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Canadian Divorce and Foreign Same-Sex Couples – Appeal Ruling Now In

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Canadian Divorce and Foreign Same-Sex Couples – Appeal Ruling Now In

Last year I wrote about an interesting Ontario family law case called Hincks v. Gallardo, [link to: ]. In a nutshell, the case hinged on the question of whether, for the purpose of divorce, a same-sex union in another country can amount to a “marriage” under Canadian law.

The couple, who were two men named Wayne and Gerardo, had exchanged rings and gone through a “civil partnership” ceremony in the U.K., under laws that recognized same-sex unions in that country. They moved to Ontario and later decided to divorce. Wayne asked for equalization and spousal support from Gerardo under the province’s Family Law Act (the FLA) and the federal Divorce Act (DA).

As a prerequisite to obtaining that divorce-related relief, Wayne had to prove they were actually married first. Gerardo claimed that the union between them was not a “marriage” under Canadian law.

The judge hearing the original motion disagreed and – in its judgment rendered recently – the Ontario Court of Appeal confirmed that decision. Emphasizing that the wording of the FLA and DA were to be interpreted in their entire context, and in their grammatical and ordinary sense in harmony with the scheme and purpose of the legislation, the Court of Appeal concluded:

The interpretation by the motion judge of the terms “spouses” and “marriage” is entirely consistent with the modern approach [to statutory interpretation] mandated by the Supreme Court of Canada [in a prior decision]. Her interpretation achieves one of the fundamental purposes of the DA and the FLA: it provides the parties with an equitable and certain process for resolving their economic issues arising out of the dissolution of their relationship. In contrast, the interpretation urged upon us by the appellant would result in the parties being effectively treated as legal strangers under the legislation and would force them to assert their economic claims through more limited and less predictable means, such as trust claims.

As a result, under the FLA two people who are in a relationship that is both formally and functionally equivalent to marriage may be considered spouses under that Act; likewise, they have the same standing for the purposes of the divorce legislation. The appeal was accordingly dismissed.

For the full text of the decision, see:

Hincks v. Gallardo, 2014 ONCA 494 (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.

How Long Does Child Support Continue in Ontario? – video

 
 

Wednesday’s Video Clip: How Long Does Child Support Continue in Ontario?

In Ontario, child support must be paid as long as the child remains a dependent.

In this video, few review how long child support continues and when a court, or parents, should consider stopping or terminating child support payments.

Can Dead Husband’s Kids Drag 90-Year-Old Widow’s Adult Children into Court?

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Can Dead Husband’s Kids Drag 90-Year-Old Widow’s Adult Children into Court?

In a recent Ontario case called Brash v. Zyma, the outcome hinged on certain statutory technicalities, but the question came down to this: Could the adult children of a man, who was on a second marriage at the time of his death, pull the second wife’s children into litigation, hopefully to get a court order that they must support her and thereby keep her from taking more from the Estate than the roughly $20,000 he had left her in the Will?

When they each married for a second time in 1990, Charles was 61 and Dorothy was 67. Charles had previously been married to another woman for 34 years, and had six children with her. Dorothy had four adult children of her own, and had been widowed for 15 years.

When Charles died in 2012, Dorothy was just shy of 90 years old. Her adult children were now all in their 60s. Charles left Dorothy $13,000 in his Will, plus almost $9,000 tied to the value of his home.

However as his wife and a “dependent,” Dorothy also claimed support from Charles’ estate under the provisions of the Ontario Succession Law Reform Act (SLRA). This was necessary because Dorothy was in poor health, had moved into a nursing facility even while Charles was still alive, and had assets of only $60,000 in account with one of her children. Her monthly expenses were said to exceed her income by up to $1,000 per month.

But rather than see Dorothy dip into their father’s Estate funds under the succession law provisions (which money would otherwise go to them), Charles’ own children brought an application to the court to have Dorothy’s three surviving children added to Dorothy’s court application. (Dorothy had declined to add them herself). Charles’ children did so on the basis that Dorothy’s offspring had a legal obligation under certain provisions the Ontario Family Law Act (FLA) to support their mother in light of her modest financial circumstances.

Charles’ children also claimed that given Dorothy’s age and health, she could provide for her own needs from existing resources, particular in light of what their father left her under his Will. Finally, they questioned the motives behind her SLRA dependent-support application: As the court put it, they “go on to say that this whole exercise is being managed by [Dorothy’s] children on behalf of their elderly mother and is nothing more than an effort by them to transfer a larger portion of the late [Charles’] estate from his children to them.”

The court’s jurisdiction hinged on the interpretation of these two competing statutes: the FLA and the SLRA. If Charles and Dorothy had separated before he died, the matter would be simple: Dorothy would be entitled to claim spousal support under the FLA, and under that legislation, the court would have the right to unilaterally add anyone to the litigation who possibly had an obligation to support her as well – which arguably encompassed Dorothy’s children.

As it happened, though, Charles had died, and that made Dorothy eligible for a support claim under the SLRA. She had brought her application under that legislation, which now governed. There were no equivalent provisions to those found in the FLA. Charles kids asked the court to make the same type of order, by analogy.

The court granted the order, and added Dorothy’s three remaining adult children to the litigation. Charles’ children were merely trying to draw Dorothy’s kids into the litigation because they might have an obligation to support her. The court was able to rely on the longstanding basic legal principle that the court should have all interested parties before it, in order to allow the court to properly adjudicate the matter on the merits.

For the full text of the decision, see:

Brash v. Zyma, 2014 ONSC 4066

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.

Elliot Vine Joins Russell Alexander as an Associate Lawyer

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Elliot Vine Joins Russell Alexander as an Associate Lawyer

Elliot joins Russell Alexander Collaborative Family Lawyers as an associate lawyer.  Elliot practices family law, including pre-separation legal advice, custody and access, support issues, separation agreements and property-related issues. Elliot resolves  conflicts in a quick and efficient manner.

Elliot will work in all three of our offices: Markham, Brooklin and the City of Kawartha Lakes. He graduated from Queen’s University in 2009 with a Bachelor of Economics where he earned awards for high academic achievement. Elliot completed his Juris Doctorate from Queen’s University, receiving his law degree in 2012. Prior to working at Russell Alexander Elliot practiced Family Law with a firm in Kingston and with a Certified Specialist in Family Law.

Elliot enjoys meeting new people and the challenge of getting the best possible results for his clients. He is an avid public speaker and loves to debate. Elliot also looks forward to developing a Collaborative Practice.

Elliot plays a wide variety of sports. He enjoys trying new restaurants, reading fiction and is interested in improving his ability to sail. After growing up in North York, Elliot is excited to serve clients in and around his new home.

Can Second Wife Foil Court Order Securing First Wife’s Support?

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Can Second Wife Foil Court Order Securing First Wife’s Support?

In Watkins v. Watkins – which essentially pitted the rights of a man’s first wife against those of his second one – the court considered whether it could encumber a matrimonial home, even if spouses were prevented from doing so.

In that case, in connection with his home the husband was ordered by the court to sign a collateral mortgage in favour of his first wife, from whom he was now divorced. This was intended as security for what he owed her for existing and future spousal support, child support, and legal costs.

However, because he was now married to a second wife – and even though the home was owned solely by him – it was considered a “matrimonial home” under the Ontario Family Law Act, and was therefore subject to the special rules governing its sale, disposition or encumbrance. In particular as I’ve written before, the second wife was legally required to give her consent to the collateral mortgage.

However, the second wife refused to do so, fearing that in the future the home might be sold under the collateral mortgage, thus jeopardizing the security that she and their child have. (Apparently, even though she did not own the home herself, she had put a lot of work into it). Without the second wife’s consent, the Land Registrar refused to register the collateral mortgage.

The husband brought a motion to the court, asking for it to dispense with the second wife’s consent and authorize the collateral mortgage registration in the first wife’s favour.

In granting the husband’s request, the court looked at the purpose of the Family Law Act: It was designed to limit what a spouse was allowed to do in terms of encumbering the home; it was never intended to foil a court’s ability to secure one spouse’s financial obligation to the other.

In this case, the court had itself created the husband’s liability in the form of the collateral mortgage, regardless of what the husband wanted. The order stemmed from the court’s own initiative and by virtue of a prior court order, and – in legal jargon – arose “by operation of law”. The husband had no intentions of his own in this regard.

With this in mind, the court was fully entitled to impose a charge on the home in the form of the collateral mortgage, as a means of enforcing the husband’s legal support obligations to the first wife. The second wife’s consent was accordingly dispensed with and the collateral mortgage was duly registered by court order.

For the full text of the decision, see:

Watkins v. Watkins, 2014 CarswellOnt 5287, 2014 ONSC 2506

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.

 

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