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May 24

Ticket to Space, Anyone? Court Orders Sale of Space Flight Tickets to Satisfy Support Arrears

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Ticket to Space, Anyone? Court Orders Sale of Space Flight Tickets to Satisfy Support Arrears

Family law cases come in all shapes and sizes. A decision from a few years ago called Gibson v. Gibson caught my eye recently. It begins:

Peter Gibson feared financial ruin. So he put money out of his wife, Melanie’s, reach. Then he bought a ticket for a flight into space. Cost: $218,700.

Peter feared financial ruin. So he started spending on himself. Then he took a trip to Arizona, trips around the world and a trip to Las Vegas. Cost: $100,000.00.

…

Theirs was a lavish lifestyle that an income of over $1 million could not support. Much of this four week trial focused on exorbitant spending by both Peter and Melanie. Allegations were made of hidden bank accounts, dissipation of assets, fraud.

While unusual in its details, this case illustrates the types of challenges that courts face: Whether it involves a family of substantial means or one with more modest budgets, the courts must examine the financial circumstances of the parties leading up to and after separation, including the mis-management and squandering of funds. The court does so as part-and-parcel of its role in making determinations in connection with child and spousal support issues upon divorce.

To help the spouses meet their obligations and untangle themselves financially, the court will use a large arsenal of tools at its disposal; primary among them is to make Orders to achieve an appropriate allocation of income and assets so that child and spousal support obligations can be satisfied. To do this, the court may:

• assess income (both actual and potential, in the case of deliberate under-employment by a spouse)

• consider the effect that any change in circumstances may have on income levels (for example, where one of the spouses has lost his or her job)

• consider the ability by any children of the marriage to contribute to their own support

• trace funds and examine inappropriate / hidden spending

• order the sale of existing assets

• examining in minute detail both the needs and the spending habits of the parties

In the case of Gibson v. Gibson, the court clearly had its work cut out for it. Despite both parties enjoying a lavish lifestyle (which description the court said was an “understatement”), the court concluded that “both Melanie and Peter have issues with financial control and restraint.”

In particular, the husband professed an inability to meet his spousal and child support obligations, and had racked up significant amount of arrears. Part of the various courts’ role in the case was therefore to make detailed Orders to assist him to arrange his financial affairs so that those obligations could be me. For example:

In his endorsement, Nelson J. found that Peter’s issue was not an income problem but rather a cash flow problem. To remedy this, the court suggested that Peter sell his ticket to space. Peter did so. On January 26, 2010, Peter received $175,712.00 from the sale of his ticket. Of this, $70,000 was paid to FRO [Family Responsibility Office], reducing the arrears of support to $39,619.49.

Not many of us have Tickets to Space to sell, but all separating and divorcing couples have the duty to structure their financial affairs so that their obligations will be met. One way or the other, they will find themselves legally forced to by a court.

For the full text of the decision, see:

Gibson v. Gibson, 2011 ONSC 4406 (CanLII)   http://canlii.ca/t/fmf26

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 us at Russell Alexander.com

May 23

Top 5 Lies Clients Tell Their Lawyers

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Top 5 Lies Clients Tell Their Lawyers

As an experienced Family Law lawyers, we have seen it all – and we have heard it all. Not only from opposing counsel and their clients, but sometimes from our own clients as well. It should go without saying that in order to provide competent and effective advocacy, we have to have accurate information from those that have hired us to represent them. Yet, we find that my clients sometimes tell me some significant untruths.

Here are the top lies family law lawyers sometimes hear:

1. Under-Reporting Income.

Separating and divorcing spouses often and quickly slip into “adversarial” mode, where they feel that they need to hide or under-report their income to the other – and by extension to me as well. Although the goal is to minimize the amount of income-based child or spousal amounts that must be paid, it’s never a good idea: courts are legislatively entitled to impute income to a Family Law litigant who has been proven to have under-reported his or her income, and to impose sanctions where appropriate.

2. Valuations.

Likewise, and especially early in the process, clients frequently omit giving full and accurate information on the existence or value of their business interests, investments, ancillary income sources and assets. I remind them that they are under a legal duty to give fair and full disclosure about their financial situation throughout the process; it is better to come forward early on that to have a court conclude that this disclosure has not taken place.

3. Over-Estimating Their Relationship Contribution.

Perhaps it’s human nature for one to want to think the best of oneself. But separating spouses often over-estimate their respective contributions to the relationship and day-to-day responsibilities, while minimizing the role of the other partner. This can include child care duties, household chores, home and car upkeep, and non-tangible items such as social scheduling and vacation planning.

4. Who is “At Fault”.

Although in Ontario spouses can get a divorce even though there has been no adultery or emotional abuse, my clients often feel the need to tell me in detail all about their partners’ poor behavior and shortcomings – while resolutely minimizing their own.

5. Lies About Adultery and Other Affairs.

It is a sad truth that by the time a spouse comes in to consult me about their separation and divorce, the marriage has long ago passed the point where reconciliation is possible. Often this is because one or both of the spouses has mentally “moved on” to other connections, either by having a sexual affair, or an emotional affair, or by engaging in other behavior that is not healthy for the existing marriage. Again, these are the kinds of details that my own clients are rarely (if ever) candid about.

The process of divorcing is a never easy, and by definition it involves a complex array of emotions. Dishonesty should never be part of an already-difficult legal process.

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 us at Russell Alexander.com

May 22

Common Questions About Child Support


 

Wednesday’s Video Clip: Common Questions About Child Support

In this video, family lawyer Russell Alexander discusses common questions lawyers are asked about child support, including undue hardship, reducing support, information required, and when support ends

May 21

Lies, Manipulation and Deception – Should Mom Be “Rewarded” with a Custody Order?

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Lies, Manipulation and Deception – Should Mom Be “Rewarded” with a Custody Order?

In a case called Izyuk v. Bilousov, the Ontario court framed the question for its consideration this way:

“Should an almost two-year “status quo” created by manipulation and deceit prevail in a custody trial?”

The facts read like something out of a reality-show drama: The 30-year-old mother and the 34-year-old father met on the Internet and moved in together. As a result of an unplanned pregnancy they had a son, who was three years old at the time of the matter came before the court. For a time, the child stayed with the mother and the father had unrestricted access to him. None of it was out of the ordinary.

But that all changed when the father decided to marry another woman. The mother suddenly and unilaterally blocked him from having access, and began making a long series of unfounded allegations against the father, which resulted in her using lies to manipulate the court into giving her temporary custody which lasted almost two years pending the final custody determination. As the court put it:

I accept the [father’s] more straightforward – and obvious – explanation: The [mother] was motivated by jealousy and spite. She was upset that the [father] had married. That’s precisely why she terminated a well-established and beneficial timesharing arrangement, as soon as the [father] returned from his honeymoon.

Indeed, as part of her plan the mother had unjustly painted the father as scheming, preoccupied with money, and out to get a share of her extended family’s wealth from a successful family business (a Delicatessen) that they ran. She also alleged that he was controlling, that he intercepted her mail and tampered with her computer so that he could spy on her. She claimed that he had cheated on her during solo trips to Cuba and Israel.

Every one of these allegations, the court found, turned out to be unsubstantiated.

Yet – because courts often look at the status quo as one of several factors when making final custody orders – the temporary order that had been achieved through the mother’s lies had a serious effect, as the court explained:

We now know that much of what the [mother] told a motions judge in her December 2, 2009 affidavit was untrue. And yet those lies changed everything, not only for the [father], but also for [the son]. A new status quo was created. With profound implications. …

Creating a favourable status quo through falsehood and misrepresentation is not just a matter of litigation strategy: It is often tantamount to child abuse. It goes to the heart of “best interests” considerations; Parental judgment; The ability to sacrifice self-interest for the sake of the child; Awareness of the child’s need to have maximum contact with both parents.

If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo.

While pointing out that the “custody trials are not the place to either reward or punish parents”, and that the best interests of the child must always be paramount, the court ultimately decided that the child would be better served if sole custody was granted to the father. However, the mother was given liberal access on very detailed and specified terms.

For the full text of the decision, see:

Izyuk v. Bilousov, 2011 ONSC 6451 (CanLII) http://canlii.ca/t/fnr57

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 us at Russell Alexander.com

May 17

Top 10 Tips for Re-opening Deadlocked Negotiations

10 tips

Top 10 Tips for Re-opening Deadlocked Negotiations

Sometimes people can become deadlocked when trying to negotiate resolutions to disputes.  It can be very difficult to reopen negotiations once parties become fixed in their positions.  Here is a list of 10 tips for re-opening deadlocked negotiations:

1. Use  intermediaries

2. Give conciliatory signals

3. Show a willingness to discuss procedure

4. Admit flexibility on specific solutions

5. Prioritize interests

6.  Identify the of division between hawks and doves

7. Acknowledge the  other’s interests

8.  Assemble an expert problem solving team

9.  Rewarding others for any helpful initiatives

10.  Keeping communication open

This is list based in part on Dobermans and diplomats: seventeen strategies for re-opening hopelessly deadlocked negotiations by John Wade of Bond University.

May 16

New Family Law Act in B.C. – An Updated Law for a Modern Society

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New Family Law Act in B.C. – An Updated Law for a Modern Society

On March 18, 2013, B.C. passed its new Family Law Act, which replaced the former Family Relations Act and made some sweeping changes to the law in that province, bringing it more in line with the governing legislation in Ontario, but adding some new elements as well.
Among the more important changes:

• In certain contexts – including spousal support entitlement – the term “spouse” has been expanded to include people who have lived together for less than two years but have had a child together (this is now in-line with the Ontario definition).

• The new Act now applies to both married and certain unmarried couples in connection with particular family law topics including division of property or debt.

• Unlike Ontario (where analogous provisions do not exist), the B.C. legislation specifically addresses situations where a parent wants to relocate with a child in a way that will interfere with another person’s ability to maintain his or her relationship with that child. Under the new Act, the parent must now give 60 days’ notice of an intended move in certain circumstances.

• There are new provisions to promote co-operation and dispute resolution between spouses.

The new Act also adds clarity and precision to certain terms: for example the concept of “excluded property” has been expanded to incorporate certain specific items. Likewise, the term “best interests of the child”, which is a test used in connection with determining matters such as which parent should have custody, now specifically incorporates elements such as the child’s emotional health and well-being, and consideration of his or views if appropriate.

Finally, certain language used in B.C. family legislation have been clarified and updated, and reference to the terms “custody” and ”access” are no longer used (however, they are still used in the federal Divorce Act). Instead, they have been

replaced by the more inclusive terms “guardianship”, “parenting arrangements”, “parental responsibilities”, “parenting time” and “contact”. This reflects the goal of modernizing the legislation to make it more reflective of the many different living arrangements and family relationships that exist in our Canadian society.

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 us at Russell Alexander.com

May 15

How Do You Arrange For Child Support To Be Paid in Ontario?

Wednesday’s Video Clip: How Do You Arrange For Child Support To Be Paid in Ontario?

Sometimes parents are able to work out child support payments on their own. Other times, they get help from a mediator, or a judge determines what the payments will be.

In this video, family lawyer Russell Alexander talks about how support payments can be made, the need for financial information and use of the child support guidelines. Written agreements are helpful and the need for separate or independent legal advice is also discussed.

May 13

Court Says: Don’t Use Kids in a “Tug of War”

 tug

Court Says: Don’t Use Kids in a “Tug of War”

A recent Ontario decision illustrates the unfortunate and all-too-common scenario where divorcing parents have used their children in a push-pull designed to get back at each other.

In this case, the couple had two children, a boy aged 15, and a girl aged 11. When they separated after more than 22 years marriage, among the many issues to be sorted was which of them was to have primary residence of each of the children.

When they first split up in the fall of 2011, both children remained with the mother. However, at one point the 15-year old son got into an argument with her, and she was charged with assault (though subsequently acquitted at trial more than a year later). The son then moved in with the father, while the daughter stayed with the mother. The father’s existing child support obligations were adjusted accordingly, through proper legal means.

However during the 2012 Christmas break – and without explanation – the son moved back with the mother. As the court pointed out:

Zachary’s return to reside with his Mother has upset the Father. The Husband has unfortunately taken some drastic and unreasonable self help.

Specifically, the father retaliated by refusing to return most of his son’s belongings to the mother, including his winter coat, school uniforms, Health Card. He also unilaterally reduced his child support payments, and cut off the mother’s spousal

support payments altogether. The father and son also stopped talking to each other.

The mother was therefore prompted to bring a motion to court to have her full support entitlement restored.

Yet despite the rift and acrimony with his son, in court the father indicated he still wanted the boy to come live with him. He claimed that the mother had “psychological and emotional issues” that prevented her from being a good caregiver, and that she was volatile, erratic, and sometimes violent.

In assessing the scenario, the court pointed that the parents had previously allowed the son to choose who he lived with, so the father’s motives in trying to impose new arrangements at this stage were suspect:

Zacary is 15 years old. Given the history of this matter, Zachary appears to be capable of making up his own mind as to where he will reside. He chose to live with his Mother until the assault took place. Then he chose to live with his Father. Then he chose to move back in with his Mother. Although with some bitterness and disagreement over access, the parties have, until now, respected Zachary’s wishes as to his primary residence.

The Husband is no longer content to permit Zachary to determine with which parent he resides. The Husband now seeks to take Zachary away from the Mother, a decision which Zachary made on his own.

The Father’s tying this decision by Zachary to financial support to the Wife and to child support is somewhat troubling and may be an indication there may be financial issues behind the Father’s motivation to get Zachary back to reside with him.

Furthermore, the problem with the father’s legal position was this: On the one hand he claimed the mother was psychologically unfit for the son to live with. On the other hand, he was perfectly content to have his daughter continue to live with her. Furthermore, he had no medical documents to substantiate his claims about the mother’s psychiatric condition.

After similarly expressing concerns about some of the mother’s contentions about the father, the court lamented:

A careful review of the correspondence exchanged between the parties and their counsel suggests that both parties are attempting to “use” the Children in this family law proceeding. The parties simply do not appreciate the harm caused to the Children by this “tug of war”. While both parties suggest they want the Children to have a positive and loving relationship with the other parent, there is little evidence that either parent has actually demonstrated this in their conduct.

Ultimately, the court ordered the son to have primary residence with the mother, but allowed the matter to come back before the court if the boy changed his mind (but with the caution that the boy’s reasons for doing so would be carefully scrutinized).

For the full text of the decision, see:

Stockwell v. Dalcin, 2013 ONSC 2179 (CanLII)   http://canlii.ca/t/fx2d
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 us at Russell Alexander.com

May 10

Top 5 Questions About Restraining Orders

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Top 5 Questions About Restraining Orders

Given that failing relationships and the process of formally separating can be emotionally-harrowing at the best of times, it comes as no surprise that they can sometimes become volatile and even physical. In such cases, it may become necessary for one spouse or partner to obtain a Restraining Order against the other.

Here are the basic points to know:

1. Who Can Be the Subject of a Restraining Order? And Who Can Apply for One?

You cannot obtain a Restraining Order against just anybody. In the right circumstances you can only get a Restraining Order from Family Court against your spouse/partner (including same-sex partners), to whom you were formally married or with whom you lived together for any period of time. There is no requirement that you have had children together. However, you cannot obtain a Restraining Order against someone you were only dating, but did not live with.

2. When Can I Get a Restraining Order?

Anytime you are afraid that your spouse or partner (or former spouse/partner), will harm you or your children, you can ask the Family Court for a Restraining Order. Note that this request essentially launched legal proceedings, and the matter becomes part of the record and involves certain established processes.

The authority by judges to grant a Restraining Order is found in the Ontario Family Law Act, which sets out the requisite test. The person asking for the Order must show that he or she has “reasonable grounds to fear for his or her own safety or for the safety of any child that is in his or her lawful custody.”

3. Do I Need a Lawyer to Get a Restraining Order?

No. Still, it is a good idea to hire a lawyer to obtain a Restraining Order, particularly if your situation will soon devolve into a marital separation or divorce, scenarios involving child custody dispute, or if your need for a Restraining Order arises in circumstances that include issues around immigration.

4. What Does the Restraining Order Include?

The Restraining Order contains the conditions that your spouse must obey, which are set by the judge who grants the Order after considering all the circumstances. The Restraining Order can be general in scope (e.g. that he or she must stay away from you, or stay outside a prescribed distance from you), or can be more detailed and specific (e.g. that he or she is prohibited from coming to your home, the homes of your extended family members, your workplace, and other social or religious venues where you habitually go). It may also proscribe exceptions to these kinds of blanket prohibitions.

5. What Happens if the Restraining Order Is Not Complied With?

If your spouse fails to abide by the terms of the Restraining Order, then he or she can be arrested by the police, then criminally charged and prosecuted.

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 us at http://www.RussellAlexander.com.

May 8

Family Matters Season 2 Trailer is Out

Family Matters Season 2 Trailer is Out

 
In its second season Family Matters with Justice Harvey Brownstone, is the only TV show ever hosted by an actual sitting judge. Justice Brownstone is the author of the bestseller: Tug of War: a Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court. He is considered the ‘face and voice of the Canadian justice system;’ and is likely the most recognizable judge in the country.

Family Matters focuses on the relationship between modern family issues and the justice system, covering topics such as Internet dating, spousal and child support, addictions, parenting, social media, bullying, domestic violence, same-sex marriage/parenting, adoption, child protection, and infidelity. Justice Brownstone interviews social workers, lawyers, mediators, judges, psychologists, and everyday people to inform and entertain viewers on topics usually not discussed in a sophisticated, intelligent manner on TV.

To learn more visit Family Matters online.

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