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England or Ontario: Which Court Should Grant This Divorce?

england

England or Ontario: Which Court Should Grant This Divorce?

Imagine this scenario: A couple gets married in Ontario, live together only briefly, and then separate. The wife then moves to another country halfway across the world, never to return. They both want to finalize matters by getting a divorce.

The question is this: In the court of which country should their divorce be granted?

This was conundrum for Ontario court in a case called Sodhi v Bedi. The husband, a lawyer, had been living in Ontario since 2002. The wife, a physician, lived in England from birth until January 2014 when she moved to Ontario to live with the husband. They got married in March of that same year.

But the marriage soured only a short 6 or 7 months later. It officially ended in October of 2014 when the wife went back to England to visit family, and the husband followed shortly after. During that visit he told her that the marriage was over, whereupon she decided to remain in England permanently.

This left the lingering issue of where to start divorce proceedings. The wife was first off the mark: She filed an application in a court in England in early July of 2016. However, that application contains some errors which made it procedurally defective. She took another few months to file it properly.

Meanwhile, in mid-July 2016 the husband also filed his own divorce application – in Ontario this time – which the wife promptly ignored. (The court disbelieved her claims that it did not come to her attention because the husband was using an old address. It found that she was aware of his divorce application by mid-September at the latest). The husband also asked the Ontario court to stay (i.e. suspend) the simultaneous English one.

This left the Ontario court with the task of evaluating two competing divorce applications, and determining which court – Ontario or English – was best positioned in law rule on the divorce proceedings. The wife, needless to say, wanted the English court to officially take the matter over; the husband resisted.

In making its ruling, the Ontario court began by stating that while under provincial family legislation it could assert jurisdiction, the real question was whether it should do so. In law the burden was on the wife, who was essentially asking the Ontario court to decline the jurisdiction it was otherwise at liberty to exercise.

The factors favouring the wife’s bid to move the proceedings to England were:

• She filed first (though admittedly her application was initially defective).

• She claimed to have insufficient resources to allow her to litigate her case in Ontario. (However the court found her evidence on this point to be “very sparse”, in that it was tantamount to “a bald statement that she cannot afford to litigate here”).

The factors that favoured the matter staying with the Ontario court were as follows:

• The husband filed a complete and correct divorce application in the Ontario court before the wife was able to file her corrected one in England.

• The couple were married in Ontario, which was also the location of their matrimonial home.

• The husband worked in Ontario and still had assets in the province.

Ultimately, after taking all these factors into account, the Ontario court found it wholly appropriate to have the matter heard locally, rather than in England. Any disadvantage to the wife was merely temporary, and the court observed that future court “appearances” by the wife could be achieved by electronic means or telephone. The court also made a point to expressly invite the wife to participate in the Ontario court action and make claims of her own, within that existing process.

For the full text of the decision, see:

Sodhi v Bedi, 2016 ONSC 3941 (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

Pass the Buck – or Pass the ‘67 Buick?

67 buick

Pass the Buck – or Pass the ‘67 Buick?

In a case called Townshend v. Townshend, the court was asked to consider whether a ’67 Buick – that had been passed from father, to mother, to son, to brother, and then to the grandson – was part of the Net Family Property of a husband in his divorce.

Originally, the car was owned by the husband’s father. After he died, the husband’s mother drove it for a few years but then gave it to one of her sons, Paul, to encourage him to go back to school.

The husband claimed that during the marriage, his brother Paul “gave” him the car for $400, which was the equivalent to what Paul had recently paid for new tires on the vehicle. The husband then claimed that he gave the car to his own son just prior to separating from the wife, i.e. putting it back outside the umbrella of the husband’s Net Family Property (NFP) in the upcoming divorce. At the date of separation, the car was registered in the husband’s name; by the trial date it was registered to the son.

In the subsequent divorce proceedings, the court was asked to consider whether the car should be considered a gift from the brother – and thus its value would be exempt from the husband’s Net Family Property – or whether its value should be added to husband’s tally of assets for equalization purposes.

At trial, the judge had said that “technically” the car was not a gift; rather the husband had purchased it from the brother for $400. The trial judge was also skeptical that the husband had gifted it to his own son prior to separation. The judge forced the husband to include the entire value of the ’67 Buick – about $5,750 – in the husband’s NFP.

The matter went to the Court of Appeal, which concluded that the trial judge had been wrong: While the judge was entitled to reject the husband’s claim to have given his own son the car prior to separation, he had clearly accepted that part of the husband’s story that had him buying the car from his brother Paul. As the Appeal Court explained:

It is implicit in the trial judge’s reasons that he accepted the husband’s evidence that he acquired the car from his brother by effectively reimbursing his brother for the cost of new tires the brother put on the car.

In these circumstances, in my view, it was unreasonable to conclude that the husband had not acquired the car by way of gift.

In other words, this arrangement fell short of a true purchase/sale: rather, the husband had been given the car by his brother except for having to reimburse the cost of the new tires.

As such, the proper approach was to consider the $5,750 value of the car – minus the $400 for new tires – to be a gift that was excluded from the husband’s NFP; only the $400 should have been added into the NFP calculation.

This case shows that especially in family situations, it can be difficult to identify the distinction between a gift between family members, as opposed to a sale or some other transaction (particularly if involves a price below market value). It’s always a good idea to get legal advice in these situations.

For the full text of the decision, see:

Townshend v. Townshend, 2012 ONCA 868 (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

Child Support & Parents on Social Assistance in Ontario – video

 

Wednesday’s Video Clip: Child Support & Parents on Social Assistance

Parents on social assistance who have custody of their children must make reasonable efforts to get support from the other parent. If they do not, they may receive less assistance, or none at all. If they do not already have a support agreement or order, they are expected to get one. They must give information about the other parent to a family support worker who can help them get a support agreement or order.

They should get legal advice before signing any agreement worked out on their behalf.

They may not have to try to get support if the other parent:

• has a history of violence towards them or their child

• cannot be found (but they must give their worker any information they have that might help find the other parent),

• or is not working and cannot afford to pay support (if he or she starts working again, then support can be re-ordered).

The amount of any child support they receive is deducted from their social assistance. So, their total income does not change because of the child support.

Usually, the payments go directly to them, and that same amount is deducted from their monthly social assistance cheque. But if there is a history of non-payment, the child support payments can be assigned to Ontario Works (OW) or the Ontario Disability Support Program (ODSP). Then they will get their whole social assistance cheque, even when the support payments are not paid.

Parents on social assistance who do not have custody are expected to pay child support to the extent that they can, as set out in the Child Support Guidelines. Currently, the Guidelines do not require support payments from parents whose income is less than about $6,700 a year.

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

Financial Experts in Family Law – To Hire or Not to Hire?

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Financial Experts in Family Law – To Hire or Not to Hire?

In the past, we have written often about the perils of self-representation. But as a family law litigant, it’s not enough to reflect on whether you are well-represented in your litigation; even if you have hired a lawyer, it’s important to ensure you don’t skimp on other resources that may be needed to best advance your case.

A good example is the decision on whether you want to use experts to help you assemble, organize, analyze, and put your evidence forward to the court.

The recent Ontario Court of Appeal decision in Farnsworth v. Chang, illustrates the potential downside of not doing so. There, the couple had amassed over $4 million in the 32 years they had been married. During their 12-day trial, the court heard evidence of their financial situation, which it then used to fashion awards relating to spousal support and equalization. On later appeal, the Court of Appeal reflected on the challenge that exercised must have posed to the lower court:

The trial judge referred to the evidence as “a tangled web of financial affairs.” Their several real estate properties had been acquired through a combination of savings and inheritances. Although they had the financial capacity to retain an expert to collect, organize and analyze their financial material, they relied on their own testimony as a basis for their claims. According to the trial judge, this involved their “best recollections and scattered documentation.”

In making the ultimate trial ruling, it’s clear that the judge would have benefited from having a coherent roadmap to the couple’s overall financial situation. And it begs the question of whether the outcome would have been different (and whether their later appeal would even have been necessary), if they had chosen to jointly spend a little on hiring an expert to round up the information.

But this raises a good question of where to draw the line between spending “a little” on an expert, versus spending far too much, particularly in light of what may be at stake, financially.

This was among the issues raised in an earlier case called Morton v. Morton. The husband and wife, having each hired an expert to assemble their financial documents in preparation for their upcoming divorce trial, had come to court because the wife wanted an advance on her equalization payment that would eventually be due to her from the husband. She needed the money now in order to pay the $14,000 her expert had charged her for a financial report. The husband claimed this fee was exorbitant – particularly compared to the wife’s expected equalization payment of about $284,000 – and insisted that she should pay for it herself. The husband, as the court put it, felt that “if she wishes to hire a very expensive firm and incur the cost of leaving no stone unturned, then she should bear that expense.”

The court agreed. In rejecting the wife’s claim for an advance on the equalization funds, it stated:

The [wife] is entitled to engage an expert of her choice; however, this does not mean that the [husband] must contribute beyond what is reasonable. If she wishes to have what was termed a “Cadillac” expert (and I make no observation as to whether cost equates to value) she can certainly do so provided she is prepared to pay any amount in excess of that which the [husband] has contributed or may be ordered to contribute.

For the full text of the decisions, see:

Farnsworth v. Chang, 2016 ONCA 442 (CanLII)

Morton v Morton, 2015 ONSC 4633 (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

Tax Implications of Divorce for Ontario, Canada Residents

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Tax Rules Made Simple 

Most people aren’t turned on by tax law; even lawyers find the topic unduly complex and labyrinthine. But there are a few relatively-straightforward tax rules and specific principles about which separating and divorcing couples should be aware.

Legal fees that are paid to pursue child or spousal support are deductible from the recipient spouse’s income.

The concept – at least as tax principles go – it relatively straightforward. The Income Tax Act specifically allows that for the purposes of determining taxable income, a person can deduct any legal and accounting fees (which the legislation collectively calls “professional fees”) that are incurred in the pursuit of a claim for child or spousal support. The professional fees are deducted in the year in which they are paid. In this way, by deducting those professional fees from total income, the person receiving child/spousal support enjoys a reduced level of income tax liability. (Note that legal fees incurred by the paying spouse or partner are not deductible).

However, this tax rule comes with some rather finicky exceptions and clarifications. For example:

• Legal costs to quantify a spousal support entitlement, established under the Ontario Family Law Act, can be deducted from income.

• Legal costs in connection with determining child support are always deductible, whether the proceeding takes place under the Ontario Family Law Act or the Divorce Act.

• Legal costs to establish the entitlement to child or spousal support amounts under the Divorce Act are not deductible.

• In contrast, legal costs incurred to enforce a pre-existing right to either interim or permanent support are deductible.

Complicated? It can be. Always seek competent Family Law and tax advice in connection with the deduction of legal fees from income.

 

5 Things to Know About the Canada Child Tax Benefit

The April 30th filing deadline will be here soon enough, so it’s time to start thinking about individual income taxes, and all of the various components that go into providing the federal government with a financial “snapshot” for the past year.

For separated or divorcing spouses with children, one of those components is the Canada Child Tax Benefit (CCTB).

The Canada Revenue Agency (CRA) administers the CCTB, which is a monthly, tax-free benefit received on behalf of a child under the age of 18. Its purpose is to assist families with child-raising costs, and its value depends on family income, among other things. The benefit amount is either mailed out by cheque, or – if the recipient requests it – can be direct deposited to an account held with a financial institution.

For parents who are separated or divorcing, the question arises as to how the CCTB is calculated and which of the parents is entitled to receive it. Here are the most important points to know:

 

1. Eligibility is determined by the Income Tax Act.

Once a CCTB application form is filled out by one or both parents, the Act’s stipulated eligibility requirements are applied to determine which parent is entitled to the benefit. The dollar-amount of the CCTB is calculated with reference to the applicant’s income for the previous year (together with the income of any cohabiting spouse or common-law partner, if applicable).

 

2. Usually, the custodial parent receives the CCTB.

Where the child splits time between different residences, the parent with primary responsibility for his or her care receives the CCTB. The CRA will make this determination, after reviewing the circumstances and assessing which parent provides the majority of the child’s care and upbringing. To do so, the CRA will refer to a number of specific legislated factors, and will consider the provisions of any existing court order.

 

3. If custody is shared equally, then each parent may be entitled to the CCTB for 6 months of the year.

The CRA currently does not split the benefit entitlement into periods of less than half-year, no matter what the actual custody and living arrangement may be. Furthermore, for CCTB purposes, spouses are only considered separated if they have lived separate and apart for 90 days or more.

 

4. Only one parent is eligible for the CCTB in any given month.

The monthly CCTB amount cannot be shared or pro-rated between parents, no matter how the child’s actual living arrangements are structured.

 

5. Eligibility for the CCTB ends when the child turns 18.

It may also end if the custody of the child changes, or if the parents fail to meet other eligibility requirements (particularly those relating to family income).

Note that the CCTB received by an eligible parent may include an amount for the Child Disability Benefit (CDB), which is an additional monthly benefit for qualifying families of children with several and prolonged mental or physical impairment. It also incorporates the National Child Benefit Supplement (NCBS), which is the federal contribution to the National Child Benefit, a program aimed at assisting low-income families with children.

 

 

Taxation of Support Payments

  1. Support payments are amounts paid to a spouse, a former spouse or the parent of the payor’s child
  2. The Tax Rules differ between spousal support and child support
  3. Support payments are defined as payments made when parties are living apart, paid on a periodic basis and which are made for the maintenance of the recipient or for a child of the marriage
  4. All support payments which are not specifically defined as spousal support will typically be considered as child support for tax purposes
  5. If spousal and child support are payable but the full amount is not paid, any payments made will be treated first as child support and only any remaining amount will qualify as spousal support

Tax Treatment of Spousal Support

  1. Eligible Payments made in a particular calendar year will be deductible in determining the income of the payor
  2. Payments deductible by the payor will be taxable to the recipient
  3. Spousal support payments paid by an estate are not taxable to the recipient or deductible by the estate

 

When are Support Payments Deductible?

  1. The payments must be made pursuant to an order or written agreement
  2. The agreement or court order in place must refer to the amount paid as spousal support
  3. Payments must be periodic, the parties must be living apart and the payments must be for the maintenance of the recipient

Deducting Support Paid Prior to an Order or Agreement

  1. If support payments were made prior to an order or agreement being in place then they can still be deducted if made in the same year or in the year before the agreement or order was put in place
  2. Payments must be eligible as support payments
  3. Child support payments made prior to an order or agreement can be deducted as well in some circumstances
  4. The agreement or order must refer to these payments and the parties must clearly indicate that these payments are to be deductible to the payor and taxable to the recipient in the year in which they were paid
  5. Amended personal income tax returns for prior years will be necessary

 

Tax Treatment of Child Support

  1. Any monies paid as support prior to an agreement being in place or not specifically defined as spousal support will be considered Child Support
  2. Child support paid pursuant to an agreement or court order is not deductible by the payor or taxable to the recipient

 

Taxation of Lump Sum Payments

  1. A lump sum payment is a single amount of money generally paid at once or in installments over a specified period of time
  2. Lump sum payments are typically not tax deductible, but can be in certain situations

Deductible Lump Sum Payments

  1. A series of annual payments for spousal support pursuant to a court order or written agreement will be deductible
  2. Lump sum payment representing an advance of future support paid only for the purpose of secure the funds for the periodic payments will be deductible
  3. A Payment made on account of overdue periodic payments which were required pursuant to a court order or written agreement may sometimes be considered deductible

Income Averaging for Recipients of Lump Sum Arrears of Support

  1. Income averaging is available to person who have received lump sum payment representing arrears of support payments where at least $3,000 was owed which was on account of amounts owing in previous years
  2. This allows taxation to occur as if the money was received at the time when it was owed as opposed to having to pay tax on the full amount in one year

Taxation of Support Arrears

  1. Arrears payments will be deductible in determining the taxable income of the payor if they are made on account of spousal support
  2. Arrears payments which are deductible for the payor are taxable to the recipient
  3. Taking advantage of Income averaging options may be prudent when receiving a large arrears payment representing spousal support

 

Arrears Payments which may not be Deductible

  1. If a settlement is reached whereby a lump sum is paid which does not represent the total amount of outstanding payments then this amount may not be deductible
  2. Partial arrears payments made where both child support and spousal support are outstanding will not be deductible until child support amounts have been paid in full

Taxation of Third Party Payments

  1. Payments made by a 3rd party for the benefit of a spouse, former spouse or child can be deductible in determining the taxable income of the payor
  2. Payments deductible by the payor will be taxable to the recipient spouse
  3. Common third party payments include items such as tuition fees and rental payments

 

 When will Third Party Payments will be Deductible?

  1. The nature of the 3rd party payment must be specified in a court order or agreement
  2. Both parties must agree that the 3rd party payments will be deductible
  3. The court order or agreement must specifically refer to the third party payments section of the income tax act
  4. The parties involved in the divorce must be living separate and apart
  5. The payments must be made solely for the maintenance of a spouse or former spouse if they are to be made after a court order or agreement is in place
  6. The payments may have been made for a dependent child if made before a court order or agreement was in place

When will Third Party Payments not be Deductible?

  1. The payment is in relation to a residence occupied by the payor
  2. The payment is in relation to the purchase of tangible property

Transfers of Property in Divorce

  1. Property transfers between related parties are general taxable even if no money changes hands
  2. In a divorce when capital property is transferred between spouses who are married by way of a settlement of martial property rights then the transfer may not be taxable
  3. To avoid taxation both parties must be residents of Canada

 

Tax Impact of Capital Property Transfer Between Spouses

  1. In a separation property is transferred between spouses by way of a rollover
  2. A rollover can be explained as a transaction in which property is transferred to one spouse and the government pretends as if they had purchased it (or purchased it alone) at the exact same time as when it was actually purchased
  3. spousal transfers of capital property are deemed to take place at the same cost as the original purchase for tax purposes so there will be no tax impact of transferring the property at that time
  4. when and if the property is sold, any gain, loss or recapture since the original purchase will belong to the spouse who now owns the property
  5. The transferor may choose to have the property transferred instead at its fair market value if they wish to take advantage of tax planning opportunities

 

Tax Impact of Non-Capital Property Transfer Between Spouses

  1. Non-Capital property transferred between spouses is taxable
  2. If property such as business inventory is transferred, then a sale at fair market price will be deemed to have occurred and the transferor must recognize any resulting gain or loss

 

Property Transfer and the Matrimonial Home

  1. Individuals can designate one home as their principle residence
  2. The gain on any sale of the principle residence is tax free
  3. Divorcing couples should take care in any transfer of the Matrimonial home that the receiving party is able to designate it as their principle residence
  4. This is most important in situations where there are two or more principle residences

 

Property Transfer and RRSPs/RRIFs

  1. All or part of one spouse’s RRSPs may be transferred to the RRSP of a spouse or former spouse without any consequences if the following conditions are met
    1. The transfer is made directly between the parties plans by direct deposit
    2. The parties must agree to sign certain CRA forms
    3. The transfer is made when the parties are living separate and apart pursuant to a court order or separation agreement
    4. The agreement must specifically require the division of property as settlement of martial rights
  2. An RRSP may be transferred to a spouse or former spouse tax-free in consideration for a lump sum spousal support payment if the lump sum is being paid to satisfy all future claims for spousal support

Tax Deductibility of Legal Fees

  1. Legal fees are typically not deductible unless paid in relation to obtaining, enforcing or varying a court order for spousal support
  2. Legal fees paid by a support paying spouse are never deductible

 

Legal Fees Paid by a Recipient-Spouse

Legal fees are deductible by the recipient of support in the year the fees are paid in the following circumstances:

  • Fees paid to obtain an order for child or spousal support
  • Fees paid to enforce an existing order for child or spousal support
  • Fees paid to vary an existing order for child or spousal support
  • Fees paid to defend a reduction of child or spousal support

 

Costs Awards

Any legal expenses being claimed must be reduced by the amount of any costs awarded by the court which are received by the recipient spouse in the same year as the fees are paid

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.

How Are Decisions Made About Custody in Ontario – video

 

Wednesday’s Video Clip: How Are Decisions Made About Custody in Ontario

In this law we review how decisions are made about custody of children.

Often, deciding on a parenting arrangement after a marriage is over is not easy. Under the Divorce Act one or both parents may have custody of the children.

If you cannot agree on a parenting arrangement, the divorce law sets out some basic principles that a judge must use when making decisions about children.

• The best interests of the children come first.

• Children should have as much contact as possible with both parents so long as this is in the children’s best interests.

• The past behaviour of a parent cannot be taken into consideration by the court unless that behaviour reflects on the person’s ability to act as a parent.

When deciding on the best interests of the child, the judge will take into account a number of factors including:

• Care arrangements before the separation. (Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extracurricular activities? Who dealt with the child’s school and teachers?)

• The parent-child relationship and bonding.

• Parenting abilities.

• The parents’ mental, physical and emotional health.

• The parents’ and the child’s schedules.

• Support systems (for example, help and involvement from grandparents and other close relatives).

• Sibling issues. Generally, brothers and sisters remain together, but under some circumstances it may be necessary to consider separating them.

• The child’s wishes. (There is no magic age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child’s wishes as the child matures. An older teenager’s wishes will often be decisive.)

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

Appeal Court Overturns “Do-Over” Directive to Trial Judge

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Appeal Court Overturns “Do-Over” Directive to Trial Judge

A three-member panel of the Ontario Court of Appeal had a chance very recently to consider whether it was appropriate for another Appeal Judge to order a custody matter to be sent back to the original Trial Judge so that any “errors or inconsistencies” in the initial judgment could be remedied, and to allow the Trial judge to go back and rule on anything that was not completely dealt with in the first place – in other words, to give the Trial Judge a “second kick at the can”.

The family law proceedings involved custody, access and relocation issues between two parents of a three-year-old child. At trial, the mother had been awarded custody, and was allowed to move with the child from Ontario to England.

The father’s appeal was heard by a single Appeal Judge, who effectively affirmed the Trial Judge’s ruling but – in an unusual step – then remitted the matter back “to correct any errors or inconsistencies in its wording and to adjudicate on any particular matters that were not dealt with as completely as the [Trial] judge desires in her reasons for decision or in the order itself.” The Appeal Judge also left it open to the Trial Judge to determine whether to admit further submissions, either orally or in writing.

This unconventional procedural step gave rise to a second appeal to the Ontario Court of Appeal, to determine whether the Appeal Judge’s decision to remit the matter back essentially for a rehearing was legally appropriate.

The Ontario Court of Appeal began by emphasizing that the orders of trial judges in family law matters – including those relating to child custody – are ordinarily to be given a great deal of deference. This promotes finality in family law litigation, and respects trial judges’ manner of apprehending the evidence before them. It is therefore never the function of any subsequent appeal court to impose the decision it would have made in the circumstances, or to embark on a fresh analysis. Instead, the test on any appeal is simply whether the trial judge erred or made a material error on his or her appreciation of the facts.

With that in mind, the Ontario Court of Appeal concluded that the Appeal Judge’s decision to remit the matter back to the Trial Judge for a further hearing was incorrect.

First of all, the Appeal Judge had purported to rely on certain Family Court Rules allowing a later court to remit custody and access issues back to the original judge in some circumstances. However, under those provisions the judge is only allowed to go back and revisit those issues that were put before the court but never actually decided. In this case, the Trial Judge had actually dealt with all of the matters relating to custody and access; none had been overlooked. So the Appeal Judge’s reliance on this Rule was misguided.

Next, the Appeal Judge interpreted certain comments in the Trial Judge’s reasons as indicating that she though certain issues had been left out of her own ruling, or that she had not turned her mind to whether additional issues needed to be reheard or submissions made. (In particular, the Trial Judge had commented that a draft Order, prepared by one of the lawyers and intended to reflect the Trial Judge’s ruling, was “an improvement on my Order.”)

This, according to the Ontario Court of Appeal, was not proper ground for remitting the matter back to the Trial Judge.

Although – in the interests of justice – there may be some rare cases where a judge can modify his or her ruling or withdraw the reasons and re-hear the cases entirely, this was not one of them.

Here, the trial had been properly held, the ruling had been made, and the parties were at the point where they were settling the question of how the formal Court Order should be worded to best reflect the Trial Judge’s decision. This was not the time to re-argue the already-decided issues, re-open submissions, and potentially change the decided outcome.

The Appeal Judge simply therefore lacked the legal authority to remit the matter back to the Trial Judge, and any subsequent ruling that she made had no force and effect. Instead, the Trial Judge’s first ruling on custody and access was restored.

Chitsabesan v. Yuhendran, 2016 ONCA 105 (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

If You Are Not Following the Rules, Must the Court Still Help You?

courthouse

If You Are Not Following the Rules, Must the Court Still Help You?

An interesting fundamental legal question is whether a disobedient litigant – meaning one who is in non-compliance with court orders – should nonetheless be allowed to participating in the ongoing proceedings, much less ask the court to make rulings in his or her favour.

The answer is: “It depends”.

The court was asked to make a ruling on that precise issue in a recent Ontario case called Cinapri v. Fleck. There, the parents had settled their disputes over custody and access of their three-year-old child by way of a lengthy Order that had been mutually agreed-to (i.e. a Consent Order).

However, the father claimed that the mother had later breached that Consent Order in several ways; the mother countered by saying he was being unduly technical, unreasonable, and hyper-vigilant about her level of compliance.
The father went before the court to ask that, in light of the mother’s various breaches and disobedience, she be prevented from coming back to court to ask for any orders. He made the request under Rule 1(8) of the Family Law Rules, which lists an arsenal of remedies a court can use in situations where a person fails to obey an order in a case (and it can be any order that was breached, no matter who obtained it in the first place).

And note that in this case the father was not asking to find the mother in contempt of court; that is a different sanction altogether and is governed by slightly different considerations and procedures. Instead, the father was asking the court to exercise its power under Rule 1(8) to make any order “it considers necessary for a just determination of the matter”, including dismissing the mother’s claim entirely, striking out any documents she may have filed, or barring her from obtaining any further orders until the court decides otherwise, among other things.

In this context, the court followed an established three-step process for determining whether to grant a remedy against a non-compliant litigant in these situations. The first step is to determine whether there is a “triggering event” – i.e. a specific order that was not obeyed, which in turns involves examining the precise wording of the order as compared to the disobedient person’s conduct. Secondly, if such a triggering event indeed occurred then the court will look at whether in all the circumstances the litigant should be sanctioned. Finally, if the answer is “yes”, then the court has a very broad discretion to order an appropriate remedy.

In applying that process to the facts in Cinapri v. Fleck, the court undertook a detailed examination of seven paragraphs of the Consent Order that had been reached between the parents, and gauged them against the mother’s conduct and level of compliance. After considering the evidence, it found that the mother had only failed to comply with relatively minor parts of that Consent Order in connection with the child’s health card and changing her name. The court therefore directed the mother to take immediate steps to fulfill her court-ordered obligations in those respects.

For the full text of the decision, see:

Cinapri v Fleck, 2016 ONSC 1297 (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

How To Find More Information About Ontario Family Law – video

 

Wednesday’s Video Clip: How To Find More Information About Ontario Family Law

In this law video we review the different ways you can get more information about family law.

There are many professional people, organizations and other sources that can help you or provide information about family law issues, including:

1. An information centre specializing in family justice

2. A parent education course for separating parents

3. Duty counsel at a legal aid office

4. A community legal clinic

5. A university law school with a student-run legal information service

6. A law society or bar association referral service for a lawyer

7. A divorce support or self-help group

8. Relevant library books and videos

9. The yellow pages, white pages or blue pages in your telephone book have listings for
many of these resources, and

10. A librarian at your public library may also be able to help you.

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

The Perils of “Homemade” Court Orders

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The Perils of “Homemade” Court Orders

We wrote recently about a case called Cinapri v. Fleck, where the main issue involved a dispute between the parents as toIn that context, the case highlights the difficulties that can arise when parents try – in good faith and with the best of intentions – to negotiate agreements for themselves, which are later endorsed by the court and incorporated into a formal document known as a Consent Order.

While this intent on parents’ behalf may be motivated by numerous factors – including the desire to minimize conflict, to advance the best interests of their children, and to save lawyers’ and court costs – the court in Cinapri v. Fleck summarized the problems inherent in this approach:

Every day, judges across the province make temporary or final orders in family law cases that are based on language engineered by the parties themselves. The parties or their counsel often wordsmith the terms of the consent, minutes of settlement or draft order with little or no input from the court upon reaching a resolution of the dispute between them. Even though the language used in a consent, minutes of settlement or a draft order are subject to the approval of the presiding judge, I think it would be fair to say that those consent documents often do not contain language that is as precise as the terms a judge would normally craft when making an order after a contested hearing. This is one of the reasons why language in a Consent Order is often contentious, particularly where the parenting of a child is involved.

In that case, the particular quibble between the parents that required their return to court was whether their use of the mandatory “shall” in the Consent Order was to be strictly observed. The father insisted it was; the mother claimed that she performed her obligations in good faith and that the father was holding her to a standard not required by either the spirit or the letter of the Consent Order.

After scrutinizing the wording of seven specific paragraphs of the Consent Order, and after reviewing whether the mother had complied to a legally-sufficient extent, the court made further detailed orders to clarify what she still needed to do.

In this case the parents may have thought they were speeding their litigation along, negotiating their own solutions, and saving themselves legal fees in the process. All of which is admirable – but in the end they still had to hire lawyers to represent them before the court to sort out a relatively minor technical dispute, focused on the meaning and intent of the words they used in the Consent Order.

For the full text of the decision, see:

Cinapri v Fleck, 2016 ONSC 1297 (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