Legal Education – Dhillon Murthi Law

DECISION-MAKING and PARENTING-TIME

Decision-making responsibility was previously referred to as custody. Decision-making provides for how major decisions on behalf of a child will be made. This includes decisions relating to:

Education
Medical care
Religion; and
Major extracurricular activities.

Decision-making can be arranged in a number of ways including where one parent makes all the decisions on behalf of the child, where this responsibility is shared between parents, and situations where each parent is responsible for a specific decision (i.e. one parent decides issues of religion and the other is responsible for medical care). There are many other arrangements that may be made depending on the best interest of the children involved.

Parenting-time was previously referred to as access. Parenting-time deals with issues involving where the child will live and how often the child will spend with either parent. Parenting-time arrangements for a child are decided based on what is in the best interest of the child.

When parents are unmarried or have separated and chosen not to get a divorce, the Children’s Law Reform Act will govern parenting-time and decision-making for children. There are a number of factors pursuant to section 24 (3) of the Children’s Law Reform Act that courts must consider when determining issues of decision-making and parenting time as follows:

The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
The nature and strength of the child’s relationship with each parent, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent;
The history of care of the child;
The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
Any plans for the child’s care;
The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
- (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
- (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to co-operate on issues affecting the child; and

If parents are married and are divorced or are trying to get divorced, the Divorce Act will govern parenting and decision-making responsibility. Based on section 16 (3) of the Divorce Act, the factors that a court considers when determining issues of decision-making and parenting-time include the following:

The child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
The nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
Each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
The history of the care of the child;
The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
The child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
Any plans for the child’s care;
The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
Any family violence and its impact on, among other things,
- The ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
- The appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child

Although there are many factors for a court to consider when determining issues of decision-making and parenting-time, they will always be primarily concerned with the best interests of the children.

If you have questions about decision-making and parenting-time it is important that you speak to a lawyer who can provide you legal advice as to your particular situation.

Making A Will Can Save Your Family A Bundle

When Heinz Sommerfeld died in June 2017 at age 77 in a GTA nursing home, the lifelong bachelor — he had no children — left no instructions on how to distribute his wealth.
After working his entire adult life for Ontario’s Department of Highways, Sommerfeld left behind an estate valued at $800,000.
But rather than that money going to his rightful heir, a younger half-brother, it ended up in a bank account belonging to a Toronto police officer who had allegedly submitted a fake will claiming he was the beneficiary. According to investigators, that officer — veteran Const. Robert Konashewych, 38 — was aided by a senior client representative at the province’s Office of the Public Trustee and Guardian.
The office is responsible for tracking down rightful heirs and determines who inherits property or money when a person dies without a will.
Konashewych is charged with defrauding the estate belonging to Sommerfeld, along with defrauding his brother, Peter Stelter, now 75. The 52 Division officer remains on paid suspension as required under the Police Services Act. Also charged is the government employee, Adellene Balgobin, 34. At the time of their arrest, police said the pair were “known to each other prior to the alleged offences taking place.”
According to Toronto police professional standards office, Konashewych “swore and filed a false affidavit with the courts, supporting his claim that he was the beneficiary of the will.” In 2018, the officer received payments in excess of $800,000, police said last year.

https://www.thestar.com/news/gta/2021/10/25/this-ontario-man-died-without-a-will-a-toronto-police-officer-is-charged-with-stealing-his-800000-estate.html

Not All Wills are made equal

Open courts is the key principle of common law legal doctrine as justice must not only be done fairly; it should also be seen as being done fairly. The court records and court proceedings are always open to public, except very exceptional circumstance.

Under the common law, all Wills when filed in the court for probate application become part of the public record and must be available to public. Not sure when the Will is that of a monarch or member of monarch’s family. Monarch, more precisely called Sovereign is above lay members of public and is entitled certain unique protections.

The contents of the will of Prince Philip, the late husband of Queen Elizabeth II, are to remain secret for at least 90 years, a High Court judge ruled.

Philip, the Duke of Edinburgh and the longest-serving royal consort in British history, died in April at Windsor Castle. He was 99 years old.

As is the convention following the death of a senior royal, an application was made to the Family Division at London’s High Court that Philip’s will remain sealed and not available to the public, as most wills are after they are granted probate.

Andrew McFarlane, the president of the court’s Family Division, ruled in favor of the request.

“The degree of publicity that publication would be likely to attract would be very extensive and wholly contrary to the aim of maintaining the dignity of the Sovereign,” McFarlane said in a ruling published on Thursday.

McFarlane also said that he is the custodian of a safe with more than 30 envelopes containing sealed royal wills, including those of the late Queen Mother and the queen’s sister, Princess Margaret. They both died in 2002.

He said the oldest envelope contains the will of Prince Francis of Teck, Queen Mary’s younger brother and great uncle of Queen Elizabeth II. He died in 1910 at the age of 40 after catching pneumonia.

“There is a need to enhance the protection afforded to truly private aspects of the lives of this limited group of individuals in order to maintain the dignity of the Sovereign and close members of Her family,” he said.

McFarlane said that some royal wills may never see the light of day.

“There may be circumstances where it would not be appropriate for a Royal will to be unsealed even after that period, whether in full or in part,” he wrote.

https://www.washingtonpost.com/world/europe/prince-philip-will/2021/09/17/c2b04658-17b6-11ec-a019-cb193b28aa73_story.html

Does Taunting meet Cruelty Grounds?

The case Lesko v. Lesko, 2021 ONCA 369 presented a very interesting case where Husband bought a fixer upper property before marriage. Wife contributed no monies towards purchase of the property but contributed her labour etc. towards extensive gutting and renovation to the property. Post marriage, she contributed towards mortgage payments. Wife made a trust claim for the property prior the marriage and was successful. The court allowed her to deduct 50% of the property value (her trust claim) on her Net Family Property, thus increasing her Equalization payment significantly.

The court of Appeal dismissed the husband’s appeal of an order that awarded an equalization payment to the wife, based on her unjust enrichment claim that she had a 50% interest in a property the husband acquired prior to their marriage. That unjust enrichment finding permitted the wife to deduct 50% of the marriage date value of that property in her net family property calculation. Before the parties married, they agreed the husband would purchase a “fixer upper” (the Taplow property), where they resided together while doing extensive renovations on the home. The wife did not contribute to the purchase price, but she contributed to the cost of over half of the mortgage for six years until the parties’ first child was born. Four years after the parties married, the Taplow property was sold and the parties put the full sale proceeds into another ‘fixer upper,” with the intention of renovating it and selling it for a profit.

The court held the trial judge did not err in concluding that the wife established a claim for unjust enrichment. The evidence showed the parties jointly planned to purchase the Taplow property, renovate it and sell it at a profit. The wife made significant monetary and other contributions to the acquisition, preservation, maintenance and improvement of the property. There was a sufficient connection between the wife’s contributions and the property to impose a constructive trust in her favour. There was no juristic reason for the husband’s enrichment. The court rejected the husband’s contention that prior to their marriage, the parties’ relationship was one of landlord and tenant. When they moved into the Taplow property, it was barely liveable and not a situation in which one party would pay rent. The parties selected the property together with the intention of gutting and renovating it for a profit, with both parties expecting to benefit.

The trial judge was not required to consider any entitlement that the wife would acquire post-marriage under the Family Law Act equalization scheme as a remedy to the unjust enrichment claim. The wife’s claim that she was entitled to an interest in a property owned at the date of marriage, based on unjust enrichment arising prior to marriage, required an analysis under the common law framework.

The evidence supported the judge’s finding that the wife was entitled to deduct 50% of the net value of the Taplow property on the date of marriage, for the purposes of calculating her net family property, as a reasonable and fair equitable remedy. This finding was supported by evidence that the husband applied the full proceeds from the sale of that property to acquire another property and put the wife on title as a co-owner: Lesko v. Lesko, 2021 ONCA 369 (Strathy C.J.O., Brown and Miller JJ.A.).

They key take away is that trust claims are powerful tools at equity to remedy unjust enrichment of one party at the expense of the other. It always helps to document parties’ true intentions to avoid such claims down the road.

A tragic story of a sweet little girl

Here is a tragic story of a sweet little girl whose parents were involved in a bitter custody battle. The little girl, Keira, is now dead. Her mother believes Keira’s father killed himself and Keira as courts were about to reduce his parenting time. The Halton Police are investigating. Keira’s parents separated when she was not even one year old. The courts repeatedly chastised Father for lying and defrauding the Court. Still judges tried to blame both parties equally and asked them to get along. Is that fair when one party is so unreasonable. Take a read and see how the Family law has descended to such a tragic state and how courts failed this little girl. Keira’s mother is a doctor who is now married to a Family law lawyer. If their combined financial and legal resources were unable to protect a sweet little girl, Keira, who can? A very sad reading that must force us to reflect on our Family Law courts, judges, lawyers and lack of alternate resources. As a Family Law lawyer I see such stories far too often. We must strive to reform our legal system which is cumbersome, expensive and super slow. #FamilyLaw #Divorce #Custody

https://www.thestar.com/news/gta/2020/02/16/the-court-said-it-wasnt-urgent-how-a-bitter-custody-battle-ended-with-the-death-of-a-gta-kindergartener-and-her-father.html

Category: Legal Education

DECISION-MAKING and PARENTING-TIME

Making A Will Can Save Your Family A Bundle

Not All Wills are made equal

Does Taunting meet Cruelty Grounds?

A tragic story of a sweet little girl

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