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Posts from the ‘Adult Children’ Category

Deceased’s Estate Division Pits Sister and Ex-Wife Against Each Other

Deceased’s Estate Division Pits Sister and Ex-Wife Against Each Other

Here’s a slightly convoluted tale, but it’s an interesting one involving a dispute between the estranged wife and sister of a deceased man over his estate. Here is the cast of players:

1) Paul, who died in 2013.

2) His wife Pauline, from whom he separated in 2002.

3) Paul’s sister Rita, to whom he left half his estate, and who was also his Estate Trustee.

When Paul and Pauline separated, Paul agreed under their separation agreement to designate Pauline as beneficiary of a $150,000 insurance policy and keep up the premium payments. If Paul failed to maintain the insurance, it was agreed that Pauline would have “first dibs” against his estate for $150,000, in the role of a creditor.

In fact, Paul did not maintain the life insurance as agreed, and it lapsed before he died.

But there was a problem: Paul’s estate was too small to pay Pauline the $150,000 he owed, since his assets at death totaled only about $100,000.

Enter Paul’s sister Rita. As a beneficiary under his Will – and but for Pauline’s $150,000 claim – she stood to inherit 50% of Paul’s estate. In the role of Estate Trustee, she had obligations to all estate creditors, including Pauline. These duties These duties included ascertaining the debts and liabilities of Paul’s estate, and paying them. So Rita essentially wore “two hats”.

Pauline’s asserted first-dibs claim against Paul’s estate became a contentious issue, and the matter went to court for resolution. In an earlier application, the court rejected Rita’s argument that Pauline had missed the deadline for bringing her claim against Paul’s estate, which she did in 2015, more than two years after Paul’s death.

On appeal, the Court of Appeal confirmed that finding. The reason for Pauline’s delay was actually Rita’s own obfuscating conduct, and it would be unfair to hold her to that deadline in the circumstances.

As Estate Trustee, Rita had control over the information Pauline needed to ascertain whether Paul held any insurance policy for her benefit, as the separation agreement required. Pauline could not obtain the information from the insurer directly, so she was understandably beholden to Rita to provide it. Only Rita knew whether Pauline’s debt claim against the estate even existed; this put her in a unique and privileged position.

The problem was, Rita was not forthright with Pauline, and withheld the information she needed.

Initially, she had her lawyer advise (inaccurately) that Paul had maintained the life insurance, and later had the lawyer advise that the policy “may have lapsed”. Neither of these statements were true: Rita had known early on that Paul had let the life insurance lapse despite his obligations under the separation agreement, knew Pauline had a valid claim against his estate as a creditor. Yet she kept the information from Pauline and caused her to delay taking timely steps in pursuit of it.

From a legal standpoint the Appeal Court found that – wholly unrelated to their family connection – Rita and Pauline had a “special relationship”, and that Rita’s withholding of information made her guilty of fraudulent concealment, and made her conduct “unconscionable”.

The Appeal Court referred to and endorsed the findings of the application judge, who had written:

By withholding material facts, the estate trustee [the sister, Rita] concealed from [Pauline, the wife] that she had a legitimate debt against the estate as a creditor. In my view, given the special relationship between the estate trustee [Rita] and [Pauline], it was unconscionable for the estate trustee [Rita] to initially suggest that insurance was in place, then delay matters by promising to bring an application for directions, and then later take the position (a position which provided a direct material benefit to her as a beneficiary of the estate), that the time for claiming against the estate had expired.

The court accordingly found that the usual deadline for Pauline to claim for $150,000 against Paul’s estate did not expire in this case, and could proceed.

For the full text of the decision, see:

Roulston v. McKenny, 2017 ONCA 9 (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

Do Judges Need to Actually Give Reasons?

Do Judges Need to Actually Give Reasons?

For those of you “armchair lawyers” who like to follow real-life trials, watch TV crime shows, or even just read books by John Grisham, here’s an interesting question for you:

In law, can a litigant appeal a judicial ruling simply because the judge’s reasons were brief?

The answer is: Maybe.

The sparseness of the reasons given by the trial judge was among the grounds for appeal in the recent Ontario Court of Appeal decision in Filanovsky v. Filanovsky. A 45-year old woman had sued her parents for alleged physical and emotional abuse when she was a child, including violent blows to the face that left her with traumatic brain injuries.

After a 10-day trial in which the court considered evidence from the woman, her brother, various experts, and the parents themselves, the woman’s claims were dismissed.

She appealed and requested a new trial, with one of the grounds being that the judge failed to give adequate reasons to explain the reason her claim was dismissed.

The appeal court rejected this particular argument.

To begin with, the court conceded that prior decisions have established that a judge must give reasons:

1) to justify and explain the result;

2) to explain to the losing party why she lost;

3) to provide public accountability and to satisfy the public that justice has been done; and

4) to permit review by an appeal court.

However, the Appeal Court relied on another recent decision of its own called Dovbush v. Mouzitchka, where it had a chance to examine those requirements in detail, saying:

Trial judges are called upon to make difficult decisions, often in difficult circumstances. They preside as the particular dynamics of the trial unfold. Inadequate reasons therefore pose a particular challenge for appellate review.

On the one hand, as [Supreme Court of Canada justice] Rothstein J. noted in F.H. v. McDougall, … “an appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor, is the failure to give adequate reasons a free-standing basis for appeal.”

However, the Appeal Court in Dovbush had pointed that in determining the issue of the reasons’ sufficiency,

…[I]t turns on the overarching principle of whether the reasons permit meaningful and effective appellate review. Appellate courts will take a contextual and functional approach to addressing whether reasons meet this standard. The exercise has been variously described as one of determining whether the reasons demonstrate: “the path taken by the trial judge through confused or conflicting evidence” … or that “the trial judge came to grips with the issues and explained sufficiently his … conclusions and the reasons and basis for them” … or, the “what” and the “why” of the result.

Returning to the Filanovsky case, the judge who dismissed the woman’s abuse claim against her parents had actually given lengthy reasons, in which she assessed credibility, analyzed all the witness’ evidence, and pointed out inconsistencies. The reasons as rendered by the judge did allow for a meaningful appellate review.

The woman had raised other grounds of appeal, and these were dismissed as well.

For the full text of the decisions, see:

Filanovsky v. Filanovsky, 2017 ONCA 28 (CanLII)

Dovbush v. Mouzitchka, 2016 ONCA 381 (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

Both Executor-Siblings Liable When One of Them Squanders Money Under Dad’s Will

Both Executor-Siblings Liable When One of Them Squanders Money Under Dad’s Will

A recent Ontario Court of Appeal case addresses a very straightforward issue: If there are two trustees appointed under a Will, can one co-trustee stand by and do nothing, while the other co-trustee squanders Estate money?

In Cahill v. Cahill the facts were also straightforward, and involved a deceased father and his adult children. When Thomas died in 2010, his Will appointed his daughter Sheila, and his son Kevin as executors and trustees of his Estate. They were directed to set aside $100,000 in a trust fund for the benefit of another brother, Patrick, and to pay him $500 per month from that trust money.

Instead, Kevin spent the $100,000 for his own benefit. Kevin was at liberty to do so because Sheila had informally abdicated her responsibilities as co-trustee, giving him sole discretion over the funds and their management. By her own admission, she had virtually no involvement in the administration of her father’s estate. Kevin assured her that he was handling everything properly, and she made no inquiries of him.

The court found that the obligations of a co-trustee such as Sheila were clear: he or she is not entitled to shrug off the wrongful actions of another co-trustee and claim ignorance.   Passive acquiescence was not a defence. Rather, each co-trustee is responsible for the trusteeship, and can be held both jointly and individually liable for everything that is done through the exercise of the trustee’s powers. Their duties arose from the express wishes of the testator under his or her Will, and bBy legislation, they were each entitled to payment out of the Estate for their efforts.

In short – and even though there was no evidence that she acted dishonesty — Sheila was not entitled to unilaterally devolve her responsibilities as co-trustee to Kevin, and therefore remained liable to the Estate unless she could bring herself within the narrow exceptions under the Trustee Act. That legislation allowed for the court-ordered relief from responsibility, provided that Sheila could show that she: 1) acted honestly, 2) acted reasonably, and 3) ought fairly to be excused, in the circumstances.

Typically, “honest” behavior involves active involvement in the affairs and decisions related to administering the trust. “Reasonable” is usually judged according to what an ordinary prudent business person would have done in the circumstances.

Here, Sheila’s conduct was not a mere technical breach but rather a wholesale delegation of her responsibilities to Kevin, without making any inquiries at all.   This was not reasonable in the case.

The lower court’s ruling, which held that Shelia had been negligent and that both she and Kevin and breached their fiduciary duties to Patrick and other beneficiaries of their father’s Estate, was confirmed by the Appeal Court. Sheila and Kevin were jointly and severally responsible for almost $81,000, which was the outstanding principal needed to fulfil their father’s testamentary wish to pay $500 per month to Patrick.

For the full text of the decision, see:

Cahill v. Cahill, 2016 ONCA 962

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

To Get Retroactive Support, Does a Kid Have to be Eligible at Now … or Only Back Then?

SCC

To Get Retroactive Support, Does a Kid Have to be Eligible at Now … or Only Back Then?

A recent Ontario case highlights an interesting “timing” conundrum in Family Law: when a parent applies for retroactive child support, does it matter that the child over 18 when the application is made? Or does that make the child ineligible for support?

And what if it’s a motion to retroactively change existing support levels?

The law on this point was canvassed in the recent case of P.M.B. v. A.R.C.-A. The mother wanted support to cover a period when the child was 18 and attending school full-time. However, on the date of her application, the child was 19 and no longer attending school. She asked the court to order child support that was retroactive (i.e. effectively “back-dated”) to cover the child’s eligible period.

In considering that claim, the court resorted to the principles set out in a well-known Supreme Court of Canada decision in D.B.S. v. S.R.G., where the court set out the factors that family courts should take into account in detailing with such retroactive applications.

That higher Court had confirmed the general principle (known as the “D.B.S. rule”), that a claim for retroactive support cannot be made unless the child is eligible for support at the time the application is made. As the court in P.M.B. v. A.R.C.-A. put it: “Child support is for children of the marriage, not adults who used to have that status.”

(But this principle comes with a caveat, because the standards and thresholds for what makes a child eligible for support are slightly different under the provincial Family Law Act versus the federal Divorce Act. Also, other established factors that need to be examined, such as the reason for the parent’s delay in applying, the conduct of the paying parent, the circumstances of the child, and the hardship that such an award may entail. In short: Child support eligibility is a complicated legal issue).

However – as with all rules – there are some exceptions. The D.B.S. rule will usually be found not to apply in cases where:

• There is an existing order in place (and an established support obligation under either the Divorce Act or the Family Law Act) and a motion is being brought to change it retroactively;

• A party has engaged in blameworthy conduct (for example where the support recipients have been thwarted or blocked from pursuing a motion to vary support because of some misconduct by the paying parent); or

• The paying parent has failed to disclose income increases to the recipient parent, in a manner that the court considers blameworthy.

Ultimately, and after considering all of these principles, the court in P.M.B. v. A.R.C.-A. decided to stray from the usual D.B.S. rule, for various circumstantial reasons. These included: a) the existence of an oral agreement for child support; b) the fact that two of the three children were still under age and eligible for support when the retroactive support order was being made; and c) because the father had been fully aware of his support obligation – and the fact that he was not meeting it – all along.

For the full text of the decision, see:

P.M.B. v. A.R.C.-A., 2015 ONCJ 720 (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

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

Can You Pay Support to a Child Directly after They Reach 18?

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Can You Pay Support to a Child Directly after They Reach 18?

In a recent Blog we pointed out that a support-paying parent is not entitled to unilaterally choose to substitute gifts or tangible items in place of his or her monetary child support obligation. A related question is whether a parent can choose to pay support to an older child directly, for example where the child is over 18 but in the circumstances is still entitled to support.

Once again, the answer is generally “No”.

Unless a court specifically orders otherwise – and regardless of whether the child is of the age of majority – a parent is not entitled to innovate in this manner and purport to pay financial support directly to the child; it must be paid to the other parent. For one thing, this avoids predictable disputes over whether and how much the child has actually received and how it was spent; the money is better put into the hands of the other parent where it can be controlled and accounted for.

With that said, a paying parent might ask for a court order allowing for such an arrangement, but it will likely be granted only if there is a good reason to do so. For example, in a Saskatchewan case called Bourque v. Janzen, the parents had a highly acrimonious split, and the mother allowed more than $60,000 in child support that had been paid into court to languish there, while she lived in near poverty with their six children. (The mother had thwarted the father’s attempts at access, and apparently didn’t want to capitulate on the support until that other issue was resolved).

Since the mother refused to accept and use the money for the children’s benefit, the father applied to court to allow for it to be paid to the children directly, if for nothing else because they deserved the money for the chores they performed at the family farm. He also claimed that the mother, who was self-represented, would squander the child support money on litigation if it was paid directly to her. (She had filed voluminous materials in court, alleging political persecution and Satanism, among other things).

Faced with this situation (which it conceded was unusual) the court nonetheless found no reason to order that the child support payments should be made directly to the children. That type of order, the court found, was generally reserved for situations where it was clear that the custodial parent would not apply the money towards maintaining a home for the child as intended. In this case, the mother not only incurred home-related expenses but had actually borrowed money to meet the children’s needs. Plus, the fact that she was self-represented spoke against the allegation that she would fritter away the money on litigation; indeed she had testified that she planned to $60,000 to retire the family debt and fund the children’s education once the access litigation was resolved.

Even in the face of some out-of-the-ordinary scenarios like those found in Bourque v. Janzen, the bottom line is that child support payments are generally made from the paying parent, to the custodial one. A court may allow exceptions to that basic rule, but those cases will be few and far between.

For the decisions that establish and apply these principles, see:

Taylor v. Taylor (1988), 64 O.R. (2d) 326, [1988] O.J. No. 878 (Dist. Ct.).

Bourque v. Janzen, [2012] S.J. No. 705, 2012 SKQB 458 (Q.B. (Fam. Div.)

Del Pozo v. Del Pozo (1992), 7 O.R. (3d) 591, [1992] O.J. No. 220 (Ont. Prov. Div.)

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.

Adult Child is in School Because They Have “Nothing Better to Do” – Do They Still Get Child Support?

adult children

Adult Child is in School Because They Have “Nothing Better to Do” – Do They Still Get Child Support?

Increasingly, parents are finding their kids are “leaving the nest” later and later. There can be several reasons, but often it’s because kids in their late teens/early 20s are still unfocused in their career and educational plans, and have little incentive to leave a rather cushy arrangement. Or they may be attending post-secondary education because they have nothing better to do. But even young adults who are dedicated students may find that in this economy their planned courses of higher education have not yielded them jobs that can financially sustain them. They may need second (or even) third university degrees before they can launch themselves on the path to self-sufficiency.

It’s a widespread societal phenomenon, and the individual repercussions are all the more magnified when “child” – who by this stage is often over 18 and is really an “adult” – has parents who are separated or divorced. We have written several prior Blogs about cases in which courts are asked to decide whether an adult child pursuing higher education is still entitled to child support, but the situation comes up very often; since the outcomes are very fact-driven, the more guidance to people in this scenario, the better.

In a recent Ontario case called Menegaldo v. Menegaldo, the court scrutinized closely the issue of whether an adult child is entitled to receive support, and provided a good set of guidelines. First of all, it emphasized that the analysis is fact-driven in every case, and the overriding legislative test is whether the adult child’s education plan is reasonable in terms of the child’s abilities, the plans and expectations of the parents in regard to the child’s post-secondary education, and the needs and means of both the child and the parents.

But with that background in place, the court added that the following factors and questions are also relevant:

• How old is the “child”?

• What are his or her qualifications, experience, aptitude, and abilities?

• What is his or her level of maturity, commitment and responsibility?

• Is the child actually enrolled in a course of studies? Full- or part-time?

• Has the child applied for student loans or financial assistance? Has he or she received any scholarships or bursaries? If so, how much?

• How well can the child contribute to his or her support through part-time employment?

• Is the child’s education and career plan reasonable and appropriate? Or are they in school because they have nothing better to do?

• Is the child succeeding in their chosen course of studies?

• What are / were the parents’ plans for the child’s education, particularly when the family was intact?

• What are the financial means of the parents and the child? What are their respective financial needs?

• How willing is the child to remain accountable to the parents for post-secondary education plans and progress?
(Note that it is not necessary to establish all of these factors exist; they are just part of the courts’ considerations.)

The question of whether an adult child is still entitled to support is a complex one, but in my law practice it often and shows little sign of abating in frequency. Perhaps it’s a sign of the times.

For the full text of the decision, see:

Menegaldo v. Menegaldo, 2012 ONSC 2915

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

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 examine 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 www.RussellAlexander.com.

When Does a Seriously-Ill Adult Child Stop Needing Support?

adult child

When Does a Seriously-Ill Adult Child Stop Needing Support?

In a brief decision from a few weeks ago, the court considered a narrow but interesting point: For an adult chid with a serious disease, when does he or she stop being a “child of the marriage” for child support purposes?

In Furlani v. Furlani, the father brought a motion to terminate the child support he had been paying as part of his divorce from the mother. The mother opposed the request as premature: she was concerned that the health of their adult daughter, who had Cystic Fibrosis, might not remain be stable enough in the future to warrant terminating support now.

The court reviewed the evidence jointly tendered by the former couple. In the course of finding that the daughter no longer fit within the definition of “child of the marriage” under the Divorce Act, and that the father’s support obligations should therefore be terminated, the court summarized the evidence and its conclusions this way:

[The daughter] was diagnosed at age three with cystic fibrosis. Her mother testified about the difficulties [the daughter] experienced as a child and the efforts that [the mother] had to make to get the doctors to finally arrive at the correct diagnosis. I understand very well the effect that diagnostic testing and treatment of young children can have on the child and the parents, alike.

I also understand how difficult it can be for the parents of a child who has gone through such testing and treatment to let go, once the child has reached adulthood. There is always a fear that the past will return with a vengeance. In [the daughter’s] case, it is a certainty that her illness will one day pose great challenges. In fact, she faces many challenges today, including requiring treatment for lung and sinus infections.

However, at present, [the daughter] is overcoming these challenges. She is now 21 years old. She lives in southern Ontario with a partner, with whom she is romantically involved. Although both her parents share concerns about it, [the daughter] has entered into a formal contractual relationship as an apprentice to learn the tattoo trade. While she is not yet earning income from that trade, [the daughter] does have income in the form of Ontario Disability Support Program (ODSP) payments that she has been receiving since she turned 18.

The court added that while the Divorce Act’s “child of marriage” definition excludes a child over 18 who is “unable, by reason of illness, disability or other cause” to withdraw from her parents charge or to obtain the necessities of life, the daughter in this case did not fit that category; indeed the court noted that “[s]he appears to be a determined young lady.” It also pointed out that the parents’ provision of financial assistance from time-to-time did not change that assessment; the court observed “this is something that parents of young adults are often called upon to do.”

Finally, while acknowledging that the parents were concerned about their daughter’s future, the court pointed out that it was charged with making a determination based on her present situation. In this particular case, the daughter was able to remove herself from her parents’ charge and would continue to be able to do that for the foreseeable future; the father should no longer be obliged to pay support for her. Another motion could be brought in the future, if her health and abilities were to change.

For the full text of the decision, see:

Furlani v. Furlani, 2015 ONSC 1582

 

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.

Father Pulls Disappearing Act for 13 Years, then Resurfaces to Claim Support “Refund”

refundFather Pulls Disappearing Act for 13 Years, then Resurfaces to Claim Support “Refund”

It’s not often that a court comes right out and calls the behaviour of a parent “shocking”, but in a recent Ontario case called George v. Gayed that was the court’s unequivocal response to the father’s audacious request to be reimbursed for the support he had already paid.

The couple had been married eight years and had two daughters, who were now 30 and 27 years old. The father was an engineer with a Ph.D. specializing in aerospace and marine technology and naval architecture, while the mother was trained as a medical doctor specializing in ophthalmology, though was working in a different field currently. They separated in 1988.

In 1995 the father was ordered by the court to pay $750 per month in support. Shortly afterwards he claimed he was unable to pay this amount because his income had been reduced; however, he failed to provide any proof. Over the following few years, he remained uncooperative with the mother’s attempts to get full financial disclosure from him, and in 1999 – after realizing that she would never get the needed information and that she could not afford the legal fees to pursue the full child support entitlement – she eventually moved forward for a divorce. This resulted in the father being ordered to pay $360 per month based on what the court speculated was his income at the time of $25,000.

However, a few months after that 1999 order, the father unilaterally cut off all contact with the children and remained out-of-touch for about 13 years. He did not contact them even on special occasions, such as their birthdays, Christmas or graduation. The mother was unable to locate him despite her diligent efforts, which included hiring a private investigator. This left her solely responsible for raising and supporting the children, and she racked up significant expenses of her own to put their daughters through post-secondary education. The daughters themselves contributed to a very reasonable extent, but they were left with large debts in the process.

In 2012, the father suddenly re-surfaced and claimed in a motion that he had actually overpaid support by $68,000. The mother, not surprisingly, brought a counter-motion asking that she finally be given full financial disclosure by the father, that she be awarded greater child support based on those accurate figures, and that she be awarded her full legal costs.

The court summed up its view of the father’s position this way:

I conclude that the [father’s] conduct in this case is shocking. He has abandoned his daughters and burdened the [mother] with the responsibility of providing for their support and university education. He now comes out of hiding and seeks a reimbursement of amounts he claims he has overpaid when he clearly should have paid more.

Rather than grant the father’s ill-conceived request, the court took the opportunity to make some serious inquiries into the father’s finances, and among other things ordered extensive disclosure of the father’s income and assets (and indeed forced him to sign authorizations for the release of third party information in the mother’s presence). As a result, it was revealed among other things that the father and a previously-undisclosed investment account that held almost $127,000, which account the court ordered frozen. He also had corporate income in the role of president, sole shareholder and officer/director of his consulting company, and was receiving a pension from the United Kingdom.

Further, the court accepted the mother’s evidence, including the expert report she had commissioned, and concluded that her support entitlement calculations were not only reasonable, but were actually conservative. The daughters’ educational goals were also well in-line with the family expectations, and they had contributed a reasonable amount to their own tuition and expenses.

In short, the father did not get the “refund” of support he claimed; to the contrary, he was ordered to pay a lump-sum of more than $60,000, reflecting the amounts he should have been paying during his 13-year self-imposed absence from the children’s lives. He was also ordered to pay the mother’s outstanding costs of $17,000, plus her full legal costs of just under $70,000.

For the full text of the decision, see:

George v. Gayed, 2014 CarswellOnt 12841, 244 A.C.W.S. (3d) 398, 2014 ONSC 5360 (Ont. S.C.J.).

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