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Posts from the ‘Separation’ 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

If the Wife Goes to Stay with Her Mother – Does the “Clock” on their Relationship Start Over?

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If the Wife Goes to Stay with Her Mother – Does the “Clock” on their Relationship Start Over?

In Whalen-Byrne v. Byrne, the issue for the family court seemed simple enough: It was to determine the precise duration of the former couple’s relationship, which in turn would drive the duration of spousal support the husband had been adjudged to owe the wife.

And the beginning and end dates were uncontentious:  both husband and wife agreed that they began living together in 1993, and separated in 2010, which on a straightforward calculation was a span of 17 years.

But the problem was that at one point – from October 1996 to March 1997 – the wife moved out of the matrimonial home and went to stay with her mother.    After this brief separation they reconciled, and went on to get married a few years later.

The court was therefore left to determine what effect this separation had on the duration of their union.  A trial court had pegged it to be 13 years, on the basis that the separation essentially “restarted the clock” on their relationship, and that it really only commenced to run after they reconciled.  The trial judge explained it this way:

It appears that following the [wife] moving in with her mother the parties continued to be open to the possibility of continuing a relationship; however, both parties were taking steps to put distance between themselves (i.e. cessation of cohabitation and pursuit of relationships with other persons other than the other party). The most reasonable interpretation is that the parties intended to be separate from one another subject, at best, to the possibility of resumption of cohabitation. I find therefore that the period of cohabitation for consideration in respect of the [wife’s] claim for spousal support commences March 1997 and concludes with separation on April 10, 2010 for a period of thirteen years.

The wife appealed this ruling, and the Court of Appeal agreed with her reasoning.

In determining the length of cohabitation, the trial judge had been incorrect to “reset” it at the reconciliation point.  Instead, the facts showed that even when the wife went to live with her mother, the couple never formally separated; they merely had what the court called an “interim separation” that included “the possibility of resumption of cohabitation.”  In drawing this conclusion, the court considered the following evidence:

  • They lived apart for only a brief 5-month period;
  • They did not separate their finances;
  • The husband continued to support he wife financially, including allowing her to use a credit card in his name;
  • The wife took only a small suitcase of clothes with her, and no furniture;
  • Although the wife went on a few dates with another man, she was not involved in another relationship;
  • In December 1996, the husband proposed marriage to the wife with a ring and in front of their children, to which she replied “not yet”; and,
  • By February 1997 the parties were discussing marriage.

The Appeal Court concluded that for determining the duration of the husband’s spousal support obligation, the correct period of cohabitation was 16 years and 10 months, less 5 months for the brief separation, for a total of about 16.5 years.

The Court recalculated the wife’s support entitlement accordingly, and determined that she was entitled to spousal support from the husband that would last 14 years from the agreed date of their separation in 2010.

For the full text of the decision, see:

Whalen-Byrne v. Byrne

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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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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Untangling Financial Information – By Guesswork and Extrapolation

Untangling Financial Information – By Guesswork and Extrapolation

Although it’s a relatively short little ruling, the decision in Yahya v. Omar gives a glimpse of the type of judicial guesswork that goes into determining a separated couple’s income and earning capacity for the purposes of determining their respective spousal and child support obligations to each other.

The parents lived together common-law for over 15 years, and had three children together.  The judge who ruled on an earlier motion for interim financial relief had held that the father’s income was about $56,000, even though this was a higher figure than he reported on Line 150 of his income tax return.  The judge made a temporary order for the father to pay child and spousal support accordingly.

The parents appeared in succession before four more judges who made orders dealing with various issues, including how the proceeds of the sale of their condominium were to be dealt with, how payment of child support was to be made out of those proceeds, and various other orders. In each case the financial disclosure provided by the parties was less than fulsome.

The father then brought a new motion for an order that the initial child support order was improperly made, because it should be based on his actual income, rather than what the original judge had declared. He claimed that at the time of separation he operated a taxi cab business, and for the past few years his income had been in the range of about $40,000 gross, and under $15,000 net per year.  The father said that although that information had been available to the initial motion judge – and the judge acknowledged that the support might change depending on further disclosure – the judge had improperly relied on the income on his financial statement, which showed about $51,500.

Moreover, the father stated that he had actually been unwell and unable to work for a few months, and that he had surrendered his taxi and was now driving for UBER.   Based on pro rata extrapolation, the father said his income would about $30,000 per year.  He asked that his child support be reduced accordingly.

In contrast, the mother claimed that the father’s income should be set at least $43,000, but ideally it should be set at $90,000 based on both the lifestyle he was apparently living.

In addition to refuting the mother’s figures, the father claimed that she should be looking for work in order to contribute to her own support. But the mother refuted this, claiming that she had a health condition that prevented her from working.  Her only backing for this diagnosis was a one-line letter from a doctor.

The court considered these submissions by both parties.  Starting with the father’s income, it found that the family’s lifestyle certainly showed they were living well beyond the amounts shown in his recent income tax returns, but this did not mean his income should be set at $90,000.  In fact, the court noted the father was “living with various family members and friends”, although he gave no additional financial details around those arrangements.

With no further clarity as to his income, the court concluded that the initial temporary order would have to stand until trial, unless the father could provide further disclosure that warranted a change to it.

As for the mother’s claim to be unable to work:  The court firstly returned the doctor’s letter to the mother, because it had not been properly tendered in evidence, then added that she needed to provide proper disclosure if she wanted to support her claim and settle the outstanding financial issues.  Respecting the level of proof needed for her ostensible medical diagnosis, the court diplomatically added:

If it consists of a single sentence from a family doctor, it will not suffice in which case she should consider investigating employment.

To the extent that it could with the information available, the court made several orders to resolve some of the issues relating to the treatment of the proceeds of sale, and certain arrangements respecting the payment of support.  It added that the next step “must be an informed and productive settlement conference,” which the court emphasized would require each party to file financial statements, as well as net family property statements.

For the full text of the decision, see:

Yahya v. Omar

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: The Difference Between Separation and Divorce in Ontario

Wednesday’s Video Clip: The Difference Between Separation and Divorce in Ontario

A separation occurs when one or both spouses decide to live apart with the intention of not living together again. Once you are separated, you may need to discuss custody, access and child support with your spouse. You may also need to work out issues dealing with spousal support and property. You can resolve these issues in different ways:

• You can negotiate a separation agreement. A separation agreement is a legal document signed by both spouses which details the arrangements on which you have agreed. In some jurisdictions, independent legal advice is required to make the document legally binding.

• You can make an application to the court to set up custody, access, support and property arrangements under the provincial or territorial laws that apply to you.

• You can come to an informal agreement with your spouse. However, if one party decides not to honour the agreement, you will have no legal protection.

To legally end your marriage, you need a divorce, which is an order signed by a judge under the federal law called the Divorce Act.

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

 

Busted! Court Relies on Sworn Financial Statements from First Divorce to Value Assets During Second One

Busted! Court Relies on Sworn Financial Statements from First Divorce to Value Assets During Second One

The husband was a 46-year-old, recently-separated businessman who met the 26-year-old wife when she was a junior at the law firm he used for his business matters and litigation. After they moved in together and he got a divorce from his first marriage, the wife left her job at the law firm to take care of the husband’s litigation and related corporate affairs.

They were married for 14 years before they separated, and had three children.

When they split up, the husband forwarded a newly-prepared separation agreement for the wife’s signature. She signed without obtaining independent legal representation.  She was comfortable doing so because she believed that the husband had provided full disclosure, and she trusted his assessment since he had considerable experience valuing businesses.

Using the business valuation information provided by the husband, the separation agreement would have called for the wife to pay the husband just under $1 million as an equalization payment; however, it also provided that the husband would agree to forgo her having to pay that amount.

Sounds like a good deal, right?

However, the wife slowly realized afterwards that the husband had misled her. Rather than her owe him money in equalization (which he waived), the proper calculation was entirely different because he had greatly overstated the value of the corporate assets that he brought into the relationship, most notably the value of his company at the date of marriage. This would inflate the amount she was adjudged to owe him way of an equalization.

She successfully applied to the court to set aside the separation agreement, on the basis that the husband had not given full financial disclosure.  The trial judge adjusted the calculation accordingly.

The husband appealed.  In support of his business valuation figures, he put forth the evidence of an expert, who attested to the fact that the value of the business on the marriage date was over $7 million.  However, the Appeal Court concluded that the expert was partial to the husband and lacked independence, and had given an inflated figure that could not be trusted.

Instead, the court relied on some “smoking gun” evidence:  the sworn financial statements the husband had filed in his first divorce, which showed that he had essentially brought no assets of value into this second marriage to the wife.  The trial judge had relied on this evidence as well in setting the separation agreement aside, and the Appeal Court confirmed that there was nothing improper about the trial judge having done so, even if it was to the husband’s detriment.

In the end, the husband was found to have intentionally misrepresented the value of his corporate assets, by claiming that they were worth $6 million more than their actual (court-determined) value.

The Appeal Court upheld the trial judge’s decision to set aside the separation agreement, and went on to calculate the proper equalization amounts using the true valuation of the husband’s assets.

For the full text of the decision, see:

       Virc v. Blair

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

Does the End of the Relationship Have to be a Two-Sided Decision?

Does the End of the Relationship Have to be a Two-Sided Decision?

In an older case called Strobele v. Strobele, the court considered a narrow and easily-overlooked question:  If spouses agree to separate and one of them wants to reconcile but the other does not, how do you know when the marriage is officially over for the purposes of valuing the marital property?

After a lengthy marriage, the couple was beginning to have marital difficulties.  After enlisting the help of another couple who were mutual longtime friends, they agreed to a written plan of action that involved the wife leaving the matrimonial home for two months.  The idea was that the spouses would get some time and space from each other, seek support and perhaps some counselling, and then regroup to re-evaluate their marriage.

The court heard evidence that although even though it was not his idea, the husband was willing to participate in the plan, even though the wife had a “firmer goal” of reconciling than he did at that point. As the court explained:

[The wife] sought a commitment from [the husband] that he would not have other women in the house during that time. [The husband] demurred and it was left that each would do as she or he pleased during that time apart. … [The wife] makes the point that she only agreed to leave on the understanding that she was not abandoning the home or the relationship and I accept and I think it is clear that she was not abandoning either at that time. It does seem clear that [the husband] was more ambivalent about the long-term prospects than was [the wife]. He would not agree to the monogamy stipulation during the time apart and he required the two-month limit on the period they would cohabit after the time apart.

As it turned out, when the two months was up the husband told the wife that he did not wish to reunite after all, and that the relationship was over.  After a brief return to what was now a tension-filled home, the wife moved out permanently and started divorce proceedings.

This gave rise to a legal question, namely the date on which the couple could be said to have formally separated, for the purposes of pinpointing the valuation date for the equalization of their matrimonial property.  The wife placed the separation date as being the point at which the husband stated he did not wish to reconcile (i.e. after the two-month break), whereas the husband claimed it was a full six months earlier.

The court pointed out that under the Ontario Family Law Act, the valuation date is defined to be “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.”  Although there is no single factor that determines when this legislative test has been met, the key issue is when the parties know, or – acting reasonably – ought to have known that their relationship was over and would not resume.  The court said:

Continuation of a relationship requires two people. Either can end the relationship without the consent of the other. As a matter of common sense, there will be many cases where one spouse knows that there will be no reconciliation and the other does not because the one has decided he or she does not wish to reconcile, but the other does not yet understand this. A fair determination of this issue requires that an objective eye be cast upon the unique circumstances of the couple. 

Turning that “objective eye” to the couple’s situation, the court ascertained that the separation date was immediately after the two-month break, when the husband indicated a firm intent not to reconcile. At that point, there was no reasonable or foreseeable prospect that they would resume cohabitation, and the marriage had irretrievably broken down.

In contrast, the earlier negotiations mediated by the other couple, and the action plan involving the two-month separation, still pointed to both spouses entertaining the possibility that the marriage could be saved, even if the wife was hoping for that outcome more than the husband.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