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Mother Claims 6-Year Delay in Seeking Child Support Due to Father’s Mental Health Issues – But Court Doesn’t Buy It

support

Mother Claims 6-Year Delay in Seeking Child Support Due to Father’s Mental Health Issues – But Court Doesn’t Buy It

In Williams v. Rezonja, the couple’s relationship started after a “blind date” and resulting in their having a child together. They got engaged, but never did marry.

Although their relationship was apparently at first, it quickly deteriorated after the child was born. The woman said the man started to exhibit bizarre behaviour, which she said came “out of nowhere”. He stopped interacting with her and the child, and she could never be sure whether he was going to work at his well-paying job or not. He told other people she was “out to get him”, and sometimes slept on the couch in his clothes, with his keys in his pocket.

When the woman met her future mother-in-law, they agreed that he should be assessed. After this, he stopped coming communicating with her or coming home. He stayed with his mother, who conceded that he had been admitted to a mental health facility for a few days. Soon after, the woman got a letter from is lawyer, advising that she needed to move out of the house that they shared, and which was in the man’s name.

The woman – who was unemployed at the time – did move out as requested. She took the child with her, and found a job in order to support herself. She eventually claimed child support from the man – but not until about 6 years later.

The court heard evidence that although she knew where to reach the man, the woman chose not to ask him for child support for all those years because she felt it was “unsafe” for her and the child to be anywhere near him. Although he had not threatened her verbally or physically, she said she had concerns for safety and if he was possibly unwell felt she did not want him involved with the child at all.

The man’s version of events was that the woman ended the relationship, and that he was depressed for a period of time. He had indeed been admitted to a psychiatric unit for 2 to 3 weeks, and was off work for 2 years, but said that he was now healthy. He believed that his problems were directly caused by the woman’s treatment of him.

The court did a balanced evaluation of the evidence, considering all the relevant factors, including: the reasons for the woman’s delay; the conduct of the man; the circumstances of the child; and any hardship a retroactive award might cause the man. No single factor is decisive, it pointed out.

Next, the court began by pointing out that as parents, both parties had an obligation to ensure their child receives appropriate support in a timely manner.
Here, the woman’s stated reason for delay were unconvincing; the court found she exaggerated her fear of the man and the potential for retaliation, and was certainly sophisticated enough to have sought legal advice. In short, the court found that she did not pursue child support because she was prepared to “go it alone”.

Turning to the man, the court found that he was blameworthy to some extent, too. He appears to have concluded, based on the fact that mother was not pursing him for support, that he was “home-free” and would not be on the hook financially. As the court put it: “There was an obvious incentive to continue to ignore that which he otherwise knew was his legal obligation.”

With all this in mind, the court concluded that this was not a case for retroactive child support for the full six years. The mother had clearly demonstrated that she wanted nothing to do with the father and was prepared to raise the child on her own. The court did, however, award support for the period starting December 1, 2012, which is the month following the date of the woman’s court application.

For the full text of the decision, see:

Williamson v. Rezonja, 2014 ONCJ 72 (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.

Must a Spouse Confirm the Falsity of the Other Spouse’s Financial Information?

false document

Must a Spouse Confirm the Falsity of the Other Spouse’s Financial Information?

In a recent family law decision called Virc v. Blair, the Court of Appeal faced an interesting question: whether one party is duty-bound to make inquiries into or confirm that the other party has provided deliberately-false financial information.

The dispute arose in connection with the business valuation that formed the basis for a 2008 separation agreement between a wife and husband. Even though the wife happened to be a lawyer, she had no experience with business valuations; the husband on the other hand was an “experienced and sophisticated businessman” who considered himself an expert in that area.

The wife signed the agreement (which was prepared by the husband’s lawyers), even though prior to doing so she was not provided with a full independent business valuation of his assets at the date of marriage. About two years after signing, she then realized that he had likely over-valued his marriage-date holdings to the tune of $9 million, which made a big difference to her equalization and other entitlements.

She went to court to have the separation agreement set aside, but was unsuccessful on the first go-around before a motion judge. That judge had concluded that even if it appeared likely the husband had materially misrepresented the value of his marriage-date property, the wife had disqualified herself from attacking the resulting separation agreement’s validity because she failed to make inquiries to confirm one way or the other. In other words, the wife’s oversight in failing to confirm the husband’s likely-false information was fatal to her bid to set the agreement aside. The motion judge essentially dismissed the wife’s application.

The matter went to appeal, and the wife was successful. The Appeal Court found that the motion judge, in purporting to apply the Ontario Family Law Act’s two-stage test for setting aside a domestic contract, had effectively (and incorrectly) shifted legal responsibility for confirming the false financial information to the wife.

However, this was not the law in Ontario.

Rather, once the motion judge was in a position to assume the husband had made a material misrepresentation as to his finances, the law placed the onus on the husband, being the party disclosing the financial information, to establish that the wife actually knew that his information had been false. It was incorrect to shift the responsibility to the wife to make the inquiries, and incorrect to conclude that her application to set the agreement aside had no real chance of success at trial.

The wife’s application should not have been dismissed; the proper course was to send the matter on for a full trial. The Court of Appeal made an order accordingly.

For the full text of the decision, see:

Virc v. Blair, 2014 ONCA 392 (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.

Does The Age of The Child Affect Child Support in Ontario? – video

 
 

Wednesday’s Video Clip: Does The Age of The Child Affect Child Support in Ontario?

Simply put, the age of a child does affect the amount of child support ordered.

In this video, Shelley, a Law Clerk with Russell Alexander Family Lawyers, discusses how and when the age of the child could affect child support. Income considerations, age of the child and needs of the child should be considered.

Cottages as Matrimonial Homes – It Can Get Complicated

cottage-home-2

Cottages as Matrimonial Homes – It Can Get Complicated

With the recent improvement in the weather, it seems my mind is on cottages lately. I have written before  that matrimonial homes enjoy special legislated protection under Ontario family law. I have also written about how second homes and often-used cottages – and sometimes even sailboats can sometimes satisfy the legal requirements for what constitutes a “matrimonial home” in some cases.

Sometimes the status of a particular property falls into the “grey zone”, or separated/divorcing spouses may disagree as to whether it should be included as part of their matrimonial home. In such cases it may be necessary to go to court to get a declaration one way or the other.

The recent case of Logotech v. McConnell included this kind of application – but it was actually a lender who dragged the married couple to court to get the declaration. This is because there were several other elements in the mix, namely: the lender, a failed investment, a mortgage in default, a looming power of sale, the husband’s bankruptcy, and an injunction application. All of this “thickened the plot”, legally speaking.

The husband had mortgaged certain Muskoka cottage property he owned as part of a family compound of several cottages. To do so he swore a declaration – which the court later concluded was likely false – to the effect that the properties were not occupied by him and his wife as family residences, and that a different property had been designated as a matrimonial home. This technically eliminated the need to get his wife’s written spousal consent to the cottage mortgage, so it was all arranged without her knowledge.

When the husband allowed the mortgage to go into default, the lender asked the court to declare the cottage excluded from the “matrimonial home” designation, so that it could take unimpeded steps to enforce it security by way of power of sale. It also asked for an order forcing the couple to give up possession.

The wife resisted, and in fact asked the court for an injunction to stop the lender’s mortgage enforcement process until the entire matter could be brought to a full trial.

The court looked at the facts, and found many of them in dispute. Contrary to the husband’s sworn declaration, there was actually strong evidence that the family regularly used the cottage during both the summer and the winter each year since 2002. There was also strong evidence that the lender knew the property was a cottage and was used as such. Finally, the validity of the lender’s mortgage was up for debate, they had been arranged by the husband without the wife’s knowledge and without the spousal consent as required by law.

As part of applying the test for an injunction, the court remarked that the wife would naturally suffer irreparable harm if she had to give up possession, pre-trial, of a property in which she likely had a legal interest. When viewed in the balance against the risk of harm to the lender if the injunction is not granted, it was evidence that the wife faced a much more severe risk of harm.

The court granted the wife’s request for injunction, which prevented the lender from taking mortgage enforcement steps, and ordered that the question of whether the cottage was a matrimonial home should be fully explored at trial. The validity of the mortgages would also be given scrutiny by the court at that time.

For the full text of the decision, see:

Logotech Inc. v. McConnell, 2012 ONSC 4386

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 our main site.

 

Ontario Custody and Access: Who’s Is Entitled To The Child? – video


Wednesday’s Video Clip: Ontario Custody and Access: Who’s Is Entitled To The Child?

There is a general misconception that when a couple separates, the children must automatically stay with their mother. But in Ontario, the mother and father are equally entitled to custody of the child.

In this video Abi Adeusi discusses who is entitled to custody of the child, defacto custody, and mistake parents, often fathers, make regarding custody and the establishment of a status quo. She also explains the difference between custody and access.

We are seeking a Family Law Associate Lawyer

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ASSOCIATE LAWYER

Russell Alexander Collaborative Family Lawyers work exclusively
on divorce law and family related matters, including custody, spousal
support, child support and separation.

Our lawyers, law clerks and staff
members employ a team-oriented approach to serving our clients.

We are seeking an Associate Lawyer to join our team. A minimum of
two years post-call experience in family law is required. Compensation
will include a salary plus incentive based compensation.

Contract position also available.
We promote a work life balance by focusing on our families and giving
back to our communities.
Apply in confidence to: ria@russellalexander.com

Can Tardy Dad Force Mom to Move Back to Ontario?

move

Can Tardy Dad Force Mom to Move Back to Ontario?

In situations where parents are separated or divorced and share custody, courts are sometimes called upon to decide whether one of them can permanently move away with the child, often to pursue new work or a new relationship. In such cases courts must give careful scrutiny to all of the circumstances before deciding; this includes examining the existing parenting/financial arrangements and support network, and how those will change either the benefit or detriment of the child. After such scrutiny, in some cases the court will reject the parent’s proposed relocation outright.

Some parents will proactively take matters into their own hands: They unilaterally decide to pre-emptively move away with the child first, and then return to court after-the-fact, asking for retroactive permission. Courts resoundingly condemn this self-help approach: it not only alters the status quo for the child, but it is also patently unfair to the other parent who resists the move and now has to get a court order to “undo” it.
This was precisely the situation in Rifai v. Green, where the father and mother had ended their marriage almost nine months before their (now) 1-year-old child was born. The father brought an emergency motion to undo a pre-emptive relocation to another province by the mother which had taken place about eight months earlier, when the child was three months old.

Arguably, until this point the father had been rather indifferent to his infant daughter: She had been in the mother’s custody since birth, and he had had no contact with her at all since she was two months old. Nonetheless, he brought a motion to force the mother to return from Alberta, where – with his permission – she had gone with the father’s permission for a 6-week stay to visit an ailing grandmother. Shortly after arriving, however, the mother advised the father that she was not planning to come back. In fact, she never did return to Ontario with the child.

A few months passed and the father continued to stay in contact though his lawyers, but mainly to dispute paternity and try to have DNA testing done. Meanwhile, throughout this period spanning much of 2013 the father paid no child support whatsoever, even though he was earning $45,000 per year.

In considering the father’s early-2014 emergency motion to force the mother to return, the court began by expressing its concern that the mother had engaged in self-help and had altered the status quo with the pre-emptive move. On the other hand, it also pointed to the father’s complete lack of support before and since the daughter’s birth, including his sporadic visits during her first two months of life, his lack of financial support, and his focus on denying paternity. Indeed, the father seemed uninterested in having more access until paternity was confirmed – and process which was stalled due in part to the father’s own foot-dragging. As the court put it:

[The mother] felt the [father] wasn’t actually interested in [the daughter’s] life – but he wanted to keep his options open. The [mother] couldn’t wait while the [father] made up his mind about whether he wanted to be a father. She made a life for herself and her daughter in Alberta. And now that’s the child’s habitual residence.
The reality was that as long as she stayed in Ontario, the mother was forced to struggle in the effective role of “single mom”, since the father had shown no interest in the child other than to try to refute paternity. In contrast, in Alberta she had family and friends who could provide her with the assistance and emotional support she needed.

The court observed:

There are consequences to the fact that the [father] ended up doing nothing – for eight full months. Time moves on. Children move on. The [mother] and [daughter] moved on. And really, it is difficult to blame the mother for seeking out a family support network, in the face of such ambiguous and half-hearted involvement from the father.

In short: even though the court disapproved of the mother’s unilateral change to the status quo, it was equally critical of the father’s 8-month delay in bringing his “emergency” motion. It said:

Eight months is a conspicuously long time, particularly when you factor in that it’s really been 10 months since the [father] last saw his child.

The court therefore denied his request for an order compelling the mother to move back with the child.

For the full text of the decision, see:

Rifai v. Green, 2014 ONSC 1377 (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.

Ontario Child Custody, Who is Considered a Parent? – video


Wednesday’s Video Clip: Ontario Child Custody and Who is Considered a Parent?

When it relates to family law, a parent can be the birth mother or father, an adoptive parent, or a step-parent.

In this video we review who is considered a parent for the purpose of child support, along with the role of step parents.

Can a Sailboat Be a “Matrimonial Home”?

boat hom

Can a Sailboat Be a “Matrimonial Home”?

I have written in prior blog  “5 Things That Make the Matrimonial Home Unique”  that the definition of “matrimonial home” is generally defined by Ontario Family Law Act as being any property “ordinarily occupied” by the spouses and their family on the separation date. This can include any type of housing including condominiums and mobile homes; in some cases the definition will even extend to cover a frequently used second-home, most often a family cottage.

But what about a sailboat? Can it be a “matrimonial home” too?

This was the question in the older case of Clark v. Clark. After separation the wife and youngest daughter continued to live in the house that they all had previously shared, but when he moved out the husband took with him a 29-foot sloop. The court found that the family “generally had a tradition on this boat during the summers for a good number of years”.

In considering the definition of “matrimonial home” under the applicable law (which in this case was the predecessor to the current Ontario Family Law Act), the court said:

I think a cottage has been in a sense declared a matrimonial home, being an adjunct of the regular home of the family, in the past, and I frankly see no reason why the extra home or cottage should therefore be restricted to a question of evaluation of accommodation or mobility, once the principle of an alternative home has been established. The fact that that alternate home moves in some way, and that it may be difficult to locate under some circumstances, or that it may have some restrictions of accommodation I think is not necessarily relevant, as long as it is shown that the general use of the property or thing has been used by the family as an alternative residence while the family was on vacation.

While dismissing the husband’s stated concerns over the wife’s competency and ability to maintain and take care of the sailboat, the court declared the home an alternative matrimonial home and transferred exclusive possession to the wife for a particular long weekend that she had requested, to be returned to the husband afterward. In this context – and after adding that it had assessed the wife’s ability to manage and care for it – the court concluded that the wife was capable of operating the boat in a satisfactory manner, but added that she “should not take the boat under any circumstances unless she is assured, as well as the husband, that there is sufficient insurance on the boat and that it is effective while she has the boat in her possession.”

For the full text of the decision, see:

Clark v. Clark (1984), 40 R.F.L. (2d) 92, 1984 CarswellOnt 241 (Ont. Master)

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.

If Kids Aren’t Part of the Litigation, Should Their Best Interests Still be Considered?

kid in courtroom

If Kids Aren’t Part of the Litigation, Should Their Best Interests Still be Considered?

In a prior blog post  we discussed a case called M. v. C., which dealt with whether a father who is estranged from his child should nonetheless be required to pay for the child’s private school fees. (And in that case, quite unusually, the court application had been brought by the 14-year-old child herself).

One of the important details in that case was the fact that the father had had no involvement in the daughter’s life or that of her mother at all, and in fact had gone on to marry and have three other daughters. Those daughters did not know of the existence of the 14-year-old, who technically was their half-sister.

In the context of the father’s request to have the court file sealed for privacy, the court had to consider whether the best interests of the father’s other, younger children – who were part of his new family but were not involved in the lawsuit – should even be considered. In particular, it reflected on the potential impact it may have on those children to learn for the first time about their 14-year-old half-sister and about the details of the lawsuit. In this regard the court took note of evidence that the girl had already made some reference to the litigation online; this meant that the children’s peers might learn of the case as well, which the court speculated could lead to bullying via computer.

While recognizing that the overriding principles and values of the Canadian justice system favoured openness and transparency, the court pointed out that this goal must be balanced against the interests of children who are potentially affected by the litigation – including even those who were not formally part of it. As the court put it:

“It makes no sense to me that the Court would only be concerned with the possibility of negative consequences arising from litigation in the context of children who are parties to a lawsuit and would ignore the possibility of harm being visited upon other children who are directly affected by the litigation yet are not parties to it. The preferable view is for the court to take into account the interests of children who clearly can suffer harm arising directly from a lawsuit which involves one or more of their parents, even if the children themselves are not named in the lawsuit.”

In the end, having concluded that the best interests of the father’s new family should also be taken into account, the court ordered the file sealed for privacy.

For the full text of the decision, see

M. v. C., 2014 ONSC 567 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.