consideration a vast array of factors, including:

• the existing custody arrangement and relationship between the child and the custodial parent;

• the existing access arrangement and the relationship between the child and the access parent;

• the desirability of maximizing contact between the child and both parents;

• the views of the child;

• the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

• the disruption to the child of a change in custody; and

• the disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

It is worth pointing out that in making this assessment, there is no presumption in favour of either parent (whether the custodial parent or otherwise).

Incidentally, the authority for a court to make such a determination on behalf of parents and children is set out in various provincial and federal family-legislation.  Under the federal Divorce Act, for example, provides that if a court gives one parent custody of a child, the court may also require that parent to give at least 30 days’ notice to the other parent of any planned change of residence of the child (although practically speaking, most orders specify a 60-day period).   The access parent, upon receiving such notice, can apply to the court to challenge the proposed change of residence, or seek a variation of the custody or access arrangements; this notice period also afford the parents the chance to negotiate acceptable relocation terms, before it happens.

When mobility issues arise, it is important to get experienced and competent legal advice, to ensure that the best interests of all parties – particularly the children of the relationship – are safeguarded.  Russell Alexander, Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation.  For more information or to book an appointment call 1.905.655.6335.

 

 

 

Custody by Non-Parents Part II: A Case in Point

Custody by Non-Parents Part II: A Case in Point

In my other Blog post this week, I discuss the requirements for an application by a non-parent for custody of a child. A case from a little more than a year ago called P.(C.A.G.) v. J.(C.), illustrates some of the considerations and issues that arise in these kinds of applications.
The matter was decided just as the Children’s Law Reform Act had been amended to impose additional requirements on non-parents applying for custody of a child. As indicated in my other post, these requirements include:

• obtaining police Record Checks;

• obtaining reports from every Children’s Aid Society where the applicant non-parents have resided, which sets out whether they have had prior involvement with that Society; and

• a check whether they have ever been involved in any family law proceeding regarding children.

By way of background, the mother of two children, now aged 8 and 2, had always had a tumultuous personal life. She and the children had always lived with her parents, with whom she had an agreement for joint custody of the younger child. In March 2009 she moved out, after which time the children were in the grandparents’ exclusive care. After that point, their mother had little contact with them; their father had no involvement with them whatsoever.

The Children’s Aid Society became involved after it determined that the younger child was a child in need of protection. The child was placed in the care of the grandparents, subject to the supervision of the Society. The child was later found to be in need of protection and by court order was placed in the grandparent’s care for 6 months. This arrangement was endorsed by the Society as it had worked closely with the grandparents and considered them to be appropriate caregivers. In fact, the Society was content to terminate the child protection proceeding if the grandparents were successful in obtaining a custody order.

Although the older child was not subject to any child protection proceedings, the grandparents wanted to change an existing court order to reflect the reality that they had been that child’s only caregivers and that the mother had virtually no involvement in her life.

The grandparents applied to the court for an order granting them: 1) sole custody of the older child; and 2) custody of the younger child.

However, the court staff refused to accept their application, because the grandparents failed to submit clearance documents from the police and from the local Children’s Aid Society, in accord with the Children’s Law Reform Act requirements.
The grandparents brought a motion for the court’s permission to have these requirements waived for them, arguing that – since they had already had custody of the child – the requirements should not apply to them.

The court crafted a solution: while it granted the grandparents’ request to have the requirements on the clearance documents waived, the court nonetheless required them to complete an affidavit under the Act which would provide the court with the evidence to make its decision.

The court explained that this was not a situation in which a non-parent was applying for custody from the outset, but rather a situation where a non-parent was asking for a variation of a custody arrangement that had already been decided by a court based on the child’s best interests. Even though they were non-parents, the previous court had seen fit to grant the grandparents custody rights, and had allowed the children to live in the grandparents’ home. The Children’s Aid Society support of the grandparents’ custody claims was also reassuring.

As such, the court could exercise its discretion and dispense with the clearance documents requirements, although it expressly observed that there may be situations in which the court might exercise its discretion in a different manner.

For the full text of the decision, see:

P.(C.A.G.) v. J.(C.), 2010 ONCJ 175   http://canlii.ca/t/2csmt

Russell Alexander Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation.

For further information, or to schedule an appointment, call 1.905.655.6335.

 

 

 

When a Non-Parent Wants Custody of a Child

 

When a Non-Parent Wants Custody of a Child

When parents separate or divorce, one of the many decisions to be made is how the custody of any children of the marriage should be divided.

However, in some cases, a person who is not the child’s parent will want to obtain custody of a child; for example the child’s grandparents or other extended family members, or even a close family friend.

The potential right of such parties to obtain custody arises under the Children’s Law Reform Act, which specifically provides that the persons who are entitled to apply for a court for a Custody or Access Order is “a parent of a child or any other person”.

Not surprisingly, however, the Act also provides detailed requirements in connection with an application made by a non-parent.

First of all, any individual who wants to ask a court for a Custody Order must complete and file two particular Forms (Form 8: “Application”, and Form 35.1: “Affidavit in support of claim for custody or access”; both are available at www.ontariocourtforms.ca). These Forms are filed with the court office.

Then, he or she must also file a police Record Check, which involves the applicant completing a Consent Form for Police Record Check for Non-Parent Custody Applicants, and submitting it with a fee to his or her local a police station (although not all of them conduct police Record Checks).

The completed Record Check as returned from the police must be served on any other parties (including the biological parents), and must also be filed with the court within 10 days. A previously obtained Record Check can be submitted as long it meet certain regulatory requirements, and was completed within 60 days that the application was commenced.

Next, the non-parent applicant must also sign a form that authorizes the provincial Children’s Aid Societies to provide information about certain records that they might possess about the applicant for custody. This involves completing a CAS Report on Records Form, which can be completed at the courthouse counter. The Affidavit in support of a claim for custody or access is sworn after the CAS Report on Records form has been completed.

If the CAS report indicates that the Children’s Aid Society was involved with the non-parent applicant, then the Report is shared with the court and with other parties. (There are also specific procedures to follow for cases where the applicant does not want the Report to be shared). However, if the CAS has no records on the applicant, then the Report is kept in a sealed file and is not shared.

Finally, upon receiving an application for custody by a non-parent, the court staff will also search court records from across Ontario as part of a report indicating whether there have been any family law cases involving the non-parent applicant or the child. The judge may also ask court staff to search court records for criminal cases.

The process to be followed by a non-parent who wishes to apply for custody of a child involves certain necessary and important steps. For further information, contact Russell Alexander, Family Lawyers.

 

 

Ontario Custody and Access: Who’s 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.

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