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Ontario Custody and Access: Who’s Is Entitled To The Child? – video

 

Wednesday’s Video Clip: Ontario Custody and Access Who’s Is Entitled To The Child?

There is a general misconception that when a couple separates, the children must automatically stay with their mother. But in Ontario, the mother and father are equally entitled to custody of the child.

In this video Abi Adeusi, an Associate Lawyer with Russell Alexander Family Lawyers, discusses who is entitled to custody of the child, defacto custody, and mistake parents, often fathers, make regarding custody and the establishment of a status quo. She also explains the difference between custody and access.

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 www.RussellAlexander.com.

The Finer Points on Court-Ordered Interim Support

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The Finer Points on Court-Ordered Interim Support

As regular readers of my Blog likely know, in cases of separation and divorce the entitlement to child or spousal support is governed mainly by Canadian federal law, and (to a lesser extent) by Ontario legislation. Those laws allow a court to make a final order that intends to fully address the estimated future needs of former spouses and children, taking into consideration the various factors that have been established as being relevant to assessing need.

As much as it would be ideal for a court to be able to make such an order immediately, from the moment the couple irrevocably separates, the reality is that the process leading to a formal divorce is lengthy and often costly, and that the parties’ needs and means remain pressing and immediate, yet may change over time.

For this reason, Canadian law empowers a court to make one or more temporary or “interim” orders for support, which are intended to address the support recipients’ needs on a shorter-term basis, pending the full resolution of the issues that arise from the dissolution of the couple’s relationship.

These temporary orders (which at one time were called “interlocutory”), are generally governed by the same considerations that affect a court’s decision-making on final orders: Child and spousal support rights/obligations arise from sections 15.1 and 15.2 of the Divorce Act, respectively, with additional guidance being given by the Spousal Support Advisory Guidelines and the federal Child Support Guidelines. For example, section 15.2 set out the specific factors that must be considered when making either an interim or final order, including:

• the length of time the spouses lived together;

• the functions each of them performed;

• any order, agreement or arrangement relating to the support of either of them.

The section also sets out in detail the various objectives that the court should strive to meet when making either a final or temporary award.

However – and despite the overall similarity in approach – courts have also recognized that the objectives of a final order versus an interim order are not identical, and that there are slight nuances in the assessment exercise. Plus, each case is different, and the court must balance the factors as the situation dictates.

For this reason, an Ontario case from a few years ago named Driscoll v. Driscoll remains helpful in formulating an approach to interim orders in particular, by providing an added list of governing principles. The court, citing a contemporary B.C. decision named Robles v. Kuhn, endorsed the following eight points:

(1) On applications for interim support the [support recipient’s] needs and the [support payor’s] ability to pay assume greater significance;

(2) An interim support order should be sufficient to allow the [recipient] to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;

(3) On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;

(4) The courts should not unduly emphasize any one of the statutory considerations above others;

(5) On interim applications the need to achieve economic self-sufficiency is often of less significance;

(6) Interim support should be ordered within the range suggested by the spousal support advisory guidelines unless exceptional circumstances indicate otherwise;

(7) Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and

(8) Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

The court in Driscoll also emphasized that these principles are not exhaustive; rather they are intended to assist the court in providing a “contextual analysis”.

Do you have questions about your interim support rights or obligations? Contact us for some advice that is tailored to your unique situation

For the full text of the decision, see:

Driscoll v. Driscoll, 2009 CanLII 66373 (ON SC)

Robles v. Kuhn, 2009 BCSC 1163 (CanLII), [2009] B.C.J. No. 1699

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 www.RussellAlexander.com

How Blameworthy Conduct Can Affect Retroactive Child Support

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How Blameworthy Conduct Can Affect Retroactive Child Support

Perhaps it’s trite to say: Divorce does not bring out the best in people. The Ontario family courts are filled with litigation that is often spurred or exacerbated by bad behaviour, lack of cooperation, and unreasonable posturing by one or both parents.

In response, courts are certainly authorized to impose sanctions for various misconduct (for example in the form of granting orders to strike pleadings, impose costs, or declare a party to be in contempt). However, a less-tangible (but still permissible) method for addressing a family litigant’s bad behaviour comes in the form of an “adjusted” child support award – one that takes into account the paying parent’s blameworthy conduct.

This was illustrated in the Supreme Court of Canada called (D.B.) v. G. (S.R.), where the Court considered application by one parent for retroactive child support from the other. The Court turned its focus on precisely how and to what extent a family court should take into account a paying parent’s blameworthy conduct when evaluating the amount retroactive child support he or she should be required to pay.

In this regard, the Court made the following observations:

• “Blameworthy conduct” is anything that privileges a paying parent’s own interests over the right of his or her children to an appropriate amount of child support.

• No level of blameworthy behaviour by parents should be encouraged.

• Even if the paying parent does nothing to actively avoid his or her child support obligations, he or she might be acting in a blameworthy manner by consciously choosing to ignore those obligations.

• In other words, a paying parent who knowingly avoids or diminishes his or her support obligation to the children of the relationship should not be allowed to profit from that conduct.

• When considering the appropriateness of a retroactive award, family courts should not hesitate to take into account a paying spouse’s blameworthy conduct.

• In fact, courts should take “an expansive view” of what constitutes blameworthy conduct for these purposes.
There is no bright-line test as to what amounts to blameworthy behaviour in the family law context. However, the Court gave some examples of the type of conduct to avoid, stating:

• A paying parent cannot hide his or her pay increase from the parent who receives the child support, in the hopes of avoiding larger child support payments.

• Nor can a paying parent cannot intimidate a recipient parent in order to discourage him or her from bringing a child support application.

• A paying parent cannot mislead the other parent into believing that child support obligations are being met, when he or she knows that they are not.

For the full text of the decision, see:

S. (D.B.) v .G. (S.R.), 2006 SCC 37 (S.C.C.)

 

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 www.RussellAlexander.com.

Does The Age of The Child Affect Child Support in Ontario? – video

 

Wednesday’s Video Clip: Does The Age of The Child Affect Child Support in Ontario?

Simply put, the age of a child does affect the amount of child support ordered.

In this video, Shelley, a Law Clerk with Russell Alexander Family Lawyers, discusses how and when the age of the child could affect child support. Income considerations, age of the child and needs of the child should be considered.

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 www.RussellAlexander.com.

When Does a Seriously-Ill Adult Child Stop Needing Support?

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When Does a Seriously-Ill Adult Child Stop Needing Support?

In a brief decision from a few weeks ago, the court considered a narrow but interesting point: For an adult chid with a serious disease, when does he or she stop being a “child of the marriage” for child support purposes?

In Furlani v. Furlani, the father brought a motion to terminate the child support he had been paying as part of his divorce from the mother. The mother opposed the request as premature: she was concerned that the health of their adult daughter, who had Cystic Fibrosis, might not remain be stable enough in the future to warrant terminating support now.

The court reviewed the evidence jointly tendered by the former couple. In the course of finding that the daughter no longer fit within the definition of “child of the marriage” under the Divorce Act, and that the father’s support obligations should therefore be terminated, the court summarized the evidence and its conclusions this way:

[The daughter] was diagnosed at age three with cystic fibrosis. Her mother testified about the difficulties [the daughter] experienced as a child and the efforts that [the mother] had to make to get the doctors to finally arrive at the correct diagnosis. I understand very well the effect that diagnostic testing and treatment of young children can have on the child and the parents, alike.

I also understand how difficult it can be for the parents of a child who has gone through such testing and treatment to let go, once the child has reached adulthood. There is always a fear that the past will return with a vengeance. In [the daughter’s] case, it is a certainty that her illness will one day pose great challenges. In fact, she faces many challenges today, including requiring treatment for lung and sinus infections.

However, at present, [the daughter] is overcoming these challenges. She is now 21 years old. She lives in southern Ontario with a partner, with whom she is romantically involved. Although both her parents share concerns about it, [the daughter] has entered into a formal contractual relationship as an apprentice to learn the tattoo trade. While she is not yet earning income from that trade, [the daughter] does have income in the form of Ontario Disability Support Program (ODSP) payments that she has been receiving since she turned 18.

The court added that while the Divorce Act’s “child of marriage” definition excludes a child over 18 who is “unable, by reason of illness, disability or other cause” to withdraw from her parents charge or to obtain the necessities of life, the daughter in this case did not fit that category; indeed the court noted that “[s]he appears to be a determined young lady.” It also pointed out that the parents’ provision of financial assistance from time-to-time did not change that assessment; the court observed “this is something that parents of young adults are often called upon to do.”

Finally, while acknowledging that the parents were concerned about their daughter’s future, the court pointed out that it was charged with making a determination based on her present situation. In this particular case, the daughter was able to remove herself from her parents’ charge and would continue to be able to do that for the foreseeable future; the father should no longer be obliged to pay support for her. Another motion could be brought in the future, if her health and abilities were to change.

For the full text of the decision, see:

Furlani v. Furlani, 2015 ONSC 1582

 

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 www.RussellAlexander.com.

Couple in Separation Stalemate: Court’s Crafts a Solution

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Couple in Separation Stalemate: Court’s Crafts a Solution

What should a court do when a divorcing couple is at a roadblock with selling their matrimonial home? What if there is more still owing on the home than it is actually worth? These were the key question in a recent decision called Sartain v. Mccabe.

The couple first lived together in a home owned by the wife in the Niagara region. Then in 2008, they bought a home in the village of Paisley, and married a year later. When in 2011 they separated after less three years of marriage, the husband moved back to the Niagara region, while the wife stayed in the Paisley home. They listed the property for sale in 2012, with the intention of selling it as soon as possible.

However, the process of unravelling their financial and marital relationship was hampered by several things. First, each of them alleged that the other’s actions interfered with the sale of that Paisley-area matrimonial home. On the husband’s part, for example, he had continued to make the mortgage payments, but refused to pay any of the other expenses, including property insurance premiums, with the result that insurance was eventually cancelled for non-payment.

But the more significant hurdle was that the outstanding mortgage – about $215,000 – was more than the house was worth. While this would certainly leave them in a financial bind for the future, there were immediate repercussions as well, because both of them had unrealistically dug in their heels on price. As the court explained:

II. Sale of the matrimonial home

The matrimonial home in Paisley continues to be listed for sale. Both parties want the property sold. The balance outstanding on the mortgage is approximately $215,000. According to the testimony of the listing realtor, the property is expected to sell for less than that amount. She also testified that the principal reason the property has not sold is that the price the parties are willing to accept for the property substantially exceeds its expecting selling price.

This, in turn, affected the wife’s entitlement to spousal support. The court described that interplay this way:

Dealing first with the entitlement issue … I agree with [the wife] that she has established entitlement to spousal support, applying the principles referred to previously. The basis for her entitlement is primarily non-compensatory, that is, on the basis of need. After the separation, [the wife] was left living alone in a location that she no longer wished to be, in a house she could no longer afford to run, and without the employment opportunities that would allow her to pay her expenses. To some extent, the continuation of this situation is of her own making, since she is unwilling to take the financial hit associated with selling the matrimonial home at its apparent market value and relocating to a location where she is confident of finding remunerative employment. However, [the husband] also bears responsibility for that situation, since he has shown no more willingness than [the wife] to sell the property for a price that would allow a sale to occur.

After concluding the wife was entitled to spousal support and making an appropriate monetary award, the court then turned its attention to solving the lingering problem of the matrimonial home’s sale. The court considered – but ultimately rejected – the wife’s request for an order that the husband buy out her interest; it pointed out in light of her established support entitlement, and given that the outstanding mortgage was greater than the home’s value, the net payment would actually flow from the wife to the husband, rather than the other way around.

The court ultimately crafted a solution to the impasse, taking into account the realities of the situation. It wrote:

[The wife] did not object to [the husband’s] request for an order that the Paisley property continue to be listed for sale. An order to that effect will issue. The order will also require the parties to co-operate with the listing and sale of the matrimonial home. The order will not direct how the proceeds of the sale will be applied. No useful purpose would be served by doing so, since it does not appear likely that the proceeds will be sufficient to satisfy the amount outstanding under the mortgage in full.

In other words, the court stepped in to direct the parties to co-operate in selling the home, but stopped short of making any order as to the proceeds, since they were likely to be non-existent in these circumstances. The juxtaposition of the still-outstanding mortgage against the home’s actual market value made such an order moot.

For the full text of the decision, see:

Sartain v. Mccabe, 2015 ONSC 2198 (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 us at www.RussellAlexander.com

Ontario Child Custody: Who is Considered a Parent? – video

 

Wednesday’s Video Clip: Ontario Child Custody Who is Considered a Parent?

When it relates to family law, a parent can be the birth mother or father, an adoptive parent, or a step-parent.

In this video, Shelley, a Law Clerk with Russell Alexander Family Lawyers, discusses who is considered a parent for the purpose of child support, along with the role of step parents.

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 www.RussellAlexander.com.

5 Divorce Questions from Across Canada: Interview of Lawyer David Paul by Russell Alexander

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5 Divorce Questions — Coast to Coast (Canadian Edition): Interview of British Columbia Lawyer David Paul by Russell Alexander

This week we interviewed Kamloops, BC lawyer David Paul. David A. Paul, Q.C., was born and raised in Kamloops, British Columbia. Mr. Paul graduated from the University of Victoria Law School in 1986 and was called to the British Columbia Bar in 1987. Since then, he has been in private practice in Kamloops.

Russell Alexander: “How often do people ask you for advice or guidance about separation and divorce and in which jurisdictions do you practice in?”

David Paul: “I have practiced in Kamloops British Columbia for my entire career. All of the lawyers in my firm practice almost exclusively in the area of family law. We also practice at all levels of court. Being a busy family law practice clients and potential clients seek our advice or guidance about separation and divorce every day.”

Russell Alexander: “What are the biggest concerns people raise with you about separation and divorce?”

David Paul: “Fears about the impact of the separation on their children including relocation concerns, concerns about losing contact or losing a sense of involvement.

Fears about money. From the point of view of the recipient spouse, one of the first questions often asked is “what can I expect”. From the point of view of the payor, the question often asked is “can I afford it”. Both sides also want to know whether they will have enough financial resources to maintain their former lifestyle.

Fears about process. Clients frequently ask questions like “will I have to go to court?”, “what can I expect if the matter does proceed to trial?”, “how much will this cost?”, and “are there other lesser expensive options?”

Russell Alexander: “What advice do you have for people looking for a family lawyer?”

David Paul: “Find a lawyer with experience and a positive reputation and someone you will feel comfortable working with. Keep in mind that you may be working with that lawyer for some time before the matter resolves. If your matter does end up in court the process can be expensive. Do not be afraid to ask about fees and how they are best spent.”

Russell Alexander: “What are the top 3 tips you have for people going through a divorce?”

David Paul:

1. Take a deep breath and attend to your emotional health. It will help you stay objective as you go through the process. As painful as the situation is, time heals.

2. Temper your expectations. Get advice about your rights, responsibilities, and the process and the options for all three.

3. Keep your horizons short until you can see the way clearly.

Russell Alexander: “What do you envision for the future of family law?”

David Paul: “Despite some popular views to the contrary, lawyers will continue to play a significant role in David P
family law matters. However, as the family justice system is increasingly finding ways to help families resolve conflict without resorting to court, there is good reason for lawyers to consider ADR training as part of their continuing legal education.”

British Court Approves Woman’s Potential Support Claim 20+ Years After Divorce; Should Canada Follow Suit?

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British Court Approves Woman’s Potential Support Claim 20+ Years After Divorce; Should Canada Follow Suit?

A recent court decision from Britain has given rise to considerable controversy all over the world: It centred around certain financial support claims of an ex-wife, who had been divorced from the ex-husband for more than 20 years.

The couple had met as students, married in 1981, and had a son together. However, after living what was described as a peripatetic “New Age” lifestyle, they separated after only two years, and formally divorced in 1992.

Despite the 30 years since their separation and 23 years since their divorce, in 2011 the ex-wife brought a claim for £1.9m as “financial remedy” under Britain’s equivalent of our own federal and provincial family legislation. The claim was likely prompted by the fact about 10 years after they split up, the ex-husband had become a multi-millionaire in the green energy sector: His company was now worth more than £57m, and as the sole shareholder his personal fortune was estimated to be about £107m.

Although initially a court rejected the ex-wife’s right to assert the claim (in what was essentially a motion to strike), a three-judge appeal panel allowed it to go forward to a full hearing, ruling that it was not an “abuse of process” and was “legally recognizable”. Although the appeal court did not opine on the merits at this stage, it did speculate that while £1.9m was likely “out of the question”, some drastically more modest award could be in the cards.

Whether and to what extent the ex-wife should receive a financial payout at this very late stage will be subject to numerous legal and factual considerations. The U.K. family law system is underpinned by similar values to those that direct the courts in Canada: Primary among these is a recognition that, in situations of divorce, the court must evaluate the contribution of each party to the welfare of the family. (In the ex-wife’s case, she had raised their son through “16 years of real hardship” while the ex-husband had provided only minimal and occasional support. The ex-wife stated that she had not previously pursued him for support because she assumed that he was still penniless, as they had been while married.) Also, as in Canada, the court will have to take into account a wide array of factors, including the short duration of the marriage, the wife’s long delay, and whether her current financial needs were brought about by her relationship with the husband.

Naturally, the case has garnered controversy in Britain because it raises the prospect that former spouses, particularly those who have amassed considerable wealth since a divorce, may need to fear that their ex-partners will pursue them for financial support many years or even decades later. Indeed from a bystander’s viewpoint – particularly those who have long-ago divorces lurking in their own relationship histories – the old adage, “let sleeping dogs lie” will probably come to mind. Furthermore, there are the “optics” to consider: The ex-wife’s sudden interest in pursuing a claim seems admittedly unseemly, given it was undoubtedly doubt prompted by the husband’s inordinate post-divorce success.

But not for these reasons alone, it is highly unlikely that such an excessively dilatory claim would succeed in Canada: As I have written before, in Canada the law governing family claims imposes time limits, or imposes restraints on how far back retroactive claims for child or spousal support can extend.

Still, it raises and interesting question: Should courts allow these “out-of-the-woodwork” potential claims to go forward, from ancient relationships that ended long, long ago? What are your thoughts?

For the full text of the decision, see:

Wyatt v. Vince, [2015] WLR 1228, [2015] 1 WLR 1228, [2015] UKSC 14

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 www.RussellAlexander.com

Common Questions About Child Support in Ontario – video

 

Wednesday’s Video Clip: Common Questions About Child Support in Ontario

In Ontario, both parents have a responsibility to financially support their children, both when they are living together and if they separate. This applies to all parents, regardless of whether they were married, living together or have never lived together.

In this video we review some common questions lawyers are asked about child support, including undue hardship, reducing support, information required, and when support ends.

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 www.RussellAlexander.com.