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Posts from the ‘Divorce FAQs & Education Resources’ Category

Wednesday’s Video Clip: Whether a Parent has a Right to Move with a Child – the Concept of “Mobility” in Family Law.


Wednesday’s Video Clip: Whether a Parent has a Right to Move with a Child – the Concept of “Mobility” in Family Law.

The moment that the parents of a child separate, everyone’s life circumstances change immediately: there are usually new living arrangements and a custody and access schedule put in place.

But as time passes, there may be other developments as well; for example the parents may embark on new relationships with new partners, or may change jobs.

The potential impact on any court-ordered support, custody or specific access arrangement, and the effect on each parent’s rights must be assessed and weighed.

In cases where one parent’s new relationships or new jobs require a move to another city or province, the concern is even greater. This is because such scenarios give rise the a legal issue of whether the circumstances and preferences of the parents should be allowed to dictate the child’s living circumstances, whether such moves should be allowed and by whom, and — if so — what happens to the custody and access arrangements that are in place.

In family law, this is known as a “mobility” issue.

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 a Divorce Trial, is $430,000 in Legal Fees Too Much?

For a Divorce Trial, is $430,000 in Legal Fees Too Much?

Anyone who has gone through a divorce will know that legal costs can get out of control. But consider the recent Ontario case of McCabe v Tissot, where the court was asked to rule on whether the husband should pay the wife’s legal fees of $430,000, part of divorce litigation that “financially devastated” both former spouses, and which saw the wife alone rack up almost $1 million in legal fees overall.

The court’s first step was to determine which member of the sparring couple had been the successful party at trial, because under Ontario civil procedure this is essentially the starting-point for determining how costs should be apportioned, although additional factors come into play as well. Both parties claimed that they had been entirely successful on all significant issues.

Perhaps not surprisingly, in addition to disputing her entitlement the husband also took issue with the wife’s dollar-figure: the $430,000 she was claiming was both excessive and disproportionate, in his view. The wife had chosen to endlessly litigate to the point where both parties’ financial stability, and thus the well-being of their son, was in jeopardy.  He said that for his own part, he had been financially ruined by the whole process.

The court, after considering the various circumstances (including the reasonableness of the parties’ positions at trial, the offers to settle they had exchanged, and prior courts orders), agreed that the wife had been more successful overall. But it rejected the notion that she should receive the full costs she was claiming. The court said:

[t]he amount of legal fees spent by the parties on this litigation is astronomical and completely unreasonable. The [wife] has mortgaged her home and has very little equity left as was her evidence at trial and as set out in her sworn Financial Statements. The [husband] also spent an exorbitant amount on legal fees borrowing funds from his parents to finance the first trial. The [wife] alone has spent close to $1 million on legal fees and disbursements. The [husband] borrowed over $393,000 from his parents. The fees spent by the parties are completely disproportionate to the issues before the court.

The court continued:

The parties lost sight of what is reasonable and what is proportionate. The financial devastation suffered by this family will last a lifetime. Most importantly it will once again negatively impact their son….

And further:

…from the spring of 2013 onward conflict ensued and they attended court numerous times, obtaining approximately 41 court orders. Not only did this financially devastate the parties and affect Liam detrimentally as set out in my Reasons, but it also resulted in the use of an inordinate amount of judicial resources. My only hope is that the parties have now come to the realization that the destruction both financially and emotionally was not worth it and they will not become embroiled in further litigation in the future. Only time will tell.

After reviewing all the relevant factors, the court concluded that legal costs in the amount of $125,000 were payable by the husband to the wife in the matter.

For the full text of the decision, see:

McCabe v Tissot, 2016 ONSC 4443 (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: When do the Child Support Guidelines apply?


Wednesday’s Video Clip: When do the Child Support Guidelines apply?

In this video we discuss when the child support guidelines apply.

If parents go to court to get a child support order, in almost all cases the court must use the Guidelines to set the amount.

This is true whether the order is applied for under:

• the Divorce Act by parents who are divorcing

• the Family Law Act by parents who were never married, or who were married and have separated but are not getting a divorce

The Guidelines must also be applied whenever a parent applies to the court to change any support order, even if it was originally made before the Guidelines came into effect.

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

Access to Children by Grandparents: Does a Parent Have Automatic Veto Power?

Access to Children by Grandparents: Does a Parent Have Automatic Veto Power?

Although the case of Simmons v Simmons is actually from Nova Scotia, it’s an interesting and universally-applicable illustration of how Canadian courts can approach an access contest between parents and various other family members – in this case, the grandparents – and how even a parent’s own wishes can be thwarted in appropriate cases.

The father had died of cancer when the boy was only 15 months old. The paternal grandparents had visited the boy often, both prior and immediately after their own son’s death. But when the boy was almost three years old, tension and acrimony developed with the boy’s mother over the frequency of their visits. Although the grandparents were being denied access per se, the mother was not prepared to be particularly cooperative with them until they offered an apology for what she considered was their past ill treatment.

The discord resulted in the grandparents discontinuing their visits to the boy for several months.   Over the objections of the mother, they then succeeded in obtaining a court order granting them interim access to the boy. (And note: Such applications by grandparents are permissible in all Canadian jurisdictions). The application judge had concluded that the boy’s best interests were fostered by nurturing the relationship between him and his grandparents, and ordered that such access should increase gradually over a four-month period, culminating in day-long visits every second weekend.

The mother appealed that order based primarily on the argument that, on the narrow issue of who should access to her son, the prior judge had not given proper deference to her own decision-making authority as his mother.

The Appeal Court rejected that argument, and dismissed the mother’s appeal.

Contrary to the mother’s claim, the judge that made the initial order did not fail to accord proper deference to the mother’s decision-making authority respecting access. He did take it into account; what he didn’t do was let it override consideration of the boy’s best interests.

Although it was a general principle that parents should have autonomy over decision-making relating to their children, this paradigm was not the only acceptable approach to making a determination on the grandparents’ access rights in this case. Rather, the overarching test was merely whether granting such access was in the boy’s best interests.

In this case, judicial deference to the mother’s authority, as a parent, had to be tempered by the court’s willingness to recognize the benefit giving the boy exposure to his extended family, particularly since he had already lost his father.   The previous judge had thoroughly weighed this consideration, along with all the evidence both in favour and against an access award. There was also nothing to suggest that the judge made the order as a way of fostering hope or speculation that the grandparents’ access would resolve the tension between them and the mother.

For the full text of the decision, see:

Simmons v Simmons, 2016 NSCA 86; [2016] N.S.J. No. 494 (C.A.)

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: The Family Courts and Rules – The Basics


Wednesday’s Video Clip: The Family Courts and Rules – The Basics

Most people will have no reason to become familiar with the workings of the Ontario Family Law system. Exposure to the justice system is usually a result of necessity, such as a separation or divorce, with its resulting property, support and child custody issues. As a result, most people do not know how the Family Court system works.

This video will provide a brief and basic review of the Ontario Family Courts, and the Rules that people are expected to follow.

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 4 Points About Enforcing Child and Spousal Support Payments


Wednesday’s Video Clip: Top 4 Points About Enforcing Child and Spousal Support Payments

In this video we review ways to enforce child and spousal support Orders in Ontario.

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are several points about the enforcement of such orders or agreements that are noteworthy, this video will review four points to consider.

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 to Fill out a Financial Statement


Wednesday’s Video Clip: How to Fill out a Financial Statement

In this law video, Darla review the steps required to fill out a financial statement for the family court or negotiating the terms of your divorce settlement.

When entering into a Separation Agreement or bringing an Application before the Court, parties must provide full financial disclosure.

Complete financial disclosure is a prerequisite to the settlement of any family law case. The Family Law Act and its interpretation by our Courts, leaves no uncertainty in this respect. Any agreement can be set aside if a party has failed to truthfully and accurately disclose his or her financial position.

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

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