Child sleeping

How to Get Overnight Access With Your Children

Child sleeping

Nobody enters marriage planning for separation, and when it arrives it is tough on everyone, especially the children. After separation, the same money that paid for one house, now needs to pay for two houses. This causes financial stress and increases tension between the separated spouses. This issue was the subject of a decision released last week by the Ontario Court of Justice. This blog post reviews that decision and provides some practical advice on how to get overnight access with your children.

 

How to Prepare for Separation in Ontario

This couple were married in 2006 and separated in 2017. They had two children, a girl born in 2007 and a boy born in 2011. When the couple separated, the father moved into a one bedroom basement apartment. This unit had a living room, bathroom and kitchen. The father initiated proceedings on this issue to address overnight access with the children.

There is limited information contained in the decision as it was only for an interim order. The father was unemployed at the time of the application and was collecting government assistance. This only increased the financial stress experienced by the family.

While it is easy to say, preparation for separation requires planning. If there are two reasonable adults looking out for the best interests of the children, the planning can be easy. Effectively, the only planning is how the finite resources within the family will pay for two residences.

 

Teenage Children and Overnight Access

The father applied for overnight access for his 13 year old daughter and 10 year old son. A teenage girl, young boy and father spending nights in a one-bedroom apartment can cause some logistical issues. The Judge noted such an issue and said: the daughter “is now going through puberty. It would be inappropriate for her to share a bedroom with her brother as proposed by the father in his access submissions”.

There is no doubt that the father would have preferred to move into a three bedroom apartment. Unfortunately, while unemployed and going through a divorce, this likely wasn’t a possibility. It is sad that finances play such an intricate part in the planning for overnight access, but that can’t be avoided.

As children grow older, they have different needs. Toddlers can easily share a room, while teenagers can’t. Teenagers need some opportunity for privacy, which can’t be afforded with three people in a one-bedroom basement apartment.

 

How to Get Overnight Access With Your Children

This decision is very helpful in understanding some practical considerations when you are seeking overnight access. As a reminder, a Judge is only concerned with the best interests of the children. This means that you may want overnight access, but may not get it. Here are a few considerations to get overnight access with your children in Ontario.

First, consider the needs of the children. Does your teenage daughter want to sleep in a room with her younger brother? You know your children better than anyone, so be honest with yourself in answering this question. While you may want overnight access, unfortunately it is not about the parents. Sometimes the looking out for the children’s interests before yours is the right choice.

Second, have a plan. This is my advice for every separation, but it is essential when seeking overnight access. Your plan needs to include what your long term access goals are. If you are seeking shared parenting, or access that includes weeks at a time, you need a good plan. Your plan needs to be able to convince a Judge that it is in the best interests of the children.

Third, consider your finances when you separate. If there are two reasonable parents acting in the best interests of the children, this is easy. Reasonable people may see that they simply can no longer afford the matrimonial home and opt for two smaller places. Reasonable people can resolve their issues without the need of a Judge. And more importantly, reasonable people can save money that will be spent on sleeping arrangements and not on lawyers arguing over sleeping arrangements.

 

Considering Separation in Ottawa?

If you are in the Toronto or Ottawa areas and considering separation, contact Hearty Law for a consultation. Either fill out the contact form here, or send an email to toronto@heartylaw.ca or ottawa@heartylaw.ca.

Hearty Law provides legal services on all family law financial needs, including  child support, spousal support, retroactive support, hidden assets, concealed income division of property and any other family law financial need.

Hearty Law serves Toronto, Ottawa and surrounding communities.

Little girl by herself on swing

5 Pitfalls to Avoid When Seeking Sole Custody of Your Child

Little girl by herself on swing

Parents going through a divorce often find themselves making emotional decisions that aren’t necessarily in the best interests of the children. Earlier this summer, the Ontario Court of Justice issued a decision an an interim custody application. The Judge didn’t believe either parent. The written decision is a good example of what not to do in this situation. Here are 5 pitfalls to avoid when seeking sole custody of your child.

 

#1 Pitfall to Avoid When Seeking Sole Custody of Your Child – Don’t Make Allegations Unless You Can Prove It

Allegations that can’t be proven paint you in a bad light. This can mean allegations of drug use, violence or other similar things. In this case the father made allegations that the mother was a crack addict. The mother responded by saying that she used previously but was now recovering. The mother alleged the father used marihuana while he was looking after the children. The father said that he used marihuana for medicinal purposes.

Not surprisingly, the Judge found that there was insufficient evidence to make a determination on either allegation. Further, there was no evidence that drug use was impacting the ability of either parent to properly care for the children. The only way that a Judge will put any weight on your allegation is if you can actually prove it.

Making allegations of drug abuse is only done to degrade the other parent. There is no value to the proceedings of making allegations that can’t be proven. Don’t get tied up in a battle of making the other parent look bad because it will have the opposite effect.

Don’t make allegations of drug use unless you can prove it. Further, there is only value to this allegation if drug use has negatively impacted the ability of that person to properly parent. If there is a legitimate concern of the impact of drug use, make a complaint to the children’s aid society. If your complaint has been investigated and the experts has determined there is no danger to the children, don’t continue with this complaint.

The same goes for allegations of domestic violence. This is a serious allegation that needs to be reported to police. Understand that the police do not have discretion with domestic violence and are required to lay charges if evidence exist. If the police have investigated your complaint and no charges are laid, give serious consideration to the value of continuing with these allegations.

 

#2 Don’t Break into Your Ex-Spouse’s Home to Gather Evidence

The father in this case was exercising access with the children at the mother’s home. While the father and children were outside, the mother left and locked the house behind her. The father said that he needed to use the bathroom, so he entered the house by reaching through a broken window to unlock the door.

While he said he entered to use the bathroom, while inside he was able to take a photograph of what he said was a crack pipe. The Judge found that he was oblivious to the error in his judgment and didn’t understand why the mother was angry.

Effectively what this looked like was the father attempting to gather “evidence” to undermine the mother. In the end, it made the father look bad.

 

#3 Don’t Disregard Court Orders

Court Orders are just that, an Order. Ignoring the Court Order only serves to make you look bad. In this case, the Judge granted the father two days of access with their child as well as the mother’s child from a previous relationship.

The mother was angry with the inclusion of her daughter in the Order. Rather than comply with the Order, she went to a different Judge to try and have the Order changed. When that was not successful, the mother said that her daughter was sick and didn’t grant access to the father. The Judge was quite direct in his response: “I find that she lied to my face during the hearing of the motions by telling me that (her daughter) could not attend the access visits because she was sick”.

Even if you don’t agree with a Court Order, you need to comply or have it amended. Refusing to comply with the Order will never work out in your favour.

 

#4 Don’t Withhold Access From the Other Parent

Sadly, this is all too common. In this case, the mother was angry after the father broke into her home. She had every right to be angry at this. However, her response was not helpful. She could have used this information to her advantage in the proceedings. Doing so would have been helpful.

Rather than take that approach, she refused to allow the father access to the children. I have no doubt that the mother believed she was doing the right thing. However, the effect of her actions didn’t punish the father. Her actions punished the children, by keeping them from seeing their father.

Parents going through separation are often emotionally involved. They become so driven to destroy the other parent, that the children often become pawns in the ongoing war. If your ex-spouse has done something to anger you, remain focused on the ex-spouse. Involving the children in the dispute only harms the children.

 

#5 Don’t Seek Sole Custody Without Having a Plan

The father in this case applied for sole custody. At the time of his application, he lived in a bachelor apartment. Effectively, the father was asking the Judge to grant him sole custody for two children, with no plan as to where they would sleep.

The Court is not concerned with the actions and behaviour of either parent. The sole concern for the Court is what is in the best interest of the child. Part of this analysis needs to include what the plan is. Where will the children sleep? Where will the children eat? How will the children get to school or activities? Who else lives in the house?

Sadly, the father first filed a motion for sole custody of his one child. When he received the expected emotional response from the mother, he amended his application to include his step-daughter. The Judge inquired about the amended application and the father said it was an inadvertent oversight to have left out the step-daughter.

The Judge was clear on this point. No parent would inadvertently forget a child in a custody application. It looked like the father was trying to punish the mother.

 

How to Get Sole Custody in Ontario

Applications for sole custody need to be limited to circumstances where there is no other option. The pitfalls to avoid when seeking sole custody of your child may seem obvious. If you are seeking sole custody, here are some tips:

  • focus on the needs of the children;
  • focus on your ability to provide the children a caring environment;
  • attempt to organize maximum contact between each parent and the child;
  • don’t focus on degrading the other parent.

A decision to seek sole custody should not be taken lightly. Sole custody means that the other parent should not be involved in major decision making. To convince a Court that this is in the best interests of the child, your argument needs to focus on the child. Having an argument centered on the negative aspects of the other parent doesn’t help.

Contact Hearty Law with any questions on custody or access. Hearty Law provides virtual consultations on any family law issue. This includes custody, access, divorce, separation, child support, spousal support, distribution of property and other family law needs. Complete the contact form here, or email toronto@heartylaw.ca or ottawa@heartylaw.ca.

Hearty Law serves Toronto, Ottawa and the surrounding communities.

Police Lights

False Allegations of Domestic Violence Impacts Custody

Police Lights

Last week, the Ontario Court of Appeal issued a decision confirming a trial decision in a bitter, high-conflict divorce in southern Ontario. There are many important aspects of this decision, all of which will be discussed in subsequent blog posts. Today, the lesson learned from this decision is that making false allegations of domestic violence during a divorce, negatively impacts your custody application.

 

False Allegations of Domestic Violence in Ontario

The parents in this case married in 2006 and they had a child in 2014. In late 2015, they separated and the version of what happened on the date of separation was an issue at trial. The mother said that the father pushed her after becoming agitated when the baby was crying. The father had a very different story and said the mother became angry and assaulted the father by scratching his face and breaking his glasses.

The father took pictures of his face immediately after leaving the residence that evening. This evidence proved to be crucial in the assessment on who was telling the truth. While the father filed the pictures as evidence, he was confronted during cross-examination that the pictures were not authentic. The father was able to use his phone on the witness stand and show the metadata on the photograph, which was accepted.

A further issue arose a few years later when the father attempted to return the child after his access visit. The paternal grandmother brought the child to the mother. The child didn’t want to go with the mother and began crying. The mother called 911 and said the father was abducting the child. When police arrived an hour later, the father was still sitting in front of the house with the child.

The Judge found the mother had lied to the 911 operator by saying the father was trying to abduct the child. Her story defied logic, as there would be no reason for the father to remain at the house if he was attempting to abduct the child. This event proved to be very detrimental to the credibility of the mother during the trial.

 

Parental Alienation Based on False Allegations of Domestic Violence

Immediately after separation, the mother maintained the allegations of domestic violence and refused to allow the father to visit with the child. After three months, the mother relented and allowed supervised access. This continued for almost another year. The mother attempted to justify her actions through concerns of the father’s temper and past violence.

The Judge found that the mother’s actions were unreasonable and were meant to hurt the relationship between the father and child. It is likely that the mother thought that she was doing what would help her over the long term, but it turned out to be detrimental to her case.

 

Steps to Sole Custody

What the mother did in this case is exactly what you can’t do if you are seeking sole custody of your child. The mother made false allegations, kept the child from the father and then insisted on supervised access. At every step of the process, the father was making settlement proposals in an effort to resolve the ongoing litigation. The mother was refusing to negotiate on anything.

One indicator of a parent who is refusing to be reasonable is using several lawyers. The mother had six different lawyers in this proceeding. There are times in a lengthy legal proceeding that there will be a change in lawyer. An example is when a lawyer and client may not see things the same way. But having this happen on six different occasions defies logic.

 

Sole Custody Granted to Father

The result in this case was that the father was granted sole custody, with parenting time being split between both families. This means that the father was responsible for all major decisions concerning the child. These decisions would include schooling, residence, religion and major medical issues. The Judge found that the mother tried to exclude the father from the child’s life. This meant that the mother was not capable of engaging the father on major decisions.

This was taken to the Court of Appeal where the mother argued that her actions should not be considered when determining the best interests of the child. The Court of Appeal did not agree and found that the Judge made the the appropriate decision. The Court of Appeal found that the mother’s unwillingness and inability to communicate with the father precluded an order for joint custody.

 

I Want Sole Custody of My Child in Ontario

Seeking sole custody of a child is difficult. It means you are trying to have a Judge rule that the other parent is incapable of looking out for the best interests of the child. An application for sole custody needs to be based on a demonstrated pattern of behaviour that can be proven. For instance, if you are seeking sole custody based on a concern for safety, you will be in a far stronger position with a criminal conviction.

It is no secret that police have little discretion when it comes to domestic violence. If you have made a complaint to police and after an investigation, no charges are laid, you may want to look at an alternative strategy. Though burden of proof is much lower in family court than in criminal court, continuing with unproven allegations may do you more harm than good.

Be reasonable in your actions and be reasonable in dealing with the other parent. This tactic will serve you well in the long run. Reasonableness also needs to include good faith negotiation, to reduce the need to have a Judge make decisions for your family.

 

Next Step Towards Sole Custody

If you are seeking sole custody, contact Hearty Law for legal assistance. Hearty Law provides legal services on custody, access, child support, spousal support, divorce, property division and other family law issues.

Contact Hearty Law by email at toronto@heartylaw.ca or ottawa@heartylaw.ca or by filling out the form on the contact page.

Hearty Law serves Toronto, Ottawa and surrounding communities.

Sleeping Baby with Parent

Both Parents Need to be Reasonable on Claim of Alienation

Sleeping Baby with Parent

Parental alienation is a difficult topic for everyone. This recent decision from the Ontario Superior Court demonstrates that both parents need to be reasonable on a claim of alienation. While this written decision only addressed the issue of costs, the Court did make some important comments on what alienation means for bitter parents. Both parents need to be reasonable on claim of alienation.

 

My Ex-Spouse is Withholding Access to My Child

The parents were never married. When this application was heard on June 15, 2020, the father had not seen his eleven-month old daughter in four months. He turned to the Courts on an “expedited or urgent basis”. While Courts have been closed during the COVID-19 pandemic, urgent applications will still be heard.

The father argued that the mother was withholding access to the baby. While the father agreed that the mother had offered two visits per week, he said that this wasn’t enough. Further, the father said that the mother’s offer was tied to unacceptable conditions, such as forgoing custody rights.

 

My Ex-Spouse is Not a Suitable Parent

The mother did offer access two days per week, with the added condition that access was to be exercised at the grandparents house. While there isn’t any information in the decision on why, presumably the only reason a parent would request these conditions is if there was a problem with parenting.

This Court decision was on costs and it was pointed out to the father that it was too late to advance this argument. If he wanted to dispute the mothers view, he needed to do it during argument on the motion, not after the motion was already decided.

While the mother was successful in this proceeding, being more reasonable may have resolved this without Court. Though the mother received costs from the father, the costs were determined by the Judge and were not her actual costs. The mother sought actual costs, but after reviewing the leading authorities on the issue, her actual costs were not awarded.

 

How to Obtain Access When a Parent is Alienating

In the end, the Court found that this was not an urgent motion, as access was being offered. The result of this decision was the father was ordered to pay $900 in costs to the mother.

In this case, the father went to Court seeking further access. In taking this route, he declined to exercise the access he was offered. Effectively, his argument was that it is better to have no access than to accept the access terms offered by the other parent. The decision addressed this point and suggested the father take immediate steps to commence the visits, while waiting for his motion to be heard, which may not be for months.

The lesson learned here is not to assign blame to the other parent, while refusing to exercise access. A Court case may take months to resolve. This means for an infant, it could take more than half of their life to resolve. Time with your children is precious and don’t let animosity with your ex-spouse interfere with this time.

Both parents, acting reasonably, will reduce animosity, reduce court costs and increase time with their children. This was an expensive lesson for the father here. The father paid his own lawyer for the application and also paid the mother’s costs. He didn’t exercise the access offered while building his relationship with his daughter. He could have taken a more measured approach in Court, which may have offered a greater chance of success.

 

Contact Hearty Law for More Information

Parental alienation is an extremely difficult topic. It is hard for the parent being alienate and it can be hard for the child. Every child deserves the opportunity to spend time with both parents. If you are finding yourself in a similar situation, seek legal advice.

Contact Hearty Law with your questions on custody, access, child support, spousal support, divorce, division of property and any other family law question.

Email toronto@heartylaw.ca or ottawa@heartylaw.ca for more information.

Hearty Law serves Toronto, Ottawa and surrounding communities.

 

Quarreling Parent

Sole Custody vs Joint Custody for Quarreling Parents

Quarreling Parent

Quarreling parents can make joint decision making difficult. The question is sole custody vs joint custody for warring parents. Whether sole custody or joint custody is awarded can be a tough decision. On the one hand, Courts can’t reward a parent with sole custody because they have refused to cooperate with the other parent. On the other hand, if parents can’t get along, there is no way that joint decision making will be in the best interests of the child. A Court in Ottawa recently addressed this exact issue.

I recently blogged on this decision in the context of imputing income to an underemployed parent. The mother and father never married. They were together from 2006 to 2008. They had a child together in 2008 and then split up. The mother is 47 years old and works for the government, while the father is 48 years old and works as a chef. They have been involved in a legal battle since 2011.

 

My Ex-Spouse Doesn’t Show Up For Access Visits

The mother says the father is irresponsible and repeatedly shows up late, or not at all. This causes uncertainty and is difficult on the child. The mother also says that the father deliberately disregards pick-up and drop-off times to create havoc.

The mother also testified that the father did not want to get involved in medical issues. Specifically, the child was diagnosed with ADHD and other behavioural issues, but the father does not agree with any diagnosis. While he disagrees with the diagnosis, the father has not spoken to any of the medical professionals.

 

My Ex-Spouse Won’t Communicate

Not surprisingly, the father disagrees with the mother’s evidence. He had his licence suspended due to his financial inability to pay fines. He admits that he is late on occasion, as he must take the bus to visit his son and at times, public transit is not on schedule. But he also adds there were many times when he was at the meeting point, only to receive a text message from the mother who cancelled his access.

The Judge reviewed one incident from March break 2019, which was very telling. The father had access visits scheduled on both weekends of the March break. Without telling the father, the mother took the child away for the week and then texted the father that he could visit the following Sunday when they returned. On the Sunday, the mother texted to say they would be back at 1pm, but they never arrived. The mother said she stopped to go shopping for shoes for the child.

The Judge also found on occasion that the mother restricted access because the father was behind on child support payments. Child support and access must never be considered together, though that is a topic for another day.

 

Quarreling Parents and Joint Decision Making

The question here for the Court was to determine if sole custody or joint custody was in the best interests of the child. The mother sought sole custody, while the father sought joint custody. While the parents views are a consideration, the Judge must decide on the best interests of the child.

During this trial, hundreds of text messages relating to access was entered as evidence. The Judge comments that the content of these messages was “rarely productive or pleasant”. The communication would often start with the father inquiring about access and the mother being dismissive or not replying at all.

The Judge found that based on years of extreme animosity, the parents were past the point of being expected to work cooperatively to make decisions, and added: “their pattern of discourse is toxic and too well entrenched to expect genuine change”, even for the sake of the child.

The Judge reviewed the law in Ontario and quoted an Ontario Court of Appeal decision. “The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered. On the other hand, hoping that communication between the parties will improve once the litigation is over does not provide a sufficient basis for the making an order of joint custody.”

 

What is the Difference Between Custody and Access

To provide some additional context on this decision, the Judge was only concerned with custody at this stage and not access. Custody is the ability to make decisions for the child, such as where the child will go to school, what religion to practice or where to live. Access is a separate issue and it relates simply to the time each parent spends with the child.

 

Joint Custody vs Sole Custody When the Parents Can’t Communicate

This was a difficult decision. On the one hand, the evidence established that the father was not interested in the medical needs of his child, while also being unreliable with access. On the other hand, the mother often refused to communicate with the father and often withheld access.

Ultimately, the Judge determined the appropriate decision was to award sole custody to the mother. While granting sole custody, the mother was required to inform the father of all major decisions and receive his views in writing prior to making the decision.

This was not a reward for the mother, rather it was the only reasonable outcome since the parents simply couldn’t communicate.

 

I am Seeking Joint Custody or I am Seeking Sole Custody

Sole custody vs joint custody for warring parents. The one clear theme with all lengthy litigation is that often times parents simply refuse to cooperate. While emotion can dictate actions, this emotion doesn’t help the parent seeking a specific custody order.

If you are seeking sole custody or joint custody, the most important thing is to have respectful communication with the other parent. While text messaging can be convenient, it often provides for a loss of translation. Email allows for more thorough communication and needs to be considered.

It is easy to find fault with the other parent. Prior to making an application for sole custody or joint custody, you need to do some serious self-reflection. What will the other parent say? Looking at it from the perspective of the other parent will often assist in ensuring your actions are respectful and positive.

The only thing the Judge will consider is the best interests of the child. In this light, prior to going to Court, ensure your actions are deserving of the outcome you are seeking.

If you are seeking custody of your child, consider obtaining some legal advice. Contact Hearty Law for a brief consultation and determine some options that you have. Or email toronto@heartylaw.ca or ottawa@heartylaw.ca.

Hearty Law serves Toronto, Ottawa and surrounding communities.

Mother Keeping Child From Father

Ex-spouse Makes False Allegation of Abuse

Mother Keeping Child From Father

My ex-spouse makes false allegation of abuse? Keep reading. Yesterday, my blog post was a story of a mother who left the marital home with her daughter and kept the father from visiting the daughter. Read that post here. This post looks at the next court decision from the same story, which happened in June 2020, in Ottawa, Ontario.

 

Ex-spouse Makes False Allegation of Abuse

Not to repeat, but the important part of yesterday’s story is that the mother and father were living separate and apart in the same house. On May 13, 2020, the parents signed a settlement agreement which resolved a lot of outstanding issues, such as custody and access. Two days after signing the agreement, the mother left the house with her daughter and wouldn’t let the father see his daughter.

The mother then went to police and Children’s Aid and said the father physically and sexually abused the daughter. The mother reported that on May 10, 2020, she observed the father sexually assaulting his daughter while giving her a bath. Then the following day, the father threatened the mother with a knife and stabbed her in the stomach.

 

Judge Finds Mother Was Lying

The Judge conducted a detailed analysis and pointed out all of the problems with the mother’s story. The Judge concluded that the mother was lying. This conclusion was based on:

  • The day after the father allegedly stabbed the mother, the mother left the daughter in the father’s care;
  • Three days after the alleged sexual assault, the mother signed a settlement agreement, which provided for joint custody and equal parenting time;
  • The agreement was signed with her lawyer;
  • The day after signing the settlement agreement, the mother went to the police, but only reported the physical abuse. Apparently she “forgot” a sexual assault had taken place just days before;
  • The police and children’s aid investigated and at the time of the hearing, no intervention had taken place;
  • The same day the mother went to the police, she left the daughter with the father for the night;
  • Two days after signing the settlement agreement and the day after going to the police, the mother confirmed to her lawyer that the agreement would go into effect immediately; and
  • The mother swore a new Affidavit a few weeks later alleging years of physical abuse.

The final piece of evidence that the mother filed with the Court was an audio recording of her daughter saying that she was assaulted by her father. The Judge found the answers repetitive and coached by the mother.

 

Judge Find Mother Was Alienating Daughter from the Father

The Judge found that the mother fabricated the entire story. The lies resulted in the mother successfully keeping the daughter from the father for an extended period of time. The Judge then found the mother alienated the daughter from the father. This means:

  1. There was a prior positive relationship with the father;
  2. There is an absence of abuse by the father; and
  3. The mother used many alienating strategies.

Some of the most egregious examples of alienating strategies here were:

  • – Badmouthing the father in front of the daughter;
  • – Limiting contact between the father and daughter;
  • – Interfering with Facetime communication;
  • – Involving the daughter in the Court litigation’
  • – Making false allegations;
  • – Withheld important medical information;
  • – Cultivated dependency on herself by having the daughter share a bed with her after the divorce.

What Happens When a Parent Makes False Allegations and Alienates a Child from the Other Parent

As this was a hearing during the pandemic and was on an urgent basis, the final ruling is only temporary. The Judge did find the mothers actions were so awful that sole custody was awarded to the father. The Judge found that in situations where parental alienation is occurring, it must be addressed immediately.

 

Lessons Learned From False Allegations

Ex-spouse makes false allegation of abuse? In this situation, the father did everything right. The mother unilaterally decided to keep the daughter from the father. The father may have wanted to immediately escalate the situation with the mother, he took the mature route. He sought relief from the Courts and his patience paid off. He was granted sole custody of his daughter and now has the ability to make decisions in the best interest of his daughter.

If you find yourself in this situation, ensure you remain cordial and professional in your communication with the other parent. Hostility in this situation will not resolve anything. If polite communication is not working, seek legal advice.

If you are in a similar situation, contact Hearty Law for a virtual consultation. Either complete the contact form or email toronto@heartylaw.ca or ottawa@heartylaw.ca.

Hearty Law serves Toronto, Ottawa and surrounding communities.

Parent and Child

My Ex-Spouse is Wrongfully Preventing Access to My Child

Parent and Child

My ex-spouse is wrongfully preventing access to my child. Unfortunately there are many divorces that unnecessarily become high-conflict, with parents using children as pawns to get what their way. One such incident occurred in Ottawa, Ontario, a few weeks ago and the decision from the Judge provides some useful information for parents in similar situations.

The Mother Moved Out With the Child and Alleged Child Abuse

In this sad case, the mother and father initiated their proceedings while living separate and apart in the matrimonial home, with their four year-old daughter. The parents, with their lawyers, signed an agreement on May 13, 2020, which addressed many of the outstanding issues.

Apparently not happy with the settlement, two days later the mother moved out of the matrimonial home with the daughter. She then made claims of physical and sexual abuse that occurred three days prior to the signing of the settlement. She reported this to both the police and Children’s Aid. Both outside agencies did not take any immediate steps which means both did not think the child was in any immediate danger.

The Mother Kept the Child From the Father

After the mother moved out with the daughter, the mother refused to let the father visit with the daughter. Though the couple had just signed an agreement two weeks prior which provided for parenting time, the mother refused to honour the agreement.

The father went to Court to enforce the settlement that was signed by both parties. A court date was set for June 11, 2020, and on the week prior to the court date, the mother changed lawyers. The mother then sought an adjournment of the hearing date as her new lawyer was not available. She also said that her medical condition was such that she would not be able to be prepared for the upcoming court date.

Effectively what the mother did was make her own decision on her child’s best interests and then attempted to thwart the father from interfering with that decision. The Judge was very aware of this egregious tactic used by the mother and did not grant the adjournment, meaning the mother would have to go to Court as scheduled.

If a Parent is Wrongfully Preventing Access, Justice Must be Done Sooner Not Later

While I don’t often quote judicial decisions, the Judge in this case made a statement that needs to be repeated. “If a parent is wrongfully preventing access, justice must be done sooner rather than later for the child and the parties.” Effectively, the mother was not allowed to avoid the court date. Otherwise she would cause further harm. The Court will look to strengthen all parental relationships.

The Judge in this decision was only ruling on the adjournment application by the mother, which was dismissed. In a later decision (and the next blog post), the Judge went into extensive detail on the reasons why she believed the mother had fabricated the allegations of physical and sexual abuse. The end result was to grant sole custody to the father.

What Can You do if a Parent is Refusing Access

This is an extremely difficult situation and one that requires a measured and non-emotional response. My suggestion is that you obtain some legal advice and have your lawyer make the appropriate response. The first step will be to talk to the other parent. If you are very emotional about the entire situation, consider having someone do that on your behalf.

Sometimes the other parent will not reason with someone acting on your behalf. Then, unfortunately, the appropriate response may be through the Court. The best approach will be to try and get an urgent Court date set and provide your version of events. It will be very important for you to have evidence of what has transpired. You also want evidence of what attempts you have made to resolve the issue without turning to the Court.

Contact Hearty Law today for a virtual consultation. Either complete the contact form or email toronto@heartylaw.ca or ottawa@heartylaw.ca.

Hearty Law serves Toronto, Ottawa and surrounding communities.

Grandparents Have Rights to Visit Grandchildren in Ontario?

Often times family conflict creates situations where grandparents find themselves restricted from visiting with their grandchildren. Grandparents have rights to visit grandchildren in Ontario.

The Grandparent Access Law in Ontario

In Ontario, the Children’s Law Reform Act was amended in 2016 to address concerns that grandparents were being kept away from their grandchildren. Section 21 of this act now reads “a parent of a child or any other person, including a grandparent, may apply to a court for an order respecting… access”

The Court application needs to include an affidavit explaining the previous relationship and how access is in the best interests of the child. A police records check also needs to be filed with a grandparents request.

Section 24 of the same legislation provides some factors the Judge must consider when determining the best interests of the child. Some of the factors relevant to an application by a grandparent include:

  • the love, affection and emotional ties between the child and the grandparent;
  • the child’s views and preferences, if they can reasonably ascertained;
  • the plan proposed by the grandparent; and
  • any familial relationship between the child and the grandparent.

The only concern the Court has in making a decision on access is what is in the best interests of the child. There is no requirement for the Court to consider the wants of the grandparents. Simply put, the child’s interests are the only thing that matters.

Parents Rights in Granting Access

The leading decision on this issue is from the Ontario Court of Appeal almost 20 years ago. In that situation, the parents were still together and made an informed decision that they were going to restrict access to the grandmother. The reason to restrict access was because the parents felt that the grandmother was the source of constant interference with the family.

The grandchildren had a negative view of their grandmother, though that may have been created through parental influence. This means that the parents were talking negatively about the grandmother in front of the children.

While the grandmother was successful at trial, the Ontario Court of Appeal overturned the trial decision. The Appeal Court determined that it wasn’t for the courts to try and repair broken relationships. When the parents are making informed decisions about how they wish to raise their children, the courts won’t interfere.

This didn’t mean that the grandmother was not allowed access. Rather it meant that the frequency and duration of access would be decided by the parents and not a Judge.

Grandparents Access After a Separation

It is important to note that this decision was made when the parents and children were all living together, and there wasn’t any evidence of high conflict. In situations after a separation or divorce, often times grandparents can be left out by feuding parents, or caught in the middle of a custody dispute.

If a parent is deliberately restricting access to the grandparents, the reason for that decision must be taken into account. If it is a highly emotional decision that isn’t based on any evidence, then it may be a situation where a Judge may intervene.

Again, it is only the best interests of the child that matter. If a grandparent has demonstrated violence, or has been a negative influence on a child, then that may be sufficient reason to restrict access and would likely be supported by a Judge. Without that tangible evidence, some thought must be given to why the decision to restrict access was made in the first place.

There are also practical considerations. If there is already conflict between a parent and grandparent, further litigation is not going to resolve that conflict. This means that everyone involved should give some thought to how to resolve the conflict. Court needs to be a last resort.

How to Enforce the Rights of Grandparents

Grandparents have rights to visit grandchildren in Ontario. Are you a grandparent who is in a situation where you have been restricted in your access to your grandchildren? Your first step needs to be looking to resolve the issue on your own with the parents. If that is not successful, you may want to obtain some legal advice on potential next steps.

Contact Hearty Law for a virtual consultation to discuss your rights.

Hearty Law serves Toronto, Ottawa and surrounding communities. Email toronto@heartylaw.ca or ottawa@heartylaw.ca for more information.

Finding the Right Divorce Lawyer for you in Ottawa

Who is the Best Divorce Lawyer in Ottawa?

If you are in the midst of an impending separation or divorce, you may be asking who the best divorce lawyer in Ottawa is. While this may seem like a good question to ask, it is likely that you are asking the wrong question. The term “best” is difficult to describe and what is “best” to you in your situation, may not be the “best” in another situation.

What are you looking for in a divorce lawyer?

Before you start on your search to find the best divorce lawyer for you, it is important for you to understand exactly what it is you need. Here are a few broad areas that you may be needing legal help on:

Property

Are there significant property issues? If you are thinking this means who will get the living room set and who will get the bedroom set, you likely don’t need any lawyer. The same may hold true if you and your spouse purchased a single house shortly after marriage and this is the only house you have lived in. That may very well be a simple property matter that can be resolved quickly.

Significant property issues typically mean a resident brought into the marriage at the beginning, or seasonal homes, foreign property, investment property in other provinces or property that was an inheritance for one spouse.

If you find yourself in a situation with significant property issues, you will want to discuss this with any potential lawyer during your initial consultation.

Income

If  both spouses make close to the same income and are T4 earners with no bonus structure or overtime, you have fairly simple income issues.

On the other hand, if you find yourself in on of these situations, you likely have more complex income issues you will want to discuss with your lawyer:

  • private corporation income
  • income earned through complex bonus structures
  • income earned through investments or investment properties
  • One spouse deliberately avoiding employment income or earning far less than their ability

Pension Property

If either you or your spouse has a defined benefit pension, this may cause a complex issue with property distribution and you will want to talk to any potential lawyer about their experience in this area. Some considerations are the length of time with the government or private organization, the years left for work, pension valuation and options for splitting the value.

Pension Income

This can be a complex issue if there is something like a Veterans Affairs Disability Pension. How that money is received, what it is being received for, dependents that are included in the monthly amount or any significant lump sum payments can introduce some complexity to your property distribution.

Custody

Courts only have one concern with custody and that is for the best interests of the children. Typically if there are no serious concerns with either parent, decision making in the children’s best interests will be split. This can be a simple area, but if there are safety concerns for a child, this can also be an extremely complex areas that you will want to discuss with any potential lawyer.

Support Payments

Child support can be a simple question depending on how you answered the income question. Federal child support guidelines effectively eliminate all the guesswork. Spousal support can be complex depending on a number of factors. Each case is unique and you will want to discuss your unique circumstances with any potential lawyer.

What skills are needed in a divorce lawyer?

What skills are you looking for in a divorce lawyer? This is very much dependent on how you are hoping to resolve your issues. Are both spouses being reasonable and looking for a quick and fair process? If so, you likely are looking for someone can effectively negotiate with the lawyer for your spouse.

You may also have found yourself in an unnecessarily high-conflict divorce. In that situation, you may need a lawyer who isn’t afraid to litigate. You also need a lawyer who can effectively avoid costly litigation.

Who is the best divorce lawyer for me?

The most significant skill you may be seeking in a divorce lawyer is likely the ability to listen to you. After your initial consultation, your lawyer should know exactly who you are and what you are looking for. After your initial consultation, are you happy with the potential lawyer? If not, you need to know that you have no obligation to initiate a relationship.

This can be a highly emotional and costly time in your life. Make sure that you have the best lawyer that fits your needs. Prior to your consultation, ensure you are prepared and have copies of all of your relevant income and property documents. Most importantly, don’t be afraid to ask questions.

Contact Hearty Law today for more information. Email toronto@heartylaw.ca or ottawa@heartylaw.ca.

Hearty Law serves Toronto, Ottawa and surrounding communities.