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

transfer

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.

Lisa Wainman Joins Our Team

Lisa 

Lisa Wainman Joins Our Team

We are very pleased to have Lisa as a new member of our team.  She will be helping family clients out of our Lindsay, City of Kawartha Lakes.

Lisa Wainman is a Fleming Graduate from the Paralegal program; she is from the Kawartha Lakes Region and joining the Lindsay team a junior Law Clerk.

After graduation and Lisa has been gaining experience and knowledge on an almost daily basis, she enjoys writing legal argument as well as researching both case law and legislative authorities as part of the process.

In Lisa’s past work life she has years of customer service and administrative experience with extensive training in fitness and health.  Lisa will be one of your first points of contact and happy to assist you with any questions you may have.

Time To Nominate Your Favorite Law Blogs For the 2013 Clawbies, #clawbies2013

clawbies

Time To Nominate Your Favorite Law Blogs For the 2013 Clawbies

Yes it’s that favorite time of year (no not Christmas), time to nominate your favorite law blogs for the 2013 Clawbies.

The top three Canadian blogs that I follow and have caught my attention this year and constitute my nominations for the 2013 Clawbies are:

1. Marla B. Gilsig

Marla is a family law lawyer who writes about all aspects of family law and helps keeps her colleagues and public informed of the changes and trends in family law in British Columbia. Her blog helps people find their way out of the maze of family law and divorce and reminds her clients to consider alternate avenues of resolution. To learn more, visit Marla’ main site.

2. David J. Bilinsky

I had the pleasure of presenting with David at the ABA’s Tech Show in Chicago. I regularly follow David’s blog and he provides “thoughtful” analysis and content on a wide array of subject including technology, tips for busy lawyers and strategic planning. Click to learn more about David’s blog.

3. Michele R.J. Alliontte (last but certainly not least)

Michele’s social media savvy, small town niche, and community activities help elevate her blog to one of my top 3 picks for 2013. Michele provides practical advice and common sense tips for her clients. Her blog covers an array of subjects and serves as a good reminder and sample of how lawyers can effectively communicate with their clients by blogging.top gun

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.

Click here to learn more about the 2013 Clawbies.

Is There “Buyer’s Remorse” in Family Law?

buers remorse

Is There “Buyer’s Remorse” in Family Law?

We have all heard of – and most of us have experienced – that feeling known as “buyer’s remorse”. It’s that uneasy sense that a person feels, usually the day after making a long-considered and rationally-dubious purchase of some non-necessary item, that they paid too much. Or sometimes, that they should not have made the purchase at all. For example, it may involve the purchase of high-end racing bike – a splurge premised on an optimistic plan for future weekly rides in order to get fit. But after bringing the bike home, its steep price-tag may start to look exorbitant in the light of the next day or the next week, after the heady rush of excitement fades a little. (And often, these same high-priced items get relegated to the basement storage after a few months, where they sit as a painful reminder). Does this “buyer’s remorse” feeling happen in Family Law? Sure. It is common for the parties to a settlement negotiation to come away feeling vaguely dissatisfied, or outright taken advantage of, in the days or weeks following a settlement. . This is because an effective negotiation always involves some element of compromise and give-and-take: I’ve heard it said that a good settlement is not one where both sides are happy (which is likely impossible anyway), but one in which both sides are slightly unhappy. The act of settling a dispute feels very much like committing to buy something, at the price being offered. The problem is that the personal “value” of the settlement – in terms of what is being given and what is being gained, has a large subjective component to it. Where the “balance” falls is always a personal determination. So how to avoid “buyer’s remorse”? Make sure:

• You understand your rights. Hire a good lawyer to explain them to you.

• Your position is reasonable. Identify for yourself, privately with your lawyer in advance, those areas and topics that are non-negotiable and those in which you see some “give”.

• You are well-prepared. Improvident or uneasy settlements are most likely to occur when an issue or topic for negotiation takes you by surprise.

Bottom line: It is natural to have second thoughts. But these can be minimized by getting good information in advance of the settlement process, and by getting good legal advice that will help define your rights in the particular circumstances. By extension, this will influence whether you have reasonable expectations and a good feeling about the eventual outcome. 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’s Bad Behaviour Prompts Order to Pay $1 Million in Wife’s Legal Costs

costs

Husband’s Bad Behaviour Prompts Order to Pay $1 Million in Wife’s Legal Costs

Recently, I wrote about an Ontario Court of Appeal called Stevens v. Stevens that dealt with a number of issues, among them the question of whether the trial judge’s opinion of the husband had been tainted by the fact that the husband had had an extra-marital affair. Reference  “Did Fact of Extra-Marital Affair Taint Trial Judge Against Husband?”

One of the other interesting points that were addressed in the appeal was the question of whether the husband – who lost his appeal bid – should be saddled with paying almost $1 million in legal costs incurred by the wife. (And to his credit, the husband conceded that the wife was entitled to her costs; he just took issue with their amount.)

The case had involved numerous issues to be determined, including the validity of the marriage contract, the status of the matrimonial home and a cottage, and what amount of spousal support and arrears the husband owed. The wife had been successful on every one of them.

In deciding the costs question, the court began by pointing out that under the Family Law Rules, there is a presumption that as the successful party the wife was entitled to her costs in the case. There is also a rule that states that if a party has acted in bad faith, the court must decide costs on a “full recovery basis” and order him or her to pay those costs immediately.

The court reviewed the husband’s conduct throughout the course of the litigation, and decided he had acted unreasonably. Among other things the husband:

• Caused a one-year delay in having the matter brought to trial, despite repeated requests from the wife to set a trial date. (And the court noted this delay caused significant financial repercussions to the wife, since she had to draw on the capital in order to meet her living expenses and those of her children).

• Refused to admit to 30 specific facts up-front. In reality, these facts were uncontested and the wife was needlessly forced to incur the cost and time to marshal evidence to prove those facts at trial.

• Asked the court to enforce a marriage contract signed by the wife that he knew contained an important legal and factual mistake.

• Engaged in bad faith conduct which included not making full, complete and timely disclosure of certain information; other information validly requested by the wife was never provided at all.

• Was untruthful about what his income was.

• Came to court to ask to be relieved of child support payments that he was legally required to make.

• Wrote to the trial judge directly, to ask that his child support payments be reduced because he claimed he had no income. (And not only did the husband not copy the wife on this very ill-advised letter – which was returned by the court – but he was also represented by a lawyer at the time, making his direct request to the judge doubly inappropriate).

• Improperly used funds from a company in which he had shares to pay some of his legal fees.

In the course of categorizing the husband’s condemnable behaviour, the court wrote simply:

“It is hard to prioritize the bad conduct on the part of Joel during this whole process as there are so many egregious incidents of Joel taking advantage of Pamela.”

After applying the various established factors that must be considered in awarding costs (including the importance and complexity of the issues, and the unreasonableness of each spouse’s behavior in the case), and after considering additional factors including any possible financial hardship that might be endured by the husband, the court concluded that $950,000 in legal costs incurred by the wife should be paid by the him, plus pre-judgment interest of another $55,000. (This trial court ruling was later upheld on appeal).

For the full text of the decisions, see:

Stevens v. Stevens, 2013 ONCA 267 (CanLII) http://canlii.ca/t/fx7g0

Stevens v. Stevens, 2012 ONSC 6881 (CanLII) http://canlii.ca/t/fv2c9

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.