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Posts from the ‘Children’ Category

Did Husband Try to Kill Wife on Tropical Holiday? If So, Should He Be Denied Access to the Kids?

knife

Did Husband Try to Kill Wife on Tropical Holiday? If So, Should He Be Denied Access to the Kids?

It goes without saying that Family Law cases come in all shapes and sizes, and that there are some very interesting ones out there. However, it is not often that a Family Court has to consider whether the elements of a murder plot were in place. This was the court’s task in Clayson-Martin v. Martin.

In an almost 300-paragraph judgment, the court examined in sometimes-excruciating detail the evidence relating primarily to a holiday to Jamaica that the couple, who were married 6 years at the time, took in December of 2010.

The determination was directly relevant to the couple’s separating and divorce issues, because the wife wanted to bar the husband from having custody – or even access to – their two children, on the basis that he tried to kill her.

The court heard evidence that during the marriage the conflict between the couple had escalated, due to their very different personalities and approaches to parenting. By 2010 the wife had effectively concluded that the marriage was over.

Nonetheless, the husband began to plan a trip to Jamaica in circumstances that the wife thought were suspicious, and she testified (in her view) that he was obviously planning at the time to kill her there. His behavior included shopping for uncharacteristically dark suits that she felt he was planning to wear to her funeral, his sudden installation of a lock on the closet in their shared bedroom, his removal of her as a beneficiary of his teacher’s pension, and his failure to include her upcoming birthday in his daytimer (suggesting that he did not expect her to be around).

Still, she agreed to go on vacation, which she described after-the-fact as involving remoteness and minimal interaction, with meals eaten in silence and each of them going off to do their own separate activities.

The court heard evidence that the husband pressed the wife to go with him to a particular spot featuring an outcropping where he thought it would be nice to take pictures of the resort. They ended up on an isolated road where the husband, who was driving, pulled over. From that point in the narrative, the court heard conflicting stories: The wife described the husband as trying to strangle her and cutting her with a knife on the neck, ostensibly because he thought she had cheated on him. The husband, in contrast, described that a heated argument developed when they stopped at the outcropping; he claimed it was actually she who came at him with a knife. In his version, she sustained an accidental wound to her own neck when he tried to push her knife-wielding hands away from him.

After poring through the conflicting evidence in great detail, the court found that both parties had been less-than-truthful in their evidence; for example, it concluded that the wife’s testimony about the purportedly tense and distant days leading up to the knifing incident were actually untrue. As the court put it, the wife:

…, portrayed a picture of two people indifferent to one another, or worse. Only in cross did she agree that the vacation was close to idyllic. One can speculate that she lied to bolster her version of what happened next, but the bottom line is that she did lie. The truth also undercuts the possible motive of the [husband] to kill her, rather than face a separation.

The court also heard evidence from other witnesses, including police and bystanders. In the end – and as it related particularly to the narrow question of custody and access – the court said:

It is trite, but true, that only the parties themselves know what really happened on December 23, 2010. It is my conclusion that neither of them has been entirely truthful. In fact, it is my conclusion that both have been less than honest about any number of things. While it is always somewhat dangerous for a judge to hang his or her hat on “it does not make sense”, there is so much here that does not make sense.
As I have presumably made clear earlier on in this judgment, nothing in the evidence leading up to the decision to go to Jamaica in December 2010 lends itself to a conclusion that the [husband] planned to go there to kill the [wife].

The sole possible motive for the [husband] planning to kill the [wife] in Jamaica would be the [husband’s] jealousy coupled with his belief that the [wife] was committing adultery, and that he could not tolerate not having full-time custody of the children. There is no doubt but that the [husband] did believe that the [wife] was committing adultery and that he accused her of it well before December 2010. As well, the [husband] was resistant to considering separation and divorce. It is however, a huge step from that to formulate a plan to kill the [wife].

In short: The court held the evidence, on all the balance of probabilities, was not enough to sustain the conclusion that the husband intended to kill the wife in Jamaica. Furthermore, and after considering the reports of various experts, it concluded that any kind of parenting that required joint decision-making, frequent consultation, or anything beyond minimum contact between the parents, would be inappropriate. Instead, the wife was to continue to have sole custody (as she has been doing for the past four years), but that there should be strict conditions on her custodial powers. The husband was likewise given access to the children on a specified scheduled and on defined terms.
For the full text of the decision, see:

Clayson-Martin v. Martin, 2014 CanLII 773)26 (ON SC)

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

Splitting the Costs of Kids’ Hockey

Ice hockey sticks

Splitting the Costs of Kids’ Hockey

Kids’ hockey is big in many families, and when the parents split, the proper division of what are sometimes hefty ongoing costs can become contentious.

In broad terms, the issue is governed by the federal Child Support Guidelines, which under its section 7(1)(f) allows for the payment by parents of what are called “extraordinary expenses for extracurricular activities”. Under the wording of that provision, these expenses must be justified by taking into account:

1) the means of the parents,

2) the family’s spending pattern prior to separation; and

3) various listed financial factors (which include the amount by which the expenses exceed what the support-receiving parent can cover, bearing in mind his or her existing income), or else a court-initiated evaluation of the costs in relation to various criteria (including the overall costs, as well as the child’s particular talents).

In more practical terms, this means that the courts’ treatment and allocation of hockey-related expenses will always vary according to the particular facts. However, a glimpse at a recent case illustrates the real-life manner in which courts approach this exercise.

In the New Brunswick case called C. (J.) v. C. (M.),l the court considered the hockey-related expenses of an older daughter of parents who had separated. Since then, the girl’s school marks had slipped from A’s and B’s down to C’s, she had engaged in some self-harming behaviour, and she had apparently acted out some family-related frustrations and anger by striking a referee, for which she was temporarily suspended from play.

The father wanted the mother to pay her proportionate share of the full $3,500 in hockey expenses for the year. The mother wanted the expenses capped at $1,500 per year, with each parent paying half.

The court considered the circumstances:

It is the older girl’s ice hockey costs and anticipated costs that have caused the most significant financial issue dividing the parents. The importance of her love for hockey cannot be overlooked as it appears to be an important stabilizing influence in her life. Without a doubt it is in her best interests to continue playing (See, in this regard s. 7(1) of the Federal Child Support Guidelines SOR/97-175). The father testified that he fears: “losing her” if she does not continue in hockey. She is a goaltender and in the fall of 2014 she will likely begin playing for a Bantam AAA girl’s hockey team. The team plays throughout New Brunswick as well as other Maritime Provinces and elsewhere. Although she currently plays at the level below, because of her age, she is affiliated as a backup goalie this year for the team she expects to play with next year.

None of this would likely be an issue except that these parents are not persons of considerable financial means. The father earns just over $38,300.00 per year while the mother earned $32,400.00 per year last year. She recently started a new job for which she will be on probation for the first six months receiving a salary of $36,000.00.

The father claims that the hockey expenses for this year for the older daughter totaled $3,399.87 … These claimed expenses include registration, equipment, travel costs to out of town games and tournaments and fuel costs for the father to transport his daughter to practice thirty five kilometres outside the City … The mother says she has offered to take her daughter to every second practice but the father says the daughter does not want her mother to transport her. She believes that she should only be responsible for her share of registration, equipment and tournament costs.

In the end – and after lamenting that only partial estimates of the future hockey-related expenses had been provided – the court struck somewhat of a compromise, deciding that only certain hockey expenses were subject to being shared by the parents. The court observed that hockey seemed to be “a principal support in [the daughter’s] social world without which her sense of wellbeing would be seriously impacted”, and even expressed hope that it might serve to strengthen the fractious relationship between mother and daughter. The court wrote:

I am reluctant to attempt to devise a formula to pay for this anticipated cost when there is only the cost experience of the lower level hockey team this past year to guide the evaluation process. It is a reasonable inference to draw that as children rise to higher levels of athletic competition the costs associated with such achievements rise, in some instances, dramatically. However, without some evidence of the actual annual costs for members of the Bantam AAA team this past season it is impossible to predict what those costs might be for this family.

At this point I will accede to the request of [the wife] and adopt her proposal of capping expenses at 1,500.00. I am doing so bearing in mind that … Travel Expenses to Games and Practices [were estimated] at $1,330.40 and season total expenses at $3,399.87. I believe that any travel to local practices even if it is to a hockey arena 35 kilometres outside the City … should be accounted for under the heading of ordinary expenses associated with child support already being paid. The mother will be responsible for $690.00 as her pro rata share. …

With some reluctance I will insert a review clause on the issue of the 2014-2015 hockey season costs for the older daughter once it has been determined what team she will be part of for the upcoming season and a proposed budget has been prepared itemizing the costs that will be incurred. … However, local travel costs to [sic] are not to be included in any proposed budget. This may serve to promote a sharing of the local travelling responsibility for getting their daughter to practice between the mother and father, something the mother would like to see happen. Spending uninterrupted time together travelling back and forth to practice may help promote a more healthy relationship between them. …

The court also inserted a review clause in the order, so that the division of costs could be revisited once it became clear whether the daughter was going to be chosen for the Bantam AAA team (in which event the hockey-related costs were anticipated to increase significantly). It also ordered that any hockey expenses were to be discussed between the parents before being actually incurred, as this had not happened in the past despite a clear term in the Separation Agreement that called for it.

For the full text of the decision, see:

C. (J.) v. C. (M.), 2014 NBBR 161, 2014 NBQB 161

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

Top 5 questions about spousal support in Ontario, Canada – video

 
Wednesday’s Video Clip: Top 5 questions about spousal support in Ontario

In this video we review the top 5 questions about spousal support in Ontario, Canada.

Spousal support — which is sometimes called “maintenance” or (especially in the U.S.) “alimony” — is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship.

The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.

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.

Top 5 Principles Around Child Support in Ontario – Parents and Step-Parents, Take Note

top 5 cs

Top 5 Principles Around Child Support in Ontario – Parents and Step-Parents, Take Note

A was looking at an Ontario decision called Boivin v. Smith recently, and it made some good points about child support and what role it’s intended to play in the dissolution of the parents’ relationship. These general principles are worth keeping in mind when negotiating child support obligations, and especially when parents head to court to try to have those obligations varied.

By way of background: The court’s discussion was actually set against a child support dispute between the mother and the stepfather who, despite not being the child’s biological father, had nonetheless agreed to pay support for the child while living with the mother and even afterward. The agreement confirmed that the stepfather had a settled intention to treat the child as his own and support her; the mother had given the true biological father a “pass” by settling for less than the legislatively-mandated amount of support and by waiving payment of the arrears he owed her. Essentially, the mother had relied solely on the stepfather for the child’s support.

The mother eventually went to court to have the stepfather’s support increased, and the question arose as to whether and how much he should pay in the circumstances, including the complicated consideration of the financial obligations that should be (or should have been) imposed on the biological father over the years.

In this context, the court examined closely the precedent cases, and came up with the following list of principles that were derived from them (and I am paraphrasing):

1. Child support is the right of the child. It is aimed to give the child the same standard of living as when the parents are together, to the extent possible.

2. Child support orders do not take parents off the hook. Child support orders do not relieve either parent of continually ensuring the children receive and appropriate standard of living. They merely help parents by giving them some certainty and predictability in their everyday financial affairs.

3. There is no excuse for delay. A parent who is entitled to child support but does not pursue it is assumed to be acting unreasonably, unless he or she shows otherwise.

4. Avoiding child support obligations is wrong. A parent who knowingly avoids or holds back on the child support that he or she owes is blameworthy.

5. It’s not good enough to just “settle up” what is owed. A parent who is forced by the court to pay arrears or other unpaid amounts is doing the child an injustice. As the court put it: “A retroactive [court] award is a poor substitute for an obligation that was unfulfilled at an earlier time.”

For the full text of the decision, see:

N.B. v. J.S. (sub. nom. Boivin v. Smith), 2013 ONCJ 426

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.

Second Families – Should Support-Paying Dad Get a Break Because He Supports Seven Other Kids?

kids

 

Second Families – Should Support-Paying Dad Get a Break Because He Supports Seven Other Kids?

The question in Fiddler v. Fiddler was whether a husband should be allowed to pay his first wife little or no spousal support simply because he had voluntarily assumed financial responsibility for numerous children with his new partner – even though most of them were not biologically his.

The court’s answer was: “No”.

The husband and wife had been married for seven years and had a 13-year-old daughter when they split up. Almost immediately the husband moved in with another woman and they eventually had two children together. She also had four other children of her own from a prior relationship, and for whom she received no child support from the biological father. The six children all lived with the husband and the new partner in a remote Ontario location; the brood was increased to seven during the summer months only, when the husband’s 17-year-old child from yet another relationship joined them.

Although the husband the first wife agreed that he should pay child support for the daughter, they disagreed on the wife’s entitlement to spousal support. She therefore applied to the court for an order forcing the husband to pay on an interim basis pending their divorce trial.

The court examined the facts: Here, the wife had been the primary caregiver for their now-13-year-old daughter during the marriage, and had made sacrifices to allow the husband to advance his career. The husband earned about $110,000 per year; the wife earned about one-quarter of that: i.e. just under $30,000. She had advised the husband soon after their separation that she was intending to ask for spousal support, so it could not be said that he was caught off-guard.

More importantly, it was the husband’s own choice to take on the responsibility of a second family, including financial responsibility for numerous children that are not his own. His self-imposed obligation to support those children should not be a factor in considering whether the first wife should get support, nor should it be used as a reason to reduce the support to which she was otherwise entitled.

The court granted the wife’s request; however it made one concession to the husband’s situation in that – given the living expenses in his remote location and the travel costs of exercising access to their mutual child – he was allowed to pay on the low end of the range recommended by the SSAGs in all the circumstances.

For the full text of the decision, see:

Fiddler v. Fiddler (2014), 2014 ONSC 4068

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 our main site.

After Paying 16 Years of Child Support, Man Learns He is Not the Father – Should He Get a “Refund”?

springer

After Paying 16 Years of Child Support, Man Learns He is Not the Father – Should He Get a “Refund”?

Family law has no shortage of interesting cases; in this Ontario decision, which was handed down just a few days ago, there was a “plot twist” that would rival one you’d find on any reality TV show.

The couple met in 1997 when they were both in relationships with other people. (In the woman’s case, she was married and in the process of separating from her husband). They started a casual sexual relationship, and about eight months later the woman gave birth to a child. The mother estimated the child must have been born 10 to 12 weeks prematurely; apparently both assumed the man was the biological father and they signed the birth papers accordingly.

The man started paying $100 in monthly child support, and continued to pay faithfully for 16 years, even though they never lived together as a family and no real parent-child relationship was ever fostered.

Then, everything changed: At the request of Ontario Works (from whom she had been receiving social assistance) the woman took the man to court to ask for a substantial increase in the amount of child support he was obliged to pay, which was to be geared to his current income. In response, the man asked for a DNA paternity test, which proved he was not the biological father.

With these results out in the open, they then agreed to terminate the man’s obligation to pay child support, but he (again at the behest of the social assistance office) took it one step further – he asked to have all his prior payments over the past 16 years returned to him, totalling almost $17,000.

The court refused the man’s request. Even though he was not the true father (and indeed claimed he had not even seen the child since 2000, which the court questioned), the man had shown a settled intention right from the beginning to treat the child as his own, and could not now withdraw his financial support unilaterally. As the court observed: “Of considerable importance was [the man’s] comment that he always considered [the child] to be his son until the DNA paternity test said otherwise in 2014.” It was also important to note that in law, the needed “settled intention” was not contingent on the man actually knowing the child was not his.

Also, there was no evidence that the woman had misled the man into believing that he was biological parent; to the contrary, at the time of the child’s birth she honestly believed he was the father. Even if the man had doubts himself, he did not investigate: In the first year or two the woman had mentioned there had been some “overlap” between the end of the sexual relationship with her former husband and the beginning of the casual relationship with the man. The man could have requested a paternity test at the time, but instead he waited another 14 years.

In this case, the best interests of the child governed. Even though he was not the real father, the court confirmed that in law the man had a historical obligation to pay child, and declined to order the money returned. (By agreement, he was no longer obliged to pay going-forward, however.)

What are your thoughts on this decision? Should the man have gotten his child support money back?

For the full text of the decision, see:

Day v. Weir, 2014 CarswellOnt 15022, 2014 ONSC 5975

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 our main site.

How Base Child Support is Calculated – video


 

Wednesday’s Video Clip How Base Child Support is Calculated

In this video we discuss how the Child Support Table in the Guidelines sets out the amounts of support to be paid, depending on the “gross income” of the paying parent and the number of children that the support order covers. Gross income means before taxes and most other deductions. The amounts to be paid are based on the average amounts of money that parents at various income levels spend to raise a child.

The table sets out the amount of support that must be paid at different income levels from $8,000 to $150,000, depending on the number of children. A base amount is given for every $1,000 increase in income, along with a way to calculate amounts in between.

There is also a Simplified Table where you can look up the paying parent’s income to the nearest $100, without having to do any calculations.

Sometimes, a judge does not accept a parent’s statement of income. Instead the judge uses an amount of income that is reasonable based on things such as the parent’s work history, past income, and education. The judge will then apply the table to that income.

A judge might do this if the parent:

• fails to provide the required income information

• is deliberately unemployed or under employed, or

• is self-employed or working “under the table”, and there is reason to believe they do not report all of their income

Before the Guidelines came into effect, judges had more flexibility in deciding the amount of support. Now, in simple cases, judges must order the amount shown in the table. Judges can order different amounts, but only in special cases. And they must use the table amount as a guide

What Are The Child Support Guidelines? – video


 

Wednesday’s Video Clip: What Are The Child Support Guidelines?

In this law video Kiley discusses the child support guidelines.

In 1997, the federal government brought in a set of new rules and tables for calculating the amount of support a parent who does not have custody of his or her child must pay to the parent who has custody.

These rules and tables were later adopted by the Ontario government and are set out in the Child Support Guidelines.

A link to the Federal Child Support Guidelines is provided in the More Information, Courts and Statutes section of our web site www.russellalexander.com

Child Support Entitlement – How Does Social Assistance Factor In?

welfare

Child Support Entitlement – How Does Social Assistance Factor In?

Ontario has two social assistance programs that help eligible residents who are in financial need. They are:

• The Ontario Disability Support Program (ODSP); and

• Ontario Works.

As the name suggests, the ODSP helps those with disabilities, while Ontario Works helps those with temporary financial need. Both programs can provide recipients with financial and employment assistance, and are often used by those who have experienced some sort of setback – and unexpected disability (in the case of ODSP) or a temporary decline in financial resources (in the case of Ontario Works).

The question sometimes arises as to how a parent’s entitlement to child support plays into the whole equation of receiving benefits under either of these two social assistance programs.

The answer is simple: Whether for new applicants and those already receiving benefits, both the ODSP and Ontario Works programs require that the person make reasonable efforts to get financial support from the child’s other parent. (This remains the case even if the two parents were never married, or if the other parent is not really the child’s biological or adoptive parent, but has merely demonstrated a settled intention to treat the chid as if it were his or her own).

A parent in receipt of ODSP or Ontario Works benefits who does not make reasonable efforts to pursue child support to which they are entitled may find that their benefits are reduced or cut off entirely.

Note that eligibility for social assistance does not depend on the actual receipt of the child support payments, but rather the efforts that are being made to obtain that support. These include attending court appointments and providing the ODSP or the Ontario Works office with current information, including information about the other parent. Also, in some situations the requirement for the recipient parent to actively pursue support may be waived, for example where the other parent is deceased where his or her whereabouts are unknown, or where the child’s paternity cannot be determined. There are also certain specified situations in which the pursuit of support can be temporarily waived or deferred.

In any case, the intention behind these policies is that the ODSP or Ontario Works benefit recipient continues to be eligible only as long as he or she is making efforts to obtain the child support payments to which they are entitled. That principle seems fair enough.

A little more contentious is the policy that child support payments, once received, are typically deducted from social assistance benefits (although there are exceptions). As this article illustrates, there have been calls from the public to have that approach changed.

What are your thoughts? Should receiving ODSP or Ontario Works benefits be contingent on pursuing child support? And should child support be deducted from social assistance benefits?

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 our main site.

Who Pays Child Support in Ontario? – video

 
 

Wednesday’s Video Clip: Who Pays Child Support in Ontario?

 

In Ontario, all parents have a legal responsibility to support their dependent children to the extent that they can. In this video we review who is responsible to pay child support and why.