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Is It Your New Year’s Resolution to Get a Divorce?

Is It Your New Year’s Resolution to Get a Divorce?

In a piece recently reported by the CBC News, and well as a post from Huffington Post Canada it seems that January is the prime time of year for couples to initiate divorce, based on the number of court-filed applications. According to another article in the U.S. divorce filings begin to spike in January, and peak in February and March.   January is when divorce lawyers report seeing a spike in consultations from disgruntled husbands and wives, who at least want to do some information-gathering, by exploring the various financial and child-related repercussions that a formal separation or divorce would entail. After that, according to the article, many who are willing to commit to a split will return in February or March to get the ball rolling. Similar trends have been reported in other articles.

So what’s behind the trend? Apparently, those in troubled partnerships will try to keep the status quo throughout the holidays – especially if children are involved – only to formally separate or embark on marital counselling once the festivities are over. The reason for this timing is largely (shall we say) “sentimental”: People don’t want to initiate divorce proceedings immediately before, or during, the holidays. They may not want to put a pall over what is ideally supposed to be a family-oriented, idyllic season of the year.   Or, they may want to delay so that the family can have one final holiday together, before they split.

For others – especially those individuals who have already started to secretly contemplate divorce, or for those embattled couples who have begun to discuss the prospect between themselves – the “fresh start” quality of New Year, and the tradition of making resolutions, may prompt unhappy partners to re-evaluate their future and finally make the break they have been contemplating.

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

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Russell Alexander, Family Lawyers


At Russell Alexander Family Lawyers, we are committed to practicing exclusively in the area of family law. As a result, our team is experienced in dealing with all aspects of family law matters, including:

  • Separation and divorce Child custody and access
  • Child support Spousal support
  • The Family Responsibility Office (FRO)
  • Division of family property
  • Family mediation and alternative forms of dispute resolution
  • Domestic contracts, including separation agreements, paternity agreements and marriage contracts

Because our work is focused solely on family law, we understand the difficulties individuals face when going through a separation or divorce. We understand that family law can be very complex, and that its complexity can be amplified when coupled with emotionally straining circumstances.

Our office will help you by providing you with guidance during what can be a very difficult time in your life. This means providing you with the information to help you to identify and understand the issues, as well as the options and opportunities available to you to help in this transition. It means working with you to design a plan to help you make progress and achieve your goals. We will keep you informed about matters as they arise and discuss with you any significant decisions that you are required to make. We will provide you with our best legal advice, but ultimately you will make the final decisions and provide us with instructions.

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

Would You Give Your Ex Your Facebook Password?

Would You Give Your Ex Your Facebook Password?

Perhaps it’s human nature, but most people who go through a marital separation or divorce will do their best to limit the information that their now-former spouses are privy to, when it comes to their post-split personal lives. In fact, common relationship and break-up advice suggests that former spouses should actively and immediately “block” each other from social media sites like Facebook, so that neither can have glimpse at what the other is doing after the split.

Part of it arises from privacy concerns, but part of it may arise from a sense of protectiveness around giving the other person “dirt” that they can use in any Family proceedings that are later sparked by the breakdown of the relationship.

As I have written numerous times in the past, when former spouses are embroiled in litigation to untangle their financial affairs, and to deal with the custody of and access to any children, their respective posts on Facebook can inadvertently become the source of evidence.

So it may come as a surprise that a few years ago a judge in Connecticut ordered a former couple to divulge their Facebook, eHarmony and Match.com passwords to each other during their divorce proceedings. The judge had granted the order based on the husband’s evidence that the wife’s Facebook posts and photos raised issues about her ability to care for their children.   When the wife relinquished her password but then arranged for a friend to start deleting any incriminating posts, the judge added an injunction to prevent her from doing so.

The judge’s order also enjoined either spouse from “visit[ing] the website of the other’s social network and posting messages purporting to be the other.”

It’s an unusual ruling, and one that will give many people pause:

Would you really want a former romantic partner to have access to your Facebook or dating site passwords?

What are your thoughts?

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

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Court Finds Husband Just “Going Through the Motions” on His Job Search

Court Finds Husband Just “Going Through the Motions” on His Job Search

One of the basic principles underpinning Ontario family law, is that the parties must behave with good faith towards each other in when participating in the separation and divorce process. And courts are wary – and frequently critical – of spouses who do not behave this way.

This is illustrated in the decision in Cammaroto v. Cammaroto. There, the couple had married in 2000 after a 2-year long distance relationship, with the 48-year-old husband moving from New York to be with the wife in Ontario. He had expected to easily find work in the retail travel industry, but this never panned out, and he began to drink heavily. Meanwhile the wife, aged 44, was working 12-hour shifts in her job as a nurse.

By 2008, the relationship deteriorated to the point where the husband communicated with the wife mainly by giving her notes and list. Still, the couple continued to live together under the same roof for several more years.

As part of their divorce proceedings, the court had to decide whether the husband should be entitled to spousal support from the wife, who had been supporting him for the entirety of their marriage.

To make this determination, the court had to consider the couple’s overall relationship. In the husband’s favour was the fact that he had moved from New York and left behind a secure job. But by 2006, which was 6 years into the marriage, he had made virtually no genuine effort to find work and the wife had clearly run out of patience. The court concluded that the husband’s failure had been “a very significant cause of the marriage break-down”, and that his alcohol consumption also contributed to it.

The court itemized the husband’s so-called efforts to find work in this manner:

Exhibit 29 records [the husband’s] attempts to find employment. It illustrates a wide ranging attempt at looking into potential jobs, even low level employment such as flyer deliveries, gas bar employment and entry level sales positions. It records a range of dozens of small local employers as well as large chains such as Walmart, Staples, Rogers, Canadian Tie, Home Depot, the LCBO, several hotel chains, Zellers and Leons.

The most impressive aspect of [the husband’s] attempts to find employment are the personalized and well-written cover letters that he sent with resumes or job applications. Superficially, the documentation of [the husband’s] employment search over the years 2000 – 2006 is impressive. However, on closer examination it is apparent that [the husband] was “going through the motions”, documenting many contacts from ads for jobs that he must have known he could not do or would not accept even if he could get a job interview. Some of the content of Exhibit 29 is clearly an attempt to “pad” his efforts to find employment. For example, it is rather silly to include employment as a flight attendant, a short-order cook, a store manager, etcetera. The actual number of job interviews he got over the years was few.

In 2001, [the husband] applied for 17 jobs in total, never more than three in any given month. He agreed on cross-examination that it was not a “diligent” job search that year. In 2002, he made one job application and in 2003, 31. He admitted on cross-examination that many of the “applications” were for jobs he could not do anyway. …

It is also hard to escape the inference that Mr. Cammaroto deliberately sabotaged the only successes he had.

He obtained a job in the travel industry in 2003 but quit the job after taking the initiative with U.S. authorities to check if he could be “in trouble” as a U.S. citizen selling trips to Cuba. He blew the whistle on himself. Then, when told it was not a problem to work for a travel agency selling trips to Cuba so long as he didn’t do so personally, he quit the job anyway.

He was hired as a security guard in December 2005 or January 2006 but quit that job before his first shift to take another travel agency job that lasted only a few weeks.

In April 2006 he was hired at Stock Transportation to drive autistic children in a van but quit during the training session because the children were “wild and noisy” and he was afraid he would crash the vehicle.

There are other examples of how he thwarted actual employment opportunities himself or wasted his time on obviously fruitless pursuits. It is hard to know whether he was genuinely interested in working or just kidding himself. He turned looking for a job and the documentation of his efforts into a job itself. By 2006 he had given up any real effort. Perhaps even before that.

The court also noted that by 2010, when he and the wife were still living together, he was actively looking for other relationships on Match.com under what he called his “contingency plan”. It ultimately concluded that the husband’s lack of genuine job-hunting had been deliberate:

[The husband] admitted that as early as 2008 he was aware of the “rule of 65” in the spousal support advisory guidelines, referencing the principle that if a dependent spouse’s age plus years of marriage equals or exceeds 65 then recommended spousal support should be for an “indefinite” duration.

It is clear from all the evidence that [the husband] was determined to delay the inevitable separation as long as possible to maximize his entitlement to support and not because there was any realistic hope, even in his own mind, that a true marital relationship would ever resume.

Still, the court observed that at the time of the trial, the husband had been out of the workforce for 15 years, and had depression, anxiety, and some other mental health issues that clearly pre-dated the marriage. In these circumstances, he was entitled to some time-limited support from the wife, who had the ability to pay from her $90,000 income as a nurse.

For the full text of the decision, see:

Cammaroto v. Cammaroto, 2015 ONSC 3968

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

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Serving Family Documents via Facebook?

Serving Family Documents via Facebook?

An otherwise-unremarkable Ontario family law decision called Filion v. Ives has an interesting feature: The court allowed one of the parties to use Facebook to serve court documents on the other.

In that case, the husband had used the universally-known social media platform to serve court documents on the wife as part of their acrimonious divorce proceedings. He chose this method because she had proven very difficult to locate in the past, in connection with numerous motions and settlement conferences over the years. She was now claiming that she was out of funds to hire a lawyer and had failed to show up at a scheduled hearing and costs were ordered against her.

On a motion to get clarification on the $28,000 that she had been ordered to pay the husband, who happened to be a corporate/commercial, real estate, and estates lawyer, served the documents on the wife by Facebook message and also by e-mail to give her notice of an upcoming hearing. The court described the circumstances that gave rise to this necessity as follows:

Service of the motion documents was effected on the [wife] on December 17, 2014 by Facebook message and by email. This is irregular. [The husband’s lawyer] explained that the [wife] would not cooperate to reveal her location and employers and family members could not or would not give her location. A process server had tried to serve the [wife] at the last address that the court had on file for her, but was unable to. A neighbour said that she had not been seen in six to seven months. She was thought to be in Sturgeon Falls or North Bay. However, the process server knew someone who the [wife] had responded to the Facebook messages of, indicating that she lived in Toronto, but not saying exactly where. [The husband’s lawyer’s] office had used the same Facebook address to message the [wife]. Also, there had been no response to the email to say that it had not gone through. [The husband’s lawyer] expressed confidence that service had been effected in this way.

The court noted that in limited circumstances, the Ontario Rules of Civil Procedure do allow for alternatives to service in circumstances where more traditional methods were ineffective/impractical. Here, the court was satisfied that the husband’s motion documents had come to the wife’s attention – or that they would have come to her attention had she not deliberately and actively evaded service.   To cover off the legal bases, the court made an order specifically endorsing the service of the husband’s documents in this way.

Although cases like this are still relatively novel, they suggest that Ontario courts might become increasingly comfortable with allowing this type of technology-based work-around in limited instances. Incidentally, another civil Small Claims Court case in which this approach was approved of is Eastview Properties Inc. v Wayne Mohamed.

For the full text of these decisions, see:

Filion v. Ives, 2015 ONSC 270

Eastview Properties Inc. v Wayne Mohamed, 2014 CanLII 52397 (ON SCSM)

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

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Broken Engagement: Who Keeps the Ring?

Broken Engagement: Who Keeps the Ring?

We all know that not all relationships are meant to last – indeed, some of them don’t even get out of the starting gate. When an engagement is broken, there is the time-honored question of who gets to keep the ring.

In the older cases, some of which date back a century or more, the courts parse the question by considering who did the “breaking” – i.e. letting the jilted bride keep the ring, or allowing the rejected groom to insist it be returned to him, as the case may be. From a technical legal standpoint, sometimes courts will look at whether the ring was a “conditional gift”, meaning one that that presupposes that the marriage will actually take place.

In a more recent decision in a Small Claims Court case called Mastromatteo v. Dayball, the court takes a pragmatic approach to these kinds of situations:

Defendant [the putative groom] claims $4,000 for the engagement ring which he purchased and gave to plaintiff [the intended bride] when he proposed. …

The gift of an engagement ring to my mind is just that – a gift. The notion that the ring must be returned if the marriage does not occur appears to me to be inconsistent both with the nature of a gift and with the modern law relating to marriage.

The court pointed out that the modern-day provincial Marriage Act precludes actions for a “breach of promise to marry or for any damages resulting therefrom” and requires that any right to recover a gift made “in contemplation or conditional upon their marriage” must consider whether the person giving the gift was at fault for the marriage not happening. In observing that the common-law in this area was murky, the court added:

In the absence of any clear common law rule on whether a ring must be returned, I would incline to the position that a gift is a gift. Once perfected by delivery, it cannot be recovered. Since a promise to marry cannot be enforced, and long after divorce on a no-fault basis became accepted in Canada, the concept of a battle over ownership of the engagement ring appears artificial and anomalous at the very least. At a time when our law makes particular efforts to promote settlement, discourage litigation and narrow the scope of litigation when it is required in family law disputes, permitting ownership of gifted rings to be litigated based on a series of differing rules with no clear result, appears undesirable.

The promise of marriage is unenforceable and was unenforceable at the moment it was made along with the gifted ring. It appears undesirable for the law to permit enforcement in relation to only the gift part of that transaction when the larger transaction is itself unenforceable and in that sense legally faultless. If viewed as a matter of first impression I would find that the ring was a gift perfected by delivery and cannot now be reclaimed, whether as damages or as recovery of possession of the object itself.

The court did acknowledge there were a large number of prior (and often-inconsistent) court decisions, and summarized the upshot this way:

The net effect of the authorities appears to be this: the ring may or may not be recoverable; that decision may or may not turn on who broke off the engagement; and the donor may or may not be too late to claim recovery if he or she does not do so immediately upon breakup. No one could describe that state of the law as a model of clarity.

For the full text of the decision, see:

Mastromatteo v. Dayball, [2011] O.J. No. 1600 (Sm. Cl.)

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

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More on Upcoming Changes to the Ontario Law Relating to Kids and Youth

More on Upcoming Changes to the Ontario Law Relating to Kids and Youth

I reported recently that the Supporting Children, Youth and Families Act, 2017 (CYFSA) was given Royal Assent on June 1, 2017. Although it is not yet officially in force, once proclaimed it will make numerous changes to existing child-focused legislation in Ontario.

Most notably, the CYFSA repeals and replaces the longstanding Child and Family Services Act, and amends 36 other pieces of family- and child-related legislation.  Although the upcoming amendments are numerous and broad-ranging, one of their overriding goals is to focus on government-provided child and youth services, and to put children at the centre of decision-making.   They also aim to increase accountability, responsivity, and accessibility in relation to services and service providers.

Specifically, the new legislation sets out that the purpose of the CYFSA is to promote the best interests, protection and well-being of children. It recognizes that services to children and young persons should be provided in a manner that:

  • Respects regional differences wherever possible, and takes into account physical, emotional, spiritual, mental and developmental needs and differences among children and young persons;
  • Respects a child’s or young person’s race, ancestry, place of origin, colour, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity and gender expression; and
  • Respects a child’s or young person’s cultural and linguistic needs.

Next, the CYFSA also expressly recognizes that services to children and young persons and their families should be provided in a manner that builds on the strengths of the families wherever possible. It also gives special recognition to the needs and traditions of Indian and native children and families.

Other key changes include:

  • Increasing the age of protection to include 16- and 17-year-olds. Children of this age may be found to be in need of protection; certain added circumstances apply to this age-group in making that determination.  However, 16- and 17-year-olds may not be brought to a place of safety without their consent.
  • Authorizing children’s aid societies to enter into agreements with 16- and 17-year-olds in need of protection, and to bring applications to court.
  • Strengthening the focus on early intervention, helping prevent children and families from reaching crisis situations at home.
  • Making government-provided services more culturally-appropriate for all children and youth in the child welfare system. This includes ensuring indigenous and Black children and youth receive optimum support.
  • In connection with adoption, changing the matters that must be considered in determining the best interests of the child, in keeping with the nature of the changes that are implemented in other parts of the CYFSA. It also adds a new two-stage process for adoptions from outside Canada.

Finally, the CYFSA also sets out extensive rules for the collection, use and disclosure of personal information by government and service providers, and sets out new rules for obtaining consent and access to personal records, which are driven by privacy considerations.

These changes build upon feedback received by the government through the 2015 review of the Child and Family Services Act (CFSA). Note that the former Child and Family Services Act remains in-force until the new CYFSA is proclaimed in force.

For the full text of the yet-to-be-enacted legislation, see:

Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1

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

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Mother Wins Constitutional Challenge on Child Support for Disabled Adult Child

Mother Wins Constitutional Challenge on Child Support for Disabled Adult Child

The recent decision in a case called Coates v. Watson represents a landmark of constitutional law, with the court finding that section 31 of the Ontario Family Law Act discriminates against the adult disabled children of unmarried parents and is contrary to the Canadian Charter of Rights and Freedoms.

The case involved an unmarried Ontario mother who was responsible for caring for her adult disabled son named Joshua. The biological father had paid some child support, but was looking to have the support payments terminated now that Joshua was an adult.

Joshua suffered from DiGeorge syndrome, which left him with both physical and mental health issues. These in turn prevented him from attending school full-time.

The legal issue arose because section 31 of the provincial Family Law Act (“FLA”) states that every parent has an obligation to provide support, but only if the child is a minor or is in school full-time. The meant that in cases where the disabled child cannot attend school, section 31 actually operates to prevent him or her from falling within the definition of “child” and thus qualifying for child support. When applied to Joshua’s case, the law effectively eliminated the biological father’s obligation to assist in supporting his son.

In contrast, the federal Divorce Act contains no such qualification, and imposes a support obligation on the parents of disabled adult children, regardless of whether the child attends school.

In noting this discrepancy between the federal and provincial legislation, the court ultimately concluded that section 31 of the FLA was unconstitutional, because it discriminates against adult disabled children of unmarried parents on various grounds including parental marital status, and disability. That discrimination is contrary to s. 15 of the Charter, which enshrines the principle that every individual is “equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

If the ruling in Coates v. Watson stands (and is not overturned on appeal), then there is speculation that the FLA might have to be amended by expanding the definition of “child”, or by incorporating the definition found in the federal Divorce Act.

For the full text of the decision, see:

Coates v. Watson, 2017 ONCJ 454 (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

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Personal Injury Structured Settlements: Are They “Property” or “Income” Upon Divorce?

Personal Injury Structured Settlements: Are They “Property” or “Income” Upon Divorce?

In a recent family case called Hunks v. Hunks, the court considered whether structured settlements – such as the type that are reached as part of a personal injury claim – are considered “property” or else “income” for the purposes of the property-division and equalization regime under the Ontario Family Law Act (the “FLA”).

In that case, Donna and Gary got married in 1995. A few months later, Donna suffered an injury at a supermarket that left her disabled.   She successfully sued the supermarket, and was awarded more than $500,000 in compensation. After using spending about $200,000 for family-related needs, she used the rest to purchase a structured settlement (which is a mechanism by which a personal injury victim such as Donna could receive her settlement funds on a fixed schedule, rather than all up-front).

That structured settlement was arranged so that she would receive $1,290 per month for the rest of her life, as well as a lump-sum payment of $15,000 every five years (to a maximum of four such payments). All of this was subject to a small annual increase.

Unfortunately, the marriage between Donna and Gary did not flourish, and they separated about 15 years after Donna’s accident. In the course of settling out their financial affairs through the customary equalization process mandated by the FLA, the issue arose as to how the structured settlement should be properly characterized.

A lower court found that conceptually, a structured settlement was similar to a “pension” and rather than be excluded it formed part of Donna’s matrimonial property that was subject to equalization.

However, the Court of Appeal later overturned that ruling.   That court found that the structured settlement was essentially a special type of annuity, and it was more analogous to disability benefits. Under Ontario law, such benefits are considered “income” for FLA purposes, and while not subject to the equalization process per se, they are considered in determining spousal support levels.

For the full text of the decision, see:

Hunks v. Hunks, 2017 ONCA 247 (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

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“Gender Expression” Now Protected for Kids by Law

“Gender Expression” Now Protected for Kids by Law

In what is perhaps a controversial move, the Ontario government has recently passed legislation to allow children to be removed from their parents who opposed the child’s expression of “gender identity” or “gender expression”.

The Supporting Children, Youth and Families Act of 2017 received Royal Assent on June 1, 2017. Once passed, it will change or repeal/replace existing legislation and implement new requirements directing service providers and other entities to support a child’s choice of gender identity or gender expression.

These amended provisions are aimed primarily at courts, social workers, and adoption services. It mandates that when providing services or considering the best interests and welfare of a child, these entities must consider “race, ancestry, place of origin, color, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity, and gender expression.”

It also prevents parents from challenging a child’s same-sex orientation, or with identification not with the gender that he or she was born, but rather the opposite one.

This directive gives rise to a corollary assessment as well: Whether a child should be removed from a home where the parents oppose a child’s declaration of his or her homosexuality or choice of “gender”. The principle behind this part of the legislation is that a parent who refuses to recognize a child’s preference in this regard is actually perpetrating abuse; the child’s removal from the home environment and into child protection facilities would prevent further abuse from occurring.

The new law is not without its controversy. Objectors claim that it represents an unwarranted incursion into the rights of parents, particularly those relating to religion, and embodies an “anti-parent” agenda.

What are your thoughts on these new changes?

For the full text of the new legislation, see:

Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14.

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

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