Canada Legal .com Articles

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

A New Mexico appellate court ruled that a man who unknowingly fathers a child because his partner told him that she was using birth control could not argue Contraceptive Fraud to avoid paying child support.

In the court decision of Wallis v. Smith (New Mexico Court of Appeal, 22 P. 3d. 682 (2001)), the father of the newborn child alleged that the mother told him that she was using birth control when, in fact, she was not. He argued that she committed Contraceptive Fraud. The trial court dismissed the lawsuit, finding that it was against public policy to accept this argument.

The appellate court upheld this ruling. The court relied on the child support laws of New Mexico and held that it had no jurisdiction to recognize Contraceptive Fraud as a ground for relieving a father from his obligation to pay child support.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

Child support is paid as long as the child is a dependant.

Usually, a dependant child is one who is under the age of 18 years.

In some instances, child support may continue past the age of 18 years if the child is not financially self-sufficient because of an illness or disability or because the child is going to school full-time.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

“May I stop paying child support because my spouse will not let me see my children?” No.

Child support is to provide the children with food, clothing, shelter and the necessaries of life.

It is not appropriate to deprive children of this because the other parent has acted unreasonably.

There are other remedies available such as a change in custody or access or a motion to find the other parent in contempt.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

“Will I be required to pay spousal support?” This is a complex question. In answering it, there are 3 questions that need to be considered.

1. Firstly, is a spouse entitled to support?
2. Secondly, what is the amount of support that should be paid?
3. Thirdly, what is the duration that support should be paid for?

When determining spousal support, the Judge requires that each spouse file a sworn Financial Statement which contains a monthly budget. This way, the Judge can see the total monthly income and expenses of each spouse.

The Judge will consider the financial need of the spouse that requests support, the financial ability of the other spouse to pay support and the standard of living that the spouses maintained before separation.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

Since the enactment of the Child Support Guidelines in 1997, the monthly amount of child support is primarily based on the income of the non-custodial parent, the number of children in the family and which province the children reside in.

Tables are published that set out the amount that the non-custodial parent must pay to the custodial parent. The table amounts are for the children’s ordinary expenses such food, clothing and shelter. For example, a non-custodial parent of 2 children in Ontario who earns $40,000 per year will pay to the custodial parent a table amount of $570 per month.

The custodial parent’s income becomes relevant where the children have special or extraordinary expenses such as daycare, extracurricular activities or private school tuition. In that case, the parents share these costs in proportion to their incomes.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

Dora and Raymond are the biological parents to two young children.

Children’s Aid Society of Toronto (’CAS’) had been involved with this family since the birth of the children. CAS’s concerns related to the cleanliness of the home and the ability of the parents to meet the special needs of one of the children.

Previously, CAS apprehended the children and later returned them to their parents. But in November 2002, the children were once again apprehended because of the conditions in the home. CAS then sought an order of ‘Crown Wardship with no access’ between the children and their parents in order to allow the children to be adopted. CAS was of the view that an order of Crown Wardship with no access would ensure the children’s future opportunity for a permanent and stable home.

After a seven day trial in 2003, the trial judge found that Crown Wardship was in the children’s best interests but did not make a ‘no access order’. Instead, it made a ‘silent with respect to access’ order allowing the CAS to facilitate access between the parents and the children until such time as adoptive parents were found. As a result of this restrictive access order, the mother appealed this decision to the Ontario Court of Appeal.

On September 27, 2005, the highest court in the province ruled that neither parent shall have a right of access to either child in order to allow the children to be adopted.

In doing so, the court was aware that the legislation still permitted the mother to seek an access order if the children had not been placed with adoptive parents within six months. Moreover, an order giving no right of access to the parents did not prevent the CAS from permitting the parents to visit the children.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

Previously, the Ontario Court of Appeal, in the March 2, 2001 decision of in Chapman v. Chapman, considered whether access by a grandparent to grandchildren who live with their parents should be imposed over the wishes of those parents.

In that case, the court decided that the grandmother’s conflict with her children was unfortunate, but there was no evidence that the parents’ refusal to permit the grandmother access to her grandchildren was detrimental to them. Thus, the court ruled that the decision of parents to refuse a grandparent access should therefore be respected by the court and the children’s best interests should be left in the exclusive domain of their parents.

This ruling may have been loosened by the June 4, 2004 decision of Justice Sproat in the case of Dobre v. Dobre.

In that case, the grandparents on the father’s side applied to the court for access to their grandchildren, 5 year old Alexandra and 3 year old Antonio.

The children’s father did not participate in the court case because he was attending a treatment program for his drug addiction. The children’s mother opposed the application.

The court decided that it would be in the children’s best interests to have a relationship with their paternal grandparents and the rest of the father’s family. The court granted the grandparents supervised access at an access centre for 3 hours per week and invited them to have unsupervised access after a re-introduction period.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

Can you sue for custody and support of your pet? Maybe.

On December 17, 2004, in the Ontario case of Warnica v. Gering, Mr. Justice Timms dismissed Christopher Warnica’s claim for shared joint custody of a pet dog named Tuxedo. In that case, the judge stated that courts should not be in the business of making custody orders for pets.

Although the judge acknowledged that pets are of great importance to human beings, Mr. Justice Timms stated that some people go to extraordinary lengths to preserve that relationship. That is why Mr. Justice Timms ultimately ended Mr. Warnica’s case.

As for pet support, in the Alberta case of Boschee v. Duncan, [2004] A.J. 677, in addition to seeking $1,500 per month in spousal support, the wife claimed $200 per month to support her husband’s St. Bernard dog. The wife argued that she required pet support to cover the veterinary costs and the costs of feeding and caring for the dog after her husband left the dog in her care.

The court found that a St. Bernand dog costs more to maintain and feed than the usual smaller variety. The judge hearing this case ruled that $200 per month is a reasonable sum to compensate the wife for the time and expense required to look after her husband’s dog and ordered him to pay pet support.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

What happens when separated parents cannot agree on anything regarding their child? This was the dilemma that plagued 6 year old Nathan. His parents became embroiled in a 9 day trial and then a 2 day appeal over this very problem.

Ultimately, on May 21, 2002, in the case of Cox v. Down, [2002] O.J. No. 2762, Mr. Justice Templeton of the Ontario Superior Court of Justice decided that the least of all evils was to decide each and every aspect of Nathan’s life for his two parents.

Nathan’s mother was a nurse and his father was a doctor. These parents never lived together. Nathan lived with his mother since birth. When he was 5 years old, Nathan’s father was awarded custody. His mother appealed from the judgment changing custody of Nathan. The trial judge found that the mother actively interfered with the father’s access and discouraged a relationship between Nathan and his father. After a long history of litigation, it was ordered that granting custody of Nathan to his father and access visitation to his mother would be in Nathan’s best interest.

On appeal, an order was made for joint custody of Nathan using the ‘parallel parenting’ model. The appeal court considered the many Canadian cases that concluded that parallel parenting can be appropriate in cases where parents are openly hostile and uncooperative. The concept is that the parents have equal status, but exercise the rights and responsibilities associated with custody independent of one another. A parallel parenting order is much more than a mere residential schedule where the child resides with one parent on a day to day basis. The concept of parallel parenting is intended to remove the power struggle between the two parents for control over the child.

The court decided that a parallel parenting order that would micromanage Nathan’s life with his two parents was in his best interest.

In the end, not only were Nathan’s parents granted equal time with Nathan throughout the school year, summer and holidays, but the rest of Nathan’s life was to be micromanaged. Nathan’s father was granted care and control of Nathan’s birth certificate and passport. Nathan’s mother was responsible for all decisions regarding Nathan’s health. Each parent was entitled to select one after-school activity for Nathan, provided that the activity did not fall within the time Nathan spent with the other parent. The parents were ordered to use a ‘communication diary’ to exchange information regarding Nathan’s care.

In addition, the appellate judge was forced to decide the title of Nathan’s father. The court ruled that the mother was required to refer to the father as ‘Dad’ or ‘Daddy’ in the presence of, and within hearing distance, of Nathan.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

In a March 2000 custody trial, the mother of 9 year old triplets had lost custody of her children to the father. The custody trial was adjourned to decide whether the mother would continue to have access visits with her 2 boys and a girl. Fearing that the Family court judge would cancel the access to her children, the mother cashed in her assets and prepared to flee with the children on her next access visit. She hid the children in her car and drove to the United States and then to Mexico, where they lived for a few months until they were found and returned to their father in Ontario.

The mother was criminally charged with 3 counts of abduction. At her criminal trial, she argued that her children would face imminent psychological and emotional harm by living with their father. The mother relied on section 285 of the Criminal Code that provides that a person cannot be found guilty of abduction if the court is satisfied that taking the children was necessary to protect them from danger of imminent harm.

A judge and jury acquitted her of all criminal charges. However, the Crown Attorney appealed this decision and, on August 26, 2003, the Ontario Court of Appeal determined that there was neither harm nor imminence in the mother’s situation.

The appellate court was concerned that anarchy and chaos would be created in family law if a Criminal court judge were to accept that a Family court judge’s decision to grant custody to one parent created a situation of imminent harm to the children. The appellate court stated that parents who are unhappy with the outcome of custody proceedings would feel entitled to ignore unfavourable court orders regarding their children.

A new criminal trial was ordered.