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Jan 26

Validity of Same-Sex Marriage/Divorce is a Tempest in a Teapot

Validity of Same-Sex Marriage/Divorce is a Tempest in a Teapot

Recent Canadian newspaper articles have covered the so-called “controversy” over same-sex marriage, and more particularly the issue of divorce for same-sex couples who were legally married in Canada. The media coverage included accusations that the government had done a “legal about-face” and a “reversal of federal policy” on the issue of same-sex unions.
The truth is, there is no “controversy” at all.

Rather, the media has effectively misunderstood the legal issues that arose out of the divorce petition that was filed recently in a Canadian court by a lesbian couple.  Although they live in another country, in 2005 they had availed themselves of Canada’s legalization of same-sex marriages and had come here to get married.   Six years later they concluded that the relationship wasn’t working, and they now wished to divorce here as well.  (The parties lived in Florida and England.   However – unlike in Canada – since neither of those jurisdictions recognized gay marriages, the couple could not get a divorce there).

The problem was that the couple had learned they could not divorce in Canada, because they did not meet the one-year residency requirement that was imposed by Canadian law on all couples, whether gay or not.   More importantly, they also did not meet the second requirement for a Canadian divorce:  that their marriage was legally recognized in their home countries.

As it happens, their marriage was not formally recognized in the place the couple did live (Florida and England again), so the thinking was that the Canadian court could not grant a legal divorce either.

This left the couple in an apparent legal Catch-22.

Unlike some of the inflammatory news reporting that has surrounding this quandary, none of this represents a change in government policy; rather it’s merely an unusual situation in which the application of and interplay between the laws relating to marriage that are set by individual countries have given rise to a minor “black hole” in one specific case.

Every country (in this case: Canada, England and the U.S.) will establish its own laws relating to marriage and divorce.   Sometimes legal difficulties do arise when a couple marries in one country, then chooses to divorce in another.  The problem is further compounded when parties marry in a country that they don’t actually live in for most of the time (for example, think: “quickie Vegas wedding”).

As applied to this case, the law states that the validity of the lesbian couple’s marriage is to be determined by the laws of the place each of the spouse’s place of residence before getting married, i.e. Florida and England.   So while Canada recognizes gay marriage, these other countries do not and they happen to be the jurisdictions in which the couple lives.   The resolution of the issue from a strict legal standpoint still has to be determined by the court hearing the divorce application.
These explanations as to the legalities may do little to assuage the public concerns raised by hasty and precipitous media reporting.   Moreover in the broader sense the matter will soon be put to rest, as the federal Justice Minister has assured Canadians that government will be changing the law to confirm that existing same-sex marriages are deemed valid.

But there is really no legal “controversy” or “policy reversal” at play here.  Still, it has been interesting to watch the media try to stir one up.

To see the full-text of the newspaper article referred to:

http://www.theglobeandmail.com/news/politics/ottawa-does-about-face-on-same-sex-marriage-for-non-canadians/article2299574/

 

 

Jan 25

Wednesday’s Video Clip: Common Questions About Child Support


 

In this video Russell discusses common questions lawyers are asked about child support. Topics include hardship and the process for reducing child support, child support for incomes over $150,000, the obligations of step-parents, medical and dental insurance, and what information is needed to determine child support.

We hope you find our video informative.

To learn more about child support visit our website at www.russellalexander.com or join us on Facebook at http://www.facebook.com/RussellAlexanderFamilyLawyers

Jan 24

Facebook, Privacy, and Family Litigation: A Few More Points to Know

Facebook, Privacy, and Family Litigation;  Facebook as a Source of Evidence in Family Law: Part 5

In several recent articles I have discussed the increasingly-important role that Facebook (and other social networking sites) can potentially play in family litigation.  Although I have discussed its use in several different contexts, one of the primary uses – or misuses – of Facebook information occurs where one party uses photos and information found on another party’s profile to undermine his or her legal position in a family dispute.

In this context, the existence of Facebook has given rise to several evidentiary issues, including the question of whether and to what extent opposing sides of a litigation dispute can demand access to Facebook information as part of the normal discovery procedure.  

This has arisen recently in a few insurance cases, both from Ontario and other provinces.  (And the evidentiary legal principles derived from those cases have equal applicability to family law matters).    The cases each involved plaintiffs who had been victims of motor vehicle accidents, and had sustained injuries which affected their quality of life and their ability to engage in physical activity.   They were suing their insurers for their damages.  
In each case, the courts had to consider the right of the insurer to have access to the plaintiffs’ Facebook photos, and the evidentiary value of that information.  

In one case called Leduc v. Roman, the plaintiff had posted potentially-relevant photos of himself in the private portion of his Facebook profile only (i.e. the part visible only to his “friends” to whom he had deliberately granted access).   The question was whether the court should grant the insurer access to these.   It held that an individual user’s Facebook “privacy settings” were irrelevant to the court’s ability to order the information and photos produced.   The mere fact that the plaintiff was willing to “share” his photos and other personal information with the public via a social networking website – even if only to a limited pool of “friends” – meant that it was reasonable for the court to conclude that there would be relevant information on the quality of life that the plaintiff was enjoying post-accident.

In Sparks v. Dube the question was whether a court could make a preservation order to pre-empt the removal of Facebook evidence.  There the plaintiff – despite claiming that her range of physical activity was limited due to the car collision – had posted post-accident photos on Facebook showing her engaged in various adventure activities such as “ziplining”.   The insurer had discovered the photos and was concerned that the plaintiff would remove them prior to trial.  (Indeed, this precise thing had happened in another case called Kourtesis v. Joris:  before the court could make an order granting the insurer access to the incriminating photos, the plaintiff had taken them down from Facebook, and they could not be recovered.  They were therefore lost as evidence.)  The court crafted a solution which essentially involved interjecting an impartial third-party lawyer to carry out the necessary tasks:   it ordered that the lawyer representing the injured plaintiff should himself get an independent lawyer who would serve the plaintiff with the order to download all her private and public Facebook materials; moreover the plaintiff was specifically disentitled from receiving any advance notice of the order that would be served on her.

Finally, the issue of the precise scope of such a preservation order came up in the decision in Schuster v. Royal & Sun Alliance.   There, the insurer had asked the court for an injunction – without giving the plaintiff/accident victim any notice whatsoever– which would not only ensure that the Facebook evidence was preserved, but which would also force the plaintiff to hand over her Facebook username and password, thus giving the insurer full access to both the public and private portions of her profile.   The court refused to go so far on an injunction-without-notice basis, since it would allow the insurer to go on a “fishing expedition”.  Instead it ordered the plaintiff to simply give the insurer a list of the documents/information that could be found on her profile.  The relevancy of each would be determined by the court at a later date.   (This principle was followed in another recent Ontario case called Re McDonnell.)

Collectively, these cases give rise to several important points for family law litigants:

• Any information on Facebook or other social networking websites is potentially vulnerable to being produced in a court action.     This includes photographs, commentary and videos.

• The location of the information – i.e. public or private profile – is irrelevant.  It is all subject to being ordered produced by a court, if it is potentially relevant to the litigation.

• A court may potentially make such a preservation order without giving the other party any notice; this serves to prevent the removal of incriminating, embarrassing or inappropriate information before the court order can be carried out.

• However, this does not mean that party with the order will be handed the other party’s username and password, and given carte blanche access to his or her Facebook profile; rather, the legal relevance for litigation purposes of the information contained on it will still have to be examined, just like in any other trial.

For the full text of these decisions, see:

Leduc v. Roman, 2009 CanLII 6838 (Ont. Div. Ct.)

Sparks v. Dube, 2011 NBQB 40

Kourtesis et al. v. Joris, [2007] O.J. No. 5539 (S.C.J.)

Schuster v. Royal & Sun Alliance Insurance Co. [2009] O.J. No. 4518 (S.C.J.)

Re McDonnell, [2011] O.J. No. 5689 (S.C.J.).

 

 

Jan 23

Should you be able to sue people who creep your Facebook page?

Should the court extend the right to sue for damages for invasion of personal privacy to suits against people who creep others on Facebook and other social media?

What do you think? Read our responses or submit your own comment.

Become a Fan and join the discussion here: http://www.facebook.com/RussellAlexanderFamilyLawyers

 

 

Jan 19

Top Five Points on the Law Relating to Children Born Outside of Marriage

Top Five Points on the Law Relating to Children Born Outside of Marriage

In Canada, it is no secret that common-law relationships abound.   Moreover, even those couples who have children together do not always take the formal step of getting married in a civil or church ceremony.   This gives rise to questions about whether the law treats such children born “out of wedlock” (as they used to say) in the same manner as the children of married parents.  

Here are the top five legal points about the law relating to children born to parents who have not legally tied the knot:

1) Legal status.

Whether the parents are married or not – and whether the child is being raised by a single mother, by parties in a common-law relationship, by same-sex parents, or some other situation altogether – at law there is no difference in the status or rights of such a child as compared to a child born to married parents.

2) Registration of birth.

First of all, Ontario’s Vital Statistics Act requires all “births” – which are defined simply as “the complete expulsion or extraction from its mother” which results in a live birth – to be registered within 30 days.   This registration is required to be effected by “the mother and father, or either of them”.  There is no stipulation that the parents have any particular marital status when the registration takes place.

Next, the surname that will be given to the child at the point of registration is subject to various rules.  Specifically, if both parents are certifying the child’s birth, they may agree to give the child either of the parents’ surname, or else both names hyphenated or combined. If the parents do not agree, however, then the child is given the parents’ surname (if it is the same), or a surname that is hyphenated or combined in alphabetical order.  There are additional rules to cover various other permutations.

Finally, in the event that an application is later made to change the child’s name from the one that was given at the time of birth, additional legislative requirements must be adhered to by the person making the application.

3) Establishing parentage

The Ontario Children’s Law Reform Act provides that “any person having an interest” may apply to the court for a declaration that they are the mother or the father of the child (as the case may be).   Parentage is established by assessing evidence on the “balance of probabilities”; although in the case of establishing paternity there are certain presumptions that apply.  

For example, and unless the contrary is proven, a man is recognized as a child’s father where he is married to the mother at the time of the child’s birth, or else he marries the mother after birth and acknowledges that he is the natural father.  The Act sets out several other scenarios which give rise to a rebuttable presumption of paternity.

4) Custody and access.

In situations where the parents of a child are not married, there is no automatic presumption that the mother will get custody of that child.

Instead, the Children’s Law Reform Act specifically provides that the father and the mother of the child are equally entitled to custody.  As a practical matter, this means that not only are the parents equally given the relevant rights and responsibilities, but they are also obliged to exercise those rights and responsibilities in the child’s best interests.

It should be noted that in cases where the parents of the child live separate and apart but the child lives with one of them with the other’s consent, the other parent’s right to exercise custody is suspended until a separation agreement or a court order provides otherwise.  However, the non-custodial parent still retains an entitlement to have access to the child; this includes visitation rights, as well as the right to make inquiries / be given information as to the health, education and welfare of the child.

5) Child support

Simply put, the obligation of a parent to support a child is wholly unrelated to the question of whether the parents are legal married to each other.  Under the Ontario Family Law Act, every parent has an obligation to provide support for his or her minor child, to the extent that the parent is capable of doing so.  The obligation to provide support ends only if the child ceases being a minor, or if the child gets married.

For the full copies of the relevant legislation, see:

Children’s Law Reform Act, R.S.O. 1990, c. C.12  http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90c12_e.htm

Family Law Act, R.S.O. 1990, c. F.3  http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90f03_e.htm#BK37

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

 

 

Jan 18

Wednesday Video Clip: Ontario Wills 101: Issues to Consider Before Meeting your Lawyer

 

Ontario Wills 101: Issues to Consider Before Meeting your Lawyer

In this law video, Rita describes what a will is, how to prepare a will and the steps you should take once you have your will in place.  We hope you find our video informative.

To learn more about child support visit our website at www.russellalexander.com or join us on Facebook at http://www.facebook.com/RussellAlexanderFamilyLawyers

 

 

Jan 17

How Courts Deal With Unexpected Spousal Support Needs After Separation

How Courts Deal With Unexpected Spousal Support Needs After Separation

In the recent decision in Fyfe v. Jouppien, the Ontario Superior Court of Justice addressed an important issue: how to deal with a situation where both parties were self-sufficient at separation – i.e. there was no spousal support “need” – but where one of them later becomes disabled and unexpectedly requires spousal support afterwards. In the judge’s words, the case raised the issue of how courts “should balance the obligations that marriage entails with the natural wish on the part of spouses to move forward with their lives, free from the threat of unforeseen support obligations in the future.”

The fact scenario involved a couple who had started living together in 1981, got married five years later, and separated almost 20 years after that. At the time of separation, both parties were financially self-sufficient, though the husband had continued to pay for certain home expenses, while the wife paid for the children’s basic daily living expenses and those related to school.

However in 2007, the husband was diagnosed with cancer and had to rely on disability benefits. Faced with this unexpected financial need, he claimed against the wife for temporary spousal support.

In considering the matter, the court first reviewed the legislative framework for the granting of spousal support, which takes into consideration the “condition, means, needs and other circumstances of each spouse, including the length of their cohabitation, the function they each performed during that period, and any order, agreement or arrangement they had in connection with support. It also concluded that this was a situation involving “non-compensatory” support, meaning support that is designed address the reasonable needs of the spouse, rather than create a fair distribution between spouses on marriage breakdown (which is known as “compensatory” support).

Then, the court reviewed the evidence in this case: On the one hand, the husband did have a very limited income, was receiving significant help from his father (by living with him rent-free) and had about $85,000 in debt. However, the court concluded that the husband was not being forthright about the amounts he was receiving in disability benefits each month. Moreover, the husband had significant assets to his name, for example the spouses’ former matrimonial home and all of its contents (although the court found he had submitted figures that underestimated its value).

In contrast, the wife had very little: she had debts totally almost $61,000 arising mainly from the costs incurred since separation for the children’s daily living expenses. Simply put, she had virtually no ability to pay the support the husband was requesting. Moreover this was a situation where the husband’s disability had arisen post-separation, and had not been foreseeable at the time of separation.

The court reviewed a number of similar Ontario cases, and concluded that previous courts had taken a variety of approaches. The court wrote:

The foregoing review of some of the noteworthy cases dealing with the issue of need arising post separation since [the Supreme Court of Canada decision in] Bracklow reveals that the courts have been struggling with the issue, attempting to balance considerations respecting the expectations that arise within marriage with the concern that a spouse should not become an insurer for life for their former spouse’s future misfortune that is unconnected to the marriage or its breakdown.

The court concluded that in every case there were several factors and considerations at play, namely:

• Whether there is evidence to counter the presumption that the parties expected mutuality and interdependence from the marriage relationship;

• Whether the parties expected to continue to be “safety nets” for each other in the event that there was post-separation “need”, and if so, for how long;

• What has occurred during the passage of time, specifically how the parties have worked toward the objective of self-sufficiency;

• The presence or absence of a “clean break”; and

• The duration of the marriage.

The court also stated that situations involving an unexpected and intervening disability – as in this case – could be viewed with a “unique lens”.

Applying all of these principles and legal considerations, the court’s conclusion was essentially based in practicality: it found that the husband in this case had made out a case for entitlement to spousal support, but the wife simply did not have the means to pay it. His motion was accordingly dismissed.

Still, the judgment is important because the court gives full consideration to this kind of not-so-uncommon circumstance. For the full text of the decision, see:

Fyfe v. Jouppien, 2011 ONSC 5462 (CanLII)  http://canlii.ca/t/fn3lq

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

Jan 16

Will the recent sinking of the Costa Concordia cruise ship in Italy dissaude you from future cruises?

These enormous ships seem almost invincible with their immense size, modern technology and professional crews.

It is hard to image that one could run aground or sink in this day and age. Will the sinking of the Costa Concordia prevent or discourage you from taking cruises in the future?

Read our responses or submit your own comment.

Become a Fan and join the discussion here: http://www.facebook.com/RussellAlexanderFamilyLawyers

Jan 12

Where in the World is “Home”?  Residency Issues in Family Law

Where in the World is “Home”?  Residency Issues in Family Law

We live in a fast-paced society where new experiences are easily brought to our doorstep via the internet.  And where those who prefer to experience the world first-hand can experience greater opportunities for travel and mobility than ever before.  For this latter group, determining where a person legally “resides” can become complex, as a recent Ontario court decision illustrates.

The spouses were married in California in 1988.   The wife was a citizen of Spain, who held both Canadian and U.S. citizenship as well.  The husband was a sea captain, and apparently moved around a great dea.  After they married, they had four children together, two of whom were born in Spain, with the other two being born in the U.S.

In 2005, the couple bought a condominium in Florida.  The husband lived there in 2008 so that he could accept an on-land teaching position.  The wife and the four children moved there to join him in early 2009.
In the summer of 2009, the husband’s father took ill with a terminal disease, so the husband moved back to Toronto to be near him.  The wife and children followed soon after, and moved into the ailing father’s Toronto condo. Unbeknownst to the wife, however, title to it had been transferred to the husband by this point.

Marital problems between the couple started to brew in late 2009, around the same time the husband’s father passed away.  Eventually, the wife and the children moved into a shelter and stayed there until summer of 2010, when a court order was granted giving the wife permission to move with the children to Florida.  Meanwhile, the husband transferred title to the Toronto condo over to his mother.  

Against this complex background, the wife brought a motion to have the court set aside that transfer, and to declare the Toronto condo a “matrimonial home” for the purposes of the Family Law Act, so that it could be sold and she could obtain about $54,000 in legal costs that was owing to her from the proceeds.

Two geographical questions arose:  

1) whether an Ontario court or a Florida court should hear the issue involving the Toronto condo; and

2) whether the parties’ divorce could be granted in Ontario, given the requirement under the Divorce Act that one of the spouses “has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”

By this time, the wife had begun child custody proceedings in Florida.  Eventually, the parties agreed to have all issued litigated in Ontario, but when it came time to serve the husband with the necessary court documents, he showed his address for service being in Florida.

As part of the legal wrangling as to which court (Ontario or Florida) had jurisdiction in connection with the parties’ divorce, the question arose as to whether the husband was “ordinarily resident” in Ontario for at least one year prior to the commencement of the proceeding.   The husband’s affidavit and other evidence on this point was all over the map (pun intended):   he deposed that he had returned to Florida in July and continued to return to Canada to visit his mother periodically.   However, the court found that this was inconsistent with the husband’s earlier assertion that he had already moved out by June.    In yet another set of court documents, the husband claimed that he had still been living in Ontario in July of that same year.   In one affidavit, he swore that he was using his father’s condo at some point, but that he was using a drop box in Florida as his address for service.  Sworn statements contained in various other affidavits had the husband living at three different Florida locations in July.  A September affidavit had him living in the Toronto Condo.

The wife, on the other hand, gave evidence that the husband never moved to Florida at all, and had only visited the children there once in July, at a park, and twice briefly in August.

Meanwhile, the husband asserted that in terms of his custody plans, he intended to have the children live with him in Canada; as an alternative he would move them permanently to Florida.

The court found that the phrase “ordinarily resident” embodied the concept that the person’s customary mode of life had to be examined; it did not cover a person’s special, occasional or casual residence.  This took into account the ordinary mode of living, and its “accessories” in terms of social relations, interests or conveniences at that particular location.

In this case, the husband was “ordinarily resident” in Ontario for the 12 months immediately prior to the wife’s divorce claim.  Noting that the husband’s own evidence on the point was inconsistent, and that he had failed to provide any documentation (such as driver’s license or proof of health coverage) which would show that he had moved to Florida.  Furthermore, his most recent affidavit asked the court to allow him to live in Ontario with the children.

Ultimately, the court found that – despite having visited or stayed in Florida on a few occasions in 2011 – the husband was ordinarily resident in Ontario at the material times.

As an aside, the court also had to contend with the husband’s conflicting and contradictory evidence relating to the date of the parties’ separation.   The husband’s evidence on this point was scattershot and inconsistent as well.  As to the husband’s credibility, the court wrote:

Although it is not necessary to my decision, I make a specific finding of credibility against the Respondent [the husband]. According to the real estate lawyer who handled the transfer from the Respondent to his mother in September 2010, the Respondent told him that he and his wife had separated long before she came to [the Toronto condo] and therefore it was not a matrimonial home. In so saying the Respondent withheld material information from the lawyer as to the family living arrangements, marriage counseling and final date of separation. … The Respondent made no reference to or any explanation whatsoever of the statements attributed to him by the lawyer.  In these circumstances it is, in my view in the interest of justice to draw an inference and make an adverse finding of credibility against him …

Next, the court had to grapple with the issue of whether the Ontario court or the Florida court was the most appropriate forum in which to have the trial itself.  (Procedurally the court has a right, in cases where another forum is more appropriate – after taking into account the location of the parties, the witnesses, the evidence, and various other procedural and geographical factors – to decline to exercise its jurisdiction to hear any court matter).    
In this case, the wife and children now lived in Florida, and the husband had visited them there on a few occasions.   In these circumstances, it would be unusual for an Ontario court to maintain jurisdiction over custody issues when the children were not even living there.    On the other hand, certain key witnesses and the grandmother (who would give evidence on issues relating to the matrimonial home) all lived in Ontario.  The Ontario court also had a certain legal advantage over the Florida court, in terms of the orders it was entitled to make.

In the end, the court ordered that:

• the Toronto condo was deemed to be a “matrimonial home”;

• title to the deceased’s father’s condo, which had been transferred to the mother, was revested into the husband’s name; and

• since Ontario had the closer connection to the dispute, the court declined to allow the matter to be heard in Florida; rather it was ordered to proceed to trial before an Ontario court.

For the full-text of the decision, see:

Alcaniz v. Willoughby, 2011 ONSC 7045  http://canlii.ca/t/fp7nr

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 www.RussellAlexander.com

Jan 11

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

Child Support in Ontario: Introduction to Child Custody

In this short video clip Shelley talks about custody and answers questions many people have about child support.

To learn more about child support visit our web site at www.russellalexander.com or join us on FaceBook at http://www.facebook.com/RussellAlexanderFamilyLawyers

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