Summer Holidays – Top Three Custody/Access Tips to Consider

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 Custody & Access: Who’s Is Entitled To The Child?

Wednesday’s Video Clip: Ontario Custody and Access Who’s Is Entitled To The Child?

There is a general misconception that when a couple separates, the children must automatically stay with their mother. But in Ontario, the mother and father are equally entitled to custody of the child.

In this video divorce 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.

Wednesday’s Video Clip: The Need for a Support System

 

Wednesday’s Video Clip: The Need for a Support System

In this short video Russell Alexander discusses the importance of having a support system in place when you go through a divorce.
 
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

Wednesday’s Video Clip: Whether a parent has a right to move with a child – the concept of “mobility” in family law

 

 

Whether a parent has a right to move with a child – the concept of “mobility” in family law

The moment that the parents of a child separate, everyone’s life circumstances change immediately: there are usually new living arrangements and a custody and access schedule put in place.

But as time passes, there may be other developments as well; for example the parents may embark on new relationships with new partners, or may change jobs.

The potential impact on any court-ordered support, custody or specific access arrangement, and the effect on each parent’s rights must be assessed and weighed.

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

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

In Canada, courts generally recognize that the well-being of a child is fundamentally interrelated with the well-being of the custodial parent; indeed, a 1996 Supreme Court of Canada ruling in a case called Gordon v. Goertz established conclusively that judges must apply the “best interests of the child” test in making decisions about whether a parent should be allowed to relocate with a child, which in turn requires an individual, fact-specific assessment. As the court put it:
“The focus is on the best interests of the child, not the interests and rights of the parents.”

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

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

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

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

• the views of the child;

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

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

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

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

The authority for a court to make such a determination on behalf of parents and children is set out in various provincial and federal family-legislation.

The federal Divorce Act, for example, provides that if a court gives one parent custody of a child, the court may also require that parent to give at least 30 days’ notice to the other parent of any planned change of residence of the child (although practically speaking, most orders specify a 60-day period).

The access parent, upon receiving such notice, can apply to the court to challenge the proposed change of residence, or seek a variation of the custody or access arrangements; this notice period also afford the parents the chance to negotiate acceptable relocation terms, before it happens.

When mobility issues arise, it is important to get experienced and competent legal advice, to ensure that the best interests of all parties – particularly the children of the relationship – are safeguarded.

We hope you have found this video helpful.  If you require further information about mobility issues and family law please give us a call or visit our website at www.russellalexander.com

Mother Oblivious to Father’s Rights: Court Awards Him Custody of Child

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.

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

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

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

What do you think?

Please read our responses or submit your own comments.

Become a Fan and join the discussion here: http://www.facebook.com/RussellAlexanderFamilyLawyers

Wednesday’s Video Clip: Five things you should know about common law relationships

 

 

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

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

 

 

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

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

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

Affair Triangle Results in Birth of Girl – Biological Father Gets His Costs for Access Order

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

Wednesday’s Video Clip: Child Support & Access Rights

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.