Skip to content

Learn more about Ontario Divorce.

Ontario Divorce
Ontario Divorce
Child Support
Child Support
Child Custody
Child Custody
Property Division
Property Division
Spousal Support
Spousal Support
Collaborative Divorce
Collaborative Divorce
Separation Agreements
Separation Agreements
Adultery
Adultery
Passports
Passports
Tax Implications of Divorce
Tax Implications of Divorce
Spousal Spying
Spousal Spying
Selling the Home
Selling the Home
Ontario Divorce Help FAQ
Ontario Divorce Help FAQ
Domestic Violence
Domestic Violence
Changing the Locks
Changing the Locks
Texting & Divorce
Texting & Divorce
YouTube
YouTube
Our Story
Our Story

Posts from the ‘Uncategorized’ Category

Gillian Hayes Joins the Team at Russell Alexander, Collaborative Family Lawyers!

Gillian Head Shot[1]

Gillian Hayes Joins the Team at Russell Alexander, Collaborative Family Lawyers!

Gillian assists clients in all areas of family law including separation, divorce, custody and access issues, child support, spousal support, separation agreements, and child protection matters. As a trained Collaborative Family Law lawyer, she encourages all of her clients to reach a settlement outside of court wherever possible, and works on behalf of her clients to achieve the outcome that best suits their needs and interests.

A passionate believer in the benefits of respectful, constructive communication, Gillian aims to apply the principles of Collaborative Family Law with all of her clients, no matter what family law issues they face. She listens carefully and understands her clients’ goals and interests, and is dedicated to achieving those goals by communicating effectively with the other party’s lawyer. She frequently attends four-way settlement meetings, working to resolve matters efficiently outside of court whenever possible. Where an out-of-court agreement is not possible, Gillian represents her clients in a respectful and family-focused way in court proceedings.

A graduate of the University of Western Ontario, Gillian has a B.A. with a major in Political Science and a minor in American Studies. She attended the University of Kent in the United Kingdom and graduated with a LLB (Hons.) in 2010. After returning home to Canada, Gillian earned her Canadian law accreditation and was called to the Ontario bar in September 2012. Prior to joining Russell Alexander, Gillian practiced exclusively in family law at a boutique family law firm in Toronto.

A dedicated volunteer, Gillian has been passionate about public legal education and access to justice issues since her law school days. While studying in the UK, she was actively involved in the award-winning and prestigious Kent Law Clinic and sat on the student-run board of the Clinic. As a practicing lawyer, Gillian continues her commitment to public legal education initiatives by sharing her insight and expertise with various community groups.

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, family lawyer Russell Alexander discusses how long child support continues and when a court, or parents, should consider stopping or terminating child support payments.

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.

Government of Canada Funds Projects Aimed at Helping Families Deal with Divorce or Separation

money

Government of Canada Hopes to Help Families Deal with Divorce or Separation

Earlier this month the Department of Justice Canada announced funding for projects that will help families deal with difficult issues related to divorce or separation with funding aimed at improving access to the family justice system and promoting compliance with family obligations related to divorce or separation.

The project is hoping to develop “tools such as a manual that lawyers, mediators, teachers and Le Petit Pont’s supervised access service providers can use to help families that are experiencing a lot of family conflict. These tools will enable users to provide more effective assistance to families in resolving issues related to separation and divorce and to take appropriate steps to intervene where, for example, family conflict appears to be escalating and could put family members at risk of violence.”

The Press Release included the following Quick Facts

Funding for these projects is being provided through the Supporting Families Fund, which is administered by the Department of Justice Canada under the Supporting Families Experiencing Separation and Divorce Initiative (SFI).

The main goals of the Supporting Families Initiative are to make it easier for families to gain access to the family justice system and to encourage compliance with financial support, custody and access obligations.

To help achieve the objectives of the Supporting Families Initiative, funding is provided to non-government organizations for public legal education and information projects, and for professional training projects

In addition, the Supporting Families Fund contributes $15.5 million annually to provincial and territorial governments for the development and delivery of family justice services such as mediation. These services help families resolve issues related to separation or divorce without the need for expensive, time-consuming and stressful litigation.

 To learn more about this and other Federal Government family Justice initiatives visit their main site.

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

 

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.

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 www.RussellAlexander.com.

He Said, She Said: Did Husband Ask Wife Not to Work During Marriage? Or Did Wife Refuse to Get a Job?

job

He Said, She Said: Did Husband Ask Wife Not to Work During Marriage? Or Did Wife Refuse to Get a Job?

This was an interim spousal support claim by the wife, in a situation where she and the husband had lived together common law for a period spanning somewhere between 11 and 13 years. Both were now 65 years old.

In the context of determining the proper amount, the wife claimed that she had never worked outside the home during the marriage because the husband had asked her not to. The husband’s version was different, with the court explaining it this way:

[The wife] therefore says that as a result of her absence from the workforce, at [the husband’s] request, she was economically disadvantaged by the division of labour during their relationship. [The husband] denies this and says she refused to seek employment during their relationship in spite of his encouragement that she do so.

The court evidently accepted the wife’s version, because it awarded her the full support she was asking for.

In doing so, it considered that she was currently earning about $16,000 per year, while the husband was self-employed as a commercial freight broker. His exact income, however, was the subject of some speculation because he had not made full financial disclosure, despite the wife’s request. Also, while for the year 2013 he reported an income of only $20,000, the court noted that he leased two luxury vehicles, and travelled frequently. His banking activity and payment history on almost $185,000 owing on eight different credit cards also belied the reported income amount. Finally, on an immigration application for his cousin, he also claimed to be earning $240,000, which the court found was closer to the real amount. After making various adjustments the court ultimately settled on an imputed income to the husband of almost $135,000.

In the end, the court found that the wife had been economically disadvantaged during the marriage, and after taking into account other factors, ordered the husband to pay her over $3,700 per month, plus $14,500 in retroactive support that he should have been paying all along.

Tarnowski v. Bober (2014), 2014 CarswellOnt 15416, 2014 ONSC 6271, Price J. (Ont. S.C.J.) [Ontario]

 

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.

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

Island_Cottage_A

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

stop4

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?

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.