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Posts from the ‘Divorce FAQs & Education Resources’ Category

Regret is No Excuse for Disobeying Consent Order: Mom Blocks Grandmother’s Access to Kid

Regret is No Excuse for Disobeying Consent Order: Mom Blocks Grandmother’s Access to Kid

In some Family Law cases, one can speculate about the good intentions behind a parent’s actions, even when they end up being contrary to an agreement with the other parent, or to a court order. Still, it behooves the court to enforce its prior orders and agreements, to maintain the semblance of fairness and respect for the judicial process.

This was the situation in a case called Perna v Foss. The mother and father had married only a month before their child was born, and separated 18 months later.   The father eventually agreed to give sole custody to the mother.

When the boy was around 7 years old, the mother agreed to allow the boy’s grandmother (on the father’s side) to have access to him one day a week. In view of the mother’s acquiescence, the court granted a consent order accordingly.

However, the mother stopped facilitating the access altogether when she formed the opinion that the grandmother was “having conversations with [the boy] regarding serious issues” during those visits. She explained her move to block access in texts and Skype conversations with the grandmother, one of which read as follows:

I will consider giving you ur (sic) time back if u can promise me only good times and no conversations w Jackson about moving or living in Dominican Republic. I want the pressure off of him completely.  I never said I wanted you out of his life Sandra.  I just don’t want him having to answer questions about how he showers or what mommy does.  It’s not fair.  If you agree to this we can start visits again.  …

Evidently the two women were unable to come to an understanding; the mother continued to deny access, which prompted the grandmother to bring a motion for a court order finding her in contempt. The mother ignored the motion, and did not appear in court. (Nor had she taken any steps to vary the initial consent order granting the grandmother access in the first place, which would have been the ordinary course to take if she now took issue with it).

The court considered the circumstances, and agreed that the mother should indeed be held in contempt.

She was clearly aware of the consent order, and could not claim to be confused about its interpretation. She freely admitted to disobeying it on more than one occasion, as her texts and Skype sessions showed. In fact, she had announced both her deliberate intent to block the grandmother’s access, and her reasons for doing so.

The court speculated that the mother perhaps regretted having agreed to giving the grandmother access in the first place, but this did not give her justification or excuse for failing to honour her obligations under the consent order. She did not have the right to unilaterally refuse to comply.

In light of the contempt finding, the court refused to hear any further motions by the mothers – including one she had brought recently for permission to remain in the Dominican Republic with the child – until the contempt was purged.

For the full text of the decision, see:

Perna v Foss, 2015 ONSC 5636 (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

 

 

 

 

 

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


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

In this video we review some of the more common questions about spousal support in Ontario, including:

1) What is spousal support?

Spousal support — which is sometimes called “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.

2) What is the legal basis for obtaining spousal support?

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.

A court may order spousal support, and will set an amount and duration based on various factors that exist between the parties. The jurisdiction for a court to award spousal support comes from either the federal Divorce Act (as part of a divorce order), or from the Ontario Family Law Act.

3) What factors dictate the duration and amount of spousal support?

The determination of how much support a spouse should receive, and for how long, is a complex equation. In making a spousal support order courts consider several factors, including:

• the length of the entire relationship (including time living together before marriage);

• the financial circumstances of each spouse, both during the relationship and
after separation;

• the functions performed by each spouse during the relationship;

• the financial repercussions or detrimental financial effect on one or both spouses of caring for each other or for any children of the relationship; and

• each spouse’s ability to support him or herself.

In some cases one spouse may have suffered a financial loss or disadvantage as result of joint career and lifestyle decisions made during the marriage or relationship (for example the decision to move the family so that a spouse can take a new job, or that the mother will give up her career to stay home and raise the children). A disadvantaged spouse will be entitled to support to compensate him or her for that setback.

There may also be a limit on the duration of the support that one spouse receives from the other, as means of encouraging the recipient spouse to achieve post-separation financial independence as quickly as possible. Alternatively, the order may contain a built-in review mechanism.

Note that there are certain tax consequences relating to spousal support — both from the payor’s and the recipient’s perspective. In short — and provided it is paid pursuant to either a written separation agreement or a court order — it is considered “taxable income” in the hands of the spouse who receives it, and is deductible from the taxable income of the spouse who pays it. These tax ramifications are taken into account when determining the amount of support.

4) How does the spouse’s behaviour affect spousal support entitlement?

Generally speaking, the entitlement to spousal support is not dependent on the spouse’s pre- or post-separation behaviour, morality, or ethical conduct. In other words, a spouse who is otherwise entitled to spousal support after the dissolution of a marriage will not become disentitled because he or she was violent, or because it is later discovered that he or she had an extra-marital affair during the marriage.
Having said that, a court’s determination of the amount and duration of spousal support will hinge upon each party providing forthright, comprehensive financial disclosure to each other. If in making the determination the court feels that one spouse has withheld financial information (e.g. has failed to disclose a source of significant income), the court may impute income to the spouse and award the other spouse his or her support accordingly.

5) What happens if there is a change in circumstances?

As indicated above, the notion of one spouse receiving spousal support from the other is rooted in several concepts and principles, including:

1) the financial disadvantage or dependence that relationship gave rise to must be redressed post-separation; and

2) the ability of the paying spouse to fund the spousal support award must be taken into account.

The amount or duration of spousal support may have to be adjusted if there is significant change in the financial circumstances of either party. This change must be significant, and must not have been foreseen when the separation agreement or the court-ordered spousal support award was made.

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 Pacemaker Evidence Be Used to Catch Cheaters?

Should Pacemaker Evidence Be Used to Catch Cheaters?

I have written several times before about some of the more novel uses of the information that can be gleaned from social media, for example the use in Family Law of evidence taken from Facebook. Some of our previous posts include: Facebook as a Source of Evidence In Family Law: Part 1Facebook as a Source of Evidence in Family Law: Part 2; and  Facebook as a Source of Evidence in Family Law: Part 3.

The legal issue behind this kind of information-gathering, is whether collecting information in this manner is unduly intrusive into a person’s privacy.

A U.S. case reported by the American Bar Association that caught my attention recently takes the privacy question it even further: It involved the use of evidence taken from a man’s pacemaker, used to support a charge of criminal fraud and arson against him. It seems the data from his heartbeat-regulating device – which was collected from him by way of a search warrant – did not support his claim that his house had burned down. Evidently the man’s heart-rate on the night in question did not correspond with his description of events, including his scramble to collect his personal belongings and get out of the home. He was ultimately charged with arson and insurance fraud.

As the American Bar Association article pointed out, this Ohio decision is contentious because it can be seen as having “eroded” the privacy rights that an individual has in his or her health information. In Canada, the government’s ability to collect and use private information is strictly governed by the Personal Information Protection and Electronic Documents Act (PIPEDA), and this includes the right and duties in relation to collecting information for the prosecution of crime.

Although the U.S. decision has no sway in Canada, it occurred to me that if it did, the information from personal health devices like a pacemaker might eventually be exploited in Family Law cases as well.  I started to think about the limits of this kind of information, and how it might apply to divorce cases.

For example, it could be called up in support of the adultery-based grounds for divorce under the federal Divorce Act, by bolstering other evidence that a spouse who claimed to have been “working late” on a given evening was – judging by an unusually elevated heartbeat – actually engaged in an extra-marital affair. (Although I guess it might depend on how truly exciting the person’s work is!)

For now, this is the stuff of science fiction; it’s probably a long way off, before these kinds of biometrics are used as evidence in litigation generally, much less in Family Law cases. And they give rise to many privacy concerns that are assiduously safeguarded by Canadian public policy in the form of legislation.

What are your thoughts on whether evidence of this nature should be used?

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

Wednesday’s Video Clip: How are child payments taxed?


Wednesday’s Video Clip: How are child payments taxed?

In this video we discuss the tax consequences of child support.

Parents who receive child support payments under an agreement or court order made after April 30, 1997, do not have to include those payments in their taxable income. Parents who make these payments cannot deduct the payments from their taxable income.

This tax rule does not apply to continuing support paid under agreements or court orders made before May 1, 1997. The old rule still applies until the agreement or order is changed. Under the old rule, parents receiving support must pay tax on the amount received, and parents paying support can deduct the payments from their taxable income.

The new tax rule means that more of the support money received by the parent with custody is available to spend on the children. It also means that parents paying child support under an agreement or court order made after April 30, 1997, will have less after-tax income than parents paying the same amount according to an agreement or order made under the old tax rule. Courts take this into account when making new support orders.

Parents who have a support arrangement under the old tax rule may agree that they want the new tax rule to apply. They can do this if they both sign a form called “Election for Child Support Payments (T1157)”, that says they want the amount of support to stay the same but the new tax rule to apply.

You can get this form from any tax services office. Or you can call the Canada Revenue Agency (CRA) at 1-800-959-2221 and ask to have a copy mailed to you, or download a copy from their website.

If one parent wants to change to the new tax rule, but the other does not, the parent who wants the change must apply to court to change the existing child support order or agreement. Parents thinking of doing this should be aware that when the court makes a new child support order or changes an existing order or agreement, it must apply the Child Support Guidelines.

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

Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

I have written previously about a relatively new cause of action in Canada called “intrusion into seclusion.” It is essentially a privacy-based tort claim that a person can assert by establishing damages from an unauthorized intrusion into his or her private affairs by someone else.

Recently, this new type of tort has been successfully claimed in the Family Law context by a wife against her estranged husband, in a case called Patel v Sheth.

The couple had been married for about 3 years when they separated for the first time, with the wife moving out of the matrimonial home. Shortly after they made an effort to reconcile, but matters became increasingly acrimonious and they separated for a final time about 8 months later.

At one point during their reconciliation attempt, when the wife was taking steps to gradually move back into the home, the husband surreptitiously installed a video camera in the bedroom, hiding it in a BMW keychain placed on an armoire. The camera faced the bathroom.   Given its placement, the camera would have caught the wife in the act of getting undressed.

The wife found the camera in the bedroom after their final separation, when she was moving furniture around.

As part of their later divorce proceedings, the wife added a $50,000 claim in damages against the husband, for his having intruded on and breached her privacy by installing the hidden camera in such a highly personal area of the home.   She asserted that she was offended and embarrassed.

In explanation, the husband claimed he installed the camera ostensibly for his own protection, since at one point the wife had falsely accused him of assault. Claiming that he never downloaded any of the images it may have recorded, he asserted that the wife suffered no damages.

In considering this scenario, the court concluded that even though the cameras did not capture any explicit images, the potential to do so was real. The privacy intrusion took place in the context of a domestic relationship, and in the court’s view it was also an “extremely aggravating” factor that the husband had initially lied about the camera under oath during discovery, and even tried to blame the wife.  (He later admitted to that lie at trial).

Furthermore, the husband’s explanation for installing the camera made no sense: If he was concerned about further assault allegations being levelled at him, there were many other rooms in the house where physical violence could conceivably take place. Yet he did not bother to plant hidden cameras anywhere but the bedroom.

The court ultimately held that the wife was entitled to damages of $15,000, observing that although she was shocked and embarrassed, there was no medical evidence filed to support any significant effect on her health. The court also held that this was not a case for additional punitive damages to be awarded.

For the full text of the decision, see:

Patel v Sheth, 2016 ONSC 6964 (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

Wednesday’s Video Clip: Finding A Lawyer


Wednesday’s Video Clip: Finding A Lawyer

In this video we discuss the various ways people can find a lawyer to help them, including:

Community Legal Clinics

Community legal clinics provide legal services to low-income people in areas such as housing, employment insurance, income support, immigration, human rights, and workers’ compensation. Some clinics also provide assistance with wills, powers of attorney, and education law. To find the community legal clinic nearest you, visit the Legal Aid Ontario web site or call Legal Aid Ontario.

Law Office of Russell I Alexander, Family Lawyers

This law firm focuses exclusively on family law. Russell I Alexander offers pre-separation legal advice and helps clients who are going through a separation and/or a divorce. This office assists 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. Their lawyers negotiate settlements for their clients, and if a fair and reasonable settlement cannot be achieved they prepare and argue motions and trials.
866-647-6335.

www.russellalexander.com

Law Society of Upper Canada

Offers information on finding and working with a lawyer, web site:
www.lsuc.on.ca

Legal Advice for Victims of Domestic Violence

Legal Aid Ontario can provide authorization for a two-hour consultation with a family law lawyer through a form called “Advice Lawyer Family Violence Authorization”.

Community legal clinics, student legal aid societies, and women’s shelters should have these forms to give to abused women. Contact the women’s shelter in your community or call Legal Aid Ontario for the phone number and location of the legal clinic or student legal aid society nearest you.

Legal Aid Ontario

1-800-668-8258 (bilingual)

www.legalaid.on.ca

Office of the Children’s Lawyer

Provides court-appointed legal representation for children up to 18 years of age, call:
416-314-8000 (bilingual – accepts collect calls)

Advocacy Centre for the Elderly

Provides legal advice and information to low-income seniors 60 years of age and older on issues such as elder abuse, home care, nursing homes and homes for the aged, and powers of attorney; phone and web site:
416-598-2656

www.advocacycentreelderly.org

ARCH Disability Law Centre

Provides legal information to people with disabilities, and some representation in precedent-setting cases involving disability issues. ARCH has an accessible library of materials on disability-related issues that is open to the public; phone and web site:
1-866-482-2724

www.archdisabilitylaw.ca

Centre for Addiction and Mental Health

Provides support, treatment, and education for people with mental health and addiction problems and their families. Publications on youth and addiction, and information on drug and alcohol policies in Ontario schools are available through their web site:
1-800-463-6273 (bilingual)

www.camh.net/index.html

CLEO (Community Legal Education Ontario / Éducation juridique communautaire Ontario)

Provides clear language legal education and information materials for low-income and disadvantaged people in Ontario. CLEO’s materials address issues in many areas of law, including family, domestic violence, social assistance, housing, and immigration and refugee law. Most materials are also available in French. All print publications are free and can be viewed online.

416-408-4420 (accepts collect calls)

www.cleo.on.ca

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

Wednesday’s Video Clip: How Base Child Support is Calculated


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.

In simple cases, the table alone will determine how much money will be paid. In more complicated cases, the table is used as the starting point. There is a different table for each province and territory.

If both parents live in Ontario, the Ontario table applies. Also, if the paying parent lives outside of Canada and the parent with custody lives in Ontario, the Ontario table applies. But if the paying parent lives in another province or territory, the table for that province or territory is the one that applies.

You can get a copy of the Child Support Table for Ontario by phoning 1-888-373-2222.

Or you can visit the Department of Justice Canada’s web site at www.canada.justice.gc.ca/en/ps/sup and click on “Simplified Federal Child Support Tables” to find the table for each province and territory.

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.

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

Wednesday’s Video Clip: 10 Ways to Get Information About Family Law


Wednesday’s Video Clip: 10 Ways to Get Information About Family Law

In this video we discuss how there are many professional people, organizations and other sources that can help you or provide information about family law issues:

1. An information centre specializing in family justice

2. A parent education course for separating parents

3. Duty counsel at a legal aid office

4. A community legal clinic

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

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

7. A divorce support or self-help group

8. Relevant library books and videos

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

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

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

Can a Parent be in Contempt When Kid Disobeys a Court Order?

Can a Parent be in Contempt When Kid Disobeys a Court Order?

In many of the child custody and access cases I write about, the central dispute boils down to the fact that the parents of the child are at odds in terms of what custody arrangements they want and how much access they should each have to the children.

But even once a court order is in place, the disagreements can continue, because the parents may be at odds over precisely what the order means, and how it should be complied with. In a typical scenario, the custodial parent will have failed to abide by the terms of a court order setting out specific custody or access, perhaps by keeping the child longer than ordered, or else by failing to facilitate the access rights of the non-custodial parent.

But what if the lack of compliance is because it’s the child – not the parents – who won’t co-operate? What if the child outright refuses to spend time with the access parent?

In a recent set of Blogs I talked about the concept of “contempt of court”, in family law proceedings especially. This remedy can be imposed on a parent who refuses to comply with a court order, or otherwise hampers the course of justice.

What may be surprising is that under Canadian law, in some circumstances a parent can still be held accountable for contempt of court even if it’s the child who thwarts the fulfilment of the court order. This is because of the legal principle that if there is a court order in place, the parent is under a duty to do all that he or she reasonably can in order to ensure that it is complied with. And a finding of contempt of court may follow if the other parent can establish, beyond a reasonable doubt, that the other parent failed to take all of those reasonable steps.

In short: the parent cannot simply leave questions of custody and access up to the child; otherwise it amounts to an abdication of parental responsibility. In an older case called Geremia v. Harb, Justice Quinn put it well when he said:

Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

With that said, the contempt remedy is not imposed every time a parent is unsuccessful at coercing a child – particularly an older one – to comply with an order. Rather, the outcome on whether to make a contempt finding will be viewed by the court with its broader duty in mind: which is to balance the need to enforce court orders and to encourage a child’s contact with both parents versus respecting a child’s own wishes and safeguarding his or her needs, safety and well-being.

For the full text of the decision, see:

Geremia v. Harb, 2007 CanLII 1893 (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 RussellAlexander.com

Wednesday’s Video Clip: Confidentiality


Wednesday’s Video Clip: Confidentiality

In this video we discuss how all information you provide to your lawyer is completely private and confidential. All the details of your case will be handled with the utmost confidentiality and respect for your privacy.

The privilege of confidentiality between solicitor and client is, in law, a protection which belongs to the client. Therefore, it is up to the client, only, whether or not that confidentiality is to be waived.

Please remember this when your family members or friends request information directly from your lawyer. Lawyers are frequently contacted by new partners, or other family members who want to discuss your case.

You have to give your lawyer specific instructions to permit that discussion to take place. Also, as the time spent by your lawyer will be time spent on your file, you will be billed for any time spent discussing your case with anyone at your request, or in the context of your file.

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