What The Death of Riya Rajkumar Means For Family Law Custody Cases Millions of people were startled late last night to when the emergency tones went off for the Amber Alert for Riya Rajkumar, only to learn, minutes later, that she had been found, but not safe. Riya did not return from an “access visit” with her father for her birthday. Her mother contacted police because she received messages about the father harming Riya. The police found Riya’s body in the middle of the night. They also found her father, who was arrested for murder. The whole event seems disturbingly similar to the murder of Luke Schillings in 1997 and other similar incidents that resulted in changes in Family Court in 2009. Predictably, everyone wants to prevent this kind of event from happening again. Almost immediately, there were calls to cut off “access” to fathers, for presumptions of supervised access, and for family courts to be vigilant and act on any hint of possible abuse, separating all ties between children and parents. Doubtlessly, Children’s Aid Societies will be under tremendous pressure to be more intrusive in the lives of separated families to make sure this does not happen again. Having practiced Family Law for twenty years, these reactions do not seem so much as an overreaction, but a wrong reaction. Fortunately, these cases are extreme. Judges are vigilant about protecting kids. Custody/Access cases entirely revolve around what is in a child’s best interest and there are no such things as “parental rights in Ontario.” Parenting is a responsibility – a responsibility to ensure that your children group up in the best way possible and meet the fullness of their potential. It goes without saying that what happened to Riya was not in her best interest. However, we do not yet know how the system failed her. High Conflict Separations are dangerous for children. Even without the threat of physical violence, high levels of conflict between parents is really harmful for children. Parents who are overcome with anger with their ex spouse frequently act irrationally and do terrible things, including making false allegations of abuse. False allegations that judges then have to sift through and try to determine what is factual and what is a parent’s unreasonable act of anger or mistrust in the midst of conflict. Neither parent has a monopoly on being on the “wrong side” of parenting conflicts. Separating children from their parents each time there is any suspicion of harm is not deemed healthy for the children. Ask any social worker or psychologist and they will tell you that children need to have a relationship with their parents. This is apparent even if the parent is not a is difficult to get along with. Part of a child’s development, is building a stable sense of identity, rejecting what they do not like in other people, including their parents. Only serious safety concerns should prevent a child from having a relationship with a parent. Conflict and fighting can cause serious safety concerns. People involved in Family Court are aware of the need to devote more resources towards mental health, particularly parents and children. If someone feels that it is necessary to self-harm or harm others, then the system is required to provide that support quickly. It also goes without saying that reducing the conflict can reduce the stress and potential for harm to children. Family Mediation, Parenting Coordinators, and Collaborative Practice, are all options for separated parents to avoid the increase in hostility, negative emotions, bitterness and anger that often accompanies Family Court. The professionals in those disciplines are often good at reducing the conflict, while identifying any underlying concerns, directing the parents, and children, to appropriate resources. In addition, just speaking to a good family law lawyer, can give parents the advice they need to focus on what is important and direct their attention away from the anger they may feel towards the spouse. A good counselor/divorce coach can also help parents address their emotions in a positive way. Focusing on being right often makes things worse. But a good lawyer will direct their clients, and their children to places of safety and provide a good impartial assessment of risk. Many police forces also offer risk assessments, as do children’s aid societies. These resources can help parents decide when it might be unsafe to allow a parent see a child. Parents who are worried about their children’s safety do need to take the appropriate legal actions in response. In times of crisis, then many options are off the table, and that is when it may be time for Family Court, or 9-1-1. If you are not sure about your situation, get some professional advice and do not take the risk of allowing your child to be being harmed. The best way to protect yourself, your children, your possessions and anything else important to you, is to find out how the law applies specifically to your situation and what steps you should take. Contact highly experienced family lawyer John Schuman, of Devry Smith Frank LLP today at john.schuman@devrylaw.ca, alternatively, 416-446-5869. You can get a lot more information about Ontario Family Law issues, including property division, support, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawFebruary 15, 2019June 14, 2020
Denied Access To Your Child? Here’s What You Need To Know Breaking up, as they say, is hard to do. Where there are children in the equation, the question of a parent’s access to the child(ren) can add substantially to the hardship. All too often, the animosity associated with separation leads one parent to frustrate the other’s access to the child(ren). In the following, we discuss what a parent who is denied access to their child(ren) can do, and provide some context to help make sense of this situation. In a perfect world, parents would put aside their differences and cooperate to ensure both parties play an active role in their children’s lives. One way of doing this involves the parents executing a contract as to custody and access – namely, a “parenting agreement” or “separation agreement.” Such agreements are valid and enforceable when in writing, signed, witnessed and where both parties have received independent legal advice. One helpful resource that can work with families toward reaching an agreement, is a parenting mediator. A mediator acts as a neutral third party who works to facilitate productive communication between parties, with a view to settling issues including access. Mediated resolutions must be voluntarily accepted by both sides. While both come at a price, failing to agree and escalating the conflict can often prove much more costly. If parents cannot come to an agreement without assistance, or if the agreement is not being observed, they often turn to the courts and to legal professionals. This is where the experienced family law practitioners at Devry Smith Frank LLP enter the fray. To be clear, there are circumstances where a parent is justified in denying the other parent access. This will be the case where a parent presents a protection risk to the child(ren) – for example, where an access parent is abusive, does not maintain a safe accommodation for the child(ren), or is intoxicated. However, where access is denied without justification, a parent can seek remedies from the court. In applying any remedy, the courts’ paramount consideration is the “best interests of the child.” The courts will not enforce or approve a parenting agreement, in terms of access or otherwise, unless it accords with that principle. While the “best interests of the child” are not precisely defined, courts must consider specific factors – these include facilitating the child’s access to the other parent.[1] Generally, the courts frown upon parents who obstruct the other parent’s access to their children. They have even taken away custody from such parents. Where a parent is not able to exercise access with their child, and where another parent is preventing the access from taking place, a parent can bring a motion seeking that the court Order the access. In Ontario, the courts have awarded a parent who was denied access the costs incurred in attempting to exercise access. The courts may also award compensatory access, so that the access time denied to a parent will be made up. Alongside a court Order dictating that they will have access, the court will award the party who succeeds at the motion their costs – that is, the losing party will have to pay for a portion or all of the other side’s legal costs. In more severe cases, a parent may disregard even a court order. When a court order for access is not obeyed – “deliberately or willfully or knowingly” – the offending party can be found in contempt under the Family Law Rules (O. Reg. 114/99). A contempt order is sought by motion, and can result in fines, other penalties, or even imprisonment. Again, because the best interests of the child are the primary consideration, the courts are reluctant to criminally charge or even fine a parent. This is an exceptional remedy, meant to convey clearly the importance of obeying court orders. In exceptionally rare circumstances, a parent denied access may also seek an apprehension order. The parent, or the police, are thereby empowered by the court to apprehend the child. It must be emphasized that, given the immense psychological harm a child could be exposed to, a court is extremely unlikely to consider this to be in the best interests of the child(ren). Indeed, such orders are all but unheard of. Instead, a court asked to make this order may give the parent denying access another chance to comply, perhaps under threat of consequences for remaining in contempt of an order. Ultimately, Courts must balance the desire to ensure parents’ access and respect for court orders, with the desire to avoid exacerbating tension and financial trouble within families. Overlaying all other considerations, are the best interests of the child. They therefore tend to gradually raise the stakes, escalating from warnings and compensatory cost awards to the more severe contempt orders where all else fails. When faced with a denial of access, it is important to remain composed and resist taking matters into one’s own hands. Emergency motions are available in certain circumstances. If there is a genuine risk of harm, the police are also available in the immediate term. Longer term solutions, however, will require engaging with the courts. Navigating court processes without assistance can be complex and stressful. If you are facing a denial of access, or any other family law issue, please feel free to contact Devry Smith Frank LLP. ______________________________________________________________________________________________________________________________ [1] Among other factors, the courts consider the ability of those seeking access to the child to act as a parent. An integral part of acting as a parent is the ability to facilitate access to those for whom the child has “love, affection and emotional ties”. In the vast majority of cases, this includes both parents. By Fauzan SiddiquiBlog, Family LawDecember 12, 2016November 14, 2020
