Police Enforcement of Custody and Access Orders

Custodial and access (also known as “visitation”) rights under a court order or from a separation agreement are enforceable under the Criminal Code of Canada and the Hague Convention on International Child Abduction.  Both the Code and the Convention serve to protect a child’s right to security and stability by enforcing custody orders and prohibiting child abductions, locally and internationally.

The enforcement of custodial and access rights in Ontario is also governed by the Children’s Law Reform Act (CLRA).  Pursuant to section 36 of the Act, if a family court judge is satisfied that there are “reasonable and probable grounds for believing that a person is unlawfully withholding a child” the court has the ability to compel the police to enforce a custody or access order and may authorize the police to locate, apprehend, and deliver the child to the person entitled to custody or access of that child.

Courts have refused to grant an order for police enforcement on the grounds that it would be intrusive and a potentially frightening method of enforcement to a child.   Drake v. Cox (1993). Such a result would not be in the best interests of a child and some courts have instead opted to punish an act of willful contempt by imposing either a fine or imprisonment for the failure to comply with a custodial or access arrangement as stipulated by the court.

Courts can issue police enforcement orders if deemed appropriate in light of the surrounding circumstances, such as a history of unjustified access denial between the parties, serious threats of non-removal of the child, or to maintain the relationship between the child and the person entitled to custody or access, and that such enforcement would outweigh any potential risks.

For more information about the enforcement of your custodial or access arrangement, contact us at 416 222 4555 or info@divorcesupport.ca.

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By candice - Last updated: Wednesday, February 24, 2010
Filed in Child Custody in Ontario, Child Visitation, Marriage Contracts, Separation Agreements • Tags: , ,


Bill to assist First Nations Women during divorce delayed by the Olympics

First Nations WomanIn most of Canada, in the event of the breakdown of the marriage there are laws governing matrimonial property that prevent one spouse form ending up on the streets. Similar laws don’t apply on First Nations reserves, where they have their own laws to govern divorce, which unfortunately are seriously lacking any mention of the fair division of matrimonial property. The Indian Act is what governs First Nations, not regular family provincial or federal laws. This fact leaves many First Nations women struggling or even homeless in the event of a divorce.

Because the reservations are typically such a tightly-knit community, many women who are faced with divorce or the breakdown of their marriage because of abuse, have to leave the entire reserve – and their families and friends – to get themselves into a stable situation. Otherwise they find themselves on the streets, in shelters or fighting for custody rights with little help or support from the law.

The Ministry of Indian Affairs had put forth a bill, Bill C-8, that would incorporate matrimonial property division for First Nations people living on reservations.

So far, the bill has been both positively  and negatively received by the First Nations community, with a few mentioning the statistics of First Nations women being left to fend for themselves is exaggerated. However in Canada, Native women are five times more likely to die as a result of violence and if the amount of missing and murdered First Nations women were relatively compared with the rest of the population, it would total 9,000 or so missing and murdered non-First Nations women since 2000 alone.

Bill C-8 was supposed to be presented in Parliament in January, but the proroguing of Parliament has delayed the bill until after the Olympics when Parliament resumes.

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By michael - Last updated: Monday, February 22, 2010
Filed in Divorce, Divorce Lawyer • Tags: , ,


Child Abduction by Non-Custodial Parent: Passport Control List

Child abduction is a terrifying thought, and when the possibility of the child being abducted by a non-custodial parent exists, the situation can become complicated.

The Hague Convention exists, which is a series of laws that governs international debacles such as when a parent brings a child to another country illegally. However, the recent popular story of one American man’s legal battle to have his son, who was brought to Brazil by his mother, returned to him exposed some of the weaknesses of the Hague Convention, as the father won only after five years of fighting

There are preventative measures that can be taken to help ensure cross-country child abduction by a parent doesn’t happen. One of these preventative measures includes using the Passport Control List, which can be done if it is the primary custodial parent who fears abduction by their ex-spouse.

One must have primary custody of the child, who must be under 16 and at risk of being abducted. There is a Passport Control List Application Form available at any Passport Canada office, as well as information on the required identification and custodial proof agreement that is needed to process the application. Passport Canada will then decide if the situation necessitates the child being added to the list

If the child is on that list, the RCMP will be alerted when the child attempts to cross a border or someone applies for a passport in their name. With this information, the RCMP also has the capability to issue an AMBER alert

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By michael - Last updated: Saturday, February 13, 2010
Filed in Child Custody in Ontario • Tags:


Enforcing Child Support and Spousal Support Orders: The Family Responsibility Office

Pursuant to the Family Responsibility and Support Arrears Enforcement Act, the Family Responsibility Office (“FRO”) was established to ensure that support payments were made between the payor and the recipient.  FRO enforces both support orders issued by the Ontario courts and support obligations as set out in domestic contracts that are filed with the courts. FRO can also enforce support orders issued in another province or country with which it has a reciprocating agreement.

Once a case is registered with FRO, the agency then begins the process of both collecting support payments from the payor and then forwarding the payments to the support recipient.

If support payments are not made, FRO has the legal authority to take enforcement action to recover any monies owed.  Enforcement action can include garnishment of bank accounts, suspension of the payor’s driver’s licence, garnishment of any monies received from the Federal Government (such as income tax refunds, GST rebates, employment insurance, CPP benefits), suspension of the payor’s Canadian passport, and seizing of lottery winnings.  If the support payor has failed to make a support payment for at least six months and FRO has exhausted all efforts to locate the payor, FRO may post personal information and a photograph of the payor on a related website in order to receive assistance from the public in locating the payor.

To avoid such enforcement action, it is in the payor’s best interest to meet his or her support obligations in a timely manner.  If a payor’s financial situation changes, the payor should contact FRO to discuss a possible payment plan.  The payor should also contact a lawyer to find out what his or her options are, including filing a motion with the court to change the amount of support the payor is required to pay as set out in the support order or domestic contract.

For more information about the enforcement of child and spousal support payments, please contact Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca.

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By candice - Last updated: Monday, February 8, 2010
Filed in Child Support, Cohabitation Agreements, Separation Agreements, Spousal Support, Support Orders • Tags:


Turkish Man Divorces Wife after learning he is the Father of only One of her Twins

Bizarre as this may sound, it is apparently true.

Last week, a man in turkey had his suspicions confirmed when he received the DNA results of the three-year-old twin boys he shares with his wife. The DNA testing confirmed that only one of the twins was his, and that the other was fathered by another man, according to reports.

The mother of the twins has maintained that she had been seeing someone else prior to being forced into the marriage. She has since taken out a restraining order against her husband’s relatives and her own because she was receiving death threats.

This type of circumstance isn’t something seen often on Maury Povich. While much more common in animals like cats, dogs, lizards and snakes, there are instances in which twins can arise from two different sets of sperm, called “heteropaternal superfecundation”, and there are many recent news reports of this phenomena occurring all over the world.

A woman may release two eggs, which is very rare in itself, and each of these eggs is then fertilized by one sperm each, creating a set of fraternal twins that may only look as similar to one another as the average siblings. In fact, last year in the United States a set of twins was born to one mother and father of two different races – one twin had much lighter skin, eyes and hair like the mother and the other twin had darker skin, hair and eyes like the father.

In Canada, couples can obtain a divorce due to the marriage breaking down because of adultery without having to go through the mandatory one year separation period prior. We have yet to see a case of heteropaternal superfecundation as a grounds for divorce in Canada but you never know.

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By michael - Last updated: Tuesday, February 2, 2010
Filed in Divorce, Divorce Lawyer • Tags: , ,