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Does Large Age Gap Between Spouses Dictate an Unequal NFP Division?

 unequal

Does Large Age Gap Between Spouses Dictate an Unequal NFP Division?

The old-fashioned term for it is a “May-December” marriage, where one spouse is considerably younger than the other. Think Ashton Kutcher and Demi Moore (and we all know how that worked out!).

In a recent case called Dnistrianskyj v. Savard, the much-younger wife raised the argument that she should be awarded an unequal division of Net Family Property (NFP) because she had married very young to an older man, and that unless there was an adjustment she would not get sufficient financial support from him now that he was on the brink of retirement.

The woman worked as a babysitter for the husband and his first wife from the time she was approximately 12 years old. The woman and the first wife became friends, and she would sometimes accompany then on vacations to help with the care of the three children.

When the husband was 36 and the woman was 17, the first wife died suddenly from a heart-related issue. Only a few months later, the husband initiated a sexual relationship with woman; because the husband was an RCMP office and he was concerned about being found cohabiting with a minor, they hid the relationship for a time, especially from the children and the first wife’s parents. Nonetheless, they eventually moved in together “officially”, and were married in 1989. They separated about 20 years later.

The court chronicled the wife’s complaints in the period leading up to separation this way:

During that time, the relationship between the parties was experiencing difficulty. [The wife] indicated that there was a sense that [the husband] saw her role within the marriage as a “maid with benefits”, meaning that her job was to do the childcare, cooking and housekeeping, as well as to satisfy [the husband] in the bedroom. He insisted that she not be involved in family finances or in decisions regarding “his” family, notwithstanding that they were married and she was the primary caregiver for [the three children]. [The wife] said that she was young compared to him and vulnerable, as she was not working and was estranged from her family. If she argued with his authority, he would threaten divorce and, at times, would pack her suitcase and take her to a hotel. After staying a night she would need to beg him to be allowed to come back. He would, at times, take her car keys away from her. Letters written by [the husband] supported her view of the relationship during this time.

Against this background, and in addition to numerous other legal issues, the court considered the valuation of the wife’s share in connection with their respective NFP amounts. It noted that the court had the discretion to award a spouse an amount that is greater or less than the NFP in cases where to do otherwise would be “unconscionable”, having regard to various specific factors.

Noting that the test of unconscionability is exceptionally high, and that it covers scenarios that “shock the conscience of the court”, the court evaluated the wife’s claim that her overall circumstances were unfair considering her contributions to the husband’s family, the age difference, the need to be re-educated after separation, and especially the period of cohabitation before marriage when she was only 17 years old. She claimed that these considerations were not adequately addressed by whatever spousal support she might receive in the divorce settlement.

In response to this, the court said:

However, in her evidence [the wife] did not present herself as someone who was weak or oppressed, or wronged by what turned out to be her life. Without a doubt she was young and vulnerable when she started her relationship with [the husband]. But she was also headstrong and determined. Her parents tried to alter the path she was on, with no success. In her evidence, [the wife] said that she recognized her own responsibility in choosing her circumstances, and that she made those decisions as she loved [the husband] and she loved his children. With the hindsight of a 44 year old adult, she said that she did not regret much. She certainly grew and matured with time, dealing with some very difficult issues within the family with dignity and composure.

As a result, the court found that the requisite level of “unconscionabilty” was not met in this case, to the extent that an unequal division of NFP should be ordered. The court concluded:

[The woman] had a general sense of the unfairness of having married very young to an older man who was now seeking to withdraw from the workforce when she would benefit from his financial support. I accept that. However, I am unable to find that this rises to the level of unconscionability under [the Family Law Act] such that it shocks my conscience. I also find that the relief under [the Act] must be tied to the acquisition, disposition, preservation, maintenance or improvement of property, and that has not been made out in this case.

For the full text of the decision, see:

Dnistrianskyj v. Savard, 2014 ONSC 2152, 2014 CarswellOnt 4242

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

Case Update: Family Island Dispute Goes to Appeal

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Case Update: Family Island Dispute Goes to Appeal

A few years ago I wrote about a case called Clarke v. Johnson which involved a dispute over a family-owned island on which a camp had been built.
Martha, the matriarch of the family was one-third owner (the other two thirds were owned by her deceased husband’s siblings) and the question was whether Martha’s son-in-law Donald should be allowed to use the camp after his 1991 separation from Martha’s daughter Victoria. In happier times and with Martha’s permission, Victoria and Donald had built a $15,000 pre-fabricated cottage on Martha’s portion of the property. Post-separation, Victoria wanted nothing to do with the camp at all and never visited it even once, whereas Donald continued to use the camp with their children over the years.

One of those children was Wesley, who had been living out west for a decade. When he returned he indicated that he wanted to use the camp, but he and his father Donald got into various conflicts and Donald eventually barred Wesley from using the camp entirely.

Martha then stepped in to threaten Donald with a trespass notice, pointing out that she was the rightful owner of the property. If Donald was unwilling to share it with Wesley and his other children, then his use would be circumscribed.

Donald took the matter to court, claiming an equitable right to occupy the property and camp. Initially, the matter was heard by an Ontario trial court. The appeal of that matter was heard recently, and the original decision was confirmed. The appeal judgment began this way:

A cottage, a camp, a cabin, a country house, a ranch: these are the different names given to second homes across Canada. No matter the description, Canadians’ affinity for their recreational properties is deep, abiding and renowned. This appeal involves such a recreational property, a camp located on Lake Panage near the city of Sudbury in Northern Ontario. …

It was indisputable that Donald had maintained and improved the camp for more than 20 years, paying the bills and taxes, and making improvement such as building a new dock, a new shed, a gazebo, and also reconstructing the sauna, roof and porch; his case for unjust enrichment was made out. In endorsing the trial judge’s decision to craft a minimally-intrusive solution (which used the legal concept of constructive trust and essentially gave Donald a personal, exclusive lifelong license to use the land), the Appeal Court pointed out that it would have been simply inadequate to award him monetary damages in light of the significant emotional attachment to the property. This was a delicate family situation calling for a nuanced solution, and the trial judge’s approach had been reasonable.

For the full text of the decisions, see:

Clarke v. Johnson (2012), 2012 ONSC 4320, 2012

Clarke v. Johnson (2014), 2014 ONCA 237

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.

How Long Does Child Support Continue in Ontario? – video

 

Wednesday’s Video Clip: How Long Does Child Support Continue in Ontario?

In Ontario, child support must be paid as long as the child remains a dependent.

In this video we discuss how long child support continues and when a court, or parents, should consider stopping or terminating child support payments.

Appeal Court Settles Issue of Time Limits for Constructive Trust Claims Against Land

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Appeal Court Settles Issue of Time Limits for Constructive Trust Claims Against Land

The legal concepts of “constructive trust” and “unjust enrichment” are usually engaged by family courts in order to do justice between separating couples, most often when the separating partners are common-law spouses. In particular – and since there was no traditional marriage to trigger the application of the matrimonial home provisions in the Family Law Act – the constructive trust / unjust enrichment concepts are often applied to determine the rights relating to the home that the separating couple shared. In the typical scenario, legal title to the home is in the name of one of the spouses, but the other one has contributed toward the mortgage payments, or has provided household expenses and child care during the relationship. In the right circumstances, courts will apply the constructive trust / unjust enrichment concept to remedy the injustice of failing to acknowledge and account for the non-titled spouse’s contribution upon separation.

However, in Ontario one of the related and lingering legal questions has been whether there are any time-limits for a non-titled spouse to bring such a constructive trust claim in connection with land. Recently, the question was answered definitively by the Ontario Court of Appeal, in its follow-up to an earlier trial decision in a case called McConnell v. Huxtable, 2014 ONCA 86 (CanLII).

Prior to this decision, there had been two feasible options as to the proper deadline for bringing a constructive trust claim; either it was: 1) a 10-year deadline under the Real Property Limitations Act, or else 2) no deadline at all, because (as the trial court had found) there was a “gap” in the legislation that covered these kinds of constructive trust claims.

In its legally-complex reasons, the Court of Appeal agreed with the trial decision in finding that, for unjust enrichment or constructive claims relating to property (which is the typical scenario involving separating common-law spouses), the deadline (or “limitation period”) for the non-titled spouse to bring his or her claim is 10 years. This covers not only claims where the non-titled person is asking for the court to declare that a remedial trust exists over the land, but also situations where he or she is claiming money. (It does not, however, apply to equitable claims against something other than land, e.g. an RRSP or a pension – in those kinds of situations, the limitation period is two years, not 10).

While perhaps esoteric, the Court of Appeal’s decision clears up a good deal of confusion amongst family lawyers (and by extension, their clients) as to the deadline for bringing their claims – but still underlines the point that delay in doing so should be avoided.

For the full text of the decision, see:

McConnell v. Huxtable, 2014 ONCA 86 (CanLII)  http://canlii.ca/t/g2wrf

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.

Husband Continues to Live in Home After Split – Should He Pay Occupation Rent to the Wife?

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Husband Continues to Live in Home After Split – Should He Pay Occupation Rent to the Wife?

The couple, who had married in 1973, separated almost 40 years later. During the marriage the husband had worked at a local mill and mine, while the wife had a traditional role and stayed home to raise their children.

They owned the matrimonial home jointly, and the husband continued to live in it after they split.

The wife applied to the court for an order that the matrimonial home should be listed for sale; she also asked the court to order the husband to pay her occupation rent, pending the eventual sale.

After considering the various factors, the court granted part of her request forcing the home to be listed – even though the home was located in a small mill town where the mill had closed, there was still a market for real estate in the area and the home was to be listed at a mutually-agreed price after consulting with a realtor.

However, the court declined to order the husband to pay occupation rent. Pointing out that its ability to make such an order was fully at its discretion, the court still had to balance the various relevant factors to determine whether ordering occupation rent was reasonable in all the circumstances. It concluded that at this stage, such an order would be premature.

This was because the current arrangement allowed the husband to live in the house inexpensively, so it did not make sense to force him out of the home in the winter when there was no one available to look after it. Instead, the court ordered that the house did not have to be put on the market until April, and the proceeds could be put into trust until the court made another order.

For the full text of the decision, see:

Charron v. Charron (2014), 2014 ONSC 496, 2014 CarswellOnt 694, J. deP. Wright J. (Ont. S.C.J.) [Ontario]  http://canlii.ca/t/g2s0h

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.

Top 5 questions about spousal support in Ontario, Canada – Video


 

Wednesday 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.

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.

Can a child support agreement or order be changed? – video

 

 

Wednesday’s Video Clip: Can a child support agreement or order be changed?

If both parents agree, they can simply amend the terms of their existing agreement or they can make a new agreement. The amendment or the new agreement must be in writing, dated, signed by both parents, and each parent must have their signature witnessed.

In order to have the terms of the new agreement enforced by the Family Responsibility Office, The new agreement should be filed with the court where the original one was filed and then mailed to the FRO. If it is not filed with the court, the FRO cannot enforce the new support amount.

MIP — New process mandatory for divorcing spouses in Ontario, Video


 

Wednesday’s Video Clip: MIP — New process mandatory for divorcing spouses in Ontario

In this video we look at the new MIP program for the Ontario Family Court. Effective July 18, 2011, in all contested family cases are subject to new requirements implemented by the Ontario Ministry of the Attorney General, obliging each spouse to attend a mandatory information program or session.

Husband Reneges on Post-Separation House Transfer – What Do Courts Do About Broken Promises?

taxiShould a Cab Driver Lose His Licence for Failing to Pay Support?

As many of you know, in Ontario the government’s Family Responsibility Office (FRO) is charged with the task of helping enforce spousal and child support orders. To do this, the FRO has been given an arsenal of enforcement mechanisms to be used against the parent in default of a support order – including garnishing wages or income tax refunds, having a lien placed on property, and suspending his or her passport.

But one of the more routine enforcement mechanisms is for the FRO to suspend the driver’s license of the defaulting payor until he or she has paid the support arrears or has satisfied other terms of the support order.

Certainly this adds a significant level of inconvenience to the payor’s life, and likely provides a very effective incentive for paying arrears and support. But what happens if that person relies on being able to drive, as a means of earning his or her livelihood?

This was precisely the quandary in the recent Ontario decision in Dumais v. Dumais. There, the father had been ordered to pay about $300 in monthly child support, based on his income. However, he never voluntarily paid that support and quickly fell into arrears which over time totalled about $40,000. The mother applied to the FRO for assistance to enforce the support order and collect the arrears.

The matter came before the court when the father asked to have the arrears rescinded, and to have his support reduced to zero. In this context, the court had to consider whether the FRO’s suspension of the father’s driver’s license was reasonable in the circumstances.

The court observed that if it allowed the license suspension to continue, then the father would lose his job as a taxi driver and have no source of income whatsoever. This, the court found, was counter-productive and moreover would prevent the father from driving to exercising access to his child (who was in the custody of the mother).

Instead, the court arrived at something of a compromise: Rather than allow the FRO to suspend the father’s license for arrears – which it said would be “catastrophic” – it essentially suspended the FRO’s suspension in connection with the arrears only. The father was not totally off the hook, however: Any going-forward support would still be subject to the FRO’s enforcement mechanisms. The husband’s support obligations were reduced slightly, to $267 per month, based on his most recent income levels.

Dumais v. Dumais, 2013 ONSC 5949  http://canlii.ca/t/g0q8x

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.

When do the child support guidelines apply? – video

 

 

Wednesday’s Video Clip: When do the child support guidelines apply?

In this video, we review when the child support guidelines apply.

If parents go to court to get a child support order, in almost all cases the court must use the Guidelines to set the amount.