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Ontario Wills & Estates: What Is A Power Of Attorney – video

 

 

Wednesday’s Video Clip: Ontario Wills & Estates What Is A Power Of Attorney

In Ontario, a Power of Attorney is a legal document that gives someone else the right to act on your behalf.

In this video Rita  discusses the importance of a Power of Attorney and what options and decisions you should consider when deciding who should be your power of attorney.

Can You Quit Paying Support for a Child That is Not Even Yours?

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Can You Quit Paying Support for a Child That is Not Even Yours?

In Hari v. Hari, the couple were married for eight years and had one child together. However, the mother also had a daughter from a previous relationship, and one whom the father (i.e. now the stepfather) had financially supported and treated as his own. In fact, from a legal standpoint the stepfather “stood in the place of a parent” to the girl for 12 years, until he and her mother separated.

Once the separation occurred, the mother – now unemployed and receiving employment insurance – needed child support. The girl’s own biological father had historically been unreliable: the mother knew little more than that he was living outside of Ontario, and that he worked in the music business. More to the point, the mother had no idea what he earned and she had received virtually no support from him at all over the years.

This being the case, the mother went to court to ask for an order that the stepfather should pay support for both the child they had together, as well as for the mother’s daughter from the previous relationship. The stepfather disputed that he should pay support for the mother’s daughter, especially since his relationship with the girl had completely broken down since the separation.

The court, in considering the circumstances, applied the following approach based on previously-established legal authority, in order to “do the math” on the support amount:

1) it determined the amount otherwise payable by the stepfather under the Child Support Guidelines (including special expenses and any adjustment for undue hardship);

2) it determined the “legal duty” of the biological father to contribute child support; and

3) it considered whether it is appropriate to reduce the stepfather’s obligation under the Guidelines.

The court also took the approach that once the stepfather could establish that the biological father (and, for that matter, the mother) also had a duty to support the child, it was then up to the mother to demonstrate why the stepfather’s support obligation should not be reduced in an amount commensurate to the support owed by the biological father and mother.

Using this formula – and rejecting his contention that he should pay no support for the girl at all – the court ordered the stepfather to pay support in the full Guidelines-mandated amount, at least until there was some evidence brought to court as to what the biological father could afford to contribute.

For the full text of the decision, see:

Hari v. Hari, 2013 ONSC 5562 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

Kiley is Back

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Kiley is Back

The lawyers and staff at Russell Alexander, Family Lawyers are pleased to announce the return of one our all-time favorite law clerks Kiley.

Kiley will be helping our new clients complete the intake process. She graduated from the Legal Administration program at Durham College in 2007. Kiley is always keen to help clients with any inquiries they may have.

Kiley loves to spend time with her family while boating and camping.

Welcome back!

Is Collaborative Practice Right for You? – video

 
 

Wednesday’s Video Clip: Ontario Divorce Law, Is Collaborative Practice Right for You?

Collaborative Practice is a way for you to resolve disputes respectfully — without going to court — while working with trained professionals who are important to all areas of your life.

In this video, Abi Adeusi, introduces us to concepts of collaborative practice and many of the benefits this process offers couples going through a separation and divorce in Ontario.

City of Kawartha Lakes 16 year old Bayley Simpson is off to Seoul, South Korea

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City of Kawartha Lakes 16 year old Bayley Simpson is off to Seoul, South Korea

City of Kawartha Lakes 16 year old Bayley Simpson has been selected to represent Canada at the UCI Juniors Track Cycling World Championships in Seoul, South Korea this August 8-12, 2014. It has been a year filled with hard work, commitment and sacrifice to achieve this goal, which included off-season training in London at the Forest City Velodrome.

Bayley was also selected to attend numerous training camps in Southern California, South Carolina, Los Angeles and Vermont, through the Ontario Cycling Association and Cycling Canada.

Bayley will be on the World Stage representing Canada and is seeking assistance to help fund his involvement on the National Team and off-set the training, equipment, race fees, travel, accommodation and meal expenses.

As Bayley’s former rep hockey coach with the Lindsay Muskies, I can say personally that this young man has the drive, commitment, dedication and motivation to successfully represent Canada in South Korea.

Good luck Bayley.

Secure donations can be made through the GoFundMe website or via email money transfer to bayleysimpsoncycling@gmail.com

 

5 Things That Make the Matrimonial Home Unique – Part 2

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5 Things That Make the Matrimonial Home Unique – Part 2

I have written recently about how in Ontario it’s actually possible to have more than one matrimonial home. That followed on a more general post written some time ago about the matrimonial home’s unique nature under Ontario family law.

It’s never a bad time to revisit the specific elements that make the matrimonial home special, this time with a focus on the court’s right to make Orders in connection with it.

1) Special status. The matrimonial home has special “protected” status under Ontario law. As such, there are certain things that spouses can and cannot do. Most notably, one spouse is not allowed to unilaterally do any of the following, without the other spouse’s consent:

• Lock the other spouse out of the matrimonial home;

• Sell the home;

• Mortgage or re-mortgage the home.

2) Court can make Orders. Depending on the nature and objective of the family litigation, an Ontario court is entitled to make an Orders that can affect your spousal rights to the matrimonial home. The court’s powers in this regard arise under the authority granted to it pursuant to the Ontario Family Law Act, the Family Law Rules, and the Courts of Justice Act.

3) Scope and nature of court Orders. There are a variety of Orders that a family court can make in connection with the matrimonial home, including an Order that only one spouse is entitled to be in possession of (i.e. live in) it, and an Order that one spouse may sell, mortgage or encumber it.

The last type of Order may become necessary in a case where (for various reasons) it is prudent for the home to be sold, mortgaged or otherwise encumbered, or where it makes sense in all the circumstances that one spouse has possession, but where the spouses cannot agree. The court in such cases has the power to make the necessary Order.

4) Mandated considerations. Needless to say, courts don’t take their powers lightly; whenever a court is poised to make an Order that deprives one spouse of his or her rights or interest in the matrimonial home, the court will consider a broad array of well-established factors and considerations. For example, if a court is considering making an Order giving one spouse exclusive possession of the matrimonial home, the court is obliged under the Family Law Act to take into account the following:

• The best interests of the children who may be impacted by the order. Under this heading, the court must consider 1) the possible disruptive effects on the child of a move to other accommodation; and 2) the child’s views and preferences, if they can be reasonably ascertained.

• Any existing court Orders relating to family property, including existing Orders for support;

• The financial position of both spouses;

• Any written agreement between the parties;

• The availability of other suitable and affordable accommodation; and

• Any violence committed by a spouse against the other spouse or children.

5) Other rights not suspended. Finally, the fact that a family court might be entitled to make an Order in connection with the matrimonial home does not mean that other litigation has to cease; a third party (i.e. not either of the spouses) might have rights in connection with a matrimonial home that can be enforced as usual. To give the most common example, there may be a mortgage on the home, which the bank can realize upon if it goes into default.

Do you have questions about the court’s rights to make Orders affecting the matrimonial home? Feel free to contact our office.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

Stay-At-Home Mom Ordered to Pay $30K Towards Fee for Wealthy Husband’s Expert

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Stay-At-Home Mom Ordered to Pay $30K Towards Fee for Wealthy Husband’s Expert

The father was a wealthy self-made businessman earning a half-million dollars per year, while mother was an unemployed stay-at-home mom to their daughter, whom the court referred to as their “love child”. After separation, the father had generously set up the mother and child in a rent-free/mortgage-free home to live in.

After a 9-day family law trial that took six years to reach court, joint custody was granted, with the father being ordered to pay $3,750 per month in child support. This amount was vastly lower than what the mother had claimed.

A separate court hearing was held to determine what portion of legal costs were payable by each of them. In the mother’s case, she had spent $213,000 in legal fees and costs, while the father had spent about $172,000.

As part of this exercise, the court honed in on the expert fees that had been paid by each of them. It started by saying that “the parties incurred almost obscene expenses for expert testimony”. Specifically, the mother had paid her expert almost $100,000; yet the court chimed in that “Her expert was of no help to me (or to her)”. Similarly, the fee for the father’s expert was about $60,000 (although the court conceded that the resulting report was indeed helpful).

The trial itself had resolved a number of issues (including support, custody and access), but there was no clear winner: numerous offers had been exchanged over the six years but only on the eve of trial did the father make an offer that would have put the mother “miles ahead”, had she accepted it. Conversely, the mother persisted in taking the matter to trial in “dogged pursuit” of an amount of child support that was unreasonable in the circumstances.

The court noted that the apportionment of legal costs usually proceeds on a costs-follow-the-event basis; they must also be fair and reasonable in the circumstances, and must be in line with the expectations of the losing side. It also acknowledged that in the mother’s financial circumstances she would have difficulty paying even her own lawyer’s bill, let alone any portion of the father’s costs.

Still, it was appropriate in this case to order the mother to pay $30,000 towards the fee the father paid to his expert. The parties were otherwise each responsible for their own costs.

For the full text of the decision, see:

Goetz v. McConnell (2014), 2014 ONSC 2910

Additional reasons to (2013), 2013 ONSC 7949

 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

Transfer of Property in Ontario Separation or Divorce – video

 

Wednesday’s Video Clip: Transfer of Property in Ontario Separation or Divorce

In Ontario, whenever there’s a marriage breakdown, and spouses separate or divorce, if they jointly own property, then usually one spouse will release his or her interest in that property, either in return for an equalization payment or other predetermined benefit.

In this video, we explain how transfers of property in Ontario work, focusing on mortgage issues, equalization payments, and land transfer tax; and what documents and information you will be asked to bring to an appointment.

If You Are Getting Too Much Support, Are You Required to Speak Up?

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If You Are Getting Too Much Support, Are You Required to Speak Up?

In a recent case called Gray v. Gray, the Ontario court considered whether a mother had an obligation to essentially take proactive steps to cut off her own child support, in a situation where the father had been overpaying for years.

In this case, the couple had two children together. When he was still a relatively young man, the father became disabled with chronic pulmonary disease. He went on the CPP Disability Benefit and received a subsistence income of about $14,000 annually. Based on this income, he had been paying the mother $211 per month since 1999 in child support. The mother, meanwhile, was gainfully employed the entire time.

In 2013, the father asked the mother to consent to an order terminating his support obligations, but she refused. He was therefore forced to apply to the court, which he did on a self-represented basis and with great difficulty, since he lived in a remove community which was 4.5 hours from Thunder Bay, the nearest city.

Looking at the facts, the court determined that both children had ceased to be eligible for support back in 2006 – i.e. 8 years earlier. Yet the mother had nonetheless continued to accept the disabled father’s monthly child support payments, even though they amounted to a good portion of his income.

Given that support recipients are legally entitled to have support amounts increased when new facts are discovered retroactively, the court pointed out that reverse is also true. It added:

The law of child support has evolved to the point where it is presumed that a parent knows when he or she is obligated to support his children and the amount of that support.. Thus it is incumbent upon the parent who has knowledge of the facts to act upon that knowledge. …

It would appear that “what is sauce for the goose is also sauce for the gander.” A mother who is aware that her children no longer qualify for support should act upon that knowledge. …

The court accordingly determined that the father had overpaid by about $16,000 over the years, starting in 2006. Finding no good reason to do otherwise, it ordered the mother to repay this mount, and also directed the Family Responsibility Office takes enforcement steps as necessary.

For the full text of the decision, see:

Gray v. Gray (2014), 2014 ONSC 1959

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

Mother Claims 6-Year Delay in Seeking Child Support Due to Father’s Mental Health Issues – But Court Doesn’t Buy It

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Mother Claims 6-Year Delay in Seeking Child Support Due to Father’s Mental Health Issues – But Court Doesn’t Buy It

In Williams v. Rezonja, the couple’s relationship started after a “blind date” and resulting in their having a child together. They got engaged, but never did marry.

Although their relationship was apparently at first, it quickly deteriorated after the child was born. The woman said the man started to exhibit bizarre behaviour, which she said came “out of nowhere”. He stopped interacting with her and the child, and she could never be sure whether he was going to work at his well-paying job or not. He told other people she was “out to get him”, and sometimes slept on the couch in his clothes, with his keys in his pocket.

When the woman met her future mother-in-law, they agreed that he should be assessed. After this, he stopped coming communicating with her or coming home. He stayed with his mother, who conceded that he had been admitted to a mental health facility for a few days. Soon after, the woman got a letter from is lawyer, advising that she needed to move out of the house that they shared, and which was in the man’s name.

The woman – who was unemployed at the time – did move out as requested. She took the child with her, and found a job in order to support herself. She eventually claimed child support from the man – but not until about 6 years later.

The court heard evidence that although she knew where to reach the man, the woman chose not to ask him for child support for all those years because she felt it was “unsafe” for her and the child to be anywhere near him. Although he had not threatened her verbally or physically, she said she had concerns for safety and if he was possibly unwell felt she did not want him involved with the child at all.

The man’s version of events was that the woman ended the relationship, and that he was depressed for a period of time. He had indeed been admitted to a psychiatric unit for 2 to 3 weeks, and was off work for 2 years, but said that he was now healthy. He believed that his problems were directly caused by the woman’s treatment of him.

The court did a balanced evaluation of the evidence, considering all the relevant factors, including: the reasons for the woman’s delay; the conduct of the man; the circumstances of the child; and any hardship a retroactive award might cause the man. No single factor is decisive, it pointed out.

Next, the court began by pointing out that as parents, both parties had an obligation to ensure their child receives appropriate support in a timely manner.
Here, the woman’s stated reason for delay were unconvincing; the court found she exaggerated her fear of the man and the potential for retaliation, and was certainly sophisticated enough to have sought legal advice. In short, the court found that she did not pursue child support because she was prepared to “go it alone”.

Turning to the man, the court found that he was blameworthy to some extent, too. He appears to have concluded, based on the fact that mother was not pursing him for support, that he was “home-free” and would not be on the hook financially. As the court put it: “There was an obvious incentive to continue to ignore that which he otherwise knew was his legal obligation.”

With all this in mind, the court concluded that this was not a case for retroactive child support for the full six years. The mother had clearly demonstrated that she wanted nothing to do with the father and was prepared to raise the child on her own. The court did, however, award support for the period starting December 1, 2012, which is the month following the date of the woman’s court application.

For the full text of the decision, see:

Williamson v. Rezonja, 2014 ONCJ 72 (CanLII)

 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.