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Wednesday’s Video Clip: US Supreme Court Dogs: Florida v. Jardines


Wednesday’s Video Clip: US Supreme Court Dogs: Florida v. Jardines

 

What can we say, this case was a real dog’s breakfast.

Gambling, Drinking and Affairs – Should Spouses Have to Account for their Misdeeds?

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Gambling, Drinking and Affairs – Should Spouses Have to Account for their Misdeeds?

In a recent blog , I discussed a case called Malandra v. Malandra, where the court found that – for the purposes of deciding whether their Net Family Property (NFP) should be unequally divided – the husband should not be held solely accountable for certain bad business investments.

This question of whether the NFP should be divided unequally comes up often: among other things courts must consider whether one of the spouses behaved in a manner that makes an even split unfair. Here are some of the categories of spousal misdeed that can come under the court’s scrutiny:

1) Reckless Investing

In a case called Lamantia v. Solarino, 2010 ONSC 2927, the question was whether the husband should be held accountable for deceit and various financial misconduct designed to hide his reckless investments in the stock market. He had forged the wife’s signature, and had borrowed from credit cards for which she became liable without her knowledge. He also took active steps to keep the wife from learning the true state of their financial affairs; for example, he made sure their bank statements were sent to another address. Furthermore, he continued to play the stock market even though the wife had asked him to stop. Those bad investments led to significant capital losses for the couple.

In finding that the NPF should not be equally divided, the court found that the husband had engaged in a pattern of deceit and engaged in conduct that made it unconscionable for the NFP to be divided equally.

2) Spending to Feed an Addiction

In a second case, Dillon v. Dillon, 2010 ONSC 5858, the husband was a severe alcoholic, who incurred debts to feed his alcohol addictions. He lost many jobs over the years, and took pains to hide the dire family financial circumstances from the wife, who was completely unaware.

Given that their financial circumstances were spurred by the husband’s need to incur debt to feed his addiction, the court found this was a situation completely out of the wife’s control. Because of his reckless behaviour, she had effectively contributed significantly more than the husband toward amassing their family assets which formed the NFP – for example a cottage worth $260,000, and RRSPs funds amounting to $150,000. She had also paid over $50,000 towards the husband’s debts in order to keep things afloat for the benefit of their children.

By concealing the extent and timing of his “financial perdition” (as the court called it), the husband deprived the wife of an opportunity to prevent his destructive behaviour, or to prepare herself for retirement. The court found that the husband had “taken advantage of the [wife’s] selfless act of placing herself in a position of vulnerability in the best interests of her children.” An unequal division of NFP was ordered.

3) Spending Money on an Affair Partner

Finally, in a case called Hutchings v. Hutchings (2001), 2001 CanLII 28130 (ON SC), 20 R.F.L. (5th) 83 (Ont. S.C.J.), the husband was engaged in an extra-marital affair, and used family money in to order to travel with his mistress to Europe and Quebec. The wife was suspicious, and accused the husband of spending money on not just this but other affairs as well; however she was never able to prove the allegations. In this case, the court also ordered that the husband had engaged in reckless and intentional depletion of the NFP and that there should be an unequal division.

For the full text of the decisions, see:

Lamantia v. Solarino, 2010 ONSC 2927

Dillon v. Dillon, 2010 ONSC 5848

Hutchings v. Hutchings (2001), 2001 CanLII 28130 (ON SC), 20 R.F.L. (5th) 83 (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 our main site.

Should Husband Pay Back for Admittedly “Stupid” Business Decision?

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Should Husband Pay Back for Admittedly “Stupid” Business Decision?

If one spouse makes a poor business decision during the marriage, does that automatically mean that the financial repercussions should be reflected in how the Net Family Property (NFP) is calculated?

That was the question in the recent Ontario case in Malandra v. Malandra, where the spouses had separated after more than 40 years of marriage. As part of the divorce, they needed to determine the equalization of family assets between them, so the court’s focus turned to the question of their respective NFP.

The wife asked for an unequal NFP division; among the grounds was that the husband had recklessly depleted the family assets during the marriage. This was because in 2003 – having decided that he was not earning enough money – the husband had decided to quit his job in the pastry company where he had worked for six or seven years, and where he earned about $45,000. (Prior to that, he had worked at a different pastry company for 22 years).

Instead, the husband decided that he would go into business for himself.

Using $20,000 of the money he and the wife had saved, he bought a restaurant called Antonio’s, located in the basement of a downtown office building that also housed federal government offices on several floors. The government employees formed virtually all the restaurant’s clientele; he had relied on the verbal assurances of the former owner that the restaurant was profitable, but did not ask to see the books or cash receipts.

For the first five years, the fledgling business plodded along with some growth in revenues each year. In 2008 the office building in which it was housed was sold to a new owner; at that time, the husband committed himself to another 5-year lease, even though – while at an all-time high profit position – Antonio’s was not meeting his financial expectations. The husband and wife had arranged some refinancing with the bank in order to manage their various business-related and personal debts.

Everything changed after the federal election in 2011, when the government offices moved out of the building in which Antonio’s was located. Two entire floors were cleared out, along with offices on other floors. Antonio’s revenues declined sharply, and in 2012 the husband arranged to abandon what remained of the 5-year lease, and was left with a debt.

In connection with the equalization calculation, the wife protested that husband’s NFP should be reduced by the amount of debt that was still owing in connection with Antonio’s at the date of separation. She said that after the first five years, the husband should have cut his losses, rather than renew the lease for a second five years. The husband countered by pointing out that any debts he incurred were intended to earn a living and pay family expenses, not for his personal use.

The court found that while the husband’s decision to start up a restaurant may have been a “stupid” one (which the husband conceded it was), he did not intentionally set out to deplete the family assets:

I am not persuaded that the decision to start-up Antonio’s was reckless, even though it was not a good business decision. Normally one would expect a purchaser to look at the books and speak to the accountant. Had he done so, he would have learned that the prior owner ran the café for ten years and on the books, basically broke even. This type of business was known to have a significant cash component. For the first seven years the gross revenue did increase from year to year. The event that triggered the failure was the sudden departure of the government tenants, something not within the [husband’s] control.

The threshold consideration was whether, in the context of the entire marital relationship, the husband had deliberately made bad investments to waste assets, to the point where an equal division of NFP was “unconscionable”. That was an exceptionally high legal threshold, and tantamount to “unjust” or a situation that would “shock the conscience of the court”. None of those descriptions applied here; to the contrary, the wife in this case had actually concurred in the investment and had the restaurant actually flourished, she would have shared equally in the gains.

The wife’s claim for an unequal division of the NFP was accordingly dismissed.

For the full text of the decision, see:

Malandra v. Malandra (2014), 2014 CarswellOnt 7937, 2014 ONSC 3533, J. MacKinnon J. (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 our main site.

Child Support & Access Rights in Ontario – video

Wednesday’s Video Clip: Child Support & Access Rights

In this video we examine child support in relationship to access rights. A parent cannot cut off contact to a child simply because child support is not being paid.

Going to Family Court? Here Are Some Ploys and Excuses NOT to Try

Defense Set to Begin Arguments In Sandusky Trial

Going to Family Court? Here Are Some Ploys and Excuses NOT to Try

In the recent case of Seed v. Desai involved a situation where – yet again – the court was asked to resolve the conflicting or obfuscated stories of family litigants. In that case, the husband was obliged to provide full disclosure of his financial circumstances and income in order to determine the spousal and child support he was obligated to pay after he and the wife separated. The court found many problems with the husband’s evidence, among other things:

• He purported to provide financial statements, but they were virtually impossible for the court to make sense of; among other things, they intermingled not only his business and personal financial debts and affairs, but also those of his soon-to-be Ex wife.

• He also painted an overall picture of having to repeatedly borrow money just to keep his business and personal / family expenses afloat, to which the court remarked:

The information the respondent and his bookkeeper put before the court paints a clear picture of insolvency yet he states he intends to continue his business because it is the very best way he can provide for his family. He used colourful language to describe the hard work ahead to chip away at his debt, comparing it to “using a teaspoon to fill a crater”.

• He provided his income tax returns, but when viewed against the tally of his personal expenses, nanny salary, gifts and other discretionary items betraying a much higher standard of living, they would need to reflect a far higher declared income for him to be able to meet all of his expenses.

Concluding that the husband’s “explanation that he robs Peter to pay Paul to stay afloat seems implausible and unsustainable”, the court found there was no other conclusion but that the husband’s income tax returns under-stated his income for the years in question.

The Seed v. Desai case prompted me to take a glimpse back for some other family law cases in which a court was given lame or improbable excuses by one of the parties. It didn’t take long to pull up the following examples:

• In a case called E.A. v. F.A.S., the husband claimed that he couldn’t pay $10,000 in court costs that were being claimed by the wife, because he had recently been criminally convicted and was having trouble finding work. The court essentially decided that the husband was the author of his own misfortune: — he could not use his own criminal conduct as a shield to protect himself from having to pay full court costs, or to justify paying the wife a lesser amount.

• In Pisani v. Pisani, the father claimed that he had not paid child support for his three children, retroactive to the date of separation, because the mother had refused to give him a receipt for payment. The court called this a “poor excuse and one that is not countenanced by the court.”

• In Reyes v. Rollo, when the couple separated the husband, who the court described as having “a complex financial history about which he is knowledgeable”, was obliged to provide financial disclosure as part of the process of unwinding their affairs. He gave what the court called “weak excuses” for poor, incomplete and late financial disclosure, claiming that he was a “private person” and didn’t want to “bare his soul.” The court had no hesitation in rejecting the husband’s evidence whenever it conflicted with that of the wife.

For the full text of the decisions, see:

Seed v. Desai, 2014 ONSC 3329 (CanLII),

E.A. v. F.A.S., 2014 ONSC 4144 (CanLII),

Pisani v. Pisani, 2007 CanLII 56509 (ON SC)

Reyes v. Rollo, 2001 CanLII 28260 (ON SC),

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 our main site.

Hockey Night in Canada & Beer League Update: Implied Consent Does Not Include Savage Unprovoked Attacks

M~ SUN0308s Can Moore l1 Hockey Night in Canada & Beer League Update: Implied Consent Does Not Include Savage Unprovoked Attacks

Many of us Canadians either grow up playing hockey, or watching our kids play, or both. Given the nature of the game, we sign those mandatory hockey league Consent Forms knowing that injury to players is always a potential risk. (And few of us – even the lawyers among us – ever bother to actually read the densely-worded type on those Forms.) But what is the extent of the risk that league sports players are consenting to?

That is the legal question arising from the recent criminal conviction of an Ottawa adult recreational hockey player for aggravated assault in connection with an on-ice hit to an opposing player. The incident occurred during a regular season game between the Pirates and the Tiger-Cats in a non-contact, senior men’s recreational hockey league. In the last 47 seconds of the game, when the Pirates led by two goals, Tiger-Cats team member Gordon MacIsaac collided with Drew Casterson, a forward on the Pirates team. Caterson suffered a concussion, soft tissue neck and spine injuries, facial scars, and several broken teeth as a result.

The league rules provided that deliberate body contact – which expressly included an intentional body-check or bump to an opponent – was not permitted anywhere on the ice, and that league-imposed sanctions could follow. Casterson sued MacIsaac in the civil courts, claiming $600,000 in damages. The on-ice injury had impaired both his quality of life and his future earning capacity: He had been a committed athlete who played many sports including hockey, volleyball, skiing, running and Dragon boating, and prior to the incident he owned a business that concentrated on personal health and fitness for people with mobility issues.

While that civil claim has not yet reached the hearing stage, MacIsaac was also criminally charged and convicted with aggravated assault, and sentenced to 18 months’ probation for what the judge called a “deliberate blindside hit”. The judge found MacIsaac’s hit to Casterson had been in retaliation for a missed penalty call moments earlier, with about a minute left in the game in connection with a play at the blue line. In doing so, the judge conceded that courts are generally reluctant to impose criminal liability in the context of contact sports, and that a wide interpretation was often given to the scope of what was impliedly being consented to.

However, the judge confirmed a long-held legal principle that while players may consent to some bodily contact that is necessarily incidental to the game, they do not consent to savage unprovoked attacks that result in serious injuries. MacIsaac has now appealed the criminal conviction.

One of the pivotal legal questions will be whether Casterson impliedly consented in this case to the level of potential contact (and possible injury) that was inflicted on him by fellow players such as MacIsaac. In a broader sense, it also gives rise to the question of whether one player’s intentional infliction of serious harm on another – in pickup and league sports such as recreational hockey, soccer, lacrosse or football –is something that should be sanctioned in either or both the Canadian criminal and civil justice systems.

What are your thoughts?

For the full text of the criminal decision, see:

R. v. MacIsaac, 2013 ONCJ 787 (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 our main site.

Who Pays Child Support in Ontario? – video

 
 

Wednesday’s Video Clip: Who Pays Child Support in Ontario?

 

In Ontario, all parents have a legal responsibility to support their dependent children to the extent that they can. In this video we review who is responsible to pay child support and why.

Squabbling Spouses in Business Together – What Can a Court Do Pending the Divorce?

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Squabbling Spouses in Business Together – What Can a Court Do Pending the Divorce?

When a relationship is good, being in business together can be a fulfilling and financially-rewarding team venture. When things go bad, however, having a joint business can be a liability in more ways than one. The business assets sometimes end up being yet more weapons in the arsenal that former spouses can use against each other until the divorce is final.

In a case called Hackett v. Hackett, the married couple were partners in a cleaning business when they decided to split up. They entered into an agreement to determine how to deal with the business and its assets – consisting mainly of eight company vehicles – until the divorce.

But notwithstanding that agreement, over time things went from bad to worse between them. The wife accused the husband of taking $19,000 from the business bank account, of cancelling credit cards used in the business, of removing equipment and inventory, and of taking the license plates off the business vehicles. She said he also cancelled the insurance policies on the business vehicles without her knowledge, in what the court said was an obvious bid “to frustrate the applicant’s ability to manage the business”. His truer motivation, according to the court, was to secure certain payments that he believed the wife owed him under the agreement.

To counter these allegations, the husband accused the wife of taking money from the business bank account for her personal use, and of refusing to pay the draw from the business to which he was entitled. He said that the wife had also terminated the employment of the husband’s son, due to allegations of theft. (And perhaps not surprisingly, the situation between them continued to go downhill after that).

Various short-term court orders had been made preventing the husband from attending at the business premises and interfering with its operations. He was also ordered to return the license plates.

The court was asked to finally settle the matter of the business pending the divorce proceedings, with the wife asking for an order transferring the ownership of certain company vehicles from the husband’s to the wife’s name, so that she could carry on running the business without the husband’s interference. In dispelling the husband’s objections, the court observed:

Despite his indignation at the course of events, the [husband] may be viewed as his own worst enemy; complicating matters, exacerbating the problems, compounding issues, all without perceptible benefit to him and taking the focus off what he says the [wife] should and shouldn’t be doing. …

The [husband] says that the successful continuation of the business is very important to him but his actions seem inconsistent with this assertion. There is circumstantial evidence that he has been competing with the existing business.

In light of all the circumstances, the court agreed that reasonable steps needed to be taken to protect the business until it could be appraised and its value made available to both parties as part of the divorce. And while an order was issued transferring the vehicle ownerships to wife, she was prohibited from selling them without either the husband’s agreement or a court order.

For the full text of the decision, see:

Hackett v. Hackett (2014), 2014 ONSC 4257

 

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 our main site.

Is Four Years Long Enough for Wife to “Adjust” to Canada?

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Is Four Years Long Enough for Wife to “Adjust” to Canada?

After a divorce, the question of whether a former spouse is entitled to spousal support involves many factors and considerations: One of them is financial means of the spouse who is paying; the other is the level of economic self-sufficiency of the other spouse who would be receiving it.

In a recent Ontario case, one of the key questions for the courts was how long it should take a separate wife to “adjust” to Canada, to the point where she could work and be self-sufficient enough not to need her former husband’s financial support.

The couple had met on-line in 2002, and were married in Panama in 2004. The wife, together with her child from a previous relationship, moved to Canada in 2007 under the husband’s sponsorship. When they separated two years later, the husband was earning almost $80,000 per year, while the wife was unemployed.

On an interim basis pending their divorce, the husband was ordered to pay a total of $62,500 spread out over four years, mainly for spousal support.

However, as part of the later divorce proceedings the wife asked for spousal support beyond that initial 4-year period, claiming the husband should pay support to her until she could find a full-time job working 35 hours per week. The court described her position this way:

The applicant was self-sufficient before losing her job [in Panama]. After that she became dependent on the respondent. When the applicant arrived in Canada, her dependency on the respondent increased. She was living in a new country where she had no friends or family other than the respondent. The applicant was concerned about her son who spoke minimal English and was anxious to get him settled in his new life.

While conceding the wife’s significant dependence on the husband, the court pointed out that her current efforts to find work were not particularly persistent or focused:

Unfortunately, the [wife] has devoted time trying to upgrade her education rather than earning income. She is now focused on working as a teacher, but she has no idea if her credentials will be accepted by the College.

The [wife] has had ample time to adjust to living in Toronto. Her son is settled in school. They have been living in Toronto for almost six years. While I accept that she has been looking for work, her efforts have not been aggressive and focused. Her job search record shows that she has been emailing her resume. She has not recently relied on any job placement agencies to assist her.

Moreover, the court accepted the husband’s position that by this point, the wife could be earning at least $20,000 per year, for example by working part-time in a restaurant, store, or as a cleaning lady. In making its determination, and imputed this income to the wife accordingly.

In the end, and in light of all these circumstances, the court ordered the husband to pay an additional 12 months support of almost $1,000 per month, past the 4-year mark, after which time his obligations to her would end. In other words, a total of 5 years of support from the husband was adequate in the circumstances.

For the full text of the decision, see:

A. (L.M.) v. H. (P.) (2014), 2014 ONSC 1707; additional reasons at (2014), 2014 ONSC 3366

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

 

What Is A Power Of Attorney – video

 

 

Wednesday’s Video Clip: Ontario Wills & Estates, What Is A Power Of Attorney

In Ontario, a Power of Attorney is a legal document that gives someone else the right to act on your behalf.

In this video Rita, a Law Clerk with Russell Alexander Family Lawyers,   discusses the importance of a Power of Attorney and what options and decisions you should consider when deciding who should be your power of attorney.