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What Will 2016 Bring to Ontario Family Law?

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What Will 2016 Bring to Ontario Family Law?

It’s a new year: A time to reflect on the past and learn from it, and then look forward to the future.

Here is my list of the hotter 2015 Ontario family law topics that I think will continue to have resonance in the coming year:

Self-represented litigants. Family law has seen a sharp increase in the number of self-represented litigants over the past few years. There are many reasons for this, but as I have illustrated in numerous prior blogs, it is not a positive development in my view. These individuals, intent on trying to save legal costs, often “spin their wheels” trying to navigate a complex and procedurally-intricate justice system on their own and without training. Too often, this leads to needless or high costs anyway, and less-than-optimal financial and other results in their litigation matter itself. Nonetheless – and for better or worse – I suspect that people’s urge to self-represent will continue throughout the coming year.

Unbundling of legal services. The notion of giving clients the cost-effective option to hire family lawyers to essentially do piecemeal or “unbundled” legal work under a limited retainer has gained increasing traction recently. This arrangement allows lawyers to perform pre-agreed, specific and well-defined tasks, rather than take on the client’s entire family litigation file from start to finish. The Law Society of Upper Canada (which is the regulatory body that governs lawyers) has drafted rules to guide lawyers in such situations, and has recently put on a continuing legal education seminar to help those lawyers properly and effectively navigate such unbundling arrangements. Clearly there is more of this to come.

• Mediation, arbitration, and collaborative family law. The trend toward increasing use of alternate dispute resolution methods has steadily increased in years past, and the coming year should be no exception. Public awareness and access is helped by various government initiatives, such as the Mandatory Information Programs that are available at family court locations across Ontario, which provide litigants with information about separation and divorce and the related legal processes.

• Streamlining of family proceedings. Hopefully 2016 will add even more efficiency and streamlined procedure to the existing family system. We already see the benefits of the widespread use of the Federal Child Support Guidelines, which dictates child support amounts payable at various income levels and circumstance. The Guidelines have provided a healthy and needed dose of certainty and streamlining to this area of family law at least. Some “softer” gains have been achieved through the use of case conferences, which are optional in some circumstances, but mandatory in others. Presided over by family judges, they are intended to help narrow the issues between the parties, and explore the possibility of settlement. Let’s hope the coming year sees more productive initiatives of this type.

What are your prediction for family law in the year 2016?

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.

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.

We are pleased to announce that Amelia Rodin will be joining the team at Russell Alexander Collaborative Family Lawyers

Amelia Rodin

We are pleased to announce that Amelia Rodin will be joining the team at Russell Alexander Collaborative Family Lawyers as a law student.

Amelia looks forward to working with clients at the Lindsay and Brooklin locations in an administrative capacity. Currently completing her second year of the Juris Doctor/Master of Social Work program at the University of Windsor, Amelia focuses her studies on the area of family law, including custody and access, child support, property issues and divorce.

As an Honours Bachelor of Social Work graduate from the University of Windsor, Amelia understands the emotional impact of legal issues. She is devoted to delivering both compassionate and knowledgeable service.

Amelia was recently the recipient of the Barbara Gesell-Ferreira Memorial Award, in recognition of her commitment to both integrity and community involvement. Presently engaged in a Clerkship position at the Family Court in Windsor, Amelia has been able to further develop her research skills while working alongside Ontario Court Justices.

Amelia is thrilled to return to the Kawartha region, as she was born and raised in Peterborough, Ontario. When Amelia is not studying, she enjoys travelling with her husband and spending time at the family cottage.

Tempted to Post Some Revenge Porn? Read This.

revenge

Tempted to Post Some Revenge Porn? Read This.

For those embittered Ex’s who are tempted to wreak revenge on their former partners after a break-up, take note: the Ontario Courts have just expanded the realm of tort law to cover certain breaches and invasions of privacy. In one very recent case, it cost a disgruntled ex-boyfriend $100,000 in general, aggravated and punitive damages.

In Jane Doe 464533 v. N.D., a woman’s ex-boyfriend had posted an intimate video of her online at a pornography website after their break-up, without her knowledge or consent. He also showed it to members of their mutual social circle. The court described the back-story this way:

The factual background may be summarized fairly briefly. The parties went to high school together in a small Ontario city, where they started dating while they were both in Grade 12. Although they broke off that formal relationship, they continued to see each other romantically throughout the summer and the fall of 2011. By the fall of 2011, the plaintiff and the defendant were both 18 years old.

In September 2011, the plaintiff was living in another city while attending university. Despite the fact that they had broken up in July 2011 and were no longer “boyfriend and girlfriend”, she and the defendant communicated regularly by Internet, texting, and telephone and continued to see each other when she returned to visit her parents’ home.

In August 2011, the defendant began asking the plaintiff to make a sexually explicit video of herself to send to him. For some time, she refused to do so, but the defendant kept asking her repeatedly. He sent her several intimate pictures and videos of himself, and told her that she owed him a video of herself in return. She did not want to do so, but she ultimately recorded an intimate video of herself in November 2011. Before she sent it to the defendant she texted him, telling him she was still unsure. He convinced her to relent, and reassured her that no one else would see the video. Despite her misgivings, due to pressure from the defendant, she “caved in” and sent the video to him.

In early December 2011, the plaintiff learned that the defendant had posted the video she sent him on an Internet pornography website under the “user submissions” section of the website. As posted by the defendant, the video was titled “college girl pleasures herself for ex boyfriends (sic) delight.” She further learned that the defendant had been showing it to some of the young men with whom they had attended high school. She later learned that the video had been posted online on the same day she had sent it to him, and that its existence had become known among some of her friends.

After finding out about the video, the woman was “devastated, humiliated, and distraught”; she became severely depressed. She experienced panic attacks and had to see a school counsellor for over 1.5 years to deal with the emotional fallout. The court also noted the effects on the woman were long-lasting:

Even today, more than four years after the incident, she is emotionally fragile and worried about the possibility that the video may someday resurface and have an adverse impact on her employment, her career, or her future relationships. She continues to be distraught about the incident and afraid that these feelings will haunt her for a long time to come.

The court also noted that although the video was actually on-line for only about three weeks, there was no way of knowing how many off-line copies had been made and were still in existence.

The woman successfully sued the ex-boyfriend for breach of confidence, intentional infliction of mental distress, and invasion of privacy (and obtained default judgment against him since he had not filed a defence). Her damages were set at $100,000, including $25,000 in punitive damages to reflect the ex-boyfriend’s high-handed, reckless and arrogant disregard of the woman’s rights, as well as the fact that he had not apologized or shown remorse.

For the full text of the decision, see:

Jane Doe 464533 v. N.D., [2016] O.J. No. 382, 2016 ONSC 541

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

Are Parents Obliged to Support an Adult Child with Addictions?

addicted child

Are Parents Obliged to Support an Adult Child with Addictions?

In an older case called G. (R.W.) v. G. (S.I.), the court considered an interesting question: does an adult child’s drug and alcohol addiction render his or her parents legally obliged to provide financial support even after the age of majority?

In this case the son was 26 years old, and although he was attending university, he had drug and alcohol addictions which he denied and for which he refused to take any responsibility.

The father – a successful businessman who had earned more than $800,000 in the year prior – had voluntarily supported his son well past the age of majority. However, the question for the court was whether he had a legal obligation to continue to do so in light of his adult son’s addictions, which arguably made him still a “child of the marriage” under the provisions of the Divorce Act.

The court wrote:

The father places emphasis on freedom of choice and the notion that an adult child who chooses an independent lifestyle free of parental control must be taken to have voluntarily withdrawn from parental charge. … The other side of the coin, for purposes of s. 2(1)(b) of the Divorce Act, is whether a child is unable to withdraw or to obtain the necessaries of life by reason of illness, disability or other cause.

It is commonly accepted that addiction is a disease. To speak of the condition as voluntary ignores the biological or physiological roots of addiction, the influences of heredity, predisposition, societal and peer pressures, and the disparities in the availability and quality of treatment. Nonetheless, it is a treatable illness. Freedom of choice has more significance on the aspect of willingness to accept treatment. Where responsibilities exist to make reasonable efforts to achieve self-sufficiency — and such responsibilities apply to an adult child… — the courts have not condoned chronic financial dependence in cases where individuals refuse to help themselves.

The court added that the adult son had not been financially dependent on the father for a legally-acceptable reason, and he was not a “child of the marriage” since he refused to accept treatment for his addictions or even acknowledge them:

The evidence indicates the son has been in prolonged denial. He has not always taken treatment willingly and absent a threat of compulsion. He has had the best treatment available, as early as 1994, and he has been given the tools, and the knowledge not available to those less fortunate, to assist him in the management of his condition. This was provided at significant cost to the father. The son squandered many of the opportunities available to him in the form of sports scholarships, employment in the father’s business and higher education in his unwillingness to face his addictions and embrace recovery. As late as 2001 he underwent institutional treatment only when faced with ultimatums.

The solution in this particular case, the court found, was to withdraw the father’s financial support to “coerce” the son to stand on his own and to take responsibility for his addictions and circumstances:

In the case of addictions, chronic dependency must often be addressed by coercive measures. … There is … a concern that the son, in his efforts to achieve functional independence, avoid the security of a fall back position, or the comfort of a safety net in the form of guaranteed support.

Although this case does not establish a hard-and-fast rule for all scenarios, it emphasizes that even when adult children are still in school well past the age of majority, there is a point at which most courts will lay responsibility at the child’s own feet, rather than force the parent to shoulder the child’s financial obligations indefinitely.

For the full text of the decision see:

G. (R.W.) v. G. (S.I.), 2002 SKQB 167 (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

Divorce & 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 RussellAlexander.com

Will Ruling on Twitter-Based Harassment Affect Family Law?

twitter harrassment

Will Ruling on Twitter-Based Harassment Affect Family Law?

In a case that made the headlines last week, Gregory Alan Elliott was found by an Ontario Court to be not guilty of criminally harassing two women, Stephanie Guthrie and Heather Reilly, by way of Twitter. They had accused him of being “creepy” and misogynistic in what they considered to be an excessive number of Twitter references to them, even after they blocked him and asked him to stop. The women, who happened to be involved in a group called Women in Toronto Politics, felt that the sheer “volume” and obsessive nature of Elliott’s tweets left them feeling harassed to such an extent that they complained to police, resulting in Elliott’s arrest and criminal proceedings. As the court described it:

Mr. Elliott sent some tweets directly to both women, but the prosecution does not rely on the direct tweets alone. Ms. Guthrie’s harassment and fear came from her perception that Mr. Elliott sent an incessant and obsessive amount of tweets, including those not sent directly to her but of which she would have been advised. Ms. Reilly became fearful when she inferred from one of his tweets that Mr. Elliott might be in the same physical place as her. The alleged communication by tweeting also includes tweets by Mr. Elliott about subjects, topics, ideas and events that Ms. Guthrie and Ms. Reilly were interested in and therefore might or probably would read.

The back-story and coverage of the three-year long criminal case and subsequent acquittal in R. v. Eiliott – which is apparently the first Canadian one of its kind involving Twitter as the medium for the alleged harassment – is easily found on the internet. But the interesting question is whether this criminal law decision will have any reverberation in the sphere of family law disputes.

In the past, I have written about the use of Facebook (and theoretically, other social media) in divorce and related family proceedings. In that context, Facebook’s role has come under scrutiny in many different contexts:

• the admissibility of evidence secretly obtained from a spouse’s Facebook;

• whether parents should be barred from posting details of their family disputes online;

• whether non-public Facebook information should be kept private in terms of disclosure for family proceedings; and

• and the question of how children might be adversely affected by posted information, as in the case of the separated father who posted photos of his children on his Facebook page.[]

Collectively, the outcomes in these cases suggest that courts remain conservative and resoundingly sensitive when striking a balance between broader freedom of expression rights on the one hand, and the protection of spouses’ and children’s interests on the other, even in the “wild west” milieu of social media. Indeed, family courts have certainly shown a willingness to address – and if need be, curtail — any intrusive and negative effects of social media, so that the resolution of family disputes does not impair the rights and interests of its participants, especially the children.

It will be interesting to see how this latest ruling in R. v. Elliott will be adapted (if at all) to the family law realm, given that it arguably upholds a relatively-unfettered ability to use of Twitter (within the customary proscribed limits imposed by Canadian constitutional, criminal and human rights law, of course).

For the full text of the decision, see:

R. v. Elliott, 2016 ONCJ 35 (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

Client Testimonial about Russell Alexander, Family Lawyers – video

 

Wednesday’s Video Clip: Client Testimonial about Russell Alexander, 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, 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 In this short video our client Wendy discusses the services, support and assistance she received at Russell Alexander, 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, 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

Jason Isenberg joins our team as an Associate Lawyer

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Jason Isenberg joins our team as an Associate Lawyer

Jason helps clients reach a resolution to their family law issues, which can include negotiation of a settlement, participation in alternate dispute resolution, or attending court.

Jason provides a personal touch and patience with clients, including meeting when the client is available. Understands the needs of each client are different and focuses on the appropriate solutions for each matter with 16 years of experience, having been called to the Bar in 2000.

Jason has a Bachelor of Arts from York University, and a Bachelor of Laws from Osgoode Hall Law School.  He Articled at an Insurance Defence firm in Toronto, started the practice of law with a Plaintiff Personal Injury and Family Law firm, where he gained experience and a love of Family Law. Operated his own practice in a small Eastern Ontario city for several years, before taking a position as Legal Counsel with the Children’s Aid Society in Peterborough and Lindsay.

Jason enjoys assisting people to move forward and start the next chapter of their lives. The most rewarding and most challenging part of the practice is finding the best solution for each client. While reaching a negotiated settlement is the primary goal, sometimes a resolution can only be found through a more adversarial process, and he is experienced and capable in both.

Born and raised in Toronto, Jason is married with three children. Loves watching baseball, hockey, movies, and television dramas. Interested in history and ancient cultures. Hobbies include musical theatre.

Welcome to our team Jason.

Was Your Marriage Contract Signed “Under Duress”?

duress

Was Your Marriage Contract Signed “Under Duress”?

About-to-be-married couples are wise to protect themselves by signing a marriage contract beforehand. But the key to having those agreements hold up is that they must be freely and voluntarily executed.
We’ve all heard stories of pre-nuptial contracts being singed by the happy couple on their wedding day, virtually on the altar. Or else cases where the couple are negotiating the agreement for months, against the backdrop of a year of planning and thousands of dollars in deposits laid down, and it’s finally signed at a time when pre-wedding stress is at an all-time high.

Are marriage contracts signed under these conditions worth the (embossed) paper they are written on?
In Ontario, the Family Law Act and the related jurisprudence says: “it depends”. First of all, the legislation lays out certain types of clauses that are never valid (such as a clause attempting to prohibit a spouse from remarrying after separation), and sets out various scenarios that can prompt the court set aside all or part of a marriage contract. Among those scenarios – by general reference to basic contract principles established in the cases – is the concept that a contract that was signed under duress will not be enforced in law.

“Duress” is colloquially regarded to mean those situations where one intended spouse has put some sort of pressure on the other spouse to sign what is usually alleged after-the-fact to be an unfavourable, unfair, or one-sided agreement.

Legally, the meaning is a bit more precise, even though the Family Law Act itself does not contain a definition for this term. However, in a case called Ludmer v. Ludmer, the court examined the nature of duress, stating:

Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. There can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract. To prove duress, the applicant must show that she was compelled to enter into the marriage contract out of fear of actual or threatened harm of some kind. There must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.

So what forms does “duress” take, in the real world? In the case we commented on last week, Shair v. Shair, the court considered whether the wife had been subject to duress in signing a marriage contract that she later complained had stripped her of certain support rights that she would otherwise have under the Family Law Act and Divorce Act.

However, the court rejected her claim that she signed the agreement out of duress, finding instead that she:

“…chose to sign it voluntarily as she wanted to be married and she trusted that the Applicant husband would treat her fairly independent of the clear language of the marriage contract. The option of not signing the marriage contract in the form as presented and returning to Romania, or extending her visa, were both open to her and she pursued neither.”

For the full text of the decisions, see

Ludmer v. Ludmer, 2013 ONSC 784, [2013] O.J. No. 699

Shair v. Shair, [2015] O.J. No. 4883, 2015 ONSC 5816

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