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Posts from the ‘Support’ Category

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

For the full text of the decisions, see:

Caine v. Ferguson, 2012 ONCJ 139 (CanLII)

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

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

Spousal Support Advisory Guidelines – Are They a Package Deal?

Spousal Support Advisory Guidelines – Are They a Package Deal?

In a decision called Mason v. Mason, the Ontario Court of Appeal considered a narrow legal question: Is a judge entitled to use the Spousal Support Advisory (SSAGs) for partial purposes, but disregard it for others? And if the judge departs from using the SSAGs, must he or she give specific reasons for doing so?

The Masons were a husband and wife who had decided to divorce after a marriage spanning almost 20 years. During their relationship they had worked together to build a successful business, and after separating were able to settle all issues except the amount of spousal support that the husband should pay the wife in the circumstances. They went to court to have a trial judge determine that amount for them.

In his reasons, he had made a finding that the husband’s annual income was about $400,000, including certain corporate income that came from the husband buying out the wife from the business. He determined the wife’s income to be about $82,500.  After consulting the SSAGs to determine the proper range of support, he ordered the husband to pay about $9,000 per month.

The former spouses appealed, each claiming that the trial judge had incorrectly approached the income determinations, and had mis-used the SSAGs in doing so. They took issue with the income that had been attributed to them and with the resulting amount of the support award.

As many of you will know, for Canadian judges who are asked to determine spousal support upon the dissolution of marital relationship, the SSAGs set out a pre-determined – but non-mandatory – set of calculations.   As the name suggests, they are “advisory” in nature.

But in this case the Appeal Court found that the trial judge had used them incorrectly:   In the process of reviewing and setting the parties’ respective income, he had used the SSAGs to set the range of appropriate support, but then had abandoned using them when it came time to make the actual income determination.   The Appeal Court said:

As the trial judge was using the SSAGs to determine the amount of spousal support, it was incumbent on him to either rely on the Guideline provisions for determining income — or to explain why they should not apply.

It’s a thinly-sliced distinction, but means that despite being an advisory guide, once the trial judge had referred to the SSAGs in determining the spousal support range, he was required to at least explain why he considered them inapplicable in the Masons’ case.

With that said, the Appeal Court reiterated that the SSAGs “cannot be used as a software tool or formula” whereby the judge merely plugs in the income figures, obtains a range, and chooses the midpoint. They must be “considered in context and applied in their entirety”. The Appeal Court also pointed out that the trial judge had given too few reasons on how the specifics of the various dollar-amounts were calculated.

In the end, having identified errors in the trial judge’s income calculations for both parties, the Appeal Court declined to send the matter back to trial, and opted instead to make the income adjustments itself. It adjusted the husband’s income downward by about $200,000, and the wife’s upward by about $20,000. The spousal support component, payable by the husband to the wife, was adjusted to $1,500 per month.

For the full text of the decision, see

Mason v. Mason, 132 O.R. (3d) 641, 2016 ONCA 725 (CanLII)

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

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


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

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

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

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

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

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

Wednesday’s Video Clip: 4 Ways To Enforce Child and Spousal Support Orders in Ontario


Wednesday’s Video Clip: 4 Ways To Enforce Child and Spousal Support Orders in Ontario

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are several points about the enforcement of such orders or agreements that are noteworthy, this video reviews some important points to consider.

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: Two Necessary Evils – Know Your Obligations Re: Income Tax and Spousal/Child Support


Wednesday’s Video Clip: Two Necessary Evils – Know Your Obligations Re: Income Tax and Spousal/Child Support

Income tax: Not a popular concept even at the best of times. But add in the obligations, which arise in the context of paying child or spousal support, and it’s enough to cause heart palpitations in most Canadians.

This is because the Canada Revenue Agency rules relating to how support payments are to be treated are quite complex. To make things more confusing, the federal Income Tax Act has separate rules for spousal support as opposed to child support.

In this video we review some key points to keep in mind.

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

One Letter on High-End Stereos Frames Court’s View of Couples’ Dispute – Orders Husband to Pay $20,000 Per Month in Support

theatre
One Letter on High-End Stereos Frames Court’s View of Couples’ Dispute – Orders Husband to Pay $20,000 Per Month in Support

While reading a rather routine Appeal judgment in a case called Colivas v. Colivas, I took a quick look back at the earlier judgment that had been appealed on the first place, only to find some interesting passages by the lower court judge.

That earlier ruling began this way:

Occasionally, during the argument of an application, an item of evidence is presented of such an arresting nature that it at once animates and frames the entire exercise.

The court went on to frame the core issue between the now-separated couple:

[The wife] presents the marital lifestyle as one of wealth, comfort and privilege. [The husband] presents a different picture. He essentially submits that he made a good deal of money on one business deal, involving the sale of his interests in [a business]. He says the family has supported its lifestyle since 2006 by depleting the sale proceeds. [The husband] now urges restraint and modesty going forward.

I return to that arresting bit of evidence. The materials filed by [the wife] on the motion include a copy of a letter written by [the husband] in late December 2008 to a third party identified only as “Marty”. The substance of the letter makes it evident that “Marty” is someone that [the husband] has done business with in the past – specifically referencing the purchase of some rather high-end audio-visual equipment. The following is excerpted from the letter:

Dear Marty,

I have been dealing with you for a number of years now. My first purchases were slightly above entry-level pieces. At that time, you had sold me Martin Logan Speakers, Clasee Processors, and the Single Chip Runco Projector. Although I was very happy with my initial system, I have since become obsessed with having the very best possible audio/video gear money can buy.

Under your recommendation, I purchased the following: [list of equipment omitted]

You would expect that at over $250,000 you would have not only the very best quality sound and picture, but also a system that is bullet proof in terms of its reliability. And this is where you come up short…

As you are aware I entertain regularly with some of the wealthiest and most influential people in the City of Toronto in my Theatre Room. I use my impressive room and system to watch sporting events, concerts and movies and listen to music. You can imagine my embarrassment when half way through a concert or movie I get a crackling sound!

There is a certain voyeuristic thrill associated with reading a letter such as the one written by [the husband] to Marty. It offers a glimpse into a world almost all Canadians are entirely unfamiliar with. A world where private theatre rooms are powered by audio-visual systems worth more than a quarter of a million dollars. Undoubtedly there is a certain element of braggadocio to the letter. Nevertheless, it informs the matter now before the Court for a number of reasons, including:

(i) It demonstrates that the [husband and wife] lived in rather rarefied circumstances, at least at the end of 2008;

(ii) It further demonstrates that [the husband] considered himself, at least at the end of 2008, to be a wealthy man, who moved in circles of money and influence; and,

(iii) It undermines the credibility of [the husband’s] position that it is his wife who has had an insatiable and unsustainable appetite for spending. He deposed that her “rampant spending was a significant source of friction between us”. [The wife’s] spending habits may very well have been profligate. But, clearly, if she had a penchant for extravagant spending, she was not alone.

In the end, the court for the most part preferred the wife’s position, and granted her child and spousal support totaling $20,000 per month on an interim basis, even though the court expressly recognized that the husband would need to encroach on his business capital in order to meet this level of monthly support.

I suppose the lesson to be learned from this, is that Family courts will take a good, hard, intense and illuminating look at the surrounding circumstances of couple’s life, and may draw inferences from even correspondence directed at third parties.

This is a good thing to keep in mind when framing your position in court on spousal and child support issues.

For the full text of the decisions, see:

Colivas v. Colivas, 2013 ONSC 168 (CanLII)

Colivas v. Colivas, 2016 ONSC 715 (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.

If You Decide to Appeal, Can You Stop Paying Support?

cheque

If You Decide to Appeal, Can You Stop Paying Support?

If you go through the Family Court system and get a ruling from a judge that requires you to pay spousal support, and then you decide to appeal, does that mean you can unilaterally stop paying that court-ordered support until the appeal is heard?

The short answer is: No. (At least not without a court’s permission).

This was illustrated recently in a case heard by the Ontario Court of Appeal. The parties had already had several prior hearings, at least one of which ordered the husband to pay the wife spousal support in specified amounts. The husband did not make the payments as ordered, and in fact he was in arrears for almost $250,000. He had also been ordered previously to post a letter of credit for $585,000 as security for future spousal support that he would owe, and to designate his wife as the beneficiary under his life insurance policy for that same amount. The husband did comply with those previous orders, either.

To the contrary, the husband decided to bring an appeal. The wife countered with a motion to essentially block it, asking the court to refuse to entertain the husband’s appeal in light of his refusal to comply with earlier spousal support orders.

In hearing the wife’s motion, the Court pointed out that spousal support orders are not automatically put on “pause” simply because the person ordered to pay decides to bring an appeal. (Rather, the Rules of Civil Procedure do allow for a person to bring a motion for a “stay pending appeal”, but it must be granted by a court; otherwise, the obligation to pay support is not automatically on-hold).

Moreover, the court can actually decide to refuse to hear the submissions of the person who is in default of his or her court-ordered obligations.

The court went on to clarify that there are certain other alternatives when faced with the situation where the party ordered to pay spousal or child support has not done so: The court can dismiss the appeal, or the court can adjourn the proceedings, pending compliance with the trial order. As the court explained:

In our view, where an appellant wishes to be relieved of his or her trial ordered obligations pending appeal, the proper approach is to bring a stay motion where the circumstances can be brought before the court. If that is not done, then although the court may still hear the appeal in circumstances the court feels require that approach, the court will normally not hear the appeal until the trial order has been complied with.

Applying those principles to the case at hand, the court concluded that: 1) the father’s support-payment obligations continued in full force pending any appeal he may bring; and 2) it would not hear the father’s appeal until he complied with those earlier support orders.

For the full text of the decision, see:

A.A. v. Z.G., 2016 ONCA 660 (CanLII)

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

Wednesday’s Video Clip: Top 4 Points About Enforcing Child and Spousal Support Payments

Wednesday’s Video Clip: Top 4 Points About Enforcing Child and Spousal Support Payments

In this video we review ways to enforce child and spousal support Orders in Ontario.

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are several points about the enforcement of such orders or agreements that are noteworthy, this video will review four points to consider.

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.

The Factors That Influence Lump-Sum Spousal Support Awards

spousal-support

The Factors That Influence Lump-Sum Spousal Support Awards

Between divorced and separated couples, a spousal support order is usually structured so that one spouse will pay the other on an ongoing basis, often monthly and for a term of many years (at least until there is a material change that dictates that the order should be changed). In other words, spousal support is paid out over time, with periodic payments made in specified amounts on a regular basis. The majority of spousal support orders take this form.

However, courts have other payments structure options available to them. Somewhat less common is an award calling for a single, lump-sum payment, which is specifically authorized under section 33(9) of the Ontario Family Law Act.

In an Ontario Court of Appeal decision called Davis v. Crawford, the factors and principles that favour a court making (or not making) such an award were considered. As part of the overarching concern over whether the paying spouse can make a lump-sum payment without undermining his or her self-sufficiency, the court must consider (among other things):

• Both parties’ current assets and means;

• The assets and means they are likely to have in the future;

• The paying spouse’s capacity to provide support.

In Davis v. Crawford the Appeal Court emphasized that a court must weigh the perceived advantages of making the lump sum award being considered in the particular case against any presenting disadvantages of making such an order.

These can include:

• Whether, if the lump-sum award is ordered, the recipient spouse is unlikely to receive any equalization payment or child support payments to which she is entitled.

• Whether there will be any resulting disparity in the former spouses’ income, if the recipient spouse will not receive his or her share of the equalization payment (that otherwise represents the apportionment of the couples’ Net Family Property).

• Whether there will be a resulting inequity because the paying spouse will possibly be discharged from bankruptcy (and thus released from his or her equalization obligation, which was a topic I have written about previously [RA add link to prior article on bankruptcy])

For the full text of the decision, see:

Davis v. Crawford, 2011 ONCA 294 (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