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Drunk Father’s Access Visits Limited to Mother’s Front Yard – Should He Get Another Chance?

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Drunk Father’s Access Visits Limited to Mother’s Front Yard – Should He Get Another Chance?

In a recent Ontario case called Allard v. Allard, the parents had been married for seven years and had two children together when they separated. The children went to live with the mother, and access by the father went smoothly until there was an incident the court summed up this way:

As a result of an incident on April 11, 2012, which the [father] was stopped by police with the children in the car and was found to have an alcohol reading in the “warning range” on the breathalyzer machine, access has been supervised, but not successfully, and now the [father] is only allowed to visit the children in the [mother’s] front yard – a very unsatisfactory arrangement.

The matter came before the court to determine custody and access. The mother wanted to be awarded primary custody, while the father wanted joint custody, even despite the incident.

The court found that the historically-poor relationship between the parents militated against any sort of joint custody arrangement; rather, it was in the children’s best interests to maintain the status quo, which meant that they should remain in the mother’s custody and to continue to live with her.

In terms of the father’s access, the mother asked that it continue to be supervised. The court considered this suggested solution to be “quite harsh”, in light of the fact that (prior to the breathalyzer incident), there had been three years of relatively successful access by the father.
Without further evidence, the court was not prepared to order that the father’s access be permanently supervised. As the court put it:

Clearly, he should not be allowed access if he is using intoxicants, but other than that, he should be allowed reasonable access on reasonable notice along the lines of the old access arrangements.

The court ordered the father to be allowed generous access, with supervision for a 3-month period, and after that time was up the access could return to an unsupervised arrangement on alternating weekends or as agreed by the parents.

For the full text of the decision, see:

Allard v. Allard (2014), 2014 ONSC 492 http://canlii.ca/t/g2s14

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.

4 Ways To Enforce Child and Spousal Support Orders in Ontario – video


 

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:

The Down-Side of Trying to Snitch on Your Ex

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The Down-Side of Trying to Snitch on Your Ex

In a recent case called Akwiwu v. Umeugo, the court began its judgment with the following:

This hearing is the latest in a long series of court hearings in this matter dating back to 2010. Better judges than I have already issued decisions they believed would put an end to this endless litigation. This decision is my attempt.

By prior order, the court had given the husband 90 days to come up with a $152,000 as an equalization payment; however the husband had been unable to come up with the money. Their former matrimonial home was currently up for sale, but the wife claimed that the husband had not acted in good faith: He had taken a long time to list it, and when he did he set it at a price was well above fair market value. She therefore asked for an order enforcing the equalization payment, or in the alternative, asked to have the matrimonial home (worth about $450,000) transferred to her name in satisfaction of her equalization entitlement.

On the flip-side, the husband acknowledged that his finances were in a precarious state, but pointed to the wife as shouldering some responsibility for it. Either in response to its questions or on her own initiative, she had told the Workplace Safety and Insurance Board (WSIB) that the husband’s WSIB claim was fraudulent. The husband’s benefits were suspended pending an investigation. Ultimately, the WSIB determined that the wife’s allegations were unreliable; nonetheless, at the time of the court hearing the husband’s benefits had not yet been reinstated. And given the husband’s lack of income, the bank had turned down the husband’s refinancing request, which would have allowed him to make the equalization payment ordered by the court.

In light of his precarious financial state, which had been caused in part by the wife’s own attempt to snitch on him or cause him to be investigated, the husband asked to have the equalization payment stayed (i.e. temporarily suspended).

The court granted the husband’s stay request, and gave him until a specified date to pay the $152,000, or else prove that he had sold the house and that the equalization payment was forthcoming out of the proceeds. As the court put it: “the slow pace of the delivery of the equalization payment is at least in part the fault of the [wife] herself”

For the full text of the decision, see:

Akwiwu v. Umeugo (2013), 2013 ONSC 7707  http://canlii.ca/t/g2dbn

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.

Another silly lawyer video or an effective way to communicate with potential clients? – video

 

Wednesday’s Video Clip: Another silly lawyer video or an effective way to communicate with potential clients?

The ABA reported recently on  Pittsburgh attorney Daniel Muessig:

“Need a criminal defense lawyer? Then you should hire a lawyer who thinks like a criminal, according to a YouTube video by Pittsburgh attorney Daniel Muessig.

The video features Muessig’s friends playing the part of criminals grateful for the lawyer’s services and portrays Muessig as a lawyer who truly understands his clients”

Tell us what do you think?  Another silly lawyer video or and effective way to communicate with potential clients?

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Aperture: The Finer Points of “Income”

A few weeks ago, we wrote about More on the Ins-and-Outs of “Income” and how Ontario family law treats some of the more specific sources of income in the hands of a paying spouse, for the narrow purpose of calculating child and spousal support.

Perhaps because RRSP contribution time just passed, and federal Income Tax time is looming on the horizon, we are prompted to revisit some of the finer points of that concept. Here are some additional principles for you to know:

1. Recurring capital gains and losses are usually treated as income for the purposes of calculating support; they can be offset by capital losses in some circumstances. The court will also assess them, using financial records, to confirm that the amounts are reasonable. Note however that capital gains and losses are not treated identically, and there are special rules as to how each are dealt with. One-time capital gains, on the other hand, are usually treated as one-off occurrences which are excluded from income. However, a court must be satisfied that the capital gain was indeed a one-time event, and will usually consider the paying spouse’s pattern of income for the previous three years.

2. Income fluctuations and non-recurring income is generally considered by a court on a situation-by-situation basis, since they represent an irregularity in the paying spouse’s income pattern. With this in mind, a court will try to determine to determine a more reasonable “baseline” or establish pattern of income that should be used in calculating the support owed, generally by using a simple averaging calculation applied over the previous three years.

Common examples of non-recurring income include:

• Redeeming an RRSP. In contrast to how this is treated for federal Income Tax purposes (where it is conclusively included as “income” for the tax year), a one-time redemption of an RRSP will generally not be considered part of the paying spouse’s income for child or spousal support purposes.

• Stock options. The regular exercise of stock options will be treated differently, but a one-time redemption will generally not be included as income for support purposes, but it depends on several factors.

• Personal injury or other damages awards. The outcome will depend on the nature of the damages award: If they arise from a personal injury action and are intended to compensate for pain and suffering, then they are generally excluded; if they are paid to compensate for loss of income, then they are usually included in income for support purposes.

Have questions about what constitutes “income” for support purposes? Feel free to contact us for fact-specific advice that is tailored to your situation.

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.

More on the Ins-and-Outs of “Income”

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More on the Ins-and-Outs of “Income”

I have written previously, What Counts as “Income” for Child Support? – Top 5 Concepts , about how “income” is an important factor in determining whether and how much child support a court will order one parent to pay to the other. For these purposes, the basic rule is that “income” is simply the amount reported to the Canada Revenue Agency (CRA) for the purposes of determining the annual federal income tax owed.

However – as we have come to expect with family law – some circumstances call for exceptions or differential treatment, designed to allow courts fairly address the special-case scenarios that can arise. Most often, these flow from the unique circumstances of the paying parent’s employment arrangement, or else from special financial circumstances or events that arise from his or her particular employment scenario. For example: Self-employment income is generally the amount that a person reports to CRA as income. However, the court will look at the reasonableness of the reported amount, usually by reviewing the individual’s records and – where there is a corporation involved – by reviewing the financial statements for the previous three years. This review will involve scrutiny of all aspects of the business: the expenses paid, as well as the payment made to employees, consultants and independent contractors.

Partnership income is another type of income that involves specific treatment. A parent who is self-employed but in a partnership – and who is taking a “draw” as partnership salary – will also have to satisfy a court that the money drawn out is reasonable in all the circumstances. If it is not, then a court may impute income to the parent; as before, this usually follows upon the court taking an income “snapshot” from the past three years in order to arrive at a fair figure.

Bonuses and overtime are also subject to a court’s scrutiny; the analysis begins by applying the general rule that such payments received by a parent from his or her employer will be included as income. However, adjustments can be made for exceptional years – for example where there was an unusually high bonus in a single year. Once again, the goal to for the court to make a fair assessment of the paying parent’s overall income despite any uncommon fluctuations.

Severance packages and termination pay are generally included as income as well, but there can be exceptions – not to mention differing treatment in terms of how the received payments are to be distributed across a multi-year period where the severance/termination is designed to serve as replacement income for a longer time-span. Once again, courts will often treat these scenarios on a case-by-case basis.

Do you have questions about whether an unusual or one-time influx of money constitutes “income” for child support purposes? We can help address your concerns.

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 3 things you should know about passports for children – video

 

 

Wednesday’s Video Clip: Top 3 things you should know about passports for children

Passport Canada has a number of rules pertaining to passports, which included specific provisions applicable to children anyone aged 3 to 16 and infants anyone under the age of 3. Specifically:

• All Canadians entering the U.S. by air — including children whether accompanied by a parent or not — must have a valid Canadian passport.

• As with passports for adults, any child or infant who is a Canadian citizen is eligible to apply; once issued, the passport is good for five years for children, and three years for infants.

• Children need their own passports to travel abroad (i.e. non-U.S. destinations), even if accompanied by a parent.

• Children who are not travelling with both parents should carry a “Letter of Consent” which states that both parents agree to the child travelling. (Although this is not a strict legal requirement, it serves to facilitate a child’s entry into another country).

Is a “Parenting Coordinator” Right for You?

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Is a “Parenting Coordinator” Right for You?

In Ontario family law, “Parenting Coordinators” are an increasingly-popular concept; a quick search for that term on CanLII, the Canadian Legal Information Institute’s website containing court judgments from across Canada, shows almost 150 Ontario instances in which a judge has referenced that term, almost all within the past 5 years.

So what are Parenting Coordinators? And what do they do?

Generally consisting of individuals trained as social workers, psychologists and sometimes lawyers, Parenting Coordinators are appointed to help separated parents resolve any disagreements they have over the parenting of any children they share. Their mandate embraces a broad range of topics, but is relegated to the more minor issues that may crop up between disputing parents, such issues around: established parenting schedules (such as drop-off times, parenting and access time, and vacations); decisions relating to health care (including medical, dental, and therapy or counselling); and educational decisions (such as choice of school, tutoring, summer school, enrichment and extra-curricular activities, and religious instruction). Perhaps most importantly, a Parenting Coordinator can assist couples to communicate better with each other and with the children, by essentially serving as arbitrators.

Parenting Coordinators are appointed under a Court Order, or else by way of a Parenting Plan, Separation Agreement, or Arbitration Award. Their role is to help with the implementation of existing orders and agreements – not to help create them. They employ an arsenal of tools to help parents resolve their disagreements, including education, coaching, and mediation. If these problem-solving methods fail, then a Parenting Coordinator has the authority to act as an arbitrator.

In Ontario, a judge is not authorized to order parents to use a Parenting Coordinator; rather, both parents must agree and give their consent. But once that consent is in place, a court may order one or both parents to execute paperwork or otherwise comply with the underlying contract that gives the Parenting Coordinator his or her authority and mandate to help resolve their disputes.

Do you have questions about Parenting Coordinators, and whether they might be right for your situation? We can help.

At Russell Alexander, Family Lawyers our focus is exclusively mily 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.

What’s the Role of Hindsight Evidence in Dividing Family Property?

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What’s the Role of Hindsight Evidence in Dividing Family Property?

Can a court use after-the-fact evidence in order to adjust, in hindsight, a spouse’s separation-date debts?

That was the question in a recent case called Jackson v. Jackson, where the Ontario court specifically considered the role of “hindsight evidence” in a case where, at the point of separation, the wife was in debt by over $110,000. About two years later, she made a consumer proposal to her creditors, which reduced her debt to $27,000 and obliged her to pay that amount off over a 60-month period at $450 per month with no further interest or penalties accruing.

Despite this post-separation debt re-structuring, the wife claimed that the full $110,000 that she owed on the separation date should nonetheless be included in her Net Family Property calculation. The husband, in contrast, claimed that in hindsight only the reduced amount of $27,000 should be included.

The court considered the role of hindsight evidence in these types of scenarios. It concluded that, generally speaking, a court should not take into account and assign value to property based upon events that occur after the valuation date (which in this case, was the separation date). More to the point, hindsight evidence could not be used to determine the wife’s actual valuation-date value of her debts and assets retrospectively; instead, those calculations should be performed using only the information available as of the valuation date.

(However, the court noted that there was an important exception: in narrow circumstances, hindsight evidence could be used to confirm predictions and assumptions that were previously made on the valuation date. However, there were no such predictions at play here).

Applying these principle to the facts, on the separation date the wife’s actual debts to secured and unsecured creditors was over $110,000; at that time it was not foreseeable that two years she would enter into a consumer proposal that would reduce her debt so substantially. Forcing her to use the reduced deduction at this point would therefore be improper, since it would make use of hindsight evidence in a legally-unjustified way.
The husband’s argument was rejected and the wife was accordingly allowed the full $110,000 deduction in her Net Family property calculations.

For the full text of the decision, see:

Jackson v. Jackson, 2013 ONSC 7884 (CanLII)   http://canlii.ca/t/g2fst

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.