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Christmas is Coming: Schedule and Plan for a Successful Holiday Season

Christmas is Coming: Schedule and Plan for a Successful Holiday Season

 

The Holidays can be an amazing time filled with festivities, family and friends. If you are newly separated this is going to be a very different holiday season for you and your children. Take some time and make sure that you and your former partner get the most of the Christmas season with your kids. Here are a few points to keep in mind:

1. Do what’s in the best interests of the Children.

It is Christmas after all, and in the spirit of that try and put the wants and needs of your children before the issues between you and your former spouse/partner. It can be hard, and often seem impossible to think of a potential resolution with your ex, however you would be surprised with how quickly the issues can (temporarily or permanently) settle if you both put the needs of your children first. If possible try and give your child the full holiday experience, let them interact with both of you (not necessarily together) if possible, let them see extended family if its been a part of their previous holiday routines, keep those important family traditions going if you can. The holidays create lasting memories, and unfortunately conflict and fighting can potentially ruin the happiness of the season for them. Here are a few things to keep in mind: • Avoid spending excessive amounts of money or getting in to a contest over who can give the coolest or most expensive gift. One upping each other will just create tension between you two, and put the children in the middle to choose which parent outdid the other, aka who’s better mommy or daddy? • Try and work out issues and details for holiday scheduling beforehand, if the schedule is set it will alleviate potential conflict and give the kids something to look forward to. • Be as amicable as possible during the exchange, stay positive if you have a negative drop off experience it can leave children either feeling guilty or sad about how a parent is feeling after they leave them. • Create some new traditions for you and your kids. Make the time you are spending with them something special, and if you can fuse together new and old traditions it can bring in a sense of familiarity with Holiday past with the present.

 

2. Start Planning as Early as Possible.

Address your holiday plans as early as possible rather than the couple of days leading up to your scheduled events. This reduces the stress level and allows parents time to think about the options available, such as rescheduling or changing times of certain dinners/events etc. You both may have planned out how you want to spend the holidays with your kids, but if you don’t discuss it with each other you could end up in massive conflict because of overlapping events. Keep your children involved, ask them questions, like what their favourite part of the holiday is? Who do they want to see (family, extended family etc)? What traditions were they most excited for? etc. Try and keep the holiday focused on continuing to create memorable experiences for them.

3. Be flexible and fair.

Be okay with knowing you won’t necessarily get to do everything that you want. Prioritize what really matters to you, and do your best to be fair to your ex-partner since they may also have holiday plans that are important to them. Be cognizant that you won’t get everything you want, but you can attempt to make an arrangement that you are both okay with. Being a parent is forever, and the sooner successful co-parenting can take place the easier it will be on the children. The marriage may have ended but your parenting partnership needs to be a priority for your kids.

 

4. Settle on your dates and keep your family in the loop.

If your usual Christmas includes extended family then call your aunt, email your cousins and talk to your parents ahead of time with the verified dates and times that your family is available. Keep everyone updated on your holiday access schedule, especially if you are newly separated they may not have even considered that the holidays could be different going forward. It’s a busy time for everyone so the more they know the easier it will be for them to potentially adjust times or dates in order to work around your new schedule with the kids to maximize family time. Make a point of reaching out to those who are in charge of organizing family functions give them your availability for the events well in advance. In most cases, family members will understand your situation and want to do what they can to ensure that the children are present for the celebrations. Keep in mind it won’t always be possible to move the dates of all family events or gatherings, but advanced warning can allow for a wider range of options or concessions to be made.

5. Consider consulting your family law lawyer if your discussions fail. If you’re involved in a high conflict situation consider involving your legal representation. Sometimes having a third party can help reach the fairest outcome for both of you and the children. Once again, the earlier the better so if this year doesn’t work out according to plan make sure to keep these points in mind when planning the next special occasion.

Kain and Ball would like to wish you and yours the happiest of Holiday Seasons, if at any point you need us we are here for you. The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 1-855-773-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers

Read More

Christmas is Coming: Schedule and Plan for a Successful Holiday Season

 

The Holidays can be an amazing time filled with festivities, family and friends. If you are newly separated this is going to be a very different holiday season for you and your children. Take some time and make sure that you and your former partner get the most of the Christmas season with your kids. Here are a few points to keep in mind:

1. Do what’s in the best interests of the Children.

It is Christmas after all, and in the spirit of that try and put the wants and needs of your children before the issues between you and your former spouse/partner. It can be hard, and often seem impossible to think of a potential resolution with your ex, however you would be surprised with how quickly the issues can (temporarily or permanently) settle if you both put the needs of your children first. If possible try and give your child the full holiday experience, let them interact with both of you (not necessarily together) if possible, let them see extended family if its been a part of their previous holiday routines, keep those important family traditions going if you can. The holidays create lasting memories, and unfortunately conflict and fighting can potentially ruin the happiness of the season for them. Here are a few things to keep in mind: • Avoid spending excessive amounts of money or getting in to a contest over who can give the coolest or most expensive gift. One upping each other will just create tension between you two, and put the children in the middle to choose which parent outdid the other, aka who’s better mommy or daddy? • Try and work out issues and details for holiday scheduling beforehand, if the schedule is set it will alleviate potential conflict and give the kids something to look forward to. • Be as amicable as possible during the exchange, stay positive if you have a negative drop off experience it can leave children either feeling guilty or sad about how a parent is feeling after they leave them. • Create some new traditions for you and your kids. Make the time you are spending with them something special, and if you can fuse together new and old traditions it can bring in a sense of familiarity with Holiday past with the present.

 

2. Start Planning as Early as Possible.

Address your holiday plans as early as possible rather than the couple of days leading up to your scheduled events. This reduces the stress level and allows parents time to think about the options available, such as rescheduling or changing times of certain dinners/events etc. You both may have planned out how you want to spend the holidays with your kids, but if you don’t discuss it with each other you could end up in massive conflict because of overlapping events. Keep your children involved, ask them questions, like what their favourite part of the holiday is? Who do they want to see (family, extended family etc)? What traditions were they most excited for? etc. Try and keep the holiday focused on continuing to create memorable experiences for them.

3. Be flexible and fair.

Be okay with knowing you won’t necessarily get to do everything that you want. Prioritize what really matters to you, and do your best to be fair to your ex-partner since they may also have holiday plans that are important to them. Be cognizant that you won’t get everything you want, but you can attempt to make an arrangement that you are both okay with. Being a parent is forever, and the sooner successful co-parenting can take place the easier it will be on the children. The marriage may have ended but your parenting partnership needs to be a priority for your kids.

 

4. Settle on your dates and keep your family in the loop.

If your usual Christmas includes extended family then call your aunt, email your cousins and talk to your parents ahead of time with the verified dates and times that your family is available. Keep everyone updated on your holiday access schedule, especially if you are newly separated they may not have even considered that the holidays could be different going forward. It’s a busy time for everyone so the more they know the easier it will be for them to potentially adjust times or dates in order to work around your new schedule with the kids to maximize family time. Make a point of reaching out to those who are in charge of organizing family functions give them your availability for the events well in advance. In most cases, family members will understand your situation and want to do what they can to ensure that the children are present for the celebrations. Keep in mind it won’t always be possible to move the dates of all family events or gatherings, but advanced warning can allow for a wider range of options or concessions to be made.

5. Consider consulting your family law lawyer if your discussions fail. If you’re involved in a high conflict situation consider involving your legal representation. Sometimes having a third party can help reach the fairest outcome for both of you and the children. Once again, the earlier the better so if this year doesn’t work out according to plan make sure to keep these points in mind when planning the next special occasion.

Kain and Ball would like to wish you and yours the happiest of Holiday Seasons, if at any point you need us we are here for you. The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 1-855-773-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers

Best Friends and… Parents?: How these Co-Mommas have Changed the Declaration of Parentage Game

Best Friends and… Parents?: How these Co-Mommas have Changed the Declaration of Parentage Game

When you hear the word “parents,” what comes to mind?

“Parents” is a fairly broad term when you think about it: parents may be divorced, they may be a same-sex couple, they may have non-biological children that they care for… there is any number of unique combinations that fit the term “parents.”

But, did you think of two best friends acting as parents to a child? Likely not. Best friends Natasha Bakht and Lynda Collins, self-proclaimed “co-mommas,” would like you to.

Bakht and Collins are colleagues, neighbours, best friends, and thanks to the Ontario courts, now parents to a seven-year-old boy, Elaan. When Bakht chose to get pregnant by way of a sperm donor, Collins immediately offered to be her friend’s birth coach. When Bakht’s son, Elaan, was born, Collins upgraded her role from birth coach to “co-parent.” Collins assisted Bakht in all aspects of raising Elaan, who was born with severe disabilities.

After several years of co-parenting, Bakht and Collins decided to ask the courts to grant them an unusual request: they wanted to both be legally regarded as Elaan’s mothers, despite not living together and not having a sexual relationship with one another. In other words, Linda wanted to legally adopt Elaan.

Generally speaking, this is not an unusual situation – a mother or father with a new partner may apply for a “Declaration of Parentage” so that their partner is legally considered a parent of their stepchild. Bakht and Collins’ challenge was that they do not have a sexual relationship with one another, which is required for adoption.

Thankfully, this has changed with the Ontario’s legislature’s acknowledgement that today’s families can be created in unique ways. On January 1, 2017, Ontario’s “All Families are Equal Act” came into force, and it requires that “co-parents” have a written agreement prior to conception. Bakht and Collins did not have such an agreement.

Bakht and Collins petitioned the court to grant their unique situation an exemption- and it worked. November 2016, the court granted Collins parentage of Elaan. This means that Linda has the same rights as any other parent. She can make important decisions for Elaan, just as his natural mother, Bakht, does. Furthermore, they are permitted to grow their family if either woman does meet a romantic partner in the future. If their relationship ever falters, custody of Elaan would be treated as any other family break up would, with custody arrangement made through courts.

Natasha and Linda’s efforts have created a wonderful precedent and paved the path for a further expansion of the definition of “parents.” Do you have a close friend whom you would co-parent with? If you do, your ability to have that person declared a parent to your child just became a little bit easier, thanks to Bakht and Collins.

All information in this post was found at http://www.cbc.ca/news/canada/ottawa/multimedia/raising-elaan-profoundly-disabled-boy-s-co-mommas-make-legal-history-1.3988464.

Read More

Best Friends and… Parents?: How these Co-Mommas have Changed the Declaration of Parentage Game

When you hear the word “parents,” what comes to mind?

“Parents” is a fairly broad term when you think about it: parents may be divorced, they may be a same-sex couple, they may have non-biological children that they care for… there is any number of unique combinations that fit the term “parents.”

But, did you think of two best friends acting as parents to a child? Likely not. Best friends Natasha Bakht and Lynda Collins, self-proclaimed “co-mommas,” would like you to.

Bakht and Collins are colleagues, neighbours, best friends, and thanks to the Ontario courts, now parents to a seven-year-old boy, Elaan. When Bakht chose to get pregnant by way of a sperm donor, Collins immediately offered to be her friend’s birth coach. When Bakht’s son, Elaan, was born, Collins upgraded her role from birth coach to “co-parent.” Collins assisted Bakht in all aspects of raising Elaan, who was born with severe disabilities.

After several years of co-parenting, Bakht and Collins decided to ask the courts to grant them an unusual request: they wanted to both be legally regarded as Elaan’s mothers, despite not living together and not having a sexual relationship with one another. In other words, Linda wanted to legally adopt Elaan.

Generally speaking, this is not an unusual situation – a mother or father with a new partner may apply for a “Declaration of Parentage” so that their partner is legally considered a parent of their stepchild. Bakht and Collins’ challenge was that they do not have a sexual relationship with one another, which is required for adoption.

Thankfully, this has changed with the Ontario’s legislature’s acknowledgement that today’s families can be created in unique ways. On January 1, 2017, Ontario’s “All Families are Equal Act” came into force, and it requires that “co-parents” have a written agreement prior to conception. Bakht and Collins did not have such an agreement.

Bakht and Collins petitioned the court to grant their unique situation an exemption- and it worked. November 2016, the court granted Collins parentage of Elaan. This means that Linda has the same rights as any other parent. She can make important decisions for Elaan, just as his natural mother, Bakht, does. Furthermore, they are permitted to grow their family if either woman does meet a romantic partner in the future. If their relationship ever falters, custody of Elaan would be treated as any other family break up would, with custody arrangement made through courts.

Natasha and Linda’s efforts have created a wonderful precedent and paved the path for a further expansion of the definition of “parents.” Do you have a close friend whom you would co-parent with? If you do, your ability to have that person declared a parent to your child just became a little bit easier, thanks to Bakht and Collins.

All information in this post was found at http://www.cbc.ca/news/canada/ottawa/multimedia/raising-elaan-profoundly-disabled-boy-s-co-mommas-make-legal-history-1.3988464.

Request for Paternity (DNA) Testing

Request for Paternity (DNA) Testing

 

We live in a world of daytime talk shows and reality television where serious issues are often presented to us as entertainment: look no further than your own living room and turn on your TV and you’ll see that determining the unknown paternity of a child. Viewers watch as the mother waits with baited breath; the anxious potential father sits motionless, beads of sweat running down his face; all eyes locked on the host in his turtleneck and his fate-determining cue card. Many of us have watched (and maybe even enjoyed) these shows as we are blissfully unaware of or unconcerned by the fact that this very situation is a real life changing and stressful reality for some.

These “Who’s Your Daddy?” talk shows tend to oversimplify the process of obtaining a DNA test. It is important to keep in mind that unless both parties consent it’s not a given. In the case of Griggs v Cummins, 2014 CarswellOnt 9300 (Ont. S.C.J.), it was the alleged father who brought a motion requesting leave to obtain a blood test to determine whether he was, in fact the child’s father. The mother then brought a cross-motion aggressively opposing the paternity test, leaving the proverbial cue-card of fate in the hands of the court.

Case law has established the general principle that in exercising the discretion under section 10 of the Children’s Law Reform Act is that request for leave to obtain DNA tests should be granted unless it can be shown that either the actual process of conducting the tests could be harmful to the child’s health or the request for leave to obtain the blood test is made in bad faith.

In Griggs, the Honorable Justice Howden acted on the discretion permitted under sections 4 of the Children’s Law Reform Act. Section 24 of the Children’s Law Reform Act is where the best interests of the child are defined. Justice Howden ultimately decided that it would be in the best interests of the child in question to have some certainty as to the identity of her father. He also determined that, from a public policy standpoint, it is also in society’s interest to ascertain paternity of children, to ensure parental accountability.

What’s interesting about this decision is that it draws focus into the impact of family law decisions on public policy. As far as paternity testing, the interest goes beyond the individuals directly involved; it is also in the interest of society, as a whole, children are financially taken care of by the parents. If an alleged father is contesting paternity and the applicant seeking child support wishes to remove any doubt about percentage, the best course of action may be to apply to the court for leave to obtain a paternity test.

We all know that parents are responsible for their children financially and otherwise. What you may not know is that there is a “presumption of paternity”. Factors that are set out in Section 8 of the Children’s Law Reform Act create a “presumption for paternity”.

  1. (1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:
  2. The person is married to the mother of the child at the time of the birth of the child.
  3. The person was married to the mother of the child by a marriage that was terminated by death of judgement of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child.
  4. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.
  5. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.
  6. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.
  7. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.

Children’s Law Reform Act R.S.O. 1990, c. C. 12, s. 8 (1).

Based on the above factors, the best way to rebut the presumption of paternity in any of the above circumstances is to obtain a paternity test. In situations where support is being sought and a father is unsure if the child in question is his, he would be wise to seek a paternity test before he makes payments for the child and displays any conduct establishing a loco parentis role which can trigger support obligations regardless of biological paternity. For example, where a male may not be the biological father of the child, and this is later proven by paternity testing, he may still be responsible for providing child support if, by his conduct, he has demonstrated a settled intention and acted in the role of a parent. For those who find themselves in situations like this it is best to test and establish paternity sooner rather than later.

Read More

Request for Paternity (DNA) Testing

 

We live in a world of daytime talk shows and reality television where serious issues are often presented to us as entertainment: look no further than your own living room and turn on your TV and you’ll see that determining the unknown paternity of a child. Viewers watch as the mother waits with baited breath; the anxious potential father sits motionless, beads of sweat running down his face; all eyes locked on the host in his turtleneck and his fate-determining cue card. Many of us have watched (and maybe even enjoyed) these shows as we are blissfully unaware of or unconcerned by the fact that this very situation is a real life changing and stressful reality for some.

These “Who’s Your Daddy?” talk shows tend to oversimplify the process of obtaining a DNA test. It is important to keep in mind that unless both parties consent it’s not a given. In the case of Griggs v Cummins, 2014 CarswellOnt 9300 (Ont. S.C.J.), it was the alleged father who brought a motion requesting leave to obtain a blood test to determine whether he was, in fact the child’s father. The mother then brought a cross-motion aggressively opposing the paternity test, leaving the proverbial cue-card of fate in the hands of the court.

Case law has established the general principle that in exercising the discretion under section 10 of the Children’s Law Reform Act is that request for leave to obtain DNA tests should be granted unless it can be shown that either the actual process of conducting the tests could be harmful to the child’s health or the request for leave to obtain the blood test is made in bad faith.

In Griggs, the Honorable Justice Howden acted on the discretion permitted under sections 4 of the Children’s Law Reform Act. Section 24 of the Children’s Law Reform Act is where the best interests of the child are defined. Justice Howden ultimately decided that it would be in the best interests of the child in question to have some certainty as to the identity of her father. He also determined that, from a public policy standpoint, it is also in society’s interest to ascertain paternity of children, to ensure parental accountability.

What’s interesting about this decision is that it draws focus into the impact of family law decisions on public policy. As far as paternity testing, the interest goes beyond the individuals directly involved; it is also in the interest of society, as a whole, children are financially taken care of by the parents. If an alleged father is contesting paternity and the applicant seeking child support wishes to remove any doubt about percentage, the best course of action may be to apply to the court for leave to obtain a paternity test.

We all know that parents are responsible for their children financially and otherwise. What you may not know is that there is a “presumption of paternity”. Factors that are set out in Section 8 of the Children’s Law Reform Act create a “presumption for paternity”.

  1. (1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:
  2. The person is married to the mother of the child at the time of the birth of the child.
  3. The person was married to the mother of the child by a marriage that was terminated by death of judgement of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child.
  4. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.
  5. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.
  6. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.
  7. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.

Children’s Law Reform Act R.S.O. 1990, c. C. 12, s. 8 (1).

Based on the above factors, the best way to rebut the presumption of paternity in any of the above circumstances is to obtain a paternity test. In situations where support is being sought and a father is unsure if the child in question is his, he would be wise to seek a paternity test before he makes payments for the child and displays any conduct establishing a loco parentis role which can trigger support obligations regardless of biological paternity. For example, where a male may not be the biological father of the child, and this is later proven by paternity testing, he may still be responsible for providing child support if, by his conduct, he has demonstrated a settled intention and acted in the role of a parent. For those who find themselves in situations like this it is best to test and establish paternity sooner rather than later.

To Snoop, or Not to Snoop?

To Snoop, or Not to Snoop?

Developments in personal technology are complicating legal disputes. Everyone has a Facebook account. Everyone texts. Most people do their banking online. Glimpsing into the private affairs of one another has become fairly easy and fairly commonplace – in other words, snooping. Is snooping ok? As far as the courts are concerned, no.

In January 2012, the Ontario Court of Appeal ‘s decision in Jones v. Tsige addressed this very issue. The court recognized a novel tort claim, that of ‘intrusion upon seclusion.’ This newly adopted rhyming tort allows someone to sue another if damages arise from the invasion of their personal privacy.

In Jones, Ms. Jones was in a relationship with Ms. Tsige’s former husband. Ms. Tsige paid child support to her ex-husband. However it was her belief that her ex-husband was paying the child support to his new partner, Ms. Jones, rather than the money going to the children. It just so happened that Ms. Tsige and Ms. Jones both worked at the Bank of Montreal, and so Ms. Tsige began to inspect Ms. Jones banking information to see if she was getting deposits from the ex-husband.

Naturally, Ms. Jones wasn’t very happy about this. She felt that her privacy had been violated. The Ontario Court of Appeal agreed. They established a principle, one which spouses would be smart to take note of: One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

What exactly are the implications of this rule for spouses who are separating? To be frank, it is yet unclear. This new tort has not been applied in any family law cases, but it has been considered in family law decisions. In C.(B.D.) v. B.(B.J.), a father was concerned about negative comments that his ex-wife was making about him while speaking on the phone with her son. In response, the father made audio and video recordings of the phone conversations without the mother’s knowledge. The father then tried to put forward these recordings as evidence against her.

With a clear voice, the court said that evidence of this sort is inadmissible. Yes, the evidence showed a clear attempt of the mother to manipulate her child. But it was also obtained by invading upon her privacy, and it just so happened that there is a criminal prohibition to recording private conversations. To allow these recordings as evidence would be to allow evidence which was obtained by breaking the criminal code as well as the novel tort of invasion upon seclusion.

Privacy is becoming increasingly valued in Canada – be wary with your electronics. If you do decide to snoop on your spouse, don’t expect the court to go easy on you. You may think that the boundaries in a relationship are flexible. In a court, they are formalized and rigid.

The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 1-855-773-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers.

Read More

To Snoop, or Not to Snoop?

Developments in personal technology are complicating legal disputes. Everyone has a Facebook account. Everyone texts. Most people do their banking online. Glimpsing into the private affairs of one another has become fairly easy and fairly commonplace – in other words, snooping. Is snooping ok? As far as the courts are concerned, no.

In January 2012, the Ontario Court of Appeal ‘s decision in Jones v. Tsige addressed this very issue. The court recognized a novel tort claim, that of ‘intrusion upon seclusion.’ This newly adopted rhyming tort allows someone to sue another if damages arise from the invasion of their personal privacy.

In Jones, Ms. Jones was in a relationship with Ms. Tsige’s former husband. Ms. Tsige paid child support to her ex-husband. However it was her belief that her ex-husband was paying the child support to his new partner, Ms. Jones, rather than the money going to the children. It just so happened that Ms. Tsige and Ms. Jones both worked at the Bank of Montreal, and so Ms. Tsige began to inspect Ms. Jones banking information to see if she was getting deposits from the ex-husband.

Naturally, Ms. Jones wasn’t very happy about this. She felt that her privacy had been violated. The Ontario Court of Appeal agreed. They established a principle, one which spouses would be smart to take note of: One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

What exactly are the implications of this rule for spouses who are separating? To be frank, it is yet unclear. This new tort has not been applied in any family law cases, but it has been considered in family law decisions. In C.(B.D.) v. B.(B.J.), a father was concerned about negative comments that his ex-wife was making about him while speaking on the phone with her son. In response, the father made audio and video recordings of the phone conversations without the mother’s knowledge. The father then tried to put forward these recordings as evidence against her.

With a clear voice, the court said that evidence of this sort is inadmissible. Yes, the evidence showed a clear attempt of the mother to manipulate her child. But it was also obtained by invading upon her privacy, and it just so happened that there is a criminal prohibition to recording private conversations. To allow these recordings as evidence would be to allow evidence which was obtained by breaking the criminal code as well as the novel tort of invasion upon seclusion.

Privacy is becoming increasingly valued in Canada – be wary with your electronics. If you do decide to snoop on your spouse, don’t expect the court to go easy on you. You may think that the boundaries in a relationship are flexible. In a court, they are formalized and rigid.

The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 1-855-773-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers.


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Separation and the Matrimonial Home

Separation and the Matrimonial Home

Upon separation, both you and your partner may want to stay in the matrimonial (family) home. If you and your partner are married, both of you have an equal right to stay in the matrimonial home until it is sold or until there is a court order or agreement, even if the legal title to the property is only in one of your names. A spouse cannot sell or mortgage a matrimonial home without the other spouse’s written permission.

A matrimonial home is defined as the home where the spouses ordinarily reside together at the time of separation. Parties can also have multiple matrimonial homes as this definition can apply to vacation properties, ski chalets, and cottages.

However, these rules for matrimonial homes do not apply to unmarried or “common-law” spouses, because the definition of matrimonial home applies only to married spouses. An unmarried spouse does not automatically have the right to stay in the family home if it is not in his or her name. If one unmarried spouse owns the home they can sell or mortgage it without the other spouse’s permission.

If you and your partner cannot agree on who should stay in the family home, you can use lawyers, a mediator or an arbitrator to help you decide, or you may have to go to court to have a judge decide. An order or agreement for exclusive possession grants one spouse use of the home and excludes the other. It should be noted that while the court can grant one party exclusive possession of the matrimonial home, the court cannot prefer one joint owner over another by forcing a sale of one party’s interest to the other. A sale of one spouse’s interest in a matrimonial home to the other spouse can only take place if both spouses have agreed to it.

If you and your partner have children, the partner who has custody of the children will most often be the one who gets to stay in the matrimonial home. This is because it helps children to adjust to a new family situation if they are in a place and neighborhood that they already familiar with.

The spouse who stays in the matrimonial home may have to pay occupation rent to the other spouse. Occupation rent is a measure to compensate the spouse who is forced to leave the matrimonial home despite having equity in it. However, there is an uncertainty of recovering occupation rent. There is no strict stance on how the courts handle claims for occupation rent; the court exercises their discretion and bases their decisions on the circumstances pertinent to each case. For instance, the court may offset the amount of occupation rent by the expenditures incurred in maintaining the matrimonial home.

On an interim basis, a court may also provide a nesting order. Such an order leaves the children in the matrimonial home while the parents alternate periods of possession of the home.

The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 1-855-773-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers.

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Separation and the Matrimonial Home

Upon separation, both you and your partner may want to stay in the matrimonial (family) home. If you and your partner are married, both of you have an equal right to stay in the matrimonial home until it is sold or until there is a court order or agreement, even if the legal title to the property is only in one of your names. A spouse cannot sell or mortgage a matrimonial home without the other spouse’s written permission.

A matrimonial home is defined as the home where the spouses ordinarily reside together at the time of separation. Parties can also have multiple matrimonial homes as this definition can apply to vacation properties, ski chalets, and cottages.

However, these rules for matrimonial homes do not apply to unmarried or “common-law” spouses, because the definition of matrimonial home applies only to married spouses. An unmarried spouse does not automatically have the right to stay in the family home if it is not in his or her name. If one unmarried spouse owns the home they can sell or mortgage it without the other spouse’s permission.

If you and your partner cannot agree on who should stay in the family home, you can use lawyers, a mediator or an arbitrator to help you decide, or you may have to go to court to have a judge decide. An order or agreement for exclusive possession grants one spouse use of the home and excludes the other. It should be noted that while the court can grant one party exclusive possession of the matrimonial home, the court cannot prefer one joint owner over another by forcing a sale of one party’s interest to the other. A sale of one spouse’s interest in a matrimonial home to the other spouse can only take place if both spouses have agreed to it.

If you and your partner have children, the partner who has custody of the children will most often be the one who gets to stay in the matrimonial home. This is because it helps children to adjust to a new family situation if they are in a place and neighborhood that they already familiar with.

The spouse who stays in the matrimonial home may have to pay occupation rent to the other spouse. Occupation rent is a measure to compensate the spouse who is forced to leave the matrimonial home despite having equity in it. However, there is an uncertainty of recovering occupation rent. There is no strict stance on how the courts handle claims for occupation rent; the court exercises their discretion and bases their decisions on the circumstances pertinent to each case. For instance, the court may offset the amount of occupation rent by the expenditures incurred in maintaining the matrimonial home.

On an interim basis, a court may also provide a nesting order. Such an order leaves the children in the matrimonial home while the parents alternate periods of possession of the home.

The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 1-855-773-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers.


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Christmas is Coming: Schedule and Plan for a Successful Holiday Season

Christmas is Coming: Schedule and Plan for a Successful Holiday Season

 

The Holidays can be an amazing time filled with festivities, family and friends. If you are newly separated this is going to be a very different holiday season for you and your children. Take some time and make sure that you and your former partner get the most of the Christmas season with your kids. Here are a few points to keep in mind:

1. Do what’s in the best interests of the Children.

It is Christmas after all, and in the spirit of that try and put the wants and needs of your children before the issues between you and your former spouse/partner. It can be hard, and often seem impossible to think of a potential resolution with your ex, however you would be surprised with how quickly the issues can (temporarily or permanently) settle if you both put the needs of your children first. If possible try and give your child the full holiday experience, let them interact with both of you (not necessarily together) if possible, let them see extended family if its been a part of their previous holiday routines, keep those important family traditions going if you can. The holidays create lasting memories, and unfortunately conflict and fighting can potentially ruin the happiness of the season for them. Here are a few things to keep in mind: • Avoid spending excessive amounts of money or getting in to a contest over who can give the coolest or most expensive gift. One upping each other will just create tension between you two, and put the children in the middle to choose which parent outdid the other, aka who’s better mommy or daddy? • Try and work out issues and details for holiday scheduling beforehand, if the schedule is set it will alleviate potential conflict and give the kids something to look forward to. • Be as amicable as possible during the exchange, stay positive if you have a negative drop off experience it can leave children either feeling guilty or sad about how a parent is feeling after they leave them. • Create some new traditions for you and your kids. Make the time you are spending with them something special, and if you can fuse together new and old traditions it can bring in a sense of familiarity with Holiday past with the present.

 

2. Start Planning as Early as Possible.

Address your holiday plans as early as possible rather than the couple of days leading up to your scheduled events. This reduces the stress level and allows parents time to think about the options available, such as rescheduling or changing times of certain dinners/events etc. You both may have planned out how you want to spend the holidays with your kids, but if you don’t discuss it with each other you could end up in massive conflict because of overlapping events. Keep your children involved, ask them questions, like what their favourite part of the holiday is? Who do they want to see (family, extended family etc)? What traditions were they most excited for? etc. Try and keep the holiday focused on continuing to create memorable experiences for them.

3. Be flexible and fair.

Be okay with knowing you won’t necessarily get to do everything that you want. Prioritize what really matters to you, and do your best to be fair to your ex-partner since they may also have holiday plans that are important to them. Be cognizant that you won’t get everything you want, but you can attempt to make an arrangement that you are both okay with. Being a parent is forever, and the sooner successful co-parenting can take place the easier it will be on the children. The marriage may have ended but your parenting partnership needs to be a priority for your kids.

 

4. Settle on your dates and keep your family in the loop.

If your usual Christmas includes extended family then call your aunt, email your cousins and talk to your parents ahead of time with the verified dates and times that your family is available. Keep everyone updated on your holiday access schedule, especially if you are newly separated they may not have even considered that the holidays could be different going forward. It’s a busy time for everyone so the more they know the easier it will be for them to potentially adjust times or dates in order to work around your new schedule with the kids to maximize family time. Make a point of reaching out to those who are in charge of organizing family functions give them your availability for the events well in advance. In most cases, family members will understand your situation and want to do what they can to ensure that the children are present for the celebrations. Keep in mind it won’t always be possible to move the dates of all family events or gatherings, but advanced warning can allow for a wider range of options or concessions to be made.

5. Consider consulting your family law lawyer if your discussions fail. If you’re involved in a high conflict situation consider involving your legal representation. Sometimes having a third party can help reach the fairest outcome for both of you and the children. Once again, the earlier the better so if this year doesn’t work out according to plan make sure to keep these points in mind when planning the next special occasion.

Kain and Ball would like to wish you and yours the happiest of Holiday Seasons, if at any point you need us we are here for you. The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 1-855-773-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers

Read More

Christmas is Coming: Schedule and Plan for a Successful Holiday Season

 

The Holidays can be an amazing time filled with festivities, family and friends. If you are newly separated this is going to be a very different holiday season for you and your children. Take some time and make sure that you and your former partner get the most of the Christmas season with your kids. Here are a few points to keep in mind:

1. Do what’s in the best interests of the Children.

It is Christmas after all, and in the spirit of that try and put the wants and needs of your children before the issues between you and your former spouse/partner. It can be hard, and often seem impossible to think of a potential resolution with your ex, however you would be surprised with how quickly the issues can (temporarily or permanently) settle if you both put the needs of your children first. If possible try and give your child the full holiday experience, let them interact with both of you (not necessarily together) if possible, let them see extended family if its been a part of their previous holiday routines, keep those important family traditions going if you can. The holidays create lasting memories, and unfortunately conflict and fighting can potentially ruin the happiness of the season for them. Here are a few things to keep in mind: • Avoid spending excessive amounts of money or getting in to a contest over who can give the coolest or most expensive gift. One upping each other will just create tension between you two, and put the children in the middle to choose which parent outdid the other, aka who’s better mommy or daddy? • Try and work out issues and details for holiday scheduling beforehand, if the schedule is set it will alleviate potential conflict and give the kids something to look forward to. • Be as amicable as possible during the exchange, stay positive if you have a negative drop off experience it can leave children either feeling guilty or sad about how a parent is feeling after they leave them. • Create some new traditions for you and your kids. Make the time you are spending with them something special, and if you can fuse together new and old traditions it can bring in a sense of familiarity with Holiday past with the present.

 

2. Start Planning as Early as Possible.

Address your holiday plans as early as possible rather than the couple of days leading up to your scheduled events. This reduces the stress level and allows parents time to think about the options available, such as rescheduling or changing times of certain dinners/events etc. You both may have planned out how you want to spend the holidays with your kids, but if you don’t discuss it with each other you could end up in massive conflict because of overlapping events. Keep your children involved, ask them questions, like what their favourite part of the holiday is? Who do they want to see (family, extended family etc)? What traditions were they most excited for? etc. Try and keep the holiday focused on continuing to create memorable experiences for them.

3. Be flexible and fair.

Be okay with knowing you won’t necessarily get to do everything that you want. Prioritize what really matters to you, and do your best to be fair to your ex-partner since they may also have holiday plans that are important to them. Be cognizant that you won’t get everything you want, but you can attempt to make an arrangement that you are both okay with. Being a parent is forever, and the sooner successful co-parenting can take place the easier it will be on the children. The marriage may have ended but your parenting partnership needs to be a priority for your kids.

 

4. Settle on your dates and keep your family in the loop.

If your usual Christmas includes extended family then call your aunt, email your cousins and talk to your parents ahead of time with the verified dates and times that your family is available. Keep everyone updated on your holiday access schedule, especially if you are newly separated they may not have even considered that the holidays could be different going forward. It’s a busy time for everyone so the more they know the easier it will be for them to potentially adjust times or dates in order to work around your new schedule with the kids to maximize family time. Make a point of reaching out to those who are in charge of organizing family functions give them your availability for the events well in advance. In most cases, family members will understand your situation and want to do what they can to ensure that the children are present for the celebrations. Keep in mind it won’t always be possible to move the dates of all family events or gatherings, but advanced warning can allow for a wider range of options or concessions to be made.

5. Consider consulting your family law lawyer if your discussions fail. If you’re involved in a high conflict situation consider involving your legal representation. Sometimes having a third party can help reach the fairest outcome for both of you and the children. Once again, the earlier the better so if this year doesn’t work out according to plan make sure to keep these points in mind when planning the next special occasion.

Kain and Ball would like to wish you and yours the happiest of Holiday Seasons, if at any point you need us we are here for you. The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 1-855-773-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers

Best Friends and… Parents?: How these Co-Mommas have Changed the Declaration of Parentage Game

Best Friends and… Parents?: How these Co-Mommas have Changed the Declaration of Parentage Game

When you hear the word “parents,” what comes to mind?

“Parents” is a fairly broad term when you think about it: parents may be divorced, they may be a same-sex couple, they may have non-biological children that they care for… there is any number of unique combinations that fit the term “parents.”

But, did you think of two best friends acting as parents to a child? Likely not. Best friends Natasha Bakht and Lynda Collins, self-proclaimed “co-mommas,” would like you to.

Bakht and Collins are colleagues, neighbours, best friends, and thanks to the Ontario courts, now parents to a seven-year-old boy, Elaan. When Bakht chose to get pregnant by way of a sperm donor, Collins immediately offered to be her friend’s birth coach. When Bakht’s son, Elaan, was born, Collins upgraded her role from birth coach to “co-parent.” Collins assisted Bakht in all aspects of raising Elaan, who was born with severe disabilities.

After several years of co-parenting, Bakht and Collins decided to ask the courts to grant them an unusual request: they wanted to both be legally regarded as Elaan’s mothers, despite not living together and not having a sexual relationship with one another. In other words, Linda wanted to legally adopt Elaan.

Generally speaking, this is not an unusual situation – a mother or father with a new partner may apply for a “Declaration of Parentage” so that their partner is legally considered a parent of their stepchild. Bakht and Collins’ challenge was that they do not have a sexual relationship with one another, which is required for adoption.

Thankfully, this has changed with the Ontario’s legislature’s acknowledgement that today’s families can be created in unique ways. On January 1, 2017, Ontario’s “All Families are Equal Act” came into force, and it requires that “co-parents” have a written agreement prior to conception. Bakht and Collins did not have such an agreement.

Bakht and Collins petitioned the court to grant their unique situation an exemption- and it worked. November 2016, the court granted Collins parentage of Elaan. This means that Linda has the same rights as any other parent. She can make important decisions for Elaan, just as his natural mother, Bakht, does. Furthermore, they are permitted to grow their family if either woman does meet a romantic partner in the future. If their relationship ever falters, custody of Elaan would be treated as any other family break up would, with custody arrangement made through courts.

Natasha and Linda’s efforts have created a wonderful precedent and paved the path for a further expansion of the definition of “parents.” Do you have a close friend whom you would co-parent with? If you do, your ability to have that person declared a parent to your child just became a little bit easier, thanks to Bakht and Collins.

All information in this post was found at http://www.cbc.ca/news/canada/ottawa/multimedia/raising-elaan-profoundly-disabled-boy-s-co-mommas-make-legal-history-1.3988464.

Read More

Best Friends and… Parents?: How these Co-Mommas have Changed the Declaration of Parentage Game

When you hear the word “parents,” what comes to mind?

“Parents” is a fairly broad term when you think about it: parents may be divorced, they may be a same-sex couple, they may have non-biological children that they care for… there is any number of unique combinations that fit the term “parents.”

But, did you think of two best friends acting as parents to a child? Likely not. Best friends Natasha Bakht and Lynda Collins, self-proclaimed “co-mommas,” would like you to.

Bakht and Collins are colleagues, neighbours, best friends, and thanks to the Ontario courts, now parents to a seven-year-old boy, Elaan. When Bakht chose to get pregnant by way of a sperm donor, Collins immediately offered to be her friend’s birth coach. When Bakht’s son, Elaan, was born, Collins upgraded her role from birth coach to “co-parent.” Collins assisted Bakht in all aspects of raising Elaan, who was born with severe disabilities.

After several years of co-parenting, Bakht and Collins decided to ask the courts to grant them an unusual request: they wanted to both be legally regarded as Elaan’s mothers, despite not living together and not having a sexual relationship with one another. In other words, Linda wanted to legally adopt Elaan.

Generally speaking, this is not an unusual situation – a mother or father with a new partner may apply for a “Declaration of Parentage” so that their partner is legally considered a parent of their stepchild. Bakht and Collins’ challenge was that they do not have a sexual relationship with one another, which is required for adoption.

Thankfully, this has changed with the Ontario’s legislature’s acknowledgement that today’s families can be created in unique ways. On January 1, 2017, Ontario’s “All Families are Equal Act” came into force, and it requires that “co-parents” have a written agreement prior to conception. Bakht and Collins did not have such an agreement.

Bakht and Collins petitioned the court to grant their unique situation an exemption- and it worked. November 2016, the court granted Collins parentage of Elaan. This means that Linda has the same rights as any other parent. She can make important decisions for Elaan, just as his natural mother, Bakht, does. Furthermore, they are permitted to grow their family if either woman does meet a romantic partner in the future. If their relationship ever falters, custody of Elaan would be treated as any other family break up would, with custody arrangement made through courts.

Natasha and Linda’s efforts have created a wonderful precedent and paved the path for a further expansion of the definition of “parents.” Do you have a close friend whom you would co-parent with? If you do, your ability to have that person declared a parent to your child just became a little bit easier, thanks to Bakht and Collins.

All information in this post was found at http://www.cbc.ca/news/canada/ottawa/multimedia/raising-elaan-profoundly-disabled-boy-s-co-mommas-make-legal-history-1.3988464.

Request for Paternity (DNA) Testing

Request for Paternity (DNA) Testing

 

We live in a world of daytime talk shows and reality television where serious issues are often presented to us as entertainment: look no further than your own living room and turn on your TV and you’ll see that determining the unknown paternity of a child. Viewers watch as the mother waits with baited breath; the anxious potential father sits motionless, beads of sweat running down his face; all eyes locked on the host in his turtleneck and his fate-determining cue card. Many of us have watched (and maybe even enjoyed) these shows as we are blissfully unaware of or unconcerned by the fact that this very situation is a real life changing and stressful reality for some.

These “Who’s Your Daddy?” talk shows tend to oversimplify the process of obtaining a DNA test. It is important to keep in mind that unless both parties consent it’s not a given. In the case of Griggs v Cummins, 2014 CarswellOnt 9300 (Ont. S.C.J.), it was the alleged father who brought a motion requesting leave to obtain a blood test to determine whether he was, in fact the child’s father. The mother then brought a cross-motion aggressively opposing the paternity test, leaving the proverbial cue-card of fate in the hands of the court.

Case law has established the general principle that in exercising the discretion under section 10 of the Children’s Law Reform Act is that request for leave to obtain DNA tests should be granted unless it can be shown that either the actual process of conducting the tests could be harmful to the child’s health or the request for leave to obtain the blood test is made in bad faith.

In Griggs, the Honorable Justice Howden acted on the discretion permitted under sections 4 of the Children’s Law Reform Act. Section 24 of the Children’s Law Reform Act is where the best interests of the child are defined. Justice Howden ultimately decided that it would be in the best interests of the child in question to have some certainty as to the identity of her father. He also determined that, from a public policy standpoint, it is also in society’s interest to ascertain paternity of children, to ensure parental accountability.

What’s interesting about this decision is that it draws focus into the impact of family law decisions on public policy. As far as paternity testing, the interest goes beyond the individuals directly involved; it is also in the interest of society, as a whole, children are financially taken care of by the parents. If an alleged father is contesting paternity and the applicant seeking child support wishes to remove any doubt about percentage, the best course of action may be to apply to the court for leave to obtain a paternity test.

We all know that parents are responsible for their children financially and otherwise. What you may not know is that there is a “presumption of paternity”. Factors that are set out in Section 8 of the Children’s Law Reform Act create a “presumption for paternity”.

  1. (1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:
  2. The person is married to the mother of the child at the time of the birth of the child.
  3. The person was married to the mother of the child by a marriage that was terminated by death of judgement of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child.
  4. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.
  5. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.
  6. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.
  7. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.

Children’s Law Reform Act R.S.O. 1990, c. C. 12, s. 8 (1).

Based on the above factors, the best way to rebut the presumption of paternity in any of the above circumstances is to obtain a paternity test. In situations where support is being sought and a father is unsure if the child in question is his, he would be wise to seek a paternity test before he makes payments for the child and displays any conduct establishing a loco parentis role which can trigger support obligations regardless of biological paternity. For example, where a male may not be the biological father of the child, and this is later proven by paternity testing, he may still be responsible for providing child support if, by his conduct, he has demonstrated a settled intention and acted in the role of a parent. For those who find themselves in situations like this it is best to test and establish paternity sooner rather than later.

Read More

Request for Paternity (DNA) Testing

 

We live in a world of daytime talk shows and reality television where serious issues are often presented to us as entertainment: look no further than your own living room and turn on your TV and you’ll see that determining the unknown paternity of a child. Viewers watch as the mother waits with baited breath; the anxious potential father sits motionless, beads of sweat running down his face; all eyes locked on the host in his turtleneck and his fate-determining cue card. Many of us have watched (and maybe even enjoyed) these shows as we are blissfully unaware of or unconcerned by the fact that this very situation is a real life changing and stressful reality for some.

These “Who’s Your Daddy?” talk shows tend to oversimplify the process of obtaining a DNA test. It is important to keep in mind that unless both parties consent it’s not a given. In the case of Griggs v Cummins, 2014 CarswellOnt 9300 (Ont. S.C.J.), it was the alleged father who brought a motion requesting leave to obtain a blood test to determine whether he was, in fact the child’s father. The mother then brought a cross-motion aggressively opposing the paternity test, leaving the proverbial cue-card of fate in the hands of the court.

Case law has established the general principle that in exercising the discretion under section 10 of the Children’s Law Reform Act is that request for leave to obtain DNA tests should be granted unless it can be shown that either the actual process of conducting the tests could be harmful to the child’s health or the request for leave to obtain the blood test is made in bad faith.

In Griggs, the Honorable Justice Howden acted on the discretion permitted under sections 4 of the Children’s Law Reform Act. Section 24 of the Children’s Law Reform Act is where the best interests of the child are defined. Justice Howden ultimately decided that it would be in the best interests of the child in question to have some certainty as to the identity of her father. He also determined that, from a public policy standpoint, it is also in society’s interest to ascertain paternity of children, to ensure parental accountability.

What’s interesting about this decision is that it draws focus into the impact of family law decisions on public policy. As far as paternity testing, the interest goes beyond the individuals directly involved; it is also in the interest of society, as a whole, children are financially taken care of by the parents. If an alleged father is contesting paternity and the applicant seeking child support wishes to remove any doubt about percentage, the best course of action may be to apply to the court for leave to obtain a paternity test.

We all know that parents are responsible for their children financially and otherwise. What you may not know is that there is a “presumption of paternity”. Factors that are set out in Section 8 of the Children’s Law Reform Act create a “presumption for paternity”.

  1. (1) Unless the contrary is proven on a balance of probabilities, there is a presumption that a male person is, and he shall be recognized in law to be, the father of a child in any one of the following circumstances:
  2. The person is married to the mother of the child at the time of the birth of the child.
  3. The person was married to the mother of the child by a marriage that was terminated by death of judgement of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child.
  4. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.
  5. The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.
  6. The person has certified the child’s birth, as the child’s father, under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.
  7. The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.

Children’s Law Reform Act R.S.O. 1990, c. C. 12, s. 8 (1).

Based on the above factors, the best way to rebut the presumption of paternity in any of the above circumstances is to obtain a paternity test. In situations where support is being sought and a father is unsure if the child in question is his, he would be wise to seek a paternity test before he makes payments for the child and displays any conduct establishing a loco parentis role which can trigger support obligations regardless of biological paternity. For example, where a male may not be the biological father of the child, and this is later proven by paternity testing, he may still be responsible for providing child support if, by his conduct, he has demonstrated a settled intention and acted in the role of a parent. For those who find themselves in situations like this it is best to test and establish paternity sooner rather than later.

To Snoop, or Not to Snoop?

To Snoop, or Not to Snoop?

Developments in personal technology are complicating legal disputes. Everyone has a Facebook account. Everyone texts. Most people do their banking online. Glimpsing into the private affairs of one another has become fairly easy and fairly commonplace – in other words, snooping. Is snooping ok? As far as the courts are concerned, no.

In January 2012, the Ontario Court of Appeal ‘s decision in Jones v. Tsige addressed this very issue. The court recognized a novel tort claim, that of ‘intrusion upon seclusion.’ This newly adopted rhyming tort allows someone to sue another if damages arise from the invasion of their personal privacy.

In Jones, Ms. Jones was in a relationship with Ms. Tsige’s former husband. Ms. Tsige paid child support to her ex-husband. However it was her belief that her ex-husband was paying the child support to his new partner, Ms. Jones, rather than the money going to the children. It just so happened that Ms. Tsige and Ms. Jones both worked at the Bank of Montreal, and so Ms. Tsige began to inspect Ms. Jones banking information to see if she was getting deposits from the ex-husband.

Naturally, Ms. Jones wasn’t very happy about this. She felt that her privacy had been violated. The Ontario Court of Appeal agreed. They established a principle, one which spouses would be smart to take note of: One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

What exactly are the implications of this rule for spouses who are separating? To be frank, it is yet unclear. This new tort has not been applied in any family law cases, but it has been considered in family law decisions. In C.(B.D.) v. B.(B.J.), a father was concerned about negative comments that his ex-wife was making about him while speaking on the phone with her son. In response, the father made audio and video recordings of the phone conversations without the mother’s knowledge. The father then tried to put forward these recordings as evidence against her.

With a clear voice, the court said that evidence of this sort is inadmissible. Yes, the evidence showed a clear attempt of the mother to manipulate her child. But it was also obtained by invading upon her privacy, and it just so happened that there is a criminal prohibition to recording private conversations. To allow these recordings as evidence would be to allow evidence which was obtained by breaking the criminal code as well as the novel tort of invasion upon seclusion.

Privacy is becoming increasingly valued in Canada – be wary with your electronics. If you do decide to snoop on your spouse, don’t expect the court to go easy on you. You may think that the boundaries in a relationship are flexible. In a court, they are formalized and rigid.

The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 1-855-773-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers.

Read More

To Snoop, or Not to Snoop?

Developments in personal technology are complicating legal disputes. Everyone has a Facebook account. Everyone texts. Most people do their banking online. Glimpsing into the private affairs of one another has become fairly easy and fairly commonplace – in other words, snooping. Is snooping ok? As far as the courts are concerned, no.

In January 2012, the Ontario Court of Appeal ‘s decision in Jones v. Tsige addressed this very issue. The court recognized a novel tort claim, that of ‘intrusion upon seclusion.’ This newly adopted rhyming tort allows someone to sue another if damages arise from the invasion of their personal privacy.

In Jones, Ms. Jones was in a relationship with Ms. Tsige’s former husband. Ms. Tsige paid child support to her ex-husband. However it was her belief that her ex-husband was paying the child support to his new partner, Ms. Jones, rather than the money going to the children. It just so happened that Ms. Tsige and Ms. Jones both worked at the Bank of Montreal, and so Ms. Tsige began to inspect Ms. Jones banking information to see if she was getting deposits from the ex-husband.

Naturally, Ms. Jones wasn’t very happy about this. She felt that her privacy had been violated. The Ontario Court of Appeal agreed. They established a principle, one which spouses would be smart to take note of: One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

What exactly are the implications of this rule for spouses who are separating? To be frank, it is yet unclear. This new tort has not been applied in any family law cases, but it has been considered in family law decisions. In C.(B.D.) v. B.(B.J.), a father was concerned about negative comments that his ex-wife was making about him while speaking on the phone with her son. In response, the father made audio and video recordings of the phone conversations without the mother’s knowledge. The father then tried to put forward these recordings as evidence against her.

With a clear voice, the court said that evidence of this sort is inadmissible. Yes, the evidence showed a clear attempt of the mother to manipulate her child. But it was also obtained by invading upon her privacy, and it just so happened that there is a criminal prohibition to recording private conversations. To allow these recordings as evidence would be to allow evidence which was obtained by breaking the criminal code as well as the novel tort of invasion upon seclusion.

Privacy is becoming increasingly valued in Canada – be wary with your electronics. If you do decide to snoop on your spouse, don’t expect the court to go easy on you. You may think that the boundaries in a relationship are flexible. In a court, they are formalized and rigid.

The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 1-855-773-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers.


Kain & Ball News and Events

Kain & Ball Named Most Trusted Family Law Firm of the Year: Ontario

Kain & Ball Named Most Trusted Family Law Firm of the Year: Ontario

We are proud to announce that Kain & Ball has been selected as Ontario’s Most Trusted Family Law Firm of the Year in 2013 by Acquisition International.

Read the press release below:

2013 Legal Awards Press Release

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Kain & Ball Named Most Trusted Family Law Firm of the Year: Ontario

We are proud to announce that Kain & Ball has been selected as Ontario’s Most Trusted Family Law Firm of the Year in 2013 by Acquisition International.

Read the press release below:

2013 Legal Awards Press Release


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Christmas is Coming: Schedule and Plan for a Successful Holiday Season

Christmas is Coming: Schedule and Plan for a Successful Holiday Season

 

The Holidays can be an amazing time filled with festivities, family and friends. If you are newly separated this is going to be a very different holiday season for you and your children. Take some time and make sure that you and your former partner get the most of the Christmas season with your kids. Here are a few points to keep in mind:

1. Do what’s in the best interests of the Children.

It is Christmas after all, and in the spirit of that try and put the wants and needs of your children before the issues between you and your former spouse/partner. It can be hard, and often seem impossible to think of a potential resolution with your ex, however you would be surprised with how quickly the issues can (temporarily or permanently) settle if you both put the needs of your children first. If possible try and give your child the full holiday experience, let them interact with both of you (not necessarily together) if possible, let them see extended family if its been a part of their previous holiday routines, keep those important family traditions going if you can. The holidays create lasting memories, and unfortunately conflict and fighting can potentially ruin the happiness of the season for them. Here are a few things to keep in mind: • Avoid spending excessive amounts of money or getting in to a contest over who can give the coolest or most expensive gift. One upping each other will just create tension between you two, and put the children in the middle to choose which parent outdid the other, aka who’s better mommy or daddy? • Try and work out issues and details for holiday scheduling beforehand, if the schedule is set it will alleviate potential conflict and give the kids something to look forward to. • Be as amicable as possible during the exchange, stay positive if you have a negative drop off experience it can leave children either feeling guilty or sad about how a parent is feeling after they leave them. • Create some new traditions for you and your kids. Make the time you are spending with them something special, and if you can fuse together new and old traditions it can bring in a sense of familiarity with Holiday past with the present.

 

2. Start Planning as Early as Possible.

Address your holiday plans as early as possible rather than the couple of days leading up to your scheduled events. This reduces the stress level and allows parents time to think about the options available, such as rescheduling or changing times of certain dinners/events etc. You both may have planned out how you want to spend the holidays with your kids, but if you don’t discuss it with each other you could end up in massive conflict because of overlapping events. Keep your children involved, ask them questions, like what their favourite part of the holiday is? Who do they want to see (family, extended family etc)? What traditions were they most excited for? etc. Try and keep the holiday focused on continuing to create memorable experiences for them.

3. Be flexible and fair.

Be okay with knowing you won’t necessarily get to do everything that you want. Prioritize what really matters to you, and do your best to be fair to your ex-partner since they may also have holiday plans that are important to them. Be cognizant that you won’t get everything you want, but you can attempt to make an arrangement that you are both okay with. Being a parent is forever, and the sooner successful co-parenting can take place the easier it will be on the children. The marriage may have ended but your parenting partnership needs to be a priority for your kids.

 

4. Settle on your dates and keep your family in the loop.

If your usual Christmas includes extended family then call your aunt, email your cousins and talk to your parents ahead of time with the verified dates and times that your family is available. Keep everyone updated on your holiday access schedule, especially if you are newly separated they may not have even considered that the holidays could be different going forward. It’s a busy time for everyone so the more they know the easier it will be for them to potentially adjust times or dates in order to work around your new schedule with the kids to maximize family time. Make a point of reaching out to those who are in charge of organizing family functions give them your availability for the events well in advance. In most cases, family members will understand your situation and want to do what they can to ensure that the children are present for the celebrations. Keep in mind it won’t always be possible to move the dates of all family events or gatherings, but advanced warning can allow for a wider range of options or concessions to be made.

5. Consider consulting your family law lawyer if your discussions fail. If you’re involved in a high conflict situation consider involving your legal representation. Sometimes having a third party can help reach the fairest outcome for both of you and the children. Once again, the earlier the better so if this year doesn’t work out according to plan make sure to keep these points in mind when planning the next special occasion.

Kain and Ball would like to wish you and yours the happiest of Holiday Seasons, if at any point you need us we are here for you. The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 1-855-773-4588 or email us at contact@kainfamilylaw.com to book a free 30 minute consultation with one of our experienced family law lawyers


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