Jul 24
Wednesday’s Video Clip: Child Support and Access In Ontario
In this video we discusses child support in relationship to access rights. A parent cannot cut off contact to a child simply because child support is not being paid.
Jul 8
Summer Holidays – Top Three Custody/Access Tips to Consider
When you are the separated or divorced parents of children, the task of juggling custody can be difficult at the best of times. But the summer holidays – with the absence of school routines, the desire to maximize the time off, and the impetus to travel and enjoy the nice weather – can add further unpredictability to the situation.
Here are some timely tips to consider, when arranging summer custody schedules:
1. Always consider what’s best for the children.
This principle is certainly not limited to summer planning, but the desire to maximize travel and holiday opportunities can obscure its importance somewhat. Always keep in mind that switching between homes and travelling long distances can be hard on children any time of the year, but during the added free time of summer the inconvenience and stress can multiply.
2. Take into account the nature of your parenting relationship.
If you and the child’s other parent are in a high-conflict situation, and have difficulty achieving a successful day-to-day arrangement for custody and access, then it will come as no surprise that planning for the summer may be equally if not more challenging. Assuming that the arrangements are not already covered in a formalized parenting schedule, it may be worthwhile for you and the other parent to craft a separate negotiated agreement; it should ideally cover how custody, access, travel, camps, and other activities during the summer months will be handled, and how any desired changes are to be communicated to each other.
3. Plan well ahead.
Most separated and divorced parents have full-time jobs. This means that it will take some pre-planning and advance requests for vacation time from an employer so that you and your child’s other parent can each maximize the time you can spend quality time with your child over summer. This is especially true for parents of older children, who may be at the age that they are making some plans with friends in their own peer group. It may mean that you, the other parent, and the children have to sit down with a calendar early in the season and figure out what arrangements are feasible for the coming months.
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 www.RussellAlexander.com.
Ontario Divorce, Custody and Access: Who’s Is Entitled To The Child?
In this video lawyer Abi Adeusi discusses who is entitled to custody of the child, defacto custody, and mistake parents, often fathers, make regarding custody and the establishment of a status quo. She also explains the difference between custody and access.
Where Should Santa Take the Presents? Parents Battle for Christmas-Morning Access
Now that Christmas is officially over, it seems a more fitting time to reflect on the unfortunate fact that holidays and special events often pose a great deal of difficulty for separated and divorced parents of a child. This is because these special occasions are often viewed as having particular (and one might say, undue) importance to families and their sense of “tradition”, so the decision as to where a child will spend them can often give rise to heightened acrimony between already-embittered parents.
A decision from a few months ago called Curphey v. Aldebert illustrates this unfortunate reality all-too-well.
The father had asked the court for an order for Christmas access with his 5-year old child, Victoria, but only in alternating years so that the child could spend time with the mother’s side of the family as well. However, his main goal was to have the girl during holiday “prime time” every other year, i.e. from Christmas Eve at 4 p.m. to Christmas Day at 2 p.m.
The court explained the father’s position:
The [father] argues that it is in the best interest of the child (BIC) that she enjoys maximum contact with each parent at Christmas. Christmas Eve, in a young person’s world, features the anticipated arrival of Santa Claus and his reindeer, followed by the awakening on Christmas morning to discover presents under the Christmas tree. It is undoubtedly an important experience of childhood, to the extent that the BIC principal [sic] would argue in favour of allowing Victoria to live out that experience with both of her families. Those two families are the [father], his new partner and Victoria’s paternal half sibling on the one hand, and the [mother], her new partner and Victoria’s two maternal half siblings, on the other hand. In addition, the [father] argues that his proposal is inherently balanced and fair.
On the other hand the mother – who had sole custody — wanted the father to have access every year, and for an extended period, but only after Christmas morning, i.e. from December 25th at 2 p.m., until January 2nd at 2 p.m.
Her position was summarized as follows:
The [mother] points to the requirement for consistency in a young child’s life, and the importance of shared memories with siblings. She argues that a consistent and reliable Christmas experience, with traditional and recognizable activities of family gift exchanges, attendance at Christmas mass services and waking up on Christmas morning are in the BIC.
The court had to grapple with how to resolve this dispute. It started by observing that its role was not to weigh the parties respective wishes over how and with whom the child should spend the holidays; rather, it was to determine which of their proposals best promoted the child’s best interests. This was always the paramount consideration in such cases.
Next, the court observed that its ruling must take into account the reality of the situation: i.e. that the parents were separated and no longer living as a complete family unit as they had done before. It was therefore not realistic for one parent to insist on previous holiday traditions, activities and schedules when the other parent would no longer be participating.
The court summed it up this way: “Past family traditions, while important, are not binding.”
In the end, the overriding principle was that the child should have maximum contact with each parent. This in turn dictated that both the mother and father be given equal opportunity to share the Christmas Eve/Christmas morning time-period with the child. As such, the court had only one option: to order alternating access on a year-to-year basis. The court also incorporated various terms into its order, which allowed for some variation in future years, should the parties’ circumstances warrant it.
For the full text of the decision, see:
Curphey v. Aldebert, 2012 ONSC 4628 (CanLII) http://canlii.ca/t/fsjcc
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 http://www.RussellAlexander.com.
Mother Oblivious to Father’s Rights: Court Awards Him Custody of Child
In our recent article, Put the Batman Costume Away: Dad’s Poor Conduct Foils Custody Bid, we wrote about a case in which the parties’ egregious behaviour –particularly that of the father – had been instrumental in the court’s decision as to which of the two parents should be awarded custody of the children of the marriage. Unfortunately, these kinds of scenarios are all-too-common; this week’s other Blog is in a similar vein.
The parents in his case were married only 21 months, and had a daughter who was 20 months old when the relationship fell apart. The separation involved the mother leaving the family home with the daughter, and refusing to disclose her new address to the father. Effectively, this prevented the father from contacting or participating in his daughter’s life for more than a year, until he was able to obtain court orders for visitation and periods during which he could exercise parenting rights.
About this tactic on the part of the mother, the court wrote:
Cecilia was wrongfully removed from her home in circumstances which approach that of an abduction. Her mother changed her familiar name, replaced the people with whom she had lived and changed her community. She was hidden. The effect of her unilateral removal ought not be minimized. From January 10, 2009 to April 10 2010 the father did not see his infant daughter. More importantly, for over a year, Cecilia was taken away from two significant caregivers in her life: her father and her grandmother.
When he mother reluctantly appeared in court to answer the father’s claims for custody and access, the court found that her conduct continued to be self-serving: her oral testimony differed significantly from her written materials, her evidence displayed several troubling inconsistencies, and she professed not to understand even basic concepts or to be aware of even the most rudimentary legal obligations in connection with keeping the father informed. Even taking into account that the mother required the assistance of an interpreter to give evidence, the court concluded the mother’s evidence was “generally unreliable.”
Even more troubling were the mother’s unsubstantiated allegations against the father, including very serious allegations of child sexual abuse and spousal violence, together with what the court described as “a number of nonsensical allegations.” All of these turned out to be unfounded. Furthermore, the mother had displayed a wholesale unwillingness to include the father in their daughter’s life. The court wrote:
During the father’s direct testimony on November 25, 2011 he stated that he had yet to be informed of his daughter’s school, teacher or any details of her education. On my direction, that information was finally made available to him in the first week of December 2011.
The mother attached a letter from Kathy Noh to her December 4, 2011 Parenting Affidavit. The letter supports the mother’s claim for custody. In the course of the letter it states that Ms. Noh recently attended Cecilia’s baptism mass and was named her godmother. This was a surprise to the father as his daughter was baptized in 2007 at the Anglican Church in Mount Forrest.
When questioned on this point, the mother confirmed that Cecilia had been baptized at Han Ma Um Catholic Church in August of 2011, and that she knew that she was previously baptized in Mount Forest. … The mother displayed no concern with having wholly disregarded any involvement by the father in the Catholic Baptism. She testified,
“I didn’t know I had to give father that information. If you give me a list of what to do I will abide by it.”
…
The mother testified on December 15 to a number of persons who provided care for Cecilia, none of who were previously named or made available to speak to the father. None were listed in her Parenting Affidavit. The mother provided an insufficient answer to the father’s question as to the name of the individual whom Cecilia refers to as her “House Daddy.”
Overall, and in light of this kind of conduct, the court concluded:
I have no confidence that the mother can support the father’s relationship with Cecilia. When the father pressed for information and contact with Cecilia in 2009, the mother threw up a screen of horrific sexual child abuse and domestic violence allegations. None of those allegations were established at trial. Almost none were even raised. At no time has the mother demonstrated any remorse for the effects of those allegations on the father, or insight into the potential affect of those claims on her daughter, and her daughter’s relationship with her father.
..
The mother demonstrates no insight into her daughter’s need for a relationship with her father. The court’s observation during the trial is that the mother was irritated by the father and dismissive of his role as a parent. I find that the mother is unable to support a relationship between the father and daughter.
In contrast, the court assessed the father’s parenting approach as follows:
I do find that the father can support a relationship between the mother and daughter. He accepts that the mother wants little to no communication with him, but is nonetheless optimistic. His intention is to fully consult with the mother and make as many decisions together as possible, recognizing that it may not always be possible.
The father does have a concern that the mother could remove Cecilia from Canada. The mother has a Korean passport. She has no property, employment or family in Canada. South Korea is not a Hague Convention State member.
In light of all the above, the court granted sole custody to the father, with specific orders for access by the mother.
For the full text of the decision, see:
Hong v. Rooney, 2012 ONSC 120 http://canlii.ca/t/fpv9q
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 www.RussellAlexander.com.
Oct 17
Wednesday’s Video Clip: Five things you should know about common law relationships
Simply put, a common law relationship can arise any time two parties are living together without being formally married. The following is a brief list of the most important legal issues that arise under the Ontario law in connection with support and property issues in these types of relationships.
1. To be considered a common law couple, you and your partner must live together in a “marriage-like” relationship.
This can include partners of the opposite sex, or of the same sex. There are no legal formalities, and no requirement that the parties undergo any sort of ceremony or process to formalize their arrangement.
2. You must have lived together continuously for three years to be considered common-law in Ontario. However, the exception to this is if you and your partner have a child together and are in a “relationship of some permanence”. If you meet this definition, you will still be considered Common-Law, even if you have not lived together for 3 years.
There are many factors that courts may consider when determining this aspect of the definition. In general, courts will consider the couple’s lifestyle, including shared accommodation, personal and sexual habits, social interaction, financial support for each other and for any children, and how the couple is perceived by society or the public. Furthermore, while there is a requirement that the partners must live together “continuously” for three years, temporary break-ups without a settled intention to end the relationship will usually not interrupt the continuity of the relationship for these purposes.
3. You can enter into a cohabitation agreement, just like legally-married couples.
Partners in a common law relationship are entitled to enter into a cohabitation agreement as a means of protecting their property rights, or to settle upon financial obligations such as support, or to determine what rights each party would have upon separation. However – as with domestic contracts generally – any such agreement cannot include matters pertaining to access to or custody of children.
4. You may still have certain rights in connection with your partner’s property.
Ideally, if common-law spouses decide to separate, they can amicably decide which of them should have primary custody of the child, and how access arrangements are going to be structured. Any minor disputes about the scope or range of decision-making, or the nature, extent and scheduling of access, can be worked out with the assistance of a family law mediator.
However, if the common-law partners cannot agree, then a judge may have to make a binding decision that will settle any outstanding matters. As with children of parents who are formally married to each other, the governing principle to be applied to these decisions is always the best interests of the child.
5) 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, for example, medical reports, police clearance reports, letters of reference, and financial statements, 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.
We hope you have found this video helpful. If you require further information about children of common-law relationships please give us a call or visit our website at www.russellalexander.com
Do You Have an Obligation to Support a Child Who Wants Nothing to Do With You?
As I have written in the past, the question of whether, and to what extent, a parent has to pay support in connection with a child is a complex one at the best of times, and can include consideration of support obligations in cases where a child over 18 is still attending school. An off-shoot of this issue is the narrower question of whether in such scenarios a parent has a continuing obligation to support such a child with whom he or she is not on speaking terms, because the child has chosen to discontinue the parent-child relationship entirely.
A number of Ontario cases address this question. In a relatively recent one called A.C. v. M.Z., the father claimed his support obligation should be reduced or eliminated because his four children had completely rejected him and he had not seen them for 10 years. (Although the father claimed that he did not remember all the events leading up to that estrangement, the evidence showed it was punctuated by incidents of verbal and physical abuse: for example, he did recall being criminally charged with uttering a death threat at his daughter’s first communion).
To determine whether the father was still obliged to pay support in these circumstances, the court evaluated the prior court cases on this issue, which established the following points:
• As with spousal support, there is nothing in the law that makes the obligation to pay child support contingent on the paying parent and the child getting along or “being nice”. To the contrary, the law has deliberately removed any fault or conduct component from the equation, and there is no express statutory basis (whether under the Ontario Family Law Act or the federal Divorce Act) to deprive an otherwise dependant adult child of support simply because of a breakdown in the child’s relationship with the paying parent. (See A.C. v. M.Z.)
• However, as part of the general determination of whether it would be “fit and just” to order support for a mature child, a court retains the discretion to consider several factors. These include the quality of the parent-child relationship. (See Bradley v. Zaba)
• In this regard, the court will consider a child’s unilateral decision to terminate a relationship with one of the parents without any apparent reason, or for reasons that are vague. (See Law v. Law and Whitton v. Whitton)
• Courts will also consider what steps the rejected parent has taken to promote meaningful involvement or a positive relationship with the estranged child. Conversely, the court will also consider whether the parent has been significantly involved in the deterioration of the relationship, by behaving in such a way to make it impossible or very difficult for the child to continue it. (See Smith v. Smith)
• The onus is on a parent complaining of estrangement to show he or she made meaningful efforts to maintain a positive relationship with the adult child. (See Casademont v. Casademont)
• The overriding principle remains the question of whether a child is a “child of the marriage”. (See Jackson v. Jackson)
Note that the nature of estrangement is also important: the question is whether it amounts to a “change,” meaning a recent rejection as opposed to a long-standing rift. (See Athwal v. Athwal)
Moreover, there must be a “unilateral termination”, and not merely an argument, falling out, drifting apart, or temporary breakdown in the parent-child relationship. (See Farden v. Farden)
Returning to the case of the father who had not seen his four children for 10 years, the court applied the governing factors and found that he still had an obligation to pay child support for them, nonetheless.
For the full text of the decisions, see:
A.C. v. M.Z., 2010 ONSC 6473 (CanLII) http://canlii.ca/t/2dss8
Bradley v. Zaba, 1996 CanLII 4930 (SK CA)
Law v. Law, [1986] O.J. No. 2513 (Gen. Div.)
Whitton v. Whitton, [1989] O.J. No. 1002 (Ont. C.A.)
Smith v. Smith, 79 R.F.L. (6th) 166 (Sask. Q.B)
Casademont v. Casademont, (2007) 44 R.F.L. (6th) 287 (S.C.J.)
Jackson v. Jackson, [1973] S.C.R. 205 (S.C.C.)
Athwal v. Athwal, 2007 BCSC 221 (CanLII), 2007 BCSC 221 (B.C. S.C.)
Farden v. Farden, 1993 CanLII 2570 (BC SC), (1993), 48 R.F.L. (3d) 60 (B.C. Master)
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 www.RussellAlexander.com.
Top Five Questions About the Children of Common-Law Relationships
Common-law relationships are very common in today’s society. Nonetheless, the legal issues surrounding support obligations or adoption by a non-parent are often not well understood. Here are the top five points to note:
1) Is a common-law spouse obliged to pay child support?
As with parents who are formally married, the common-law parents of a child are both equally responsible for support. This obligation lasts until the child reaches the age of majority (age 18 in Ontario), but can extend beyond that point if the child remains dependent because of disability, illness, or because he or she is pursuing post-secondary education.
2) Who pays support for a step-child?
A person who enters into a common-law relationship with someone who already has children may have to support a step-child. It depends on whether in light of all the circumstances he or she qualifies as a “parent” under the Ontario Family Law Act, which definition includes “a person who has demonstrated a settled intention to treat a child as a child of his or her family.”
3) What if you want to adopt your spouse’s child?
A person who wants to adopt the child of a common-law spouse can only do so if the child’s other biological parent is prepared to give up his or her rights. Once such an adoption takes place, the adoptive parent assumes all of the responsibilities of the biological parent in connection with the child, including the obligation to pay child support.
4) Who gets custody of a child if common-law partners break up?
Ideally, if common-law spouses decide to separate, they can amicably decide which of them should have primary custody of the child, and how access arrangements are going to be structured. Any minor disputes about the scope or range of decision-making, or the nature, extent and scheduling of access, can be worked out with the assistance of a family law mediator.
However, if the common-law partners/parents cannot agree, then a judge may have to make a binding decision that will settle any outstanding matters. As with children of parents who are formally married to each other, the governing principle to be applied to these decisions is always the best interests of the child.
5) 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.
For more information about the obligations that may arise in connection with children of parents in a common law relationship, contact us as http://www.RussellAlexander.com.
Affair Triangle Results in Birth of Girl – Biological Father Gets His Costs for Access Order
Last week I wrote about a case on who should pay the legal costs that had been needlessly run up by one of the parties to litigation. This week, I have another interesting costs decision: – this time involving a man who wanted access to a daughter he had secretly fathered with a married woman.
The woman in question had been married to her husband since 1993. Her affair with the other man began before the marriage but overlapped with it, and spanned about 10 years in total. It resulted in her conceiving a female child with the other man; however, the woman kept this fact a secret and never told either her daughter or her husband about the girl’s true parentage. (She had also been going through fertility treatments with the husband around the same time the daughter was conceived). All along, the daughter was introduced to her biological father as a “family friend” and she called him “uncle”.
Over the years, the biological father continued to be involved with the family, and even lived with them for a while. He was periodically invited to family dinners and gatherings, to the daughter’s soccer games, concerts or birthday parties, and was sometimes asked to pick her up from day care or take her on his own to a local park or shopping mall. Despite the woman’s claims that he was merely a casual acquaintance, the evidence showed that he had been consistently involved with the daughter throughout her young life.
On the other hand, there was also evidence that he had an obsessive fixation on the woman, which included some stalking behaviour and aggressive episodes. This resulted in some incidents which prompted the woman to eventually bar the biological father from having any further contact with the girl.
This did not sit well with the biological father; he ultimately obtained an order for a paternity test, which confirmed his status as father. A psychologist’s report was also commissioned, which suggested that the child best’s interests would be served by telling the girl his true identity and relationship to her, and allowing him to have access to her, even despite the unusual circumstances.
Needless to say the woman and her husband – both of whom preferred that the daughter never be told of her true parentage – opposed this access. The matter came before the family court, which granted the biological father’s requests after applying the established legal principles.
The question then arose as to who should pay costs. Specifically, the issue was whether the biological father – who was self-represented – should have to pay his out-of-pocket legal costs for bringing the access application, or whether the woman and her husband should have to reimburse him. (Incidentally, at the costs hearing the biological father first submitted a costs bill of $27,000, but then submitted a second, higher one totalling $45,000. This second bill was in response to the woman’s application to the court ordering the biological father to pay child support – a move that evidently took him by surprise).
In law, the general rule is that the successful party is entitled to his or her costs at trial. Although it was true that the biological father did not get everything he asked for (he had been seeking full custody, but was granted only access), the court found that the issues were extremely important and difficult for all parties.
Moreover, the court commented that the parties had conducted themselves appropriately throughout the entire trial, despite the highly emotional nature of the issues. For example, while the woman and her husband did not initially agree with the psychologist’s recommendations on giving the biological father access, once the trial decision had been handed down in the biological father’s favour, they complied with it immediately. Conversely, the biological father was realistic in downgrading his custody application to one for access, after the psychologist had recommended it.
In the end, the husband and wife were ordered to pay the girl’s biological father about $18,000 in costs. This reflected reimbursement to the biological father of his share of the psychologist’s assessment and trial preparation/attendance costs, together with some of the biological father’s lost wages and other out-of-pocket expenses that he incurred as a result of having to go to trial on this issue.
For the full text of the decision, see:
I. v. P., 2012 CarswellOnt 1036; costs hearing related to 2011 ONCJ 594 and 2011 ONCJ 584 (CanLII) http://canlii.ca/t/fp3sb http://canlii.ca/t/fp11z
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 www.RussellAlexander.com
In this video Kiley discusses child support in relationship to access rights. A parent cannot cut off contact to a child simply because child support is not being paid.
The law assumes that it is usually good for a child to have a relationship with both parents. Keeping a parent from seeing his or her child is considered punishing the child. The law will not punish a child because his or her parent fails to pay child support.
The law gives parents who do not have custody “access” to their children so they can spend time together. Access can be refused or limited only if the parent’s behaviour is likely to harm the child. The courts will not refuse access because the parent does not pay support. And the parent with custody should not refuse access for this reason.
There are other ways to get support from a non-paying parent.
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