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

Should Stepfather Pay Support if Biological Father Given a Pass?

Should Stepfather Pay Support if Biological Father Given a Pass?

A recent Ontario case considered the question of whether a stepfather, who voluntarily assumed support responsibility for a stepchild, can have that obligation reduced because the child’smother fails or refuses to legally pursue a contribution toward that support from the child’s biological father.

In Truong v. Truong, the couple were married in 2003 and had one child together.  However the woman had been married before, and had a child from that relationship who was now 18 years old.   When the couple decided to separate and divorce, they agreed that the man would pay $1,000 per month for support for both children, based on his $72,000 annual income.  Primary custody was to remain with the mother.  

The man had been voluntarily contributing to the support of his 18-year-old stepson throughout the relationship, and had assumed a parental role toward him.   As such – in keeping with Canadian law in such circumstances – he did not dispute that he was obliged to pay child support after the separation.  However, the stepfather contended that the stepson’s natural father ought to pay child support as well, and that at the least, such support obligation should be shared between the two men.

Indeed, over the course of their relationship the stepfather had periodically raised the issue with the mother, but she had flatly told him that she would not be pursuing any support contribution from the biological father.  For one thing, she claimed she did not know his whereabouts; however the stepfather   she could easily find out through connections in the parties’cultural community.  In any case, the stepfather never pushed the issue during the relationship, since on their combined incomes money was not a concern and there was no pressing need for contribution from the boy’s biological father at that point.

Once the parties separated, however, the stepfather claimed that the mother should pursue such contribution, and that his corresponding support obligation should be reduced accordingly.

The mother resisted, pointing out that the stepson’s biological father had not been in contact with him since he was about five years of age.   In fact, over the years she had essentially received no support from the biological father at all, and she had never pursued him for it via the legal process, despite the fact that he was apparently living in the U.S. and earning over $100,000 per year.   He had remarried and had other children.  The court found that she had apparently told the biological father that she would forego her right to child support from him provided he did not pursue his custody or access rights.

In determining whether the stepfather’s support obligation should be reduced in the circumstances, the court also evaluated the source of both his and the biological father’s support responsibilities to the stepson.  First of all, it confirmed that under the Child Support Guidelines, the biological father    to pay child support in accord with the Guideline amounts.  With respect to the stepfather, however, the Child Support Guidelines indicate that where there is a person who “stand in the place of” a parent for a child, that person may be obliged to pay child support in an amount that the court considers to be appropriate, having regard to the Guidelines and any other legal duty to support the child.

In addition, the court confirmed the following general principles:

• a step-parent can be obliged to pay support, even when the biological parent does not;

 

• a step-parent is entitled to commence a separate action to seek contribution from the biological parent;

 

• there is no obligation on a recipient parent (here, the mother) to legally pursue support from the biological parent.

 

In this case, the court surmised that the mother had avoided pursuing support from the biological father because she was content to not have involved in their lives and did not want to trigger him to pursue custody or access to the boy.  

However, the court stated that if the mother did not earnestly pursue support from the biological father, then the stepfather should not be obliged to contribute the entire amount.  The mother was simply not entitled to “elect” to choose between two possible payors, one of which was the stepfather, and could not unilaterally transfer the full support obligation onto him.    

In the end, the court concluded that stepfather should not be required to pay the full Guideline amount merely because the mother had chosen not to pursue the stepson’s biological father for it.

The court accordingly ordered that the stepfather should pay $225 for the boy, notwithstanding the fact that he had previously agreed on consent to pay $1,000 per month.

For the full text of the decision, see:

Truong v. Truong, 2012 ONSC 3455  http://canlii.ca/t/frsvj

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

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

Parents Neither Separated Nor Divorced – But Mother Permitted to Move Them Back to Italy

Parents Neither Separated Nor Divorced – But Mother Permitted to Move Them Back to Italy

In this unusual Ontario case, the court allowed the mother to move back to Italy with the children of the marriage, even though she and the father had not filed for divorce and were not even formally separated.

The couple married in 2002 and initially lived in Rome, where their two children (now aged 6 and 9) were born. They moved to Toronto in 2007. The mother, who was 41 and had limited understanding in English, had worked as a lawyer in Italy but was unemployed while living in Canada. She had taken English classes and was trying to re-qualify as a Canadian lawyer, but this essentially required her to start law school all over again, which the couple did not have the money to do. She had therefore spent her entire time in Canada acting as the children’s primary caregiver. Meanwhile, the father worked at his cousin’s downtown restaurant earning $32,000 per year.

Unfortunately, the couple argued frequently and were in marriage counselling. The mother was miserable in Canada, had serious health problems, and did not get along with the father’s parents. She was frustrated at not being able to pursue her chosen profession, and alleged that she had endured some physical violence at the father’s hands. However, the couple had never formally separated, but rather continued to live together for financial reasons.

Against this background, the mother came to court to have it rule on a single question: whether she should be allowed to move back to Rome and take the children with her. The father wholeheartedly opposed her plan, as he feared he would inevitably lose contact with his children.

In hearing the matter, the court summarized the mother’s position as follows:

In essence, Mother says she is miserable here. Things did not work out as they had hoped. They have no money, she cannot work. She is cooped up in a small apartment, receiving no income and requiring government subsidies for daycare. She is isolated and terribly unhappy. This is why she wants to return to Italy with the children.

Mother’s parents bought her an apartment near to them and to schools in a nice neighborhood of Rome. If she returns to Italy, she can practise her chosen profession and earn a good income. She has two job opportunities available to her already. In Rome, she would enjoy the support of her extended family (which is considerable). Language would no longer be an issue for her.

The court applied the established legal tests to the situation, and considered all the factors including the mother’s historical status as primary caregiver, her reasons for moving, the desire to maximize contact with both parents, and the children’s own views. It also considered the dynamic between the children and various individuals, including their parents, both sets of grandparents, and other extended family.

In this case – and while acknowledging that both parents loved and wanted the best for the children – the court concluded that the mother’s plan to move back to Italy was in their best interests. For one thing, the move would optimize her ability to find remunerative and fulfilling work, which would in turn impact positively on the children’s lifestyle. The mother also had a supportive extended family, which included devoted and wealthy parents (they owned an apartment in Rome, a cottage in northern Italy, a beach house in southern Italy, and a timeshare condominium in Manhattan, all of which were available for the mother to use). The children were both Italian citizens and were fluent in the language; they would have very little difficulty adjusting to the move.
In coming to this conclusion, the court also took into account the impact on the father, primarily that he would no longer have frequent contact with the children. (And noted that the father had not decided on whether he was willing to move to Italy as well). Nonetheless, it was satisfied that the economic prospects of the mother (alone) in Italy would exceed the parent’s combined family’s economic prospects, were they to remain in Canada.

Accordingly, the court granted the mother’s request, and allowed her to move with the children back to Rome.

Trisolino v. De Marzi (2012), 2012 ONSC 3921  http://canlii.ca/t/fs3bs
Russell Alexander, Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. For further information, or to schedule an appointment, call 1.905.655.6335.

 

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: Child Support and Different Custody Arrangements

 

Wednesday’s Video Clip: Child Support and Different Custody Arrangements

In this video Aleksandra review how different custody arrangements affect child support obligations.

Shared custody

If each parent has the child at least 40% of the time, the Child Support Guidelines say there is “shared custody.” This refers only to the residential agreement, and should not be confused with the term “joint custody,” which refers to the parents’ joint right to make major decisions for the child. When there is shared custody, the amount of support paid to the parent with custody might be less than the amount set out in the table. Therefore, the term “shared custody” only refers to the amount of time spent with the child.

There is no formula in the Guidelines for determining how much time is spent with each parent in a shared parenting scenario. The onus is on the parent who claims they have shared custody to show that the child iswith him or her at least 40% of the time.

If the judge finds that the child spends at least 40% of their time with the parent who pays support, the Guideline table amount will no longer apply. Instead, the judge will look at the gross income of each parent to determine the child support amount, as well as of time the child spends with each parent. This takes into account the reality of a shared parenting arrangement, because the more time the child spends with each parent, the more each parent is expected to provide basic items for the child, such as pajamas, toys, clothes, and bedding. Judges must consider these extra costs when they set support amounts for shared custody.

Split custody

Sometimes when parents with more than one child separate, one or more of the children will live with each parent. When this happens, child support depends on the income of both parents. How much support each parent would owe for any children living with the other parent is figured out according to the Guidelines. The parent who owes the higher amount must pay the difference between the two amounts to the other parent.

Take the example of one parent with custody of two children and an income of $25,000, and the other parent with custody of one child and an income of $45,000. According to the table, the parent with the lower income owes the other parent $211 a month in support for the one child who lives with that other parent. The parent with the higher income owes the other parent $680 a month in support for the other two children. When you subtract $211 from $680, the higher-income parent owes the other parent $469 a month in child support.

Sole custody

When a parent has sole custody of a child, this means that they are solely authorized to make major decisions for the child, to the exclusion of the other parent. In these cases, it makes sense that the child’s primary residence will be with the parent having sole custody. Therefore, to determine how much child support is to be paid, the courts are required to look to the Child Support Guidelines, which outline a table amount that is based on the payor parent’s income. The recipient parent’s income is irrelevant to this determination, as Child Support is the right of the child to receive. In some cases, the recipient parent’s income may be relevant, if there are special or extraordinary expenses to be shared above the Table amount. Since the Table amount is meant to cover only regular day to day expenses, such as food, clothing and shelter, any additional, or extraordinary expenses, are generally shared between both parents, proportionate to their incomes. Some examples of these expenses include daycare, dance lessons, and medical expenses not covered under a medical plan.

We hope you have found this video helpful. If you require further information about different custdy arrangements 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.

New Ontario Bill Fosters Child-Grandparent Relationships

New Ontario Bill Fosters Child-Grandparent Relationships

The Ontario government has just introduced a new Bill that aims to promote the relationship between children and their grandparents, primarily in situations where the child’s parents have separated or divorced.

Bill 67, titled “An Act to amend the Children’s Law Reform Act with respect to the relationship between a child and the child’s grandparents”, received its first reading on April 17, 2012.   If passed, the Bill will amend those provisions in the existing Children’s Law Reform Act (CLRA) which govern custody or access, by prohibiting the parents (or anyone else who is entitled to custody) from creating or maintaining unreasonable barriers to the formation and continuation of a personal relationship between the child and the child’s grandparents.

Simply put, the amendments strive to promote such connections between children and grandparents, by prohibiting parents or others with custody from actively preventing or impeding such relationships.

Also, Bill 67 would affect custody and access applications under the CLRA, by adding the child-grandparent relationship to the list of considerations that must be applied by a court.

Currently, all applications of this type require the court to evaluate the “best interests” of the child, taking into account the child’s needs and circumstances; these include consideration of the love, affection and emotional ties between the child and a list of other people (including the person with custody or access or other family members).  If Bill 67 is passed, this list will now include the child’s grandparents.

Also, the mandated “best interests” test for the court currently includes the following:

• the child’s views and preferences, if they can reasonably be ascertained;

• the length of time the child has lived in a stable home environment;

• the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

• the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

• the permanence and stability of the family unit with which it is proposed that the child will live;

• the ability of each person applying for custody of or access to the child to act as a parent; and

• the relationship by blood or through an adoption order between the child and each person who is a party to the application.

The new law would augment this list, to include consideration of whether the parent applying for custody is willing to facilitate contact with the child’s grandparents.

Admittedly, the Bill is still in the very early stages, and needs to proceed through second and third readings before it could  become law in Ontario.  However, few could argue that it represents anything other than a positive addition to family law in the province.

For a full copy of the proposed Bill, see:

http://www.ontla.on.ca/bills/bills-files/40_Parliament/Session1/b067.pdf