Skip to content

Learn more about Ontario Divorce.

Ontario Divorce
Ontario Divorce
Child Support
Child Support
Child Custody
Child Custody
Property Division
Property Division
Spousal Support
Spousal Support
Collaborative Divorce
Collaborative Divorce
Separation Agreements
Separation Agreements
Adultery
Adultery
Passports
Passports
Tax Implications of Divorce
Tax Implications of Divorce
Spousal Spying
Spousal Spying
Selling the Home
Selling the Home
Ontario Divorce Help FAQ
Ontario Divorce Help FAQ
Domestic Violence
Domestic Violence
Changing the Locks
Changing the Locks
Texting & Divorce
Texting & Divorce
YouTube
YouTube
Our Story
Our Story

Family Responsibility Office to Pay $7,500 in Costs for its “Aggressive Enforcement Action” Against Dad

salp

Family Responsibility Office to Pay $7,500 in Costs for its “Aggressive Enforcement Action” Against Dad

In a case called DeBiasio v DeBiasio the father was in arrears on his support payments of $1,800 per month for his three children, one of whom lived with him. Eventually, when the other two children also moved in with him in July of 2015, he started negotiating with the mother to change his child support obligations. Together, they signed a court form in late August asking for a court date for them to formally change the child support on consent.

However, the matter of the father’s arrears had already been sent to the Family Responsibility Office (FRO) for enforcement, and it had started to take the authorized steps to force him to pay. To this end, he received a letter from a FRO caseworker around this same time, advising that he was being reported to the Credit Bureau.

This meant that – to the father’s frustration – both the FRO’s enforcement steps and the parents’ court-supervised attempts to settle issues around child support were proceeding in tandem, but independent of each other.

The court motion stalled for unrelated reasons; meanwhile, the father learned that the FRO had taken steps to garnish his wages. When his lawyer wrote to the FRO to advise that the consent motion was pending, the caseworker claimed that her hands were tied since the order to pay child support was still “on the books”. Soon after the father learned that the FRO was taking steps to have his driver’s license suspended. Some of his lawyer’s many attempts to correspond with the FRO directly garnered no response.

Eventually, the father managed to get a court order, directly the FRO to refrain from taking additional steps against him.

The father then asked the court to order the FRO to pay his legal costs – and succeeded.

Here, the court’s task was to balance the FRO’s mandate to enforce all support orders that are filed with it, against the individual interests of the father. Since the Director of the FRO has some leeway in choosing the manner of enforcement in any given situation, the test is whether the Director had exercised that discretion in a reasonable manner in the father’s particular case.

After reviewing a few prior cases in which the Director of the FRO had been ordered to pay costs, the court noted that they tended to arise in cases where there were “aggressive enforcement actions on the part of the FRO” despite the existence of a real and substantial dispute between parties that they had taken steps to resolve with the court. This was precisely the case here. As the court put it:

In this case it was made clear to the FRO caseworker that there was a dispute over the amount of arrears owing. It was made abundantly clear that there had been a material change because of the move of the children. While I understand that FRO has a mandate to enforce, it seems to me that insisting on enforcement by way of licence suspension, when it is likely that the matter will be before the court within a very short period of time, is an unreasonable exercise of the Director’s mandate to enforce.

Having been made aware of the scheduled consent motion, the FRO should have allowed the process to go forward before taking any further enforcement action. Its failure to do was unreasonable. The court also chastised the FRO for failing to provide an adequate level of communication, since it repeatedly failing to respond to the communications from the father’s lawyer. This, the court found, was in breach of the FRO’s duty to provide timely and meaningful responses to paying parents and their lawyers.

The court ordered the FRO to pay the father $7,500 in costs.

For the full text of the decision, see:

DeBiasio v DeBiasio, 2016 ONSC 2253 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

If Husband Was Unfaithful, Should Wife Get Bigger Share of Equalization?

Chocolate Cake Slice with Raspberries --- Image by © Royalty-Free/Corbis

 

If Husband Was Unfaithful, Should Wife Get Bigger Share of Equalization?

The spouses had been married almost 30 years when they separated. In the course of dividing their family assets in the customary manner (i.e. through the process of equalizing their Net Family Property), the wife took an interesting position: she claimed that she should get a larger share than would otherwise be the case, because the husband had repeatedly cheated on her during the marriage.

Her novel approach was based on s. 5(6) of the Family Law Act, which sets out eight different factors that a court can taking into account when deciding whether to order an unequal division of family property. Those include factors such as whether a spouse failed to disclose information, recklessly spent money, or racked up a disproportionate amount of debt; however, the section makes no mention of adultery or other spousal misconduct.

The court described the wife’s position this way:

The wife seemed to think that the nature, extent, or duration of the extramarital affairs engaged in by the husband, his having left evidence of the affairs where the wife could and did find it, or his having allowed one or more women to discover where he was living, so that the wife had to speak to or otherwise deal with one or more of these women, came within the enumerated considerations in section 5(6).

In considering this argument, the court recalled its own prior judgment in another case called Biant v. Sagoo, where the wife had likewise asked the court to grant her a larger share of the Net Family Property to account for money the husband had spent on travel and jewellery for his mistress – a sum that totaled somewhere between $20,000 and $50,000 in that case. That prior court had rejected the idea, stating:

It would be a novel proposition that a philandering spouse is responsible under subsection 5(6) for paying to the other spouse a sum equal to the cost of an affair, either direct costs (jewellery and such) or indirect costs (diminished profits from business). … There was no evidence that the husband’s expenditures materially affected the family in any way and certainly no evidence that the wife has been called on to shoulder any portion of them.

The court applied the same reasoning in rejecting the wife’s position in Cosentino. Although the husband’s conduct may very well have been morally objectionable and emotionally harmful, the court’s hands were tied: It could consider only the factors in s. 5(6), none of which related to adultery. Indeed, the listed factors for consideration were very tightly-drafted to deliberately exclude extramarital affairs and similar spousal misconduct.

Here, there was no evidence that the husband’s affairs had any significant effect on the couple’s debts, liabilities or property during the marriage. Certain expenses by the husband that the wife objected to did not relate to his clandestine affairs, and in any event took place after separation.

The court rejected this particular argument by the wife, but – after considering other various arguments by both spouses – went on to make an award as to the proper division of the former couple’s assets.

For the full text of the decisions, see:

Cosentino v. Cosentino, 2015 CarswellOnt 196, 2015 ONSC 271

Biant v. Sagoo, [2001] O.J. No. 1685, 2001 CanLII 28137 (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 us at RussellAlexander.com

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.

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 RussellAlexander.com.

Do Nude Pics of Your Ex Help the Judge Decide? Likely Not

picture
Do Nude Pics of Your Ex Help the Judge Decide? Likely Not

A parent who is battling for custody of a child may be tempted to resort to bad-mouthing the other parent, or painting him or her in a bad light, all as a means of swaying the judge to rule in their favour. But in a recent Ontario case the father went too far by including explicit text messages and nude photos of the mother in the evidence he filed. The opening lines of the judge’s ruling tells the story:

Do nude pictures of parents help judges decide who should get custody?

A silly question?

Why then, on this motion for temporary custody, has the Applicant father attached to his affidavit a series of sexually explicit “selfies” of the mother, retrieved from her discarded cell phone?

And why did he attach dozens of screen shots of the mother “sexting” with another man, describing her sexual preferences in graphic detail?

If the objective was to humiliate the mother, undoubtedly the father succeeded.
But how does humiliation help in family court?

How does irrelevant and scandalous information help a judge determine the best interests of the child?

More importantly — from the child’s perspective — what is the long-term impact of this needlessly hurtful approach to litigation?

Lamenting that privacy and discretion seem to be “a thing of the past” in this era of e-mail, Facebook, Twitter, texts and selfies, the judge commented that the father’s conduct actually gives rise to some evidentiary issues because of his unauthorized use of the mother’s discarded cell phone. Then the judge added:

But more to the point, the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet: The mother has a sex life.

Big deal.

The judge acknowledged that there was a back-story to the father’s ostensible justification for filing this sort of evidence: After living together for almost a decade, the mother had an affair and divulged that the youngest of their two children was likely not the father’s. Still, the court gave a clear message:

In a number of recent decisions, this court has urged parents to take a more adult and civilized and reasonable approach to resolving custody and access disputes. Simplistically, I have tried to convey the message:

Nasty doesn’t work.

The mean-spirited and malicious inclusion of humiliating and completely irrelevant nude pictures and texts in this case cries out for a stronger message:

Nasty won’t be tolerated.

The judge went on to provide a reasoned decision on the substantive issues relating to temporary custody of the children, after ordering the nude photos and salacious text excerpts to be removed from the court file. The judge also ordered the father to never show the nude photos and text to anyone else.

For the full text of the decision, see:

J.S. v M.M., 2016 ONSC 2179 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

For Man “Tricked” into Unplanned Parenthood – Can He Sue for Damages?

condom

For Man “Tricked” into Unplanned Parenthood – Can He Sue for Damages?

A recent Ontario case gives rise to a unique legal question: Can one parent sue the other for unwittingly being forced into parenthood?

The man, a 42-year old medical doctor and the woman, a 37-year old medical practitioner, met through a mutual friend and started dating. After their second date they had sex in the woman’s apartment, but not before the man asked the woman if she had any condoms. She said she did not, but indicated that she was “on the pill”. Afterwards the man stayed the night and left the next morning.

What followed was a series of eight or nine subsequent dates, and they had sex each time. The subject of condoms came up again during one of those occasions, but the woman did not say or do anything to suggest that her prior statement of being “on the pill” was no longer true, or that it had never been true in the first place.

After about 10 dates they mutually agreed by phone to cease the sexual aspect of their connection and revert to a “just friends” platonic relationship.

Soon after, the man was shocked to receive a text from the woman, advising that she was 10 weeks pregnant with his baby. After she gave birth, the woman refused to allow the man to see the infant, despite his stated willingness to provide financial support and establish a relationship with the child.

Eventually, after they agreed to a child support arrangement, the man then took a legally-unusual step: He sued the woman for $4 million in damages “because he [had] been non-pathologically emotionally harmed by his unplanned fatherhood.”

In particular, the man claimed that he had been tricked into having recreational sex with the woman, had relied on her “on-the-pill” statement in deciding whether to engage in sexual activity, and had been emotionally harmed by being deprived of the choice to fall in love, marry, enjoy married life, and then — when he and his wife thought “the time was right” – to have a baby. Although he made it clear he was not trying to dodge his child support obligations, he claimed he had been harmed because he was just at the beginning of his medical career and was not at the stage where he wanted to have a baby with “some random woman”.

As the court explained the man’s position:

[The man] is not against being a father, but his passionate argument is that by [the woman’s] fraudulent misrepresentation, he has been denied the opportunity to be a father at the time of his and future beloved’s choosing and he suffered non-pathological emotional harm as a consequence.

However, in examining this novel claim, the court found that the man had framed his cause of action incorrectly, by relying on the tort of fraudulent misrepresentation. That tort was used to compensate for damages for economic loss, i.e. restore the injured party to the financial position he or she was in previously.

Admittedly, the man had likely established all the other necessary elements of fraudulent misrepresentation (i.e. a false statement, knowledge that the statement is false, an intent to deceive, and the statement inducing the man to act). But what he could not prove was that he suffered economic damages. Aside from having to pay child support (which the man was not resisting), he had no financial losses from the woman’s pregnancy or childbirth. He was not married to her, was not obliged to marry her, never lived with her, and never established any long-term relationship. He did not contract any STDs, and would not experience any disruption of his career as a doctor. The court pointed out that:

… compensation for fraudulent misrepresentation … is designed to restore the injured party to the financial position he or she would have been had the wrongdoing not occurred. [The man] obviously cannot be restored to the emotional state of non-fatherhood and so his claim for non-pathological emotional harm makes no sense for the conventional use of the tort of fraudulent misrepresentation.

In other words, the man was trying to use the tort of fraudulent misrepresentation – which usually compensates for financial damages – to further his asserted claim for emotional harm. The court concluded that this made his action “a novel one” because it would “expand the scope of fraudulent misrepresentation and take it into new territory.” The court ultimately concluded that this was both unnecessary and undesirable on legal policy grounds.

The court struck out the man’s lawsuit as disclosing no reasonable, legally-recognized cause of action, and refused to allow him permission to amend it to state the tort claims differently.

For the full text of the decision, see:

PP v DD, 2016 ONSC 258 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Ontario 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 we review the importance of a Power of Attorney and what options and decisions you should consider when deciding who should be your power of attorney.

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 RussellAlexander.com.

Did Son Work for Free in Father’s Company for Almost a Decade?

business

Did Son Work for Free in Father’s Company for Almost a Decade?

A recent Ontario decision demonstrates the down-side of family businesses – as well as the risks involved in allowing assumptions to remain unspoken. More importantly, it shows what can happen when business-operating family members fail to document important agreements, expectations and obligations in written form.

A company was founded and was being run by the father Larry. Six of his adult children were now holding key management positions. One of his sons, Emmanuel, initially went off to pursue his own business interests, but eventually returned to the fold in 1999 to assist the company in various capacities, including tax consulting in connection with the company’s application for federal and provincial tax credits for the years 1999 through 2010. Emmanuel’s efforts resulted in the company securing approximately $2.6 million in scientific research and experimental development (SRED) tax credits for a 20-year period.

The court introduced the facts this way:

While the claims are framed as traditional commercial disputes, the substance of these actions is really a story about the tumultuous relationship between a father and son. Emmanuel assisted the family business (LTM) without an expectation of compensation, admittedly, in order to acknowledge the debt of gratitude he felt he owed to his father and out of a sense of obligation he felt for his family.

Evidently that changed, because once the father died unexpectedly Emmanuel requested that the company pay him almost $420,000 to cover 25% of the tax benefits it received on account of his tax consulting efforts. Management denied his requests, so Emmanuel sued under an implied contract for what he considered was his entitlement. He also asserted a claim based in quantum meruit (i.e. a promise to pay a reasonable amount for work performed).

Emmanuel brought these claims despite the lack of any written contract or document to evidence the alleged agreement to pay him. He also conceded that he never requested payment for his services at all for 8 years, until 2011 when he presented the company with his invoice. He explained to the court that he decided to withhold asking for compensation because he was dealing with family, and because he believed he would eventually become an owner of the company. He also claimed that he knew that the company had insufficient cash to pay him during those years, and was relying on his father’s prior promise to pay him.

In considering his legal position, the court assessed Emmanuel’s evidence “disfavouably”, finding that some of it contradicted other evidence, or else was downright incredible. For example, his claim that he refrained from asking for compensation during times when the company had cashflow problems did not hang together well with the fact that he did not ask for payment even during those periods that the company was flush.

In the end, the court concluded that Emmanuel was not entitled to payment for his historic services to the company from 1999 through 2010, and in any event he had was too late: the 2-year limitation period for bringing any claims had expired by the time he got around to suing.

For the full text of the decision, see:

1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2015 ONSC 2664 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Ontario Divorce Law: Is Collaborative Practice Right for You? video

 

Wednesday’s Video Clip: 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 introduce concepts of collaborative practice and many of the benefits this process offers couples going through a separation and divorce in Ontario.

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 RussellAlexander.com.

Can A Misbehaving Spouse Get Occupation Rent? Maybe.

Right Facing Red For Rent Real Estate Sign in Front of Beautiful House.

Can A Misbehaving Spouse Get Occupation Rent? Maybe.

As we wrote in an article back a few years ago in Ontario the concept of “occupation rent” arises in family law in situations where spouses who co-own a matrimonial home have decided to separate, and one of them physically moves out.

When it comes time to untangle their financial affairs leading up to or part of a divorce, the remaining (i.e. still-occupying) spouse may at the court’s discretion be obliged by law to pay and amount for “rent” to the other spouse starting on the separation date, and based on fair market value rent. This is by no means an automatic right in every case (and indeed, it is considered by courts to be an “exceptional remedy”). However, once established this rent obligation can theoretically continue as long as the occupying spouse remains living on the premises, pending sale of the property and a splitting of proceeds as part of the equalization.

In deciding whether to pay occupation rent, the court must take numerous established factors into account. One of them (from among more than a half-dozen) is the conduct of the non-occupying spouse.

This has been the focal point of several recent cases:

• In a decision we wrote about a few weeks ago, Malik v. Malik, the husband claimed occupation rent from the wife even though he had acted very badly: He had taken the equity out of the family home, had absconded the jurisdiction, and had made no voluntary child support payments at all, even though he could financially afford to. In disallowing his claim, the court said: “A non-occupying spouse ought never receive occupational rent for a period in which he or she has deliberately avoided the payment of child support.”

• Likewise, in Wimalaratnam v. Wimalaratnam, the husband’s claim for occupational rent was even more tenuous: not only did he fail to meet his support obligations to his wife and children, and stopped paying his share of the mortgage and other home expenses, but he was actually excluded from the home as a result of his own criminal conduct. He had been forcibly removed from the home after being charged with several criminal offences, and was later found guilty of one of them. This being the case, the husband was the author of his own misfortune in terms of being excluded from the home; in the circumstances it was not appropriate to award him occupation rent.

• Similarly in Wawzonek v. Page, the husband claimed occupation rent from the wife in connection with the jointly-owned home that she and the children continued to live in after the couple separated. The court refused to grant the request, pointing out that the husband had been removed from the home after being criminally charged by police after a physical altercation. He was largely, if not solely responsible for being ordered to stay away from the home, so he was not entitled to occupation rent in the circumstances.

Trying to predict whether occupation rent will be awarded can be a slippery exercise; as with so many legal determinations, the outcome will always depend on the specific facts.

For the full text of the decisions, see:

Malik v. Malik, 2015 ONSC 2218

Wimalaratnam v. Wimalaratnam, 2010 ONSC 4491

Wawzonek v. Page, 2015 ONSC 4374

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 RussellAlexander.com.

Over Three Years and $500,000 Later, Judge Laments Financial “Tragedy” Parents’ Custody Battle

tradegyOver Three Years and $500,000 Later, Judge Laments Financial “Tragedy” Parents’ Custody Battle

In a costs ruling from earlier this month in an Ontario custody battle, the court began its ruling this way:

There are many factors to be considered in deciding costs. I will review them below.
But pause for a moment to consider the overwhelming tragedy of this case.
These are nice, average people. Of modest means (now considerably more modest). They drive old cars and probably pinch pennies shopping at Costco.
And yet somehow, between them, they spent more than half a million dollars on lawyers “to have a judge tell us something we could arrange ourselves.”
No matter what costs order I make, the financial ruin cannot be undone. They’ll never recover. Their eight year old daughter’s future has been squandered.
How did this happen? How does this keep happening?
What will it take to convince angry parents that nasty and aggressive litigation never turns out well?

The court’s lament was particularly poignant given that the father had written an e-mail to the mother, long before the court case started, imploring her to be reasonable and avoid “spending 40 to 50 thousand dollars apiece in lawyer fees.” In the end, about 3.5 years later, the father had actually spent $300,000 on lawyers in order to obtain sole custody of their daughter, while the mother had incurred more than $200,000 in legal fees to resist his claim.

Given his overall success in the matter, the father went back to court for an order requiring the mother to pay his legal costs incurred. To that end, the court scrutinized the various offers to settle that the parents had made to each other during the course of the hearings, as well as their overall approach to the litigation. In particular, it found that the wife had engaged in “unreasonable behaviour” by refusing the father’s reasonable settlement offers, by fabricating or manipulating the evidence, and by attempting to alienate the child from her father.

For that reason (among others) the court ordered the mother to pay the father $192,000 in costs and then added: “All of this could have been avoided. All of this should have been avoided.”

What are your thoughts on the court’s rather sobering comments?

For the full text of the decision, see:

Jackson v Mayerle, 2016 ONSC 1556 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com