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British Court Approves Woman’s Potential Support Claim 20+ Years After Divorce; Should Canada Follow Suit?

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British Court Approves Woman’s Potential Support Claim 20+ Years After Divorce; Should Canada Follow Suit?

A recent court decision from Britain has given rise to considerable controversy all over the world: It centred around certain financial support claims of an ex-wife, who had been divorced from the ex-husband for more than 20 years.

The couple had met as students, married in 1981, and had a son together. However, after living what was described as a peripatetic “New Age” lifestyle, they separated after only two years, and formally divorced in 1992.

Despite the 30 years since their separation and 23 years since their divorce, in 2011 the ex-wife brought a claim for £1.9m as “financial remedy” under Britain’s equivalent of our own federal and provincial family legislation. The claim was likely prompted by the fact about 10 years after they split up, the ex-husband had become a multi-millionaire in the green energy sector: His company was now worth more than £57m, and as the sole shareholder his personal fortune was estimated to be about £107m.

Although initially a court rejected the ex-wife’s right to assert the claim (in what was essentially a motion to strike), a three-judge appeal panel allowed it to go forward to a full hearing, ruling that it was not an “abuse of process” and was “legally recognizable”. Although the appeal court did not opine on the merits at this stage, it did speculate that while £1.9m was likely “out of the question”, some drastically more modest award could be in the cards.

Whether and to what extent the ex-wife should receive a financial payout at this very late stage will be subject to numerous legal and factual considerations. The U.K. family law system is underpinned by similar values to those that direct the courts in Canada: Primary among these is a recognition that, in situations of divorce, the court must evaluate the contribution of each party to the welfare of the family. (In the ex-wife’s case, she had raised their son through “16 years of real hardship” while the ex-husband had provided only minimal and occasional support. The ex-wife stated that she had not previously pursued him for support because she assumed that he was still penniless, as they had been while married.) Also, as in Canada, the court will have to take into account a wide array of factors, including the short duration of the marriage, the wife’s long delay, and whether her current financial needs were brought about by her relationship with the husband.

Naturally, the case has garnered controversy in Britain because it raises the prospect that former spouses, particularly those who have amassed considerable wealth since a divorce, may need to fear that their ex-partners will pursue them for financial support many years or even decades later. Indeed from a bystander’s viewpoint – particularly those who have long-ago divorces lurking in their own relationship histories – the old adage, “let sleeping dogs lie” will probably come to mind. Furthermore, there are the “optics” to consider: The ex-wife’s sudden interest in pursuing a claim seems admittedly unseemly, given it was undoubtedly doubt prompted by the husband’s inordinate post-divorce success.

But not for these reasons alone, it is highly unlikely that such an excessively dilatory claim would succeed in Canada: As I have written before, in Canada the law governing family claims imposes time limits, or imposes restraints on how far back retroactive claims for child or spousal support can extend.

Still, it raises and interesting question: Should courts allow these “out-of-the-woodwork” potential claims to go forward, from ancient relationships that ended long, long ago? What are your thoughts?

For the full text of the decision, see:

Wyatt v. Vince, [2015] WLR 1228, [2015] 1 WLR 1228, [2015] UKSC 14

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

Common Questions About Child Support in Ontario – video

 

Wednesday’s Video Clip: Common Questions About Child Support in Ontario

In Ontario, both parents have a responsibility to financially support their children, both when they are living together and if they separate. This applies to all parents, regardless of whether they were married, living together or have never lived together.

In this video we review some common questions lawyers are asked about child support, including undue hardship, reducing support, information required, and when support ends.

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.

Father Pulls Disappearing Act for 13 Years, then Resurfaces to Claim Support “Refund”

refundFather Pulls Disappearing Act for 13 Years, then Resurfaces to Claim Support “Refund”

It’s not often that a court comes right out and calls the behaviour of a parent “shocking”, but in a recent Ontario case called George v. Gayed that was the court’s unequivocal response to the father’s audacious request to be reimbursed for the support he had already paid.

The couple had been married eight years and had two daughters, who were now 30 and 27 years old. The father was an engineer with a Ph.D. specializing in aerospace and marine technology and naval architecture, while the mother was trained as a medical doctor specializing in ophthalmology, though was working in a different field currently. They separated in 1988.

In 1995 the father was ordered by the court to pay $750 per month in support. Shortly afterwards he claimed he was unable to pay this amount because his income had been reduced; however, he failed to provide any proof. Over the following few years, he remained uncooperative with the mother’s attempts to get full financial disclosure from him, and in 1999 – after realizing that she would never get the needed information and that she could not afford the legal fees to pursue the full child support entitlement – she eventually moved forward for a divorce. This resulted in the father being ordered to pay $360 per month based on what the court speculated was his income at the time of $25,000.

However, a few months after that 1999 order, the father unilaterally cut off all contact with the children and remained out-of-touch for about 13 years. He did not contact them even on special occasions, such as their birthdays, Christmas or graduation. The mother was unable to locate him despite her diligent efforts, which included hiring a private investigator. This left her solely responsible for raising and supporting the children, and she racked up significant expenses of her own to put their daughters through post-secondary education. The daughters themselves contributed to a very reasonable extent, but they were left with large debts in the process.

In 2012, the father suddenly re-surfaced and claimed in a motion that he had actually overpaid support by $68,000. The mother, not surprisingly, brought a counter-motion asking that she finally be given full financial disclosure by the father, that she be awarded greater child support based on those accurate figures, and that she be awarded her full legal costs.

The court summed up its view of the father’s position this way:

I conclude that the [father’s] conduct in this case is shocking. He has abandoned his daughters and burdened the [mother] with the responsibility of providing for their support and university education. He now comes out of hiding and seeks a reimbursement of amounts he claims he has overpaid when he clearly should have paid more.

Rather than grant the father’s ill-conceived request, the court took the opportunity to make some serious inquiries into the father’s finances, and among other things ordered extensive disclosure of the father’s income and assets (and indeed forced him to sign authorizations for the release of third party information in the mother’s presence). As a result, it was revealed among other things that the father and a previously-undisclosed investment account that held almost $127,000, which account the court ordered frozen. He also had corporate income in the role of president, sole shareholder and officer/director of his consulting company, and was receiving a pension from the United Kingdom.

Further, the court accepted the mother’s evidence, including the expert report she had commissioned, and concluded that her support entitlement calculations were not only reasonable, but were actually conservative. The daughters’ educational goals were also well in-line with the family expectations, and they had contributed a reasonable amount to their own tuition and expenses.

In short, the father did not get the “refund” of support he claimed; to the contrary, he was ordered to pay a lump-sum of more than $60,000, reflecting the amounts he should have been paying during his 13-year self-imposed absence from the children’s lives. He was also ordered to pay the mother’s outstanding costs of $17,000, plus her full legal costs of just under $70,000.

For the full text of the decision, see:

George v. Gayed, 2014 CarswellOnt 12841, 244 A.C.W.S. (3d) 398, 2014 ONSC 5360 (Ont. S.C.J.).

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.

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.

Ontario Child Support: How Do You Arrange For Support To Be Paid? – video

 

Wednesday’s Video Clip: Ontario Child Support, How Do You Arrange For Support To Be Paid?

Sometimes parents are able to work out child support payments on their own. Other times, they get help from a mediator, or a judge determines what the payments will be.

In this video, we review how support payments can be made, the need for financial information and use of the child support guidelines. Written agreements are helpful and the need for separate or independent legal advice is also discussed.

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.

It’s Tax Time! Some Tips About the Canada Child Tax Benefit

CCTB

It’s Tax Time! Some Tips About the Canada Child Tax Benefit

It’s tax season in Canada, which means that many of us are toiling and agonizing over our personal Income Tax returns, which for most people are due to be submitted to the Canada Revenue Agency (CRA) on April 30, 2015.

Among my clients, questions sometimes arise about how taxes are to be filed after a separation and divorce, especially the question of who is entitled to claim the Canada Child Tax Benefit (CCTB). While I emphasize that it’s important to get solid tax advice that is customized to address your specific scenario, there are a few general and basic tips that I can offer about the CCTB:

• The CCTB is a tax free, monthly government benefit payable to eligible parents for each child who is under the age of 18. It is designed to help families with the cost of raising their children.

• Generally speaking, the CRA determines the amount of eligibility for the CCTB by looking at the prior year’s tax returns for each of the parents.

• When parents have separated or divorced, the provisions of the federal Income Tax Act and its regulations govern the determination of which of the two parents is eligible for the CCTB.

• The baseline test for CCTB eligibility is this: The parent who resides with the child and who primarily fulfills the responsibility for the care and upbringing of the child is the one eligible for the CCTB.

• If due to the breakdown of the marriage or relationship the parents have separated for a period of more than 90 days or have divorced, and where the child spends considerable periods of time with each parent at their respective residences, the CRA will review the circumstances to determine which of them is entitled to the CCTB.

• Among the many factors considered by the CRA in this shared-care situation are the following: 1) whether the child actually resides with both parents; 2) who is primarily responsible for his or her care and upbringing; and 3) whether there is a court order in place.

• In cases where custody of the child is equally shared, both parents may fully satisfy the threshold “resides with” and “primary care” requirements. In such cases, the CRA splits the annual benefit by giving each parent 6 months’ worth of the CCTB (subject to the recipients’ own individual income-based eligibility determinations).

It’s important to emphasize that the Income Tax Act and its regulations contain the governing provisions, definitions, and rules that determine CCTB entitlement in favour of parents generally. The question of precisely how those rules apply to separated and divorced parents can get a little complicated, and even more so where the parents have struck an agreement between them that contains CCTB-related clauses. This is because the contract provisions may contradict or purport to countermand those that are set out in the legislation, or may reflect circumstances that have changed since the agreement was reached. In such cases it is especially important to consult an experienced lawyer for tailored tax advice.

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

Recurring $50,000 Annual Gift – Should it be Included in Husband’s “Income”?

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Recurring $50,000 Annual Gift – Should it be Included in Husband’s “Income”?

In a recent decision called Horowitz v. Nightingale, the key question for the court was whether, in calculating the husband’s annual “income” for equalization purposes, the total should include a regular gift of $50,000 he received each year from his wealthy parents.

The couple had been married about 16 years when they separated. They had three children together, each of whom had special needs. The wife was looking for about $35,000 per month in spousal and child support, based on the husband’s income which her experts estimated was about $1.7 million for 2013, and over $3 million for 2014, including certain withdrawals the husband made from his RRSP. The husband, in contrast, claimed that his overall income for 2013 was under $600,000, and that his support obligation should be adjusted downwards accordingly.

As part of the task of ascertaining the husband’s true income for these purposes, the court was accordingly asked to characterize the $50,000. The parties were at odds on whether the annual cash gifts were regular enough to be counted: The wife claimed that they had been consistently given in the past, and could be counted on to recur in the future. To bolster her position, she produced an excerpt from an e-mail she received from the husband in which he confirmed that the gift was regularly given each year. It read:

It’s a good thing my father gave me $50,000 each year to help with all your expenses (my parents have the cancelled cheques). Don’t expect to see that anymore. And the money many years I had to take out of my RRSP to pay for everything. Don’t expect that to happen anymore.

The husband refuted that the gifts were regular; moreover he pointed out that his father had had passed away recently. Since the gifts had come from both parents (rather than from either of them individually) there were no guarantees, he said, that his widowed mother would keep up the generosity now that the father was gone.

The court started the examination by pointing out that in law, both child and spousal support was governed by the provisions of sections 15.1 and 15.2 of the federal Divorce Act. Those sections provides a list of factors that the court must consider whether ordering the amount of temporary support the husband had to pay the wife in this case. One of them was the consideration of the husband’s means, and his corresponding ability pay support in all the circumstances.

Next, the court observed that for child support purposes, gifts received by a parent are not presumed to be part of part of his or her presumptive annual income; however, under the Child Support Guidelines, the court had discretion to impute income if it was considered appropriate in the circumstances. However, “gifts” was not among the non-exhaustive list of amounts/items a court could impute.

The court then considered prior law on this issue, which confirmed the receipt of gifts was not generally an appropriate circumstances in which to impute income to the recipient. However, that precedent also established a list of other factors, all of which could be considered in this case, including: how regular the gifts are (or whether there were circumstances that made them exceptional); how many years they had been given by the parents to the husband; whether they were part of the family’s income and lifestyle while the couple was together; the income generated by the gifts relative to the husband’s entire income; their true purpose and nature; and whether they are likely to continue.

With this in mind, the court turned to the present facts: The $50,000 gift had been given by the husband’s parents in each of the prior 8 years, since 2006, as confirmed in the husband’s e-mail. He testified that “every dollar” had been used for family purposes, which meant the funds were part of the family’s overall income, and contributed to the lifestyle they came to enjoy. Finally – while conceding that there was no obligation on the husband’s mother to continue making the gifts at all, in the same amount, or with the same regularly – the court concluded that they were likely to continue in the immediately foreseeable future. (Incidentally, the husband had given no specific evidence as to how his father’s death might affect whether there would be future gifts, nor had he presented to the court any copies of the cashed cheques, even though they were available to him. The court drew a particularly negative inference from this latter omission on the husband’s part).

The court therefore concluded that the annual $50,000 annual gift should indeed be considered part of the husband’s income, for the purposes of calculating both spousal support and child support.

For the full text of the decision, see:

Horowitz v. Nightingale, 2015 ONSC 190

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, 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.

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.

Husband Does Some Sleuthing on Wife’s Facebook Apps – Is the Uncovered Evidence Admissible?

FB spy

Husband Does Some Sleuthing on Wife’s Facebook Apps – Is the Uncovered Evidence Admissible?

We wrote earlier about the decision in Rossi v. Spanier, [2014] O.J. No. 4880; 2014 ONSC 4984, which considered the issue of whether a support-paying husband should be indirectly footing the bill for his ex-wife’s financial irresponsibility post-separation.

But another aspect of that case is equally interesting: As part of the evidence that was put before the court on the question of how much spousal support he should pay, the husband had managed to do some sleuthing. On the morning of the trial, he had input some credit card information disclosed by the wife as part of their family litigation, to uncover various charges she had incurred on Facebook for an on-line gaming App known as “Slotboom”. He brandished this late-breaking evidence as a sort of “smoking gun”, to suggest to the court that the wife had a gambling problem. As the court explained:

A number of entries on [the wife’s] Visa statement denoted “Facebook” with invoice numbers beside them. On the morning of the commencement of trial, [the husband] advised that he had entered these invoice codes on Facebook, along with the last four digits of [the wife’s] credit card number (which appears at the top of all the disclosed statements). Facebook then returned details of the purchase which, in this case, included the name of the game for which the purchases were incurred, which was “Slotboom.” [The wife’s lawyer] objected to the admission of this evidence on a few grounds. First, she objected that this was too late, being the beginning of trial. …

The court adjourned briefly to allow the wife’s lawyer to review the documents and make further submissions; eventually the lawyer objected on the basis that the invoices should not be admitted because they amounted to “unauthorized use of [the wife’s] private credit card information and thus are unwarranted violations of her privacy interests.”

(And by way of explanation, the wife initially claimed that the Facebook invoices were for “games that were helpful for memory” at an average cost of $5 per day. However, when pressed, she conceded that they included charges for a game called “Slotboom” which featured an online slot machine, but maintained that it was skill-based. She later admitted to having done some online gaming in the past, but had not done so for the past year. Unfortunately, this testimony was undermined and proven untrue by the Facebook invoices, which for example showed 12 separate transaction in a single 5-hour period, totalling $435.)

The lawyers for each side could not come up with any precedent law on the issue of whether these invoices should be admitted as evidence, but after some reflection the court found that they should.

In this particular case, the information in the invoices was relevant to the family law matter – and spousal support in particular – because the husband had alleged that the wife had been dissipating her assets, and that a gambling addiction is at least part of that problem. (And this allegation was not a surprise to the wife, since the husband had made these claims right from the beginning). The documents would have been something the wife was required to produce in the course of the family litigation any case, had she been asked to by the court. The husband had uncovered the Facebook invoices using only the credit card information that had been properly disclosed to him; moreover there was no allegation that he had done anything with either the credit card number nor the Facebook invoices beyond what was directly relevant to the litigation.

Finally, the court noted that in the common law (as opposed to criminal law) there is no general power by the court to exclude evidence on the ground that it was wrongfully obtained. To the contrary, there is a general rule of inclusion, i.e. that the trier-of-fact should have the benefit of all relevant evidence, no matter how it was obtained. Nor does the Charter have any application between these kinds of disputes between private individuals.

The Facebook evidence was therefore ruled admissible.

Do you think this was the right outcome? What are your thoughts?

For the full text of the decision, see:

Rossi v. Spanier, [2014] O.J. No. 4880; 2014 ONSC 4984

 

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