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Divorce Information Centre Update: Representing Yourself In An Ontario Family Law Matter

Divorce Information Centre Update: Representing Yourself In An Ontario Family Law Matter

Check out the information we have recently posted regarding self-representation in Ontario, here

The Divorce Centre includes an easy to navigate guide regarding family law issues, as well as frequently asked questions and informative videos. More information will be added regularly, so be sure to check back for new topics.

The Divorce Centre can be explored further, here.

Court Declares Excuses “Ludicrous” and “Preposterous”

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Court Declares Excuses “Ludicrous” and “Preposterous”

Family Court judges hear cases all day long, and it’s likely fair to say that they’ve “heard it all.”

More to the point, they’ve likely heard a wide array of what are (at best) improbable excuses from litigants, who are called to task for non-compliance with court orders, especially those relating to a failure to provide full and frank disclosure.

In a case called Q.X. v. J.R.L., the court dealt with the property and support disputes between a former couple who were born and raised in China, met online, and then married in Vegas a little over a year later when they learned the woman was pregnant. The marriage lasted 18 months.  The court was left to untangle a complex, often-contradictory narrative from the husband in particular, about his Canadian and foreign income, investments, family businesses, and other financial information that was relevant to determining the issues between the parties.  The court described some of his evidence this way:

[The husband] J.R.L. has provided no mortgage application for any of the properties he owns in British Columbia. He claims that he came to Canada when banks lent money fairly freely and it was not necessary for him to complete a mortgage application form. He has produced “loan” documents from his father, mother, and sister, but gave no evidence relating to the loan documents, and I question the validity of the documents. He provided some documents relating to his immigration to Canada, but they do not appear to be his application form, and of the documents he did disclose, it is not possible to tell if there was a declaration of income, because J.R.L. blacked out portions of the document.

J.R.L. has failed to disclose his President’s Choice Financial chequing account statements from December 2011 to April 2012. He has failed to disclose or produce any bank statements for his bank accounts in China. In particular, he has failed to disclose his Bank of China term deposit statements from April 2011 to April 2013; his Bank of China savings account statement from April 2011 to April 2013; and his China Merchant Bank statements. He makes the preposterous claim that the banks in China do not provide bank statements. He is not telling the truth because Q.X. provided her Bank of China bank statements, showing that banks in China are able to, and do provide bank statements.

Likewise, in a recent case called Farrukh v Farrukh Amin the court’s credibility assessment of the husband was short and to-the-point:  It gave no credence to his proffered excuses for failing to comply with previous court orders, specifically in connection with producing documents and paying Costs previously awarded to the wife.  The court started its brief ruling this way:

On the evidence before me it appears that the [husband] does not think court orders apply to him when it comes to the payment of costs and the production of documents.

First, the court took issue with the husband’s contention that he had indeed filed the financial documentation required by the Family Law Rules:  It noted that the materials were simply not in the court file as they otherwise would be.

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Next, it outright disbelieved him on the reason for his failure to pay Costs under a prior order:

To submit to the court that he did not know where to pay the costs is simply a ludicrous answer to the question of why he did not pay them.

The court noted that the husband’s lack of cooperation and excuses put the wife at a disadvantage, and precluded both early settlement and the court’s full determination of the issues between them.

And, to add to the husband’s legal woes, the court hit him for an additional $16,000 in costs and disbursements, for the latest hearing that his past non-cooperation and non-compliance made necessary.

For the full text of the decisions, see:

Q.X. v. J.R.L., 2015 

Farrukh v Farrukh Amin, 2018

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

Texas Wife ‘Blows Up’ Marriage Memorabilia to Celebrate Divorce Being Finalized 

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Texas Wife ‘Blows Up’ Marriage Memorabilia to Celebrate Divorce Being Finalized 

On the Saturday night of November 10th, Kimberly Santleben-Stiteler held a party consisting of about 40 guests in Medina County, Texas. This party was to celebrate the finalization of ending of her ‘miserable’ marriage of 14 years.

During the party, the wife compiled a garage full of items such as the wedding ring, photos during the marriage, and the wedding dress, which was then attached to 20 pounds of explosives. She then proceeded to shoot the garage with a rifle from 200 yards away, resulting in an explosion that could be seen from up to 15 miles away.

The Texan summarized the event as a “liberating and gave a feeling of closure”.

For more information on this story visit: https://www.star-telegram.com/news/state/texas/article221527670.html

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

 

 

Coffee With Lawyers: From NBA to Law School

Coffee With Lawyers: From NBA to Law School

Ever want to sit down and grab coffee with a lawyer? Here’s your chance! Get to know our Student at law Ajit Roopnarine.

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

Did Testator’s Chronic Alcoholism Affect His Ability to Make a Valid Will?

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Did Testator’s Chronic Alcoholism Affect His Ability to Make a Valid Will?

In a recent Ontario Court of Appeal decision involving a Wills and Estates matter, one of the main questions was whether the testator – a man named Jack – was so impacted by his chronic alcoholism and the after-effects of a heart attack that he did not have the legal capacity to validly make the Will that entirely excluded his wife Loretta.

In Dujardin v. Dujardin,  Jack and his brother Noel jointly owned and operated farm property that had been in their family since 1958.  They both executed mirror Wills stating that upon their death, they would leave their equal interests in the farm to each other.  Jack’s first Will of this nature, which he executed prior to his marriage to Loretta in 2000, excluded her from the Will completely. A second Will, which he made in 2009 after having a heart attack two years earlier, likewise excluded her in favour of his brother Noel.  (However, he did designate her as the sole beneficiary of a RRIF valued at $123,000 at the time of his death).

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Loretta challenged the validity of Jack’s Will, but her claims were dismissed at trial.   On appeal, she argued that the trial judge had been wrong to rule inadmissible the evidence of a doctor who had  concluded Jack lacked the capacity to make the will, due to his chronic alcoholism and heart attack-related cognitive impairment.

The Appeal Court was left to evaluate the premise for the doctor’s conclusions, as against the other established facts.  As the Court put it:

Jack had a difficult relationship with alcohol.  The evidence established that, during the day, he was a productive worker. However, when he finished his work in the late afternoon, Jack would go into the Town of Aylmer to have a couple drinks. When he returned home, he drank into the night, until he fell asleep. Noel testified that Jack purchased 40 ounces of liquor each day.

That said, the Court also noted evidence showing that Jack could function well enough notwithstanding his excessive drinking:

Despite his alcohol use, the evidence established that, around the time he executed his 2009 wills, Jack was able to function properly at work and in his business dealings. A parade of witnesses from the local farming community testified that, while they knew that Jack liked to drink, they noticed nothing wrong with his cognitive functioning.

Against this background, the Court addressed Loretta’s objections that the trial judge had erred in ruling the doctor’s evidence as to Jack’s testamentary capacity inadmissible.

On this point the Court noted doctor had never met Jack, but rather was relying only on his medical history and hospital records to conclude that he suffered from “Organic Brain Syndrome.”  This, the doctor concluded, had impaired Jack’s cognitive ability to comprehend and understand the contents of any legal document that he signed in 2009.  Also, based on Jack’s pattern of drinking, the doctor had surmised that he was either drinking or experiencing withdrawal when he attended his lawyer’s office to sign the Will.

Unfortunately for Loretta, the Court of Appeal found that these conclusions by the doctor were – at best – speculative.  For example, Jack’s heart attack had occurred almost two years before he signed the Will, and there was no convincing evidence that this event affected his cognitive ability.   Nor was there compelling proof that Jack suffered from “Organic Brain Syndrome” as speculated.   Overall, the trial judge had not been wrong to exclude the doctor’s evidence was inadmissible.

The Court also took a broader look at the Will’s legal validity under the law.   Once a Will is proven as having been “duly executed with the requisite formalities, and having been read over to or by a testator who appeared to understand it”, it will be generally presumed that the testator knew and approved of the contents, and that he had the necessary testamentary capacity.  The onus to prove these elements falls to the proponent of it – in this case, Jack’s brother Noel.

Although were some suspicious circumstances relating to Jack’s mental capacity at the time he signed his Will, Noel had addressed them to the court’s satisfaction by the evidence of the other witnesses who were present.

The Court dismissed Loretta’s appeal, but pointed out that she may be able to make a claim under Family Law legislation.

For the full text of the decision, see:

Dujardin v. Dujardin

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

Calculating Child Support: What About Those Self-Employment Expenses?

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Calculating Child Support: What About Those Self-Employment Expenses?

In a recent case called Sawma v. Zeidan, the court was tasked with calculating the child support amounts payable by the separated father to the mother for the child they had together. The essential issue was the father’s annual income for a 5-year period; those figures would be used to calculate his ongoing support obligation amounts as directed by the Child Support Guidelines.

To their credit, the former couple had largely agreed between themselves as to the correct amount for the father’s gross income figure for each of the five years in question. However, they remained at a crossroads over the proper amount of his deductible business-related expenses for each year. The father’s purported deductions under this category related to usual items such as his cell phone, internet, gas heating and bookkeeping expenses, but he also claimed hefty amounts as “mileage expenses” – in some years totalling the equivalent of between one-third to one-half of his gross income.

The mother questioned the father’s proof that these business expenses were valid, claiming they were either unbelievable or poorly-supported. She also pointed out that he had a pattern of hiding income.

In order to address the key question, the court drew from a 2017 Alberta Court of Appeal decision called Cunningham v. Seveny, that set out the guiding principles (which are of equal relevance to Ontario). Those principles are:

• Onus. When a self-employed parent argues that his or her gross income should be reduced by business expenses for purposes of calculating income for child support, the onus or burden of proving that the expenses are reasonable falls clearly on the parent claiming them.

• Evidence. A parent who claims a deduction for business-related expenses must present evidence to justify those expenses.

• Explanation. If the claimed expenses also resulted in a personal benefit to the parent claiming the deduction, then “an explanation is required for why those expense deductions (or a part of them) should not be attributed to the parent’s income for child support purposes.”

• CRA Not Deteminative. Even if expenses have been approved for income tax purposes by the Canada Revenue Agency, this does not mean that the test for deducting expenses from income for child support purposes has been met.

• Child’s Right. Child support is considered to be the right of the child. A parent’s legal obligation to pay child support that fairly reflects the parent’s income in accordance with the Child Support Guidelines is not to be curtailed or limited by income tax statutes that allow for business expense deductibility.
In this case, and with the exception of certain car-related expenses (for which the father filed six thick volumes of receipts) the court concluded that he had failed to prove any of the so-called business expenses were reasonable and properly deducted from his gross income for calculating child support.

The court said:
Despite the amount of paper that was filed and the work I accept must have been devoted to compiling the hundreds of receipts and adding up the totals, the [father] has not provided the evidence I would require to find that the receipts and totals represent expenses that were all actually incurred by the [father] or that they represent business expenses exclusively and not personal expenses.
For example, the father did indeed provide evidence that he used his car for business purposes, but not the extent to which it was used for that reason, rather than for personal use. He claimed aggressive amounts for car-related expenses, but did not prove to the court’s satisfaction which of them were business-related. Likewise, his proof about his cell phone, internet, office space, and gas heating charges was also deficient.

The court added:
In addition to finding that the [father’s] evidence in support of his claimed expenses is insufficient, I find that, overall, the [father’s] evidence lacks credibility. I find that he is not a party who can be given the benefit of any doubt. My conclusion in this regard is based on the steps the [father] took to conceal income from the [mother], which included preparing a letter the [father] informed the [mother] his employer had prepared and falsifying bank records. In both cases, the [father] initially denied but eventually admitted what he had done.

The court also noted the father received a mileage allowance from three different companies. He argued these should be excluded from income the same way that Canada Revenue Agency (CRA) permitted this on his tax return, but the court rejected this notion. The mileage allowance represented money that went into the father’s pocket, and therefore had to be taken into account in determining his income for child support purposes regardless of what the CRA did.

With that said, and having recognized the father received mileage allowances, the court conceded that permitting him to claim certain car-related business expenses was appropriate, such as certain amounts for gas and repairs.

For the full text of the decision, see:

Sawma v. Zeidan

Cunningham v. Seveny

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

Is a Child Conceived After a Parent’s Death Still Entitled to Inherit?

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Is a Child Conceived After a Parent’s Death Still Entitled to Inherit?

It’s a narrow legal issue, and one that likely does not come up often. But an amendment to the Ontario legislation governing who gets to inherit a deceased’s parent’s property makes it possible for children conceived after a parent’s death – through Assisted Reproductive Technology – to inherit.

The amendment has the cumbersome title of the All Families are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, and amends the provincial Succession Law Reform Act (SLRA) and some related legislation. Its main achievement is to amend the definitions of “child” and “issue” in the SLRA to expressly include a child and a descendant who is conceived and born after the death of a parent. The term “posthumously-conceived child” is used describe such offspring.

The changes, which came into force January 1, 2017, recognize the general inheritance rights of posthumously-conceived children, provided certain conditions are met. These include:

• Giving written notice to the Estate Registrar for Ontario. The spouse of the deceased person must give notice indicating that he or she may use the deceased’s “reproductive material” (meaning sperm or eggs or an embryo) to try to conceive a child.

• The child is actually born. Any posthumously-conceived child must be born no later than the third anniversary of the deceased’s death. (The court can extend this in some circumstances).

• Court declaration of parentage. The spouse must apply to the court for a declaration that the deceased person is considered to be the parent of the posthumously-conceived child. This involves the spouse proving that the deceased person consented in writing to be the parent of such a child prior to his or her death, and that the consent was not withdrawn.
The expanded definition of “child” and “issue” applies to the distribution of the deceased parent’s estate, whether or not that parent left a Will.

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

Court Rules Kids’ “Adaptability to Change” Is a Factor Letting Him Move with Mother to the U.S.

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Court Rules Kids’ “Adaptability to Change” Is a Factor Letting Him Move with Mother to the U.S.

In a recent Newfoundland decision, called Sexton v. Tipping, the court made what is arguably a sensible and realistic observation about children’s adaptability to change, especially at a young age, and how that can bolster a court’s decision-making on factors relating to custody and primary care.

In that case, the court wrote:

It is a reality of the times in which we live that many couples with children come together through partnership or marriage, separate or divorce after a period of time and then move on with their lives. … The crux of these scenarios is change – for the parents and for the children.

Change is a constant in all our lives. As a general principle, children are adaptable in their lives. They change communities. They change schools. They change friends. Many change families, not because of their actions but because of the actions of their parents. That has happened in this matter.

On the facts of that case, the court took comfort from that reality as part of its rationale for allowing a change to the custody arrangement. In light of the child’s best interests, he was placed in the joint custody of both parents, but would have primary residence with his mother, who was allowed to relocate to Arizona with the boy.

Arguably, for any child the move to an entirely new country is quite a drastic change. Yet the court seems to be saying that divorce, separation and changes to family dynamics are so commonplace in “the times in which we live” that the seriousness of its impact on children may have been diluted, especially for the younger ones.

Should the reality of widespread divorce and broken families in our society diminish court’s focus on the “best interests of the child,” which legislatively-mandated to be the paramount criterion in child custody and access matters?

What are your thoughts?

For the full text of the decision, see: Sexton v. Tipping

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