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Wednesday’s Video Clip: Ontario Wills 101: Issues to Consider Before Meeting your Lawyer

Wednesday’s Video Clip: Ontario Wills 101: Issues to Consider Before Meeting your Lawyer

In Ontario, a Will is a written document that sets out the person’s wishes about how his or her estate should be taken care of and distributed after death. In this video, a senior law clerk with Russell Alexander Family Lawyers, describes what a will is, some of the early issues to consider for preparing a will, and what steps you should take once you have your will in place.

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

For Amateur Lawyers, Part 2: Equalizing a House that Cost More to Build than it’s Worth

For Amateur Lawyers, Part 2: Equalizing a House that Cost More to Build than it’s Worth

As I reported last week, the case of Strobele v. Strobele involved a couple who in the two years leading up to their final split had invested all their life savings (and more) to build their “dream home”. Unfortunately, it turned out that not only was the construction project the “death-knell” to their relationship, but the home also ended up being worth far less than it cost them to build/renovate.

At the end of the day, the home cost about $1.8 million to build, but ended up being worth $1.2 million, with title solely in the husband’s name. The wife had contributed $240,000 of her own money to the construction project over the years they were together.

So how does a Family Court split a home that’s worth less than what the spouses invested in it? The answer: With some complex calculations, and after looking at all the circumstances.

An already-tricky scenario was made somewhat more complicated by the fact that the husband wanted to buy the wife out, so that he could stay in the home. This meant that one of the many issues for the court was how much the husband should have to pay her.

The court first ruled out doing a straightforward Net Family Property calculation using the home’s current low market value. That would result in allowing the husband to stay in the home, obtain the benefit of the surroundings, and have the wife make further payments towards the home’s cost. This, the court stated, would be unfair.

Instead, the court had to look at the economic consequences of the relationship and its breakdown. The couple had moved into the home before they got married, and the wife spent $240,000 of her own money on construction projects both prior to and after marriage. They had enjoyed a relatively equal economic partnership throughout their relationship.

The fair approach was thus to calculate – and to divide equally – the overall losses that the couple sustained in building their dream home, and to give the wife a 50 percent equitable interest in the home – whatever that might turn out to be – by way of resulting trust.

Using an as-built value of $1.8 million, and a market value of $1.2 million, the court focused on “consumption value”, which would lead to a determination of what the parties’ loss on investment was. In these circumstances, the parties had each lost one-third of their overall investment in the home.

When that discount ratio was applied to the $240,000 that the woman put in over the course of their relationship, this meant she had lost one-third of that, too. In other words, rather than have the wife emerge with nothing from her $240,000 investment, the fair solution was to gross-down that figure by one-third, to represent her losses.

So after the normal equalization calculation the husband was at liberty to purchase the wife’s interest in the home for $160,000 and also personally assume all the debt associated with the house. Or, if that transaction did not take place and he chose not to buy her out, then the house could be sold and the loss that results could be divided equally between the parties through the usual equalization process.

Was this the outcome you would have predicted? What are your thoughts?
For the full text of the decision, see:

Strobele v. Strobele, [2005]

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: 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.

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