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MICHEL v. GRAYDON 2020 Supreme Court of Canada

November 26th, 2020 by

Child Support, while having very fixed and specific rules can simultaneously also be one of the more complicated issues in a family law case. Retroactive child support especially.

The recent Supreme Court of Canada decision in Michel v Graydon looks to answer some looming questions and provide clarification. Payor parents need to understand the importance of the recent case. Even If the child has reached the age of majority, and is now financially independent, child support obligations that existed in the past are not automatically dissolved. The Supreme Court case concluded that retroactive child support may still be payable, even after the child is no longer a child.

FACTS

Ms. Michel and Mr. Graydon were in a common law relationship. They had one child of the relationship namely, AG. After the separation, the parties entereda consent order and Mr. Graydon was ordered to pay the Child Support based off his annual income of $40,000.00. After several years, Ms. Michel discovered that the father was lying about his true income and sought retroactive child support. The child, however, was an adult and no longer considered a ‘child of the marriage’.

The trial judge ordered Mr. Graydon to pay retroactive child support as he his real income which negatively impacted the quality of life that AG lived. Mr. Graydon was ordered to pay $23,000.00 in retroactive child support.

The decision was overturned at the appeals court where the court held that it was too late to order Mr. Graydon to pay retroactive child support as the child was now a financially independent adult.

The Supreme Court of Canada (SCC) unanimously held that Mr. Graydon has an obligation to pay retroactive child support even if the child was now an adult and independent.

DBS v SRG, 2006 SCC 37.

The decision in Michel v. Graydon, builds upon the framework laid down in DBS v SRG, 2006 SCC 37.

In DBS, the SCC considered s. 15.1 of the Divorce Act:

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

In the court’s view, 15.1 meant that the court could not award child support unless the child is a “child of the marriage” when the application is made.

In Graydon, the SCC concluded that such restrictions should not and cannot apply the same way to S. 152 of the British Columbia Family Law Act or S. 17 of the Divorce Act (variation of existing support orders).

152  (1) On application, a court may change, suspend or terminate an order respecting child support, and may do so prospectively or retroactively.

The SCC concluded that section 152 of the FLA lets the court retroactively vary a child support order, regardless of whether the beneficiary is a ‘child’ and regardless of the fact that the Order has expired.

Principles governing child support:

Child support is the right of the child, which right cannot be bargained away by the parents, and survives the breakdown of the relationship of the child’s parents (para. 38);
Child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together (para. 38);
The child support owed will vary based upon the income of the payor parent, and is not confined to furnishing the “necessities of life” (paras. 3845).
Retroactive awards are not truly “retroactive”, since they merely hold payors to the legal obligation they always had to pay support commensurate with their income (para. 2);
Retroactive awards are not confined to “exceptional circumstances” or “rare cases” (para. 5).

The SCC concluded that child support is the right of a child that cannot be negotiated away. In this situation and similar situations, retroactive payment is fair.

The court further stated that the entirety of the situation at hand needs to be considered when deciding to make an order for retroactive child support. This means considering why the parent waited to ask for support, the behaviour of the payor parent, the child situation and whether hardship was caused. Mr. Graydon knew his income was greater than what he had stated, thus he knew that he was paying child support that was less than the amount he should be paying. As a result, it should not be a surprise to him that he must pay more child support now. Moreover, Mr. Graydon was aware of the poo living situation for Ms. Michel and AG and instead of helping her, he made disrespectful and hurtful comments.

IMPLICATIONS

Many payor parents that may have thought that they can escape their child support obligations once the child reaches an adult age and is independent will need to reconsider that thought. Moreover, any payor parent that has considered attempting to hide income and pay less in child support hoping to ‘beat the system’ will also be facing a difficult situation in the future as a result of Graydon.

The Graydon case has helped provide more clarity on the idea of retroactive payment of child support once the child is an adult or when the support payments have ended. It largely reinforced the principles underlying child support as they stand. It is not a question of whether retroactive child support is appropriate, rather a question of why retroactive support is NOT appropriate.

When Enforcing Support Payments Through the Family Responsibility Office is Your Only Choice!

November 10th, 2020 by

Many times, litigants involved with their family law court case, do not want their support payments to be enforced by the Family Responsibility Office but they have no choice.

In Ontario courts, when a person is ordered to pay child or spousal support payments, the support order is automatically filed with the Family Responsibility Office (referred to as FRO). Even during those times when the parties and their lawyers agree that payments shall be made directly between each other, the court will continue to have the order enforced by FRO, as that is the default.

There are ways around this and terminology and/or having a mutual agreement is important. In your Court Order or Consent, the parties can agree to withdraw from FRO enforcement and hae the payments made directly to the recipient via e-transfer or even post-dated cheques for example. It takes the mutual consent of the parties to do so and it is as easy as signing a form and sending it into FRO to let them know you want to withdraw from their enforcement. However, if one party wants FRO to be involved, there really will not be a choice to the other party.

Is having FRO involved a bad thing? Not at all. It really depends on the parties. Not all litigants have a poor relationship with one another, and they can find a way to manage support payments between themselves. In those situations where the payor is unreliable to make a payment or you need the payment garnished from their wages, FRO can become your tool. There are pros and cons to using FRO for enforcing your support payments which we can go over with you to make sure it is right for you. Book a consultation with one of our experienced family law lawyers in Pickering today!

Just When You Think It Is Over – Children In Post Secondary School & Child Support Payments

May 27th, 2020 by

Many parents are under the misconception that child support ends when their child turns 18 or even graduates from high school. However, that is not always true. If your child chooses to pursue a post-secondary education, you could still be required to make child support payments. But how does it work if my child chooses to live on campus or away from home for college or university? This is a much-debated topic and it really comes down to the facts of the situation.

Under the Federal Child Support Guidelines, a child could still be considered a “child” for the purposes of child support even if they are living on their own in post-secondary school.

According to paragraph 3(2) of the Federal Child Support Guidelines:

Child the age of majority or over

(2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

(a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

(b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

I want to focus on two different types of support payable when a child is in post-secondary school. There is the standard monthly child support payable (Section 3) and the special and extraordinary expenses that are payable (Section 7). Sometimes, these payment obligations continue even past the child’s first diploma or bachelor’s degree and until they are self-sufficient.

When a child chooses to live on campus or away from home for their post-secondary school, the standard monthly child support may not be appropriate for the child and the Federal Child Support Guidelines acknowledges that. As lawyers, we look for key factors when it comes to this. These factors include:

  • the child’s age;
  • full time or part time education;
  • viable career options;
  • plans for post-secondary education made when the parents were still together;
  • what post-secondary funding would have looked like if the parents were still together;
  • other sources of funding for the child;
  • ability of the child to contribute towards their own education;
  • type of program the child wants to pursue;
  • child’s grades and future plans;
  • child’s attendance record;
  • where the child is living; and
  • any other contribution method applied for such as loans bursaries, scholarships etc.

The burden of providing this info usually falls on the parent who is claiming child support, also known as the recipient.

The Federal Child Support Guidelines have terms that reflect that the needs of an older child in post-secondary school differs from that of a younger child. In addition, the recipient parent would not have the same expenses for that child if they choose to live away from home for school. Although, it is noteworthy that the recipient parent would still have carrying costs of the home to pay for even when the child has moved away because it is expected that the child would come home to visit, come home for the summer and holidays.

It is reasonable for the monthly amount of child support payable to the recipient parent to decrease from the table amount of child support while the child is living away from home for post-secondary school. At the same time, it can sometimes also be reasonable for the paying parent to only pay for the summer months when the child is back to residing at home with the recipient parent.

This situation can become complicated because of the circumstances of the situation. It is best to speak to one of our experienced family law lawyers to help you navigate through the system and case law to make sure that you are fully informed and are proceeding the best way possible.

What Is The Difference Between A Case Conference & A DRO Case Conference

March 26th, 2020 by

Every family law matter that goes to court starts with a Case Conference. In some matters, the parties start with a Rule 39 (First Court Date) which sets out the date for the Case Conference.

The Case Conference is a very important step in a family law matter because it is the first opportunity to present the case to the court and obtain their views. It also is an opportunity to see strengths and weaknesses in a case and how to advance with it.

Based on the type of originating process that has been commenced in court, sometimes Case Conferences are before a Judge and sometimes they are below a Dispute Resolution Officer (DRO). Please see the below chart for the type of application and who your Case Conference will before:

Type of Application Purpose Judge or DRO
APPLICATION Initial Application for family law matter Judge
MOTION TO CHANGE Court Application for the purpose of changing or varying an existing Order or Agreement DRO

Dispute Resolution Officers are senior family lawyers who have a wealth of knowledge and years of experience in family law practice to assist with moving the case along, settlement and negotiations.  They act as a neutral third party and assist with resolving matters in certain instances before they are heard in front of a Judge for another Conference or a Motion.

DRO’s are only available in certain family courts including Toronto, Brampton, Milton, Newmarket, Barrie, Hamilton, and Oshawa.

Both a DRO and a Judge can assist the parties in identifying and attempting to resolve their issues, ensuring all relevant documents have been disclosed, and, if the parties are able to agree on resolution to some issues, assisting them in obtaining a consent order from the court

Having a Case Conference before a Judge can have similar benefits of a DRO Conference and sometimes a more enhanced one given that you receive the views and opinions from a Judge for the rest of your case. Sometimes, the Judge you are before becomes your Case Management Judge and can assist you in a resolution of issues sooner.

The main difference between a DRO Case Conference and a Judge Case Conference are the powers of the court.  A DRO cannot make orders regarding your case or any costs but a Judge can make certain orders such as procedural ones, ordering steps in a case, costs, etc.

At AP Lawyers, our family lawyers regularly appear before DROs and Judges in both the Ontario Court of Justice and Superior Court of Justice for family law matters. We can assist you in identifying how to maximize on the type of Conference that is scheduled for your matter.

We’re open later to serve you better (9am – 7pm)

September 14th, 2018 by

Surviving the first day of school – Best interest of the child

September 6th, 2018 by

Back to school for children means a new adjustment for families.

For children of separated parents, this could become a very stressful time.

Pickups, drop-offs and who can attend school events can become contentious issues. Even where the children would attend school can become an issue.

Here are our top 3 tips to survive these first days of school.

1)      Parents need to remember that the most important factor in any decision regarding children is what works best for the children, not necessarily what is most convenient for the parents, but what works for the child.

The convenience of the parents would play a role, no doubt. Happy parent = happy child but every decision must be viewed through the lens of what is in the best interest of the child.

2)      Parents should maintain a flexible position regarding custody and access.

A few minutes late for pickup here, a little early for drop-offs there may be annoying but think about it. In the grand scheme of a cooperative parenting regime, is it worth creating a huge conflict?

Longer delays are a different issue of course. Even switching access days to accommodate the other parent seeing the children to ask about the first day of school if possible could be fantastic for the kids.

3)      Take a deep breath. Scheduling may not be perfect right now but with time, a lot of the glitches would smooth out.

Negotiation, mediation, and litigation remain available tools to resolve any lingering conflicts.

So, go out, enjoy these last few days of summer, and help the kids settle into the new school year. We wish you the best!

What happens if a support payor dies without maintaining life insurance as ordered?

November 28th, 2017 by

This is what happened in the case of Bormans v. Bormans Estate, 2016 ONSC 428. The parties in this case separated after a 38 year traditional marriage. There was a court order requiring the husband to pay spousal support. The husband was also to maintain her as the beneficiary of his life insurance policy however, about 4 years later, he stopped making the payments. The wife had very few assets and low income consisting of her CPP disability benefits and the monthly child support.

On his death, his estate was left to his 2 adult children. The court awarded the wife spousal support from the husband’s estate because while she qualified as a dependent under the Succession Law Reform Act, the adult children did not. The husband had a legal obligation to support the applicant.

Grandparent’s right in child custody matter

October 4th, 2017 by


CITATION: R.A. v. D.P. 2017 ONSC 4622
OSHAWA COURT FILE NO.: 17-1177-00
DATE: 20170731
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT

RE:  R.A., Applicant

and

D.P., Respondent

BEFORE:  The Honourable Madam Justice S. J. Woodley

COUNSEL: Andreina Minicozzi, for Applicant

Barry Nussbaum, for Respondent

HEARD:  July 28, 2017

ENDORSEMENT

Overview

[1] The Applicant, R.A. (“R.A”), has brought an urgent motion on an interim and without prejudice basis for an Order that the child B.S.D. (“B.S.D.”), born […], 2011, be returned to her care. Alternatively, the Applicant seeks an order that the child shall reside with the Applicant and the Respondent on a week-on week-off basis.

[2] The Respondent, D.P. (“D.P.”), has brought a cross motion for sole custody and primary residence of the child with access to the Applicant at his sole discretion. The Respondent further seeks an Order that the Respondent can obtain, maintain, and renew the child’s passports and other government documents without any other signature or consent and seeks production and delivery of all of the child’s original documents from the Applicant.

[3] Both parties seek costs.

Issues

[4] Is the matter sufficiently urgent such that the motion should be heard before the case conference?

[5] In the circumstances of this case what custody, residency and access arrangements are in the best interests of the child B.S.D.?

[6] Is either party entitled to costs and if so, in what amount?

Facts

[7] The child, B.S.D., was born on […], 2011 to the Applicant’s (now) deceased daughter, N.D. (“N.D.”), and the Respondent D.P. (“D.P.”).

[8] N.D. is a Canadian citizen and D.P. is a landed immigrant from Chile. The child B.S.D. is a Canadian citizen.

[9] The child B.S.D. resided with her parents from her birth on […], 2011 until October 24, 2012, when both parents were arrested for weapons and drug offences (possession for the purpose of trafficking MDMA, heroin and cocaine).

[10] Upon the arrest of both parents the Children’s Aid Society contacted the Applicant R.A. and placed the child in the temporary care of the Applicant R.A..

[11] The mother, N.D., was granted bail the day following her arrest (October 25, 2012) and by her bail conditions resided at the Applicant’s home subject to conditions, including a condition that she not communicate with the Respondent D.P. except through counsel to prepare a defence.

[12] The Respondent father remained incarcerated for 15 months until bail was granted. By the Respondent’s bail conditions he was required to reside with his parents in Richmond Hill subject to conditions, including a condition that he not communicate with N.D. except through counsel to prepare a defence.

[13] During the period of the Respondent’s incarceration the relationship between the Respondent and N.D. ended.

[14] While the Respondent was incarcerated the Applicant arranged for the Respondent’s parents to enjoy access. When the Respondent was released on bail the Applicant arranged for the Respondent to have access every other weekend and increased access to every weekend when requested.

[15] The Applicant’s daughter, N.D., died in April of 2017 from a drug overdose prior to resolution of the criminal proceedings.

[16] Following N.D.’s death, the child B.S.D. continued to reside with the Applicant and the Respondent continued to enjoy weekend access visits.

[17] The Respondent’s criminal charges are scheduled to proceed to trial commencing March 19, 2018. In the interim, the Respondent continues to reside with his parents pursuant to bail conditions.

[18] On June 30, 2017, the Respondent advised the Applicant that he believed that he would have a better chance of not being deported if B.S.D. were to reside with him.

[19] On July 3, 2017, when it was time for B.S.D. to return to the Applicant, the Respondent refused to return the child.

[20] The Applicant attempted to negotiate the return of B.S.D. but the Respondent refused and further refused to allow the Applicant to have any access or contact with the child.

[21] On July 11, 2017, the Applicant commenced an application and brought a motion on an urgent basis set for July 17, 2017, for return of the child.

[22] Following issuance of the application and service of the motion the Respondent permitted the Applicant to have a five minute telephone conversation with the child on July 14, 15 and 16, 2017.

[23] On July 17, 2017, the parties attended before the Honourable Justice Timms at which time the Respondent served and filed his responding materials in the form of a counter motion.

[24] The Applicant obtained a brief adjournment to file a response and the motion and counter-motion were adjourned to July 27, 2017.

[25] Justice Timms granted a without prejudice order requiring the Respondent to return the child to the Applicant by 4:30 p.m. on July 17, 2017, until Tuesday July 25, 2017 at 4:30 p.m.  A case conference was set for August 8, 2017. Costs were reserved.

[26] The motion and counter-motion returned to me on July 27, 2017.

The Law

“Best Interests” Test: Children’s Law Reform Act

[27] The test for determining an application for interim custody or access is always: “What is in the best interests of the child?”

[28] The court is required to take into consideration only the best interests of the child as determined by reference to the “condition, means, needs and other circumstances of the child.”

[29] Under section 24(2) of the CLRA, in determining what is in the best interests of a child, the court, must consider all the needs and circumstances of the child, including:

  1.   the love, affection and emotional ties between the child and,
  2.                                                                 each person entitled to or claiming custody of or access to the child,
  3.                                                               other members of the child’s family who reside with the child, and

iii.      persons involved in the care and upbringing of the child;

  1.   the child’s views and preferences, if they can reasonably be ascertained;
  2.   the length of time the child has lived in a stable home environment;
  3.   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;
  4.   any plans proposed for the child’s care and upbringing;
  5.   the permanence and stability of the family unit with which it is proposed that the child will live;
  6.   the ability of each person applying for custody of or access to the child to act as a parent; and
  7.   the relationship by blood or through an adoption order between the child and each person who is a party to the application.

[30] Parental conduct, no matter how meritorious or how reprehensible, does not enter into the analysis unless it relates to the ability of the parent to meet the needs of the child. (See s. 24(4) of the CLRA; and Gordon v. Gordon (1980), 23 R.F.L. (2d) 266 (Ont. C.A.)).

Child’s Blood Ties vs. Importance of Psychological Parent

[31] Although courts have determined that “absence any evidence that parents are behaving in a way that demonstrates an inability to act in accordance with the best interests of their children, a parents’ right to make decisions and judgments on their children’s behalf should be respected, including decisions about whom they see, how often and under what circumstances” – such considerations apply only where the parents are custodial parents and a non-custodial party seeks access. Courts routinely deny that a biological parent has a prima facie right to custody. (See Chapman v. Chapman2001 CanLII 24015 (ON CA)Parkins v. Parkins2006 CanLII 24450 (ON SC), 2006 CanLII 24450 (ONSC); Giansante v. Di Chiara2005 CanLII 26446 (ON SC); and Branconnier v. Branconnier2006 BCSC 2020 (CanLII); Z. (F.) v. Catholic Children’s Aid Society of Hamilton-Wentworth[2000] O.J. No. 1452 (ON SC).

[32] Although a child’s relationship by blood is a relevant consideration – there is no “parental right” to custody. Biological connection is only one factor to be considered. (See Z. (F.) v. Catholic Children’s Aid Society of Hamilton-Wentworth[2000] O.J. No. 1452 (ON SC)Jones v. Smith, [1995] O.J. No. 4088 (Ont. Gen. Div.); Law v. Siu, 2009 ONCA 61 (CanLII), [2009] O.J. No. 245, 2009 ONCA (Ont. C.A.); Rochon v. Jacco, 2003 CanLII 2226 (ON SC), [2003] O.J. No. 2797, 42 R.F.L. (5th) 143 (Ont. S.C.J.).

[33] The court must consider the best interests of the child including the psychological needs of the child and the child’s attachment to each party. (SeeMoores v. Feldstein1973 CanLII 535 (ON CA), [1973] 3 O.R. 921 (C.A.)).

Status Quo

[34] Our courts have traditionally given a great deal of weight to the arrangements that are actually in place at the time of the court’s determination of the issue, be it at the interim stage or the final stage.

[35] Generally, courts are reluctant to change existing child care arrangements that are working to a child’s benefit. (See N.(M.) v. B.(M.) (2000), 2000 CanLII 22543 (ON SC), 9 R.F.L. (5th) 359 (Ont. Sup. Ct. J.).

[36] The preference for maintaining the status quo emphasizes the primary caregiver’s importance to a child. Where a child lived in the de facto custodial care of her grandparents for two years and all of her needs were met including stability and consistency, it was appropriate to maintain the status quo and grant the grandparents temporary custody. (See D.(S.) v. D.(M.P.), [2001] W.D.F.L. 78 (Q.B.); Perchaluk v. Perchaluk[2012] O.J. No. 3988, 27 R.F.L. (7th) 479 (Ont. C. J.).

[37] A judge is unlikely to change ongoing child-care arrangements that meet a child’s needs simply because the other parent claims that he or she can also care for that child. (See Longergan v. Longergan, [1998] W.D.F.L. 332 (B.C.S.C.).

[38] However, if the ongoing arrangements do not meet a child’s needs, a court will change custody. (See Boyko v. Purdue, [2001] B.C.D. Civ. 360.35.10.90-04 (S.C.); A.A. v. S.N.A., 2007 BCCA 363 (CanLII), [2007] B.C.J. No. 1474, A.A. v. S.N.A., [2007] B.C.J. No. 1475 (B.C.C.A.).

[39] In deciding the weight to be accorded to the status quo, a court may take into account that the current child-care arrangements were wrongfully acquired or were only intended to be temporary. While doing so may discourage wrongful removal of children or prevent a parent benefiting from wrongdoing, it is difficult to see how such considerations are relevant to the best interests of an individual child. (See Brooks v. Brooks, supra).

Proposed Change in One Parent’s Home

[40] The onus is on the parent who seeks a change existing child care arrangements to prove that it is in the best interests of a child to do so. (SeeTubello v. Tubello (2000), 2000 SKQB 276 (CanLII), 8 R.F.L. (5th) 451 (Sask. Q.B.).

Possibility of Deportation

[41] In situations where there is a possibility of one parent being deported, the parties are not entitled to obtain Orders for custody and access that may have the effect of frustrating the deportation process without notice to the Minister of Immigration as this would allow an unacceptable use of the family law system to frustrate the deportation process and would be contrary to public policy.  (See Patterson v. Osazuma, [2005] O.J. No. 4370, 2015 ONCJ 454 (Ont. C.J.) (CanLII).

Analysis

Urgency

[42] Pursuant to the Family Law Rules a person who wants to bring a motion is not entitled to have the motion heard prior to a case conference unless the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.

[43] An urgent motion contemplates issues such as abduction, threats of harm, and dire financial circumstances. Prior to bringing an urgent motion the parties should enquire into the availability of a case conference and engage in settlement discussions. (See Rosen v. Rosen, 2005 CanLII 480 (ON SC), [2005] O.J. No. 62 (Ont. S.C.J.); Hood v. Hood, 2001 CanLII 28129 (ON SC), [2001] O.J. No. 2918 (Ont. S.C.J.)).

[44] The child had been withheld from her usual place of residence on June 30, 2017. The Applicant attempted to resolve the matter before coming to court without success and although a case conference date was obtained it is not scheduled until August 8, 2017. While the withholding of the child may not constitute an abduction, given the withholding and the failure to provide any access to the Applicant, the circumstances warrant that an urgent motion be brought and heard by the court.

Was the Applicant the Caregiver to the Child – Determination of Status Quo

[45] The Respondent argues that the Applicant was not the primary caregiver to the child – that N.D., prior to her death, was the primary caregiver, and the Applicant provided a home as surety for N.D.. The Respondent argues that upon the death of N.D., that he as the surviving parent had a prima facie right to custody of the child.

[46] The Respondent submits that his decision to allow the child to remain in the Applicant’s care for two months following N.D.’s death did not establish any status quo in favour of the Applicant but was reflective of responsible parenting by allowing the child to finish the school year at her then current school.

[47] The Respondent submits that he cannot prove that the Applicant did not act as primary caregiver as this would put him in the impossible position of proving a negative. However, the Respondent submits that the Applicant did not provide sufficient evidence to establish on the balance of probabilities that she (the Applicant) was the primary caregiver and/or co-parent of the child from October 24, 2012 to June 30, 2017.

[48] The Respondent submits that as the Applicant was not the caregiver for the child no status quo was established. In the circumstances the Respondent submits that he is prima facie entitled to custody and primary residence and any access to the Applicant is at his discretion.

[49] In furtherance of his position the Respondent relies upon the Court of Appeal decision of Chapman v. Chapman2001 CanLII 24015 (ON CA) as well as the following decisions Parkins v. Parkins2006 CanLII 24450 (ON SC), 2006 CanLII 24450 (ONSC); Giansante v. Di Chiara2005 CanLII 26446 (ON SC); and Branconnier v. Branconnier2006 BCSC 2020 (CanLII).

[50] The Applicant submits that she has been the primary or joint caregiver for the child since October 24, 2012 and that the status quo is that she has had de facto custody and primary residence of the child since that date.

[51] The Applicant states that the test for determination of access and custody on a temporary basis is the best interests of the child as set out at s. 24(2)of the Children’s Law Reform Act.

[52] The Applicant argues that when considering the best interests of the child the fact that the Respondent is the biological father is only one consideration. The court is required to consider all factors and reach a determination on the basis of the overall best interests of the child keeping in mind the considerations noted at s. 24(2) of the CLRA.

[53] As a starting point, the Applicant submits that she has been the primary and/or joint caregiver for the child since October 24, 2012, and the status quo is that she has had de facto custody with the Respondent having weekend access. The Applicant argues that the case law favours continuation of the status quo pending trial.

Review of Evidence Establishing Caregiving Roles and Status Quo

[54] I have had an opportunity to thoroughly review the affidavits filed by the Applicant and note the following evidence was provided regarding the care and custody of the child B.S.D.:

  1.   The Applicant has been in the child’s life since her birth and has “been her primary caregiver” since October 24, 2012;
  2.   CAS called the Applicant to care for B.S.D.. Ever since that happened, the Applicant has  had custody and been the primary caregiver of B.S.D.;
  3.   From October 24, 2012 to June 30, 2017, the Respondent was prohibited from communicating with N.D. and despite his assertions the Respondent had no discussions with N.D. concerning any custody or access issues;
  4.   The Applicant and N.D. made the decision to send the child to a French Immersion School;
  5.   The Applicant has made ongoing custodial decisions for the child such as: getting her baptized, enrolling her in daycare, enrolling her in Catholic school for junior kindergarten, choosing her dentist, and family doctor;
  6.   The Applicant enrolled the child in summer camp, St. James Catholic School, and the Rainbows programs as she “always had the ability to make such decisions without the need for the Respondent to consent”;
  7.   the Applicant has fully cared for the child since she was 16 months old and shared parenting responsibilities with N.D. with her sole concern being B.S.D.’s  best interests;
  8.   Since October 24, 2012 the primary caregiver of B.S.D., for the most part, has been the Applicant’s sole responsibility;
  9.     On a regular school day, N.D. would drop B.S.D. off to school, and the Applicant would pick B.S.D. up (as she had to be at work at 7:30 a.m.). After school the Applicant was responsible for feeding, bathing, and putting the child to bed. The Applicant was also responsible for taking B.S.D. to her doctor and dentist appointments, and to all school events;
  10.     The Applicant never denied access to the Respondent. When the Respondent requested increased access to every weekend the Applicant did not oppose the increase as she wanted what was in the best interests of the child; and
  11.   Since N.D.’s death, the Applicant has taken sick leave from work until September 2017. Additionally the Applicant has made arrangements to work from home commencing in September 2017 to properly care for the child on a full-time basis.

[55] The Respondent has denied the Applicant’s claims and stated that he, together with N.D., made important decisions for B.S.D. together, including the decision to enroll B.S.D. in a French Immersion school. Despite the Respondent’s claim in this regard I note that the Respondent was subject to bail conditions that prohibited such communication. I have difficulty accepting this evidence.

[56] The Respondent stated that since B.S.D. has been in his primary care (June 30, 2017) he has continued to make important custodial decisions such as enrolling her in a summer day camp program. The enrollment is dated July 10, 2017, after the date that the child was withheld from the Applicant and after the Respondent had been contacted by the Applicant’s lawyer.

[57] The Respondent states that he is B.S.D.’s primary caregiver. However, the Respondent works on a full-time basis and provided no examples of any caregiving provided by him to the child.

[58] The Respondent stated that he attempted to discuss a parenting regime with the Applicant after N.D.’s death but the Applicant refused to participate in the discussion. Upon review of the messages I note that it was the Respondent’s mother who was communicating with the Applicant. There is no attempt by the Respondent to communicate with the Applicant.

[59] Having reviewed the evidence I accept that the Applicant has acted in a caregiving role as the primary or joint caregiver of the child since October 24, 2012. I further accept that the status quo has been that the Applicant has had de facto custody of the child either solely or jointly with N.D. since October of 2012 and the Respondent has exercised regular access.

Best Interests of the Child

[60] Having reviewed and considered the provisions of s. 24(2) of the CLRA I find that it is in the best interest of the child to remain in the de facto custody of the Applicant pending determination of the Respondent father’s criminal proceedings that are set to occur in March of 2018.

[61] My decision regarding the best interest of the child took into account the considerations noted above which establish the status quo and also include:

  1.   The Applicant has cared for the child since October 24, 2012;
  2.   The Applicant has provided security and stability for the child amidst the uncertainty of her parents’ criminal proceedings;
  3.   The Applicant took a leave of absence to care for the child following the death of her mother, arranged for grief counselling, arranged for special schooling and summer camp – and made all such arrangements PRIOR to the commencement of any legal proceedings in the ordinary course of caring for the child;
  4.   The Applicant arranged with her employer that she could work from her home and placed the child’s interests before her own;
  5.   The Applicant has a certain future while the Respondent’s future remains unsettled and uncertain pending determination of his criminal proceedings;
  6.   The Applicant has never denied the Respondent access to the child and has encouraged the relationship so that the child may know her father – thus evidencing concern for the best interest of the child;
  7.   The Respondent withheld the child on July 3, 2017, denied the Applicant access, and only agreed to telephone access after the Applicant’s lawyer became involved thus evidencing concern for his own legal position over the needs of the child; and
  8.   There is a real possibility that the Respondent may be incarcerated and/or deported following his criminal trial in March of 2018. It is unduly disruptive to disrupt the status quo until the Respondent’s future and his ability to care for the child on a full-time basis has been determined.

 

 

Determination of Motion

[62] As noted above in all of the circumstances of this case I find that it is in the best interests of the child to remain with the Applicant pending determination of the Respondent’s criminal proceedings which are scheduled to be commenced on March 19, 2018.

[63] In the circumstances I hereby order on a temporary without prejudice basis as follows:

  1.   The Applicant R.A. shall have primary residence of the child B.S.D., born […], 2011, pending determination of the Respondent’s criminal proceedings scheduled to commence on March 19, 2018;
  2.   The Applicant R.A. shall make all decisions concerning the health, welfare, education, and leisure activities (including schooling, camps and counselling services) for the child B.S.D.. The Applicant shall keep the Respondent D.P. advised of any activities that the child is enrolled and shall consult with the Respondent on all major educational and medical decisions provided that in the event of a disagreement the Applicant shall have the final decision making ability;
  3.   Subject to the provisions of the temporary interim Order dated July 27, 2017, the Respondent D.P. shall have access to the child each weekend from Friday at 4:30 p.m. to Sunday at 4:30 p.m.;
  4.   The Respondent D.P. shall have further generous access to the child for holidays, special events, birthdays, as agreed upon between the Applicant and the Respondent, acting reasonably, such access to be agreed upon in writing; and
  5.   The Costs of the motion are hereby fixed at $3,000.00 payable by the Respondent to Applicant within 60 days of the date herein.

Justice Susan J. Woodley

Released: July 31, 2017

Keep your kids out of it

September 11th, 2016 by

We may not realize it, but children are more observant than they seem. When children start to see their parents fighting, it has a major impact on their mental health, as well as long term and how they perceive relationships to be. One thing parents need to make sure about when going through a separation or divorce is that the children are away from the conflict and do not become messengers or therapists for the parents.

Not only is it unhealthy for the children and can affect their learning and development, but the courts strongly frown upon the children being involved in any conflict between parents. The adult issues that arise from separation need to be dealt with by adults and not have the children dragged into the battle and listen to what is going on.

Here are a few tips and judges rules for separated parents:

  • Do not use the children to relay messages to the other parent or to deliver child support or spousal support
  • Do not say bad things about the other parent or talk down about the other parent in front of or to the children
  • Do not make the children feel that they have to choose one parent over the other
  • Parents need to make sure that the children know they are loved by both parents and shall encourage the children’s relationship with the other parent
  • Do not ask the children to keep secrets or to use the children as spies
  • Do not question the children unreasonably about their time spent at the other parent’s home

One point I cannot stress enough is do not make the children feel that they have to pick one parent over the other parent. This can happen easily by saying bad things about the other parent and no child should ever hear their parent speak that way about the other. The children need to know that both parents love them equally and that they would both do anything for them.

Children, although observant, are fairly sensitive and sometimes feel that the separation or conflict is caused by them. This can happen easily with them overhearing conversations, observing the parents fighting, or simply from the parents telling them too much information about the separation. A child should never feel that they are at fault for the breakdown of the relationship and that is why it is so important not to involve the children in the conflict. Make sure to keep any conversations pertaining to the separation between adults, with no children around.

In the end, the children are not the ones who are there to be the messengers and mediators and by letting them get involved with the conflict, it only creates a more negative and unhealthy environment for all parties involved. The best way to help keep the conflict away from the children is by seeking legal advice and letting the professionals deal with the issues, rather than involving the children.

Our family law lawyers at A. Princewill Law Firm aim to keep conflict to a minimum and make the separation process as easy as possible for everyone, especially the children. Let us help you.

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    Child Support Arrears – Lawyer ordered 75 days jail time

    April 21st, 2016 by

    What happens when you fail to pay support? Well, you could get thrown in jail that’s what.

    In the case of Ontario (Family Responsibility Office) v. Adema, 2016 ONCJ 37, Justice Sherr committed the payor who happened to be a lawyer to jail for 75 days or until he paid $3,500 per case towards arrears (there were two cases where support was owing by the same payor).

    He had been given multiple opportunities to deal with the issues but failed to follow through. He did not bring a motion to change and other measures such as suspending his licence and passport did not work. The judge was disappointed that a lawyer acted in such a manner.

    Whoever you are, the message is clear. There will be consequences for non-payment of support.

    Do you have support arrears? Do you believe you should be paying less support or that support should be terminated? Do you want arrears wiped out? The legal team at A .Princewill Law Firm can help you. Contact us today at 905-492-7662, [email protected] or by completing the contact form below.