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Evidence 101: The Fine Line Between “Evidence” and “Submissions” in Family Law

submissions

Evidence 101: The Fine Line Between “Evidence” and “Submissions” in Family Law

A recent decision in Mwanri v. Mwanri raised a narrow – but important – legal point: When lawyers make submissions in family court, these are simply that: submissions, assertions, or stated positions on behalf of one of the parties. They are not tantamount to “evidence” that a court can consider in making its decision, and it is an error for a court to apprehend them that way.

In Mwanri v. Mwanri the parents were involved in a custody dispute over their two children. By way of a court order the father had been granted sole custody of an older son, while the mother had been granted sole custody of their daughter. But despite that earlier order, in 2014 the daughter decided to go live with the father. Seeking to formalize that new arrangement, the father brought a court motion to vary the original custody order as well as his related child support obligations.

At the motion hearing the evidence included the results of interviews with the daughter conducted by the Office of the Children’s Lawyer (OCL), which had become involved in order to monitor the existing parenting and access schedule. Based on those OCL interviews, together with some evidence from the mother, the motion judge rejected the father’s motion, ruling that he had actually influenced the daughter to move out of the mother’s home and to move in with him instead. That adverse finding was exacerbated by the motion judge’s conclusion, in connection with certain prior directives, that the father’s conduct “amount[ed] to a failure to comply fully with the existing court orders, if not outright contempt of them”.

By way of an appeal launched by the father, the Ontario Court of Appeal was asked to review the motion judge’s conclusions for errors.

First of all, the Appeal Court pointed out that the mother had given sworn evidence that supported the motion judge’s finding that the father had influenced the daughter’s decision to change her place of residence. So the motion judge’s reliance on that evidence was warranted.

However, the Appeal Court added, “The motions judge’s reference to the OCL’s interviews with the daughter is a different matter.”

The motion judge had never been given an actual report or other evidence from the OCL, so were no formal documents tendered. Rather, the motion judge had merely drawn conclusions based on the oral submissions by the OCL’s lawyer to the effect that the OCL interviews showed the father’s attempts to influence the daughter to move and disobey the existing orders. This, the Court of Appeal found, was a mistake on the motion judge’s part. As the Appeal Court put it:

Submissions by counsel are not evidence. They are simply submissions and nothing more.

(Still, nothing ultimately turned on that particular finding of error, since there was also credible and sufficient evidence from the mother – which the motion judge had believed – that the father had influenced the daughter).

The Appeal Court also rejected the father’s notion that he had technically been accused by the motion judge of being in contempt, even while it confirmed that he had indeed failed to comply with certain aspects of the earlier order, including the directive to pay legal costs.

Those two aspects of the father’s appeal were accordingly dismissed (although he succeeded on some of the other numerous grounds of appeal that he had raised in connection with support, custody and other related issues arising from the initial order).

For the full text of the decision, see:

Mwanri v. Mwanri, 2015 CarswellOnt 18511, 2015 ONCA 843

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: 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.

Access to Children — Working it Out Between Parents (and Sometimes Others)

Access to Children — Working it Out Between Parents (and Sometimes Others)

As it begins to show promise of warmer summer weather, parents will usually start thinking about planning summer getaways with their children. For separated and divorced parents, however, these vacations must be arranged in accord with existing access arrangements, or else there must be a temporary agreed-upon variation which will accommodate the holiday plans.

Needless to say, scheduling access year-round can be a challenging exercise at the best of times, even when it is only the biological parents who have access rights. However, when other family members – such as grandparents and step-parents – have rights to see the children as well, it can get even more complicated, as the recent Ontario decision in Curphey v. Aldebert demonstrates.

In this case, the first complicating factor was that the mother had three children by three different fathers. The children – all girls – lived with the mother and were in her primary care; each of the three biological fathers had access to their respective offspring. However, the maternal grandparents had also individually negotiated an access agreement in connection with all three children, which the mother and each of the three fathers had consented to.

In this convoluted scenario, the parties attended a settlement conference to try to work out access and formulate a reasonable parenting schedule, and the court was asked to assist.

First of all, the maternal grandparents were given access to all three children one evening per week, one overnight per month, and one week of summer vacation (subject to the respective fathers’ summer vacation week choices). The court’s access order also included stipulations relating to pick-up times for the children on school days, enrolling the children in community activities during the grandparents’ access time, and allowing the children to telephone the grandparents at any time.

Next, each of the three fathers was allowed access to his own biological child, with the access falling on the same alternating weekends for all three men. (This allowed the three siblings to be together and to spend time with their mother during the other alternating weekends). This order included directions relating to Thanksgiving, Christmas, Easter and March breaks, and stipulations as to who gets statutory long weekends and school professional development days.

The court also fashioned specific orders for each of the fathers: In the case of one father, it directed that he and the mother continue to work co-operatively to gradually expand the duration of his access. For the second father, the court noted that he and the mother had adjusted their weekend access times to accommodate their daughter’s dance schedule, and strongly encouraged that approach.

Finally, the court devoted considerable attention to crafting an access order for the third father. This was necessary because he not only wanted additional access to his own daughter (over and above the straightforward alternating weekends that the other fathers enjoyed) but he also wanted to maintain access to the two other girls who were not his biological children. Notwithstanding the objections of the girls’ fathers, the court allowed the third father to continue to have a modest access schedule until the recommendations of the Office of the Children’s Lawyer could be elicited.

Pending that input, the father was entitled to have one overnight per month, but with the following conditions:

1) the additional access time was to be subtracted from the mother’s parenting schedule, and not from the parenting schedule of the children’s own two biological fathers;

2) the overnighter had to take into account the father’s schedule, so that he could enjoy time with all three children;

3) the overnight access was not to impact on the parenting schedule of the two other fathers or the grandparents; and

4) the parties had to propose to the court – in writing and ideally on consent – which specific date each month the father should exercise that overnight access.

The corollary question of that same father having additional access to his own daughter (over and above the alternating weekends) was left to be determined by the court at a later date.

Finally, the court also ordered that all the fathers and the grandparents must adhere to the access plan, and shall not deviate from it unless the written consent of all the adults has been given.

As this illustration shows, the structuring of access to children is a complex equation which accommodates numerous interests and is subject to several variables.

At Russell Alexander, Family Lawyers we are available for personalized, private and confidential consultation. For more information about our services or other family law issues please visit us at www.russellalexander.com

For the full text of the decision, see Curphey v. Aldebert, 2010 ONSC 5841

Custody Disputes and the Role of the Office of the Children’s Lawyer

Custody Disputes and the Role of the Office of the Children’s Lawyer

In family law custody matters, the function of the provincial Office of the Children’s Lawyer (OCL) is to report back to the Ontario Superior Court with its determinations relating to the best interests of children. As such, the OCL has the important role of ensuring that children are given independent legal representation in connection with custody disputes that involve them.

However, the Ontario Court of Appeal has recently held that while a Superior Court can request the OCL’s involvement, that court has no jurisdiction to order it.

In a case called Bhajan v. Bhajan, the lower court had mandated the OCL to act in six separate custody disputes before it, relying on the general inherent jurisdiction of all Canadian courts to protect and make decisions for children and other individuals who are similarly incapable of doing so in the legal sense.

In hearing the appeal from that decision, the Ontario Court of Appeal reviewed a wide range of sources, including the legislation governing the general jurisdiction of family courts, various federal and provincial Acts and Rules that govern family matters, and even the values behind the United Nations Convention on the Rights of the Child to which Canada is a signatory. It concluded that although the Superior Court has the right to request the OCL’s involvement in family custody matters, the OCL retains the discretion to decline to act. In such cases, the court may only ask the OCL to reconsider its refusal or to consider other alternatives.

The Court of Appeal’s judgment is framed against the backdrop of the already-staggering case load of the OCL, which entertains a large number of requests from Ontario family courts dealing with matters governed by both provincial and federal legislation. Indeed, in making its decision the Appeal Court considered the OCL’s submission that to allow courts to force the OCL’s participation by way of court order would open a “floodgate” in terms of workload, and would render the OCL unable to function properly.

Read the Court of Appeal’s full decision in Bhajan v. Bhajan at http://bit.ly/fEV1TQ

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