Lerners’ Weekly Family Caselaw Review #10
Every week, the Courts in Ontario and across Canada deliver judicial decisions that shape the area and practise of family law. The Lerners Family Law lawyers present one of the most interesting cases from the week of November 23, 2020:
Li v. Wu (2020 ONSC 7329) is a recent case from the Ontario Superior Court of Justice that highlights some of the complications that can occur when parents of a blended family decide to separate.
The Mother brought an Application to relocate her two children on an interim basis. Her two children included her nine-year-old son from her previous marriage (the “Step-Son”) and the parties’ one-year-old biological son (the “Son”). The Mother wanted to relocate from Sittsville to Deep River (which are about two hours apart) for work-related reasons. The Mother sought child support for the Step-Son and the Son as well.
Amongst other things, the Court examined two interesting questions:
- Will a Court separate siblings if one parent chooses to relocate?
- Can a Court order child support for a step-child?
The answer to both questions is yes, depending on the circumstances.
The Father did not dispute that the Step-Son should primarily reside with the Mother, however, he opposed the Son’s relocation. Both parents claimed that they contributed towards the Son’s care and were strongly bonded with him. The Mother’s lawyer argued that the law prefers that siblings stay together and the Son “should relocate with his older brother”. The Court said that given the children’s age differences and that the Step-Son would attend school while the Son attended daycare, there would be less time for the children to interact during the week. The Court agreed that a sibling relationship should be fostered, but that any bonding could occur during weekend access visits. Upon consideration of the evidence, the Court Ordered that the Son continue to reside in the matrimonial home with the Father. The Mother was awarded sole care of the Step-Son.
The Court said that Child Support for the Son would be determined at a later time depending whether the Mother would ultimately relocate, with the Father paying the Son’s weekly expenses. The Father opposed the Mother’s claim for child support for the Step-Son. The Mother was required to prove that the Father demonstrated a settled intention to treat the Step-Son as a child of his own family. The Court found that the Father and the Step-Son lived together as a family unit for a very short time, and much of that time was spent while the parties lived separate and apart in the matrimonial home. Also, the relationship between the Step-Son and the Father was strained and lacking in affection. The Court did not require the Father to pay support for the Step-Son.
It is important to note that this one of many outcomes for blended families going through a separation. In this particular case, the short duration of the marriage and the Court’s finding of a risk that the Mother will alienate the Son from the Father appeared to have played a role in the Court’s decision.
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