The Courts Analyze “Material Change” – Again The court (again) explores – What constitutes a material change in the recent Court of Appeal decision, Licata[1]. In order to bring a motion to change before the court, to change a final order, there must be a “change in circumstances”, since the last order (dealing with support) was made.[2] The change in circumstances can be from “any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support”.[3] It is important to know that if you file a motion to change support, you MUST demonstrate that a material change of circumstances was not contemplated by the parties when the existing final order was made. Furthermore, you must show that if such a change had been known, at the time the final order was made, it “would likely have resulted in different terms”.[4] In Licata,[5] the father wanted to stop paying child support for his children, who had reached the age of majority and were enrolled in a post-secondary education program. The Order in existence had addressed the issue of the child being over the age of majority and determined that the child was still a “child of the marriage” as the child could not withdraw from parental control since he was attending university. Who is a “Child of the Marriage”? Some think that a child of the marriage is a child that is under 18. This is not true. A child of the marriage can be a child who reaches the age of majority. According to the Divorce Act definition, a child remains a “child of the marriage” if they are “under [parental] charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life”[6]. One way of meeting this onus of remaining under parental control is when a child is enrolled in a higher education.[7] What is a Material Change? The Supreme Court of Canada has set out the test for determining “material change”: a change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet those needs; the change must materially affect the child; and the change was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order.[8] In Licata[9], the Court of Appeal restated that the starting point for a motion to change the support for the child would be a material change in circumstances that were not anticipated by the parties when the Order in existence was made. The onus of demonstrating a “material change” is on the party bringing the motion to change. In this case, the motion judge started from a position of there being a material change based on – the child reaching the age of majority. The Court of Appeal found that this was an error in principle because the final Order had already determined that the child was over the age of majority when the Order was made. As such, the child reaching the age of majority was not a material change that had occurred after the final Order (and therefore does not create a material change justifying a variation). What is a material change that would qualify for a variation in child support? The courts have determined that they will only consider a material change that is “significant and long-lasting”. A court will exercise caution before changing an existing support order. In Licata[10], this was not a case of initially proving a child remained a “child of the marriage”. This case was a motion to change that would require a change in circumstances in order to justify a new order. As such, the only relevant question for the Court of Appeal to consider was proving a material change in circumstances since the last order and more specifically, whether it was beyond the parties’ contemplation that a child of the marriage would take an extended period of time to complete university studies. Ultimately, the Court of Appeal found that the trial judge had erred in terminating child support stating that “child support should not be terminated until the father can demonstrate that there has been a material change in circumstances not contemplated at the time of the previous Order and that the child is able to withdraw from parental control.” This demonstrates that the first hurdle of a moving party applying for a variation order is whether there is a material change in circumstances. The Court of Appeal further stated that: “A motion to change must be based on the proper evidentiary foundation and an analysis of whether there is a material change in circumstances…” Filing a motion to change without a material change in circumstances will result in not only a case being dismissed but could result in a significant cost award against the moving party. If you are contemplating returning to court to vary/change an existing Order, it is worthwhile to discuss your case with a family lawyer prior to filing a motion to change. If you have more questions related to Family Law, please visit our website or contact Kenna Bromley at Devry Smith Frank LLP (‘DSF’) to discuss any questions regarding your specific family law situation and your options at 249-888-6641 or kenna.bromley@devrylaw.ca. This blog was co-authored by Summer Law Student, Kathleen Judd. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” [1] Licata v. Shure, 2022 ONCA 270 [2] Divorce Act, s. 17(4) [3] Federal Child Support Guidelines, SOR/97-175, s. 14(b) [4] L.M.P. v. L.S., 2011 SCC 64, [2011] 3 S.C.R. 775, at para. 32, citing Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670, at p. 688 [5] Supra note 1 [6] Divorce Act, s.15.1(1) [7] W.P.N. v. B.J.N., 2005 BCCA 7, 249 D.L.R. (4th) 352, at para. 18 [8] Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at paras. 10-13. [9] Supra, note 1 [10] Ibid By Justin DominicBlog, Family LawJuly 6, 2022August 15, 2022
Parental Mobility Rights – When does Relocation become Parental Child Abduction? RELOCATION When a parent with primary decision-making responsibility for a child decides to relocate after a separation due to a new job, proximity to family, or a relationship, the move will certainly affect the access parent. RECENT AMENDMENTS TO THE DIVORCE ACT The law pertaining to the relocation of a child is found under section 16.9 of the Divorce Act. The new section 16.92(1) requires the court to consider additional factors when deciding whether a relocation should be permitted: The reason for the relocation The impact of the relocation on the child The parenting time and involvement that each person has with the child Whether the person planning the relocation has given the proper notice Whether there is a court order or agreement that says a child is supposed to live in a certain place Whether the proposal to change the parenting arrangement is reasonable, and Whether the people involved have been following their court order or agreement.[1] The exceptions to providing notice prior to moving are 1) if you have permission from the court not to give notice if there is family violence, or 2) if you have a court order saying you do not have to give notice of a move.[2] PARENTAL CHILD ABDUCTION WITHIN CANADA In Canada, the most common form of child abduction is by a parent or guardian. The term parental child abduction refers to when a parent/guardian takes, detains, or conceals a child from the other parent/guardian. It is not uncommon for other family members to assist the abducting parent/guardian with removing or concealing the child[3]. If the child is believed to have been abducted locally, it is important to contact local law enforcement immediately. The matter can often be resolved through the civil courts. As a parent/guardian, you can apply to the family court to have the child returned to you. In Ontario, you will need a parenting order under the Children’s Law Reform Act (“CLRA”). Sections 36 and 37 of the CLRA allow the courts to grant a parental order where the child is unlawfully withheld and to prevent unlawful removal of the child respectfully.[4] If the child has been abducted to a different province, a parenting order or agreement is necessary to have any decision-making responsibility and parenting time arrangements enforced.[5] If you do not have a parenting order or parenting agreement in place, you may need to apply for a parenting order in family court.[6] The order should be obtained in the jurisdiction where the child resided, often referred to as the “habitual residence.” If you are divorced or getting a divorce, but a parenting order has not yet been made, the parenting order needs to be sought under the Divorce Act.[7] If you already have a parenting order, you may be able to have it enforced in another Canadian province or territory. According to section 20(3) of the Divorce Act, the court can make a parenting order have legal effect throughout Canada.[8] If you have an informal agreement in place, it may not be enforceable by the courts and therefore it is recommended that you apply for a parenting order pursuant to section 16.1(1) of the Divorce Act.[9] If you are not getting a divorce, then provincial laws will apply. RELOCATION OR PARENTAL ABDUCTION? – CASES TO CONSIDER Parental Abduction In R v Finck, OJ No 2692, the mother died almost one year after the birth of child and left instructions that her brother should have decision-making responsibility and assume parental responsibilities. The father commenced proceedings to alter the parenting order. Ultimately, parental responsibility was awarded to the mother’s brother, with generous rights of access granted to the father. The father took the child to Nova Scotia and kept the child there until he was apprehended. The child was returned to the mother’s brother and the father was charged with abduction in contravention of the parenting order with intention of depriving the legal guardian of possession of the child. Relocation In Buckner v Card, 2007 ONCJ 51, the parties were the parents of a 22-month-old child. Since the child’s birth, the mother had been his primary caregiver while the father exercised access on a casual basis. Without notice to the father, the mother had moved to Alberta with the child. The court granted the mother sole decision-making responsibility as she had been the child’s primary caregiver. While the mother should not have moved unilaterally, the court found that she wished to move for legitimate reasons and not to frustrate the father’s access. The father’s proposed plan was to continue working full-time and he would delegate his childcare responsibilities to others during his work absence, which was considerable. The mother was better off in Alberta financially and the father’s present accommodations and plans were “sketchy”. It was not in the best interest of the child for the mother to be forced to return to Red Lake, Ontario. The distance (22-hour drive) was deemed not insurmountable for the father to exercise access. The court held it was in the child’s best interests that he remains in his mother’s care in Alberta. In the recent case of Fawcett v Slyfield, 2021 ONCJ 459, the mother moved the children from Woodstock, Ontario to Manitoba following the parties’ separation, over the objections of the father, without a written agreement or court order, and without making arrangements for any meaningful parenting time for him. While the father contested mobility and also decision-making and primary residence, the court ultimately allowed the mother to relocate with the children to Manitoba, pending trial. PENALTIES FOR PARENTAL ABDUCTION Parental abduction is a serious criminal offence and is governed by sections 281 and 282 of the Criminal Code. A parent or guardian convicted of abducting a child can face up to 10 years in prison.[10] However, abduction does not automatically revoke the offender’s right to access. Parental abduction will be considered in determining whether sole decision-making responsibility is appropriate. Canadian courts take a holistic approach in assessing what is in the “best interests of the child”.[11] For more information regarding parenting arrangements, divorce, property division, marriage contracts, or any other family law-related topic, please contact Sanaz Golestani at Devry Smith Frank LLP at (289) 638-3173 or Sanaz.Golestani@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” *This blog was co-authored by Owais Hashmi* [1] Ibid at s 16.92(1). [2] Ibid. [3] [4] Children’s Law Reform Act, RSO 1990, c C.12, s 36-37. [5] “Child abduction by a family member” (26 October 2021), online: Ontario. [6] Ibid. [7] Ibid. [8] Divorce Act, RSC 1995, c 3 (2nd Supp.), s 20(3). [9] Ibid at s 16.1(1). [10] Criminal Code, RSC 1985, c C-46, s 281(a). [11] “Defining the Best Interests of the Child” (07 January 2015), online: Department of Justice. By Justin DominicBlog, Family LawJune 14, 2022August 15, 2022
Unvaccinated and Separated? What this means for time with your child In the past two years, COVID-19 has wreaked international havoc and the challenges are intensified when it comes to governance of parenting issues for separated parents. While the unvaccinated have found creative temporary solutions in the face of government restrictions by exercising at a home gym rather than attending a favourite spin class or ordering delivery instead of dining at one’s favourite restaurant, a comparable temporary option is not available for unvaccinated parents. Unvaccinated parents without valid medical exemptions are facing restrictions on parenting time with their child including temporary suspension of all in-person parenting time until they become fully vaccinated. Some restrictions imposed by the courts include reducing the frequency and duration of in-person visits, ordering in-person visits to take place exclusively outdoors and requiring the unvaccinated parent and child to wear masks for the duration of each visit. In the case of S.W.S v. R.S[1], the mother brought a motion to change the unvaccinated father’s in-person parenting time with their two children, ages 8 and 4, to virtual. While neither child, in this case, was immunocompromised, the court held that “the father’s choice not to vaccinate himself directly affects the physical safety of the children – a primary consideration under subsection 24 (2) of the Act.”[2]. The mother was fully vaccinated and followed all COVID-19 protocols and subject to the father becoming fully vaccinated, the father’s parenting time was reduced from alternating weekends and every Tuesday to just 2 hours every Sunday (in-person) with all parenting time to remain outdoors. In the case of A.G. v. M.A.[3], the mother brought a motion to suspend the partially vaccinated father’s in-person parenting time with the parties’ 2-year-old daughter. The father relied on a one-line medical note from his doctor claiming that he is medically exempt from taking the second dose of the COVID-19 vaccine due to a severe allergic reaction to the first dose of the vaccine. Notwithstanding the father’s lack of full vaccination, without an acceptable medical exemption, the Court concluded that the father’s partial vaccination status warranted some in-person parenting time with restrictions. The father’s in-person parenting time with the child was limited from 2 hours weekly to 1 hour per week (in-person) exclusively outdoors or virtual if the weather is too inclement. In reaching this decision, the following factors were considered by the Court: the child’s medical frailties which may leave her exposed to greater risk of contracting COVID-19;The father’s partial vaccination status exposes him to greater risk of contracting COVID-19.[4]In the determination of best interest of the child, the court places considerable importance on the child’s “safety, security and wellbeing” as mandated by the Children’s Law Reform Act.The father had not tendered acceptable evidence to the court to properly assess the conclusion of his doctor that he should be exempt from his second COVID-19 vaccine. If you are partially vaccinated or unvaccinated, consider: If possible get fully vaccinated.If you intend to rely on a medical exemption, ensure that your medical exemption is prepared by either a physician or a registered nurse and that your medical note complies with the requirements for medical exemption letters set out in the Ontario Ministry of Health’s paper on Medical Exemptions.Consider virtual parenting options if you need time; however virtual parenting time is not a suitable long term solution and it cannot replace in-person parenting time, especially if a child is young particularly when a child is young. If you have any further questions on the implication of COVID-19 and your parenting rights or you would like to speak with someone about your separation terms, please contact Sanaz Golestani from Devry Smith Frank LLP at Sanaz.Golestani@devrylaw.ca or call (289) 638 3174 for assistance with this matter. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see or speak to a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” *This blog was co-authored by Angela Victoria Papeo* [1] S.W.S v. R.S 2021 ONCJ 646 [2] S.W.S v. R.S 2021 ONCJ 646 at. para. 35. [3] A.G. v. M.A., 2021 ONCJ 531 [4] Fully vaccinated, the court is referring to two doses of an approved vaccine. By Justin DominicBlog, Family LawJanuary 25, 2022January 25, 2022
Does my spouse get a share of the home I owned before we were married? For many couples, the matrimonial home represents the largest and most significant asset. It is therefore incumbent to understand how the matrimonial home is treated upon a breakdown of the marriage and how to protect and preserve your rights if you brought the home that is your matrimonial home into the marriage. Property Division in Ontario Property division rights for married spouses are governed by the Ontario Family Law Act. Upon a marriage breakdown or if one spouse dies, each spouse is entitled to an equal division of the value of all of the assets that have been acquired during the marriage, subject to certain exceptions. As part of this calculation, a spouse is entitled to receive a credit for date of marriage assets brought into the marriage unless the property becomes the matrimonial home. The Matrimonial Home In Ontario, there are special rules with respect to the treatment of the matrimonial home once a marriage ends. Part II of the Family Law Act deals entirely with the matrimonial home and defines what it is and sets out the unique treatment and rules regarding the matrimonial home. Section 18(1) of the Family Law Act defines a “matrimonial home” as: “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”[1] For the purposes of calculating an equalization payment, if a spouse brings a home into the marriage and that home becomes the family residence, then the right to deduct the value of the home as a date of marriage asset is lost by that spouse. Instead, the value of the matrimonial home will be included as a date of separation asset for the spouse who owns the home. If you are married, you can have more than one matrimonial home, however, the Ontario Court does not have authority to grant one spouse the exclusive right to possession of the home if it is located outside of the province. Unique Treatment of the Matrimonial Home Under the Family Law Act Unless there is an agreement or a court order for exclusive possession of the matrimonial home granted to one spouse, under Section 19 of the Family Law Act, both spouses have an equal right to possession of the matrimonial home.[2] This means that absent an agreement or court order, neither spouse can lock the other out of the matrimonial home. The criteria that the Court will consider when determining the issue of exclusive possession is set out under section 24(3) of the Family Law Act. Another unique characteristic of the matrimonial home is the absence of court order or consent, neither spouse can sell or encumber any interest in a matrimonial home. Protecting your Home with a Marriage Contract Whether you are currently married or plan to get married, you can enter into a marriage contract to protect and preserve your rights in the event of a breakdown of your marriage. To ensure your rights are protected you should enter into a marriage contract that is prepared by an experienced Ontario family lawyer. For more information regarding divorce, property division, marriage contracts, or any other family law-related topic, contact Whitby family lawyer Sanaz Golestani at 289-638-3173 or Sanaz.Golestani@devrylaw.ca. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” [1] Ibid, s 18(1). [2] Family Law Act, supra note 1, s 19. By Justin DominicBlog, Family LawJanuary 11, 2022January 11, 2022
Filing Mistakes Prove Costly No Leniency for Self-Represented Litigants Across Canada, there continues to be a rising trend in self-represented litigants. With this comes the need for these individuals to understand the rules and procedures of the court to ensure efficient, fair and affordable access to justice. In the recent decision of Bloomer v Workers Compensation Board (2020), Alberta’s Court of Appeal confirmed that motion judges have no authority to correct the procedural missteps of self-represented litigants, reinforcing the expectation that self-represented litigants familiarize themselves with the relevant legal practices and procedures pertaining to their individual case.1 While the Court acknowledged the disadvantages encountered by self-represented litigants, it nevertheless confirmed that the same statutory regime and rules apply regardless of whether the litigants have legal representation or not. Self-represented litigants may be shown some flexibility in the judicial process in the manner in which they are guided and shown leniency at times. However, there are instances where Courts are limited in their flexibility, where there simply are no redo’s, such as with court filings. Filing Mistakes Can Prove Costly Hypothetical: Let’s say you come and notice that your child’s vehicle is damaged; it appears to have been rear-ended while parked, and you have good reason to believe it was the fault of your neighbour. (Ex: Security camera footage). Since the vehicle is owned by your 17-year-old, you decide in an effort to save costs to bring an action in small claims court against your neighbour for the cost of the repairs. You draft up the claim under your child’s name, file it in the Court’s e-filing system and click submit. Moments later, you realize you used the wrong form and now you need to correct the form you’ve submitted. What’s the fix and will it cost you? Unfortunately yes, and the fix is not as straightforward as hoped. Since the claim involves a minor, or as the court defines it (a person with a disability), the court clerk would not be able to accept a Form 23A “Intent to Withdraw” or “Notice of Discontinuance” due to Rule 23 of the Rules of Civil Procedure. A registrar is unable to sign off on this change due to the involvement of a minor. RULE 23 DISCONTINUANCE AND WITHDRAWAL 2 Discontinuance by Plaintiff 23.01 (1) A plaintiff may discontinue all or part of an action against any defendant, (a) before the close of pleadings, by serving on all parties who have been served with the statement of claim a notice of discontinuance (Form 23A) and filing the notice with proof of service; (b) after the close of pleadings, with leave of the court; or (c) at any time, by filing the consent of all parties. R.R.O. 1990, Reg. 194, r. 23.01 (1); O. Reg. 427/01, s. 10. (2) If a party to an action is under disability, the action may be discontinued by or against the party only with the leave of a judge obtained on motion under rule 7.07.1. O. Reg. 19/03, s. 6. To correct this mistake, it will require bringing a motion to a judge to explain what happened with respect to filing the incorrect form. When drafting this motion, the Court advises to provide notice to the other side, and if possible, to obtain their consent. If the opposing side has already filed an intention to defend, this change will likely involve cost consequences. There are limits on the Court’s ability to relax the rules for self-represented litigants, particularly when it comes to contraventions or issues of non-compliance that affect deadlines, limitation periods and filing mistakes. Takeaway: When going the route of self-representation, be careful when filing and familiarize yourself with the rules, procedures and protocols applicable to your case because mistakes can be costly. Conclusion Access to justice has become an important issue of focus in many areas of the law, particularly in family courts. It is important to rely on the help of experts and legal professionals to help navigate and guide you through the process. This blog was co-authored by Student-At-Law Amar Gill. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please contact a lawyer. Each case is unique and different and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” Sources [1] https://www.canlii.org/en/ab/abca/doc/2020/2020abca334/2020abca334.html?resultIndex=1 [2] https://www.ontario.ca/laws/regulation/900194 By Justin DominicBlog, Family LawNovember 19, 2021November 19, 2021
What If Separating Parents Disagree Over Vaccinating Their Children? Vaccine debates are currently at the forefront of public opinion. Unsurprisingly, many separating couples stand on either side of this debate. This leads to the question: what if separating couples disagree as to whether their children should be vaccinated? In our previous blog, we predicted that courts would likely resolve this issue in accordance with government policy and recommendations. In other words, if the Ontario government finds that vaccines are safe for children, then the Ontario courts would likely agree. All Ontarians turning 12-years-old before the end of 2021 are now eligible to receive their first dose of the COVID-19 vaccine. As well, the Ontario government is currently preparing to roll out vaccines for children between the ages of 5 and 12 – what does this mean for separating parents? Health Care Consent Act The decision to receive a vaccine (or any health care treatment) lies with the individual, so long as the individual is able to provide “informed consent” to the treatment in question.[1] This extends to children as well, unless there is reason to believe the child is unable to appreciate the consequences of accepting or refusing the treatment (or vaccine). Generally, the older the child, the more likely they will be in a position to provide informed consent, and vice versa. This issue is ultimately decided by the health care professional who is administering the treatment. Assuming the child is too young to consent to treatment for herself, we move on to the next step. Decision-Making (Custody) Orders or Agreements The legal term “custody” was recently replaced with “decision-making”. If one parent has a custody or decision-making order or agreement[2] in their favour, then they will have authority over the child’s medical decisions, where the child is unable to make those decisions for herself. No Orders or Agreements in Place If separating parents are not subject to a court order or separation agreement setting out decision-making for their children, then they will need to look to a court or arbitrator to decide the issue. The sole factor in a court/arbitrator’s decision on this issue will boil down to the best interests of the children. The case of A.C. v. L.L. 2021 ONSC 6530 is the one Ontario family lawyers and separating parents have been waiting for. The parents, in this case, had triplets, each 14 years of age. Father wanted the children to receive the COVID-19 vaccine, while Mother disagreed. Mother would not provide Father with the children’s health cards. The court ultimately sided with the Father, reasoning as follows: [28] The responsible government authorities have all concluded that the COVID-19 vaccination is safe and effective for children ages 12-17 to prevent severe illness from COVID-19 and have encouraged eligible children to get vaccinated. These government and public health authorities are in a better position than the courts to consider the health benefits and risks to children of receiving the COVID-19 vaccination. Absent compelling evidence to the contrary, it is in the best interest of an eligible child to be vaccinated. The court ultimately ordered Mother to provide Father with the children’s health cards within 5 days. Notably, however, the court did not order that the children “shall” be vaccinated, but only that they will be “entitled” to receive the vaccine if they so wish. This is due to Health Care Consent Act, which allows individuals (including children) to decide for themselves whether they wish to be vaccinated. When Ontario rolls out vaccines for children 5 and up, the same legal analysis is likely to apply: there will be a presumption in favour of vaccination unless a parent is able to provide compelling evidence to the contrary. In practical terms, this “compelling evidence” would likely need to be credible, expert evidence confirming that vaccination would be contrary to the child’s best interests, likely due to pre-existing health conditions. [1] Health Care Consent Act, section 4. [2] Parents with separation agreements establishing decision-making responsibilities should be aware: courts still have the ability to disregard separation agreements and impose an order that is in the child’s best interests. However, separation agreements are generally informative and persuasive to a court. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.” By Justin DominicBlog, COVID-19, Family LawNovember 15, 2021November 15, 2021
DSF is recognized in ‘Best Lawyers’ for 2022! Devry Smith Frank LLP (‘DSF’) is proud to announce that we have been recognized by Best Lawyers in Canada 2022 with 8 of our lawyers ranked across multiple practice areas. The lawyers in the list are highlighted below: George Frank – Personal Injury Litigation Jennifer Howard – Family Law David Lavkulik – Personal Injury Litigation Todd Slonim – Family Law Diana Solomon – Family Law Marc Spivak – Personal Injury Litigation Ashley Doidge – Trusts and Estates Nicholas Reinkeluers – Corporate and Commercial Litigation DSF is pleased by the nominations and awards from our peers and we look forward to providing services by these nominable standards. Best Lawyers is a leading peer-review publication in the legal profession, recognizing the top attorneys in over 100 practice areas. These individuals have been selected for this distinction after receiving the highest overall peer-feedback within their geographic region and specialty practice area. Only a single lawyer in each practice area and designated metropolitan area is honoured as the “Lawyer of the Year,” making this accolade particularly significant. Please visit their website for more details: https://www.bestlawyers.com/ By Justin DominicBlog, Commercial Litigation, Family Law, Personal InjurySeptember 20, 2021September 20, 2021
Why The CAS Shouldn’t Be Dictating The Terms Of Your Access Order In child protection matters, the Children’s Aid Society (“the Society”), as a litigant, may start a court application against a parent if they believe that a child is in need of protection. The Society then asks the Court to make an order with respect to what intervention is necessary to protect the child(ren). For example, should the child be placed in the care of the parent or another person, subject to the supervision of the Society, or should the child be placed in interim or extended Society care? There has been a divide in the case law on whether an access order can be at the discretion of a Society. However, in J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 the Ontario Divisional Court confirmed that the authority to make an order with respect to access rests solely with the judiciary and cannot be delegated to a third party, including the Society. In J.S.R. v. Children’s Aid Society of Ottawa, 2021 ONSC 630 (CanLII), the mother appealed the decision of the trial judge, who ordered that her two young children be placed in extended Society care, with her access to the children being at the Society’s discretion and in accordance with the best interests of the children. The appellant mother appealed this decision and asked that her children be placed in her custody with Society supervision. In the alternative, she asked for specific access to both children if they were to remain in the care of the Society. In determining whether the trial judge erred in ordering that access be at the Society’s discretion, the court considered Sections 104 and 105 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (the “CYFSA”), which mandates that it is the court that must determine what access is in a child’s best interests, not the Society. In order to determine the best interests of the child, the court analyzes the factors set out in Section 74(3) of the CYFSA which include considering the child’s views and wishes, relationship with parents, and physical, mental, and emotional needs. Having found that the access orders were made in favour of the appellant mother, the court turned to the question of whether a court could delegate all aspects of access, including all decisions about type, frequency, and duration to the Society. The court reviewed the arguments made in previous cases in support of and against delegating a child’s access at the discretion of a Society. In reviewing these cases, the court determined that discretion cannot simply be delegated solely to the Society or to anyone else. Case law relied on by the Society, such as H.(C.) v. Children’s Aid Society of Durham (County), 2003 CanLII 57951, was distinguished on the basis that it considered an appeal of a temporary order, whereas this case concerned a final decision. As Sections 104 and 105 of the CYFSA do not either explicitly or implicitly provide the court any powers to delegate its authority to make access orders, the court found that the trial judge erred in law by delegating the discretionary elements of access to being at the sole discretion of the Society. The appeal with respect to the terms of access was allowed and the matter was remitted to the trial judge to determine the appropriate process for finally determining the terms and conditions of access. Conclusion In making this finding, the court noted that it would be rare for legislation to authorize a court to delegate its judicial functions to any third party who is also a party to the litigation when neutrality and objectivity are essential to the decision-making process. The court’s decision is important in clarifying both the interpretation of Sections 104 and 105 of the CYFSA and the role of the court in making access orders. By distinguishing access orders made at temporary versus final hearings, different rules may apply for terms of access at the discretion of the Society depending on the type of order. For now, this decision helps to ensure that no party to the litigation, including the Society, will have sole discretion in defining access to children pursuant to a final order. If you have any questions related to your family law matter contact Collingwood lawyer Sarah Robus at sarah.robus@devrylaw.ca or 249-888-4642. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Justin DominicBlog, Family LawAugust 3, 2021June 24, 2022
What if separating parents disagree over vaccinating their children? Children in Ontario between the ages of 12 – 17 became eligible for the first dose of the Pfizer vaccine on May 23, 2021. This raises a new question for separating parents: what happens when one parent wants their child vaccinated against COVID-19, but the other refuses? The legal test for family law matters involving parenting issues remains the best interests of the child. Decisions involving children are always considered on a case-by-case basis, while considering the prevailing social or medical evidence available at the time. For example, court decisions involving virtual vs. in-person schooling during the pandemic such as Chase v Chase 2020 ONSC 5083 and Zinati v Spence 2020 ONSC 5231 largely deferred to public health guidelines in deciding whether children should be enrolled in virtual school. The short answer is this: where the government endorses in-person schooling, the court is likely to accept this conclusion unless one parent is able to advance evidence showing why it would be contrary to that specific child’s best interests. Court decisions dealing with children’s pre-pandemic vaccines have adopted similar reasoning. For example, in the earlier case of C.M.G. v. D.W.S. 2015 ONSC 2201, the father sought to have the child vaccinated before travelling overseas, while the mother refused. The court ultimately concluded that vaccinating the child would be in her best interests and relied on Canada’s public policy in favour of vaccinations of children generally, in addition to the expert evidence presented by the father in favour of the child’s vaccination. In Tarkowski v Lemieux, 2020 ONCJ 280, (decided before COVID-19 vaccines were approved for children), the court provided the father with the sole authority to vaccinate the child against COVID-19 should a vaccine be approved in the future. The court reached this conclusion, in part, due to the mother’s lack of trust in Western medicine generally, and her history of refusing or delaying the child’s routine vaccinations to date. The court further acknowledged that children and young people in general do not appear to have a high risk of developing adverse reactions to the COVID-19 vaccine, and that vaccinations could be beneficial in preventing the spread of the virus to more vulnerable members of the population. The court’s reasoning was similar to how pre-pandemic vaccines and the issue of virtual vs. in-person schooling were treated. In short, the courts are likely to defer to the accepted public health guidelines on the issue, unless one parent is able to advance evidence showing that the vaccine would not be in their child’s best interests. This would likely need to be accomplished by way of a credible expert’s opinion with respect to the specific child’s needs. A parent might succeed in making this kind of argument where, for example, the child has a history of adverse reactions to previous vaccines. If you have any questions related to your family law matter contact Mason Morningstar at mason.morningstar@devrylaw.ca or 416-446-3336. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Justin DominicBlog, COVID-19, Family LawJune 8, 2021June 8, 2021
Can My New Spouse or Partner Adopt My Biological Children? Integrating a new partner into your existing family can be an exciting step, but it is not always without challenges. Depending on whether the children’s other biological parent is still in the picture, your children’s age, and their opinion, the process of adoption could be difficult and you may face additional legal challenges. Is the other biological parent still in the picture? Unless the other biological parent is deceased or has abandoned the child, their consent to the adoption is required, because the adoption severely affects that parent’s rights with respect to the child. The step-parent, upon adoption, will obtain full parental rights. They will have increased rights to make decisions regarding your child’s medical treatment, education, their residence, and so on. The other biological parent will cease to be the child’s parent upon the order for adoption, (s. 217 (2)(b) of the Child, Youth and Family Services Act, 2017, [the “Act”]). The other biological parent’s ability to obtain an order for access to the child once the adoption order is issued, becomes much more difficult. Given these significant implications, and of course depending on each unique situation, it is likely that it will be difficult for you to obtain the other biological parent’s consent. The Test to Dispense with Consent of the Biological Parent: One possibility to circumvent this onerous requirement is to apply to the court for permission to adopt without the consent of the other biological parent. The permission to adopt without the other biological parent’s consent will only be granted in a very narrow set of circumstances, and only if the court is convinced that it would be in the best interest of the child to do so. The factors the court will consider in determining the best interest of the child are listed at s. 136 of the Act: The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; The child’s physical, mental and emotional level of development; The child’s cultural background; The religious faith, if any, in which the child is being raised; The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family; The child’s relationships by blood or through an adoption order; The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity; The child’s views and wishes, if they can be reasonably ascertained; The effects on the child of delay in the disposition of the case; and Any other relevant circumstance. In a motion brought to the Ontario Superior Court in 2016, a mother sought to dispense with the biological father’s consent to her new spouse adopting her ten year old biological son. However, the biological mother never informed the biological father of his son’s birth. After discovering he had a ten year old son, the biological father wished to establish a relationship with the child (S.D.K. v M.G.C., 2016 ONSC 4586). In this case, even though the child had provided consent to the adoption, the court dismissed the motion after considering the above-mentioned factors. The court explained that an adoption is final and irrevocable and would cut “any possibility of ties” between the child and the biological paternal side of the family. Furthermore, the child’s maturity level and understanding of the adoption process was not established clearly to the court through evidence. The court was also not convinced that denying the adoption order would destabilize the existing family unit. For these reasons, the child’s consent did not convince the court that the adoption – and dispensing with the biological father’s consent – would be in the best interest of the child. Is the biological parent unknown or unreachable? If, on the other hand, the other biological parent is unknown, or cannot be reached, the adoption will become somewhat easier. However, an application to court to obtain permission to proceed without consent is still necessary. The court must be convinced that the other biological parent cannot be located, despite reasonable efforts, and that it is in the child’s best interest to dispense with the consent requirement. Does my child need to consent? The answer to this question depends on the child’s age. A child who is under 7 years of age is not legally required to consent to being adopted. However, if the child is between 7 and 18 years old, their written consent is a necessary condition for the adoption under s. 180 (6) of the Act. In this case, the child is entitled to an opportunity to receive counselling and independent legal advice to determine their wishes. For a child under the age of 18, the Children’s Lawyer must be satisfied that the consent is fully informed and reflects the child’s true wishes. The Children’s Lawyer represents children under the age of 18, and is provided by the provincial government to ensure independent advice and assessment. The court itself will also take into account the child’s wishes and may assess the child’s capacity to understand what it means to become adopted. Once a child has turned 7 years old, the child’s consent can be dispensed only under narrow circumstances. Again, an application to court is necessary. The court must be convinced that obtaining the consent of the child would cause emotional harm to the child, or that the child is not able to consent because of a developmental disability. If you have more questions about your family law matter contact Amy Jephson at 289-638-3172 or amy.jephson@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Justin DominicBlog, Family LawJanuary 25, 2021June 24, 2022
