Children and Divorce

by JFCY volunteer Ouran Li and JFCY lawyers

Scenario

Charles Cheenie and Brookie Mules have divorced and have two children from their marriage, both under the age of 18. Charlie has more money than Brookie but has a history of drug addiction and infidelity. The Court has to decide with whom the children of marriage will reside, taking into account the best interests of the children.

The children, Martin Cheenie (age 6) and Denise Cheenie (age 16) lived in Ontario with the parents for five years before the divorce proceedings and moved in with Brooke when she filed for divorce. Charlie is now living by himself at a luxury condo downtown. Denise has taken the children to and from school and has cared for them during the marriage. The children love their father and are unaware of the 'extracurricular activities' he has engaged in because it has not affected their relationship. The children are confused as to why their parents are breaking up and are conflicted as to which parent they want to live with.    

What are the legal rights of the children?

When spouses separate and begin divorce proceedings, serious issues for determination include where the kids should live and who should make decisions about their schooling, health, etc.  These issues are often agreed upon between the parties and resolved out of court.

However, if the parents cannot agree between themselves, a Court will eventually make an Order about “custody and access”. This is when the Court decides who the “custodial parent” should be: ie which parent will the kids live with?  The Court will also decide how much “access” the “non-custodial parent” should have with the children: ie when and where can they other parent see the kids?

This is a legal dispute between the two parents; the children are not “parties” to the legal proceeding.  This can often be frustrating for children, especially older children, who may have strong views and want their voice to be heard by the Court.  However, the Court may request to have the children be appointed a lawyer from the Office of the Children’s Lawyer. This does not happen in all cases, but when it does happen the children’s lawyer will present independent information to the court about the children’s views and preferences relating to the custody and access disputes.

For more information on the Office of the Children’s lawyer, check out their website:

http://www.attorneygeneral.jus.gov.on.ca/english/family/ocl/

Some more online legal information on family law:

http://www.cleo.on.ca/english/pub/onpub/PDF/family/getdiv.pdf

http://www.cleo.on.ca/english/pub/onpub/PDF/family/custody.pdf

Ouran Li is a volunteer on JFCY’s Public Legal Education Team, shown here on the right at a recent meeting.  He is a Law Clerk student at Seneca College and the newly elected President of the Legal Studies Student Association at Seneca College (LSSA) which provides a pool of volunteers from the Paralegal and Law Clerk to Legal Organizations which need them. 

Definetheline.ca - Cyberbullying Info

What is cyberbullying? Where can you get more information? 

Definetheline.ca is a website dedicated to understanding cyberbullying and socially responsible digital citizenship. JFCY volunteer and McGill law student Jesse Gutman currently helps run the website with Dr. Shaheen Shariff, the Project Director for definetheline.ca. The website is constantly updated and has a lot of interesting content like youtube videos and quizzes. 

Take a look and educate yourself on this important issue!

JFCY is seeking volunteers

            JFCY is seeking volunteers for our annual fundraiser!

Our annual event raises vital funds for our programs.  This year's event will include a concert and silent auction.  It will take place in downtown Toronto in November.  

Volunteers are needed to assist in advance preparations and also on the day of the event. 


We are particularly interested in volunteers for the following positions (click link): Silent Auction Co-Coordinator and a Web Designer / Web Master.  

If you are interested in helping with the event, please complete the JFCY Volunteer Application Form, indicating your specific interest, by Wednesday, September 7^th.

Concerts, Drug Use and Underage Drinking

Blogpost by JFCY volunteer Lucas Treleaven, law student Daniel Lo and JFCY lawyers.


Fred is 17 and loves music. He goes to all his favourite bands concerts and owns all their T-shirts. One night he decided to go to a Blink 182 concert alone because his friends don’t really like Blink 182. He was having a great time and as you do at concerts he made some friends. These new friends were much older than he was and seemed a lot cooler too. They talked about their favourite Blink 182 songs and how it was so awesome that Blink 182 came to Toronto. About half-way through the set Fred's  new friends brought out what looked like a cigarette. Fred quickly learnt it was not a cigarette. They told it was called a “joint” and contained marijuana. They offered him a 'hit' and even though he had never used drugs before he accepted the ‘hit’ because he wanted these people to keep talking to him. Throughout the night they gave him beer and more joints until he was so drunk and high that he passed out. His new-found friends left the concert early to avoid the paramedics while another concert-goer called the security guards. 

Fred was sent to the hospital and his parents showed up at 1 am to get him. 

What are Fred’s legal issues?

Alcohol

An Ontario law called the Liquor License Act says that people under age 19 are not allowed to have, drink or purchase alcohol (Liquor License Act, S. 30(8)). It is also illegal for someone to provide alcohol to people under age 19.  However, there is an exception in that parents are permitted to give alcohol to their own under-age children at home under parental supervision, without them or the kids being charged.  That is the only situation where it would be legal for someone to supply alcohol to a minor and legal for the minor to consume alcohol. Fred and his new “friends” may be charged under the Liquor Licence Act and be made to appear in Provincial Offences Court.

Cannabis/Marijuana/Pot

The Controlled Drugs and Substances Act is the federal law that deals with drugs. Cannabis (aka. Marijuana) is a schedule II drug, and carries criminal consequences for youth who are found guilty of possession, trafficking, exportation and/or production. There is no age parameters with regards to illegal drug use- anyone found with cannabis will be in violation of the Controlled Drugs and Substances Act and may charged and must attend court.  Fred and his “friends” could be charged with possession of a controlled substance. 

Youth who are under age 18 when alleged to have committed a criminal offence are dealt with under a separate legal system from adults.  This system, and the various rights that youth are entitled to, is outlined in the Youth Criminal Justice Act.  For more info on youth charges, see this pamphlet.

If you are young person in Ontario and you need a lawyer to represent you, call Legal Aid Ontario: (416)598-0200, 1-800-668-8258 (outside GTA), or Justice for Children and Youth (416) 920-1633, 1-866-999-5329 (outside GTA)

For More Info on Youth and Drugs:

According to recent survey conducted by the Centre for Addiction and Mental Health (CAMH), the two most common drug substances that Ontario students (grade 7 – 12) use are alcohol and cannabis (Ontario Student Drug Use and Health Survey, 2009). Fred’s scenario is not uncommon and is a recurring issue that teens deal with on daily basis. 

Your right to study!

Scenario by Diana Rozo, JFCY volunteer

Jose is a 10 year old boy. He was born in Mexico, brought up in a low-income family. His parents have been saving up for years working in labour intensive jobs in hopes that Jose will never have to suffer through the hardships that they encountered in their lives. Jose’s parents are hoping to move to Canada so that Jose will have a chance at a better education, and subsequently a better life. On his 10th birthday Jose and his parents flew out to Canada hoping for a brand new start. After settling into the neighbourhood and nearby surroundings, Jose and his parents decided that since it was nearing the start of school, they should visit their nearby school for registration. By the time his parents brought him to register for school they had just realized that their visitor’s visa had expired. His parents are not sure if the school will register their son and are quite worried. Jose is really disappointed to hear this news and remains eager to start school in Canada.

What are Jose’s rights?

Some legal issues explained by JFCY staff lawyers:

Right to Attend

All children who reside with a parent or guardian within a school board’s boundaries have the right to attend a school within the board, but not any specific school.

Payment of Fees

A child who is a “resident pupil” has a right to attend school without paying a fee. A “resident pupil” means that they are living in Ontario and not just visiting.

Canadian citizens and “permanent residents” do not have to pay a fee to attend a school in the district in which they live.

Students who are “visitors” to Canada will have to pay a fee in order to attend school. For example, if Johnny and his parents do not take steps to gain immigration status in Canada then they will likley have to pay a fee. 

However, non-citizen students will NOT be charged fees in certain circumstances. These are some, but not all of those circumstances: 

- The student, or their parents have claimed refugee protection in Canada and are awaiting the decision, or have had refugee protection conferred on him/her/them.
- The student has applied for “permanent resident” status and is awaiting a decision. 
- The student is living with parent (or someone who has lawful custody of them) who is a “permanent resident” or has applied for “permanent resident” status. 
- The student is living with parent (or someone who has lawful custody of them) who has a valid work permit or has applied and is awaiting the determination of a work permit application.

The above information on payment of fees can be found in the Ontario Education Act, at s. 49, available here

To learn more, check out this JFCY pamphlet: (“Do I have the right to attend school?”)

This area of law can be complicated.  For more information or to speak to a lawyer about your specific situation, you can call Justice for Children and Youth at 416.920.1633 (or 1.866.999.5329 for outside the GTA)

Other Issues for Students Without Legal Immigration Status

Section 49.1 of the Ontario Education Act says that a student should not be refused admission to school becasue they or their parents are unlawfully in Canada.

The Toronto District School Board has adopted a policy called, Access Without Fear: Don’t Ask, Don’t Tell  for children without legal immigration status. This policy aims to protect the rights of children and their families by not asking for, reporting or sharing information about any student’s or a student’s family’s immigration status. For more on this policy, adopted on May 16, 2007, see page 2 of this document

Other school boards in Ontario may have different policies.

For more information on activism in this area, check out the No One Is Illegal blog here

Special education and "exceptionality" explained

 Comic picture courtesy of JFCY volunteer Diana Rozo

Blogpost by JFCY volunteer Adrianna P, law student Daniel Lo and JFCY lawyers

Johnny is a 16 year-old grade 10 student. Since entering high school he has found that he is struggling with his course work and his grades are falling.  Johnny is having difficulty successfully completing and understanding his work and he is not performing well on math and English tests.  His teachers referred him for educational and psychological testing in order to determine the cause of his difficulties and the results have indicated that Johnny has a learning disability.   

Johnny’s mom thinks that the teaching styles that were used in elementary school enabled Johnny to get by but now high school is a more intense learning environment and Johnny does not possess the learning skills that are necessary for him to perform to his potential.
Since being formally identified with a learning disability, his principal and teachers feel that Johnny should be placed in a separate special education classroom. They feel that this is where the proper instruction can be given to Johnny and will help meet his needs.   Johnny on the other hand does not want to leave his friends and wants to stay in a regular classroom setting.  

What are Johnny’s Rights in this situation?

In this situation, it seems that Johnny, his parents, his principal and teachers are waiting for a reference to the Identification, Placement and Review Committee (IPRC). The IPRC is the committee that will decide three things: 1) whether Johnny is “exceptional” (ie has special learning needs), 2) what  type of exceptionality does Johnny have (behaviour, communication, intellectual, physical, and multiple);  and 3) what is the appropriate special education placement for Johnny.

Johnny’s parents can request an IPRC by writing a letter to the school Principal.    The law says that the principal cannot refuse to refer the student to an IPRC. A Principal can also refer a student for an IPRC without a parent’s request.

Since Johnny is 16, he is entitled to the following rights:

-    The right to attend his IPRC and to give the committee any information he thinks is useful in deciding his educational needs. In this case, Johnny could present his preference for staying with his current classroom setting because the support of his friends is beneficial to his learning.

-    He is entitled to receive a copy of any information about him that others will give the IPRC. Johnny is entitled to see a copy of the educational and psychological test results that his teachers registered him for.

-    The opportunity to be consulted about his Individual Education Plan (IEP), which contains specific learning expectations and the school’s outline of educational services to address them. In this case, Johnny may request a less intrusive method of service, such as an educational assistant, so as to allow him to stay in a regular classroom setting.

-    His parents can be present.

-    Johnny and his parents may bring a representative to speak for them if they feel more comfortable, or even advocates from organizations such as the Learning Disabilities Association, or the Association for Community Living

-    He may bring an interpreter if needed.

If following the decision of IPRC, Johnny and/or his parents do not agree, they can appeal the decision and may receive a second meeting with the IPRC. If Johnny and/or his parents still do not agree with the decision made, they can appeal to the Special Education Appeal Board, and subsequently the Ontario Special Education Tribunal. In addition, Johnny and/or his parents can file an Application with the Human Rights Tribunal of Ontario if they feel like that Johnny has experienced discrimination based on his disability. IPRC appeals and human rights applications can be complicated and it is important to talk to a lawyer before deciding what to do next. You can call the following organizations for assistance:

Justice for Children and Youth- 416.920.1633 (1.866.999.5329 for outside GTA)

Child Advocacy Project (Pro Bono Law Ontario) – 416.977.4448

Human Rights Legal Support Centre (note: they do not do IPRC appeals) – 416.314.6838

For more information, take a look at this pamphlet on special education.