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Transfer of Property in Ontario During a Separation or Divorce – video

 

 

Wednesday’s Video Clip: Transfer of Property in Ontario During a Separation or Divorce

In Ontario, whenever there’s a marriage breakdown, and spouses separate or divorce, if they jointly own property, then usually one spouse will release his or her interest in that property, either in return for an equalization payment or other predetermined benefit.

In this video we examine how transfers of property in Ontario work, focusing on mortgage issues, equalization payments, and land transfer tax; and what documents and information you will be asked to bring to an appointment.

Is Two Decades Too Long to Wait to Ask for Spousal Support? Yes… and No.

 decades

Is Two Decades Too Long to Wait to Ask for Spousal Support? Yes… and No.

I came upon an older case that I thought provided a good lesson on not waiting too long to pursue your legal rights and remedies in family law. In this case, the foot-dragging was unusually lengthy, but the underlying lesson serves as a good reminder to everyone.

The Alberta case in R.B. v. S.B., involved a couple who had already been divorced for about 18 years when the wife went to court for the first time to ask for a spousal support order.

The question for the court was this: Was it too late? And how much support should the wife receive after that length of time?

By way of background, the couple had been married six years and had a severely disabled child together when they decided to separate. In preparing for divorce the wife had received independent legal advice confirming that she was entitled to seek spousal support from the husband under the circumstances. Rather than do so, the court reserved the issue of spousal support, but ordered the husband to pay $75 per month in child support.

The couple then went their own separate ways. The wife continue to care for their disabled child and in the early years after divorce earned about $6500 per year; she was later diagnosed with chronic fatigue and fibromyalgia and at the time she applied for support was earning only about $100 per month doing babysitting. She had never asked for an increase in child support in the entire post-divorce period.

The husband, meanwhile, had remarried about thirteen years after the divorce and had another family.

A full 18 years after the divorce the wife claimed spousal support from the husband, who was now a social worker earning $43,000 per year. She was successful before a judge, who – despite the wife’s very lengthy delay in making her claim – ordered the husband to pay $1,500 per month without giving any written reasons for the decision.

The husband appealed; while he conceded that he owed spousal support, he disputed the amount.

The Appeal Court allowed the husband’s appeal, and reduced the $1,500 per month to only $500 per month, writing:

There is nothing in the very unusual facts of this case that provides a method of setting the quantum of spousal support with any degree of mathematical certainty. However, the long delay in seeking spousal support and the short duration of the marriage are key factors militating against the amount awarded by the chambers judge. In our view, that award was excessive.

The [wife’s] circumstances make it unlikely that she will ever enjoy a comfortable level of income. On the other hand, although the [husband] is more economically secure than she is, he is not wealthy and he has a new child to support. In this situation, all that can be accomplished with a spousal award is a modest alleviation of the impoverished circumstances of the [the wife].

Bottom line: While the wife was still entitled to spousal support after nearly two decades. However, the fact that she had waited so long was one of the factors the Appeal Court took into account in awarding only a modest amount.

For the full text of the decision, see:

R.B. v. S.B., 1996 ABCA 2015 (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.

How Not to Act in Family Litigation

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How Not to Act in Family Litigation

Court cases involving other people can be highly instructive: – they provide a good (and free) lesson on the kinds of behaviour and conduct that attracts the courts’ reproach.

Using some recent Ontario family cases as a guide, here are three tips on what not to do in the course of your own family dispute and litigation:

1) Take an unreasonable position or bring unnecessary proceedings. In a case called J.A.B. v. R.J.S., the court found that the husband had persisted in making unreasonable and false allegations against the wife and her new partner, and had brought a court motion that turned out to be completely unnecessary and a waste of all parties’ time and money. In pointing out that “family law litigants are responsible for an accountable for the positions they take in the litigation”, the court took an exceptional step and ordered substantial indemnity costs against the husband.

2) Concoct an elaborate scheme to avoid spousal support and equalization. In Radlo v. Radlo, the court concluded that the husband had devised a detailed, completely unbelievable story to try to explain why certain business dealings took place and complicated transactions were made. The court found that they were all part of a scheme to take funds out of the wife’s legitimate reach, and imposed hefty costs on the husband. The court wrote:

The test in a civil case is on the balance of probabilities. I find on the balance of probabilities, based on the email evidence presented, that Mr. Radlo presented a nefarious scheme to deceive Ms. Radlo and the court with respect to the $353,600.00 and the $80,000.00. Thre preposterous explanations given by Mr. Radlo are not believable.

3) Unilaterally cut back on your support payments. In McSkimming v. Schmuck, the husband decided to reduce the spousal support payments that he had been ordered by an arbitrator to pay. After a successful motion by the wife, at least one settlement offer, the setting of legal costs, and a subsequent appeal, the court held the husband liable for the wife’s full legal costs of almost $17,000. He had taken the law into his own hands, and had deliberately inflicted harm on the wife both emotionally and financially.

For the full text of the decisions, see:

J.A.B. v. R.J.S., 2013 ONSC 7258, [2013] O.J. No. 5332, Price J. (Ont. S.C.J.)

Radlo v. Radlo, (2013), 2013 ONSC 7329

McSkimming v. Schmuck (2014), 2014 CarswellOnt 8435, Moore 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 us at www.RussellAlexander.com.

Wednesday Video Clip: Law Video Bloopers

 

 

Wednesday Video Clip: Law Video Bloopers

Yes even the lawyers can get it wrong from time to time. But hey, we are trying!

In Court, Must a “Private” Facebook Page Stay Private?

FB data

In Court, Must a “Private” Facebook Page Stay Private?

In a recent Nova Scotia case called Conrod v. Caverley, the court considered an evidentiary question of modern-day importance: Can a court order a plaintiff to disclose his or her “private” Facebook page?

The plaintiff had sued the defendant in connection with a motor vehicle collision, claiming that the injuries she suffered had left her with severe neck, back, arm and leg pain. Since the accident she had been unable to return to work; she claimed a loss of enjoyment of life, including an inability to fully participate in social and recreational activities. She also complained of impaired concentration, which affected her ability to spend time surfing the internet.

In response to these claims, the defendant went to court to ask for an order requiring the plaintiff to produce a full, printed copy of her Facebook profile, including the information and photographs that – due to her privacy settings – were only visible to her “friends”. He also asked for a printed copy of her Facebook usage history, including her login/logout information. He claimed that this information was relevant to her damages claim relating to loss of enjoyment of life, as well as her complaint that she could not concentrate or participate socially to the extent she had done before the accident.
In making its decision, the court relied heavily on two prior Ontario cases in which the same issue was raised, also in connection with motor vehicle accidents.

In Leduc v. Roman, the defence had asked for an order allowing it to see the plaintiff’s entire Facebook profile, including the information and photographs that had been set as private. Ultimately, the court declined, finding that it was merely speculative that – given the nature of Facebook – the contents of a “typical” private Facebook profile would likely include material relevant to the litigation. Rather (and as with all types of evidence), the plaintiff could be cross-examined in the usual fashion on what potentially-relevant content might be contained there.

In making this ruling, the court in Leduc relied on the reasoning in an earlier similar decision, Murphy v. Perger, which also involved a request for access to the private portion of a plaintiff’s Facebook profile. In that case, the judge had outlined the following principles governing Facebook information sought to be used in accident litigation:

• It is reasonable for a court to infer that, given its social-networking nature, Facebook contains some content that is relevant to the issue of how the injured plaintiff has been able to lead his or her life since the accident.

• Where the party sets their entire profile to “private” (so that the public page consists only of name and possibly photo), then a court can infer – given the social networking purpose of Facebook – that users make personal information available and photos available to others.

• Where a party to litigation has both a “private” and “public” profile, it is also reasonable to infer that the content of both profiles will likely be similar. In the right circumstances, a court is therefore entitled to order that the private profile be produced.

Returning to the Nova Scotia case, the court applied those principles to the facts at hand: Looking specifically at the plaintiff’s public Facebook page, the court declined to jump to the conclusion that it necessarily contained information relevant to her litigation claim. Nor could it conclude based on that same publicly-accessible information that the contents of her private page would likely be relevant and should be ordered produced.

On the other hand, the court did order that the plaintiff’s log of internet usage with respect to her Facebook account be produced; that information was directly relevant to her claim that the accident injuries had affected her ability to concentrate, and was therefore relevant.

For the full text of the decision, see:

Conrod v. Caverley, 2014 NSSC 35 (CanLII)

Leduc v. Roman, [2009] O.J. No. 681; 2009 CanLII 6838 (S.C.J.)

Murphy v. Perger, [2007] O.J. No. 5511 (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

 

Laura Receives Client Service Award

CSA - Laura

Laura Receives Client Service Award

We are pleased to announce that Laura recently received our Client Service Award for her excellent commitment to helping our clients.

Laura helps clients in both our Brooklin and Lindsay offices. Her attention to detail and friendly prompt service makes her a valued member or our team. Congratulation Laura.

 

 

 

If You Give Something Twice, Was it Really a “Gift” in the First Place?

 house gift

If You Give Something Twice, Was it Really a “Gift” in the First Place?

In a recent Ontario property-division case called Nadendla v. Nadendla, the court grappled with whether to believe a husband’s testimony pertaining to an apartment in India allegedly he bought for his mother.

The couple married in 1993, had two children, and separated in 2011. As part of their subsequent divorce litigation, the husband testified that in 2007 after his father’s death he and his brother decided to purchase a $70,000 three-bedroom apartment in India for their mother. He claimed that at the time of purchase it was always intended by them to be the mother’s home upon completion, and provided details to the court about the alleged payment arrangements.

The wife, in contrast, claimed that it was not bought for the husband’s mother at all; rather, she understood it was merely bought as a real estate investment to be used when the couple went to India on family trips. (And this did take place on one occasion, and the husband’s mother was not there at the time). The wife said she was aware of family finances, and that the husband’s after-the-fact claim to the contrary was merely his attempt to keep the apartment out of the family property division process upon the couple’s subsequent separation and divorce.

The court looked at the evidence, and despite the husband’s assertions to the contrary found that he was actually the 100% owner of the apartment. The court noted certain evidentiary inconsistencies, such as the fact that: 1) on certain travel documents and a settlement deed the mother’s address was listed as the family home, not the apartment; and 2) there was no corroborating evidence that the husband’s brother invested any money as claimed. The court also noted that the husband had first claimed he gifted his share of the property to the mother in 2012, but this contradicted earlier testimony that he had given her a cash gift in 2008 and bought the apartment himself.

But most tellingly, the court pointed out that the husband’s claim to have transferred the apartment in 2012 (allegedly to placate certain people in India who had questioned his mother’s legal right to it) would not have been necessary if he had made an outright gift to her in 2008. In other words, if the husband bought his mother the apartment as a gift in 2008, then it was not his to give her a second time in 2012.

In short, the court rejected the husband’s evidence on the apartment in India, and concluded that the wife was a more credible and reliable witness. It accordingly made a factual finding that the couple’s funds were used to buy the apartment in India, in the name of husband, as a real estate investment. The apartment was therefore to be included in the Net Family Property division and equalization process in the normal course.

For the full text of the decision, see:

Nadendla v. Nadendla, 2014 ONSC 3796

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.

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


 

Wednesday’s Video Clip: 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 we examine 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.

Did Kids’ Hockey Schedule Trump Father’s Access Rights?

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Did Kids’ Hockey Schedule Trump Father’s Access Rights?

In a recent case, two separated parents had agreed to certain custody and access arrangements pertaining to their two sons, now aged 13 and 11. Those arrangements had been formalized in a final court order. Because the father had been criminally harassing the mother to the point where she feared for her safety, the father was also ordered to be subject to a restraining order essentially preventing him from contacting her or going within 300 meters of her place of residence or employment.

The father claims that the mother misused the discretion that the court order had given her, by monopolizing the children’s time whenever possible. In particular, he claimed that she deliberately scheduled the children’s soccer and hockey activities during times when he was supposed to have access, and that various tournaments were scheduled during his time with the boys as well. This was complicated by the fact that the restraining order that was in place also prevented him from being at the same place as the mother.

In short, he claimed that the mother was engaging in tactics to prevent him from having meaningful access to the boys.

The mother conceded that the father’s access had been frustrated in some instances, but offered circumstance-specific justifications. She also pointed out that on several occasions the father himself had either asked to cancel access, or had consented to cancel it, sometimes making up the time on other dates. However, she did not deny that in some instances she had refused to allow the father to have access, but it was because co-operation between them had deteriorated.

The court elaborated on how the hockey issue had played out:

Another explanation for the deterioration in relations between [the mother] and [the father] is that [the mother] served as liaison for [the son’s] ockey team and joined the team in their locker room with the result that [the father], whose terms of probation prohibited him from being in the same room as [the mother], was prevented from accompanying [the son], like the other fathers, even if the practice or game fell on a night when he was to exercise access. [The mother’s] lawyer minimizes the importance of this encroachment on [the father’s] access, arguing that it interfered with his access for only a short time at the beginning of games, but I find that it would have been humiliating for [the father] to be centred out in this manner in front of the parents of [the son’s] team-mates.  It is not surprising, in these circumstances, that hockey assumed a greater importance to [the mother] than it had for [the father]. When there was a conflict between the boys’ hockey commitments, and especially those of [the one son], who served on a “Rep” hockey team in 2011 and 2012, [the mother] expected [the father] to accommodate [the son’s] hockey schedule, attending at the practices and games and departing from the boys when they joined their mother and their teammates in the locker room. [The mother] explains that the rules of [the son’s] “Rep” team required him to attend every game and practice, or be “benched” if he missed one. If he missed a game, [the mother] explains at para. 17 to 20 of her affidavit, he would not be allowed to play with his team the next season. …

 

[The mother] states in her affidavit that she did not know whether [the father] would take the boys to their hockey games or practices. Her preoccupation with ensuring that they attended, combined with her uncertainty as to whether [the father] would take them, caused her to refuse access, or support the boys in their resistance to accompany him, so that she could assume responsibility for them herself at these times.

Still, after scrutinizing the evidence of various incidents on a more individual basis, the court found that on at least some occasions, the mother did deliberately foil the father’s access to the children, and was therefore in breach of the court order. Those breaches affected the children’s best interests, and the court took this into account when re-evaluating and amending the father’s access entitlements are part of a larger variation order.

For the full text of the decision, see:

Durkin v. Cunningham, 2014 ONSC 4659 (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.

Does Failure to Disclose $20,000 in Savings Void a Marriage Contract?

 missing document

Does Failure to Disclose $20,000 in Savings Void a Marriage Contract?

The couple married in 1999 after what was largely a long-distance relationship. Apparently in response to a recent affair by the husband, the wife prepared a marriage contract, which she presented to him three weeks before the wedding. She told him she would not marry him unless he signed. The husband, who did not seek legal advice, signed the contact on their wedding day.

Nine years later, when the couple separated, the husband went to court to have the marriage contract set aside.

Among other things, he claimed that: 1) he did not understand what he was signing, 2) he was under duress; and 3) the wife had failed to disclose $20,000 in savings, and that had he known about this significant asset, he would not have signed at all.

The husband’s motion to have the marriage contract set aside was dismissed. The court made the following specific findings:

• The wife’s non-disclosure of $20,000 in savings was not of great significance in the grand scheme, and did not believe that the husband would have governed himself differently, had he known about it beforehand.

• While the husband’s first language may not have been English (he was Turkish), he was a highly intelligent and educated man who was on his way to earning his Ph. D. in English. He had worked in journalism in English before getting married, and had studied and taught at Ivy league schools in the U.S. All of this belied his claim that his language skills were inadequate and that he did not understand the agreement or what he was signing.

• Likewise, in light of his education and work/life experiences, his claim that he was under duress did not ring true. As the court put it: “He was no shrinking violet.”

About the husband’s additional claims that the contract was unconscionable and that he had not obtained independent legal advice prior to signing, the court said:

The fact that he chose not to seek legal advice was a decision that was his to make. While he may regret that choice now given how things have turned out, regret about a choice made is not the test for setting aside a contract. … Any party to any agreement runs the risk that they are making a poor bargain. As things turn out, any agreement can be revealed as foolhardy and regrettable. … This contract was a meeting of minds. It may not have turned out advantageously for both, but such a result does not equate to a finding of unconscionability. … In the final analysis I find that the results are within the range of what the parties freely intended. It must never be forgotten that the ability to contract is a pillar of a free society.

As a result, the marriage contract was held to be valid and enforceable.

For the full text of the decision, see:

Tunc v. Portugese, 2014 ONSC 3909 (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