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Posts from the ‘Support’ Category

Court Finds Husband Just “Going Through the Motions” on His Job Search

Court Finds Husband Just “Going Through the Motions” on His Job Search

One of the basic principles underpinning Ontario family law, is that the parties must behave with good faith towards each other in when participating in the separation and divorce process. And courts are wary – and frequently critical – of spouses who do not behave this way.

This is illustrated in the decision in Cammaroto v. Cammaroto. There, the couple had married in 2000 after a 2-year long distance relationship, with the 48-year-old husband moving from New York to be with the wife in Ontario. He had expected to easily find work in the retail travel industry, but this never panned out, and he began to drink heavily. Meanwhile the wife, aged 44, was working 12-hour shifts in her job as a nurse.

By 2008, the relationship deteriorated to the point where the husband communicated with the wife mainly by giving her notes and list. Still, the couple continued to live together under the same roof for several more years.

As part of their divorce proceedings, the court had to decide whether the husband should be entitled to spousal support from the wife, who had been supporting him for the entirety of their marriage.

To make this determination, the court had to consider the couple’s overall relationship. In the husband’s favour was the fact that he had moved from New York and left behind a secure job. But by 2006, which was 6 years into the marriage, he had made virtually no genuine effort to find work and the wife had clearly run out of patience. The court concluded that the husband’s failure had been “a very significant cause of the marriage break-down”, and that his alcohol consumption also contributed to it.

The court itemized the husband’s so-called efforts to find work in this manner:

Exhibit 29 records [the husband’s] attempts to find employment. It illustrates a wide ranging attempt at looking into potential jobs, even low level employment such as flyer deliveries, gas bar employment and entry level sales positions. It records a range of dozens of small local employers as well as large chains such as Walmart, Staples, Rogers, Canadian Tie, Home Depot, the LCBO, several hotel chains, Zellers and Leons.

The most impressive aspect of [the husband’s] attempts to find employment are the personalized and well-written cover letters that he sent with resumes or job applications. Superficially, the documentation of [the husband’s] employment search over the years 2000 – 2006 is impressive. However, on closer examination it is apparent that [the husband] was “going through the motions”, documenting many contacts from ads for jobs that he must have known he could not do or would not accept even if he could get a job interview. Some of the content of Exhibit 29 is clearly an attempt to “pad” his efforts to find employment. For example, it is rather silly to include employment as a flight attendant, a short-order cook, a store manager, etcetera. The actual number of job interviews he got over the years was few.

In 2001, [the husband] applied for 17 jobs in total, never more than three in any given month. He agreed on cross-examination that it was not a “diligent” job search that year. In 2002, he made one job application and in 2003, 31. He admitted on cross-examination that many of the “applications” were for jobs he could not do anyway. …

It is also hard to escape the inference that Mr. Cammaroto deliberately sabotaged the only successes he had.

He obtained a job in the travel industry in 2003 but quit the job after taking the initiative with U.S. authorities to check if he could be “in trouble” as a U.S. citizen selling trips to Cuba. He blew the whistle on himself. Then, when told it was not a problem to work for a travel agency selling trips to Cuba so long as he didn’t do so personally, he quit the job anyway.

He was hired as a security guard in December 2005 or January 2006 but quit that job before his first shift to take another travel agency job that lasted only a few weeks.

In April 2006 he was hired at Stock Transportation to drive autistic children in a van but quit during the training session because the children were “wild and noisy” and he was afraid he would crash the vehicle.

There are other examples of how he thwarted actual employment opportunities himself or wasted his time on obviously fruitless pursuits. It is hard to know whether he was genuinely interested in working or just kidding himself. He turned looking for a job and the documentation of his efforts into a job itself. By 2006 he had given up any real effort. Perhaps even before that.

The court also noted that by 2010, when he and the wife were still living together, he was actively looking for other relationships on Match.com under what he called his “contingency plan”. It ultimately concluded that the husband’s lack of genuine job-hunting had been deliberate:

[The husband] admitted that as early as 2008 he was aware of the “rule of 65” in the spousal support advisory guidelines, referencing the principle that if a dependent spouse’s age plus years of marriage equals or exceeds 65 then recommended spousal support should be for an “indefinite” duration.

It is clear from all the evidence that [the husband] was determined to delay the inevitable separation as long as possible to maximize his entitlement to support and not because there was any realistic hope, even in his own mind, that a true marital relationship would ever resume.

Still, the court observed that at the time of the trial, the husband had been out of the workforce for 15 years, and had depression, anxiety, and some other mental health issues that clearly pre-dated the marriage. In these circumstances, he was entitled to some time-limited support from the wife, who had the ability to pay from her $90,000 income as a nurse.

For the full text of the decision, see:

Cammaroto v. Cammaroto, 2015 ONSC 3968

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

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Wednesday’s Video Clip: 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

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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?

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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.