The couple married on May 10, 2005 and since then their family has steadily grown.  Currently, they have 3 biological kids in addition to Heidi’s eldest daughter from a prior relationship with Flavio Briatore, a notorious Italian ladies’ man.

The breakdown of their relationship will require the resolution of many issues, which include custody and access to the children.

However, will the fact that Seal is not the biological father of Heidi’s eldest daughter impede his ability to parent her post-separation and maintain the relationship formed over the past 7 years?  In Ontario, the answer to this question would be a resounding “no”.

Once Seal effectively adopted Heidi’s daughter, he gained all the same rights and obligations with respect to her care and well-being as a biological parent would have.  Therefore, if this matter were to be heard in Ontario, when making a determination with regards to the custody of and access to the children, there would be no distinction between the factors considered for Seal’s three biological children and those considered for his adoptive daughter.

To clarify, the parent who is granted custody of the children is endowed with the authority to make any important decisions about the care and upbringing of the child with regards to religion, school and educational programs, and medical treatment.  Whereas, the parent who is granted access has the right to visit with the children as well as the right to obtain information regarding the children’s health, education and welfare.

When attempting to come to a determination as to which parent should be granted custody of the children, the courts in Ontario will defer to “the best interests of the child”.

This concept is somewhat defined under s. 24 of the Children’s Law Reform Act which states that when attempting to determine which custodial arrangement would be in the best interests of the children, Ontario courts will consider the love, affection and emotional ties between the child and the person claiming custody as well as other family members who reside with the child and other persons involved with the child’s upbringing; the child’s views and preferences; the length of time the child has lived in a stable home environment; and the ability and willingness of the person applying for custody to provide the child with guidance and education, the necessities of life and any special needs of the child.

In Ontario, various court judgements suggest that when making a determination regarding custody and access, judges tend to prefer maintaining the status quo.

Parents who have throughout the couple’s relationship acted as the primary caregiver to the children are commonly awarded custody of the children.  In the case of Heidi and Seal, TMZ.com reports that Heidi made a whopping $20 million dollars in 2011 with her various reality shows, modelling shows, photo shoots, and cameo appearances. Seal’s net worth is estimated at between $15 million to $20 million.

If her work-related commitments forced her to stay away from the home for prolonged periods of time, leaving Seal to care for the children in her absence, then the status quo created could favor Seal.

According to TMZ.com, Bryant’s soon to be ex-wife Vanessa was given an abundance of information from the wives of other players around the league to whom Kobe had bragged about his many sexual exploits.  Ms. Bryant was well aware that her husband has not always been faithful or even a gentleman  (you may recall that Kobe was charged with sexually assaulting a 24-year old Colorado woman in 2003), but apparently his extra-marital activities have increased to new, unbearable levels.

The divorce papers were filed on Friday December 16, 2011, and Ms. Bryant cited “irreconcilable differences” as the grounds for the divorce.  The couple married on April 18, 2001.  Ms. Bryant has asked for joint custody, but would like the children to reside with her most of the time.  Ms. Bryant has also asked for child and spousal support, which Kobe says he will pay.  In fact, he is still making efforts to save the marriage.  No word on how, but maybe he’s offered a rollback on mistresses now that his salary, too, has been rolled back as a result of the recent NBA labour negotiations.

In any event, Ms. Bryant’s filing gives me the opportunity to draw your attention to some terminology that confuses a lot of people:  joint custody.  What does this actually mean in Canadian Family Law?

To the average person, when they hear the words “joint custody,” the assumption is simply that the child or children affected by the separation spend equal time with both parents and both parents are equally responsible for all matters related to the upbringing of the children.

In reality, having custody over a child differs from access time with a child or joint residency.  The custodial parent has the power to make important decisions about the care and upbringing of the children with regard to things like:  religion, schooling, and medical treatment.

When parents have joint custody, they make decisions of this nature together.

When the children reside equally with both parents, decisions are not made together unless the parents also have joint custody.

Furthermore, it is possible for a parent to have sole custody, but to also spend less time with the children than the other parent.  Frequency of access is not determinative insofar as making important life decisions goes.  The custodial parent(s) make the final decision.

Therefore, if Mr. and Ms. Bryant end up with joint custody, as Ms. Bryant is hoping, then they will have to make decisions about their two children, namely Natalia and Gianna Bryant, together, no matter where and with whom the girls are living.  So, for example, when the time comes to make a decision about what the girls should do after high school, both parents would be involved in that decision, not just the parent they are living with.

Hopefully, the Bryant family will have a speedy separation agreement, because it doesn’t look like a $4 million diamond ring, bought by Kobe as “apology gift,” is going to keep them together this time.

The Raymonds were only married for two years, but they managed to conceive two children during that time. They agreed to joint and shared custody after they were divorced. According to TMZ.com, Ms. Raymond has filed court documents seeking an order that Mr. Raymond’s custody rights be removed.

Ms. Raymond claims that Usher has failed to abide by several aspects of their agreement. At the top of the list of indiscretions is Mr. Raymond’s alleged failure to obtain his ex-wife’s permission to travel outside their home state (Georgia) with the children. Tameka has also said that Usher has failed to: get her approval before hiring nannies; give her the right of first refusal to watch the children when he is unavailable during his scheduled parenting time; allow her to take the kids for a 2-week vacation in the summer of 2011; and allow her to have access time with the children during the 2010 Christmas break.

There are other issues at hand for Usher to deal with, such as child support arrears and the quantum of child support, but for now I want to focus on Travel Consent Forms.

Tameka claims that Usher has, on multiple occasions, taken the children on vacation across state lines without her permission. I am not sure what type of agreement the Raymonds have in place, however, if they were residents of Ontario, they would likely have executed a Separation Agreement that deals with, among other things, the procedure for travel with their children.

Most Separation Agreements entered into in Ontario contain a blank Travel Consent Form as a schedule. This form is very important and more necessary than most people realize. Border Services Canada even advises that parents who share custody of their children and are traveling should carry with them copies of legal custody documents and it is recommended that they also have an executed travel consent form. These items are generally presented to the border officer before driving into the United States, or flying internationally.

When mandated by a Separation Agreement, the travel consent form should include all of the following information: the date, time, and place of departure; the date, time, and place of arrival; the mode of transit, including the flight and aircraft number where applicable; contact telephone numbers for the traveling parent that are accessible during the entire vacation; the address of where the children and the travelling parent will be staying; and the address and contact information for the parent executing the form and providing his or her consent to travel.

So, even if your name is “Usher,” you still need the proper travel documents to travel with your children out of the country if you’re separated.

Kelsey and Camille (presently one of the cast members on Real Housewives of Beverly Hills) were married for almost thirteen years, and their divorce was finalized in February of 2011. At present, Mr. Grammer is in the news because he and his third wife, Camille, have been arguing about custody of the children, as well as access time with the children, mostly because, according to TMZ.com, they can’t stand being around each other and this is impacting the execution of the parenting schedule.  Camille is also displeased with Mr. Grammer’s lack of participation in the extra-curricular activities of the children to date.

The former couple attended Court on September 30, 2011, which, according to TMZ.com, unbelievably marked the first time they’ve come face-to-face since they officially separated.  Apparently they were there to deal with a Motion whereby Mr. Grammer was seeking to take the children on a six-day vacation outside his regularly scheduled access time.  Camille was opposed to the idea because she claims that Mr. Grammer has been refusing to take the children to their planned activities, which include dance class and a variety of sports.

The Judge decided that because some flexibility was required as between the divorced parents with regard to special occasions, for example, a vacation with the children, Mr. Grammer could take the children on the vacation he had planned, in spite of Camille not wanting to give her consent.  As a stipulation, the Judge decreed that Mr. Grammer must take the children to all of their scheduled activities.  The problem now is that historically Mr. Grammer has refused to attend the activities of his children when he knows Camille will be present – which according to reports is almost 100% of the time.

One would assume that it is in the best interests of the children to have both of their parents involved in the social and athletic aspects of their children’s lives.  Whether they are there to teach their kids, or merely to cheer them on, having a parent watching on the sidelines can mean a lot to children, particularly where the parents have gone through a rough divorce, as that may have been devastating for the children.

What is the best way to attempt to guarantee that a) the children will get to attend all of their scheduled events, and b) both parents will ensure they take the children to their scheduled activities?  If Mr. Grammer and Camille lived in Ontario, then the best course of action for them to take would be to negotiate a Parenting Agreement that has built-in clauses intended to deal directly with things like access to the children, and/or the children’s participation in things such as dance class and soccer practices and games.

I would direct Mr. Grammer and Camille to Part IV of the Family Law Act, and perhaps to a doctor like Dr. Crane, to act as a parenting coordinator so that they can devise a plan, on paper, that would be respected by the Courts (save for a few exceptions) if there was a conflict down the road.  Parties to a divorce are given the authority to contract with each other and outline the terms of their separation, in part or in full, by Section 54 of the Family Law Act, which reads as follows:

Separation agreements

54.  Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children;

(d) the right to custody of and access to their children; and

(e) any other matter in the settlement of their affairs.

If Mr. Grammer and Camille have entered into any such agreement, it should include clauses that dictate how each parent will attend the children’s activities and when.  If I represented either of them, I would advise that they do so, before the children start to carry the burden associated with the growing hatred that exists between their parents.

As it turns out, the advice given was not very sound.  Ms. Grigorieva signed a settlement for just $750,000.00 last week.  The agreement also stipulates that the parties will have joint custody of Lucia.  Ms. Grigorieva has expressed concerns about Mr. Gibson’s anger management issues and was concerned for the well-being of the child.  She originally stated that she had hoped to minimize Mel’s unsupervised contact until the child was over three years of age.  Under the executed agreement, no such clause exists and Mel is authorized to have unsupervised access with his daughter immediately.

If these two parties were Canadian, how would the sections of the Family Law Act pertaining to domestic contracts apply to them?  Section 54 reads as follows:

Separation Agreements

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children;

(d) the right to custody of and access to their children; and

(e) any other matter in the settlement of their affairs.

Without knowing the full particulars of the agreement, it is hard to speculate as to which issues referenced in Section 54 were most prominent during negotiations.   We can speculate, however, as to how some of the issues were resolved.  It would appear that Mel’s support obligations have been addressed through one lump-sum payment of $750,000.00.  Because Mel will have Lucia reside with him from time-to-time, the contributions he would make during their stays together are factored into the calculation for support.  With an agreement like this, it is unlikely that any additional monetary award would be ordered by the court, but what would happen if Mel flipped out and threatened or endangered the health and safety or Lucia or her mother?  Is the agreement impenetrable?  Section 56 reads as follows:

Provisions that may be set aside or disregarded

Contracts subject to best interests of child

56.  (1)  In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child.

Therefore, if proof surfaced that Mel was abusive towards the child and the court believed it was in the best interests of the child to have a different relationship with her father, with respect to custody and access, then the court could order that the relevant provisions in the agreement be set aside.

However, how feasible is her wish? Will the courts award joint custody in a situation where one parent/spouse has been consistently abusive, both verbally and physically? The Children’s Law Reform Act provides some food for thought.

Pursuant to s. 24 of the Children’s Law Reform Act, any determination with regards to custody and access will be based on the best interests of the child. That being said the court will consider numerous factors, such as:

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

But what about when a person has behaved badly in the past? How will that factor into a court’s decision? The Children’s Law Reform Act states, in s. 24(3) that past conduct is only relevant if it in some way speaks to that person’s ability to parent. This section therefore, seems to indicate that a verbally and physically abusive spouse who is an amazing parent may have a viable claim for custody (and potentially even primary residence of the child). Intuitively, we can appreciate the irony in this as well as the fact that it is intensely contrary to the best interests of the child which is why s. 24(3) must always be read in conjunction with s.24(4). Pursuant to said section:

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.

Therefore, Taylor Armstrong may want to co-parent and may be agreeable to joint custody with Russell Armstrong, but if it is not in the best interests of Kennedy to be consistently exposed to her father who mistreated her mother for a period of six years then I would suggest that until he seeks some form of anger management or counseling, supervised or extremely specified access is probably the way to go. All of these points are based on the assumption that Taylor’s evidence about the abuse is correct.

8. (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:
1. The person is married to the mother of the child at the time of the birth of the child.
2. The person was married to the mother of the child by a marriage that was terminated by death or judgment 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.
3. The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.
4. 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.
5. 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.
6. 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.

Beyond these presumptions; the court can order blood tests under section 10 of the Children’s Law Reform Act:

10. (1) On the application of a party in a civil proceeding in which the court is called on to determine a child’s parentage, the court may give the party leave to obtain blood tests or DNA tests of the persons who are named in the order granting leave and to submit the results in evidence.

Now, if this were in Ontario, Ms. Jones would be able to apply to a court for a declaration of the parentage of her child; if she wanted too of course. On the other hand, if there is no presumptive father then any male can apply to the court to obtain a declaration under the Children’s Law Reform Act. This would be used in the scenario of a man insisting that he is the Father of January’s child.

The Law in Canada

If Arnold and Maria separated in Ontario and wanted to resolve all issues associated with their separation, it would be suggested that they turn their minds to the custody and parenting plan for their four children, child support, how their home(s) will be dealt with, equalization of their property and whether spousal support will be an issue. At this time, it seems unclear as to whether Arnold and Maria will actually move forward with a divorce or whether they are simply taking some time apart from each other. Therefore, the most pressing issue for these two currently is the care of and support for their children.

Custody

As Arnold and Maria have made it clear that they want to continue to parent their children together, it would seem as though they would agree to having interim joint custody of their children. In Canada, custody refers to the legal decision making for the child(ren) in question. Therefore, the couple would continue to jointly make the major decisions for the children regarding such matters as medical care, education, and religious upbringing. As two of the four of the couple’s children are over the age of 18, this would not be an issue with respect to those two as they are of the age of majority and are responsible for their own decision making at this point.

Parenting Plan

There have been no reports at this time as to where the children are residing. When dealing with parenting arrangements for the children, there are various options that the parties can agree to. One parent could have the children reside primarily with him/her with the other parent having care of the child(ren) for a specified duration, such as weekends. The parents could also share the care of the children whereby neither parent would have the children less than 40% of the time. As there are four children in this matter who are all older, they may decide that the children’s residences will be split so that some live primarily with one parent and some live primarily with the other. The fact that two of the couple’s children are old enough that they may be attending post-secondary education and living away from home is also a factor to be considered. In any event, if the parties are willing to co-parent their children, there is no reason to assume that they will not be able to also agree about the parenting arrangements for the children.

Child Support

In Canada, parents have the legal obligation to support their dependant children. Under the Federal Child Support Guidelines, the access parent is responsible for paying child support to the parent who has the primary residence of the child as it is this person who incurs the daily costs associated with caring for the child and the access parent should therefore, contribute to these costs. The Guidelines set out the specific amount that a payor is responsible for based on his/her income and the amount of children. The determination of the quantum of support payable, as per the Guidelines is generally based on the following:

1. The number of “children of the marriage”; as defined by the Divorce Act, or the dependants to be cared for when the Divorce Act does not apply; and
2. The payor parent’s line 150 income as per their annual Income Tax Return.

The payor parent is determined based on who the primary residence parent is. If it is decided that the children are to live primarily with Maria, then Arnold would be the payor parent. The reverse, therefore, would also be true. Although the Guidelines dictate the amount of support to be paid on a monthly basis as outlined above, Courts do have some discretion to vary the amount if one of the following applies:

1. The child is over the age of majority;
2. The payor parent earns more than $150,000.00 per year;
3. Where the child resides with each parent for more than 40% of the time; or
4. If the amount to be paid would cause an undue hardship on the payor parent;

In this case, there are two children over the age of majority and this would have to be looked at based on whether the children would still be considered to be “children of the marriage.” This is determined by looking at the circumstances and seeing whether the child(ren) have remained in the care and control of their parents due to illness, disability, or education. If the children have decided to pursue post-secondary education, they may still be entitled to support from their parents, at least to the completion of their first post-secondary degree or diploma.  However, the children may have significant income of their own through a trust which may mean that they are independent of the parents.

Arnold and Maria’s respective incomes are also an additional factor to be taken into consideration in this matter. Both parties are well known celebrities and therefore it is fairly safe to assume that both of their yearly incomes are quite high. As starting point for the purposes of utilizing the Guidelines Table, the annual income of the payor parent, as stated on line 150 of his/her Income Tax Return would be used. Since it is likely that both of their annual incomes on their respective Income Tax Returns are well over $150,000.00, if the court considered that the amount as determined by the Guidelines Table is inappropriate in the circumstances they may order an amount that encompasses:

1. the amount as outlined by the Guidelines Table for the first $150,000.00 of income;
2. the amount the Court considers to be appropriate having regard to the condition, means, needs and other circumstances of the child and the financial ability of each parent to contribute to the support of the child; and
3. the amount for any special and extraordinary expenses for the child.

Again, as it is likely that Arnold and Maria make in excess of $150,000.00 per year, a Court might consider, that a strict approach in using the Guidelines Table amount is inappropriate and instead determine a figure which it believes to be closer to what the payor parent should be paying to support their children each month. It is difficult to estimate the figure that an Ontario court would consider appropriate in this situation, however, in light of the circumstances, it would probably award an amount that is much higher than an average Order would be.

The third factor that would need to be taken into consideration in this case is if the parties decide upon a shared parenting schedule with the children residing equally with both parents, In this instance, the amount of what would be paid in child support would be based on what is known as the “set-off” approach which would be used as the starting point and could be as high as full Guideline Child Support. The Court would look to the following factors as outlined in Section 9 of the Child Support Guidelines in order to determine the appropriate amount of child support to Order:

1. the amounts set out in the applicable Tables for each of the spouses;
2. the increased costs of shared custody arrangements; and
3. the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

It is difficult to determine any Order in this case as the news reports have not been clear on the specifics of how the couple will parent the four children, other than the fact that they have decided to remain cooperative and continue to parent them together.

The fourth factor could occur when there is a split custody regime which means that some of the children reside with one parent and some of the children reside with the other parent.  In this situation the “set off” approach would be used to determine the appropriate quantum of child support.

Update

This past week the world learned that during his marriage, Arnold Schwarzenegger fathered a child with a member of his household staff.

The Law in Ontario

If Leah and Cory were divorcing in Ontario, Leah would have filed a Court document known as an Application. This document commences the Court action and sets out the claims for relief that an individual is seeking in their matter. Without knowing the details of this case, it can be assumed that the following issues will be dealt with as a part of Leah and Cory’s separation and divorce:

1)  Custody of and a Parenting Plan for Aleeah and Aliannah

In Canada, custody refers to the legal decision making for the child(ren) in question. In this matter, it is not known whether Leah has requested sole or joint custody of the twins. If she was seeking sole custody in Canada, this would mean that she is looking to have the sole responsibility for the decision making for the children. If she was seeking joint custody, then she and Cory would be able to jointly make the major decisions regarding the twins including matters such as their religious upbringing, schooling, or medical care. Conversely, sole custody would mean that she would be requesting to be the sole decision maker for the twins.

When dealing with parenting arrangements for children, there are various options that the parties can agree to. The more common arrangements include one parent having the children reside primarily with him/her with the other parent having care of the child(ren) for a specified duration, usually on weekends, or the parents sharing the care of the child whereby neither parent would have the child less than 40% of the time. The court documents for this case are not public record and there have been no reports on the claims that Leah made for the parenting arrangements.

2)  Child Support

In Ontario, the Child Support Guidelines presumptively determine the amount that is to be paid in support obligations. The determination of the quantum of support payable, as per the Guidelines is generally based on the following:

1. The number of “children of the marriage”; as defined by the Divorce Act, or the dependants to be cared for when the Divorce Act does not apply; and
2. The payor parent’s line 150 income as per their annual Income Tax Return.

In this case, there are two children of this marriage. With respect to the payor parent, this is determined based on who the primary residence parent is. If it is decided that the children are to live primarily with Leah, then Cory would be the payor parent. The reverse, therefore, would also be true. Additionally, if the parties decide upon a shared parenting schedule with the twins residing equally with both parents, then the amount of what would be paid in child support would be based on what is known as the “set-off” approach. The Court would look to the following factors as outlined in Section 9 of the Child Support Guidelines in order to determine the appropriate amount of child support to Order:

1. the amounts set out in the applicable Tables for each of the spouses;
2. the increased costs of shared custody arrangements; and
3. the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

Without knowing the particular details regarding what Leah is requesting regarding the parenting arrangements, it is difficult to comment further regarding the quantum of support that either parent, or both will have to pay to support the children.

3)  Spousal Support

If either Leah or Cory were to bring a claim for spousal support, in Ontario, the Court would first consider whether he/she was entitled to support. In order to determine this entitlement the Court would look at such factors as whether he/she is in need of support, or if he/she had made a contribution to the marriage that requires he/she be compensated for it. The length of the marriage is also a factor that will be taken into consideration.

Based on the known facts of this case, the parties are both very young. Although they have both been involved in two reality tv series, it is unknown how much they have earned, and it is unlikely that they have other significant sources of income. If either party is able to show that he/she contributed to the marriage in a way that he/she should be compensated for, then a Court may determine that he/she is entitled to support from the other. In this case, the fact that the parties were married for less than six months at the time that Leah filed her documents with the court, would also be taken into consideration. As the parties were only married for 5 months when they separated, it would likely be difficult to show that either contributed to the marriage in such a way that he/she should be compensated for. Therefore, based on the limited known facts of this case, it is difficult to say whether either party would be granted spousal support. Visit our website for more information on spousal support.

4) Equalization

In Ontario, when a couple separates there is a process known as equalization whereby a calculation is completed to determine the amount which spouse with more assets is obligated to pay the other. This calculation and payment is completed in order to ensure that neither spouse leaves the marriage better or worse off than the other. Not knowing anything about the couple’s assets or liabilities, it is impossible to say which spouse would be responsible for an equalization payment to the other, if any.

It is interesting to note that there has been mention of the fact that Cory had taken a significant amount of money out of the couple’s joint bank account to purchase a new truck for himself. This factor could be taken into account when determining the equalization calculation in this matter if Leah wanted to argue for an unequal division of the parties’ net family properties. It should be noted however, that meeting the test associated with a claim for unequal division is very difficult and the individual who makes the claim has the onus of proving why the parties net family properties should not be divided equally. Because of this, it is difficult to determine how Cory’s decision to purchase a truck with money from the joint account would be dealt with.

Visit our website for more information on how equalization is calculated.

5) The Matrimonial Home

In Ontario, the Family Law Act states that regardless of how title of the home is held or how it was brought into the marriage, if it has been made the matrimonial home by the couple by their family living in it during the marriage, or determining it to be such for tax purposes, each spouse has equal possessory rights to the home. In this case, it is unknown whether there is a matrimonial home which needs to be dealt with.

While this was happening, Lori filed a Police Report in Colorado claiming that Chuck had kidnapped Cade. Chuck had picked up Cade on March 23 and allegedly informed Lori that he would be returning him on March 27 and that they would be spending time with each other in Colorado. Lori called the Police on March 27 when she received a phone call from Chuck’s lawyer explaining that Cade was in California and that he would not be returned to her until after the Custody hearing which they planned to bring. No charges were laid against Chuck as the police determined that no criminal activity had occurred.

In her pleadings, Lori claimed that Chuck used illegal drugs and was dependant on alcohol and this has clouded his judgment and has led him to take their son from her.

At the April 1, 2011 custody hearing in L.A., the Court determined that they did not have jurisdiction to hear the matter and that the case should have been brought in Colorado where the child primarily lives. The matter was to be heard in Colorado on April 5, 2011. No reports have surfaced regarding what happened on that date.

What would happen in Ontario?

Although this case is about a “custody” battle for Cade, it is important to note the different definitions of the word custody in Canada and in the United States. In the U.S. “custody” refers to the physical care and control of the child. In Canada, “custody” is the legal decision making responsibilities for the child, but not the physical care of the child.

The physical care of having the child live with one parent or the other is referred to as parenting time. In this case, it appears that the parenting time is split so that Lori is the primary residence parent and Chuck is the access parent. When Chuck attended at Court and claimed that Cade did not want to live with Lori any more and that he therefore wanted to have full custody of Cade, if he were in Ontario, he would be requesting that the parenting arrangement be changed so that he would be the primary residence parent and Lori, the access parent. When a claim such as this is brought forth, the Court will have to determine if the requested change is in the Best Interests of the Child as outlined in the Divorce Act or the Children’s Law Reform Act.

It is clear that this is a very high conflict matter. From the initial reading of the news reports, it is difficult to determine which party may or may not be telling the whole truth about the matter. In circumstances such as these where there is a lot of conflict between the parties, and where it would be difficult for a Court to determine which party is being truthful and what is in the Best Interests of the Child regarding the custody of and parenting arrangements for the child, there is an option to enlist the assistance of third parties trained to deal with children.

In order to determine the best option for who the child should be living with, the parties may request the assistance of the Office of the Children’s Lawyer (OCL). The OCL is a government-run organization staffed with lawyers and social workers who may represent the child’s interests in a given matter. When parties would like the assistance of the OCL, they can ask for the Court to make an Order requesting their involvement. Although a Court may make this order, the OCL will review the files and the intake forms of both parties and then make a determination as to whether they will become involved in the matter. If the OCL chooses to become involved, they may assign either a lawyer to the child or a social worker to the file. When a child is slightly older and would have a opinion of their own on the situation, as Cade would in this case, the OCL generally assigns a lawyer to the file who obtains the child’s position regarding the matter. As a child gets older, his or her position and interests hold more weight and need to be taken into consideration. If a child is younger and is unable to articulate him or herself fully, a social worker or clinical investigator is usually assigned to the file as these individuals are trained to be able to determine what is best for the child in the circumstances based on their investigations and interviews with the individuals in the child’s life.

In either instance, the individual will interview the child, the parents, and any other people in the child’s life that he or she believes would have information relevant to the investigation so that they are able to provide an opinion parties and to the Court regarding what he or she believes is the best living arrangements for the child. Generally the OCL’s opinion holds great weight with the Court with respect to the parenting arrangement which is Ordered as this person will have a background knowledge of the family and the child’s situation that the Court would not have.

In this case, it would be a good idea to ask the Court for an Order requesting the involvement of the Office of the Children’s lawyer. From the facts as we know them, it would be very difficult for the Court to determine what parent should be the primary residence parent of the Cade. In addition, as Cade is a 12-year-old boy, and as Chuck has claimed that Cade has said that he wants to live with him instead of with Lori, it would be important for Cade to have representation in order for his opinions to also be heard.

If the OCL declined to become involved in this matter, the parties would have to decide whether it would be best to hire another third party, such as a assessor, or mediator, who would be able to spend more time with the family and come to an opinion about Cade’s primary residence, or if they would simply like to request that the Court make the determination without any outside help.