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Are You Litigating for the Right Reasons?

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Are You Litigating for the Right Reasons?

I was struck by a comment that appears in the recent Ontario decision in Scarrow v. Cowan, 2014 ONSC 955 (CanLII). The court, in setting out the basic facts in the dispute between separated parents, pointed out that they had a “very special daughter” together, who had been chosen for an elite European exchange program. In lamenting the fact that the father’s relationship with the 17-year old daughter had broken down entirely, the court declared the situation “undeniably tragic”. Even worse, not only did the father blame the daughter herself for this state of affairs, but he was going the extra step by deliberately hindering and obstructing the mother’s legitimate claims for child support. Among other things, the mother had been forced to go to court to try to obtain support arrears the father had not paid.

In this context, the court observed:

I cannot help but ask whether this motion would even have been brought had the [father] maintained the relationship that he should have had with [the daughter]; financial issues are often the only way that a parent with a failed relationship with a child can express his or her frustration.

This comment by the court prompted us to reflect on some of the things that we see motivating clients in the various decisions they must make in the context of managing their own family law matters.

On this blog we have previously written or discussed that some clients insist on using the family courts and dispute resolution process as a vehicle for revenge on their former spouses.

What’s Left?” : a situation where the child is alienated from the other parent, reference Harvey Brownstone and “That Toxic Tug-of-War”.

This kind of approach is never a good idea. The choice to “dig in your heels” and drag your former spouse (and often your kids as well) through needless motions and steps in the dispute-resolution process only means that the whole experience will only become unduly prolonged, not to mention unnecessarily expensive.

The solution is very simple: Avoid using the family process for hidden motives or nefarious purposes. Not only is this a waste of your time and money, but also the outcome – whether strategically, financially, or emotionally – is almost never as good as you think it will be.

For the full text of the decision, see:

Scarrow v. Cowan, 2014 ONSC 955 (CanLII) http://canlii.ca/t/g34rn

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.

 

Child Support in Ontario: Introduction to Child Custody – video


 

Wednesday’s Video Clip: Child Support in Ontario, Introduction to Child Custody

In Ontario, like other jurisdictions, both parents have a responsibility to financially support their children. For the spouse without custody, the amount of child support that must be paid is based on income and the number of children. In this short video clip, Shelley, a senior family law clerk at Russell Alexander Family Lawyers, talks about custody and answers questions many people have about child support.

Accountant Was the “Last Man Standing” – Court Orders Questioning of Non-Party

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Accountant Was the “Last Man Standing” – Court Orders Questioning of Non-Party

Judges hearing family law matters are granted very wide-reaching powers by legislation, in order to ensure that justice can be done for the litigants. Among those is the power to order that non-parties – meaning individuals who are not directly involved in the litigation as either plaintiff or defendant – can be questioned or forced to disclose information or documents that might be relevant to the trial or proceeding.

In Ontario, this power is specifically granted by the Family Law Rules, but it is not unfettered: Judges must still consider the circumstances and weigh certain factors, including potential delay, any unfairness to the party requesting it, and whether the information is easily available elsewhere. The court can then exercise its discretion in determining whether to make an order which essentially drags a third-party into the family litigation.

This was precisely the court’s task in a case called Elgner v. Elgner. There, the couple separated after a traditional marriage lasting 33 years. The husband was 63, and the wife was 62. The couple were wealthy and there were multiple family law proceedings; at one point the court had temporarily ordered the husband to pay the wife $110,000 per month in support.

A key issue in the litigation was the husband’s attempt to exclude $86 million from his net family property. He claimed that they were corporate rather than personal funds that had been generated as part of a corporate buy-out and estate freeze that took place back in 1993, involving a company with which he had virtually no involvement.

This meant that determining the nature and source of that disputed $86 million was of chief concern to the parties. Unfortunately – and aside from the husband and wife themselves – the only person who was still alive and available to give evidence on that point was the accountant who had been involved in the transaction. (The lawyer who acted on the estate freeze, for example, had died and the wife was in the process of bringing a court motion to obtain access his computer hard drive). Even though the accountant was not part of the proceedings between the couple, the wife wanted to question him.

She therefore asked the court for an order compelling him to submit to questioning. The court agreed with her request.

Even though the accountant would be giving evidence based on his recollection from 20 years ago, the proposed exclusion of the $86 million was the single most contentious and largest financial issue in the case. He was an important factual witness and, under the circumstances, it would be unfair to force the wife to proceed with the family litigation without allowing her to question him.

For the full text of the decision, see:

Elgner v. Elgner, 2010 ONSC 5238 http://canlii.ca/t/fn2q4

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.

Allegations of Abuse in Family Law Cases – An Ontario Judge Speaks Up

 

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Allegations of Abuse in Family Law Cases – An Ontario Judge Speaks Up

In a post a few weeks ago, “Some Words of Wisdom from an Ontario Family Judge” , I quoted from the judgment of Mr. Justice Conlan in A.A.-L. v. M.L., who lamented over the “sad case” that he was asked to hear in his family law courtroom.

In a second decision, rendered only a few weeks earlier, a different Ontario judge offers some equally-cogent comments about the nature of abuse allegations between separated and divorcing spouses.

In Abdelhamid Tayebi v. Salima Oukachbi, Mr. Justice H.M. Pierce considered a couple, originally from Algeria, about whom the judge said it was “doubtful that they were ever happy in their marriage”. The father was a professor and the mother was a physician; however the court pointed out that “[u]nfortunately, intelligence and good judgment do not always go hand in hand in family matters”.

The parents’ separation had been bitter, with both of them refusing to move out of the matrimonial home. Moreover the mother specifically asked the court not to order joint custody parallel parenting, and the father essentially concurred, adding that the hostilities between him and the other made it impossible. But of particular concern to Justice Pierce was the mother’s allegation that the father had been abusive towards her and their child.

In this context, Justice Pierce reflected on the nature of abuse allegations in family cases:

The difficulty with the term “abuse”, as it is used in affidavits filed in family law cases, is that it is used subjectively. It is an emotionally coloured term. It is not limited to describing physical violence but may be also be used to describe a range of conflicts including arguments, differences of opinion or values, or hurt feelings. For example, one partner may consider himself or herself as a good money manager while the other partner may perceive close budgeting as coercive control. One partner may consider an end-of-day inquiry about how the other spouse’s day went as an indication of love or interest while a disaffected spouse may deem the inquiry intrusive and controlling.

Allegations of abuse may be a symptom of the failure of a relationship. Blame is an inherent part of the allegation. Sometimes it is wholly warranted; other times it is not. When parties are not communicating, any slight or criticism is magnified. There is a tendency to minimize the other spouse’s good qualities and maximize the bad. Warring spouses are rarely in a position to step back and evaluate the other’s behaviour with objective eyes.

Nor are they able to critically assess their own behaviour. That is what has occurred here. The parents were ill-matched from the start and the history of their marriage is one of confrontation. The final chapter in the conflict will be written over who gets the children.

What are your thoughts about Justice H.M. Pierce’s comments?

For the full text of the decision, see:

Abdelhamid Tayebi v. Salima Oukachbi, 2013 ONSC 6960 (CanLII) http://canlii.ca/t/g1s0x

A.A.-L. v. M.L., 2013 ONSC 7269 (CanLII) http://canlii.ca/t/g20s2

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 need for a support system – video

 

 

Wednesday’s Video Clip: The need for a support system

In this short video Russell Alexander discusses the importance of having a support system in place when you go through a divorce.

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

 

Or become a Fan and join our discussion on Facebook at http://www.facebook.com/RussellAlexanderFamilyLawyers

 

Tired of working long hours and getting stuck in traffic?

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Tired of working long hours and getting stuck in traffic?

Tired of working long hours and getting stuck in traffic?work exclusively on divorce law and family related matters, including custody, spousal support, child support and separation. Our lawyers, law clerks and staff members employ a team-oriented approach to serving our clients

We are seeking an Associate Lawyer to join our team. A minimum of 2 years post-call experience in family law is required. Compensation will include a salary plus incentive based compensation. Our offices are located close to the GTA in Whitby, Markham & the City of Kawartha Lakes.

Tired of working long hours and getting stuck in traffic? We promote a work life balance by focusing on our families and giving back to our communities.

Apply in confidence to: ria@russellalexander.com

74-Year Old Mine Worker Hides Almost $175K in Salary – Should He Pay Retroactively?

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74-Year Old Mine Worker Hides Almost $175K in Salary – Should He Pay Retroactively?

In a recent Ontario case, the court had to grapple with deciding whether an elderly husband who had made an unusually high income in one year – but who was now living on very limited means in a basement apartment – should have to pay retroactive support to his unemployable wife.

The couple was married for almost 20 years. At the time of their separation, the wife was 51 and the husband was 74. Since that time, the wife had developed various medical issues including possible Parkinson’s disease, which likely rendered her unemployable. She was currently living with and taking care of her elderly father, doing the cooking, laundry, cleaning. She had no pension and no savings to speak of, and lived very frugally.
The parties reached a simple negotiated separation agreement requiring the husband to pay about $800 per month to the wife. It was based on his declared income of about $36,000 per year.

However, about a week after signing the separation agreement, the husband received a job offer to temporarily work the “tool crib” at the local Mine. However, the position lasted longer than initially expected and for the year 2012 he earned almost $173,000 including his pension.

The wife learned of the husband’s job indirectly, because (as the court put it), they had “the same circle of friends. Her lawyer’s request to the husband for financial disclosure went unanswered, and the wife was forced to apply to the court for retroactive spousal support as part of their divorce.

The court considered the various factors that allowed it to order retroactive spousal support – including (among other factors) the wife’s past need and the husband’s ability to pay, as well as the underlying basis for support, any delay in claiming it, any undue hardship to the support-paying husband, and also any blameworthy conduct on his part.

In this case, the husband had an obligation under the separation agreement to disclose any change in his financial circumstances within five days. The wife had asked the husband for such disclosure but he had ignored her lawyer’s requests. She was accordingly left with no alternative but to go to court.

There was also evidence that the husband had reckless spending habits. The court described it this way:

It became clear during the course of the evidence that the [husband] has never met a dollar that he did not care to spend. Even after being unemployed for a considerable period of time and earning a substantial income in 2012, the [husband] did not see fit to put aside any money for himself let alone for his estranged spouse. In his words, he worked in a “high paid trade and they spent a lot of money on trips and other things”. …

Finally, the husband also claimed to be heavily in debt, but had no proof. The court added that the husband “went on to say that the balance of the money was spent on lifestyle expenditures for meals and restaurants, buying rounds in the union hall and some gambling in Sault Ste. Marie.” His lack of financial disclosure was also “worthy of criticism”, it found.

Nonetheless, after evaluating these circumstances, the court added that the now-76-year old husband was living in his sister’s basement apartment, and would never again be employed in any meaningful way. His assets consisted of an old truck worth about $2,000, and about $37,500 per year in pension.

This being the case, he could not now and would never be able to afford to pay the retroactive spousal support that was being claimed by the wife. The court accordingly declined to make the order. (However, in light of other circumstances, including the terms of the separation agreement, it did order the husband to pay the wife about $1,000 per month, going-forward).

Should the husband have been ordered to pay up retroactively, in this case? What are your thoughts?

For the full text of the decision, see:

Dufour v. Dufour, 2014 ONSC 166 (CanLII) http://canlii.ca/t/g2nh8

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.

Parenting Coordinators Are Still a Good Idea … But the Court Declines to Force It

 

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Parenting Coordinators Are Still a Good Idea … But the Court Declines to Force It

A few weeks ago, I talked about Parenting Coordinators, and their increasingly important role in Ontario family law. Couples in dispute on certain minor issues relating to parenting time, access schedules, the management of a child’s health care, religious and educational instruction, and general communication between parents, can be referred by a court to a Parenting Coordinator who can assist with the resolution.

However, the recent Ontario case called Varcoe v. Varcoe shows that courts can only go so far in forcing or even encouraging parents to avail themselves of this valuable dispute-resolution resource.

In that case, the parents had been to court to try to determine their various issues relating to custody of and access to their children. However, they went back to court because resulting court order neglected to address one of the items that the mother requested – specifically that the father should be forced to sign a Parenting Coordination Agreement submitted by the proposed Coordinator. The use of a Coordinator was one of the items the parents had agreed to in their Minutes of Settlement; however in making its subsequent order based on those Minutes, the court had incorrectly assumed the issue was abandoned.

The mother indicated that she had already provided the necessary “paperwork” to the proposed Parenting Coordinator as required, but the father had not done so. She therefore asked the court to order the father to do so within five days.

The court declined to order the father to submit his paperwork and sign. The court explained that the material the mother had filed with the court was deficient; most notably she had neglected to file the Parenting Coordination Agreement itself and did not state how long the father had been in default of his negotiated obligation to sign it. There was also nothing to suggest that there was some immediate crisis concerning the children that mandated the intervention by the chosen parenting coordinator.

Instead, the court pointed out that if the father was refusing to sign the Parenting Coordination Agreement then this amounted to a straightforward breach of a prior court order, for which the mother had other established procedural remedies at her disposal, including bring a motion to strike the father’s pleadings entirely. The court would not force the father’s hand in this case.

For the full-text of the decision, see:

Varcoe v. Varcoe, 2014 ONSC 328 (CanLII) http://canlii.ca/t/g2qpw

See also related decision:

Varcoe v. Varcoe, 2014 ONSC 1162 (CanLII) http://canlii.ca/t/g3rnl

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.

Client Testimonial about Russell Alexander Collaborative Family Lawyers – Video


 

Wednesday’s Video Clip: Client Testimonial about Russell Alexander Collaborative Family Lawyers

In this short video our client Wendy discusses the services, support and assistance she received at Russell Alexander Collaborative Family Lawyers.

Thank you for your support and kind recommendation Wendy. From the all our staff and lawyers we wish you the very best.

At Russell Alexander Collaborative 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.

 

Indifferent Father Applies for Joint Custody So He Can Get a Student Loan

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Indifferent Father Applies for Joint Custody So He Can Get a Student Loan

The parents were together for about six years and had three children together before they finally separated in 2008. Afterwards, the mother stayed in Toronto while the father moved 400 km away to Sudbury in to start an education program. He saw his children only about once a month while he embarked on his studies, and was ordered to pay support to the mother, who had been the primary caregiver for the children since they were born. But even before the move to Sudbury, the father had been in and out of the children’s lives for several years; the last time he had lived with any of the children for any period of time had been more than five years earlier.

However – several years after their split and rather out-of-the-blue – the father applied for joint custody of the children. His reason for doing so was not typical: he wanted additional funding from the Ontario Student Assistance Program (OSAP), and if he was awarded joint custody of the children, he would be eligible to more money from that program. In fact, he had previously pressured the mother to sign an OSAP application that falsely stated he had joint custody of the children.

After considering the parties’ evidence the court was conclusive: this was simply not a case for joint custody.

Not only was it impractical and unrealistic for the father to have joint custody when he lived in Sudbury, but he had also been physically abusive and violent to the mother during the course of the marriage. Even now after they had been separated, their relationship was filled with conflict and volatility, and the police had been called several times.

(The court also observed that, in presenting their respective positions to the court, neither of the parties had focused their evidence on the needs of their children; the father, for example, kept referring to HIS so-called “need” to see the children.)

In deciding to pursue studies in Sudbury, the father had effectively chosen a long-term status quo that involved the children living with the mother while he lived far away. With that said, the court allowed him to have access on a specified schedule, while ordering that custody remain with the mother.

For the full text of the decision ,see:

Obodoechina v. Ayetor (2013), 2013 ONCJ 738, 2013 Carswell Ont 18556, Carole Curtis J. (Ont. C.J.) [Ontario] http://canlii.ca/t/g2kwv

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.