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Posts from the ‘Child Support’ Category

Father’s Threat to Tell Child “Everything” About Custody Conflict Attracts Court’s Reproach

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Father’s Threat to Tell Child “Everything” About Custody Conflict Attracts Court’s Reproach

In a recent blog I point to what is really a recurring theme in past years:  The courts’ willingness to admonish litigants for an assortment of misbehaviour, including lack of cooperation, lack of full disclosure, and – very commonly – a lack of focus on what’s important in a family setting:  The best interest of the children.

This latter point was the court’s theme in Delisser v. Tefferi, where the father had made a request to expand his access to the 9-year old son “J.”, who was currently living with the mother under a sole custody arrangement.

The court heard the history of litigation between these now-separated parents, which featured the father having what the court called a “toxic” attitude toward the mother.  This included an incident where, rather than agree to pick up the boy from where he was playing basketball nearby, the father called the police, claiming that the mother had breached the strict letter of a court order by not having her at her home for pickup at the start of the father’s access time.

In contrast, the court noted the mother had shown considerable flexibility toward the father, including accommodating him when he needed to change plans.

But more troubling was what the court concluded was the father’s overall level of hostility toward the mother.  The court recounted another incident:

On yet another occasion mother asked father not to talk to the child about what was going on in court or in the proceedings between them. Father responded by saying to the mother: “You’re a piece of shit and J. will know everything you said”.

This kind of response by father demonstrates such poor judgment, that the court is almost at a loss for words to explain to father why this is so. But since father will hopefully be reading these reasons, I will attempt that explanation.

The court explained the fuller basis for its concerns:

Disputes by parents which involve children, and which take the parents into the courtroom, are adult matters. They are not matters for children. It is a fundamental premise that parents must make all necessary efforts to shield their children from these disputes.

Children who are exposed to parental conflict risk becoming emotionally harmed by that conflict. This risk of harm is so patently obvious that it has been recognized repeatedly by courts for many years. …

Furthermore, a parent who believes that a child, at the age of only 9 years, is capable of understanding the basis for parental conflict, has no real appreciation for the ages and stages of child development.

Additionally, when a parent sets out to tell his child “everything” the other parent said, he has no appreciation of the damage he is creating, either to his own relationship with that child, or the relationship between the other parent and the child.

The fact that the father in this case was prepared to acknowledge the foregoing statement, and to not apologize for it, or to not appreciate why it was so clearly the wrong thing to do, demonstrates not only very poor judgment, but also a complete lack of insight.

In court, during the course of testimony, the father called the mother a “crazy controlling person”.

A statement like this is, unfortunately, entirely consistent with the anger and poor judgment the father displayed when he insisted that the mother was a “piece of shit” and that he was going to tell the child “everything you said”.

If the father is prepared to make statements like this in a courtroom, in front of a judge, the court can only shudder at what the father might be saying to the mother, or about her, away from the court’s scrutiny.

The father’s anger and hostility toward the mother is palpable. The court’s concern is the extent to which this anger and hostility is impacting the child, and the extent to which that may have actually resulted in emotional harm to J.

The court was left to conclude that the father had “unremitting anger and vitriol” toward the mother, and a lack of insight as to how it might affect the child.  However, the father clearly loved the child as well.  This left the court to balance the competing tension between preserving the father-child relationship, but still expressing its abhorrence with the father’s behavior.

In the end, the court somewhat-reluctantly agreed that there had been sufficient “material change” since the original order was made seven years earlier, which warranted expanding the father’s access to the boy.

But after rendering the decision on the legal issue, the court added:

Final words

It is absolutely imperative that the father read these reasons with an open mind. It is critical that he understand how his current behavior risks doing serious emotional damage to his son who, I have no doubt, he loves.

The father must develop an understanding that regardless of his negative feelings toward the mother, maturity and being child-focused necessitates that he puts those feelings on the back-burner when it comes to J.. and the manner in which he involves himself in J..’s life.

The father needs to understand that J.. is entitled to two loving parents, both of whom are required to nurture and sustain J..’s relationship with the other parent – in other words, doing the opposite of what he has been doing so far, namely, denigrating the mother and exposing J.. to his own hostility toward the mother.

The father also must understand that unless he assimilates this information and changes his behavior, the risk of harm to J.. may become so great that the court could ultimately be left with no choice but to suspend or even terminate his access entirely.

If this were to occur, the ultimate loser would be J.., the person with whom the court is necessarily most concerned — and the person about whom father should be most concerned.

I encourage the mother to continue to demonstrate her flexibility toward the father where it is appropriate to do so in J..’s best interests.

I have no doubt the mother will continue to act as she has done in the past.

For the father, however, the court strongly urges a greater generosity of spirit toward the mother, not just for its own sake but, more importantly, for the sake of the healthy development of his son.

There are wise words indeed, for any parent going through the family litigation process.

For the full text of the decision, see:

Delisser v. Tefferi

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 Your Spouse Moves Out, Can They Later Ask You to Pay Rent?

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If Your Spouse Moves Out, Can They Later Ask You to Pay Rent?

As was reported in a recent article in the Financial Post reported, the decision in a case called O’Brien v. O’Brien tackled the intriguing question of whether a spouse who stays behind in the matrimonial home after separation must pay “occupation rent” to the other spouse who has moved out pending their mutual divorce trial.

In this case, that divorce trial took place a full seven years after the separation, and it was the husband who continued to live in the jointly-held matrimonial home after separating from the wife.  Neither of them took steps to finalize the property-equalization process, and the home increased significantly in value during that time.  The husband also made some mortgage payments.

The husband continued to live the home, paid all the expenses, did renovations, and paid down some of the mortgage.  He claimed against the wife for her share of the maintenance and improvement costs, and the wife countered with a claim for occupation rent against the husband.  She claimed that he owed her $1,800 per month for approximately the past seven years, totalling about $78,000, and gave him notice of that claim only shortly before their divorce trial.

The court, in considering whether the husband was obliged to pay the wife a fair amount for the rent that he would otherwise be paying elsewhere, articulated some of the legal principles that must be factored in, namely:

  • The timing of the wife’s claim for occupation rent;
  • The duration of the husband’s occupancy;
  • The wife’s inability to realize on her equity in the property;
  • Any reasonable credits to be set off against the occupation rent potentially payable by the husband; and
  • Any other competing claims in the litigation.

Drawing from prior case precedent, the court listed some added factors that also needed assessment, specifically:

  • The wife’s conduct, including any failure to pay support (if previously ordered to do so);
  • The husband’s conduct, including any failure to pay support (if ordered);
  • Any delay by the wife in making her claim for occupation rent;
  • The extent to which the wife has been prevented from having access to her equity in the home;
  • Whether the wife moved out of the home so that it could be sold;
  • Whether the husband paid the mortgage and other carrying charges of the home;
  • Whether their children resided with the husband and whether the wife paid child support; and
  • Whether the husband increased the selling value of the property.

The court noted that the burden is on the wife in this case to satisfy the court that these factors are established – in whatever combination, and to the needed degree.  Also, it was up to the wife to provide specific evidence as to what the market value of the home would have been.

After reviewing all these components against the facts of this case – and despite the fact that the husband had in the former matrimonial home for more than 7 years pending trial – the court found that he did not owe the wife any occupation rent here.  Conversely, and in light of that conclusion, the husband was ineligible to make a claim against the wife for home maintenance and improvements, because he did that work for himself as an “occupier” of the home.

For the full text of the decisions, see:

O’Brien v. O’Brien

Griffiths v. Zambosco

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

Court Cites Former Israeli Prime Minister Golda Meir’s Wisdom in Rejecting Father’s Expanded Access Bid

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Court Cites Former Israeli Prime Minister Golda Meir’s Wisdom in Rejecting Father’s Expanded Access Bid

Some cases I write about here are good for illustrating what to do, if you are going to Family Court.  But here’s yet another one that falls under the “What Not to Do” category. And – rather uncommonly – the court even draws from the wisdom of an international political figure in making its decision.

In Lahey v. Gauthier, the couple had a brief common-law relationship, and had a 5-year old child together.    The mother had sole custody, and the father went to court to ask for very broad access rights.

The mother resisted; her concerns understandably arose from the father’s egregious history of litigation misconduct, and his pleadings had previously been struck out by the court.  He currently owed her more than $150,000 in unpaid child support and legal costs. Although she recognized the importance of his being involved with the child, and admitted that he was otherwise a good father, she asked the court to allow him access only on the strictest terms.

The court held a focused hearing to determine whether the father should have the very broad access rights that he requested.  It noted that the father’s misconduct in the current proceedings included wilful and deliberate refusal to pay child support, or comply with orders for costs, and prior findings of contempt.   According to the mother, he also refused to adhere to existing access times, and bullied, stalked and intimidated her.  This included sending her harassing emails, in which he essentially trying to brow-beat her into acceding to his request for increased access.  He also told the child that she was a “mean mommy” for limiting the time that they could spend together.

The court took note that the father, who was self-represented, had a similar history of misconduct in litigation involving his first wife and their two children. Indeed – as he had in the current litigation – he had been jailed in connection with those prior proceedings for non-compliance with court orders as well.

The court assessed the evidence and made the following observations:

In considering the history of both this litigation and that involving [the father’s] two eldest children, a clear pattern emerges. [The father] feels that he is answerable to no one but himself. As an access parent, he arrogates to himself the right to make decisions that he is not entitled to make or which should be made with the other parent. He is not a “team player” who can work with the other parent of his child(ren) to best secure their best interests. …

If [the father] were to gain the access rights he seeks, [the child] could suffer emotional harm. [The father] would have the opportunity to continually stir up trouble, whether by constantly haranguing the mother, disrupting [the child’s] routines, or ultimately utilizing the opportunity to turn the child against his mother.

While the father denies having berated the mother, his emails attached to her affidavit for trial tell a different story. They show him constantly badgering her about time with the child. He wrote of her “cheating” the child out the right to be with his father and abusing all three of his children. He described her parenting as being “suspect” and falling “short of good parenting”, a situation that he acerbically describes as “not surprising”. He accused her of “…messing up [the child’s] life and his right to his father.”

About the father’s refusal to pay support in particular, the court concluded:

[The father’s] failure to pay support, in itself is not sufficient to deny or even limit his access to [the child]. But it is part of a piece that represents his refusal to consider anyone’s needs above his own. He does not feel that he is financially responsible for his son if he does not have control over the child. He would cut off his child’s nose to spite the mother’s face.

In short, the father was clearly intransigent about increasing his role in the boy’s life, and was impervious to the influence of others. Not only did he feel he had a unique ability to decide what was in the children’s best interests, he was unwilling to cooperate with the mother, and would undermine his parenting unless he was limited to a clear and rigid schedule for access.

In contrast, the mother had a reasonable approach, never questioning – and indeed encouraging – that the father continue to exercise the existing level of access the courts had previously granted him.  These, she felt, already struck a fair balance in terms of the child’s relationship with his father.

In the end, the court rejected the father’s expanded access bid, adding the following admonishment and recommendation for counseling:

To paraphrase the late former Israeli prime minister, Golda Meir, peace will come to [the father’s] extended family only when he decides that he loves his children more than he despises their mothers. While that happy event has yet to occur, it is hoped that a strict regime will bring home to [the father] the consequences of his behavior. I reiterate to him the referral to counselling that [a prior court] so wisely made to him in 2012. Sadly that recommendation appears to have been honoured only in the breach.

For the full text of the decision, see:

Lahey v. Gauthier

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

Could a Couple’s 30-Year-Old Separation Agreement Be Struck Down Now?

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Could a Couple’s 30-Year-Old Separation Agreement Be Struck Down Now?

The couple had been married in 1969, when the woman was 15 years old, and the man was 21 years old.  They had no children.

They decided to divorce in 1985.  A year earlier they had executed a separation agreement, witnessed by their respective lawyers, in which they divided up their matrimonial property and agreed to release their spousal support obligations towards each other.   On that latter issue, they each attested to the fact that: 1) neither of them required spousal support from the other; and 2) they had both considered their present and future financial prospects, and thought the agreement was fair.  It also contained a clause confirming that they each understood their rights and had obtained Independent Legal Advice (ILA) before signing.

All the agreement’s provisions were incorporated into the divorce order they obtained from a court a year later.

Fast forward to 2015, almost 30 years later. The wife brought a motion to have the separation agreement set aside, particularly as it related to her waiver of spousal support.  While she did not recall much about the circumstances all these years later, she claimed that she did not understand the nature of what she was signing at the time.

The court’s first task was to determine which version of the provincial Family Law legislation to apply to that assessment.  The one that had been in force 30 years ago required the wife to show that she had agreed to waive her support right in “circumstances that [were] unconscionable.”   The present-day equivalent, which was the Family Law Act, required only that she show that she did not “understand the nature or the consequences” of the separation agreement.

The court concluded that – using either threshold – the wife had failed to meet the test.

Looking at the evidence that could be provided from both parties, it fell short of showing the wife – who worked as a legal secretary at the time – did not understand the agreement, or appreciate the effect of signing away her support rights.   The rest of the clauses gave her the matrimonial home, the car, and most of the furniture, in a scenario where both of them were working at the time and had no children.   Even looking only at what was in writing, the court noted the spouses had specifically agreed on the fairness and lack of unconscionability of the circumstances.  Both acknowledged receiving ILA in advance.

In fact, the court noted that the wife had actually adhered to the agreement in other respects:   It contained an unusual clause stating that if within stipulated time-frames the wife were to either remarry, sell the home, or die, she would owe the husband $40,000 with interest.  When she did marry another man 7 years after the divorce, she called the husband to tell him she was prepared to honour her obligation under the agreement to pay him the $40,000, and did so during a meeting at a local restaurant.  This helped show that she appreciated the nature of what she had signed overall.

The court concluded:

Based on all of the evidence, I conclude that the parties intended to divide all of their assets, and live separate lives.  Indeed, the parties did just that.  The agreement was not unfair …

Both parties lead lives very separate and apart from each other.  They lived their lives and organized their affairs on the assumption that everything had been divided and resolved.  This understanding survived for decades.

Concluding that it would be unfair to allow either spouse to re-open the terms of this long-ago agreement now, the court dismissed the wife’s motion.

For the full text of the decision, see:

Pipitone v. D’Amelio

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

 

Mental Capacity to Marry, Separate, or Divorce

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Mental Capacity to Marry, Separate, or Divorce

Recently I talked about the Family Law case involving Canadian boxing legend George Chuvalo, who is at the centre of a court battle between his two adult children on the one side, and his wife of 24 years on the other.  The key legal issue is whether the 80-year-old Chuvalo has the mental capacity to make his own decisions, including the one about whether to divorce his current wife.

In the course of reaching its decision, the court makes some important general observations about the nature of “mental capacity,” particularly as it applies to the Family Law context.  It examined the relevant case precedent, and gleaned the following points around how a person is assessed for “capacity” to marry, separate, divorce, or make other personal decisions:

1) The needed level of mental capacity can vary. 

  • A person’s right of self-determination is an important philosophical and legal principle.
  • A person can be capable of making a basic decision and not capable of making a complex decision.  There are varying degrees of capacity.
  • Each threshold is assessed separately. The ability to manage finances, consent to treatment, stand trial, manage personal care, make personal care or health decisions, all require separate decision-making capabilities and assessments.
  • This means that the capacity to separate, the capacity to divorce and capacity to instruct a lawyer in connection with a divorce are also all assessed separately.

2) The thresholds are different for marriage, for separation and for divorce.

  • For marriage, a person will not have the legal capacity to marry unless he or she is capable of understanding the nature of the relationship and the obligations and responsibilities it involves. This involves understanding the nature of the marriage contract, the state of previous marriages, one’s children and how they may be affected.
  • Separation is the simplest act, requiring the lowest level of understanding.   A person only has to know with whom he or she does or does not want to live.
  • Divorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse.  It is the undoing of the contract of marriage, which has been described as not requiring a high degree of intelligence to comprehend. (In contrast, financial matters are taken to require a higher level of understanding).

What’s the take-away?  Two things:  1) The needed level of mental capacity can vary with the decision being made; and 2) In this age where people are living longer than ever, it’s important to understand the legal tests that apply to various kinds of decisions, especially where it may be an elderly or infirm loved one who is making them.

For the full text of the decision, see:

Chuvalo v. Chuvalo

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

 

Judge Hopes “Sting” of Paying Full Legal Bill Brings Warring Couple to Their Senses

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Judge Hopes “Sting” of Paying Full Legal Bill Brings Warring Couple to Their Senses

In a brief ruling on costs in an acrimonious family dispute the court tried to restore focus to the separated parents, who had each incurred $15,000 in legal costs for a set of motions and cross-motions that should never have been brought in the first place.

The parents’ motions related to various issues around spousal support, child support, and payments for extraordinary expenses about which they could not agree.  Even considering that the father came out slightly ahead on the motions overall, the court said his “victory is pyrrhic”.

More importantly, the court said that both parents’ behavior “is in dire need of correction,” given their lack of timely disclosure of income information, lack of true attempts at compromise, last-minute demands of each other, and mutual fixation on items that did not advance the resolution of their issues.  (In illustration, the court pointed out that the parents’ discussion about buying a new $99 hockey stick continued over two months).

In explaining the decision to let the parents each bear their own legal costs on the motions, the court began by observing that the dollar-values being fought over were small:

Relative to the value of the file, it is clear that the parties have lost all sight of proportionality. This motion ought never to have been brought. The value of the issues the parties are fighting over is relatively small. The spread between positions of the parties is $20,658. The net judgment is $4,291.07, in Father’s favour.

The court also noted the avalanche of paperwork that needed to be filed in support of these motions:

In comparison to the value of the matter at issue, the record on this Motion to Change is 5 inches thick, setting aside the material filed for the Refraining Order. For this motion alone the parties filed 5 Affidavits appending 50 multi-paged exhibits. In addition, Father filed a case book and memo of argument.

Nor did the potential toll on public resources go unnoticed:

I have no doubt that each parties’ solicitor and client bill will not be less than $15,000.00. I have not attempted to calculate the cost to the public purse, or the effect that this motion had on the availability of court time for other litigants.

The court concluded:

I hope that the sting of each litigant paying his or her full legal bill without recovery from the other will encourage both parties to attempt to resolve their minor issues without the expenditure of large amounts of their and the public’s resources.

For the full text of the decision, see:

Bolland v. Bolland

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

For Parents, Access Rights are a Given – But What About Step-parents?

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For Parents, Access Rights are a Given – But What About Step-parents?

In the recent decision in Agmon v. James the divorced parents of a 9-year-old child were able to form a united front on at least one matter: – that the child’s new step-mother should not have access to him.

Since their split when the child was an infant, the parents had always co-parented without a court order or separation agreement, and had a fixed rotation schedule for the child spending time with each of them.  The father re-married early, to a woman who became the child’s stepmother. That relationship lasted 7 years; the stepmother had no other children of her own.

After the stepmother’s split from the father, both parents closed ranks against her, by refusing to allow her access. Indeed, since that separation in 2016 she had been allowed to see the child only four times. That access ceased entirely when she filed her court application asking for a temporary access order, to allow her to see the child on alternating weekends plus some part of the summer.

At the subsequent hearing the court tackled this uncommon scenario, noting that it required the balancing of two competing rights and interests:  the autonomy of the parents to make access decisions, versus the access rights of a person who has formed a settled intention to treat a child as if they were part of his or her own family.

The court noted that Ontario law allows the parent of a child “or any other person” to apply for an access order.  The best interests of the child are the key governing consideration in the court’s evaluation of the application, and involves the court considering numerous factors.

These included the love, affection and emotional ties between the child and the stepmother, and between the other family members.  On this point the court preferred the stepmother’s evidence, finding that she played an important role in the child’s life, and showed a settled intention to treat him like a member of her own family.  This was also true in the past, when she helped provide a stable home life for much of his childhood when they all lived together with the father.

In light of the stepmother’s very important pre-existing relationship with the child – and while the wishes of the custodial parents were admittedly to be given great weight in determining who gets access – in this case it was in the child’s best interests to allow the stepmother the temporary access she wanted.  She had clearly assumed a role as a third parent to him.

Although the relationship between all the adults was marked with mutual mistrust, the parents had acted unreasonably and arbitrarily here, and it behooved them to put the child’s interests ahead of their own, the court said.  Their wishes were to be given some consideration, but their parental autonomy did not go so far as to exclude the stepmother from the child’s life in these circumstances. The court summed up its conclusions this way:

  1.  The child loves the stepmother and the stepmother loves the child.
  2.  The child views the stepmother as a parent and the stepmother treats the child as her own child.
  3.  The child has an important relationship with the stepmother that needs to be preserved and fostered.
  4.  Access with the stepmother will ensure that the child can have important relationships with his sister, friends and extended family members.
  5. The court is satisfied that the stepmother will act responsibly in parenting the child.

The court granted an order allowing the stepmother’s temporary access for one weekend every four weeks.  It noted that the mother and father were expected to promote that access, admonishing that the “child has the right to enjoy relationships that are important to him.”

For the full text of the decision, see:

Agmon v. James

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

Court Orders Husband to Divorce Wife

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Court Orders Husband to Divorce Wife

In a recent B.C. decision, the court grappled with whether it had the legal authority to: 1) order a man to take positive steps divorce his wife; and 2) uphold a Canadian-court-granted divorce in Iran, in circumstances where the Iranian courts themselves had refused to do so.

The couple had been married in Iran in 1994, where they entered into a traditional marriage contract. They moved to Canada where they separated in 2012.  Both parties embarked on litigation in Canada to to pursue certain divorce- and child support/custody-related rights, and were formally divorced in 2015.

However, the husband refused to participate in allowing the wife to divorce under Iranian law.  Under that country’s legal system, and in the Islamic tradition, only the husband has the right to divorce in most cases. Indeed, the husband was resolute in preventing a divorce from the wife, texting her taunting comments in which he invited her to “dream on,” and stated “I will not let it happen even if you mobilize the whole world”.

The wife was thus compelled to ask the Canadian court for an order forcing the husband to complete certain forms, so that an Islamic Iranian divorce could be registered with the Iranian government.  She also asked for a ratification of the Canadian divorce, to ensure that it was recognized under Iranian law.

This would not only allow her to remarry if she desired, but it would also allow her to travel to and from Iran where here elderly, infirm mother and disabled sister still live.   Prior trips to visit them there had occurred only because the husband had given his consent, in keeping with the Islamic tradition.   The wife was also in jeopardy of being detained in Iran against her will if she travelled there, since her husband could prevent her from leaving the country.

After several appearances and appeals, the court finally granted her request.  It found that it did indeed have the authority to order the husband to take certain affirmative steps to obtain an Iranian divorce.

While noting that the husband had certain religious rights, his lack of cooperation resulted in direct, substantial harm to the wife, in a situation where he did not even appear at the court hearing, despite being served through several different methods. (And the court used its discretion, and found it appropriate in all the circumstances to proceed without him).

The court concluded:

I find that it is against Canadian public policy to recognize that the right to the parties’ Islamic Iranian divorce is exclusively the claimant’s, as a man. As discussed, such a finding would effectively restrict the [wife] from visiting her aging mother and disabled sister in Iran. This is unwarranted in light of Canadian views and jurisprudence on the equality of sexes, and the harm to the [wife] is an injustice that offends Canadian morality.

The parties are divorced by order of this Court, and there is no basis for the [husband’s] failure to grant the Islamic Iranian divorce.

The court ordered the husband to execute the needed documents within 14 days, to send them to the relevant Embassy, and to provide a copy to the wife within 7 days of executing them.

For the full text of the decision, see:

Kariminia v Nasser

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

 

Should Real Estate Downtown Be Factored into Realtor’s Income for Support Purposes?

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Should Real Estate Downtown Be Factored into Realtor’s Income for Support Purposes?

Many of you will know that for child and spousal support purposes, the amount of annual income that a support-payor earns is tied to the amount of support that he or she must pay (although this is subject to other considerations as well).  In a recent Family Law case from B.C. the husband, a prominent and highly- successful  real estate agent, argued that the volatility and uncertainty in the real estate market should be factored into assessing his income for use in his divorce proceedings.

As background:  Under federal divorce and child support law, courts extrapolate a support-payor’s income using the past three years of his or her earnings.  In this case, that amount averaged about $2 million per year. The husband’s realty company – of which he was the sole shareholder – had done extremely well, with 7-year earnings of over $13 million.

Nonetheless, the husband claimed that his past earnings were not necessarily reflective of his future earnings, because of the uncertainty in the West Vancouver real estate market in which he worked.   He predicted an imminent downturn sparked by government’s Foreign Buyer’s Tax (among other things), which in turn would impact his ability to pay support for his former wife of 17 years and for their two children.  Although they had lived a lavish lifestyle in the past, he asked the court to take note of a pending market downturn, and adjust his support obligations in a commensurate manner.

As the court explained his argument:

The [agent husband] argues that it would be devastating to him if his income for support purposes is based on an average of the realty company’s past three years’ net income. He says that the real estate market slowed down from 2016 to 2017 and is likely to slow further down in 2018. He argues that the slow down has been caused by the foreign buyer’s tax, the tightening of residential mortgage insurance rules, and the increases to the Bank of Canada interest rate. The [husband] says these have resulted in a general tightening in the mortgage financing marketplace. Further, he says there is a hesitancy in the real estate market due to uncertainty over what steps the NDP government might take, some of which have been announced since the [husband] swore his affidavit.

The court essentially accepted some – but not all – of the husband’s argument.  It agreed that the upward trajectory of Vancouver-area real estate prices has likely ended, and accepted that the husband had “reason to be pessimistic about the real estate market and hence his income.”

However, the court found it reasonable to conclude that any negative impact has already been felt by now. The court accordingly looked at the husband’s 2017 income figures, together with his income for 2018 thus far, and set the child and spousal support figures accordingly.

For the full text of the decision, see:

Thiessen v Soprovich

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

Boxer George Chuvalo at the Center of Legal Incapacity Issue Involving Marital Reconciliation

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Boxer George Chuvalo at the Center of Legal Incapacity Issue Involving Marital Reconciliation

The legacy of long-retired legendary Canadian boxer George Chuvalo did not end in the ring: it has spread to the legal realm as well, since his mental capacity for making his own decisions is at the center of a court battle between two of his adult children and his wife of 24 years.

The outcome is important, as it’s part of ongoing disputes being litigated between some of Chuvalo’s adult children and his wife – their stepmother – from whom he has been living separate and apart for several years.  The dispute had devolved into what is now a two-year legal battle, featuring allegations of kidnapping, extortion, and reckless spending, among other things. (And in separate legal proceedings, the adult children are also seeking to assert the power of attorney they were granted, over the objections of the wife, who disputed its validity and is seeking guardianship of Chuvalo).

Chuvalo, now 80 years old, suffers from what the court concluded was “significant cognitive impairment”.  It appointed the Public Guardian and Trustee as Chuvalo’s representative and litigation guardian.

Against this background, the specific legal question for the court was whether Chuvalo’s incapacity makes him unable to decide whether he wants to divorce his wife, or to reconcile with her.  Independent medical experts were at odds over his current level of decision-making capacity and whether he was legally “competent” for these purposes.  That designation involved assessing whether he 1) understood the context of his decisions, 2) was aware of his specific choices, and 3) appreciated the consequences of those choices.

Chuvalo’s wife claimed that in his present declining mental state, he simply lacked the legal capacity to instruct counsel, and to seek a divorce from her.

Despite evidence that Chuvalo wanted to live with and be with his wife, the court noted that statements to this effect were not necessarily reliable in legal sense, to the point it could conclude that Chuvalo actively wanted to reconcile.  As the court said:  “Expressing a desire to live with his wife is just that.”  Plus, there was no evidence that he understood whether there would be legal consequences (relating to the legal aspects of separation and divorce) that the desire to live with her would entail.  Since the evidence was clear that his mental health had declined significantly, and that he suffered cognitive and memory challenges, the court could not rely Chuvalo’s statements.

After reviewing the evidence overall, the court declared that Chuvalo “does not have the capacity to decide whether to reconcile.” While conceding that this implied there had been a separation at some point, the court said it was not deciding that issue conclusively for Family Law Act and Divorce Act purposes, and that it could be addressed in a future trial. Nor was the court deciding whether Chuvalo had the capacity to actually divorce.

In a more pro-active and hopeful vein, the court added:

The fundamental issue here is the conflict between [the wife] Joanne Chuvalo on the one hand and George Chuvalo’s children Mitchell and Vanessa on the other hand.  I have not heard evidence but I have formed an understanding that each is convinced that the other is out to manipulate and control George for personal financial gain. I make no findings. I do observe that it is time for those who are or have been close to George and important to his welfare to find a way to collaborate in his best interests. In her evidence, [the wife] Ms. Chuvalo observed that she has been devastated over the last few months when she has seen him at court attendances at the extent to which George has deteriorated. [The Public Guardian and Trustee’s] retainer is to address litigation issues.  However, once he gets up to speed, I would ask him to consider how the PGT might encourage the family members to find a way to bury the hatchet and co-operate to develop a plan that will work in the best interests of George in his remaining years while he continues to experience inevitable decline.

For the full text of the decision, see:

Chuvalo v. Chuvalo

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