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Going to Family Court? Here Are Some Ploys and Excuses NOT to Try

Defense Set to Begin Arguments In Sandusky Trial

Going to Family Court? Here Are Some Ploys and Excuses NOT to Try

In the recent case of Seed v. Desai involved a situation where – yet again – the court was asked to resolve the conflicting or obfuscated stories of family litigants. In that case, the husband was obliged to provide full disclosure of his financial circumstances and income in order to determine the spousal and child support he was obligated to pay after he and the wife separated. The court found many problems with the husband’s evidence, among other things:

• He purported to provide financial statements, but they were virtually impossible for the court to make sense of; among other things, they intermingled not only his business and personal financial debts and affairs, but also those of his soon-to-be Ex wife.

• He also painted an overall picture of having to repeatedly borrow money just to keep his business and personal / family expenses afloat, to which the court remarked:

The information the respondent and his bookkeeper put before the court paints a clear picture of insolvency yet he states he intends to continue his business because it is the very best way he can provide for his family. He used colourful language to describe the hard work ahead to chip away at his debt, comparing it to “using a teaspoon to fill a crater”.

• He provided his income tax returns, but when viewed against the tally of his personal expenses, nanny salary, gifts and other discretionary items betraying a much higher standard of living, they would need to reflect a far higher declared income for him to be able to meet all of his expenses.

Concluding that the husband’s “explanation that he robs Peter to pay Paul to stay afloat seems implausible and unsustainable”, the court found there was no other conclusion but that the husband’s income tax returns under-stated his income for the years in question.

The Seed v. Desai case prompted me to take a glimpse back for some other family law cases in which a court was given lame or improbable excuses by one of the parties. It didn’t take long to pull up the following examples:

• In a case called E.A. v. F.A.S., the husband claimed that he couldn’t pay $10,000 in court costs that were being claimed by the wife, because he had recently been criminally convicted and was having trouble finding work. The court essentially decided that the husband was the author of his own misfortune: — he could not use his own criminal conduct as a shield to protect himself from having to pay full court costs, or to justify paying the wife a lesser amount.

• In Pisani v. Pisani, the father claimed that he had not paid child support for his three children, retroactive to the date of separation, because the mother had refused to give him a receipt for payment. The court called this a “poor excuse and one that is not countenanced by the court.”

• In Reyes v. Rollo, when the couple separated the husband, who the court described as having “a complex financial history about which he is knowledgeable”, was obliged to provide financial disclosure as part of the process of unwinding their affairs. He gave what the court called “weak excuses” for poor, incomplete and late financial disclosure, claiming that he was a “private person” and didn’t want to “bare his soul.” The court had no hesitation in rejecting the husband’s evidence whenever it conflicted with that of the wife.

For the full text of the decisions, see:

Seed v. Desai, 2014 ONSC 3329 (CanLII),

E.A. v. F.A.S., 2014 ONSC 4144 (CanLII),

Pisani v. Pisani, 2007 CanLII 56509 (ON SC)

Reyes v. Rollo, 2001 CanLII 28260 (ON SC),

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.

Hockey Night in Canada & Beer League Update: Implied Consent Does Not Include Savage Unprovoked Attacks

M~ SUN0308s Can Moore l1 Hockey Night in Canada & Beer League Update: Implied Consent Does Not Include Savage Unprovoked Attacks

Many of us Canadians either grow up playing hockey, or watching our kids play, or both. Given the nature of the game, we sign those mandatory hockey league Consent Forms knowing that injury to players is always a potential risk. (And few of us – even the lawyers among us – ever bother to actually read the densely-worded type on those Forms.) But what is the extent of the risk that league sports players are consenting to?

That is the legal question arising from the recent criminal conviction of an Ottawa adult recreational hockey player for aggravated assault in connection with an on-ice hit to an opposing player. The incident occurred during a regular season game between the Pirates and the Tiger-Cats in a non-contact, senior men’s recreational hockey league. In the last 47 seconds of the game, when the Pirates led by two goals, Tiger-Cats team member Gordon MacIsaac collided with Drew Casterson, a forward on the Pirates team. Caterson suffered a concussion, soft tissue neck and spine injuries, facial scars, and several broken teeth as a result.

The league rules provided that deliberate body contact – which expressly included an intentional body-check or bump to an opponent – was not permitted anywhere on the ice, and that league-imposed sanctions could follow. Casterson sued MacIsaac in the civil courts, claiming $600,000 in damages. The on-ice injury had impaired both his quality of life and his future earning capacity: He had been a committed athlete who played many sports including hockey, volleyball, skiing, running and Dragon boating, and prior to the incident he owned a business that concentrated on personal health and fitness for people with mobility issues.

While that civil claim has not yet reached the hearing stage, MacIsaac was also criminally charged and convicted with aggravated assault, and sentenced to 18 months’ probation for what the judge called a “deliberate blindside hit”. The judge found MacIsaac’s hit to Casterson had been in retaliation for a missed penalty call moments earlier, with about a minute left in the game in connection with a play at the blue line. In doing so, the judge conceded that courts are generally reluctant to impose criminal liability in the context of contact sports, and that a wide interpretation was often given to the scope of what was impliedly being consented to.

However, the judge confirmed a long-held legal principle that while players may consent to some bodily contact that is necessarily incidental to the game, they do not consent to savage unprovoked attacks that result in serious injuries. MacIsaac has now appealed the criminal conviction.

One of the pivotal legal questions will be whether Casterson impliedly consented in this case to the level of potential contact (and possible injury) that was inflicted on him by fellow players such as MacIsaac. In a broader sense, it also gives rise to the question of whether one player’s intentional infliction of serious harm on another – in pickup and league sports such as recreational hockey, soccer, lacrosse or football –is something that should be sanctioned in either or both the Canadian criminal and civil justice systems.

What are your thoughts?

For the full text of the criminal decision, see:

R. v. MacIsaac, 2013 ONCJ 787 (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.

Who Pays Child Support in Ontario? – video

 
 

Wednesday’s Video Clip: Who Pays Child Support in Ontario?

 

In Ontario, all parents have a legal responsibility to support their dependent children to the extent that they can. In this video we review who is responsible to pay child support and why.

Squabbling Spouses in Business Together – What Can a Court Do Pending the Divorce?

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Squabbling Spouses in Business Together – What Can a Court Do Pending the Divorce?

When a relationship is good, being in business together can be a fulfilling and financially-rewarding team venture. When things go bad, however, having a joint business can be a liability in more ways than one. The business assets sometimes end up being yet more weapons in the arsenal that former spouses can use against each other until the divorce is final.

In a case called Hackett v. Hackett, the married couple were partners in a cleaning business when they decided to split up. They entered into an agreement to determine how to deal with the business and its assets – consisting mainly of eight company vehicles – until the divorce.

But notwithstanding that agreement, over time things went from bad to worse between them. The wife accused the husband of taking $19,000 from the business bank account, of cancelling credit cards used in the business, of removing equipment and inventory, and of taking the license plates off the business vehicles. She said he also cancelled the insurance policies on the business vehicles without her knowledge, in what the court said was an obvious bid “to frustrate the applicant’s ability to manage the business”. His truer motivation, according to the court, was to secure certain payments that he believed the wife owed him under the agreement.

To counter these allegations, the husband accused the wife of taking money from the business bank account for her personal use, and of refusing to pay the draw from the business to which he was entitled. He said that the wife had also terminated the employment of the husband’s son, due to allegations of theft. (And perhaps not surprisingly, the situation between them continued to go downhill after that).

Various short-term court orders had been made preventing the husband from attending at the business premises and interfering with its operations. He was also ordered to return the license plates.

The court was asked to finally settle the matter of the business pending the divorce proceedings, with the wife asking for an order transferring the ownership of certain company vehicles from the husband’s to the wife’s name, so that she could carry on running the business without the husband’s interference. In dispelling the husband’s objections, the court observed:

Despite his indignation at the course of events, the [husband] may be viewed as his own worst enemy; complicating matters, exacerbating the problems, compounding issues, all without perceptible benefit to him and taking the focus off what he says the [wife] should and shouldn’t be doing. …

The [husband] says that the successful continuation of the business is very important to him but his actions seem inconsistent with this assertion. There is circumstantial evidence that he has been competing with the existing business.

In light of all the circumstances, the court agreed that reasonable steps needed to be taken to protect the business until it could be appraised and its value made available to both parties as part of the divorce. And while an order was issued transferring the vehicle ownerships to wife, she was prohibited from selling them without either the husband’s agreement or a court order.

For the full text of the decision, see:

Hackett v. Hackett (2014), 2014 ONSC 4257

 

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.

Is Four Years Long Enough for Wife to “Adjust” to Canada?

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Is Four Years Long Enough for Wife to “Adjust” to Canada?

After a divorce, the question of whether a former spouse is entitled to spousal support involves many factors and considerations: One of them is financial means of the spouse who is paying; the other is the level of economic self-sufficiency of the other spouse who would be receiving it.

In a recent Ontario case, one of the key questions for the courts was how long it should take a separate wife to “adjust” to Canada, to the point where she could work and be self-sufficient enough not to need her former husband’s financial support.

The couple had met on-line in 2002, and were married in Panama in 2004. The wife, together with her child from a previous relationship, moved to Canada in 2007 under the husband’s sponsorship. When they separated two years later, the husband was earning almost $80,000 per year, while the wife was unemployed.

On an interim basis pending their divorce, the husband was ordered to pay a total of $62,500 spread out over four years, mainly for spousal support.

However, as part of the later divorce proceedings the wife asked for spousal support beyond that initial 4-year period, claiming the husband should pay support to her until she could find a full-time job working 35 hours per week. The court described her position this way:

The applicant was self-sufficient before losing her job [in Panama]. After that she became dependent on the respondent. When the applicant arrived in Canada, her dependency on the respondent increased. She was living in a new country where she had no friends or family other than the respondent. The applicant was concerned about her son who spoke minimal English and was anxious to get him settled in his new life.

While conceding the wife’s significant dependence on the husband, the court pointed out that her current efforts to find work were not particularly persistent or focused:

Unfortunately, the [wife] has devoted time trying to upgrade her education rather than earning income. She is now focused on working as a teacher, but she has no idea if her credentials will be accepted by the College.

The [wife] has had ample time to adjust to living in Toronto. Her son is settled in school. They have been living in Toronto for almost six years. While I accept that she has been looking for work, her efforts have not been aggressive and focused. Her job search record shows that she has been emailing her resume. She has not recently relied on any job placement agencies to assist her.

Moreover, the court accepted the husband’s position that by this point, the wife could be earning at least $20,000 per year, for example by working part-time in a restaurant, store, or as a cleaning lady. In making its determination, and imputed this income to the wife accordingly.

In the end, and in light of all these circumstances, the court ordered the husband to pay an additional 12 months support of almost $1,000 per month, past the 4-year mark, after which time his obligations to her would end. In other words, a total of 5 years of support from the husband was adequate in the circumstances.

For the full text of the decision, see:

A. (L.M.) v. H. (P.) (2014), 2014 ONSC 1707; additional reasons at (2014), 2014 ONSC 3366

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

 

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, a Law Clerk with Russell Alexander Family Lawyers,   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.

OBA

 

 

 

Ontario Bar Association’s TECHxpo 2.0

I am looking forward to attending and presenting at the Ontario Bar Association’s TECHxpo 2.0 Conference in Toronto.

My co-presenters Dan Pinnington, Catherine Roberts I will be speaking on “60 Technology and Practice Management Tips” and I will be presenting “Practising Safely and Ethically in the Cloud” with David Whelan.

We will review the very latest updates, practical tips, hardware and software specifically designed for the modern law office.

Take advantage of the ample opportunities to meet practitioners from across Ontario and discover new ways to improve your practice.

The vendor expo will showcase a variety of products and services to support and enhance your practice.

You can also join us for the live webcast.

The conference is October 23, 2014, click this link to register.

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 we examine the concepts of collaborative practice and many of the benefits this process offers couples going through a separation and divorce in Ontario.

Can Husband Be Forced to Guarantee Soon-to-Be-Ex-Wife’s Mortgage?

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Can Husband Be Forced to Guarantee Soon-to-Be-Ex-Wife’s Mortgage?

When the husband and wife separated after almost 20 years, the wife continued to live in the matrimonial home while the husband voluntarily paid some spousal support. As part of a post-separation settlement of their affairs, the wife took title to the home which had been encumbered by a $100,000 mortgage with the bank, guaranteed by the husband.

The mortgage came up for renewal shortly after, and the bank offered a rate of 4 percent if the husband was willing to act as guarantor again. If he was not, then the interest rate would be 6.3 percent.

The husband refused to guarantee the mortgage, and the wife took him to court for an order compelling him to do so, and to do everything else necessary to cooperate in the mortgage renewal.

The court refused to make such an order.

First of all, there was some question whether the Ontario Family Law Act even authorized a court to make such an order against a non-titled spouse: Previous court cases relied on by the wife had involved situations where the spouse who was still living in the home would not have qualified for a mortgage without the other spouse’s guarantee.

This was not the case here. The wife remained eligible to renew the mortgage even without the husband’s participation, and even though her finances were admittedly strained because the husband had not paid support for almost six months.

In fact – and aside from the lower interest rate – there was no up-side at all to having the husband involved at this stage. This was not a situation where (in the court’s words) the home would be “wasted” if the husband did not step up as guarantor; in fact, the home would likely have to be listed for sale in the near future, given the wife’s equalization payment obligations to the husband.

With that said, the court did acknowledge the reality that the husband’s non-involvement in the renewal would mean the wife would be burdened by a higher monthly mortgage payment. By way of a court-ordered increase to the spousal support he was to pay to the wife, the husband was ordered to pay half the difference between the monthly mortgage payment with and without his involvement as guarantor. Given that the home was to be listed for sale soon, this adjusted support order would be subject to review by the court after 90 days.

For the full text of the decision, see:

Soulliere v. Soulliere (2014), 2014 ONSC 3768, 2014 CarswellOnt 9405, Gregory J. Verbeem J. (Ont. S.C.J.)

 

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.

 

Are High Income Earners Governed by the Spousal Support Advisory Guidelines?

Tamara Ecclestone  In Beverly Hills.

Are High Income Earners Governed by the Spousal Support Advisory Guidelines?

Few of us are “burdened” with the problem of being in a super-high income-earning bracket. But for those married individuals who are, and who decide to separate and divorce, a narrow but important question arises as to whether the Spousal Support Advisory Guidelines (SSAG) apply in the way they do to people earning a more “regular” income.

As we have written in the past the SSAGs are a tool used by judges (and lawyers) to help determine the appropriate amount of spousal support that should be owned by one spouse to the other (and there are separate calculations depending on whether the couple have children).

However, as the word “Guideline” suggests, the SSAGs are not mandatory, but rather are intended to be a starting-point from which adjustments can be made, depending on the circumstances.

The Guidelines effectively provide a staggered range of spousal support, with the upper limit of support being calculated based on the paying spouse’s income of $350,000.

So what happens when the spouse earns more than that? Is the spousal support amount intended to be capped? (And this begs the question, which is perhaps better answered another day: Does a recipient spouse really need more spousal support than what would be calculated at the $350,000 level?)

Court have established1 that the SSAGs – which are not legislation, but merely guides – do not automatically apply in cases where the paying spouse’s annual income exceeds $350,000; in other words, court are not constrained to use the SSAGs, even as a starting-point, when the paying spouse’s income exceeds this level.

However, if a judge does decide to refer to the SSAGs in making a ruling on support, the SSAGs do not impose any sort of cap on the amount to be awarded in cases where the paying spouse’s income exceeds $350,000.2 Rather, in these kinds of cases, the SSAGs can still be used as merely a starting-point for establishing a range of spousal support payable, but the judge must still consider the parties’ individual circumstances.3

Perhaps it’s an arcane point, but for those who are high-income earners, it can be an important legal point. When it comes to paying support that old adage seems rings true “the rich aren’t like you and me”.

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.

 

1 In a case called Myers v. Vickar, 2012 ONSC 5004 (Ont. S.C.J.)  at para. 74.

2 Elgner v. Elgner, 2010 ONSC 1578 (Ont. Div. Ct.)  at para. 13.

3 Denofrio v. Denofrio (2009), 72 R.F.L. (6th) 52 (Ont. S.C.J.) at para. 48; Cameron v. Cameron, 2013 ONSC 1192.