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Posts from the ‘Ontario Child Support’ Category

Is $122,000 a Month in Interim Support Excessive?

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Is $122,000 a Month in Interim Support Excessive?

In a blog last week, I wrote about the recent decision in Zavet v. Herzog, which was essentially an Estates matter where the key “players” were:  1) Sam, the now-deceased successful real estate developer worth at least $200  million; 2) his Estate Trustee, who was his wife Dianne from whom Sam had been separated for over two decades; and 3) Alona, his longtime girlfriend.

Sam had not made provision for Alona in his Will, so she was bringing various claims against his Estate.

The matter was in the very preliminary stages, mainly because evaluating Sam’s extensive investments, corporate holdings, and sizeable assets was going to take a great deal of financial leg-work.  To tide her over until that work was complete, Alona had already been given $900,000, and her expenses for cellphone, health insurance, car insurance and gas were being paid directly by the Estate.

Still, Alona launched a motion asking the court to award her interim support from Sam’s Estate, pending the full hearing of her application for support as a “dependent” under the provincial Succession Law Reform Act.  (This legislation allows a dependent to apply for support from a deceased’s Estate in cases where the deceased has not made adequate provisions for the proper support of that dependent.  The test is whether Alona “is in need of and entitled to support.”)

Dianne, in her role of the Estate Trustee, opposed the amount of interim support Alona was requesting, claiming that it was “unrealistic and unreliable.”

The court agreed.  It ultimately rejected Alona’s budget entirely, stating that “[b]esides being inaccurate and overstated, it is unsubstantiated. It is not an accurate estimation of her needs pending return of the [dependent’s support] Application, many of which, in my view, have already been provided for.”

As the court explained:

In my view, Alona’s motion for interim support is premised on the basis that the Estate has lots of money and she is entitled to continue to live the lifestyle that she says she and Sam were living before his illness. …

As a result, I consider Alona’s budget to be of no assistance. In addition, I do not consider it to be an accurate reflection of her actual monthly expenses. Alona has little to no experience in managing money or preparing budgets. She stated in cross-examination that she kept no personal or financial records. The budget was composed by her without any reference to any specific documentation. She initially produced very few records. Although requested, she brought no documentation to her cross-examination. …

Noting that Alona’s documents were disorganized and didn’t “come close” to substantiating her budget numbers, the court concluded they were “grossly overstated.”  It gave the following illustrations:

–         $5,000 per month for groceries; $13,200 per month for meals outside the home; $2,500 a month for a private chef; and $4,000 a month for her Four Seasons account which includes mainly in-room dining (in excess of $20,000 a month for food);

–         $1,700 per month for pet care. The only pet living at the Condo is [her son’s] dog which Alona says is really the family dog. It been living with [her son] since 2011;

–         $700 a month for public transit and taxis and $4,000 a month for a driver although she owns a 2014 California Ferrari and a 2017 Bentley Bentayga;

–         $31,250 per month for clothing, purses and shoes;

–         $2,500 a month for eye care (contact lenses, sunglasses and reading glasses);

–          $3,000 a month for charities.

The court noted Alona was also unable to show how she had spent the initial $900,000 that she had already received since Sam’s death.

Nonetheless, the court did acknowledge that Alona was entitled to a further monthly amount to meet her needs pending the hearing of the larger Estates applications.  It awarded her $30,000 per month for this purpose – an amount that was admittedly “somewhat arbitrary”, but one that was based on some of the documented expenses Alona was able to submit.

For the full text of the decision, see:

Zavet v. Herzog

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

 

 

A Crash Course on Paying for Kids’ Post-Secondary Education

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A Crash Course on Paying for Kids’ Post-Secondary Education

It’s almost back-to-school time, and with it comes the usual surge of expenses for parents. For separated or divorced parents of older children, the allocation of education costs can be contentious, particularly if the child has already completed one university or college degree, and is embarking on a second degree.  A very common question arises in this scenario:

Under what circumstances do parents have to pay for their adult child’s post-secondary education?

The recent decision in an Ontario case called Laramie v. Laramie is a goldmine of information on this narrow legal issue. Here are some of the main points of the court’s own summary:

  • An adult child undertaking educational studies may trigger a right to child support, but it is not automatic. The question is whether the child is “unable” to withdraw from parental charge.[1]
  • An adult child who looks to their parents to continue to support them through their advanced studies cannot claim indefinite dependency while engaging in “half-hearted or ill-conceived educational endeavours.”[2]
  • The test is whether the child is “unable without the direct or indirect financial assistance of the parents to pursue a reasonable course of post-secondary education to the end of bettering the future prospects of the child.”[3]
  • The factors that courts consider in determining entitlement for children enrolled in post-secondary studies include, without limitation, the following:
    • Is the child actually enrolled? Is it a full- or part-time program?
    • Has the child applied for or received student loans, bursaries or scholarships?
    • Can the child contribute to his or her support through savings or part-time work?
    • Does the child have a reasonable and appropriate education and career plan? Or do they just have nothing better to do?
    • Is their primary focus on school? Or is it primarily on career, with school being secondary?
    • What are the benefits, costs, and prospects of the success of the child’s education plan?
    • Is this the child’s first post-secondary degree? Or is it an extended graduate program?
    • Is the child engaging diligently in his or her studies? How is their academic performance?
    • What is the child’s age, qualifications, aptitude, level of maturity, sense of responsibility, and experience?
    • What are the means, needs and other circumstances of the parents and the child?
    • Is the child willing to remain reasonably accountable to the parents with respect to their education plans and progress?[4]

Note that not all of these factors have to be considered to show a child’s entitlement.[5]  A child who is diligently pursuing studies, in a suitable program, will generally be entitled to support for the first college or university program.[6]  This will involve a reasonable degree of attendance, involvement, engagement and success in the program, in light of the child’s overall circumstances.

For the full text of the decision, see:

Laramie v. Laramie

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

 

[1] Jackson v. Jackson, 1972 CanLII 141 (SCC), [1973] S.C.R. 205 (S.C.C.);  Menegaldo v. Menegaldo, 2012 ONSC 2915 (CanLII), 2012 ONSC 2915 (S.C.J.) at para. 157.

[2] Kohan v. Kohan, 2016 CarswellAlta 736 (C.A.).

[3] Geran v. Geran, 2011 SKCA 55 (CanLII), 2011 CarswellSask 333 (C.A.).

[4] Whitton; Farden v. Farden (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C. Master); Geran; Rebenchuk; Haist v. Haist (2010), 2010 ONSC 1283 (CanLII), 83 R.F.L. (6th) 147 (Ont. S.C.J.); Caterini v. Zaccaria, 2010 ONSC 6473 (CanLII), 2010 CarswellOnt 9344 (S.C.J.);  Menegaldo; Charron v. Dumais, 2016 ONSC 7491 (CanLII), 2016 ONSC 7491 (S.C.J.); Kohan v. Kohan, 2016 CarswellAlta 736 (C.A.).

 

[5] Darlington v. Darlington (1997), 1997 CanLII 3893 (BC CA), 32 R.F.L. (4th) 406 (B.C.C.A);  Wesemann v. Wesemann (1999), 1999 CanLII 5873 (BC SC), 49 R.F.L. (4th) 435 (B.C. S.C.) at para. 11.

[6] Achkewich v. Achkewich, 1998 CarswellAlta 1275 (Q.B.); Marsh v. Jashewski, 2011 ONSC 3793 (CanLII), 2011 ONSC 3793 (S.C.J.); Caterini; Metter v. Solomon, 2005 CarswellOnt 986 (S.C.J.).

Court Bars Condo Guests from Posting Interior Pics on Social Media

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Court Bars Condo Guests from Posting Interior Pics on Social Media

The recent ruling in Zavet v. Herzog involved a preliminary motion brought by a woman named Alona, who was the long-time common-law partner of a very successful real estate developer named Sam.  Although the Estate was still in the early stages of untangling his extremely complex business affairs (with Sam’s separated wife Dianne being named as his Estate Trustee), the early figures showed that Sam had amassed a fortune of over $200 million during his lifetime.  Sam’s Will made no provision for Alona, even though they had been living together for at least 12 years at the time of his death.

Pending the full resolution of issues arising from the Estate distribution, Alona had obtained a court order entitling her to continue to live in Sam’s 5,000 square-foot Condo in the Four Seasons in Toronto for the interim. Her 29-year-old son Michael was also living there, with his girlfriend and their dog.

Although the Estate Trustee had acquiesced to that arrangement until the Estate matters were unwound, she did take umbrage with something else:   It seems that Alona had hosted a charity event that ended up all over social media.  As the court explained:

The Estate’s motion arises as a result of Alona and her family’s use of the Condo and specifically a public fundraising wine tasting event that was hosted by [Alona’s son] Michael on October 28, 2017 at the Condo.  The event, which normally costs $5,000 a couple, was reduced to $500 per person to attract a younger crowd. There is no evidence of how many people attended the event but photographs of it showing a number of different people in attendance were posted on social media. The photos contain images of the interior of the Condo, including valuable art work, furnishings, sculptures, antiques, fixtures and crystal. In addition, Tillie, who is an aspiring model, has posted professional pictures on social media taken of her in the Condo to promote her career.

As a result, the Estate Trustee wanted a court order:   1) prohibiting Alona from hosting, or permitting public- or semi-public events at the Condo, and 2) making it a condition of Alona’s occupancy that other residents of the Condo shall not make any social media posts showing the Condo’s interior – including but not limited to Instagram, Facebook and Twitter.

Admittedly, the charity event was very prestigious, and raised a significant amount for a Toronto hospital.  Alona also pointed out that her use of the Condo was unrestricted, that she had been granted sole possession by a court, and that she had Sam had hosted charity events while he was alive.

The court had urged the parties to try to come to terms, they were unable to agree on how many people could attend the Condo at any one time, and whether there should be any restriction on posting pictures of the interior of the Condo on social media.  In the court of resolving the impasse, the court stated:

In my view, the answer to this issue lies in a balancing of the interests of both Alona and the Estate in the interim period. On the one hand, Alona is entitled to sole possession of the Condo. On the other hand, given the valuable nature of the Condo and its contents, the Estate has an interest in not having it opened to the public or pictures of the interior displayed on social media.

While I do not think it is appropriate during this interim period for Alona or her son to host public fund raising events at the Condo, it is reasonable for her to be able to host family events and dinner parties for her friends. Alona submits that the number of people should be 25 and the Estate submits 15. I prefer the Estate’s number. It is large enough to permit family and friends without being excessive. Accordingly, Alona shall be permitted to entertain a maximum of 15 people at any one time at the Condo.

As for the social media aspect – and in dismissing Alona’s objections over the challenges of enforcing any restrictions – the court said:

Further, I do not accept Alona’s submission that a restriction in connection with posting on social media of pictures of the Condo interior is simply unenforceable in respect of today’s young people. There is no reason or need for the occupants of the Condo or their families to post pictures of the interior of the Condo on social media. To the extent they do, they run the risk that they will no longer be entitled to occupy or attend at the Condo.

I agree that guests are a different matter in that they are more difficult to supervise. That said, there is no reason that they would not respect their host’s wishes, particularly given they emanate from a court order. Accordingly, the occupants shall be required to advise any guest of the restriction that pictures of the interior of the Condo, either directly or indirectly, cannot be posted on social media. Again, I do not consider that such a restriction is too onerous or unenforceable.

For the full text of the decision, see:

Zavet v. Herzog

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

 

Children and the Legal System — Appeal Court Rules on Kids’ Privacy and the Role of the OCL

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Children and the Legal System — Appeal Court Rules on Kids’ Privacy and the Role of the OCL

Being involved in the Canadian justice system is never easy on anyone. But especially for children, it can have long-range negative impact.  As the Ontario court observed in a case called Graham v. Bruto:

Children are among the most vulnerable members of society. Courts, administrative authorities and legislative bodies have a duty to recognize, advance and protect their interests. When children are the subject of a custody dispute or child protection proceedings, they are at their most vulnerable. Exposure to conflict has been called the “single most damaging factor for children in the face of divorce.”

Traditionally, the justice system has tried to be sensitive to the vulnerabilities and needs of children.   It features established safeguards around children’s participation in the system, including the protections of the Office of the Children’s Lawyer (OCL), which is an office within the provincial Ministry of the Attorney General.  The role of the OCL, among other things, is to  represent children in various areas of the law, including child custody and access disputes, child protection proceedings, and civil litigation.

A very recent Ontario Court of Appeal decision addresses the parameters around the OCL’s duty toward children, and its ability to release information in its possession that concerns them.

The spark for the analysis was a routine custody and access dispute between a father and the mother of his children.  The OCL had become involved, and appointed the Children’s Lawyer to conduct an investigation, and make a report with recommendations on the issues.   The father wanted to see the notes, records and assessments in the Children’s Lawyer’s files,  including those that had been made by the social worker assigned to the case.

The father made his access-to-information request to the Attorney General for Ontario under the Freedom of Information and Protection of Privacy Act (“FIPPA“), since the OCL is an independent branch of that Ministry.  The OCL claimed that FIPPA did not apply to force disclosure, contending that its role was to independently represent the interests of children.  The Ministry also added that the information was not under its custody or control, so it could not provide the information the father requested.

The Ministry advised the father to seek the information from two different courthouses, where his custody proceedings were being heard.  However, he found that the sought-after information had been removed by the OCL.  The father’s further requests directly to the OCL were refused.

This prompted a legally-complex hearing before an Adjudicator appointed though the Assistant Information and Privacy Commissioner.  The key practical issue was whether a child’s litigation records, held with the Children’s Lawyer, were subject to the father’s freedom of information access request. Legally, the issue hinged on whether the OCL documents were in the “custody and control” of the Ministry (which is the wording in FIPPA that triggers certain safeguards around information privacy).  The Adjudicator ordered that they were, and ordered the Ministry to respond to the father’s disclosure request.  A later court upheld the Adjudicator’s order.

This prompted a further appeal to the Court of Appeal, which engaged detailed consideration of several statutes, of federal privacy policy, and of the scope of the OCL’s fiduciary duty to the children it protects and represents.  The issue also required consideration of the scope of the OCL’s independence in relation to the Ministry itself, and of the interplay between various government department roles.

The Appeal Court ultimately concluded that the Adjudicator had erred; the Adjudicator’s ruling was based on a “fundamental misunderstanding of the role and function of the Children’s Lawyer, her relationship to the [Ministry], and her duty to provide children with the heightened protection the law mandates.”

Specifically, the Court concluded that the Children’s Lawyer must operate separately and distinctly from the Ministry, and that when representing children, the Children’s Lawyer is not a branch of the Ministry per se.  Moreover, the father’s request for the documents was really not about privacy (which was the Adjudicator’s realm), but rather related to issues touching on the OCL’s unique role and its duties towards children, which are “fundamental to the proper functioning of our legal system.”

This was beyond the realm of the Adjudicator’s specialized expertise, and her ruling was “not in the best interests of children.”   It needed to be reviewed for correctness since she had taken the wrong approach.  In the end, the Court of Appeal overturned a prior order, and allowed a full judicial review of the Adjudicator’s previous order to take place.

Although it may be currently mired in legal concepts, the outcome of the Appeal Court’s decision is to underline that the best interests of children remain uppermost in the minds of the courts, and by extension in the workings of the judicial system, at least in theory.

For the full text of the decisions, see:

Graham v. Bruto ; aff’d Graham v. Bruto, 2008

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner)

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

Who Gets Custody of Purchased Embryos?

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Unique Case Asks: Who Gets Custody of Purchased Embryos?

In a unique contract law case, the Ontario court was asked to rule on which of two former spouses is the “owner” of an embryo created from purchased gametes during their marriage.

During their 10-year union the couple had paid US$11,500 to purchase donated eggs and sperm from a U.S. company.  Four embryos resulted, only of two of which were viable. One was implanted in the wife, and she gave birth to the couple’s son in late 2012.  Less than 10 days later, the couple separated, and an acrimonious divorce ensued.

The wife, now 48 years old, wanted to use the second embryo that remains in storage, with the promise that she would not ask the husband for child support in the future, in the event that the process resulted in the birth of a child.  The husband preferred to have the embryo donated. Neither spouse has a biological connection to the embryos.

To resolve the impasse, the couple appeared before the court, which determined that the matter essentially boiled down to a battle of competing contracts:  The parties had signed one agreement with an Ontario Fertility Center, and had also signed a contract with the U.S. company, each of them purporting to cover what happens with extra embryos. The two contracts were incompatible with each other by their terms, so the court was asked to determine which of them governs the situation.

Under the Ontario contract, the parties agreed that in the event of separation or divorce, the wishes of “patient” – which was contractually defined as being the wife – would be respected. The wife naturally urged the court to endorse this contract, allowing her to keep the last embryo; she also pointed out that it was made from the same genetic materials as the parties’ son, who would benefit from having a sibling.

The U.S. contract stipulated that the embryos were “property” and gave options on how they were to be disposed of.  The parties chose “donation” in the event they were unable to agree. In the event of separation or divorce, the contract put the responsibility for deciding on a court, and eliminates consideration of the parties’ wishes.   The husband argued in favour of this U.S. contract being approved by the court, and pointed out that he had himself paid the entire purchase price for the embryos, arguing they were therefore his “property.”

In settling this novel dispute, the court started its ruling this way:

There is no law on point that has considered how to dispose of embryos when neither party has a biological connection to the embryos.

The court noted that Canadian federal law actually makes it illegal to purchase and sell embryos; however, that was not a legal impediment to making a ruling here.  Under either contract, the parties had agreed between themselves that the embryos would be treated as “property”. Ontario provincial family legislation addressed some property-division issues, but since there was only one embryo, it could not be split or sold in the customary way.

In short:  since the embryo could not be divided, nor could it be sold and the proceeds divided, the ownership had to be determined by what the former couple intended.  This could be determined solely by looking at the contracts they had signed. Neither of them argued that they had been unduly influenced when doing so, that they did know what they were signing, or that there were other reasons to suggest the contracts were invalid.

Looking at their wording, the court concluded that the Ontario contract which called for respecting the “wishes of the patient” had to govern. (And it added as an aside, that the best interests of the couple’s existing son was not a relevant consideration to this outcome).

This meant the embryo was to be released to the wife.   However – and despite the sale of embryos being illegal – the court still had to acknowledge that the husband had paid for the embryo, and that it was property. It therefore ordered the wife to reimburse the husband for his monetary contribution:  Since four embryos cost US$11,500, the husband’s half-share of the one remaining embryo would be US$1,438 USD.

For the full text of the decision, see:

S.H. v. D.H.

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

 

“Smoking Gun” Email Helps Convince Court to Strike Out Husband’s Pleadings

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“Smoking Gun” Email Helps Convince Court to Strike Out Husband’s Pleadings

When a court “strikes out” a litigant’s pleadings, it essentially precludes that person from participating in the proceedings any further.  It is a drastic order by the court, usually in response to a situation where the person’s conduct shows that he or she is unwilling to co-operate in the orderly judicial resolution of the dispute.

In a case called Milutinovic v. Milutinovic, a wayward email by the husband – accidentally sent to the wife’s lawyer – helped convince the court to make such an order against him, since it showed that he was wilfully failing to comply with his court-mandated obligations.

Indeed, the husband had failed on numerous prior occasions to comply with court orders made in connection with his divorce from the wife, including one directing him to make financial disclosure or else the wife could apply to have his pleadings struck.  When he failed yet again to supply the information, including his long-requested income tax returns, the wife brought an application to strike as she was entitled to do.

Evidently the judge hearing that application felt inclined to give the husband yet another chance, noting that that the earlier order had stated that the husband’s pleadings “may be” struck (not “must be”).  That later judge gave the husband some extended opportunity to comply with some of his shortfalls in providing information, including providing his tax returns specifically.

Still, the husband did not provide the wife with the information she was owed.  As the trial was about the start, the wife renewed her motion to strike out his pleadings.  She claimed that there was no longer any lee-way by the court to allow him to continue with his side of the case when he had failed to breach so many of the prior significant orders.

The court began its deliberation on the issue this way:

This is a serious remedy; it removes a party from the litigation and prevents that party from having his or her side of the story placed before the court.  The court must use caution in doing so, especially on the eve of trial.

On the other hand, the court went on:

That being said, it is a serious business to breach a court order or court orders, something that [the husband] acknowledges that he has done.  This is especially so, where we are on the first day of trial and the [husband] has not provided the disclosure that he was obligated to do by various court orders made throughout these proceedings … And to make this more egregious, it is more than justified where child support is in issue, and the court is left without the ability to determine the [husband’s] income to pay that child support….

The court did consider the many excuses for non-compliance that the husband had put forward:

However, he says that he has been extremely stressed by these proceedings and is not seeing his children.  He says that he has been unable to turn his mind to the litigation or deal with it.

Noting that months ago the previous court had given him “one last chance” to at least provide the crucial income tax returns, the court concluded that the husband had simply not been vigilant about meeting his disclosure obligations.  In fact, the court had proof – in the form of an errant e-mail that the husband had accidentally send to the wife’s lawyer.  The court explained:

However, and what is extremely surprising, if not shocking to the court, is the fact that [the husband] sent an email to his bank only this morning requesting the money that [the prior judge] ordered to be released.  The order for release of funds was made more than 11 weeks ago, yet the respondent only sent the email this morning to his bank directing them to release funds.  [The husband] acknowledges that he sent the email, but was surprised that the [wife’s] lawyer had it.  Then it became clear that he had sent the email to [the wife’s] lawyer by accident and he acknowledged that he had only sent it today.  He had no excuse for this.

After itemizing yet again the husband’s many shortcomings in terms of providing disclosure over the preceding months, the court added:

The fact that this email was only discovered by inadvertence is, in a sense, poetic justice, considering that the [husband] should have disclosed his attempts to comply with his disclosure requirements in any event.

The court reiterated that the husband was in breach of at least five prior orders, most notably those that required him to provide responding materials.  (And the court was careful to note that it was not relying on the email to prove that the husband had breached the orders; it only relied on it to determine the nature of the husband’s breach, for the purposes of the motion to strike).   Although the husband had tried to blame his own lawyer, the breaches were his own fault, and more importantly were intentional and wilful.

In the end, the court felt amply justified in striking out the husband’s pleadings.  He was foreclosed from participating in the trial in any way, nor to give evidence or cross example witnesses.

For the full text of the decision, see:

Milutinovic v. Milutinovic

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

 

Calculating Child Support: What About Those Self-Employment Expenses?

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Calculating Child Support: What About Those Self-Employment Expenses?

In a recent case called Sawma v. Zeidan, the court was tasked with calculating the child support amounts payable by the separated father to the mother for the child they had together. The essential issue was the father’s annual income for a 5-year period; those figures would be used to calculate his ongoing support obligation amounts as directed by the Child Support Guidelines.

To their credit, the former couple had largely agreed between themselves as to the correct amount for the father’s gross income figure for each of the five years in question. However, they remained at a crossroads over the proper amount of his deductible business-related expenses for each year. The father’s purported deductions under this category related to usual items such as his cell phone, internet, gas heating and bookkeeping expenses, but he also claimed hefty amounts as “mileage expenses” – in some years totalling the equivalent of between one-third to one-half of his gross income.

The mother questioned the father’s proof that these business expenses were valid, claiming they were either unbelievable or poorly-supported. She also pointed out that he had a pattern of hiding income.

In order to address the key question, the court drew from a 2017 Alberta Court of Appeal decision called Cunningham v. Seveny, that set out the guiding principles (which are of equal relevance to Ontario). Those principles are:

• Onus. When a self-employed parent argues that his or her gross income should be reduced by business expenses for purposes of calculating income for child support, the onus or burden of proving that the expenses are reasonable falls clearly on the parent claiming them.

• Evidence. A parent who claims a deduction for business-related expenses must present evidence to justify those expenses.

• Explanation. If the claimed expenses also resulted in a personal benefit to the parent claiming the deduction, then “an explanation is required for why those expense deductions (or a part of them) should not be attributed to the parent’s income for child support purposes.”

• CRA Not Deteminative. Even if expenses have been approved for income tax purposes by the Canada Revenue Agency, this does not mean that the test for deducting expenses from income for child support purposes has been met.

• Child’s Right. Child support is considered to be the right of the child. A parent’s legal obligation to pay child support that fairly reflects the parent’s income in accordance with the Child Support Guidelines is not to be curtailed or limited by income tax statutes that allow for business expense deductibility.
In this case, and with the exception of certain car-related expenses (for which the father filed six thick volumes of receipts) the court concluded that he had failed to prove any of the so-called business expenses were reasonable and properly deducted from his gross income for calculating child support.

The court said:
Despite the amount of paper that was filed and the work I accept must have been devoted to compiling the hundreds of receipts and adding up the totals, the [father] has not provided the evidence I would require to find that the receipts and totals represent expenses that were all actually incurred by the [father] or that they represent business expenses exclusively and not personal expenses.
For example, the father did indeed provide evidence that he used his car for business purposes, but not the extent to which it was used for that reason, rather than for personal use. He claimed aggressive amounts for car-related expenses, but did not prove to the court’s satisfaction which of them were business-related. Likewise, his proof about his cell phone, internet, office space, and gas heating charges was also deficient.

The court added:
In addition to finding that the [father’s] evidence in support of his claimed expenses is insufficient, I find that, overall, the [father’s] evidence lacks credibility. I find that he is not a party who can be given the benefit of any doubt. My conclusion in this regard is based on the steps the [father] took to conceal income from the [mother], which included preparing a letter the [father] informed the [mother] his employer had prepared and falsifying bank records. In both cases, the [father] initially denied but eventually admitted what he had done.

The court also noted the father received a mileage allowance from three different companies. He argued these should be excluded from income the same way that Canada Revenue Agency (CRA) permitted this on his tax return, but the court rejected this notion. The mileage allowance represented money that went into the father’s pocket, and therefore had to be taken into account in determining his income for child support purposes regardless of what the CRA did.

With that said, and having recognized the father received mileage allowances, the court conceded that permitting him to claim certain car-related business expenses was appropriate, such as certain amounts for gas and repairs.

For the full text of the decision, see:

Sawma v. Zeidan

Cunningham v. Seveny

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

Is a Child Conceived After a Parent’s Death Still Entitled to Inherit?

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Is a Child Conceived After a Parent’s Death Still Entitled to Inherit?

It’s a narrow legal issue, and one that likely does not come up often. But an amendment to the Ontario legislation governing who gets to inherit a deceased’s parent’s property makes it possible for children conceived after a parent’s death – through Assisted Reproductive Technology – to inherit.

The amendment has the cumbersome title of the All Families are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, and amends the provincial Succession Law Reform Act (SLRA) and some related legislation. Its main achievement is to amend the definitions of “child” and “issue” in the SLRA to expressly include a child and a descendant who is conceived and born after the death of a parent. The term “posthumously-conceived child” is used describe such offspring.

The changes, which came into force January 1, 2017, recognize the general inheritance rights of posthumously-conceived children, provided certain conditions are met. These include:

• Giving written notice to the Estate Registrar for Ontario. The spouse of the deceased person must give notice indicating that he or she may use the deceased’s “reproductive material” (meaning sperm or eggs or an embryo) to try to conceive a child.

• The child is actually born. Any posthumously-conceived child must be born no later than the third anniversary of the deceased’s death. (The court can extend this in some circumstances).

• Court declaration of parentage. The spouse must apply to the court for a declaration that the deceased person is considered to be the parent of the posthumously-conceived child. This involves the spouse proving that the deceased person consented in writing to be the parent of such a child prior to his or her death, and that the consent was not withdrawn.
The expanded definition of “child” and “issue” applies to the distribution of the deceased parent’s estate, whether or not that parent left a Will.

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

What’s Considered ‘Bad Faith” in Family Law?

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What’s Considered ‘Bad Faith” in Family Law?

Everyone has stories about divorces-gone-bad:  High levels of conflict over trivial matters, under-reporting income or hiding assets, and other forms of generally bad behaviour by former spouses towards each other.

Divorce being the emotionally complex process that it is, it’s hard to draw the line between straightforward “asserting your legal rights” versus outright “bad faith” behaviour.

This leads to an interesting question:

Does Canadian Family Law have a test for what is tantamount to “bad faith” conduct?

It turns out, it does.  This was confirmed in an Ontario Court of Appeal decision called Scalia v. Scalia where the court said:

The legal test for bad faith in the family law context … is that the impugned behaviour must be shown to be carried out with “intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.” In short, the essential components are intention to inflict harm or deceive.

As against this stated test, courts are sometimes called upon to evaluate a Family litigant’s behavior. They don’t always do so correctly.

For example, in a recent case called Turk v. Turk, a court found that an earlier judge on an application had failed to properly identify and apply the “bad faith” test to an acrimonious property and custody dispute between spouses.   The results at trial had been mixed, and both parties were now seeking their legal costs from the other.  However, the wife added that she should get full costs from the husband because of his “egregiously bad faith behaviour”.

The court considered the evidence on this point, and reviewed the application judge’s findings that the husband had:

  • Failed to comply with this disclosure obligations;
  • Had been dishonest about the status of one of his corporate ventures, claiming that it was in its “infancy”, when in reality – according to a public statement the wife’s lawyer  found on the internet — the corporate launch was imminently due; and
  • Failed to disclose, and offered no credible explanation for, his interest in another corporate venture.

The reviewing court chronicled these shortcomings of the husband, and said:

… It is possible that [the husband] consciously and deliberately concealed his interest in [the companies] when the Separation Agreement was being negotiated. When I consider the totality of his non-disclosure conduct, I prefer a different characterization of [the husband’s] behaviour that is just as serious. [The husband] does not care if he is complying with his disclosure obligation. He has made this clear through his repeated non-compliance with this important obligation. He is dismissive of the documentary disclosure process and the Family Law Rules. His chronic non-compliance reveals incomplete sworn financial statements and a failure to follow court orders.

Simply put, [the husband] remembers what is beneficial to his position in this litigation.

Indeed, the court found that the husband’s conduct “created an atmosphere of distrust and unnecessarily contributed to the cost of this litigation.”  He also took numerous unreasonable stances in the proceedings, disputed non-essential points, and needlessly drove up the time and costs to untangle the couple’s issues.

Still, previous application judge’s conclusion that the husband had acted in “bad faith” could not stand, since it did not meet the established Family Law-specific legal test on these facts.  In short – and while finding that “there was good reason to criticize Stuart for his unacceptable and unreasonable conduct” – the court ultimately concluded that it did not “rise to the level of wrongdoing, dishonest purpose or moral iniquity the test for bad faith requires.”

The court went on to allocate litigation costs between the parties, accordingly.

For the full text of the decisions:

Turk v. Turk

Scalia v. Scalia

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

Is Using the SSAGs Truly “Voluntary”? When Can a Court Deviate from Them?

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Is Using the SSAGs Truly “Voluntary”? When Can a Court Deviate from Them?

Those of you who read my Blog regularly are familiar with the Spousal Support Advisory Guidelines (the “SSAGs” or simply the “Guidelines”) which are designed to help spouses, lawyers, mediators and judges to “determine the amount and duration of spousal support within the existing legal framework of the Divorce Act and the judicial decisions interpreting its provisions.”

However, the law makes it clear that the Guidelines are not legally binding, and they are used “only voluntarily”.   But does that mean they can be disregarded by judges entirely, when making a ruling on spousal support?

Not exactly.

In a case called Slongo v. Slongo, the Ontario Court of Appeal confirmed that any departure by a judge from the Guidelines requires “adequate explanation.”  As the Court explained:

…the Guidelines, while not binding, should not be lightly departed from. This is in large part because, without them, it is very difficult to establish a principled basis for arriving at a figure for spousal support.

This principle was expounded on in a recent case called Sharpe v. Sharpe where the court said:

The Guidelines were designed to be used under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am. ss. 1 to 35.1, but are in fact used as a useful tool by federal, provincial and territorial courts in the determination of spousal support and variation. I recognize that the Guidelines are neither legislated nor binding but note that it seems that use of the Guidelines has evolved from a “cross-check” or “starting point” to the Guidelines being a useful tool that should not be deviated from lightly.

So without wanting to quibble at the meaning of the word “voluntary”, it seems the use of the Guidelines is something a little more than that, at least for judges making a spousal support ruling.

For the full text of the decision, see:

Sharpe v. Sharpe

Slongo v. Slongo

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