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Posts tagged ‘Separation Agreements’

Indigenous Father Appeals Ruling Giving Ontario Courts Jurisdiction Over Mother’s $117,000 Monthly Support Claim

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Indigenous Father Appeals Ruling Giving Ontario Courts Jurisdiction Over Mother’s $117,000 Monthly Support Claim

Late last year, I reported on an unusual Ontario family law decision called Beaver v. Hill, in which the issue was whether an Indigenous former couple’s family dispute should decided pursuant to the laws that govern their particular clan, rather than by the family laws of Ontario.

The man, Ken Hill, who is a wealthy Indigenous co-owner of the largest cigarette company on the Six Nations reserve, had resisted his former romantic partner Brittany Beaver’s claim for almost $86,000 a month in spousal support, and $33,000 a month in child support for the 8-year old child they had together.   Hill earns about $2.1 million per year, tax-free.

Among Hill’s arguments to the Ontario court was that his Indigenous Haudenosaunee laws should be applied to decide the support claims by Beaver against him.  That court dismissed his argument.

Now, Hill has filed an appeal which includes a Charter challenge to be heard by the Ontario Court of Appeal.

Hill intends to argue that the decision to allow the Ontario family courts to decide the dispute between him and Beaver would violate the constitutional rights of Indigenous peoples.  In Hill’s view, the family-related disputes of the Haudenosaunee people should be resolved according to their own laws and governance.

Hill’s appeal is slated to be heard by the Ontario Court of Appeal in June of 2018.

For the full-text of the lower court decision currently under appeal, see:

Beaver v. Hill

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 Rules Kids’ “Adaptability to Change” Is a Factor Letting Him Move with Mother to the U.S.

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Court Rules Kids’ “Adaptability to Change” Is a Factor Letting Him Move with Mother to the U.S.

In a recent Newfoundland decision, called Sexton v. Tipping, the court made what is arguably a sensible and realistic observation about children’s adaptability to change, especially at a young age, and how that can bolster a court’s decision-making on factors relating to custody and primary care.

In that case, the court wrote:

It is a reality of the times in which we live that many couples with children come together through partnership or marriage, separate or divorce after a period of time and then move on with their lives. … The crux of these scenarios is change – for the parents and for the children.

Change is a constant in all our lives. As a general principle, children are adaptable in their lives. They change communities. They change schools. They change friends. Many change families, not because of their actions but because of the actions of their parents. That has happened in this matter.

On the facts of that case, the court took comfort from that reality as part of its rationale for allowing a change to the custody arrangement. In light of the child’s best interests, he was placed in the joint custody of both parents, but would have primary residence with his mother, who was allowed to relocate to Arizona with the boy.

Arguably, for any child the move to an entirely new country is quite a drastic change. Yet the court seems to be saying that divorce, separation and changes to family dynamics are so commonplace in “the times in which we live” that the seriousness of its impact on children may have been diluted, especially for the younger ones.

Should the reality of widespread divorce and broken families in our society diminish court’s focus on the “best interests of the child,” which legislatively-mandated to be the paramount criterion in child custody and access matters?

What are your thoughts?

For the full text of the decision, see: Sexton v. Tipping

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

Self-Represented Litigants:  Doing the Math on “Counsel Fees” For Yourself

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Self-Represented Litigants:  Doing the Math on “Counsel Fees” For Yourself

More and more, Family litigants are opting to represent themselves in court, and in legal proceedings generally. As I have written before, this can raise the related issue of whether these litigants are entitled to fees – meaning the legal fees they would have paid to a lawyer to represent them, instead.

Courts have had to grapple with the issue on some occasions. Some years ago, in a case called Fong. v. Chan the Ontario Court of Appeal confirmed that self-represented litigants are indeed entitled to claim for fees in principle – but on a reduced scale.  And as I illustrated in a more recent blog the assessment is based on the court’s evaluation of the litigant’s “performance” in that self-represented role, which requires assessing his or her level of preparation, the attempt to make a coherent case, organize the materials, and marshal the evidence.

With those principles and factors established, the court must still go on to put a practical, dollar-value on the costs figure to which the litigant is entitled.  In a case from a last week called Roach v. Lashley, the court illuminates the mathematical part of the exercise.

There, the woman in a Family law case represented herself and in terms of the final outcome, was the successful party overall.  The court adjudged her as being entitled to her costs of trial.  The question was what her properly hourly rate should be – she had claimed $75 per hour (or $600 for an 8-hour day) for appearing in court and for out-of-court trial preparation. These were to cover her own costs as a self-represented party.

Unfortunately, there has never been a set rate established; a few years ago, in a case called Blustein v. Kronby the court set what it termed a “now-accepted rate of $60 per hour for self-represented litigants”.  Yet another case from around that same time, Jahn-Cartwright v. Cartwright, the court allowed a layperson litigant a fee of $200 an hour, but deducted the income that the person would have lost for attending in court anyway.

The court noted that the hourly rate of self-represented litigants must be set with reference to the skills and trial presentation by the self-represented person, especially in light of the complexity of the case.  It also noted that the Family Law Rules did allow courts to assess costs based on “lawyer’s rates” as well as the “time properly spent on the case”.

Returning to Roach v. Lashley, the court praised the woman as having “demonstrated a surprising degree of skill in preparing for and conducting her case at trial.”  This included preparing the financial documents the court needed to assess child support, organizing her documents, and providing a Net Family Property statement. She also conducted an effective cross-examination of her former partner, and managed to establish and prove the value of assets that he himself had not provided even as late as the eve of trial.  It was as complicated for her to do this as it would have been for any lawyer that she hired.

With all this in mind, the court found that the woman’s proposed $75 per hour as a so-called “counsel fee” was entirely reasonable, as was the 35 hours of trial-preparation time that she claimed.  However, the court did deduct an amount representing the loss of income for each day of trial, since she would have had to show up for it whether she had a lawyer or not.  The woman disclosed that this amount was $300 per day.

In the end, the court awarded her $300 per day for trial attendance, and $75 per hour for trial preparation.  She was also entitled to another $150 for preparing the Bill of Costs and her costs submissions.

For the full text of the cited decisions, see:

Roach v. Lashley

Fong v. Chan

Blustein v. Kronby

Jahn-Cartwright v. Cartwright

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: How Family Run Businesses can Survive and Thrive after Divorce


Wednesday’s Video Clip: How Family Run Businesses can Survive and Thrive after Divorce

One of the common fears of clients who own family-run businesses is how a divorce will affect the business they have spent their life building. While business owners have control over the work they put into their business and the legacy they are building for their family, they may have little influence over a relationship breakdown. The worry in regards to the effects of this breakdown on a business can cause additional stress above and beyond the heartache associated with restructuring a family.

In many family law matters involving children, the spouses are able to agree to cooperate in order to address the best interests of the children. In many ways, a family business can be used as a similar incentive: spouses can agree to cooperate in order to address the best interests of the family business. While fueling conflict is an almost unavoidable side effect of the court system, a collaborative approach is a very effective method in reducing the impact of separation and divorce on family run businesses. This process seeks to ensure that the business remains viable for both spouses, as well as future generations.

As an alternative to a purely rights based approach, other options can be considered in the collaborative approach, including:

• Family trusts or holding companies as a method of sharing income from the family business

• Tax planning, avoiding the possibility of triggering a Canada Revenue Agency audit

• Considering the formation of a new family trust

• Employment of children in the family business • Estate, succession, and capacity planning

• Ensuring insurance is in place to cushion the effects of any risks

• Gifting shares or portions of the family business to children or other family members

• Maintaining the privacy of the family business

• Managing the continuation of income streams

• Splitting income among family members • Delaying equalization or sharing business payments (i.e: if and when the family business sells)

• Preserving the family legacy for generations

• Recognizing and predicting the ebb and flow of the market and business patterns

Unlike the court system, the collaborative process is unique in that it offers the additional benefit of involving neutral professionals.

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

Obstinate Father Pays the Ultimate (Litigation) Price

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Obstinate Father Pays the Ultimate (Litigation) Price

Even the most acrimonious of court disputes between former spouses hinges on a premise: That, having agreed to give the court power to settle their dispute once and for all, the spouses will each obey any orders the court eventually makes.  Otherwise, there is no real point in both parties showing up to participate.

In a very recent decision by the Ontario Court of Appeal in Del Vecchio v. Del Vecchio, the husband stubbornly refused to play by that simple rule – and the court had no choice but to eject him from the process.  The court set the stage:

This contentious family law litigation has been ongoing for much longer than it should primarily because of the [husband’s] refusal to obey orders of the court.

The court itemized some of those defalcations on the husband’s part:

  • He did not pay child and spousal support arrears as he had been ordered to do, nor did he ask for extra time to pay.
  • He was ordered to pay costs to the wife on numerous occasions, arising out of unsuccessful motions on his part. He never paid them.
  • He repeatedly failed to file materials in satisfaction of his financial disclosure obligations, by ignoring court orders to file financial statements, his tax returns, and to obtain an expert valuation of his businesses and investments.
  • Other materials that he did file, under compulsion, were late and incomplete.
  • He delivered a court-requested expert report long after the deadline, but it still had a good deal of information “unfinalized” and pending.
  • He did not follow proper procedure for appealing, missed the deadline to do so, and did not ask the court for a filing extension.

In short, throughout the proceedings the husband wholly failed to comply with court orders and – even giving him the benefit of the doubt – never asked for extensions so he could do so.  Nor did he bring any appeals of those orders, as he could have done if he took issue with their substance.

The court noted that the husband’s pleadings were struck once previously in the same litigation, two years earlier, but he was given another chance.   A year later he was on the brink of having his pleadings struck again, and was warned by the court that there would be no additional chances given unless he fulfilled certain obligations, including paying outstanding costs.  Yet again, the husband still failed to comply.

It was at this point that the wife successfully “pulled the trigger” on asking the court to strike his pleadings. Only in response to that motion did the husband finally take some concrete steps: He filed a few documents and said he paid the arrears, but claimed there was some “mix up” at the Court administrative so that his payments were not credited.  The court did not buy it:

The [husband] was given numerous chances to comply with and meet his obligations – he simply refused. Not until the very last minute did he take any steps to attempt to show he was not in arrears in respect of the support orders. He still had not complied with the obligations requiring financial production and unilaterally reduced his support payments. He remains in serious violation of a number of court orders.

The court added:

The only reasonable conclusion on all the evidence before this court is that the [husband] simply does not accept that he is in arrears of support. … He is mistaken. He remains in non-compliance to this date. He has had many, many chances to rectify his situation but refused to do so. If court orders are to have any meaning they must be respected.

The court upheld the prior ruling to strike the husband’s pleadings, and confirmed that the wife would be allowed the wife to go forward without his participation in the proceedings, in an uncontested trial.

Bottom line:  In Family Court, have to play by the rules.

For the full text of the decision, see:

Del Vecchio v. Del Vecchio

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

 

Being Self-Represented:  Is it an Excuse for Not Knowing Court Procedure?

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Being Self-Represented:  Is it an Excuse for Not Knowing Court Procedure?

If you have missed a court deadline, or if you were confused or unaware of proper legal procedures, is being self-represented a valid excuse? Will the court cut you some slack?

According to two fairly recent Ontario Court of Appeal decisions, the answer is a clear “NO.”

In the first case, called Carpenter v. Carpenter, the Court of Appeal had to consider whether to extend the lapsed deadline for the husband to appeal an earlier order in his family litigation.  The order he was trying to appeal from saw his court pleadings struck out entirely, for his failure to comply with an earlier court directive requiring him to pay $2,000 in costs within 10 days.

The husband was currently self-represented, but he had hired a lawyer during earlier stage of the litigation and was still receiving some limited advice from her along the way.   He missed the appeal deadline at a time when he was acting for himself.

In this scenario, the court said:

The fact that Mr. Carpenter was self-represented does not excuse his failure to comply with the necessary time limit or, once he was aware of the Final Order, to move promptly for an extension of time. Any participant in litigation, including a self-represented party, has a responsibility to familiarize himself or herself with the procedures relevant to the case. … As such, the fact that Mr. Carpenter took several months to seek out and then retain counsel to bring this motion is an answer but not a full and satisfactory explanation for his delay.

In making this declaration, the court drew from another recent Appeal Court decision in a civil case called McDowell v. Cavan-Millbrook – North Monaghan (Municipality), where in the process of rejecting the litigant’s excuse for his ignorance as to procedure, stated:

The appellant argues that being self-represented, he was unaware of certain procedural steps …. The court system often presents considerable challenges to people who are unrepresented by counsel. Participants in the justice system should not be denied relief on the basis of a minor deficiency. That said, a participant, including a self-represented party, has a responsibility to familiarize him or herself with the procedures relevant to the case. Here the delay was indeed inordinate and prejudicial, and resulted in a substantial risk that a fair trial would not be possible. The appellant’s conduct cannot be excused simply because he was self-represented. This would work an injustice to the respondent and to other participants in the system.

These Ontario Appeal Court rulings making it abundantly clear:  Representing yourself is not an excuse for being unaware of court procedures and deadlines.   Self-represented family litigants, take note!

For the full text of the decisions, see:

McDowell v. Cavan-Millbrook – North Monaghan (Municipality)

Carpenter v. Carpenter

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

 

 

 

Does Husband’s Bankruptcy Suspend His Obligation to Pay Costs Order in Wife’s Favour?

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Does Husband’s Bankruptcy Suspend His Obligation to Pay Costs Order in Wife’s Favor?

Here’s a legal scenario to consider:

  • The husband in a divorce proceeding is ordered by the court to pay $35,000 in legal costs to the wife. He fails to pay – or even to make any attempt to pay.
  • The wife succeeds in getting a court order to have the husband’s pleadings struck out entirely, for failure to pay the ordered costs. The court also orders that he be prevented from participating in the trial going-forward (e. he cannot testify, call or cross-examine witnesses, or make submissions).
  • However, given the drastic outcome, the court gives the husband a little extra time to pay the $35,000 before finalizing the part where his pleadings get struck out.
  • In the meantime, the husband makes an assignment in bankruptcy. He never does pay.

This was the situation in a case called Clark v. Moxley. The legal twist is that under Canadian federal bankruptcy legislation, all costs decisions against the husband were automatically stayed (i.e. suspended) the moment he declared bankruptcy.  After that point, creditors – including the wife with the $35,000 order in her favour – could no longer take individual steps to pursue payment from him, except via the trustee in bankruptcy.

So the legal question for the court was this:  If the wife was not in a position to enforce the costs order in her favour, did this still mean the husband’s pleadings could be struck out for non-payment?

Naturally, the husband was against this outcome:  He claimed that in light of his bankruptcy the order should not be given effect – especially since there were significant and serious custody / parenting issues outstanding, not to mention efforts on the wife’s part to exclude him from the child’s life.  If his pleadings were struck out, he would be alienated from the child.

Rather unsympathetically, the court noted that the husband was on the brink of a rather dire situation because of his own decision not to pay the ordered costs.  However, under federal bankruptcy law, that order was technically no longer enforceable once he assigned himself into bankruptcy.  That non-enforceability stripped the court of its legal justification to strike his pleadings.   Also, the husband’s bankruptcy had occurred before the motion to strike his pleadings was fully concluded.

The court therefore declined to strike the husband’s pleadings at this juncture.  It added the decision to strike pleadings is traditionally considered one of a last resort, to be used in a proportionate manner, and where there are no other remedies.

The court observed that the wife would still be eligible to fully participate in the husband’s bankruptcy proceedings, and to oppose his discharge from it.   If the costs survived the bankruptcy, then the court could still order the husband to pay them after-the-fact, or could ask for security for costs if the husband wanted to return to court to make a new application.

For the full text of the decision, see:

Clark v. Moxley

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 Says Kid’s Karate is OK, but MMA is Not; Court Rules on Special Expenses

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Father Says Kid’s Karate is OK, but MMA is Not; Court Rules on Special Expenses

As readers of my Blog will know, under the rules relating to child support in Ontario, parents are obliged to financially support their children, and this duty comes to the forefront when the parents are separated or divorced.

However, there are actually two distinct aspects of that mandatory child support:  1) The one for basic support that is set out in the Child Support Guidelines (CSGs); and 2) the “special or extraordinary expenses” that are allowed for in s. 7 of those same Guidelines.

“Special or extraordinary expenses” are defined to include items such as:

  • Child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment
  • The portion of the medical and dental insurance premiums attributable to the child
  • Certain health-related expenses
  • Extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs
  • Expenses for post-secondary education
  • Extraordinary expenses for extracurricular activities

If one parent refuses to agree to pay for a particular special expense, the other parent may have to apply to the court to have a judge make a determination, the legal test being whether it is both “reasonable” and “necessary” in the circumstances.

This was the situation in the very recent case of Newstead v. Hachey, where the court considered whether the child’s Mixed Martial Arts (MMA) training – which the mother had unilaterally enrolled him in – was justifiably a section 7 special expense.   Although the child was also enrolled in Karate, the father thought the MMA training was inappropriate because of its violent focus.  He continued to help pay for it under protest, but asked the court to decide.  The court explained:

While the husband is not happy with certain expenses being incurred by the wife for the children without his consultation or approval, he has not balked at paying.  … He did not agree with the wife’s decision to put [the son] into Mixed Martial Arts.  His view is that while Karate provided a benefit to the child, MMA is different as the only objective of the sport is to hurt or subdue the opponent.  He is afraid that sends the wrong message to [the son], who has had behavioral issues which times included aggression.  Still, despite his protests, the husband is not refusing to contribute to these expenses.

The court pointed out that section 7 of the Guidelines does require the parents to consult or agree to the MMA lessons, but it was a factor the court could take into account in assessing reasonableness:

Section 7 does not specifically require prior consultation for allowable expenses; the test rather is that the expense must be reasonable and necessary.  Section 7(1) of the CSGs says “the court may … provide for an amount”.  The relief, as such, is discretionary.  It follows that a failure or refusal by a claiming parent to discuss the expense with the other parent in advance could bear on the court’s exercise of its discretion in determining whether the expense is reasonable or, for that matter, whether it is necessary.

In the end, the court essentially allowed for the MMA expense to be shared in the overall support calculations, but admonished the wife that she could have those kinds of costs denied in the future simply because she failed to consult with the father beforehand.  The court said:

I encourage the parties and in particular the wife to have these discussions in advance, and simply caution both parties that how they approach future expenditures could impact whether they would be allowed by the court if contested.

For the full text of the decision, see:

Newstead v. Hachey

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 a common-law couple adopt a child?


 

Wednesday’s Video Clip: Can a common-law couple adopt a child?

In Ontario, common-law spouses have the same rights as married spouses to adopt a child; they are also subject to the exact same requirements. These include the requirement that they have both reached the age of 18, that they provide certain documents (e.g. medical reports, police clearance reports, letters of reference, financial statements, and similar) and that they participate in both a home study process and an education program. The home study may be completed either privately, or by a Children’s Aid social worker.

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

Despite Parent’s Objection, Court Grants Other Parent the Right to Move Child to Nova Scotia

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Despite Parent’s Objection, Court Grants Other Parent the Right to Move Child to Nova Scotia

In an interesting recent Court of Appeal decision, the court demonstrated the sensitivity with which custody applications must be assessed, particularly where one parent wants to move away with the child to a different province entirely.

The same-sex parents, Ms. B and Ms. R, separated after nine years of marriage.  Together they had a son who was currently 6 years old.  They went to court because they were in dispute over the boy’s custody: Ms. B wanted joint custody, and asked that the boy remain in Toronto where they had lived while they were a couple.  Ms. R wanted sole custody, together with the court’s permission to move with the boy to Nova Scotia, where her parents live and where the son had spent considerable time.

After a 7-day trial with 17 witnesses the trial judge granted Ms. R’s sole custody request, and allowed her to move to Nova Scotia with the boy. (The court did allow Ms. B reasonable access, but this was naturally constrained by the distance).  Ms. B appealed.

The Court of Appeal started by noting that traditionally the decision of a trial judge as to custody and relocation were given significant deference on appeal.   Still, the court reviewed carefully the trial judge’s ruling on the custody issue, and began its appeal decision with these comments:

Relocation or mobility cases, where one parent wants to take a child and move some distance away from the other parent, are among the most difficult cases in family law. If the custodial parent is permitted to move with the child, inevitably the relationship between the non-custodial parent and the child will be affected and may suffer. Typically the court must balance the custodial parent’s legitimate interest in relocating with the non-custodial parent’s legitimate interest in maintaining a relationship with the child. But in every case, the ultimate question is what is in the best interests of the child.

In reviewing the various facts, the Appeal Court noted that this was not a typical scenario; it was not a situation where allowing relocation will sever a longstanding bond between the son, Ms. B and her family.  For most of the boy’s life, he had no relationship at all with Ms. B’s family at all.   Moreover, the boy was familiar with Nova Scotia because he had spent a great deal of time there, and also enjoyed the support of his extended family and the community there.  Indeed – as the trial judge had concluded – from the boy’s perspective Nova Scotia was what is “known” to him.   The court added that since he was only 6 years old, the boy was at an age where adaptability to change was not as big a factor, and there would be less disruption now than when he is older.

The Court of Appeal also added that this was one of those exceptional cases where Ms. R’s reasons for relocating were to be considered. These included surrounding herself with the support of her family in friends in the East Coast, and making a physical move in the boy’s best interests to somewhere that he was familiar and had established connections.

Finally, the court observed that Ms. B would still be entitled to access to her son, even though it would require some effort and planning to see him.  The “maximum contact” principle, through which courts were encouraged to make custody/access rulings that fostered the access rights of the non-custodial parent in the most optimal manner, had not been overlooked by the trial judge here.  Importantly, both lower and Appeal Courts noted that there was no evidence that Ms. R’s proposal to move was motivated by a desire to shut Ms. B out of the boy’s life.

In the end, and having found that the trial judge sensitively balanced the two parent’s competing rights, the Court dismissed Ms. B’s appeal and confirmed the order allowing relocation, since it was in the boy’s best interests.

What are your thoughts?  Did both courts decide this correctly?

For the full text of the decision:

Reeves v. Brand

Lower court decision:

Reeves v. Brand

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