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Embryos – Consent vs Contract | How do you deal with Genetic Material post separation?

August 21st, 2020 by

Some much-needed guidance in the fertility law area concerning genetic material such as Embryos.

INTRO

As reproductive technologies continue to advance and evolve, society is slowly becoming more accepting of the use of such science and technology. Couples resorting to reproductive technologies to make complete their family is becoming increasingly common. However, as the general acceptance of such methods increases, there are certain questions which arise. Questions that in the family law context, can be of significant importance to you or your loved ones. Who has ownership of an embryo? Is an embryo even considered property? What happens after separation or divorce?

In 2018, an Ontario court battled these very questions and attempted to provide some much-needed guidance. In S.H. v. D.H, the courts looked at what happens to am Embryo upon divorce or separation where neither party has a biological connection to the Embryo itself.

FACTS

In 2012, a married couple entered contracts with two companies regarding the use of reproductive technology to conceive a child. The couple purchased two viable Embryos from a facility in Georgia, USA and entered a contract with the company. For the sake of Simplicity, we can refer to this contract as the “Georgia contract”.

The couple then transported the two Embryos to a fertility clinic in Mississauga. Wherein they entered a second contract. We can refer to this contract as the “Ontario Contract”.

On December 9, 2012 DH, the mother gave birth to their first child using one of the Embryo. On December 18, 2012, the couple separated. The question then arose, who owns the second Embryo? Family Law rules and the concept of equalization state that all property between the husband and the wife needs to be split. In that case, what happens to an Embryo?

Parties Position and Decision

The position of the wife is that the Ontario Contract should be enforced. The Ontario contract states the agent (of the fertility clinic) “shall respect the patients wishes”. In the contract, the wife is defined as the patient. Additionally, the wife argued that while she was still capable of carrying a pregnancy according to her doctor, she was 48 years old and time was of the essence. Attempting a natural pregnancy would prove to be time-consuming and risks losing the window to have a second child. The Father argued that he alone paid for the Embryos, they were his property. Further, the father argued that the best interest of the child is at the heart of all family law cases involving children, and that the mother is not self sufficient and would not be able to provide for more than one child.

The Ontario Court ultimately upheld the Ontario contract and provided the mother with use of the Embryo. They based their decision entirely off Contract and Property law by putting significant weight on the language of the contracts. As the Ontario contract stated the patients wishes would be respected, the courts deemed it acceptable to award the Embryo to the Mother with the mother having to pay the cost of the final Embryo to the father.

APPEAL

In 2019 however, the Ontario Court of Appeals decided to overturn the decision of the lower court stating that neither property law nor contract law govern how to effectively dispose of an Embryo.

Instead the Court of Appeals decided that the Reproduction Act (AHRA) and The Assisted Human Reproductions Regulations specifically Section 8 Consent regulations prevail in this matter.

The Court of Appeals decided that a consent-based approach needs to be applied to such situations as opposed to strictly interpreting contracts. As a result, the Court of Appeals allowed the husbands appeal to withdraw his consent to the use of the Embryo by the wife.

The AHRA states in s. 2(d) that “free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies”. S. 8(3) prohibits the use of an in vitro embryo for any purpose without the consent of the “donor”. S. 61 establishes that any prohibited use is a criminal offence under the Criminal Code of Canada

The AHRA and the Consent Regulations provided the husband with the ability to withdraw his consent, and that a contract cannot deprive him of this fundamental right. The entirety of the AHRA places a significant importance on consent throughout the act. It would be counter productive to the act if the prior consent of the husband were irrevocable. Over time, many things change especially with regards to something as delicate as the use of an Embryo that it would be simply wrong to make consent completely irrevocable.

Secondly, under the AHRA, donor status also extends to spouses that did not contribute any genetic material to the creation of the Embryos but were still married at the time the Embryos were created. The act further states that separation or divorce does not change the donor status of a couple with regards to the Embryo where BOTH individuals are genetically connected to the Embryo or are not connected to the Embryo as in this case. The donor status only changes upon divorce or separation if there was only one genetically contributing spouse when the Embryos were created. Thus, despite their divorce, both DH and SH are still considered donors.

The principle of free and informed consent is a fundamental aspect of the AHRA and consent regulations. The language of the contracts makes it clear that consent is free and ongoing and can be revoked by either donor at anytime. Since it is a criminal offence to use genetic material without written consent, an individual should have not the ability to simply contract out of a criminal offense.

In summary, the Court of Appeals concluded that Consent is a fundamental part of AHRA and fertility law in general. That consent is ongoing and revocable and that the contracts do not deprive him of that right. The courts found nothing in the AHRA that deprived SH of his donor status and there was nothing that can extinguish his rights as a donor.

FUTURE IMPLICATIONS?

Although fertility law is still a premature area in Canada, this case has provided some much-needed initial guidance. There are several things to note about this decision. Firstly, Embryo’s can now be treated as legal property that may need to be disposed of on separation or divorce to either party. However, unlike bank accounts and other assets that can be divided equally in a relatively easy fashion under the Family Law Act, dividing an Embryo is simply impossible. Due to this, courts may choose to award significant weight to the language of the contract itself, the intention of the parties while entering the contract or may simply interpret the AHRA. What is clear however, is that one way or another, genetic material such as an Embryo will need to be addressed upon separation or divorce whether that means one party gets to keep it or to neither.

What is clear now is that consent will always supersede the language of contracts. Despite what a contract might state, either party that still retains their donor status will be able to withdraw consent related to the use of their genetic material. Once cannot contract out of revoking consent. Consent no matter the contract, will always be revocable by a donor.

This does not mean that contracts and intention of the parties will be entirely ignored. Simply that they will be secondary. Having a clear and concise contract that details what is to happen to genetic material such an Embryos in various situations is still incredibly important.

It is also worth noting that the Assisted Human Reproduction Act (AHRA Act), which makes the purchase or sale of Embryo’s illegal was not applied in this case. There was also no biological connection to the Embryo. Perhaps if only one party had (or did not have) a biological connection to the Embryo, the case would change drastically. This leaves the question of how the AHRA Act may potentially apply and change things in such cases.

Stefanie Carsley, in an article for The Globe and Mail titled “who has control over frozen Embryo’s after divorce?” made several key points regarding the future of fertility law. She questions whether men and women should have equal say in the control of an Embryo as there are health risk and side effects that women endure by harvesting their eggs that men do not have to experience. She further notes that men can continue to re-produce at a much older age as compared to women. A frozen Embryo may then represent a woman’s best or only chance of conceiving a child.

All in all, S.H. v D.H., at both the lower court level and at the Court of Appeals provides valuable insight into the future of fertility law and possible disposition of genetic material. However, this is still a developing area that parliament needs to legislate further on to provide clear guidelines.

Should I Bring A Contempt Motion Because My Ex Is Not Encouraging Parenting Time With Me?

May 21st, 2020 by

Often, parents are confused about what their role is when it comes to parenting time with the other parent. If the children do not want to go, do you force them? Do you have to? What is the custodial parent’s role in all of this? This issue was litigated in the case of Godard v Godard 2015 ONCA 568 where the Father brought a Motion of Contempt against the Mother for not complying with 6 months of weekend access with one of the children. Their situation was unique as each parent had custody of one of their two children.

The Father’s initial Motion of Contempt was dismissed as the parents were actually following a parenting schedule different from the one on their Court Order. However, Justice Cornell noted concerns that the Mother engaged in a pattern of designed to distance/alienate one of the children from the Father. The child, who was approximately 12/13 years old when this was going on, continued to refuse to see her Father. Of course, he brought a second Motion of Contempt that was granted.

The Mother appealed his Motion on the basis that she was doing everything to encourage the child to see the Father but that the child made up her mind and she could not force her. The Court of Appeal denied the Mother’s appeal for a number of reasons. Mainly, they found that the child was being positively rewarded when she refused to see her Father, the decision was mainly left up to her, the Mother did not force the child despite the view of the court etc.
Despite the child’s age, the court found that there was a parenting order not being complied with and it was in the child’s best interest to see her Father and expected that the Mother would comply with this and not leave the decision up to the child. It would have been up to the Mother to change the parenting arrangement in court herself as a result of her daughter’s decision to not see her Father instead of just allowing it to happen. At the end of the day, the court order was not being followed for inappropriate reasons.

However, fast forwarding to 2019, in the case of Ruffolo v. David, 2019 ONCA 385, the court found that Motions of Contempt for parenting should be used as a last resort. Similar to the Godard case, this case was a Motion of Contempt brought by the Father against the Mother for 37 breaches, but the court found three possible counts of contempt. Namely that the Mother did not allow the Father to see the child on Easter weekend, his birthday and did not provide the child’s summer schedule.

Different from the Godard case, the appeal was dismissed. The Court’s dismissal was focused on the lack of an evidentiary foundation to support the allegations made by the Father. In addition, the court really wanted to emphasise that Motions of Contempt shall not be readily brought and are a last resort only where the best interests of the children are affected.

When comparing both cases, they certainly contrast each other when it comes to determining the role of the parents with encouraging access and contempt motions. Will the Ruffalo v. David decision become the best way forward where the Mother’s breaches of the court order could not be proven and thus dismissed? Or will the Godard decision be the best way forward where the Mother was not encouraging the child to see her Father enough and the contempt Motions were allowed? What we can say is that it will come down to the facts of the cases and the issues at hand. Timing and the best interests of the children are paramount.

Talk to one of our experienced family law lawyers today to find out what you can do if the other parent is not complying with a court order or parenting agreement. If you think they are in contempt, let us help you navigate through case law, like the ones cited above, to move your matter forward the best way possible.

Could Eid Be Considered A Holiday In Your Parenting Schedule?

May 18th, 2020 by

When it comes to sharing parenting time of your children, the regular parenting schedule is overridden by the holiday schedule. Most parents make specific provisions for Christmas, New Years, Thanksgiving and Easter. Did you know that Victoria Day, Labour Day and even March Break could be considered holidays to include in your holiday schedule? Those are just a few but there are more holidays that parents do not even consider that could form part of the holiday schedule. But what about specific religious holidays like Eid?

With the holy month of Ramadan, Muslims all around the world are getting ready to finish their month of fasting and religious observance. They end with a festive holiday known as Eid-ul-Fitr. It is common for Muslims to take a day off from school, work and their day-to-day affairs. For Muslim parents who are separated, it is tough deciding which parent the children spend with. It is a day full of family affairs for many people and each parent would want the children with them. So, how can we make this work?

It is not common to see Eid as a holiday on a holiday schedule in Court Orders or Parenting Agreements. But if it matters to you and if it is a holiday to you, then you can expressly state that! Why not include it in your parenting agreement, separation agreement or court order.

This way, there is no confusion about which parent the children will spend this holiday with. If you already have an agreement in place or a court order and you are finding that your religious holidays are not included, talk to one of our experienced family law lawyers today to see what option is best for you to change that.

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.

COVID-19, Court Closures & Your Custody Order

March 26th, 2020 by

If there is one thing that Family Law Lawyers have learnt during this COVID-19 pandemic, it is that there is so much we do not know about how to navigate the justice system with all these rapid changes caused by this pandemic.

Let’s take one example. The Superior Court of Justice suspended ALL scheduled hearings indefinitely, starting March 17, 2020. The courts, however, will continue to hear urgent matters during this emergency period, including:

  1. requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home);
  2. urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of a child;
  3. dire issues regarding the parties’ financial circumstances including for example the need for a non-depletion order;
  4. in a child protection case, all urgent or statutorily mandated events including the initial hearing after a child has been brought to a place of safety, and any other urgent motions or hearings.

What then can be done in a situation where a custodial parent denies access visits to the access parent? Is this a wrongful retention of a child so that the issue can be heard at this time? It is certainly not related to the child or parent’s safety. But really, is it wrongful retention?

If it isn’t, as is most likely the case, is the access parent powerless to do anything during this emergency period?

Thankfully, if a parent failed to return a child after March Break as provided in a court order, it clearly would be a case of wrongful retention. But is it? Couldn’t that party just argue that the government extended the March break and so they really are not violating the order?

What if a parent has concerns about the hygiene conditions at the other parent’s home and refuses to allow the child to visit the home, thereby blocking that parenting time with the child? It is urgent because it surely relates to the safety of the child at this time – Right? Well…. could be wrong.

As with everything COVID-19, we seem to be left with more questions than answers but be not dismayed. At AP Lawyers, we are following the developments closely, asking questions, and getting answers where possible (frankly, the authorities are still trying to figure most of it out).

What you can always count on is our creativity in getting solutions and that matters now, more than ever. We remain open to serve you via Video Conference, Skype, Telephone, Email, and Live Chat.

 

Contact us today:

Telephone: 905-492-7662
Email: [email protected]
Live Chat: www.aprincewill.com

 

Do I Have to Force My Child to Go to Schedule Visitations If They Refuse?

December 27th, 2019 by

Divorce with minor children can be very stressful and full of new challenges once the divorce has been finalized. Even though you are no longer married, you will continue to have a relationship with your ex-spouse because you have children.

(more…)

My ex-girlfriend is refusing to let me see my children. Can I bring a contempt motion?

June 6th, 2018 by

By Sherine Abdi

Having an order in a Family Law proceeding is one thing; whether the conditions of that order are followed is another. Although most individuals are prepared to abide by court orders to honour their obligations, steps must be taken to secure compliance and enforce access when one party refuses to comply.

What are Contempt Motions?

Contempt Motions are a means to determine and potentially enforce a breach of any terms or requirements within an existing Judge’s order(s).

When are Contempt Motions Available?

  1. (1) An order, other than a payment order, may be enforced by a contempt motion made in the case in which the order was made, even if another penalty is available.  [O. Reg. 114/99, r. 31 (1).]

Rule 31 (1) of the Family Law Rules governs when a contempt motion can be sought. This Rule permits that an order (other than for payment) can be enforced by way of Contempt Motion. By example, when one  party refuses to comply with an access order of a child, that person is potentially sanctioned for their breach of any terms within the final or interim order..

Warrant to Bring to Court

To bring before the court a person against whom a contempt motion is made, the court may issue a warrant for the person’s arrest if:

(a) the person’s attendance is necessary in the interest of justice; and

(b) the person is not likely to attend voluntarily. O. Reg. 114/99, r. 31 (4).

What Can Become of Contempt Orders?

If the court finds a person in contempt of the court, it may order that the person;

(a) be imprisoned for any period and on any conditions that are just;

(b) pay a fine in any amount that is appropriate;

(c) pay an amount to a party as a penalty;

(d) do anything else that the court decides is appropriate;

(e) not do what the court forbids;

(f) pay costs in an amount decided by the court; and

(g) obey any other order.

As discussed, in the principal case of Hefkey v. Kefkev, a contempt remedy should be one of last resort. It should not be sought where there are other suitable remedies available to the parties. However, in Godard v. Godard a foundation case states that despite the principal noted in Hefkey, civil contempt is an appropriate remedy in the face of persistent non-compliance with access orders.

Therefore, if a court order states that one parent must facilitate and encourage access to a child, and the required parent does not abide by that order, then there can be several consequences, which may include imprisonment. As such, it is required that parties facilitate and encourage access in accordance to a Judge’s order(s).

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

Angelina & Brad – custody and access issue

September 21st, 2016 by

Bradgelina and kids Angelina Jolie Brad Pitt and kids

A major question on everyone’s mind following Angelina Jolie filing for divorce from Brad Pitt is, what would happen with their six children?

Angelina has asked for joint legal custody but sole physical custody. What this means is she wants to make important decisions regarding the children jointly with Brad, but she wants the children’s main residence to be with her. Brad will have visitation rights (called access in Ontario).

In Ontario, such custody and access disputes are settled on the basis of the best interest of the children. The best interest of the child test is the ONLY relevant test in custody and access matters.

Given that Brad and Angelina have made themselves out as the models for success co-parenting, Angelina’s legal team have their work cut out for them, especially given reports that have surfaced showing that primary residence of the children with Angelina is unacceptable to Brad. Pitt has even been quoted as saying “there’s no chance that’s going to happen”. These sources say Pitt wants to co-parent the children with Jolie.

In a custody dispute in Ontario, this would weigh positively in Brad’s favor. The Divorce Act in Canada, deals with this maximum contact principle as follows: In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
(s.16(10) Divorce Act (R.S.C., 1985, c. 3 (2nd Supp.))

Therefore, where a parent (Party A) tries to alienate the other parent (Party B) from a child’s life, the court may award custody to the other parent (Party B).

The story is only starting to unfold, and thousands of miles away from Ontario. We can only wish the children the best and hope that their best interest remains the central focus of any resolution of the custody and access issue.

My ex feeds the children candy and junk food. Can I stop access visits?

March 1st, 2016 by

As a general rule, parents must encourage and facilitate children having as much contact with both parents. This may not always be ideal and that is why all decisions regarding custody and access are made on one standard only – the best interest of the children! NOT the parents’ wishes.

Access to children

The ability of a parent to care for a child is a consideration in determining the best interest of a child but absent any special dietary concerns, feeding the children candy and junk food in and of itself is not likely to be considered reasonable grounds for witholding access.
My advise is – talk to your ex about this in a non-confrontational way. Maybe have a respected 3rd party such as a mediator help you with it to ensure that your message is communicated properly and that the other party doesn’t feel judged or that you are controlling him or her.
Good luck.