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Posts from the ‘Separation’ Category

What Constitutes “Hardship” When You Are Well-to-Do?

What Constitutes “Hardship” When You are Well-to-Do?

In determining the proper amount of spousal support that should be awarded after a married couple divorces, the court is guided by various established legal and policy-based principles. One of them is that the support should seek to alleviate economic “hardship” on the part of the spouse who is entitled to receive it.

As with many of the other factors, the concept of “hardship” is relative:  What amounts to hardship in one family setting will be vastly different to what is considered hardship in another.

This dichotomy was well-illustrated in Plese v. Herjavec, which involved the high-profile divorce between Canadian television personality Robert Herjavec (most recently seen on the reality shows Shark Tank and Dragon’s Den) and his wife of 24 years, Diane Plese.

In the context of determining the appropriate amount of spousal support to which the wife should be entitled, the court wrote:

Spousal support is also designed to relieve economic hardship.  What is “hardship” in the context of this family?  I need to look at the pre-separation lifestyle of the family to understand this context.

At the date of separation, the parties lived in a 22,000 square foot home (not counting the basement) with an indoor pool, ballroom, tennis court, tea house, and ten-car garage housing numerous luxury vehicles. The home was located on more than 2 acres in one of the most exclusive areas of Toronto.  The parties owned a ski chalet in Caledon, a luxurious vacation property in Florida, boats and other water craft and a Muskoka cottage.

The former couple’s lifestyle was commensurately extravagant, as the court described:

The family travelled extensively.  Family holidays were often taken using THG’s private jet, which Ms. Plese described as one that can fly “over the ocean”.  Holidays included European destinations.  On a holiday in Greece, the parties rented a yacht and staff to sail the family around the Greek Isles.  Ms. Plese testified that if the aircraft was being used for THG business, and she wished to take a trip, Mr. Herjavec would charter a private plane for her.   Mr. Herjavec did not refute this evidence.

Ms. Plese’s financial statement shows she owns considerable expensive jewellery from Cartier.  At valuation day it was worth over $428,000.  Ms. Plese says this figure reflect roughly half of what it cost.  Again, I heard no evidence to the contrary.

Mr. Herjavec testified he spent $100,000 on a piano for High Point, but, since no one in the family could play, invested a further $25,000 on a device that would play the piano.  Mr. Herjavec owned and operated numerous luxury cars. The middle child, Skye, received a car for her 16th birthday.  The children were educated at exclusive private schools.  The two girls attended elite American universities.  Both older children have pursued post-graduate studies, at no personal financial cost to them.  The family lived a rarified existence of privilege and luxury.

It is telling that [their daughter] Skye, when asked whether it was true she enjoyed luxurious holidays with her family, simply answered:

I mean they were just vacations to me, I don’t – it depends on how you see them.

Skye was then asked how she saw them. She answered:

I was going on vacation with my family … it depends what you – like that’s how I grew up, that’s – it was a vacation with my family is how I saw it.

In awarding support, the court had to examine the post-split downgraded lifestyle that the wife was now living, in light of the divorce after a longstanding marriage.  The court explained:

Ms. Plese testified that her lifestyle has suffered since the breakdown of the marriage.  For example, instead of travelling by private jet, she flies with commercial airlines.  Instead of staying in a suite of rooms at luxurious hotels, she now stays in a single hotel room.   I have no evidence that Mr. Herjavec has experienced any similar reduction in his lifestyle.

I conclude that without spousal support, Ms. Plese will have suffered economic hardship as a result of the end of the marriage.

For the full text of the decision, see:

Plese v. Herjavec, 2018 

At Russell Alexander Collaborative 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

Former Shark Tank Star Ordered to Pay Ex-Wife $125,000 Per Month in Support

Former Shark Tank Star Ordered to Pay Ex-Wife $125,000 Per Month in Support

In a recent ruling by the Ontario court the husband, well-known TV-celebrity Robert Herjavec was ordered to pay his ex-wife, Diane Plese, $125,000 per month in spousal support for an indeterminate period.  He was also ordered to pay her about $25 million, representing an equalization payment and her entitlement to shares in a cottage and vacation property. This is in addition to about $20 million she already received in assets from the marriage.

Herjavec, one of the stars of television’s Shark Tank and Dragon’s Den reality shows, had been married to Plese for 24 years before they split in 2014.  Their separation was prompted by the revelation that he had been having an extramarital affair.

At stake in the divorce was what they considered an “unimaginable fortune,” which had snowballed from an original $31 million sale of Herjavec’s cyber-security company called “Brak” in 2001.  This funded the development of a similar, equally-lucrative business later on.  The influx of wealth had a significant effect on the couple’s lifestyle, as the court explained:

After the Brak sale, the family’s spending patterns changed dramatically.  A new family home was purchased for over $7 million.  It was located in the exclusive Bridle Path area of Toronto.  In addition to many bedrooms, bathrooms, living and dining and family room, it also featured an indoor swimming pool, a ballroom, teahouse, and a huge garage, large enough to store many vehicles. 

They acquired a new recreational property on Fisher Island in Florida.  It cost more than $2.6 million.  Boats and cars were purchased.  The children were sent to exclusive private schools.  Ultimately, Ms. Plese stopped working outside the home altogether.

In the context of settling their family law issues, the court turned to valuing the former couple’s property, including their 22,500-square-foot matrimonial home now valued at around $17 million, their $5 million cottage, their $4.8 million property in Fisher Island, as well as various boats, vehicles, and even their Aeroplan points.  This was a considerable challenge due to the significant difference in valuations provided by their respective experts:   For example, respecting the value each expert attributed to Herjavec’s current business alone, there was a spread of $30 million.

After concluding that Plese was entitled to about $25 million for her share of these items, the court turned to the issue of how much spousal support Herjavec should pay her.  In doing so, the court cited from a paragraph of his own book, as evidence of the importance of the marriage and Plese’s support to his success. The court said:

This was a lengthy marriage of nearly three decades.  The parties both testified they worked as a team.   Mr. Herjavec himself perhaps put it best in his book titled Driven: How to Succeed in Business and in Life.  At page 286 he says:

I’m fortunate in so many ways to have Diane as my spouse.  She earned her optometry degree over six strenuous years of study, years that included countless nights of study and work as an intern.  She knows what it’s like to work eighteen or twenty hours a day in pursuit of a goal; she understands the motivation behind it.  Having obtained her degree she could count on a good income from steady employment, providing a safety net if one of my projects went belly up.  This was enormous comfort to both of us, especially during my first years as an entrepreneur. 

Clearly, Ms. Plese’s contributions from her own work were critical to Mr. Herjavec’s financial success, particularly in the early years of the marriage when he began Brak.   Brak, of course, provided the foundation for [the later company] and its ultimate success.  What Ms. Plese lost when she stopped working outside the home was that very steady employment and her own financial safety net created from her own separate earnings.  This is a compensable loss.

In all the circumstances, the court concluded that Plese was entitled to spousal support of $125,000 per month, with no set termination date.  Although this amount was actually lower than what the Spousal Support Advisory Guidelines would otherwise dictate, it incorporated the ongoing capital positions of each of the former spouses, and represented a reasonable balancing of the economic consequences of the end of their marriage.

For the full text of the decision, see:

Plese v. Herjavec, 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

On Income Tax, Support Arrears, and Retroactive Support

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On Income Tax, Support Arrears, and Retroactive Support

Income tax time will be upon us soon enough.  If you are receiving spousal support from your former spouse, you may wonder how those support payments should be treated when it comes time to file your income tax return with the Canada Revenue Agency.

The answer is straightforward:  If you are receiving spousal support from your former spouse or common-law partner, under a court order or written agreement that specifies the amount, frequency and duration of the payments, then those amounts are fully taxable in your hands.  In other words, all those amounts must be reported as “income” on your tax return, and will be taxed accordingly. (This is unlike the situation with child support, which from the recipient’s vantage point is generally considered non-taxable).

Normally, that obligation to declare your spousal support as income on your tax return triggers a corresponding entitlement by your former spouse or partner to claim an equivalent deduction on his or her tax return for those same payments, with some exceptions.

So the short answer, is that spousal support is considered “income.”  But what if the payments you receive now cover support payments that your former spouse should have made in the past?

A pair of recent decisions tackled a narrow – but important – issue relating to how: 1) retroactive support, and 2) support arrears, are to be handled for personal income tax purposes.

In a case from last year called Gonsalves v. Scrymgeour, the court reviewed the law on the tax treatment of retroactive spousal support awards (being those where the support paying spouse is newly-ordered to pay an amount that covers a past period of time during which the other spouse was eligible to receive it). The court confirmed that an award of retroactive spousal support should be reduced, to take into account the benefit of the income tax deduction that the paying spouse would have been able to claim, using the mid-point of the spouse’s respective marginal tax rates.

The more recent decision in Negin v. Fryers addresses support arrears (which are unlike retroactive support because they consist of unpaid amounts that were due under an order made previously).  There, the separated parents had agreed in 2004 that the father would pay child support to the mother in line with Guidelines amounts, together with a set amount of spousal support.   Apparently for some of the years since then, the father overpaid child support by over $52,000, and underpaid spousal support by more than $155,000.  After offsetting these amounts, the mother claimed the father owed just under $103,000 in arrears.

The father claimed – unsuccessfully – that the lump-sum gross amount he now owed the mother in arrears should be “netted down” to account for the different tax treatment of lump sum spousal support, as compared to an order for periodic support.  The wife pointed out – and the court agreed – that it was the policy of the Canada Revenue Agency to allow non-retroactive lump-sum spousal support payments to be deducted by father in the role of the support payor.  The court directed the parents to calculate the amount of child and spousal support owed or overpaid accordingly (as the case may be), in keeping with its specific directions and ruling.

Nobody loves tax time (except perhaps the Income Tax Preparers and Accountants!)  If you have questions about the spousal support you receive, feel free to give our office a call.

For the full text of the decisions, see:

Negin v. Fryers, 2018

Gonsalves v. Scrymgeour, 2017

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

 

 

GM Oshawa Assembly Plant Closing & Divorce

The Ghosts of GM: Past, Present and Future

On November 26, 2018, the General Motors Company (GM) announced that it will cease allocating new product to its Oshawa assembly plant beyond the end of 2019. This came as a shock to the 2,500 employees who work at the Oshawa plant and the many more who depend on their income. While the jury is still out on whether GM will be laying off or re-training its 2,500 employees, one thing is certain—a large cohort of GM’s employees stand to lose their livelihood.

Whether laid off or re-trained, employees who have a potential, current or settled family law matter will need to govern themselves wisely to weather the impact that closure will have on their day-to-day lives. Accordingly, this post explores the likely, and, not so likely, family law implications of GM’s closure of its once thriving Oshawa assembly plant.

The Ghost of GM Past: Settled Family Law Matters

If your family law matter was previously settled by way of a Separation Agreement or Final Order, the loss of employment income may trigger a review of child support or spousal support, or parenting.

Support obligations

It is likely that the loss of employment income will mean that you cannot afford to pay child support and/or spousal support as set out in a Separation Agreement or Final Order. In the case of a Separation Agreement, you may be able to rely on a built-in review clause to revisit the issue of support. Most Separation Agreements contain a dispute resolution clause which may be the first place to start in this endeavor. In the case of a Final Order, you will likely want to bring a Motion to Change a Final Order if you and your ex-spouse cannot agree on the appropriate adjustment out of court. A qualified lawyer can assist with making this process as seamless as possible.

Parenting

It is not likely that your loss of income will impact settled parenting arrangements. However, you may find yourself needing to reduce your parenting time with the children in order to focus on finding a new job. In this scenario, you may likely need to rely on the dispute resolution clause in your Separation Agreement or bring a Motion to Change a Final Order altering an access schedule in order to achieve the desired relief.

The Ghost of GM Present: Current Family Law Matters

If you are currently going through a legal separation from your spouse, the loss of employment income may affect a number of aspects in your separation, including but not limited to, support, assets and liabilities and alternative career planning.

Child support and spousal support

You may have credible grounds by which to vary a temporary Order for support in your legal proceeding. As an Order for support would have been based on your GM income at the time, the Order may be varied by the new circumstances. You may seek such relief at a pre-trial conference or by bringing a motion. It is not likely, however, that your loss of income resulting from being laid off will extinguish your entire obligation to pay support. Rather, you may still be required to pay support on the basis of employment insurance income or imputed income. However, the extent of any such continuing obligation depends on the particular facts of your case.

Assets and liabilities

The loss of employment income may result in a budgetary deficit, impacting your ability to keep the matrimonial home. If you are no longer able to maintain your share of the mortgage and bills associated with the matrimonial home, it may have to be listed for sale—which may be the most poignant of all of your post-closure concerns. Worry not. There may be options available to you for preventing this outcome such as, a buy-out, borrowing or disposition of investments, RRSPs, RRIFs or your GM pension. However, the viability of these options to save the matrimonial home will need to be assessed against the surrounding issues in your proceeding such as support, equalization and other issues relevant to your case.

Alternative career planning

You may wish to delay your re-entry into the workforce to obtain credentials in a more stable industry. While this will yield economic benefits in the long run, your current financial obligations of support and solvency will be deciding factors. Delayed income generation caused by alternative career training may likely be manageable provided that the financial obligations of your ongoing separation are minimal. However, your freedom and ability to pursue such an undertaking may require a corresponding compromise and will depend on the unique facts of your case.

The Ghost of GM Future: Potential Family Law Matters

If you have been planning to separate from your spouse, the loss of employment income can have significant family law implications on a number of obligations arising in separation, including but not limited to, support, parenting and family property.

Child support and spousal support

It is not likely that being laid off will defer support obligations. You may be obligated to pay support if you receive employment insurance income sufficient enough to meet legislative minimums. If you do not qualify for employment insurance, your spouse may still seek support by imputing an income on you commensurate with your work experience, whereby you will be required to pay support. In either scenario, the obligation to pay child support and spousal support may survive the loss of income depending on the facts of your particular situation.

Parenting

It is likely that being laid off will mean expanded parenting time. While increased parenting time may yield social benefits, it may also impinge on your economic rehabilitation. Your spouse may expect you to dedicate your new found time to caring for young children who are not in school. These, and other significant changes to parenting time after initiating your separation, may likely hinder your re-entry into the workforce. A properly drafted parenting agreement can help by moderating unrealistic expectations.

Family property

You will have a legal duty upon separating from your spouse to avoid the reckless depletion of family property. While you may wish to list personal or real property for sale to help make ends meet, it is not likely that you will be able to freely dispose of family property after your date of separation without your spouse’s prior consent or proper accounting. You will have to be mindful of how you manage family property as mismanagement may prejudice the equalization of net family property and may result in a Court order.

Bottom line

The closure of GM’s Oshawa assembly plant in 2019 will disrupt the lives of many families, the impact of which might be felt most by those dealing with a potential, current or settled family law matter. Contacting a lawyer for legal advice tailored to the particular facts of your case is a proven way to mitigate the effects of an imminent disruption to income. While it may seem impossible to afford a lawyer at this time, there may be options available to finance the cost of much-needed legal representation.

At Russell Alexander Collaborative 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.

Online Game ‘Fortnite’ Cited in Hundreds of Divorces

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Online Game ‘Fortnite’ Cited in Hundreds of Divorces

The online video game “Fortnite” which has grossed over $1 billion in revenue since its launch in 2017 and 125 million users, has recently been discovered to have been one of the reasons that at least 200 couples in the United Kingdom have cited for divorce.

Divorce Online, a U.K. company which offers insight into divorce resources and services recently posted a blog indicating that they had noticed many of the inquires and petitions they were reviewing had mentioned the extended use of the game as a contributing factor for the couples divorce wishes. The findings also showed that these those who cited the game were for the majority from couples where one of the parties played the game, and the other did not.

 

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A Divorce Online spokesperson also stressed that although the game’s influences were only evident roughly 5% of the total petitions this year, there is a link between “gaming disorder” and other addictions to drugs, alcohol or gambling.  In June, the World Health Organization (WHO) had officially recognized “gaming disorder” as a mental health related issue. The disorder has shown to have negative effects on relationships due to the precedence that gaming takes to the person over other activities.

Time will tell if this is a mere blimp for couples reasons for a divorce but the popularity for “Fortnite” does not seem to be slowing down anytime soon as it currently maintains nearly 40 million players each month.

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

 

Deciding to Separate?  Some Noteworthy Points About the “Valuation Date” in Family Law

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Deciding to Separate?  Some Noteworthy Points About the “Valuation Date” in Family Law

A basic concept in Ontario Family Law is that, once spouses decide to separate, their respective entitlement to the matrimonial property they have brought into the relationship and accumulated during the marriage has to be assessed.  That assessment takes place on what is described in section 4(1) of the Family Law Act (FLA) as the “valuation date,” which is defined as:

The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.

Often – but not always – the valuation date will be the same as the formal separation date, which is often the date one spouse moves out of the former matrimonial home. But as we all know, life is not always that simple, and relationships do not always end cleanly.

Here are some important points that the court has clarified about this “valuation date”, in a case called Strobele v. Strobele:

  • The purpose of this FLA definition is to fix the date on which the economic partnership should be fairly terminated.
  • This definition has two aspects:
    • The date on which the spouses separate; and
    • That there is no reasonable prospect that they will resume cohabitation. In other words, there concepts of separation and cohabitation are linked.
  • However, the two concepts, while related, are not interchangeable, i.e.:
    • “Separation” requires more than living under separate roofs, but rather involves a cessation of the “multi-levelled intricate relationship between couples.”
    • Likewise, “cohabitation” implies conjugality.

If a separated couple is not agreed on the exact date on which these two factors were met, a court may have to make the determination for them.  This involves an evaluation of numerous aspects of the relationship and its ending, not to mention the mindset of each spouse.  As the court points out:

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. Thus it is that there are cases where couples are found to have met the test under section 4(1) even though they both continue to live in the matrimonial home….

The court goes on to emphasize that the test under this FLA provision has a clear purpose:

When was it that there was no reasonable prospect that they would resume cohabitation? … In considering this question, it is helpful to keep in mind the purpose for which the question is being asked. It is to set the valuation date, the date at which the parties ceased being one kind of entity for financial purposes – a couple – and became another, a separated couple. Surely it is obvious that there is no one moment in time that can be fixed as the objectively true separation date. Rather the Court should determine the date on which it is fair that the parties no longer share the financial consequences of being married.

Finally, it should be noted that the FLA also allows for the valuation date to be set earlier or later than a couple’s separation date, depending on the circumstances.  The court explains:

Where one spouse with the intention of ending the relationship transfers or dissipates assets, an early valuation date may be appropriate. Where one spouse has decided to terminate the relationship, but has not made this clear to the other spouse, then a valuation date that is later may be in order. However, the test is not purely subjective. Groundless hopes of reconciliation should not extend a valuation date where one spouse has been clear in his or her intentions to end the relationship.

For the full text of the decision, see:

Strobele v. Strobele

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

Could a Couple’s 30-Year-Old Separation Agreement Be Struck Down Now?

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Could a Couple’s 30-Year-Old Separation Agreement Be Struck Down Now?

The couple had been married in 1969, when the woman was 15 years old, and the man was 21 years old.  They had no children.

They decided to divorce in 1985.  A year earlier they had executed a separation agreement, witnessed by their respective lawyers, in which they divided up their matrimonial property and agreed to release their spousal support obligations towards each other.   On that latter issue, they each attested to the fact that: 1) neither of them required spousal support from the other; and 2) they had both considered their present and future financial prospects, and thought the agreement was fair.  It also contained a clause confirming that they each understood their rights and had obtained Independent Legal Advice (ILA) before signing.

All the agreement’s provisions were incorporated into the divorce order they obtained from a court a year later.

Fast forward to 2015, almost 30 years later. The wife brought a motion to have the separation agreement set aside, particularly as it related to her waiver of spousal support.  While she did not recall much about the circumstances all these years later, she claimed that she did not understand the nature of what she was signing at the time.

The court’s first task was to determine which version of the provincial Family Law legislation to apply to that assessment.  The one that had been in force 30 years ago required the wife to show that she had agreed to waive her support right in “circumstances that [were] unconscionable.”   The present-day equivalent, which was the Family Law Act, required only that she show that she did not “understand the nature or the consequences” of the separation agreement.

The court concluded that – using either threshold – the wife had failed to meet the test.

Looking at the evidence that could be provided from both parties, it fell short of showing the wife – who worked as a legal secretary at the time – did not understand the agreement, or appreciate the effect of signing away her support rights.   The rest of the clauses gave her the matrimonial home, the car, and most of the furniture, in a scenario where both of them were working at the time and had no children.   Even looking only at what was in writing, the court noted the spouses had specifically agreed on the fairness and lack of unconscionability of the circumstances.  Both acknowledged receiving ILA in advance.

In fact, the court noted that the wife had actually adhered to the agreement in other respects:   It contained an unusual clause stating that if within stipulated time-frames the wife were to either remarry, sell the home, or die, she would owe the husband $40,000 with interest.  When she did marry another man 7 years after the divorce, she called the husband to tell him she was prepared to honour her obligation under the agreement to pay him the $40,000, and did so during a meeting at a local restaurant.  This helped show that she appreciated the nature of what she had signed overall.

The court concluded:

Based on all of the evidence, I conclude that the parties intended to divide all of their assets, and live separate lives.  Indeed, the parties did just that.  The agreement was not unfair …

Both parties lead lives very separate and apart from each other.  They lived their lives and organized their affairs on the assumption that everything had been divided and resolved.  This understanding survived for decades.

Concluding that it would be unfair to allow either spouse to re-open the terms of this long-ago agreement now, the court dismissed the wife’s motion.

For the full text of the decision, see:

Pipitone v. D’Amelio

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 He’d Have Been Nice to Fluffy”

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“If Only He’d Have Been Nice to Fluffy”

Justice Pazaratz, known for the colourful writing in his family litigation rulings, begins his judgment in a particularly acrimonious custody case this way:

If only he’d been nice to Fluffy.

Sometimes in custody trials it’s the little things — literally — that help judges figure out what’s really going on.

Because believe it or not, judges realize that how people present themselves in affidavits and on the witness stand, is not necessarily how they behave when no one is looking.

Sometimes the little things can speak volumes.

In this case, among the “little things” that the judge referred to a stuffed animal that was dear to the child that the warring parents had together.

The back-story was this: The couple had met when they both worked as flight attendants.  When she unexpectedly became pregnant with his child, they agreed that she would move in with him, but she moved out about 6 weeks later because he was inflexible and domineering with her and with her two older twins from another relationship.  The acrimony continued – and indeed was heightened – in the time following separation, when the parents had numerous conflicts over sharing custody and their different approaches to caring for the child.  They now appeared before Justice Pazaratz to determine who should have sole custody of their 3.5-year-old child (and neither of them was willing to compromise with joint custody or parallel parenting).

Justice Pazaratz chronicled numerous incidents between the couple, with the pervasive theme being the intransigence of the father in his dealings with the mother and their child.  The judge wrote:

FLUFFY

But perhaps the most mind-boggling expression of the [father’s] hostility and defiance toward the [mother] relates to Fluffy: a small, white, stuffed animal [the daughter] became attached to when she was about seven months old. The [mother] testified at length about this — and the [father] didn’t deny any of her allegations.

The first incident occurred in March 2015:

  1. [The daughter] was experiencing separation anxiety when she went on visits with the [father].
  2. So the [mother] said she “negotiated” with [the daughter] that she could take Fluffy with her when she went on visits.
  3. When the [father] arrived at the front of her home to pick [the daughter] up for a visit he immediately pulled Fluffy from [the daughter’s] arm, pushed Fluffy into the [mother’s] face, and told her “I have my own stuffed animals.”
  4. The [mother] testified [the daughter] became hysterical, but the [father] simply left with the child. Fluffy stayed behind.

The second incident occurred in April 2015:

  1. The [wife] sent the [husband] an e-mail explaining that [daughter] was still experiencing separation anxiety and that the child would be bringing Fluffy with her because she found the stuffed animal emotionally reassuring.
  2. However, when the [father] attended at the front of her home to pick [the daughter] up, he again removed Fluffy from the child’s arms, this time throwing Fluffy onto the driveway.
  3. Once again [the daughter] became hysterical. The [father] took her for the visit. The [mother] retrieved Fluffy and went back in her house.

The [mother] testified that later in 2015 they went to court and negotiated a resolution of the Fluffy issue. (Pause for a moment to let that sink in: They went to court to negotiate a Fluffy resolution.) The [father] finally agreed that Fluffy could accompany [the daughter] during visits.

But it turned out to be a pyrrhic victory for common sense.

  1. The [father] developed a new routine:
  2. At the beginning of each visit, when he came to pick up [the daughter], she was allowed to bring Fluffy with her.
  3. But as soon as they got to his car, the [father] tossed Fluffy into his trunk and closed it. They then drove away.
  4. To the [mother’s] knowledge, Fluffy remained in the trunk during the entire visit.
  5. At the end of visits, the [father] retrieved Fluffy from his trunk, and handed the doll back to [the daughter].
  6. I suppose technically Fluffy got to come along for the ride.

But things got even worse for Fluffy.

  1. The [mother] testified that after a while, whenever Fluffy came out of the [father’s] trunk, the little stuffed animal smelled terrible. Fluffy gave off a noxious odor, as if dipped in Vicks VapoRub or camphor oil.
  2. The [mother] said on three occasions she had to wash Fluffy because [the daughter] couldn’t possibly play with a toy which had apparently been doused in an offensive and potentially dangerous substance.
  3. The [mother] e-mailed the [father] asking why he was damaging the child’s prized possession.
  4. The [father] accused her of fabricating a complaint.
  5. The [mother] said she finally gave up and stopped sending Fluffy.

 

I have no idea why the [father] allowed Fluffy to turn into such a major and unwinnable competition.

  1. He doesn’t like the [mother]. I get it.

  1. But Fluffy was just….Fluffy.
  2. Just a harmless little toy of no consequence to anyone….except a vulnerable two year old caught in the middle of a bitter custody dispute.
  3. Would it have killed him to just let the child hang on to her toy?
  4. Was it really necessary to make his daughter cry, just to flex his need for control?
  5. In Coe v. Tope, 2014 ONSC 4002 (Ont. S.C.J.) this court offered some very simple advice for situations like this: Stop acting like you hate your ex more than you love your child.

Despite finding that they were both good parents and both loved the child equally, Justice Pazaratz concluded as follows:

The bottom line: Despite unquestioning love, incredible passion, and impressive credentials — the [father] has given us every reason to worry that if he is granted decision making authority, he will not promote the [wife] in [the daughter’s] life. There is a real danger he will shut the mother out.

In contrast, the [mother] has provided overwhelming reassurance that she has always made good and fair decisions for [the daughter], and she will continue to co-parent with the [father].

Family Court Judges don’t have a crystal ball. We can only go on the basis of how parents have behaved so far.

After reviewing all the circumstances in detailed and lengthy reasons, Justice Pazaratz concluded that it was in child’s best interests that mother be granted sole custody.  And – true to form – he added the following admonishment to the father, at the end of the judgment:

POSTSCRIPT

If only he’d been nice to Fluffy.

If only he’d been nice to the [mother].

If only the [father] had remembered the two magic words of custody cases.

”Be nice.”

For the full text of the decision, see:

Chomos v Hamilton

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