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When the Litigation Lasts Longer than the Marriage Did

Litigation Papers

When the Litigation Lasts Longer than the Marriage Did

A frequent complaint about family litigation in particular is that it’s a costly and inordinately long process, with cases tied up in the family courts for years.

It’s actually surprisingly common for the duration of the litigation between a former couple to far exceed the length of the marriage or relationship itself!

In Geremia v. Harb, Justice Quinn of the Ontario Superior Court commented on this very point:

The parties have a short marital history: they were married in 1999, had a child in 2000, separated in 2001 and were divorced in 2002. Since then, the litigation has been unrelenting. The parties have logged more hours in the court house than many part-time court employees. The continuing record consists of 10 volumes. Theirs is a blueprint for how not to handle a separation.

At the point when Justice Quinn made these observations it was already 5 years after the former couple’s divorce, and the litigation continued beyond that for at least another year.

But even in somewhat longer marriages, the litigation can still quickly outstrip the duration of the union itself.

In a case called Anderson v. McWatt, the couple had been married for 11 years, but had been living together for several years before that. But by the time of their 2015 hearing before the Ontario Court of Appeal, they had been embroiled in 15 years’ worth of what the court called “high conflict” litigation over the retroactive child support for their now-grown children, and over a business they had initially started and run together.

These are just two of many, many examples. Does it still count as a “relationship” when a couple sees each other only in court?

For the full text of these decisions, see:

Geremia v. Harb, 2006 CanLII 38350 (ON SC)

Anderson v. McWatt, 2015 CarswellOnt 14225, 258 A.C.W.S. (3d) 7

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

Ten Years Later, Court Overturns Agreement Due to Husband’s Non-Disclosure

Hiding Money

Ten Years Later, Court Overturns Agreement Due to Husband’s Non-Disclosure

Although the recent Ontario Court of Appeal decision in Tadayon v. Mohtashami is not all that exceptional, it serves as an excellent illustration about how even many years later, one spouse’s past misdeeds can still come back to haunt him or her, in the context of the obligation to provide full disclosure in family law litigation.

The parents of three children had separated in 1999. They entered into a separation agreement as part of their divorce in 2005.

At that time, the husband had reported that he anticipated earning $80,000 that year, and the agreement was reached with that figure in mind. Its terms required the husband to pay relatively modest amount for combined spousal and child support, and allocated him certain levels of financial responsibility for the purchase of a home for the wife and children. All of these commitments and obligations were made on the strength of the husband’s reported income of $80,000 for 2005.

In reality, his income for the prior year was already much higher than that (at $147,000), and it turned out that for 2005 he actually earned an income of $344,000, comprised of income from his own general contracting company, together with undisclosed amounts he also earned from a home building venture. All of this information was kept from the wife at the time, and none of it was taken into account when the 2005 agreement was reached between them.

Fast-forward 10 years, when the wife discovered that the husband had concealed these income amounts from her. She applied to the court to have the 2005 agreement set aside, and to have both child and spousal supports for several sequential years recalculated with the correct figures in mind.

That application was allowed by the lower court, and the husband’s subsequent appeal was dismissed. Even viewed a full decade later, both courts confirmed that the husband’s then-failure to disclose these significant income amounts undermined the validity of the 2005 agreement. Had the wife known the correct financial information, she would never have signed it.

(Moreover, the court pointed out that the husband could not claim that he would be prejudiced by the wife’s late-breaking objection to the non-disclosure; they had jointly retained an expert income valuator, so it could have come as no surprise to him that the accuracy of his figures would soon become an issue).

The bottom line was that the husband had an obligation to make full and proper financial disclosure in 2005 when the agreement with the wife was made in the first place; the agreement was accordingly unconscionable and even despite the passage of time the court was justified in overturning it now.

For the full text of the decision, see:

Tadayon v. Mohtashami, 2015 ONCA 777

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: 10 Ways to Get Information About Family Law

10 Ways to Get Information About Family Law

In this video we discuss how there are many professional people, organizations and other sources that can help you or provide information about family law issues:

1. An information centre specializing in family justice

2. A parent education course for separating parents

3. Duty counsel at a legal aid office

4. A community legal clinic

5. A university law school with a student-run legal information service

6. A law society or bar association referral service for a lawyer

7. A divorce support or self-help group

8. Relevant library books and videos

9. The yellow pages, white pages or blue pages in your telephone book have listings for many of these resources, and

10. A librarian at your public library may also be able to help you.

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

Can You Spot the Math Error? Court Ordered Wife to Use Husband’s Own Money to Pay Him Equalization Amount

Net Family Property

Can You Spot the Math Error? Court Ordered Wife to Use Husband’s Own Money to Pay Him Equalization Amount

A brief ruling by the Ontario Court of Appeal recently reveals an interesting – and easy-to-miss – error made by an earlier court in connection with how an equalization payment was to be paid and funded by one former spouse to another.

Upon separation, the couple had sold their home and the proceeds of almost $278,000 were being held in trust pending the division of their net family property by a trial judge.

In the course of that trial, the judge had determined that the wife owed the husband about $184,000 as an equalization payment, and – since the matrimonial home was solely in her name – directed that she pay him that amount from the net proceeds of the sale of the home. She was allowed to keep the balance of about $94,000 for herself.

But, on later appeal the husband pointed out a conceptual problem: The $277,000 in trust was supposed to be equally shared by him and the wife in the first place. To allow the wife to use any part of the jointly-owned proceeds to pay the husband his equalization payment would mean that he was essentially getting paid his portion from his own money.

The Ontario Court of Appeal agreed with the husband’s observation, and overturned that part of the trial judge’s ruling. It confirmed that even though the wife was the sole registered owner of the home on title, the couple had proceeded on the basis that they each had an equal entitlement to the sale proceeds. This meant that the wife had no right to use the husband’s share of the sale proceeds to cover any portion of the equalization payment that he was owed. Instead, she was allowed to use up to half of those sale proceeds to pay the husband what she owed him in equalization; anything above that amount was to come from her own pocket.

For the full text of the decision, see:

Dodman v. Preston, 2016 ONCA 59

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

What is “Contempt of Court” in Family Law? — Part II

dad

What is “Contempt of Court” in Family Law? — Part II

As we have reviewed previously, I set out the general legal principles behind the concept of “contempt of court” in family proceedings, which had been considered in great detail in the recent Ontario decision in Jackson v. Jackson.

The mother in that case had asked the court to declare the father in contempt, since she claimed he had breached the terms of prior temporary access orders and had thwarted her access in a long-standing campaign to gradually eliminate her from their two children’s lives.

After embarking on a detailed, sometimes historically-based consideration of the law and principles that underpin the contempt penalty in Canadian family proceedings, the court then turned to the more practical aspect: the specific, fact-driven legal tests that the mother had to meet in order to prevail in obtaining a contempt order against the father.

Specifically, the mother had to establish all of the following:

• That there was a valid, live court order that was to be enforced.

• That the father had actual knowledge of the order that the mother claims he breached.

• The order clearly and unequivocally states what should and should not be done.

• That, on the facts, the father disobeyed the order. (And there is no need to establish that he violated a specific term – it is enough for the mother to show that he disobeyed to the extent that it foiled the implementation of the court order).

• That the father disobeyed the order deliberately and willfully.

Moreover, the mother had to prove all these things, beyond a reasonable doubt.

Over the next 60 paragraphs of a very careful judgment, the court closely scrutinized the facts surrounding the various failed or unsatisfactory supervised visits, keeping in mind that the parents’ relationship had been turbulent and the separation was very acrimonious. (The mother had been criminally charged with assaulting one of the children, and which led to the supervised access order in the first place).

Overall, the court concluded that the father, while perhaps over-protective of the children and not sufficiently mindful of the mothers’ progress in addressing her parenting and emotional issues, was not in contempt within the meaning of the legal test. The necessary elements of the test were simply not made out.

For the full text of the decision, see:

Jackson v Jackson, 2016 ONSC 3466 (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

Enforcement of Child Support in Ontario – video

 

Wednesday’s Video Clip: Enforcement of Child Support in Ontario

In this legal video we review enforcement in Ontario is done through a provincial government office called the Family Responsibility Office (FRO). The court automatically files all support orders made after July 1, 1987 with the FRO. Separation agreements can also be filed there if they have been filed with the court and then mailed to the FRO.

The parent who is to pay support is told to make all support payments to the FRO. When the FRO receives a payment, it sends a cheque to the parent with custody, or deposits the money directly into that parent’s bank account. It only does this after it has received the money from the paying parent.

If a payment is missed, the FRO takes action to enforce the order or agreement. To do this, the FRO needs as much up-to-date information about the paying parent as possible. This includes his or her full name, address, social insurance number, place of employment or business, income, and any property he or she owns. The information about the paying parent goes on a Support Deduction Information Form which is available at the court. This form is given to the FRO along with the support order or agreement. It is important to update this form whenever the information changes.

The FRO uses different ways to get the payments that are owed. It can:

• get the payments directly from the parent who is supposed to pay support

• have the payments automatically deducted from the parent’s wages or other income (other income includes things like sales commissions, Employment Insurance, Workers’ Compensation, income tax refunds, severance pay, and pensions)

• register a charge (a lien) against the personal property or real estate of a parent who fails to pay the support that he or she owes

• garnish (take money from) the bank account of a parent who fails to pay support

• garnish up to 50% of a joint bank account that he or she has with someone else, or

• make an order against another person who is helping a parent hide or shelter income or assets that should go toward support

The FRO can put more pressure on parents who do not make their support payments by:

• suspending their driver’s licences

• reporting them to the credit bureau so that it will be difficult for them to get loans, or

• canceling their passports.

Once the order or agreement is filed with the FRO, then it is the FRO, not the other parent, that is responsible for any actions taken to enforce it.
Sometimes parents receiving support withdraw from the FRO because it is easier to receive payments directly from the other parent. But if problems arise later, and they want to re-file with the FRO, they might have to pay a fee to do this.

Parents who have an obligation to pay support should also know that the FRO cannot change the amount that the order or agreement says they have to pay. If they think that a change in their financial situation justifies a reduction in the amount of support they should pay, they must get a new agreement or go to court to get the support order changed.

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

Child Support in Ontario: Introduction to Child Custody – video

 

Wednesday’s Video Clip: Child Support in Ontario, Introduction to Child Custody

In Ontario, like other jurisdictions, both parents have a responsibility to financially support their children. For the spouse without custody, the amount of child support that must be paid is based on income and the number of children. In this short video clip, Shelley, a senior family law clerk at Russell Alexander Family Lawyers, talks about custody and answers questions many people have about child support.

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.

Wife “Doctors” E-mails – And Undermines Her Credibility with Court

email

Wife “Doctors” E-mails – And Undermines Her Credibility with Court

It’s safe to say that family court proceedings don’t necessarily bring out the best in people. The period leading up to an interim hearing or divorce trial usually features acrimony and ill-will, and this sometimes breeds a “win at all costs” mentality.

In an Ontario case called Jesse v. Jesse, the mother even went so far as to alter certain e-mails and submit them to the court as evidence, in an attempt to malign the father.

The had parents separated after almost 10 years of marriage and three children. The mother worked as a physiotherapist, while the father had a spotty work history involving numerous computer and technology-related ventures. Beyond that, the facts and issue were complicated: The parents were in dispute on a wide range of issues, including the usual ones such as custody, child support, and spousal support. But they were also at odds over matters such as the precise amount the father was earning, whether the children should go to private school, the costs of the children’s activities, and a host of other things, all of which had to be untangled and resolved by a court.

Moreover, neither of the parents had behaved particularly civilly in the days and months leading up to the trial itself. The court summarized the tenor of that proceeding this way:

Unfortunately, this long trial offered each of them a perfect forum to deliver a final salvo at the other, and to define, once and for all, the mistreatment each had suffered. They did not waste their opportunity.

To give a sense of the flavor of the disputes, and the detailed (and arguably trivial) nature of their quibbles with one another, the court recounted some of the incidents:

I am not going to spend time describing particulars of [the father’s] misbehavior before the separation, or his angry e-mailed messages afterward when [the mother] allowed a relative to take the boys to the barber and their heads were shaved. She admitted her mistake. Similarly, it is unnecessary to examine in detail [the father’s] angry e-mails and name calling when he was left with the children without explanation while [the mother] enjoyed her “hot yoga” class. He did apologize the next day for his intemperate outburst. … certainly [the mother] calling in the Children’s Aid Society to investigate [the father’s] having allowed [the son] (in the company of a bunch of the neighbor kids) to cross the creek and hike in the woods at the back of the ravine was “over the top.”

The court was equally frustrated with the parents’ testimony. Although it called the father “facile and glib” at times, it was especially critical on the mother, describing her this way:

[The mother] was an unusual and even frustrating witness. She was scattered and hard to understand. Sometimes witnesses become evasive and do not respond to questions put to them in cross-examination by opposing counsel who are, obviously, intent on casting doubt on their case, but [the mother] showed little inclination to answer even [her own lawyer’s] questions directly. She had made up her mind to tell a story which cast her in the best possible light and which would make her out to be a mother beyond reproach. After admonishing her on several occasions to simply answer her counsel’s questions, I had to give up. She was determined. …

But in the court’s view among the more troubling incidents was the mother’s attempt to doctor some of the e-mail evidence she tendered in court. In its indictment of this conduct, the court wrote:

I am much more reluctant to dismiss [the mother’s] actions with the e-mail she introduced in evidence …. She is a bright, very resourceful woman who was patently heavily invested in this proceeding and all the injustices to which she (and her father…) have been exposed by [the father]. That was her perception and that coloured her testimony, about which I became very cautious. I find that [the mother] took two previous e-mails from [the father] and forwarded them to herself after changing the words and paragraphs, adding in uncomplimentary phrases about herself to make it appear as if [the father] was abusing her. I find she attempted to mislead me with this doctored e-mail. Her credibility suffered considerably as a result.

Although the court went on to find that – to their credit – the parents did not disparage each other to the children nor expose them to any “obvious unpleasantness”, it was left to sort out the rights and responsibilities of two parents who were determined to make their separation and divorce difficult for everyone: each other, themselves, and the court itself.

For the full text of the decision, see:

Jesse v. Jesse, 2010 ONSC 861

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 www.RussellAlexander.com

Time To Nominate Our Favourite Law Blogs For the 2015 Clawbies — #clawbies2015: @DanPinnington, @ @PrecedentMag and @CanLIIConnects

CLawBies

Time To Nominate Our Favourite Law Blogs For the 2015 Clawbies — #clawbies2015: @DanPinnington, @PrecedentMag and @CanLIIConnects

Yes it’s the most wonderful time of year (no not Christmas) — time to nominate your favourite law blogs for the 2015 Clawbies.

Three Canadian blogs that we follow and have caught our attention this year and constitute our nominations for the 2015 Clawbies are:

1. Dan Pinnington’s “Avoid A Claim”

Well know for his “tech tips” author Dan helps lawyers avoid malpractice claims and helps LAWPRO reach out to its stakeholders. His vision, energy and ideas have made practicePRO an internationally recognized claims prevention initiative. His blog has great technology and practice tips that all practitioners will find immensely useful.

2. Precedent Magazine

Precedent is Toronto’s lifestyle magazine for lawyer that features a lively assortment of professional news, tips, fashion and opinions on hot topics.

3. CanLii Connects

Created to make it faster and easier for legal professionals and the public to access high-quality legal commentary on Canadian court decisions.

Good luck to everyone who is nominated and to our judges who will have a tough time deciding who are best of the best, cream of the crop, the top guns in legal blogging. With over 400 Canadian legal blogs on the internet it will not be easy finding Goose and Maverick.

Special Mentions:

Above The Law – US

Takes a behind-the-scenes look at the world of law. The site provides news and insights about the profession’s most colorful personalities and powerful institutions, as well as original commentary on breaking legal developments.

Divorce Discourse

Divorce Discourse is a three-time ABA Blawg 100 popular vote winner. Rosen has been there and done that and shares his experience with you

Jim Calloway’s Law Practice Tips

An Oklahoma-based weblog about law practice management, the Internet and technology as it applies both in law practice and in all of our lives.

Click here to learn more about the 2015 Clawbies.

Ashley Madison: Hackers Release More Data

amm

Ashley Madison: Hackers Release More Data

As many of you will know, in mid-July of this year the infidelity website AshleyMadison.com, which enables married people to find partners with whom to conduct secret affairs, was the target of hackers who released certain user information to the public.
Earlier this week, the culprits struck again, releasing a second larger “dump” of data that reveals not only information on the users’ identity, but other sensitive information as well.

The group taking credit is known as “Impact Team”; it had initially targeted Ashley Madison’s Toronto-based parent company, Avid Life Media, claiming that it had ripped off customers by charging them a $19 fee to delete their data permanently, but then not actually deleting it. Alleging that the false “full delete” service had netted the company $1.7 million in 2014, Impact Team then threatened to release more data if the entire site was not disabled permanently.

The most recent data exposure releases information on approximately 32 million Ashley Madison users – the vast majority of whom are male – and includes their names, usernames, addresses, phone numbers, and dates of birth. It also includes users’ own descriptions of themselves in profiles they would have set up during registration (e.g. “Let’s start as friends….”) as well as sensitive credit card information, login details and passwords.
Apparently, the latest release also reveals certain emails linked to the website’s founder and chief executive of the parent company, Noel Biderman.

Needless to say, from a public-interest standpoint, the data breach and its fallout has been particularly “sexy” fodder for discussion (pun intended); it has raised sort of legal issues and water-cooler chat relating data integrity, privacy, and criminality, not to mention the more obvious social issues relating to infidelity, ethics and morality.

But even leaving aside the more salacious aspects of the divulged information, at the very least it shows the widespread prevalence of actual or potential cheaters, and hints at the question of whether society’s appetite and tolerance for infidelity has changed. Indeed, using the latest release of Ashley Madison user data some socially-curious minds have even “run the numbers” to generate a worldwide map that illustrates the distribution of assumed cheaters across the globe.

Interesting stuff.

What are your thoughts?

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

To learn more, we have written several blogs on adultery and affairs, including:

Adultery and Affairs

Man Gives Woman $130K: Was it a Post-Infidelity Symbol of Commitment? Or Was He Buying an Interest in Her Home?

In a Failed Romance, Can You Sue for Negligence?

Can You Sue Your Ex’s Affair Partner for Damages?

Was Wife the “Target of a Campaign of Terror” at the Hands of Husband’s Mistress?

Gambling, Drinking and Affairs – Should Spouses Have to Account for their Misdeeds?

Top Five Points About Adultery That You Probably Didn’t Know