Skip to content

Posts from the ‘Ontario Child Support’ Category

Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

Image result for running away

Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

In a recent case heard by the Ontario Court of Appeal, the issue was whether the parents of a 17-year old girl had any right whatsoever to participate in a court proceeding declaring that she had officially and legally withdrawn from their control as parents.

The girl had gone to court for a “declaration” (which is a formal court statement pronouncing on the existence of a legal state of affairs) that she had withdrawn from parental control.  This had followed a period of extreme acrimony between her and her father, with whom she lived full-time, over numerous matters.  The main precipitating event was the girl’s unilateral decision to finish high-school in Ontario a year early, in order to attend the University of Miami where she had obtained a full scholarship.

The father strongly opposed her plans, and wanted her to stay in Ontario to finish grade 12.  He even began court proceedings in Florida to force the university to disclose the contents of her application file, which impelled the university to ask the girl for proof that she was an independent minor.   Since her father had repeatedly said he would “do everything he can to stop” her from going to Miami, she needed the formal court declaration; without it he could demand that the university withdraw both her application and the scholarship.

The lower court had granted her application without hesitation, adding that “[t]he evidence indicates that [the girl] is a remarkable young woman.”  The court found the parents had no right to be included in or even have notice of the proceedings.

The father appealed, claiming that the mere fact that the court had not allowed or invited both parents to participate – including the full right to object, file evidence, and cross-examine – was grounds enough to overturn the declaration.

The Appeal Court disagreed, but conceded that the parents did indeed have a right to be part of the proceedings.  But there was still no reversible error here, since the required level of parental participation had been met, even though neither mother nor father were ever made official parties to the girl’s application.

The court’s reasoning was technical:  First, it pointed out that under the CLRA the girl had a unilateral stand-alone legal right to withdraw from parental control once she reached age 16.  The court added:

Once a child declares an intention to withdraw from parental control, her independence may – as it was here – be recognized by the police and the schools. There is no formal court process for a child to withdraw. … Unlike jurisdictions such as Quebec which have procedures for “emancipation”, Ontario law does not have a formal process for withdrawing from parental control. The child simply has to take control of the incidents of custody which include decision making regarding residence and education. No court process is required.

However, there was a narrow distinction between withdrawing from parental control, and obtaining a declaration from the court to that effect.  The former was a legal right that the girl could exercise unilaterally; the latter was a request to the court that it exercise its jurisdiction to make a declaration.  Here, the girl had appeared before the court for the second item, the declaration, which triggered consideration of the various legal interests of both the child and the parents.  In this matter, some of those interests were in conflict and called for a balanced inquiry.  Also, the CLRA expressly provides that the parents must be before the court in any application in respect of a child.

In short, and based on the legislation and basic legal principles, the court found that the parents must indeed be parties to their own daughter’s application to withdraw from parental control, but that the court has a broad discretion to direct the extent of that participation.  Here, although the father had not initially been named as a party by the lower court judge, he had been allowed a certain level of involvement nonetheless. He had been allowed to file material and make submissions.

The court also concluded that the merits of the girl’s application justified the order made. The prior judge had fully considered the extensive court record, which included more than a dozen affidavits providing information on which the best interests of the girl could be assessed.  The judge’s findings were supported by the evidence, and there was no procedural unfairness in granting the declaration.

As the Appeal Court stated: “The declaratory relief was not exercised in a vacuum. There was a clear reason for it.”

The father’s appeal was dismissed.

R.G. v. K.G.,

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

 

Child Support Law Changing to Include Adult Children with Disabilities

Image result for adult children

Child Support Law Changing to Include Adult Children with Disabilities

As I reported back this past summer, a court challenge by a single mother of a 22- year-old disabled young man, based on an asserted breach of the Canadian Charter of Rights and Freedoms, succeeded in upending the law relating to the eligibility for child support for such disabled adults.  The mother had successfully claimed that the child’s father – to whom she was never married – should continue to have a support obligation for the son they had together. She convinced the court that as compared to married parents, the differential treatment parents in her situation was contrary to Charter values.

On the heels of this decision, the Ontario government had promptly announced plans to amend the provincial legislation governing child support by way of Bill 113, as I reported shortly after the ruling was released.

Those amendments, included in omnibus budget legislation called the Stronger, Fairer Ontario Act (Budget Measures) Act, 2017 (Bill 177) [RA: Add link to http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=5316], were introduced on November 14, 2017.  They alter the provisions of the Ontario Family Law Act, so that the legislation now requires that every parent provide support, to the extent that the parent is capable of doing so, for his or her unmarried child who is “unable by reason of illness or disability to withdraw from the charge of his or her parents.”

The legal impact of the upcoming amendments is that:

  • the category of adult children who are eligible for child support is now expanded (since previously it included only adult children who are attending school full-time);
  • the child support obligation applies in respect of not only children of parents who are married, but also those with unmarried parents; and
  • the Family Law Act is now in-line with federal Divorce Act legislation, and with the law in many other Canadian jurisdictions.

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

 

 

Long-Awaited Update to Federal Child Support Guidelines

Image result for guidelines

Long-Awaited Update to Federal Child Support Guidelines

Important news for those who pay – or are eligible to receive – child support anywhere in Canada.

What are the “Guidelines”?

As most of my readers will know, the Federal Child Support Guidelines (the “Guidelines”) are the government-sponsored tool that help separated and divorcing parents set the appropriate amounts of child support that must be paid in respect of the children they have together.

The Federal Child Support Tables, which reflect the principles and calculations mandated by the Guidelines, set out the basic monthly amounts of child support that are result from various permutations.

The Guidelines and the corresponding Tables have been in force since late 2011, and until recently have reflected the calculations that accord with 2011 tax rules.

What’s New?

The Guidelines and corresponding Tables have been amended to reflect more recent tax rules, and have been incorporated into an updated version that takes effect on November 22, 2017. The official (and updated) Federal Child Support Tables, plus additional information and some “legalese” about these new amendments, are located here.

Where, and When?

As with the last version of the simplified Tables in PDF, there is a streamlined, simplified version of the 2017 Tables (also in PDF).  There is also a Child Support Table Look-up for both the 2011 and 2017 versions.  There is also an updated, Step-by-Step Guide.   (Note however that these streamlined and simplified versions are not “official”; only the original Federal Child Support Guidelines and Tables are considered legally-authoritative as to child support amounts.  This also means that the amounts of calculated support may be different when using the official Guildelines or Tables versus the more simplified tools).

One final point:  the new 2017 Guidelines and Tables come into force on November 21, 2017.   For people who need to determine how much child support is owed for a period before that date, the prior version of the Guidelines should still be used.  (And for those who need to calculate child support for a period earlier than December 31, 2011, an even earlier version of the Tables should be consulted.)

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 (Another) 20-Year-Old Cohabitation Agreement Be Upheld?

Image result for old law

Should (Another) 20-Year-Old Cohabitation Agreement Be Upheld?

A few weeks ago, I wrote about a case in which the court was asked whether a separation agreement signed by a couple 20 years earlier should be upheld.

Coincidentally, another recent Ontario Court of Appeal case involved a similar circumstance.

When the couple started living together 20 years ago – and at the husband’s insistence, since he’d had a prior relationship end acrimoniously – they signed a cohabitation agreement.  The husband took care of having it drafted, and he presented it to the wife for her signature.  He wanted the security of having the agreement in place before moving forward in the relationship and buying a home with her.

The wife did not have independent legal advice at the time, although she was given the opportunity to obtain it.  Under the terms of the agreement she signed, the wife agreed to give up all her claims to spousal support.

Still, when they separated 20 years later, she claimed for spousal support nonetheless.  The trial judge upheld the separation agreement, and dismissed her claim for support.  The wife brought an appeal.

In evaluating whether to allow that appeal, the court had to embark on a two-stage analysis, the first stage of which required it to:

1) look at the circumstances surrounding the negotiation and execution of the agreement, to determine whether there was any reason to discount it; and then

2) consider the substance of the agreement, to determine whether it was in substantial compliance with the general objectives of the Divorce Act at the time it was formed.

Then, in the second stage, the court had to consider – now 20 years later – whether the wife had established that the agreement no longer reflects the original intention of the parties, and whether the cohabitation agreement is still in substantial compliance with the legislated objectives of the modern-day Divorce Act.

Applying those standards here, the wife argued that the agreement was invalid, and that the trial judge failed to consider certain important facts when applying this two-stage test, namely:

  • That there was a power imbalance between her and the husband;
  • That she had not discussed spousal support with the husband;
  • That the husband’s financial disclosure was incomplete; and
  • That she did not have independent legal advice.

While conceding that she was not coerced, the wife argued that the agreement simply did not align with the overall objectives of the Divorce Act, whether now or back when it was signed.  This was particularly true since the couple went on to have an 18-year relationship, they had two children together for whom the wife bore the primary responsibility, and his income exceeded hers.

The Appeal Court considered the wife’s arguments.  After examining the objectives of the legislation, it rejected her spousal support request. There had been no error of law or misapprehension of fact by the trial judge, who carefully reviewed the relevant test and found:

  • The wife was aware of the husband’s desire to have a cohabitation agreement.
  • They had discussed the cohabitation agreement before the wife received it.
  • She was aware of all of the husband’s sources of income and assets, but did not pursue further disclosure.
  • She skimmed over the cohabitation agreement, reading some parts but not others.
  • There was no fraud, coercion, or duress.
  • Although given the opportunity, the wife did not seek independent legal advice even though – on her evidence – she had six weeks to do so.
  • At the time of signing the agreement, the wife thought it was fair and that it fairly outlined the parties’ discussions regarding the purchase of a house.
  • The agreement is in substantial compliance with the Divorce Act.

The court noted that the trial judge was entitled to make the findings that he did on the evidence, and are entitled to deference from appeal court.  It added that even if the cohabitation agreement did not exist, on all the facts the wife would not be entitled to spousal support anyway.  The court dismissed her appeal.

For the full text of the decision, see:

Smith v. Smith

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

 

 

Mother’s Bid to Relocate Child – Was it Just a Pretext to Join New Romantic Partner?

Image result for mother and child

Mother’s Bid to Relocate Child – Was it Just a Pretext to Join New Romantic Partner?

The parents of a 5-year old boy had separated in 2015, and had a court-approved agreement as to joint custody and shared parenting.  The mother now wanted to relocate with her son from Cochrane, Ontario to Thunder Bay where she had multiple job offers waiting.  She had recently quit her job as a prison transport officer in Cochrane, which did not allow her to properly fulfill her childcare responsibilities. As the court explained:

…. [H]er schedule was unpredictable; sometimes working out of town, sometimes working overtime, sometimes both, and never knowing until the last minute. This would have impaired her ability to care for her son – not knowing in advance whether she would be called in to work in the morning before he went to school, or whether she would be home in time to pick him up again – but her employer temporarily accommodated her with a schedule that avoided unpredictable deployment. Eventually, however, her employer withdrew this accommodation. After exhausting her vacation time and sick leave, the mother resigned her position. Prior to her resignation, her employer invited her to apply for another position in Cochrane with a more parenting-friendly schedule. She was successful, but the employer subsequently had to revoke the offer.

The mother said the move to Thunder Bay was necessary to remain financially viable and provide for her son, and that as the son’s primary caregiver, her decisions about where to live and work out to be given considerable weight.

The father objected to the mother’s plan.  For one thing, it would strip him of the chance to influence his son.   For another, he claimed the mother’s alleged need to move was merely a pretext to be with her new romantic partner, who also lived in Thunder Bay.   He also questioned her lack of ability to find new work in Cochrane, and felt that – since she had quit her job – her current state of financial hardship was self-imposed.

The mother’s bid to move had been rejected earlier by a motion judge, who discounted the allegation that the ostensible need for the move was a pretext.  However, the judge did conclude that both parents’ views had equal weight, and that the resolution called for a simple balancing of pros and cons between Cochrane and Thunder Bay, from the perspective of how the boy might benefit. In the end, the motion judge concluded that the mother should be able to find suitable work in Cochrane if she tried.

The Appeal Court saw things differently, and granted the mother’s appeal.

First of all, the motion judge had erred in not characterizing the mother as the primary caregiver, and in not giving her particular reasons for moving “serious consideration.”  Also, the judge was wrong in deciding that the mother’s financial circumstances were not self-imposed; they were brought on by the employer’s withdrawal of prior accommodation of her childcare responsibilities.  Nor was there any basis for the judge to conclude that the mother could likely find work in Cochrane – in fact the evidence showed otherwise.

The Appeal Court explained:

There is, in our view, a valid and compelling parenting-based reason for the move: it is necessary to enable the primary caregiver to remain financially viable while providing care for the child. The mother has done all she can be expected to do to secure employment in Cochrane. It has not worked out, and there is no good reason for her and her son to live in poverty when she has secured employment in Thunder Bay that will allow her both to parent her son and to provide economically for him.

The court also said it was “encouraged” in this regard by the fact that the mother had offered to provide air travel to Cochrane for the child, which was one of her employment benefits at one of the Thunder Bay jobs.  She also offered to accommodate the father’s work schedule as a forest firefighter when he was deployed across Canada.

The court granted the mother’s appeal, allowing her to move with the child to Thunder Bay, and ordered a new access regime, with the parents working out an acceptable access schedule between them.

For the full text of the decision, see:

Porter v. Bryan

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

Couple’s Use of Support Set-Off Calculations Costs Husband His $15,000 Tax Credit

Related image

Use of Support Set-Off Calculations Costs Husband His $15,000 Tax Credit

The husband and wife separated in 2011.  Based on their respective yearly incomes, they amicably resolved their issues as to child support by way of an agreement and consent order that was filed with the court.   They reached an agreement on child support by using a software program which, as the court put it, “introduce[d] various offsetting inputs and devise[d] a final unilateral payment from one spouse to the other.”

The outcome of the calculations was that the husband owed a single payment to the wife, who acknowledged that he was not required to pay further support for a specified time-period.   On this income tax return for the year, the husband then went ahead and claimed non-refundable child tax credits of almost $15,000 in respect of their two children.

As the court explained:

All of the usual stressful, difficult and emotional issues for this couple relating to child custody, financial support and raising a family within the constraints of marriage breakdown were resolved in a laudatory, sensible and agreeable fashion. [The husband] testified all issues settled amicably. Lawyers were involved to prepare all documents, undertake court proceedings and ensure all details complied with the parties’ wishes and the law. All seemed to unfold accordingly until the Minister’s reassessment disallowing the 2012 dependent deductions. Understandably, [the husband’s] child support commitment was predicated upon his use of the dependent deductions to reduce his taxable income.

The problem was that the Income Tax Act provision under which the husband had purported to claim that tax credit, namely s. 118(5.1), was an exception to the general rule in another section of the Act that disallows a support-paying person from claiming a tax deduction for dependents in certain stipulated instances.  Under the wording of that latter provision, the loss or non-use of the dependent deduction could be prevented only where both parents factually pay to the other an amount for child support.

In this case, since the spouses had essentially used a set-off procedure to come up with a single payment by the husband to the wife, there was no such payment by each of them separately, as the provision required.

Unfortunately, this meant that the Minister of National Revenue disallowed the $15,000 the husband purported to claim under s. 118(5.1) of the Act.  Because the husband was the only spouse to pay “a support amount”, the Minister concluded, he did not fall within the exception in s. 118(5.1) and was not eligible.

The husband appealed the Minister’s decision, but was unsuccessful.   The court pointed out that the case law precedent was uniform in its interpretation of the Act, and that the fact that the couple had used a set-off mechanism in the course of calculating their child support obligations to each other did not transform the respective and distinct values they used into “a support amount” as that term is used in the Act’s provision.  The Act, as worded, did not accommodate for the “expeditious use of a computer software program, the culmination of which is a unilateral payment of a support amount by only one parent to the other.”

Despite this outcome arguably based on technicalities, the court said it had “no alternative but to dismiss” the husband’s appeal, “however sympathetic it may be.”

For the full text of the decision, see:

Harder v. The Queen

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

 

 

Child’s Aboriginal Heritage Not a “Super-Weight” Factor in Adoption, Court Rules

Image result for adoption law

Child’s Aboriginal Heritage Not a “Super-Weight” Factor in Adoption, Court Rules

Recently I wrote about a Charter-based challenge to certain provisions of the Ontario Child and Family Services Act, where a Métis father claimed that provisions of that Act offended his child’s right to equality under the law.  He claimed that because the term “Native child” did not include those of Métis heritage, the legislation’s effect was to unjustly exclude his son from receiving certain services to which other Aboriginal children were entitled.

Aboriginal heritage was likewise one of the key elements in a recent B.C. Court of Appeal decision.

The birth mother of a 10-year old Aboriginal child opposed the application by another family to adopt him.  The boy’s grandmother had become his legal guardian immediately after birth; she had had him placed with the new family full-time at 20 months, where he has lived continuously ever since.  After obtaining legal custody and guardianship a few years ago, the family applied successfully to the court to formally adopt him.

The birth mother appealed that adoption order.  She claimed that the lower court judge who granted it failed to fully consider the importance of the child’s Aboriginal heritage and cultural identity as a factor contributing to his best interests, as required under section 3(2) of the provincial Adoption Act.

The Appeal Court disagreed; that factor was just one of many listed in the legislation that a court needed to consider.   The court observed:

With respect, I am unable to agree with the birth mother’s interpretation of s. 3(2) of the Act. First, in determining whether an adoption order should be made, a child’s Aboriginal heritage and cultural identity does not attract a “super-weight” over the other factors. Neither do the words in s. 3(2), nor the context of the Act, allow for an expanded interpretation beyond the plain meaning of the text of the provision. …  [E]ven if the birth mother’s interpretation of s. 3(2) were to be accepted, the evidence establishes that the adoptive parents have done everything they could reasonably have done to ensure that the child learns about, participates in, and appreciates the significance of his Aboriginal heritage and culture. The evidence is clear that the child knows about his particular Band and First Nation, and speaks with pride about being Aboriginal.

The court also pointed out that in this case, the child had a strong emotional bond with the adoptive family, which included his two siblings, identified the parents as his “mother” and “father”, and would suffer significant emotional harm if he was removed from their care at this point.  The lower court judge had properly weighed all the factors and had not applied the legislative mandate improperly.

For the full text of the decision, see:

M.M. v. T.B.

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 Aboriginal Heritage Trump Child Protection Needs?

Image result for native american heritage

Should Aboriginal Heritage Trump Child Protection Needs?

In a recent child protection case, the court summed up nature of the proceedings with a definite air of gravitas:

This case is also about the equality rights of Métis children and their families in the child protection context in Ontario, and whether the provincial government is respecting those rights. It is an important opportunity for this province to demonstrate its commitment to act upon the Calls to Action that the Truth and Reconciliation Commission of Canada issued in 2015.

The facts involved a child who had been apprehended at birth by the Children’s Aid Society (CAS), and was in foster care ever since.  He was now almost two years old.

The father claimed the child was of Métis heritage.  This claim was an important fact, because the definition of “Native child” contained in the Child and Family Services Act (CFSA) did not include Métis.   This meant that a Métis child would not gain the same advantages as one who had been designed a “Native child” under the CFSA; including the benefit of a legislative mandate to the court to the effect that any order made in relation to the child was to bear his or her cultural, religious, and regional differences in mind.

Against that background, the CAS had applied to have the child made a Crown ward, with no access to the parents at all.  This sparked a successful Charter of Rights challenge by the child’s father, who claimed that the differing treatment of Métis children was in violation of the guarantee of “equality before and under law, and equal protection and benefit of law”.  A prior court had temporarily addressed the father’s concern by ordering the child to be treated as if he were in the more beneficial “Native child” category for the purposes of the court application by the CAS to make him a Crown ward.

The court then turned to assessing the parties’ positions on that application.  It acknowledged that there were numerous factors involved in deciding a child protection application, and the child’s Aboriginal heritage was just one of them.  Here, the father had raised the issue at the eleventh hour, and had supplied only scarce evidence to show that maintaining the native heritage and culture was important to the family.  The court said:

What I have outlined above is the totality of the evidence this court was given relative to [the father’s] background. He did not give any testimony about his Aboriginal background or any connections that he had or has in that community other than his relatively brief contact with the Métis Ontario Healthy Babies Healthy Children Program.

The court quoted from a prior ruling in which the court had to deal with similar issues, then added its own comments:

Our compassion toward and recognition of the importance of native heritage and families remains unwavering.  But special status does not equate to a blanket exemption from legislation carefully crafted to protect vulnerable and often damaged children.

 I agree with all of the considerations that are set out by [the prior judge] in the above-quoted paragraph. In addition, I do not feel that the legislative scheme put in place to recognize the importance of Native heritage and culture for children who have been designated as Native can be meaningfully applied in the abstract. There must be evidence of the nature of the involvement of the child’s family in the Native community. The mere claim that someone is Native does not allow the court to consider the relevant factors within the legislative scheme, without some evidence of what is important to this family, this child, and the Aboriginal community the child is said to be a member of.

In this case, the required proof was absent. The father had also not shown that his prior inappropriate parenting skills had improved even though he had parenting services available to him for several years.  An attempt to find the child suitable placement with extended family-members had failed.  Meanwhile, the child had begun to thrive in his current care arrangement that did not feature any involvement by the parents.

Finally, the court observed that prior to bringing its application, the CAS had invited members of various Ontario-based Métis communities to participate in the litigation or provide the placement options for the child, without success.

Ultimately, the child was made a Crown ward, with no access to the parents.  However, the court also directed that the CAS should make every effort that any foster parent or adoptive placement would be willing to educate the child on his Aboriginal heritage and culture, and to expose the child to his culture on an age-appropriate basis.

For the full text of the decision, see:

CCAS v G.H. and T.V.

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 Can A Parent Apply For Child Support

Wednesday’s Video Clip: When Can A Parent Apply For Child Support

In this video we discuss how parents who have their children living with them after separation can apply for child support at any time. Usually they apply right after they separate or as part of their divorce application. They often apply for custody and child support at the same time. It is usually best to deal with these matters as early as possible. Sometimes parents with custody do not want or need child support at first, but later their situation changes.

They can apply for child support when the need occurs, even after a divorce and all other matters arising from the separation have been settled. But if a step-parent is asked to pay support, the more time that has passed since the step-parent had an ongoing relationship with the child, the less likely it is that the court will order support payments. This is especially true if the step-parent’s social and emotional relationship with the child has ended. A parent can apply for custody and support even while living separately under the same roof after their relationship with the other parent is over. But usually the court will not make any order for custody and support until one parent has actually moved out.

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

Court 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

SaveSave