MP plans on private member’s motion to review Canada’s Divorce Act

A Saskatchewan Conservative MP, Maurice Vellacott, has put forward a private member’s bill, Bill C-422, that would amend the federal Divorce Act to mandate shared custody of the children when parents divorce, unless a parent can show that it is not in the child’s best interest to do so.  This piece of legislation was first brought before Parliament over a year ago but is still in its first reading.

Recently, a Western Arctic MP, Dennis Bevington, has announced that he has agreed to put forward a private member’s motion to have the federal Divorce Act reviewed in the House of Commons. The motion was put forward, in part, after Bevington was approached by a Yellowknife resident, Mark Bogan, who, on behalf of the Canadian Equal Parenting Council, is seeking to have shared custody of children become the presumed arrangement when parents divorce.

According to Bogan, Canada’s Divorce Act is outdated and there should be legislation focused on keeping divorce cases out of court while encouraging shared parenting, where both parents have equal custody. “It’s better for the parents to mediate and come up with an amicable solution,” Bogan recently quoted in Northern News Services. “If they’re unable to do that, court would mandate they would have an amicable, loving relationship with children. ‘Keep kids out of court’ is really our message, keep these families healthy.”  Because of the Divorce Act, Bogan said he was not allowed access to two of his children for the better part of their lives, one of whom is now 19 years old.

Bevington said it was not only the Canadian Equal Parenting Council’s ideals but the “litigious nature” of the Divorce Act that pushed him to action. A private member’s motion is not the same as a private member’s bill, because it does not have the same policy recommendations as a private member’s bill. However, it can let the government know that important changes do need to be made.

Email This Post Email This Post


By heather - Last updated: Thursday, July 15, 2010
Filed in Child Custody in Ontario, Divorce • Tags: , , , , ,


Facebook Privacy Issues and Ontario Family Courts

The social networking website called Facebook is a tool to exchange information that has now made its way into the courtroom and is being used as evidence in litigation, particularly in family law disputes. In the United States, Facebook messages are commonly used in family law cases, as well as in civil and criminal cases and jury selection; while in Canada, the use of Facebook as documentary evidence is steadily on the rise.

Facebook has recently simplified its privacy settings and a user can now set his or her Facebook settings to enable only persons the user has manually added to their “friends list” with the ability to access and view the user’s on-line profile.

Another important feature within Facebook’s account privacy settings is the user’s ability to limit the information “friends” can view on the user’s profile. For instance, a user can prevent an ex-spouse or soon to be ex-spouse from viewing photos, relationship status, or wall postings.

Facebook users should be aware of a specific privacy setting that is available for ‘Applications’. Even though some users do not have the game FarmVille, or similar Facebook games uploaded to their profile, when a user’s “friend” has installed the game on their profile that game now has the capability of pulling personal Facebook information and photos from any listed “friends” of that individual. An adjustment to the privacy settings to prevent any sharing of information with an Application is recommended.

Due to the increase in the use of Facebook as documentary evidence in several recent Ontario family law court cases, Facebook users with pending court matters should not post information pertaining to the case and should also consider adjusting their privacy settings to avoid the possibility of having personal information used against them in court. 

 

Email This Post Email This Post


By heather - Last updated: Sunday, July 11, 2010
Filed in Child Custody in Ontario, Child Support, Child Visitation, Divorce, Spousal Support, Support Orders •


Judges Interviewing Children during Ontario Family Court Divorce Cases

Television, movies and other various forms of media often inaccurately depict court room procedures of cases dealing with divorce and child custody. In many instances, the media will have a child on the stand as a witness being questioned by a lawyer. In reality, children are rarely in court and instead their parents provide to the court the child’s wishes.

A recently published article in the Lawyers Weekly Magazine highlighted the infrequency in which Ontario judges meet with or interview children involved in custody disputes. In the article, a 2009 survey that interviewed judges in both Ohio and Ontario found that less than half of the judges in Ontario had ever interviewed a child.

Ohio was chosen in the comparative study because it is common practice for judges in that state to meet with and interview children as it is considered a useful tool in handling family law cases. In contrast, in Ontario interviews of children in family law cases is rarely elected to be performed by the judiciary due to the fact that judges do not have the training needed to effectively interview children in such important matters. Instead, children are often interviewed and/or assessed by either a psychiatrist, or other licenced professional, or a children’s lawyer. Alternatively, in Quebec, the process of judges meeting with children privately – without their parents present – is becoming more and more common.

When a child in a divorce case does end up in a courtroom setting, the judicial interview can make an already stressful situation even more so.  However, the article suggests that Ontario judges should meet with the child to speak with him or her directly – while not recommended as the only way of getting a better understanding of the child and their situation – to allow the judge to gain better insight into the child’s views and preferences, as well as providing the child with a forum for their point of view to be been heard on decisions that impact their lives. This process also allows the child to learn more about the judicial process and how decisions are made.

Judicial interviews may prove to be beneficial for children of divorces, particularly where parental alienation has been alleged.  Judicial interviews can assist in the determination as to whether alienation has occurred and/or whether the child has legitimate reasons for not wanting to see a parent.

LINK:

http://www.lawyersweekly.ca/index.php?section=article&volume=30&number=9&article=2

Email This Post Email This Post


By heather - Last updated: Wednesday, July 7, 2010
Filed in Child Custody in Ontario, Divorce •


How a Family Lawyer can help you during Custody Disagreements

Nearly 38 per cent of Canadian marriages end in divorce, many of which involve children. Some soon-to-be divorced parents feel that child custody is something simple, and that if it were to play out in court the judge will see things fairly and dole out child custody arrangements as they should.

However, that’s not always the case and a good family lawyer can assist in child custody arrangements because they know the ins and outs of Ontario family law. A family lawyer can also help you avoid the court process alone-childaltogether through alternative dispute resolution.

There are several different types of child custody, and family law courts don’t always assign just one or the other when it comes to joint or sole custody.

Access

Access is also called visitation, and this access may be supervised or unsupervised. Access is what the non-custodial parent gets when the other parent receives custody, and if the court is concerned about the abilities of the parent with visitation, this access will be supervised. This supervision is often provided by some kind of social worker at a neutral location, but can take place in the non-custodial parent’s home too.

Legal custody

Legal custody is the right to make decisions on the needs of the child, whether it be related to education, health care or religion.

Sole custody

Only one parent has complete custody of the children.

Split custody

In a case of multiple children, one parent has custody of some of the children and the other parent has custody over the rest of the children.

Joint custody

Both parents have custody and are generally amicable in their decisions regarding the welfare of the children.

Physical custody

A child lives with one parent and the other typically has visitation. Joint physical custody is also an option.

Shared custody

Both parents have custody of the children, and each parent must spend at least 40 per cent of the time with the children.

Email This Post Email This Post


By michael - Last updated: Sunday, May 2, 2010
Filed in Child Custody in Ontario •


Adoption, Spousal and Child Support: What Family Law Rights do Unwed Fathers have?

Unmarried Father’s Rights to Children: Family Law Perspective

The legal obligations of fathers who aren’t married to their child’s mother are typically the same as if they were married, with only a few minor differences.

Adoption

Unlike pregnancies that result from a marriage, in these situations the child may be put up for adoption. If the man is aware of the child’s existence, he may have a decent chance of gaining custody of the child if the mother intends to give it up for adoption.

There are no current laws that force women to tell the father about a pregnancy.

Spousal Support

Spousal support for unmarried people doesn’t normally apply. However, it may if the couple falls under the definition of “spouses” as per the Family Law Act. For example, if a couple has lived together for three years or has lived in such a manner that it would appear to be marriage-like to a judge, there can be spousal support involved.

Child Support

The amount of child support paid by a father is not dependent on whether or not the couple is married. Whether or not the child was expected is also not factored into this decision, although an unmarried father may also be forced to pay for some of any prenatal expenses, according to the Family Law Act in Ontario.

Roe v. Wade for men

While in the United States and Canada women have the choice as to whether they want to go through with a pregnancy or not, men do not have such a choice. In 2006, a man in Michigan was ordered to pay almost $500 per month in child support to his ex-girlfriend, even though she was well aware he did not want to have a child and she had told him many times that she was physically unable to get pregnant. Some may argue that if the woman did not want to abort the child and refused to put it up for adoption she should have been able to pay for the child herself. The case was dubbed “Roe v. Wade for Men” and attempted to prove this very notion with a lawsuit, but the lawsuit was eventually dismissed.

Email This Post Email This Post


By michael - Last updated: Tuesday, April 13, 2010
Filed in Child Adoption, Child Custody in Ontario, Child Support, Spousal Support, Support Orders • Tags: , ,


When co-parents divorce: Jesse James and Sandra Bullock

Days after actress Sandra Bullock won a Best Actress Oscar for her role in The Blind Side, news outlets came forward with the story that a woman was claiming to have been her husband’s mistress for over 11 months. Her husband, Jesse James, is a television personality that started on the Discovery Channel show Monster Garage and is currently the head of West Coast Choppers. Bullock and James married in 2005, after meeting on a tour of the set of his show.

It’s alleged that Bullock found out only eight days after winning her award, and she has canceled numerous promotional appearances since. Several other mistresses have also come forward, and James has since apologized but not elaborated on which allegations are true or false.

Bullock has no children, and James has three children from previous relationships. He has a daughter and a son from his first marriage, and a second daughter with his second wife, an adult film actress named Janine Lindemulder. Because of Lindemulder’s severe legal troubles (which have led to jail time), James sought and was granted full custody of their daughter, six-year-old Sunny. Lindemulder is still allowed weekly visits during daytime hours.

Various news outlets have reported on Bullock and Sunny’s bond, as Bullock has been co-parenting Sunny with Jesse James. While there has been lots of speculation on whether Bullock may try to gain custody of Sunny in the event that they do divorce, news outlets are now reporting that she will in fact go ahead and fight for custody. Lindemulder herself has also said that she is supportive of Bullock and Sunny’s relationship and that she would not get in the way if Bullock were to try to obtain custody.

Unfortunately, infidelity doesn’t have much bearing on custody results. However, Sunny is only six years old and Bullock has arguably been parenting her for nearly her entire life as her biological mother has been deemed unfit.

If Bullock and James were Ontario residents and Bullock requested custody of Sunny, the courts would look at whether Bullock provided financially for the child, the nature of their relationship and whether Bullock had maintained in both private and public life that she was Sunny’s parent and acted in such a manner. After determining whether Bullock was indeed a parent to Sunny, the courts would have to look at other factors to determine how custody between Bullock and James would play out. His behavior may not make him an unfit parent by default, but it may be considered if it hurt Sunny in any way or affected his ability to act as a parent.

Both Bullock and James would then have to make their case as to their relationship with the child, their willingness to raise and take care of the child and how they plan to do so, the stability of their homes and other factors. Blood relations are also considered, as is the choice of the child herself. While it is unlikely in this case, if the proceedings were in Ontario, that Bullock would be able to take full custody of a child whose biological father who has already won custody, she should be able to get partial custody or visitation.

It’s heartbreaking when a step-parent enters into a home, essentially becomes a part of a family and then the marriage doesn’t work out. But this case goes to show that a divorced step-parent can very much still be a part of their step-children’s lives, no matter how young the child is, by requesting custody.

Like any custody issue, the applicant’s case must be very strong, well thought out and well represented. A family lawyer can set you up for success in any custody or divorce-related situation.

Email This Post Email This Post


By michael - Last updated: Tuesday, March 30, 2010
Filed in Child Custody in Ontario, Divorce, Divorce Lawyer • Tags: ,


Bill proposes shared parenting for Canada

Bill C-422 is a private member’s bill that intends to potentially change Canada’s Divorce Act. It wants judges to grant equal shared parenting in the majority of custody disputes – unless abuse is involved and it’s proven so. The Bill is so far just another victim of the proroguing of Parliament this winter and was delayed significantly, but now that Parliament is back in session it may be back on the table.

Supporters of Bill C-422 say that the current system lacks objectivity and that fathers are being “shortchanged”, while opponents of Bill C-422 say that the bill is unnecessary and will only be bad news for mothers and children.

When it first came to the surface in 2009, the bill brought with it concerns about women’s and children’s rights during a divorce. Equal parenting would make it mandatory for the couples to determine how the custody will be divided and would necessitate half of the time spent with one parent and the other half of the time spent with the other parent. Equal parenting would also do away with child support as we know it for most families. Many other countries such as Australia and Great Britain as well some US states support equal parenting.

Many men’s groups are saying that judges are biased towards them, or that their ex-spouses can make allegations of abuse – that turn out to be false – that sway the judges’ decisions anyway. The London Free Press reported on the Bill recently quoting a domestic violence expert who said, “there are cases that involve false allegations, but they’re a small minority.” He also said that the current court system is designed to find these cases of abuse and ignore false allegations, while there are too few victims of domestic violence even in 2010 that seek out help.

The bill was delayed and re-introduced in early March, but a vote has not yet been scheduled.

Email This Post Email This Post


By michael - Last updated: Thursday, March 25, 2010
Filed in Child Custody in Ontario, Divorce, Divorce Lawyer • Tags: ,


Health Professionals ask for Screening of “Parent Alienation Syndrome” Claims

Child being assessed for Parent Alientation SyndromeFeeling like your child’s psychologist might be a bit biased during your custody dispute? They’d like your ex-spouse to give your complaint the go-ahead before it’s taken seriously.

The National Post reported on Monday, March 22 that a group of leading health care professionals and lawyers has submitted a request asking that Canadian Family Law begin to limit the amount of complaints filed against health professionals such as psychologists and psychiatrists during lengthy custody battles.

The request alleges that the complaints are sometimes frivolous and asks that any future complaints be either screened by a judge or even the winning parent, as well as asks for the establishment of a regulatory system to ensure that any complaint deemed frivolous is thrown out before it can be fully investigated.

While the report was submitted in Canada by Canadian health care professionals regarding Canadian cases, these suggestions for improvement are loosely based on United States law.

One can imagine the frustration of being involved in a serious custody battle and attempting to lodge a complaint against a biased health care professional, but then being required to submit it for review by the ex-spouse before it is taken seriously.

The complaints say that the losing parents of custody cases are creating a “major social and legal problem” by preventing such experts from conducting more important work.

The reason many of these complaints come to pass is because the “losing” parent may feel that the health care professional is biased and thus acting unprofessionally. With an increasing number of parents facing Parental Alienation Syndrome, this could be a detrimental strike against parents who are fighting to be in their children’s lives.

Parental Alienation Syndrome is when one parent essentially “brainwashes” a child to no longer be interested in any contact with one parent. The best recourse for the alienated parent is to have the situation evaluated by a mental health care professional. If that professional assumes the “brainwashed” child isn’t in a bad situation, what recourse would the parent then have?

The paper states, “it feels like a professional sucker punch and has no correlation to the skill, experience and savvy of the assessor” whenever one of these complaints is made.

Despite this, the Canadian Equal Parenting Council told the National Post of situations where these professionals may spend entire days in the home of one parent while merely an hour with the other parent in their own office. “There are some assessors we have heard multiple complaints about,” said the Council.

Email This Post Email This Post


By heather - Last updated: Monday, March 22, 2010
Filed in Child Custody in Ontario • Tags: ,


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.

Email This Post Email This Post


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

Email This Post Email This Post


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