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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.

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Ontario Bar Association’s TECHxpo 2.0

I am looking forward to attending and presenting at the Ontario Bar Association’s TECHxpo 2.0 Conference in Toronto.

My co-presenters Dan Pinnington, Catherine Roberts I will be speaking on “60 Technology and Practice Management Tips” and I will be presenting “Practising Safely and Ethically in the Cloud” with David Whelan.

We will review the very latest updates, practical tips, hardware and software specifically designed for the modern law office.

Take advantage of the ample opportunities to meet practitioners from across Ontario and discover new ways to improve your practice.

The vendor expo will showcase a variety of products and services to support and enhance your practice.

You can also join us for the live webcast.

The conference is October 23, 2014, click this link to register.

Is Collaborative Practice Right for You? – video

 
 

Wednesday’s Video Clip: Ontario Divorce Law, Is Collaborative Practice Right for You?Collaborative Practice is a way for you to resolve disputes respectfully — without going to court — while working with trained professionals who are important to all areas of your life.

In this video we examine the concepts of collaborative practice and many of the benefits this process offers couples going through a separation and divorce in Ontario.

Can Husband Be Forced to Guarantee Soon-to-Be-Ex-Wife’s Mortgage?

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Can Husband Be Forced to Guarantee Soon-to-Be-Ex-Wife’s Mortgage?

When the husband and wife separated after almost 20 years, the wife continued to live in the matrimonial home while the husband voluntarily paid some spousal support. As part of a post-separation settlement of their affairs, the wife took title to the home which had been encumbered by a $100,000 mortgage with the bank, guaranteed by the husband.

The mortgage came up for renewal shortly after, and the bank offered a rate of 4 percent if the husband was willing to act as guarantor again. If he was not, then the interest rate would be 6.3 percent.

The husband refused to guarantee the mortgage, and the wife took him to court for an order compelling him to do so, and to do everything else necessary to cooperate in the mortgage renewal.

The court refused to make such an order.

First of all, there was some question whether the Ontario Family Law Act even authorized a court to make such an order against a non-titled spouse: Previous court cases relied on by the wife had involved situations where the spouse who was still living in the home would not have qualified for a mortgage without the other spouse’s guarantee.

This was not the case here. The wife remained eligible to renew the mortgage even without the husband’s participation, and even though her finances were admittedly strained because the husband had not paid support for almost six months.

In fact – and aside from the lower interest rate – there was no up-side at all to having the husband involved at this stage. This was not a situation where (in the court’s words) the home would be “wasted” if the husband did not step up as guarantor; in fact, the home would likely have to be listed for sale in the near future, given the wife’s equalization payment obligations to the husband.

With that said, the court did acknowledge the reality that the husband’s non-involvement in the renewal would mean the wife would be burdened by a higher monthly mortgage payment. By way of a court-ordered increase to the spousal support he was to pay to the wife, the husband was ordered to pay half the difference between the monthly mortgage payment with and without his involvement as guarantor. Given that the home was to be listed for sale soon, this adjusted support order would be subject to review by the court after 90 days.

For the full text of the decision, see:

Soulliere v. Soulliere (2014), 2014 ONSC 3768, 2014 CarswellOnt 9405, Gregory J. Verbeem 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.

 

Are High Income Earners Governed by the Spousal Support Advisory Guidelines?

Tamara Ecclestone  In Beverly Hills.

Are High Income Earners Governed by the Spousal Support Advisory Guidelines?

Few of us are “burdened” with the problem of being in a super-high income-earning bracket. But for those married individuals who are, and who decide to separate and divorce, a narrow but important question arises as to whether the Spousal Support Advisory Guidelines (SSAG) apply in the way they do to people earning a more “regular” income.

As we have written in the past the SSAGs are a tool used by judges (and lawyers) to help determine the appropriate amount of spousal support that should be owned by one spouse to the other (and there are separate calculations depending on whether the couple have children).

However, as the word “Guideline” suggests, the SSAGs are not mandatory, but rather are intended to be a starting-point from which adjustments can be made, depending on the circumstances.

The Guidelines effectively provide a staggered range of spousal support, with the upper limit of support being calculated based on the paying spouse’s income of $350,000.

So what happens when the spouse earns more than that? Is the spousal support amount intended to be capped? (And this begs the question, which is perhaps better answered another day: Does a recipient spouse really need more spousal support than what would be calculated at the $350,000 level?)

Court have established1 that the SSAGs – which are not legislation, but merely guides – do not automatically apply in cases where the paying spouse’s annual income exceeds $350,000; in other words, court are not constrained to use the SSAGs, even as a starting-point, when the paying spouse’s income exceeds this level.

However, if a judge does decide to refer to the SSAGs in making a ruling on support, the SSAGs do not impose any sort of cap on the amount to be awarded in cases where the paying spouse’s income exceeds $350,000.2 Rather, in these kinds of cases, the SSAGs can still be used as merely a starting-point for establishing a range of spousal support payable, but the judge must still consider the parties’ individual circumstances.3

Perhaps it’s an arcane point, but for those who are high-income earners, it can be an important legal point. When it comes to paying support that old adage seems rings true “the rich aren’t like you and me”.

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.

 

1 In a case called Myers v. Vickar, 2012 ONSC 5004 (Ont. S.C.J.)  at para. 74.

2 Elgner v. Elgner, 2010 ONSC 1578 (Ont. Div. Ct.)  at para. 13.

3 Denofrio v. Denofrio (2009), 72 R.F.L. (6th) 52 (Ont. S.C.J.) at para. 48; Cameron v. Cameron, 2013 ONSC 1192.

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.

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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?

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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