There is often contention on the issue of child support being paid while a child is away at school and other children remain in the home.
I have posted earlier on the issue of determing the appropriate amount see the case of Albert v Albert.
For a clear view on this issue, see the recent case of Barr v. Cudney (2007), 2007 CanLII 54075 (S.C.J.) The Honourable Mr. Justice B. H. Matheson did an excellent review in this writer's opinion on how to anaylze the issue during the times when the child is at home from post-secondary school and when away.
Essentially, the apppriate view according to Justice Matheson is to look at the Table amount for when all the children are at home; reduce it for the children remaining at home when one or more is away at school and the determine what is a reasonable amount for the child or children that are away and then return to the full table amount during the months when they are at home again.
A quick read and good review for counsel who are dealing with multiple children at different stages of their academic life.
Monday, December 17, 2007
Is parallel parenting making a come back?
It seems since 2006, when the Court of Appeal ruled that parties that can not get along the results will often favour one parent being granted custody and the other labelled the access parent. Numerous courts, including the Ontario Court of Appeal, have ruled that joint custody is a viable option only in circumstances where the parties are able to communicate and cooperate with each other.
The thought being that one parent must ultimately make the day-to-day decisions and in high conflict cases. When the parties can not get along, how is the best interests of the child going to be met? The answer - sole custody to one, access to the other.
A recent Ontario Superior Court of Justice case, Hensel v. Hensel (2007), 2007 CarswellOnt 7010 (S.C.J) tests the water with parallel parenting. Is it making a come back?
The Court opined that parallel parenting orders have historically been made by a court in circumstances where a high degree of conflict exists between two otherwise capable parents.
Although there is some dispute in the academic literature about the definition of what parallel parenting is for the purpose of this case the presiding justice adopted the following comments of the authors Birnbaum and Fidler:
Parallel parenting as defined by the social science literature is not a manifestation of joint legal custody in the sense of the parents making major decisions jointly, but rather; parallel parenting involves each parent making the final decision about a different domain. In other words, each parent has sole custody, only over a different domain of decision-making.
An unusual Order handed out in unusual circumstances according to this writer.
For a good review of another case which has been confirmed at two levels of Court is Cox v. Stephen (2002), 2002 CarswellOnt 2321 (S.C.J) and confirmed at [2003] O.J. No. 4371 (Ont. C.A.).
If any counsel or readers have their own experience with Court ordered parallel parenting models please write. This writer is curious as to the circumstances of how they arose and whether they actually work.
The thought being that one parent must ultimately make the day-to-day decisions and in high conflict cases. When the parties can not get along, how is the best interests of the child going to be met? The answer - sole custody to one, access to the other.
A recent Ontario Superior Court of Justice case, Hensel v. Hensel (2007), 2007 CarswellOnt 7010 (S.C.J) tests the water with parallel parenting. Is it making a come back?
The Court opined that parallel parenting orders have historically been made by a court in circumstances where a high degree of conflict exists between two otherwise capable parents.
Although there is some dispute in the academic literature about the definition of what parallel parenting is for the purpose of this case the presiding justice adopted the following comments of the authors Birnbaum and Fidler:
Parallel parenting as defined by the social science literature is not a manifestation of joint legal custody in the sense of the parents making major decisions jointly, but rather; parallel parenting involves each parent making the final decision about a different domain. In other words, each parent has sole custody, only over a different domain of decision-making.
An unusual Order handed out in unusual circumstances according to this writer.
For a good review of another case which has been confirmed at two levels of Court is Cox v. Stephen (2002), 2002 CarswellOnt 2321 (S.C.J) and confirmed at [2003] O.J. No. 4371 (Ont. C.A.).
If any counsel or readers have their own experience with Court ordered parallel parenting models please write. This writer is curious as to the circumstances of how they arose and whether they actually work.
Sunday, December 9, 2007
Ontario's top Court confirms Children's Lawyer's Discretion
A short decision will be sure to quell those clients who quip about the Office of the Children's Lawyer (i.e. OCL) not get involved in their case despite a Judge making an Order under sections 89(3.1) and 112 of the Courts of Justice Act.
A quick review by the Ontario Court of Appeal in Novoa v. Molero, 2007 ONCA 800 found at http://www.ontariocourts.on.ca/decisions/2007/november/2007ONCA0800.htm will help practitioners advise their clients that the legislation that gives life the OCL also gives it essentially unfettered discretion and what is even better from their perspective when they decline they do not have to give reasons.
I reproduce the sections below:
Sections 89(3.1) and 112 of the Courts of Justice Act, supra, read as follows:
89(3.1) At the request of a court, the Children’s Lawyer may act as the legal representative of a minor or other person who is not a party to a proceeding.
112(1) In a proceeding under the divorce Act (Canada) or the Children’s Law Reform Act in which a question concerning custody or access to a child is before the court, the Children’s Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child’s support and education. [emphasis added]
The word “may” is permissive, not imperative. Accordingly, the use of the word “may” in ss. 89 (3.1) and s. 112 of the Court of Justice Act makes it clear that the Children’s Lawyer has the discretion to decide whether to cause an investigation to be made and the discretion whether to report and make recommendations to the court on the matters of custody and access.
So that is that!
A quick review by the Ontario Court of Appeal in Novoa v. Molero, 2007 ONCA 800 found at http://www.ontariocourts.on.ca/decisions/2007/november/2007ONCA0800.htm will help practitioners advise their clients that the legislation that gives life the OCL also gives it essentially unfettered discretion and what is even better from their perspective when they decline they do not have to give reasons.
I reproduce the sections below:
Sections 89(3.1) and 112 of the Courts of Justice Act, supra, read as follows:
89(3.1) At the request of a court, the Children’s Lawyer may act as the legal representative of a minor or other person who is not a party to a proceeding.
112(1) In a proceeding under the divorce Act (Canada) or the Children’s Law Reform Act in which a question concerning custody or access to a child is before the court, the Children’s Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child’s support and education. [emphasis added]
The word “may” is permissive, not imperative. Accordingly, the use of the word “may” in ss. 89 (3.1) and s. 112 of the Court of Justice Act makes it clear that the Children’s Lawyer has the discretion to decide whether to cause an investigation to be made and the discretion whether to report and make recommendations to the court on the matters of custody and access.
So that is that!
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