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Posts from the ‘Ontario Divorce Help’ Category

Should Dad Be Forced to Cook Gluten-Free?

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Should Dad Be Forced to Cook Gluten-Free?

In the recent decision in Beaulieu v. Beaudoin, the court was asked to rule on several continuing disputes between now-divorced parents in relation to the custody, access and care of their four children, three of whom had special needs. Specifically, one child had been diagnosed with autism and ADHD, while two others had severe behavioral issues.

In the context of a hearing to resolve several ongoing and acrimonious issues, the mother asked the court for an order to force the father to follow children’s gluten-free diet when they are in his care.

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The court explained the mother’s position:

The [mother] says that she has invested significant time and energy into learning how to support the children’s needs and how to stabilize their symptoms through medication and diet. Her research has led her to believe that gluten free and casein free diets have been shown to have positive effects on children with autism and ADHD. She asks that the [father] be ordered to adhere to their dietary requirements.

The father resisted;  although he acknowledged that some of the children had special needs, he disputed the effect of gluten on their behaviour.  He had consulted the children’s doctors on his own about the role of gluten, and they advised that it was unlikely to have any impact.  The court added, “He goes on to list the [the mother’s] long list of dietary restrictions which he believes illustrates [her] own obsession with food and her need to correlate everything about the children’s behaviour on what they eat.”

The court considered evidence, in the form of a letter, from one of the children’s pediatricians.  While stopping short of prescribing a gluten-free lifestyle, it indicated “some evidence” that such a diet can be helpful for children on the autism spectrum, and that “Mom feels that she is doing much better.”

The court effectively discounted the pediatrician’s letter, noting:

He does not prescribe a gluten-free diet. Dr. James’ letter only reports what the [mother] has told him; this is double hearsay and has very little probative value. I am reluctant to make the [mother’s] dietary demands a term of any order without more persuasive evidence. To do so would expose the [father] to allegations of a breach of a court order. At the same time, the children are spending most of their time in their mother’s care and it is problematic if the [father] ignores her concerns altogether. This is a high conflict case. The parties do not need to be looking for new ways to antagonize each other.

In the end, the court resolved this narrow issue by ordering that the father must “respect the children’s dietary regime within reasonable limits.”  The court then went on to rule on a host of other contentious, equally-narrow issues between this warring former couple.  (These will be the subject of future Blogs.)

For the full text of the decision, see:

Beaulieu v. Beaudoin, 2018 

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 Declares Excuses “Ludicrous” and “Preposterous”

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Court Declares Excuses “Ludicrous” and “Preposterous”

Family Court judges hear cases all day long, and it’s likely fair to say that they’ve “heard it all.”

More to the point, they’ve likely heard a wide array of what are (at best) improbable excuses from litigants, who are called to task for non-compliance with court orders, especially those relating to a failure to provide full and frank disclosure.

In a case called Q.X. v. J.R.L., the court dealt with the property and support disputes between a former couple who were born and raised in China, met online, and then married in Vegas a little over a year later when they learned the woman was pregnant. The marriage lasted 18 months.  The court was left to untangle a complex, often-contradictory narrative from the husband in particular, about his Canadian and foreign income, investments, family businesses, and other financial information that was relevant to determining the issues between the parties.  The court described some of his evidence this way:

[The husband] J.R.L. has provided no mortgage application for any of the properties he owns in British Columbia. He claims that he came to Canada when banks lent money fairly freely and it was not necessary for him to complete a mortgage application form. He has produced “loan” documents from his father, mother, and sister, but gave no evidence relating to the loan documents, and I question the validity of the documents. He provided some documents relating to his immigration to Canada, but they do not appear to be his application form, and of the documents he did disclose, it is not possible to tell if there was a declaration of income, because J.R.L. blacked out portions of the document.

J.R.L. has failed to disclose his President’s Choice Financial chequing account statements from December 2011 to April 2012. He has failed to disclose or produce any bank statements for his bank accounts in China. In particular, he has failed to disclose his Bank of China term deposit statements from April 2011 to April 2013; his Bank of China savings account statement from April 2011 to April 2013; and his China Merchant Bank statements. He makes the preposterous claim that the banks in China do not provide bank statements. He is not telling the truth because Q.X. provided her Bank of China bank statements, showing that banks in China are able to, and do provide bank statements.

Likewise, in a recent case called Farrukh v Farrukh Amin the court’s credibility assessment of the husband was short and to-the-point:  It gave no credence to his proffered excuses for failing to comply with previous court orders, specifically in connection with producing documents and paying Costs previously awarded to the wife.  The court started its brief ruling this way:

On the evidence before me it appears that the [husband] does not think court orders apply to him when it comes to the payment of costs and the production of documents.

First, the court took issue with the husband’s contention that he had indeed filed the financial documentation required by the Family Law Rules:  It noted that the materials were simply not in the court file as they otherwise would be.

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Next, it outright disbelieved him on the reason for his failure to pay Costs under a prior order:

To submit to the court that he did not know where to pay the costs is simply a ludicrous answer to the question of why he did not pay them.

The court noted that the husband’s lack of cooperation and excuses put the wife at a disadvantage, and precluded both early settlement and the court’s full determination of the issues between them.

And, to add to the husband’s legal woes, the court hit him for an additional $16,000 in costs and disbursements, for the latest hearing that his past non-cooperation and non-compliance made necessary.

For the full text of the decisions, see:

Q.X. v. J.R.L., 2015 

Farrukh v Farrukh Amin, 2018

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

Taking the Kids to See Grandma This Holiday?  Read This First

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Taking the Kids to See Grandma This Holiday?  Read This First

With the upcoming season of holiday travel almost upon us, a recent Ontario case provides a good reminder:  Separated and divorced parents must strictly abide by the terms of any agreement or order in place for travelling with their children.

In Shapiro v. Feintuch the court was asked to resolve a dispute between two parents – who divorced nine years ago – but who continued to have conflict over many issues, especially the travel arrangements for their now-14-year-old son.

Earlier in the year, by way of an urgent motion, the father obtained an order forcing the mother to provide him with the son’s passport, and allowing him to keep it as his house.  This was to facilitate the father taking the son to Florida.  Less than a month later, the mother needed the passport back, so that she could take him to New York to attend two family events including a Bar Mitzvah.

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Initially, the mother did write to the father about taking the boy to New York, and asked for his consent.  But at first the father avoided answering directly, and raised other travel-related issues with her instead.  As the court noted:

This led to a long series of emails between the parties over the next five days that grew increasingly combative, vitriolic and lengthy.

The court continued the narrative:

It should be noted that in her original request on April 12, 2018, the [mother] had contemplated travelling on the afternoon of Monday, April 23 and returning on the morning of Wednesday, April 25, 2018. If the [father] had consented to this arrangement immediately in his initial response, rather than waiting five days and many emails to do so, this might well have resolved the matter. But after the extensive and often bitter emails that the parties had exchanged between April 12 and April 17, 2018, the [mother] was no longer willing to entertain a proposal she herself had contemplated in her original email. Instead, by this point the [mother] was determined that [the son] would travel to New York for both family events.

Since she could not get the boy’s passport in a timely manner, she decided to take matters into her own hands and arranged for him to be driven to New York by her parents. Border officials let them through even though the boy had only a birth certificate with him.

All of this was done without the father’s consent, although the mother advised of the boy’s whereabouts by email later that day.   During the span of the trip, the boy missed a total of five days of school, plus a regularly-scheduled access evening with the father.

This prompted the father to bring a motion, asking the court to declare the mother in breach of a prior order respecting their children’s travel arrangements.  The court granted the father’s motion and made the declaration.

The court noted that in 2015, after extensive litigation, the parents had agreed to the terms that governed any travel with their children.  Those terms had been embodied in three detailed paragraphs of a formal court order.  It stated that the father was to hold the son’s passport, and that the mother needed to get his consent before taking the boy somewhere like New York.

In defending her contravention of these requirements, the mother claimed that regardless of that prior order, her taking the boy to New York was actually in his best interests, and that the father’s consent should be dispensed with.

The court said it might have agreed with that argument, except for the fact the prior order contained the terms the parents had themselves agreed to.

Next, the mother argued that the father had withheld his consent to the trip unreasonably, and that she had no choice but to go anyway.  The court rejected this notion too, saying that it had no power to examine that issue; the parents had made it clear in their agreement – as reflected in the order – that they were giving each other the right to grant or withhold consent as they each saw fit.  As the court noted:

… the Order does not permit one parent to dispense with the other parent’s consent to travel, simply because the travelling parent regards the withholding of consent to be unreasonable.

Absent the father’s agreement, the mother had ignored a clear court order when she took the boy to New York anyway.  The whole point of the prior order, the court noted, was to avoid this kind of uncertainty and confusion over travel, which was not in the boy’s best interests.

However, in terms of the appropriate remedy, the court rejected the father’s request for $2,500 over and above his legal fees, noting this kind of penalty was reserved for contempt-of-court cases, not orders that declared a party in breach. The court added:

In coming to this determination, I have given careful consideration to the [father’s] submission that breach of court orders must have real consequences. These reasons should not in any way be interpreted as condoning parties in family law litigation from ignoring court orders. At the same time, I would observe that, in my judgment, these parties do take court orders very seriously. Having clarified the fact that the [mother] breached [the travel terms] paragraph … of the Order, I fully expect both parties to comply with it in the future. That said, the parties should understand that any future breaches of [those terms] will likely have much more significant consequences.

The court also admonished the parents that, going forward, they should,

…  be “brief and respectful in their emails, making no reference to either party or parties or their activities. Had this rule been followed in the present case, it is entirely possible that the conflict and disruption over this matter might well have been avoided.

For the full text of the decision, see:

Shapiro v. Feintuch, 2018

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

Cross-Border Abductions by Parents: Supreme Court Rules on Child’s “Habitual Residence” Under the Hague Convention

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Cross-Border Abductions by Parents: Supreme Court Rules on Child’s “Habitual Residence” Under the Hague Convention

A recent decision from the Supreme Court of Canada hones in on a narrow-but-important issue that arises in parental abduction across international borders – meaning situations where one parent removes a child to another country over the objection of the other, and in contravention of existing custody/access arrangements in force at the time.

In Office of the Children’s Lawyer v. Balev  the crux of the case was whether the Ontario court had jurisdiction to order the children returned to their father in Germany, even though they were happily living with the mother in Ontario.   The Supreme Court of Canada introduced the factual narrative of the case this way:

The story begins in Germany, where the family — a father, a mother, and two children, all citizens of Canada — were living. Because the children were struggling in school, the parents decided that the mother should take the children to Canada for 16 months to experience the Canadian school system. During that period, the father [suspecting the children would not be returned] purported to revoke his consent and brought an action under the Hague Convention for an order that the children be returned. While he pursued remedies in the German courts — unsuccessfully — the period of consent expired and the mother remained in Canada with the children. After the father resumed the application, a judge of the Ontario Superior Court of Justice ordered that the children be returned to Germany. The Divisional Court reversed this decision [on later appeal]. The Court of Appeal reinstated it. That decision was appealed to this Court.

From these facts, the legal issue arose as to whether the children in this scenario were “habitually resident” in Ontario for the purposes of the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”).  If so, the Ontario court could grant an order in the father’s favour to have the children returned.  Unfortunately, the term “habitually resident” is not defined in the Convention itself, although it has been considered by the courts of other subscribing states around the world.

In considering the matter afresh after several levels of appeal, the Supreme Court first noted the two main goals of the Hague Convention, which are:

  • Enforcing parents’ custody rights; and
  • Ensuring the prompt return of children to their “habitual residence” where they have been wrongfully-removed to or wrongfully-retained elsewhere.

The Court added that a determination under the Convention is not a custody order, but merely a mechanism for restoring the status quo.

The concept of a “habitual residence” could be considered either from the perspective of the parents, or from that of the child, the Court found.  Historically in Canada, it has typically been the parents intention (rather than the child’s level of acclimatization and wishes) that governs the issue of where the child lives.    Nonetheless, the Court concluded that a “hybrid” approach was more appropriate, meaning one that focuses on relevant considerations that arise from the facts of the specific case. That hybrid approach requires a court to look at:

  • The child’s links to country A and overall circumstances;
  • The circumstances of the child’s move from country A to country B; and
  • The child’s links to and circumstances in country B.

Pertinent considerations include the duration, regularity, conditions, and reasons for the child’s stay in a member state and the child’s nationality. No single factor dominates the analysis.

With that said, the Hague Convention does include an exception to the general rule that a wrongfully-removed or retrained child must be returned to his or her country of habitual residence in cases where:

  1. The child has reached an appropriate age and degree of maturity at which his or her views can be taken into account, and
  2. the child objects to return.

The Court concluded that these factors call for a straightforward assessment by the court.

In the end, the described hybrid approach to the concept of “habitual residence” best adheres to the principles that inform the rulings from other countries on this point, not to mention the overall intentions and goals of the Hague Convention itself.  These goals all have a harmonizing purpose that has been agreed-to by its contracting member states.

Having looked at the background legal principles, the Court resumed its review of the facts even though the issue was moot. (In 2017 a German court had granted the mother custody and they had been returned to Ontario).  It vindicated the father nonetheless, finding that an earlier court was correct in declaring the children were “habitually resident” in Germany and should have been returned there.

For the full text of the decision, see:

Office of the Children’s Lawyer v. Balev, 2018 

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

 

Did Remorseful Husband Succeed in Ending Arranged Marriage?

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Did Remorseful Husband Succeed in Ending Arranged Marriage?

A recent Ontario case casts light on what happens when cultural marriage traditions must be scrutinized under a Canadian legal microscope.  The court introduced the facts this way:

This application involves the fall-out from an arranged marriage that did not last. There were no children of this marriage.

In 2012, … [the wife] was a 22-year-old Pakistani woman who studied in the Master of Business Administration program at .. University. 

[The husband] was then a 28-year-old Canadian man whose parents had emigrated from Pakistan a generation earlier. [The husband] had graduated from secondary school in Toronto and was pursuing a career in the financial sector. [The husband’s]  mother set upon arranging for [the husband] to marry a woman from Pakistan.

[The husband’s] mother contacted [the wife’s] mother and they arranged for [the wife] to marry [the husband]. … The couple met for the first time in the days before the wedding and were married on July 6, 2012. …  After the wedding, [the wife] left her home to reside with [the husband] for about a week in a relative’s house. [The wife] testified that she and [the husband] consummated their marriage. [The husband] testified that they did not.

[The wife] recalled that she and her new husband happily celebrated with family members in the week after their wedding. [The husband] testified that he was immediately overcome with remorse. He had gone along with the arranged marriage to please his traditional parents, and to maintain cultural values, but was saddened to be married to someone he did not know and with whom he had little in common.

According to the reluctant husband’s evidence, and unbeknownst to the wife, he decided to divorce her by invoking a traditional religious divorce ceremony – which is recognized under Canadian law when validly performed.   The court continues the narrative:

[The husband] testified that late in the evening of May 28, 2013, he spoke with his mother and told her that he had decided that he could no longer remain married to [the wife]. He felt anxious and ill and wanted to terminate the relationship. [The husband] testified that he understood from his mother that as his marriage had not been consummated, it could be annulled if he convened a meeting with [the wife], her family, and a village elder, and spoke the word “Talaq” to [the wife] three times.

This conversation took place in Pakistan, where the husband, wife, and extended family members were all assembled to celebrate the wedding of another family member.  The husband testified to the court that he performed this religious ritual before the wife and other required parties the next day, on May 29, 2013.

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However, the wife’s version of the day’s events diverged significantly:  She claimed they simply spent the day happily shopping and dining together.  As the court explained:

[The wife] testified that [the husband] is “totally lying”. She states that there simply was no such ceremony. [The wife] is adamant that [the husband] did not attempt to divorce her in 2013 and that he did not even tell her that he wanted out of the marriage.

 

Thus the question of whether the couple were divorced under both Pakistani and Canadian came down to a matter of credibility.  The husband bore the onus of determining that a religious divorce had taken place on that day in May, as he claimed.

The court looked at the overall evidence presented, and disbelieved the husband outright.

For one thing, the subsequent email correspondence between him and the wife (who had remained in Pakistan) consisted of “the usual dialogue between a couple planning to get together after a time apart.”   The husband had taken no steps with the civil authorities in Pakistan to legalize the alleged divorce, and did not attend the country’s central registry to change his marital status.  Nor did he consult with a local lawyer to ensure the ceremonial steps he took complied with Pakistani divorce requirements.

Even looking at matters from the wife’s side, her conduct after May 29, 2013 was not consistent with someone who had been told her husband was leaving the marriage. Instead, she continued to prepare to reunite with her new husband in Canada, and to establish a married life with him.

Having ruled that the husband had not achieved a religion-based divorce as claimed, the couple remained legal spouses at the time of the hearing.  In a 100-paragraph judgment, the court went on to deal with numerous issues relating to property division and support, pending their upcoming divorce under Canadian law.

For the full text of the decision, see:

A.S.1 v. A.A.S., 2018

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 Curbs Father’s Social Media Activity

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Court Curbs Father’s Social Media Activity

The decision a case called Cooper v. Primeau serves as good illustration of the level of detail that a court must address, in disputes between parents and former spouses.   In this ruling, the court took specific aim at the father’s habit of posting derogatory comments about the mother on social media such as Facebook.

The factual underpinnings were rather routine, involving normal matters such as custody, access and child support of the separated parents’ two children.  After several prior rulings, the court was left with two issues:

  • Whether the parents were required to provide each other with their updated phone number; and
  • Whether the parents may post photos and information about the children on social media such as Facebook.

Issue around providing a phone number turned out to be easy:  The father indicated before the court that he was prepared to agree to providing the phone number as long as the calls from the mother were limited to emergencies regarding the children.  The court made an order accordingly.

But the social media aspect was a little more contentious.  The mother made several accusations around the father’s use of the internet, including that he had:

  • Blocked her on social media;
  • Used social media to broadcast and discuss his ongoing dispute with the wife regarding access to the children; and
  • Used “crowdfunding” through social media to raise funds to assist him with his legal costs. In doing so, he was very critical of the mother in his plea for funds.

In his defense, the father contended that he wanted to continue to use Facebook as a means for his family to get to know the children.

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Nonetheless, the court concluded that while it may be reasonable to allow him to publish photos and comments about his children generally, these types of posts could justifiably include any mention of the legal dispute between the parents, or any derogatory comments about the mother. The court noted that “associating the children to such a legal battle [between the parents] in a public forum is not in their best interests.”

Ultimately the court made an order about the social media aspect on specific terms:   Posting photos on Facebook was okay, but posting comments on his dispute with the mother, making derogatory comments about her, or posting anything about his access issues to the children, was not.

For the full text of the decision, see:

Cooper. v. Primeau, 2018 

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 Issues Important Ruling on “Double Wills”

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Court Issues Important Ruling on “Double Wills”

In some circumstances, we recommend  that clients prepare a “double” Will – more properly referred to as a “primary” Will and a “secondary” Will for a single testator.  The primary Will deals with estate assets that require probate; the secondary Will covers assets that can be transferred to beneficiaries without having to go through the probate process.

Done right, this can minimize a testator’s probate fees and administration taxes.

However, the ruling in a recent Ontario decision called Re Milne Estate addressed a question that can dramatically affect the legal validity of this kind of Will arrangement.  Specifically, the court considered whether a Will is still valid if it allows the executors to decide whether property falls under the primary Will or the secondary Will.

The testator in Re Milne Estate had created two Wills.  The Primary Will covered all his property except certain named assets, and except other assets that the Trustees determined did not need to be included after-the-fact.   The Secondary Will addressed all property owned by the testator, and then specifically included certain named assets, and included those assets that the Trustees decided could be left out.

This wording was problematic; the two Wills essentially worked at cross-purposes to each other.  To be valid in law, a Will of any type had to conform to certain requirements, most notably that it had to demonstrate certainty in terms of the subject-matter that it covered.   This included certainty as to:

  • The intention to create a legal trust mechanism;
  • The subject-matter or property committed to the trust; and
  • The objects of that trust or the purposes to which the property is to be applied.

After confirming that there is no legal prohibition against the use of multiple Wills in Ontario, the court held that in this particular case, the Secondary Will was valid, but the Primary Will was not.

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Although it met two of the other legally-required “certainties,” the Primary Will in this case fell short of meeting the requirement as to certainty of the subject-matter or property:  By giving the Trustees after-the-fact discretion it left questions as to the exact property that was subject to its provisions.  In contrast, Secondary Will included all of the testator’s property of every kind, without exclusion.  It overlapped with the Primary Will completely, and with no gap.

The court accordingly directed the registrar not to accept the Primary Will for probate, but allowed the Secondary Will to go forward.

For those with multiple Wills, this decision in Re Milne Estate signals a need to have the wording reviewed by a lawyer, to ensure that the wording is valid and achieves its intended goals.

For the full text of the decision, see:

Milne Estate (Re), (2018)

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

 

Can a Parent’s Substance Addiction Justify His or Her Unemployment?

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Can a Parent’s Substance Addiction Justify His or Her Unemployment?

I have written several prior Blogs that showcase the court’s power under the Child Support Guidelines to “impute” income to a deliberately unemployed or under-employed parent, so that a proper calculation can be made as to the child support that he or she may owe to the other parent.  Recently, for example, we detailed a case where the court considered whether a support payor who was in jail could be considered intentionally unemployed or under-employed for these purposes.

The power to impute income to an economically under-achieving parent – in what the Guidelines state are an amount the court “considers appropriate in the circumstances” – stems from this principle:   Parents obliged to earn what they are capable of earning.  A parent who falls short of that will be deemed intentionally under-employed or unemployed.

The parent need not specifically intend to evade child support for this rule to apply; it merely requires that the parent has chosen to earn less than what he or she is capable of earning.  This can involve quitting a perfectly good job, or deliberately getting fired from one.  It can involve not looking for new work once a former job legitimately ends.  The court will then look at whether the parent’s actions are voluntary, and reasonable, and it is up to the parent to show that his or her decision is justified in a compelling way.

Needless to say, the given excuses that a parent may have for being under-employed or unemployed are numerous.  Courts must scrutinize these on a case-by-case basis.   After doing so, a court may find that the parent’s employment shortfall is justified after all, and that no income should be imputed to him or her after all.

On this last point, one of the more interesting scenarios relates to a support-paying parent with a substance addiction problem, as illustrated in a case called Lindsay v. Jeffrey.  There, the mother asked the court to impute income to the father at the $35,000-a-year level, which was what he was earning before he quit his job as a mechanic.

The father, in contrast, claimed his income was only $9,000 for the year in question.  He claimed that he was unemployed because of his drug addiction.

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In looking at the similar precedent cases, the court noted that they tend to go both ways:  Substance abuse has been held to justify a parent’s unemployment in some Canadian court decisions, but not in others.   For example, in an Ontario case called Hutchinson v. Gretzinger, the court rejected substance addiction as a justifiable excuse, reasoning as follows:

The trial judge accepted the affidavit of the legal assistant to counsel for the [father] as evidence that the [father] was addicted to drugs, including cocaine. In my view, it was an error to do so: better evidence was required. However, even if one were to accept that the [father] is a drug addict, his addiction is not a defence to a support claim. When one first consumes illicit drugs, one must be taken to know that addiction can result: addiction is a reasonably foreseeable consequence, as is the resultant loss of income or employment. To the extent that drug addiction is properly viewed as an involuntary illness, the initial drug use is voluntary and, therefore, it is intentional. It is wrong in law (and contrary to public policy) that a parent be exempted from his or her child support obligation because of drug addiction. …

Yet in a Saskatchewan decision called Kalanuk v. Michelson, the court accepted that the father had serious drug addiction issues that impaired his ability to work.  Although this did not absolve him of all responsibility for child support, the court saw fit in his particular circumstances to reduce the child support arrears he owed, because of it.

Returning to the present-day Lindsay v. Jeffrey decision, the court endorsed this second approach – but only with proper evidence.  As the court explained:

… The ravages of drug and alcohol addiction are observed weekly in this court in custody/access and child protection cases. Many parents who love their children very much and are very motivated to play an important role in their children’s lives have their roles in their lives profoundly reduced or even eliminated because they have a substance addiction over which they have little control. This court views substance addiction as a health issue. With proper evidence, this court is willing to consider that substance addiction is a reasonable health need of a parent that can justify underemployment or unemployment, pursuant to clause 19 (1) (a) of the Guidelines.

That said, the court found the required evidence was lacking in the present case.  The father had no corroborated evidence on the extent of his drug use, how it adversely affected his ability to work, and for what period of time (if any) it stopped him from working to his full capacity.  Nor, for that matter, whether it justified his quitting a good job in the first place.

The court said:

… It is not enough for a payor to come to court and state: “I am a drug addict and this is why I haven’t worked”.  The only corroborative evidence of the father’s addiction was a certificate that he completed a 60-day day treatment program (that was completed prior to the start date of this order). The court received no medical evidence about the father’s condition.  Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his reasonable health needs justify his decision not to work.

As a final point, the court said it initially had “some sympathy” for the father over his drug issues, that sympathy had been “squandered”:  The court learned that “despite not paying any child support (and purportedly having nominal income) he purchased, in 2012, a truck for $6,000 and a 60-inch color television for $1,300. These are not the actions of a person with limited means.”

In view of the $34,000 per year that the father had earned at his mechanic’s job immediately before he quit, the court imputed income to him of $35,000 per year for child support calculation purposes.

For the full text of the decisions, see:

Lindsay v. Jeffrey

Hutchison v. Gretzinger

Kalanuk v. Michelson

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