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Posts from the ‘Ontario Divorce Help’ Category

Wednesday’s Video Clip: Ontario Wills 101: Issues to Consider Before Meeting your Lawyer

Wednesday’s Video Clip: Ontario Wills 101: Issues to Consider Before Meeting your Lawyer

In Ontario, a Will is a written document that sets out the person’s wishes about how his or her estate should be taken care of and distributed after death. In this video, a senior law clerk with Russell Alexander Family Lawyers, describes what a will is, some of the early issues to consider for preparing a will, and what steps you should take once you have your will in place.

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

Proposed Family Law Act Amendments Broaden Support Obligations to Disabled Adults

Proposed Family Law Act Amendments Broaden Support Obligations to Disabled Adults

Under proposed recent amendments to the Family Law Act, parents will be required to support an adult child who has an illness, disability, or other issue that makes them unable to support themselves.

Bill 113, which is a NDP-backed private member’s Bill introduced late March 2017, contains amendments which reiterate that “every parent has an obligation to provide support, to the extent that the parent is capable of doing so, for his or her unmarried child.” The Bill then adds that this obligation extends to any child who is “unable, by reason of illness, disability or other cause, to obtain the necessaries of life.”

Currently, parents who are tasked with the care of adult children with disabilities are only able to obtain child support orders if they were married, with support being ordered as part of the separation and divorce process under the federal Divorce Act. At the moment, Ontario law does govern the rights and obligations of parents who are unmarried, but fails to specifically address the issue of support for disabled adult children. Bill 113 seeks to fill that gap in the provincial law.

The Bill’s introduction follows upon the recent court application on March 24, 2017 by a Brampton single mother named Robyn Coates, who asked an Ontario judge to rule that the yet-unamended Family Law Act discriminates against her 22-year old developmentally disabled son. The judge decided to reserve judgment, and when the ruling is handed down it will only affect Ms. Coates’ particular scenario.

However, the amendments to the Family Law Act under Bill 113 were introduced shortly after. The Bill is currently at the first-reading stage.

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

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To All the Amateur Lawyers: How Do You Equalize When the House Cost More to Build, Than it’s Currently Worth?

To All the Amateur Lawyers:  How Do You Equalize When the House Cost More to Build, Than it’s Currently Worth?

Anyone who has built their own “dream home” knows that building costs can spiral out of control, and the project can turn into a financial nightmare. This is even more so, when it comes time to divide the value of the home during a divorce. Some very interesting – and legally perplexing — questions can arise, such as this one:

What happens if the value of the home turns out to be less than the money invested in building or renovating it?

That was the question in a case called Strobele v. Strobele. The court summarized the backstory this way:

Really Dr. and Mrs. Strobele have one issue that bedevils a fair resolution of the proceeding. In the final two years of their relationship, they embarked on a project to construct the house of their dreams. They have, between the two of them, spent all of their life savings and more in the construction of this house and, in the process, considerably exceeding the budget for the project. That budget started in the range of six hundred to $700,000 and, by the end of the project, they had put at least twice and perhaps as much as three times that much money into the project which was more money than the two of them had the time. In the process, of course, they have accumulated debt and a great deal of it.

The legal problem that arises from this uncommon dilemma, is that the rules for equalizing net family property on separation do not apply easily to these kinds of scenarios.  The court explained:

[A]lthough the as-built cost of the house is roughly in the neighbourhood of $1.8 million, its market value is roughly $1.2 million. If this situation was brought about by adverse market forces or poor business choices, the consequences would likely be visited upon the parties equally unless one of them engaged in deliberate or wrongful disposition of assets or there were other unusual circumstances, none of which are present here. As a general practice the phrase “for better or worse, for richer or poorer” comes to mind and is applied. But that is not what happened here.

To complicate matters further, the husband wanted to stay in the home, and apparently had access to the financial resources to do so.

For all the “armchair lawyers” among my readership, how would you divide the home’s value?  And if one of the parties wanted to “buy out” out the other, how would that calculation go?

We’ll leave the question as a cliff-hanger, and I’ll share the legal answer and outcome (at least as the judge determined it in this particular case), in my Blog next week.

For the full text of the decision, see:

Strobele v. Strobele, [2005] O.J. No. 6312, 34 R.F.L. (6th) 111

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: Ontario Wills & Estates – What Is A Power Of Attorney


Wednesday’s Video Clip: Ontario Wills & Estates – What Is A Power Of Attorney

In Ontario, a Power of Attorney is a legal document that gives someone else the right to act on your behalf.

In this video we discuss the importance of a Power of Attorney and what options and decisions you should consider when deciding who should be your power of attorney.

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: Ontario Divorce without Courts: Introduction to Collaborative Practice


Wednesday’s Video Clip: Ontario Divorce without Courts: Introduction to Collaborative Practice

Collaborative Divorce, also known as “Divorce without Courts” or Collaborative Practice, is a new way for lawyers to help resolve your marital dispute respectfully, and without Courts. In Ontario, Lawyers can help negotiate divorce settlements, while maintaining open communication and creating a shared solution between spouses.

In this video we discuss the merits of collaborative practice in divorce.

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

Wife Didn’t Get “Wish List”, But Pre-Nup Still Upheld

Wife Didn’t Get “Wish List”, But Pre-Nup Still Upheld

The husband, who was a wealthy 50-year-old man, met the 42-year-old wife online at MillionaireMatch.com. Their first face-to-face meeting was in Las Vegas, and after a short long-distance courtship decided to marry. It was his third marriage; it was her first.

The husband asked the wife to sign a pre-nuptial agreement, which she did 10 days before the wedding date. It had been drafted by the husband’s lawyer but because the wife had been unhappy with its terms, she had it reviewed by her lawyer, who managed to negotiate some changes in her favour. As the court described the outcome of those negotiations:

I accept that the Wife hoped the draft contract would be more generous to her; however, given the Husband’s stated position that he wanted to protect his assets, I do not accept that she genuinely expected the contract to fulfill this wish list.

The final version entitled the wife to $6,000 in monthly spousal support, a 10% interest in the husband’s home after a period of time, and the immediate designation of the wife as beneficiary of the husband’s $1 million RSRP’s in the event that he died prior to any separation.

The relationship was tumultuous, and within a month of the wedding had already begun to unravel. After a series of separations and reconciliations, together with several incidents in which the police were called, the couple finally separated for good after about three years.

In the aftermath of the ill-fated union, the husband claimed that the pre-nuptial agreement should be set aside. He claimed that because the marriage was very short, the various terms including the provision giving the wife graduated spousal support was far too generous to the wife in the circumstances.

The wife, on the other hand, wanted the support and other terms increased in her favour, because she learned that the husband had not been fully forthcoming about his finances, and that she had entered into the agreement under duress and without being aware of the full facts, just days before having 200 wedding guests who were flying in “from all over the world.”

After reviewing the facts and circumstances in detail, the court upheld the pre-nuptial agreement. There was neither non-disclosure, misrepresentation nor duress operating to call its validity into question.

Admittedly, the agreement had been reached without the wife having knowledge of the full extent of the man’s wealth, since he had never provided complete documentation in that respect. However, the wife had never actually asked for it. Moreover, formal disclosure by way of sworn financial statements is not the only way for the husband to fulfill his disclosure obligations; by law it was enough that the wife was generally aware of his assets.

Despite her attempts at trial to portray herself otherwise, the wife was an intelligent woman who had experience with contracts and had operated two businesses of her own, one of which conducted business internationally. She understood the nature and consequences of the pre-nuptial agreement, which had been the result of lawyer-assisted negotiations. There was nothing unfair in enforcing the agreement as it was written.

The court confirmed that the agreement was valid and binding, and ordered that in keeping with its terms, the husband’s support obligations to the wife had ended, with no further spousal support to be paid.

For the full text of the decision, see:

Balsmeier v. Balsmeier, [2016] O.J. No. 667, 2016 ONSC 950

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

Representing Yourself and Asking for Legal Costs? Read this First

Representing Yourself and Asking for Legal Costs? Read this First

Recently I wrote about a ruling on costs where a self-represented litigant was awarded significantly more in legal costs, than she had requested after trial.

That case, called McMurter v. McMurter, gave the court an opportunity to revisit some of the prior authorities on the issue, and to set out the principles that apply to awarding legal costs to self-represented family litigants.

Based on that review, if you succeed in represented yourself in your family law trial or motion and are looking to be awarded your legal costs from your unsuccessful opponent, here is what you need to know:

  • Whether you are legally trained or not, you cannot claim the same costs as a lawyer would charge. Instead, you can receive a “moderate” or “reasonable” allowance for your lost time.
  • Courts recognize that every litigant must prepare for court to some extent, whether represented by lawyer or not. So if you decide to represent yourself, you can only recover for the time and effort above and beyond what an average person would devote to getting ready for the proceeding.
  • You must also demonstrate that you spent time and effort doing work ordinarily done by a lawyer retained to conduct the litigation, and that you incurred an opportunity cost because of it.
  • Even if you did not give up remunerative activity to represent yourself in court, the court may award you costs for what would otherwise be lawyer’s work on the case. This means that you can get legal costs even if you are a homemaker, retirees, students, unemployed, unemployable, or disabled, etc.
  • The quality of your work as a self-represented person will also be a factor in the court’s assessment of what costs you might be awarded.

In terms of the actual fees, courts can vary widely on how they approach the mathematical calculation. Some will award an hourly rate varying from $20 to $150 per hour, minus the time you would have spent on the case if you had a lawyer present. Others have a “rule of thumb” that allows for a certain number of hours of preparation time, and a certain number of hours of trial time.

In any event, the amount must be reasonable, proportional and with the losing party’s expectations.

Returning to the McMurter v. McMurter case, the court applied these principles in awarding the wife her legal costs award of $30,000, even though she had asked for $18,000. It found that she had successfully represented herself in a complex case where there was a lot at stake. She had been exceptionally well-organized and presented her arguments well, and dealt with complicated legal issues and various family legislation. As the court put it, “She did the work of a lawyer in addition to the work expected of her as a litigant.”

For the full text of the decision, see:

McMurter v. McMurter, 2017 ONSC 725 (CanLII)

Main judgment:

McMurter v. McMurter 2016 ONSC 1225 (S.C.J.)

Fong v. Chan, 1999 CanLII 2052 (ON CA)

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: Obligations to Pay Child Support Even with Undue Hardship


Wednesday’s Video Clip: Obligations to Pay Child Support Even with Undue Hardship

In this video we review a court decision in which the court confirmed that a father was still obligated to pay support for his two children from a first marriage even though: 1) he no longer had a relationship with them; 2) he had a new family (and two other small children) to support; and 3) the child support obligation would cause him undue hardship, in light of his difficult financial circumstances.

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

Evidence from the Internet – Is It Good Enough for Court?

Evidence from the Internet – Is It Good Enough for Court?

In a case I reported on recently called Caine v. Ferguson the father claimed that his income was too low for him to pay child support for his daughter. The court considered evidence designed to refute his claim, put forth by the opposing side and taken from various U.S. music-industry-specific websites. The court wrote:

[The lawyer] submitted that the [father] could be earning $35,000 per annum as a musician. In support of this argument, she attempted to introduce internet articles from two websites from the United States, called Payscale and Musician Wages.com.

The court reflected on the general trustworthiness of these kinds of tendered materials sourced from the Internet, and pointed out that the dependability will vary with their source and nature:

In [prior court cases, the court] permitted the introduction of reports from Ontario Job Futures and Statistics Canada as evidence of income levels for a payor in the insurance industry. In these cases, the reports came directly from provincial and federal governments and had some indicia of reliability. However … I expressed the need to exercise considerable caution in how much weight the court could attach to such documents as they were unsworn third-party statements that could not be tested by cross-examination.

Ultimately, in this instance the court rejected the music-industry website evidence outright, stating:

The documents sought to be introduced here are much more problematic. There was no evidence led that the documents were from reputable sources …  No foundation was provided as to the qualifications of the writers of the documents. The articles were both from the United States. The author of the Musician Wages.com article is an associate conductor of a Broadway play. There was no evidence indicating that he would have any knowledge about what level of income a freelance musician could earn in Toronto. The articles were from 2007 and 2008 respectively. I did not admit the documents into evidence as they did not come close to achieving threshold reliability.

Although a court’s determination will vary from case-to-case, the question of the admissibility and reliability of internet evidence can arise in virtually all kinds of cases, not just those that spring from family disputes.

In fact, it came up squarely in a 2017 immigration case called El Sayed v. Canada (Citizenship and Immigration), where the court’s conclusions included a commonsense point: Information from official web sites, developed and maintained by the relevant organization itself, is more reliable than unofficial ones which contain information about the organization but which are maintained by private persons or businesses.

In a future blog post, I will discuss some of the other principles confirmed and summarized in that recent immigration case.

For the full text of the decisions, see:

Caine v. Ferguson, 2012 ONCJ 139 (CanLII)

El Sayed v. Canada (Citizenship and Immigration), 2017 FC 39 (CanLII)

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

Wednesday’s Video Clip: Top 5 Questions About Spousal Support in Ontario, Canada


Wednesday’s Video Clip: Top 5 Questions About Spousal Support in Ontario, Canada

In this video we review the top 5 questions about spousal support in Ontario, Canada.

Spousal support – which is sometimes called “maintenance” or (especially in the U.S.) “alimony” – is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship. Either spouse can make a claim for it, provided:

• the spouses have lived together in a “marriage-like relationship” for at least three years; and
• the claim for spousal support is made within one year of couples’ separation.

The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.

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