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Posts tagged ‘paternity disputes’

Wednesday’s Video Clip: 10 Tips About Collaborative Practice Agreements

video thumbnail of lawyer talking with his hands in boardroom

Wednesday’s Video Clip: 10 Tips About Collaborative Practice Agreements 

1. How does collaborative practice work? 5-Step Roadmap:

STEP ONE: Establish a Foundation

STEP TWO: Gather and Exchange Information

STEP THREE: Identify Choices and Options

STEP FOUR: Evaluate the Consequence

STEP FIVE: Come to a Decision and Implement an Agreement

infographic of the collaborative process as a roadmap

2. The process is voluntary as set out in the cp agreement. Parties are expected to engage in the spirit of compromise.

3. We focus on goals and interests.That is specifically set out in the collaborative practice agreement.

4. Both lawyers and their clients agree not to take advantage of each other’s mistakes. So if a mistake is made the lawyer is expected to identify it to the other party.

5. Neither lawyer will go to court should the process fail. If the process fails, the parties must retain new lawyers to take the matter to court.

6. The lawyers still function and give legal advice. They have the responsibility to diligently represent their clients.

7. Lawyers may engage other professionals. For example, we may bring in a Neutral Family Professional or Neutral Financial Professional to assist and join the Collaborative Team.

infographic to show the full collaborative family law team members

8. Both parties are expected to make full and timely disclosure by providing all information both parties need to make an informed decision.

9. All communication within the collaborative process is considered confidential. The expectation is that information gathered through cp isn’t going to be used later in a court setting.

10. If an agreement is put in place, signed by parties and their lawyers, that agreement will be enforceable and can be later used in court if necessary. You are expected to live by the agreements that you sign in the collaborative process.


At Russell Alexander Collaborative 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

Dad Wrests Custody from Mom After She Alienates the Kids from Him

Dad Wrests Custody from Mom After She Alienates the Kids from Him

The parents married in 2007, and had two daughters. In 2016 they separated very acrimoniously, and the court ordered the children to live primarily with the mother pending a later determination of their fuller issues. The father as given generous access on a set schedule.

At that later hearing, the mother asked for joint custody but with the added stipulation that the children would live with their father only on a limited basis, pursuant to a set schedule. In a somewhat unusual move, the father asked the court to change the status quo so that he had sole custody, with an equal timesharing agreement during various set days.

According to the father, the basis for this request was that the mother had used the time since their separation to intentionally alienate the children from him, and to relegate him to a small role in their lives and upbringing.

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The court heard that even during the marriage the father had tried to be actively involved with the children, but that the mother had made all the decisions about their care. In the court’s words, she “attempted to dominate all aspects of the children’s lives and attempted to reduce the [father] to a spectator regarding his own daughters”. This changed only when it suited the mother’s needs, and in the father’s view it only got worse after they split up.

For instance, he claimed that since separation she blocked him from having overnight access, even though he lived with his parents in a five-bedroom home that the family had occupied during the marriage. She suddenly and unilaterally terminated his right to pick up the children from school. She refused to allow him summer access, forced him to go to court three times over that issue – and then did not even show up for one of the court hearings.

The father also accused the mother of thwarting the children’s everyday interactions with him. Since separation, he still encouraged the children to call their mother during every one of his access weekends; conversely, he had received only two calls in the entire time they were with her. The children were also encouraged to keep secrets from the father, and were coached not to eat meals with him on those limited days during the week when he had access. The mother also did not inform the father of any medical, dental or counselling appointments, even though she had been ordered by the court to do so. Finally – and tellingly in the court’s view – she also insisted that the father’s weekend access be interrupted so that she could take the eldest child to piano lessons on Saturday mornings, and to her church on Sunday mornings.

The court found this collectively indicative of the mother’s “selfishness and lack of appreciation of the role that the [father] plays in his own daughters’ lives.”
The court added that both parents clearly loved the children, and both had the requisite parenting skills. But while the father’s overall conduct was geared towards the children’s best interests, the mother’s conduct was not. Joint custody was not appropriate, since the mother had not been willing to cooperate and make joint decisions. As the court explained:

The [mother] does not value and recognize the [father’s] crucial role in the lives of the two children. The [mother] is self-centred and only considers her best interests and not those of her children. Rather than embrace the [father’s] involvement in the children’s lives, the [mother] has attempted to minimize and restrict his involvement in major decisions affecting the girls and in a parenting scheme that is in the girl’s best interests.

The court accordingly ordered that it would be in the children’s best interests that there be shared physical access to the children, but that the father should have sole custody. Although the father was required to consult with the mother prior to making any final decisions, in the event of a dispute, he was granted the right to make the final decision. Otherwise, the children would reside equally with both parents on a stipulated, strict schedule.

For the full text of the decision, see:
Pryce v. Pryce, 2019 ONSC 3558 

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

Domestic Contracts 101

Domestic Contracts 101

The term “domestic contract” is one used in the Ontario Family Law Act (FLA) to cover a wide variety of agreements between partners, parents, and spouses.

What many people may not recognize is that domestic contracts are subject to certain rules around how they are made, what they can apply to, and how they can be overridden, changed or terminated.

Couples usually find this out the hard way, after trying to do their own negotiating and drafting because they want to avoid having to pay a lawyer to do it.  Unfortunately, these well-intentioned Do-It-Yourself attempts often go wrong, and end up creating legal problems which cost time and money to resolve.

Here is a brief primer on the topic of domestic contracts under Ontario law.

  • A “domestic contract” is a defined concept. Under the FLA, it means any of the following:
    • a marriage contract,
    • separation agreement,
    • cohabitation agreement,
    • paternity agreement or
    • family arbitration agreement.
  • Each of these sub-types is subject to certain legislated rules. For example, a “cohabitation agreement” is defined by the FLA to be an agreement entered into by “two persons who are cohabiting or intend to cohabit and who are not married to each other.”  The agreement can cover their respective rights and obligations during cohabitation or after they stop doing so, and can include topics such as:
    • ownership in or division of property,
    • support obligations,
    • the right to direct the education and moral training of their children, but not the right to custody of or access to their children, and
    • any other matter in the settlement of their affairs.

Plus, if two people have a cohabitation agreement and they end up getting married, it gets converted into a marriage contract.

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Each of the other categories of domestic contract (listed above) is also subject to detailed rules.

  • There are prescribed rules around how they are made and enforced. Specifically:
    • A domestic contract has to be in writing, signed by the parties, and witnessed.
    • A domestic contract that deals with a matter that is also dealt with in the FLA prevails over that legislation, unless the FLA provides otherwise.
    • A minor (i.e. someone under the age of 18) can enter into a domestic contract, subject to the court’s approval either beforehand, or after it is made.
    • A domestic contract can be filed with the court by one of the parties to it. Once this is done, it can be enforced, varied, or recalculated as it relates to financial support or maintenance of the adult partners.
  • Provisions can be set aside or overridden. No matter what the couple may intend, the court has certain power to set aside the provisions of their domestic contract in prescribed circumstances. For example:
    • A court can set aside a domestic contract if one of the parties failed to disclose significant assets, debts or liabilities that existed when the contract was made, then the court can set the contract aside.
    • A provision in a domestic contract between parents that relates to a child’s custody/access, education, or moral training can be disregarded by a court if doing so is in the best interests of the child, in the court’s opinion.
    • Likewise, a provision in a domestic contract between parents that relates to a child’s support can be disregarded or overridden if it is unreasonable having regard to the Child Support Guidelines.

With these essential points around domestic contracts in place, in an upcoming Blog we will take a closer look at some interesting cases in which these provisions were examined or clarified by the courts.

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

Why Bother with a Marriage Annulment, Instead of Divorce? The Answer Lies in Canada’s Religious and Cultural Diversity

Why Bother with a Marriage Annulment, Instead of Divorce? The Answer Lies in Canada’s Religious and Cultural Diversity

In this day and age where divorce is increasingly common and bears little lasting stigma, you may be wondering why an unhappily-married couple would bother with a marriage annulment, rather than just get divorced.

To be clear:  An annulment is the legal remedy in which a court declares a marriage null and void on certain grounds.  In this context, a “void” marriage is one that, in the eyes of the law, never existed in the first place.

By contrast in a divorce, the court declares the valid legal marriage to be formally ended.

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It may seem like a distinction without a meaningful difference.  Why does modern Canadian law still need to bother declaring marriages void in some cases?

The court in a decision called Lowe v. A.A. has the answer.  In the course of its ruling, it took a moment to reflect on the purpose and modern relevance of marriage annulments.  The court observed:

The law of annulment may seem outmoded. Much of the case law in this area dates back to an earlier time when divorce was less accessible. Indeed, the statutory basis for annulment – the Annulment of Marriages Act (Ontario) (“the Act”) – expressly adopts the laws of England as of 1870. It has not been updated since that time by Canadian legislative enactment. Given the relative ease with which parties to a marriage can obtain a divorce today and the decrease in stigma in many sectors of society of being a divorced person, it might at first appear that an understanding of the law of annulment is no longer a necessary part of a family lawyer’s toolkit.

The court then notes that – on account of Canadian cultural diversity around marriage – the laws on marriage annulment remain relevant.  It said:

 A review of the case law, however, shows this is not the case. Due perhaps to the increasing pluralism of today’s society, Canadian courts are not infrequently asked to resolve issues involving families with diverse cultural and religious norms surrounding marriage. These cases include foreign marriages entered into in jurisdictions where polygamy is considered legal, as well as cases where a marriage is not deemed formally entered into by the same criteria as in Canadian law.

Finally, annulments remain useful in cases of deception of one new spouse by another.  The court said:

 Annulments have also been sought where a spouse is misled or deceived into entering into a fraudulent marriage.  Furthermore, because divorce may still carry stigma in some communities, annulment, where it is available, may be a preferred legal mechanism for ending a marriage. For these additional reasons, in my view, the distinction between annulment and divorce remains relevant and worthy of current articulation.

For the full text of the decision, see:

Lowe v. A.A., 2018 ONSC 3509 (CanLII)

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

Case Involving Wealthy Indigenous Businessman is Testing Appeal Court’s Patience

Case Involving Wealthy Indigenous Businessman is Testing Appeal Court’s Patience

For those of you following the continuing saga in the Beaver v. Hill case, it looks like the courts’ collective patience for the seemingly-endless volley of litigation tactics is growing thin.

We have provided coverage of only some of the prior court rulings in this case’s protracted history here and here, and here.

The litigants are Ken Hill, a wealthy Indigenous co-owner of the largest cigarette company on the Six Nations reserve, and his former romantic partner, Brittany Beaver.  At the outset of the litigation, she asked the court to order Hill to pay almost $86,000 a month in spousal support, and $33,000 a month in child support for a child they had together. Hill earns about $2.1 million per year, tax-free.  The matter has since become bogged down in various procedural and tactical legal wrangling between the parties, requiring numerous court appearances.

In the most recent one before the Court of Appeal, the three-member panel was asked to rule on several esoteric arguments – all of which were dismissed outright.  In doing so, Justice Brown on behalf of a unanimous Appeal Court wrote:

The history of this litigation has been described in decisions of this court and the Superior Court of Justice: 2018 ONCA 816 (CanLII), 428 D.L.R. (4th) 288; 2017 ONSC 7245 (CanLII)2018 ONSC 7138 (CanLII), 144 O.R. (3d) 46. It need not be repeated.

In its October 12, 2018 reasons, this court, at para. 78, described the procedural history of this matter and issued the following caution and direction:

This case has developed into a procedural morass, to which both sides have contributed. A phalanx of lawyers appeared before us. The parties have made no effort to save expense or time as required by [the Family Law Act (“FLA”)]. Their tactics have led to a proliferation of materials, skirmishes and arguments that the Rules seek to avoid. This must not be permitted to continue.

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Last August, Pazaratz J. was designated as the case management judge for the FLA Proceeding. In his November 27, 2018 Settlement Conference endorsement, he made two comments, neither of which disclosed the content of the settlement discussions, but both of which described the conduct of the parties in this litigation. He wrote:

I am led to conclude that cumulatively there is little indication of good faith efforts being made by anyone.

I have no control over what happens with respect to appeals, but I would ask that any judges hearing any pending appeals be mindful of the absolute frustration being experienced at this level. These parties just want to litigate, and as a judicial system we need to be delivering a consistent message that we’re not going to tolerate or facilitate such a wasteful and destructive approach to important and sensitive family law issues.

On January 16, 2019, at the conclusion of a third full day of conferencing, Pazaratz J. wrote:

At the end of three long days in October, November and now today, I have advised counsel that I am of the view that there is no demonstrated desire or intention to resolve any issues or even narrow the issues.

Given those comments by the case management judge, it is evident that the parties have not listened to this court’s caution nor followed its direction. That is the background to the three matters argued before this court on June 6, 2019.

After a detailed ruling on several points of appeal, Justice Brown dismissed them all and added the following:

  1.   FINAL COMMENT

I conclude with a comment about the process that has brought these two appeals before us. As mentioned, in its October reasons this court stated that this case has “developed into a procedural morass.” Both appeals are examples of that morass. In both appeals, Mr. Hill has attempted to challenge orders made below by resorting to indirect, convoluted procedural tactics, instead of taking the direct routes of review open to him under the Family Law Rules and Rules of Civil Procedure. Such tactical indirectness not only drives up the parties’ legal fees, it also delays bringing certainty to the life of a 9-year old boy whose best interests seem to have been completely lost in the high conflict litigation battle between his father and mother.

I repeat what this court directed eight months ago: “This must not be permitted to continue.”

It is a fundamental principle of our Canadian justice system that everyone is entitled to his or her “day in court”.  The parties in Beaver v. Hill have now had dozens and dozens of days.   The courts tasked with presiding over those hearing days seem to be collectively saying: “enough’s enough”.

For the full text of the latest decision, see:

Beaver v. Hill, 2019 ONCA 520 (CanLII)

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

Couple Ask Court to Declare Their Marriage Void – So That They Can Marry Each Other a Second Time

Couple Asks Court to Declare Their Marriage Void – So That They Can Marry Each Other a Second Time

A few months ago, we reported on a decision that required the court to untangle the complicated love-life a thrice-married man.

In another recent case, a married couple named Elizabeth and Patrick mutually asked the court to declare them “un-married” by way of an annulment – but only so that they can get married to each other again.   Turns out they had recently received a surprise from Canadian immigration officials, advising them that Patrick was ineligible to sponsor Elizabeth to immigrate to Canada as his wife, because he was still married to someone else.

Patrick’s first wife was a woman named Yao, whom he had met and married in 2011.  They separated in 2012, and he started divorce proceedings a year later.  He had not year from her in several years, and both he and Elizabeth assumed that the marriage had been validly dissolved when they tied the knot in August of 2017.  Soon after, Patrick applied to sponsor Elizabeth as his spouse for immigration purposes.

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However – much to the newlyweds’ surprise – they received correspondence from Immigration, Refugees and Citizenship Canada that Patrick was not eligible to sponsor Elizabeth because his earlier marriage to Yao was still in-force.    It turns out the divorce had never been finalized because Patrick’s lawyer was having trouble locating Yao.  It was only two years after their wedding to Elizabeth, in 2019, that Patrick was able to get a Certificate of Divorce that formally ended his first marriage to Yao.

Elizabeth and Patrick therefore asked the court to declare their 2017 marriage a nullity, which ironically would allow them to get married again, and would allow Patrick to apply a second time to sponsor Elizabeth for immigration.

This request for an annulment prompted the court to review the provincial and federal legislation that allows a court the authority to annul a marriage, and that prohibits a person from contracting a new marriage until every prior one is dissolved by death, divorce or court order.  The court also noted that one ground for an annulment is that there is a prior marriage still in existence.

The court therefore granted Patrick and Elizabeth’s request, on consent.  It declared that their 2017 marriage was void, because at the time the ceremony took place he was still legally married to Yao. They were thus free to marry each other again, thereby satisfying immigration authorities in the process.

For the full text of the decision, see:

Arevalo v. McHenry, 2019 

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

Woman Loses Support Bid from Man with “Harem” of Others

Woman Loses Support Bid from Man with “Harem” of Others

In an Ontario case involving unmarried romantic partners, the court was asked to examine the contours of precisely when a dating relationship turns into something more – at least in the eyes of the law.  The court began its judgment this way:

 Can a romantic partner – even one in an apparently close and loving relationship for several years – make a claim for dependant relief without establishing that she actually lived together with the deceased for at least three years?  In my view the answer is that she cannot. 

The partners were a man named Jeffrey and a woman named Branislava.  Although they had been together romantically for seven years, the court concluded that they kept separate residences and never officially “lived together”.  Jeffrey died of an apparent heart attack on New Year’s Even in 2016, at age 63.   His Will, which was made a full three years after their relationship started, did not make any provision for Branislava.

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In this context, Branislava was asking for “dependant’s relief”, which is a right based in provincial Estates law.  Since Jeffrey had not adequately provided for her in his Will, Branislava might be entitled to financial support from his Estate if she could prove that she was his “dependent” in the years before he died.  That term is defined by statute to include a common-law spouse.

The court was left to examine the relationship history between the couple, and heard evidence of people who knew them.  One of them was a platonic female friend of Jeffrey’s, Ms. Wolfe, who offered insight as to how Jeffrey viewed the connection:

[The female friend] Ms. Wolfe first met Jeffrey in 2001 when she met him on a Jewish dating site.  While they did not ultimately become romantically involved, they did become close friends.  Jeffrey confided in her and shared intimate details of his life with her, including details of his relationship with what he sometimes jokingly described as his “harem” of women.  He certainly felt close enough to Ms. Wolfe to name her as his executrix.  Ms. Wolfe was in almost daily contact with him.  She invited him over for Sabbath dinners or for High Holiday celebrations. 

Ms. Wolfe described Jeffrey as being something of an eccentric.  This eccentricity manifested itself in a number of ways.  For example, he feared being bitten by mosquitos and often wore protective clothing.  He was wary of travelling in cars and he sometimes purchased new tires for his girlfriends to ensure they were safe.  He had established something of an on-line religion through a web site that he sought to leave in his will to, among others, Mark Zuckerberg (there is no evidence that the two were acquainted in any way).  He lived alone in a cluttered, ill-kept three bedroom apartment.  There is no visible sign of it having been occupied by anyone other than Jeffrey.

While eccentric, Jeffrey was also a very charming and even charismatic man.  He formed a number of close relationships with women, some of whom he met in on-line dating sites.  He maintained his on-line dating membership right up until the time of his death.  Not all of these were sexual relationships, but he described himself to Ms. Wolfe as promiscuous.  He was generous with his female friends and there were several of them.  On January 22, 2016, the deceased wrote a handwritten note for a file he kept in his apartment called “Branislava” naming some of them:  Alla, Olga, Charlie, Falicia, Chauntelle.

In looking even more closely at the nature of the relationship between the parties, the court took the following approach:

The real world of human relations more closely resembles a spectrum than a well-ordered world of binary certainties.  A myriad of close relationships exhibiting some elements of dependancy exist in the world of real people leading real lives.  The inquiry I must undertake cannot be reduced to a simple checklist.  While it is clear that the substance of the relationship needs to be examined, that examination must proceed in the light of the minimum requirements of the legislation. 

On the evidence, the court rejected Branislava’s suggestion that Jeffrey gave her up to $10,000 per month in financial support while they dated, or that he paid her rent.  He was certainly generous to her, using income he had inherited from his own father’s $40 million Estate. But he never took financial responsibility for her, nor encouraged her not to work and to be dependent on him.

Also – and especially in light of their separate living arrangements — Branislava also did not meet the definition of “spouse” so that she qualified as a dependant. The mere fact that they had a close and loving relationship, or that they were sexually intimate, was not sufficient to meet that threshold.

In the end, the court ruled that Branislava was not entitled to support from Jeffrey’s Estate.  (She later appealed unsuccessfully to the Ontario Court of Appeal, and her motion to extend the time to file leave to appeal with the Supreme Court of Canada was dismissed.)

For the full text of the decisions, see:

Stajduhar v. Wolfe, 2017 

Kerzner Estate, 2018 

Branislava Stajduhar, et al. v. Arlene Wolfe, executrix of the Estate of Jeffrey Kerzner, 2019 

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 Says: Being Abusive to Your Child’s Other Parent = Bad Parenting

mom holding baby looking out window

Court Says: Being Abusive to Your Child’s Other Parent = Bad Parenting

In a recent Ontario decision involving a child custody and access determination, the court made a rather sweeping – though likely not incorrect – conclusion:

“[A]busing the other parent of your child be it verbally or in writing, is bad parenting.”

The facts of the case were chronicled in a prior Blog. They featured a father who asked the court to rule on the appropriate level of access he should be given to his child, who was now 5 years old.

The complicating factor was the nature of the father’s relationship with the child’s mother: He had been persistently abusive to her both verbally and emotionally, and took every opportunity to act vindictively toward her. Especially in his email and text conversations, he called her names like “bitch and “idiot” and engaged in blaming and manipulative behaviour. The court summed up this collective correspondence as being “extremely offences and abusive” and “vile and abusive”.

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Now that he was before the court to ask for access rights, the father claimed to have reformed himself. But after looking at a detailed chronicling of the incidents between them, the court found otherwise. It stated:

The court finds that there is no evidence to demonstrate that the father’s attitude towards the mother has changed in any significant way. While he says he has changed and that there is little recent evidence of inappropriate behaviour by him towards the mother, it was readily apparent during his evidence that he sees himself as the victim and the mother as the villain and that this belief system informs his judgment and decision making process.

Importantly, the court reflected on how the father’s continued abusiveness impacted on his ability to parent his child, especially in a shared parenting model which would require cooperation and communication between him and the mother. The court explained:

The court finds the father’s conduct towards the mother to be highly concerning. As difficult as the situation is between the parties and acknowledging that conflict between separated parents can create a heated and emotional environment, [the law] mandates the court not to treat this level of vitriol as typical or acceptable. What must be acknowledged is that this is very poor parenting. The way in which the parents treat one another goes directly to the issue of parenting. The court must acknowledge that abusing the other parent of your child be it verbally or in writing, is bad parenting. If this is how the father communicates when he feels the need to assert himself with the mother, how will these parents function in a shared parenting arrangement that will most certainly require frequent contact?

Perhaps the court’s conclusions simply accord with common sense. But while many child custody / access cases end up tainted by acrimony, parents seem to overlook the simple correlation between mistreating the other parent, and demonstrating to the court that their own parenting skill and judgment leaves something to be desired.

The decision in V.P. v. D.M. helps to make that connection clear. Hopefully more separated and divorcing parents will hear that message well in advance of their child custody hearings.

For the full text of the decision, see:

V.P. v. D.M., 2019 ONCJ 289 (CanLII),

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

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