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Posts from the ‘Ontario Divorce’ Category

Moving with a Child: Mother’s Views Take a Back Seat to “Super ordinate Considerations” Affecting Child

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Moving with a Child: Mother’s Views Take a Back Seat to “Super ordinate Considerations” Affecting Child

In cases where spouses are separated or divorced, the decision of where a parent can live and work is no longer his or her alone.   Rather, the Family Court may become involved, and may be asked to give the parent permission to relocate, particularly if that involves moving with the child to a faraway community or jurisdiction, such that convenient access by the other parent is foreclosed.

Recently I talked about a noteworthy decision in a case called Porter v. Bryan where the Ontario Court of Appeal considered the various interests that must be considered when granting (or denying) permission in such cases.

In identifying those factors, the Court drew from a decision by the Supreme Court of Canada in a landmark case called Gordon v. Goertz, where the country’s top Court said:

…the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.

However, while the custodial parent’s views are entitled to “serious consideration,” and were part of a balancing of the two parents’ competing interests as well, it was actually the child’s best interests that were to be given what the court called “superordinate consideration”, with the entire analysis to be determined using a child-centred perspective.   This was in line with the Court’s own prior ruling in a case called Berry v. Berry as well.

Applying these principles to the fact situation in Porter v. Bryan:   While the mother’s reasons for moving – while entitled to “great respect” – were relevant only to the extent that they related to her ability to meet the needs of her son.   The overall focus was to remain – at all times – on what was in the best interests of the child.

For the full text of the decisions, see:

Berry v. Berry

Porter v. Bryan

Gordon v. Goertz

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 Upholds Separation Agreement as Being “In Substantial Compliance” with the Law

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Court Upholds Separation Agreement as Being “In Substantial Compliance” with the Law

Do you have a two-decades-old separation agreement that you are trying to have overturned?  Then the recent Ontario Court of Appeal decision in Smith v. Smith might be of interest to you.

The facts were these:  Before getting married, and just as they were about to move in together, the husband and wife signed a cohabitation agreement, in which the wife gave up any claim to spousal support.   The husband had previously had a prior relationship end badly, and was eager not to have history repeat itself.

When they split 18 years (and two kids) later, the wife claimed spousal support nonetheless, but the trial judge upheld the terms of the separation agreement and dismissed her claim.

She brought an appeal, claiming that the trial judge had erred.  She wanted the agreement to release her spousal support overturned, since she claimed it did not conform to the provisions of the federal Divorce Act – whether viewed from the time it was signed, or now.

The Appeal Court took a closer look at the situation, including the wife’s assertion that the trial judge had overlooked certain facts, such as:

  • The alleged power imbalance between her and the husband;
  • The lack of any discussion about spousal support; and
  • The fact that she had no independent legal advice when she signed the agreement (though she admitted having the chance to obtain it at the time).

The Appeal Court rejected these arguments.  It pointed out that when tasked with reviewing a separation agreement purporting to release spousal support, a court’s job involved two steps:  to first consider the circumstances at the time it was reached, and then to look at the substance to see whether it complied at the time with the federal Divorce Act.

During the first step, the court pointed to specific findings of fact that the trial judge had made, namely:

  • The wife knew the husband wanted a cohabitation agreement, and they had discussed it before she received the draft prepared by his lawyer.
  • She skimmed the agreement, read some parts, and did not read others.
  • She had a full six weeks to obtain independent legal advice, but – by her own admission – chose not to do so.
  • At the time she signed the agreement, she though it was fair. There was no fraud, coercion, or duress.

As for the second step, the Court found the agreement to be in “substantial compliance” with the Divorce Act. More importantly, in light of all the circumstances including the economic disadvantages suffered by each spouse because of their 18-year marriage, the wife would not be entitled to spousal support even if the separation agreement did not exist.

The Court affirmed the trial judge’s conclusions, dismissed the appeal, and confirmed the validity of the agreement.

For the full text of the decision, see:

Smith v. Smith

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

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

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

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

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

As the court explained:

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

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

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

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

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

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

For the full text of the decision, see:

Harder v. The Queen

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

 

 

Wednesday’s Video Clip: Confidentiality

Wednesday’s Video Clip: Confidentiality

In this video Russell discuss how all information you provide to your lawyer is completely private and confidential. All the details of your case will be handled with the utmost confidentiality and respect for your privacy.

The privilege of confidentiality between solicitor and client is, in law, a protection which belongs to the client. Therefore, it is up to the client, only, whether or not that confidentiality is to be waived.

Please remember this when your family members or friends request information directly from your lawyer. Lawyers are frequently contacted by new partners, or other family members who want to discuss your case.

You have to give your lawyer specific instructions to permit that discussion to take place. Also, as the time spent by your lawyer will be time spent on your file, you will be billed for any time spent discussing your case with anyone at your request, or in the context of your file

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

If Only One Person Says “It’s Over”, Is It Really?

If Only One Person Says “It’s Over”, Is It Really?

Who gets to decide when a marriage or other relationship is over? Do both parties have to agree, in the eyes of the law?

That was one of the questions that the court had to ask in a case called Cammaroto Cammaroto.

The facts were a little unusual: The wife wanted out of the dead-end marriage but could not get the husband to leave, likely because he was very comfortable having her pay all the bills. He had never really worked throughout their 10-year marriage, and had not shown any real inclination to get a job. As the court described it:

[The wife] testified that she was trapped in the relationship for many years because she could not get [the husband] to leave and she could not afford to carry two residences making her (in her words) “a prisoner” in the matrimonial home.

The true end-date of the marriage was therefore challenging to pinpoint, and the spouses differed greatly on what that date actually was.

Naturally in a more typical marriage-breakdown scenario, the former partners usually decide to stop living together at some point, making it much easier to isolate the date the relationship has officially ended.   But where – as here – the couple continues to live under the same roof even after one or both of them consider the relationship to be over, the lines can get a little blurry.   It becomes harder to identify the true legal “separation date”.

To frame its determination on this issue, the court stated the law:

Marital relationships cover a broad spectrum and it is difficult to pinpoint when spouses become “separated” while under the same roof. There is no checklist or test that precisely articulates the determination of a valuation date in a case such as this, though courts have articulated factors to consider. It is a fact-driven inquiry in any particular case.

The absence of sexual relations is a factor but it is not conclusive. The degree to which spouses share or segregate income and expenses is important, particularly changes in those arrangements. Communication, social life, interactions with one another in public and behind closed doors all need to be considered. Mutual goals and expectations are relevant. The goal under the Family Law Act‘s property provision is to fix a date on which the economic partnership should as a matter of fairness be terminated. The global question is when it was that the parties knew, or reasonably ought to have known, their spousal relationship was over and would not resume.

On the question of whether one person can unilaterally decide that the marriage is over, the court was unequivocal:

Continuation of a marital relationship requires two people. Either spouse can unilaterally end that relationship without the consent of the other. There are many cases where one spouse knows there will be no reconciliation, but the other may not know. At the same time, the court must be careful to look for some objective evidence upon which to find a date of separation, rather than simply accepting the after-the-fact statements of the party who has decided the relationship is over.

Applying this test to the specific facts in Cammarato, the court found that the relationship had ended a full five years before the couple stopped living together. The court described the marital scene:

By 2005, they ceased to have a sexual or otherwise intimate relationship. Communication between them was largely by notes to one another. They had no social life to speak of. [The husband] had no friends and as a couple they had no mutual friends. Moreover, he objected to and interfered with [the wife’s] association with her own friends and even with her two sons. They had a joint bank account but only [the wife] was putting money into this account after 2006. [The wife’s] description of their relationship is corroborated in some respects by [her doctor’s] notes and the records of the police interventions.

In these circumstances, the court found the marriage was over long before the spouses moved out and went their separate ways. It set the separation date accordingly, for valuing the spouses’ respective assets for equalization.

For the full text of the decision, see:

Cammaroto v Cammaroto, 2015 ONSC 3968 (CanLII)

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

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

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

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

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

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

Were Negotiations Contingent on the Husband Ending His Affair?

Were Negotiations Contingent on the Husband Ending His Affair?

In an case I had reported on a few weeks ago, the marriage contract between the husband and wife – drafted by the wife’s lawyer – had contained an inadvertent drafting error, giving the husband the full value of the matrimonial home, when the actual intent was to give him only half. The relationship irrevocably broke down shortly after the agreement was signed. In examining whether the flawed agreement should nonetheless be enforced, the court concluded that the proper solution was to overturn the part containing the error; all the more so because the husband was aware of the drafting mistake and was trying to take advantage of it. This conclusion was confirmed on appeal.

One of the many issues that had to be examined in the case, was the effect on the husband’s extramarital affair on the negotiation process. An earlier judge at trial had been accused of placing undue emphasis on the husband’s cheating, when deciding some of the other issues in the wife’s favour.

That same judge had addressed the impact of the wife’s insistence that if they were to reconcile, he would have to end the affair and get tested for sexually-transmitted diseases. It was against this background, over a brief 3-week period, that the defective marriage contract had been negotiated. As the trial judge explained:

[The wife] had three preconditions to reconciliation. The centrepiece of these conditions was that [the husband] stop his affair immediately and commit to the reconciliation process. [The husband] represented to [the wife] that he terminated his affair. He told her that he was in the wrong and that the most important thing to him was the survival of their marriage and family. On that representation, [the wife] went out of town to consider reconciling with [the husband].

The problem was, that the husband had not actually ended his contact with the woman, even though he told the wife otherwise. Even as one of the last drafts of the marriage contract was being exchanged between the lawyers, he had seen his affair partner only days earlier, while on a business trip to California.

The trial judge had to examine the effect of this revelation on the validity of the contract.

The husband’s promise that he would be committed to reconciliation, and his devoting to making the marriage work, imposed a heightened obligation of good faith on him, the judge found.   Marriage contracts, unlike separation agreements, are subject to an utmost duty of good faith and fair dealing between the spouses. The judge disagreed with prior rulings that suggested that an extramarital affair need not be disclosed because the Family Law Act and the Family Law Rules deal only with financial disclosure by spouses. Instead, the judge found that an affair could be relevant particularly if the couple was negotiating a marriage contract in circumstances of attempted reconciliation.

With that said, the trial judge applied the principles to these facts:

In this case, [the husband] told [the wife] that he had ended the affair and that his total dedication was to seeing the marriage work. This fact alone was a prerequisite for [the wife] to entertain the idea of entering into a process of reconciliation and, eventually, give this process priority over her involvement in the negotiation process of the Marriage Contract, which dealt with her most substantial assets.

I find that the perception created in [the wife’s] mind that [the husband] was committed to the marriage due to the termination of his affair renders evidence that he continued to see this woman during the negotiation process of the Marriage Contract relevant.

However, the trial judge went on to make an important distinction on these facts: The husband had admitted to continuing to see his affair partner in California, but he did not admit that he was actually continuing the affair with her. As he explained:

Having said that, I cannot find on the evidence in this case that [the husband] continued to have an affair with this other woman during the negotiation process. In this regard, I find the following:

(1) [The husband] admitted to [the wife] that he was having an affair and that he wanted out of the marriage at the end of March 2006.

(2) Although he stated in his evidence that he ended the affair when he committed to reconciliation, he admitted that he continued to see this same woman during the negotiation period. The woman with whom [the husband] was having an affair lived in California and he admitted to travelling through California in July 2006 in the midst of the Marriage Contract negotiations. Admitting to continuing to see her does not allow me to conclude that he was continuing the affair.

I do not find that [the husband’s] affair with this other woman impacted on the negotiation process. Although [the husband’s] resumption of his affair, at the time that his wife was in the extreme vulnerable state that she was, is reprehensible, such conduct cannot be connected to the issue of whether this Marriage Contract should be set aside.

The matter went on to later appeal, with the court focusing on other grounds. But it was an interesting, and rather thinly-sliced, legal issue and conclusion.

What are your thoughts on the trial judge’s reasoning?

For the full text of the decisions, see:

Stevens v. Stevens, 2012 ONSC 706 (CanLII)

Related Appeal and Costs decisions:

Stevens v. Stevens, 2013 ONCA 267 (CanLII)

Stevens v. Stevens, 2012 ONSC 6881 (CanLII)

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

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Would You Give Your Ex Your Facebook Password?

Would You Give Your Ex Your Facebook Password?

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

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

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

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

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

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

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

What are your thoughts?

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

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Wednesday’s Video Clip: Child Support & Parents on Social Assistance


Wednesday’s Video Clip: Child Support & Parents on Social Assistance

Parents on social assistance who have custody of their children must make reasonable efforts to get support from the other parent. If they do not, they may receive less assistance, or none at all. If they do not already have a support agreement or order, they are expected to get one. They must give information about the other parent to a family support worker who can help them get a support agreement or order.

They should get legal advice before signing any agreement worked out on their behalf.

They may not have to try to get support if the other parent:

• has a history of violence towards them or their child

• cannot be found (but they must give their worker any information they have that might help find the other parent),

• or is not working and cannot afford to pay support (if he or she starts working again, then support can be re-ordered).

The amount of any child support they receive is deducted from their social assistance. So, their total income does not change because of the child support.

Usually, the payments go directly to them, and that same amount is deducted from their monthly social assistance cheque. But if there is a history of non-payment, the child support payments can be assigned to Ontario Works (OW) or the Ontario Disability Support Program (ODSP). Then they will get their whole social assistance cheque, even when the support payments are not paid.

Parents on social assistance who do not have custody are expected to pay child support to the extent that they can, as set out in the Child Support Guidelines. Currently, the Guidelines do not require support payments from parents whose income is less than about $6,700 a year.

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 the Court Decide to Hear New Evidence After-the-Fact?

Can the Court Decide to Hear New Evidence After-the-Fact?

A recent Ontario decision raises the interesting procedural issue of whether a court has the authority to admit new evidence even after it has concluded hearing a Family Law matter.

The litigation involved competing motions by a father and a daughter. The daughter asked for the court to order the father to pay temporary child support, and the father resisted, asking the court for certain orders to be made in his favour instead. The court heard the motions, but reserved judgment on both.

Then, a week later, the father returned to court to try and provide new evidence that the company he controlled had been ordered into receivership – presumably to show that he could not afford to pay the daughter temporary support she sought. His evidence took the form of the copy of an order by another judge, in another court, simply declaring the father’s company was receivership; there was no other detail provided.

The court first had to consider the broader legal question whether it had the authority to allow the father to bring new evidence, even after the original motions had been heard. If so, then the court was still obliged to consider whether that authority should be exercised respecting the father’s new evidence in this particular case.

On that last point, the court summarized the task at hand:

The deeper issue that I am called upon to consider is whether [the father] has provided sufficient evidence to show that the motions should be reopened, and if so, on what terms?

After reviewing basic judicial principles, the court ultimately found that it did have the authority to re-open the argument, but that the father had not met the test to justify the court doing so in this case.

The court’s threshold determination was whether it had fulfilled its official function on the earlier motions; if so, the door was closed for any further evidence to be received. The legal term is “functus officio”, which is defined as “having discharged one’s duty” or as “a task performed.”

As it happened, in this case the judge had not yet issued a ruling, let alone granted any order that had formally been entered with the court. So the judge was not “functus officio” in this particular instance.

Next, the court also examined the Family Law Rules, to see whether it might prohibit the father’s evidence from being tendered at this relatively late stage. The purpose of the Rules, the court found, was to deal with cases in a just and fair manner; they included provisions specifically built-in allowing for flexibility and fairness. In the right circumstances, the Rules did allow further evidence to be filed even after the argument of the motion had been concluded.

With that said, the judge’s discretion was to be exercised “sparingly and with the greatest care”, although a “somewhat relaxed approach” could be applied in cases where the matter had been heard, but a decision had not yet been released. This was one of those cases.

Still, the admission of evidence was to be the exception, rather than the rule. Otherwise, it would be tantamount to inviting the parties to first hear argument and judicial comment on the evidence thus far, and then put together further evidence tailored to buttress their case.

In this case the father had not met the requisite test. As the court said:

While the test is more relaxed than it would be after a decision had been released the admission of that evidence is far from automatic. Here [the father] fails to meet even a relaxed test for admission.

The father had neither direct evidence nor any submissions to explain why the late-breaking receivership order, relating to a company that he held a 60% interest in, might affect either of the motions the court had already heard. He merely proffered a copy of a prior court order putting his company into receivership, but without explaining how it might affect his income.

The court said:

While the bar … is a low one, [the father’s] materials fail to clear even it.

The court declined to grant the order, and dismissed the father’s motion to introduce new evidence.

For the full text of the decision, see:

Glegg v. Glegg, 2017 ONCJ 102 (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