Skip to content

Elliot Vine Joins Russell Alexander as an Associate Lawyer

elliot

Elliot Vine Joins Russell Alexander as an Associate Lawyer

Elliot joins Russell Alexander Collaborative Family Lawyers as an associate lawyer.  Elliot practices family law, including pre-separation legal advice, custody and access, support issues, separation agreements and property-related issues. Elliot resolves  conflicts in a quick and efficient manner.

Elliot will work in all three of our offices: Markham, Brooklin and the City of Kawartha Lakes. He graduated from Queen’s University in 2009 with a Bachelor of Economics where he earned awards for high academic achievement. Elliot completed his Juris Doctorate from Queen’s University, receiving his law degree in 2012. Prior to working at Russell Alexander Elliot practiced Family Law with a firm in Kingston and with a Certified Specialist in Family Law.

Elliot enjoys meeting new people and the challenge of getting the best possible results for his clients. He is an avid public speaker and loves to debate. Elliot also looks forward to developing a Collaborative Practice.

Elliot plays a wide variety of sports. He enjoys trying new restaurants, reading fiction and is interested in improving his ability to sail. After growing up in North York, Elliot is excited to serve clients in and around his new home.

Can Second Wife Foil Court Order Securing First Wife’s Support?

 second-wife

Can Second Wife Foil Court Order Securing First Wife’s Support?

In Watkins v. Watkins – which essentially pitted the rights of a man’s first wife against those of his second one – the court considered whether it could encumber a matrimonial home, even if spouses were prevented from doing so.

In that case, in connection with his home the husband was ordered by the court to sign a collateral mortgage in favour of his first wife, from whom he was now divorced. This was intended as security for what he owed her for existing and future spousal support, child support, and legal costs.

However, because he was now married to a second wife – and even though the home was owned solely by him – it was considered a “matrimonial home” under the Ontario Family Law Act, and was therefore subject to the special rules governing its sale, disposition or encumbrance. In particular as I’ve written before, the second wife was legally required to give her consent to the collateral mortgage.

However, the second wife refused to do so, fearing that in the future the home might be sold under the collateral mortgage, thus jeopardizing the security that she and their child have. (Apparently, even though she did not own the home herself, she had put a lot of work into it). Without the second wife’s consent, the Land Registrar refused to register the collateral mortgage.

The husband brought a motion to the court, asking for it to dispense with the second wife’s consent and authorize the collateral mortgage registration in the first wife’s favour.

In granting the husband’s request, the court looked at the purpose of the Family Law Act: It was designed to limit what a spouse was allowed to do in terms of encumbering the home; it was never intended to foil a court’s ability to secure one spouse’s financial obligation to the other.

In this case, the court had itself created the husband’s liability in the form of the collateral mortgage, regardless of what the husband wanted. The order stemmed from the court’s own initiative and by virtue of a prior court order, and – in legal jargon – arose “by operation of law”. The husband had no intentions of his own in this regard.

With this in mind, the court was fully entitled to impose a charge on the home in the form of the collateral mortgage, as a means of enforcing the husband’s legal support obligations to the first wife. The second wife’s consent was accordingly dispensed with and the collateral mortgage was duly registered by court order.

For the full text of the decision, see:

Watkins v. Watkins, 2014 CarswellOnt 5287, 2014 ONSC 2506

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 Wills & Estates: 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  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.

Can You Quit Paying Support for a Child That is Not Even Yours?

brady-bunch 

Can You Quit Paying Support for a Child That is Not Even Yours?

In Hari v. Hari, the couple were married for eight years and had one child together. However, the mother also had a daughter from a previous relationship, and one whom the father (i.e. now the stepfather) had financially supported and treated as his own. In fact, from a legal standpoint the stepfather “stood in the place of a parent” to the girl for 12 years, until he and her mother separated.

Once the separation occurred, the mother – now unemployed and receiving employment insurance – needed child support. The girl’s own biological father had historically been unreliable: the mother knew little more than that he was living outside of Ontario, and that he worked in the music business. More to the point, the mother had no idea what he earned and she had received virtually no support from him at all over the years.

This being the case, the mother went to court to ask for an order that the stepfather should pay support for both the child they had together, as well as for the mother’s daughter from the previous relationship. The stepfather disputed that he should pay support for the mother’s daughter, especially since his relationship with the girl had completely broken down since the separation.

The court, in considering the circumstances, applied the following approach based on previously-established legal authority, in order to “do the math” on the support amount:

1) it determined the amount otherwise payable by the stepfather under the Child Support Guidelines (including special expenses and any adjustment for undue hardship);

2) it determined the “legal duty” of the biological father to contribute child support; and

3) it considered whether it is appropriate to reduce the stepfather’s obligation under the Guidelines.

The court also took the approach that once the stepfather could establish that the biological father (and, for that matter, the mother) also had a duty to support the child, it was then up to the mother to demonstrate why the stepfather’s support obligation should not be reduced in an amount commensurate to the support owed by the biological father and mother.

Using this formula – and rejecting his contention that he should pay no support for the girl at all – the court ordered the stepfather to pay support in the full Guidelines-mandated amount, at least until there was some evidence brought to court as to what the biological father could afford to contribute.

For the full text of the decision, see:

Hari v. Hari, 2013 ONSC 5562 (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.

Kiley is Back

kiley2

Kiley is Back

The lawyers and staff at Russell Alexander, Family Lawyers are pleased to announce the return of one our all-time favorite law clerks Kiley.

Kiley will be helping our new clients complete the intake process. She graduated from the Legal Administration program at Durham College in 2007. Kiley is always keen to help clients with any inquiries they may have.

Kiley loves to spend time with her family while boating and camping.

Welcome back!

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, Abi Adeusi, introduces us to concepts of collaborative practice and many of the benefits this process offers couples going through a separation and divorce in Ontario.

City of Kawartha Lakes 16 year old Bayley Simpson is off to Seoul, South Korea

bayley2

City of Kawartha Lakes 16 year old Bayley Simpson is off to Seoul, South Korea

City of Kawartha Lakes 16 year old Bayley Simpson has been selected to represent Canada at the UCI Juniors Track Cycling World Championships in Seoul, South Korea this August 8-12, 2014. It has been a year filled with hard work, commitment and sacrifice to achieve this goal, which included off-season training in London at the Forest City Velodrome.

Bayley was also selected to attend numerous training camps in Southern California, South Carolina, Los Angeles and Vermont, through the Ontario Cycling Association and Cycling Canada.

Bayley will be on the World Stage representing Canada and is seeking assistance to help fund his involvement on the National Team and off-set the training, equipment, race fees, travel, accommodation and meal expenses.

As Bayley’s former rep hockey coach with the Lindsay Muskies, I can say personally that this young man has the drive, commitment, dedication and motivation to successfully represent Canada in South Korea.

Good luck Bayley.

Secure donations can be made through the GoFundMe website or via email money transfer to bayleysimpsoncycling@gmail.com

 

5 Things That Make the Matrimonial Home Unique – Part 2

5 things

5 Things That Make the Matrimonial Home Unique – Part 2

I have written recently about how in Ontario it’s actually possible to have more than one matrimonial home. That followed on a more general post written some time ago about the matrimonial home’s unique nature under Ontario family law.

It’s never a bad time to revisit the specific elements that make the matrimonial home special, this time with a focus on the court’s right to make Orders in connection with it.

1) Special status. The matrimonial home has special “protected” status under Ontario law. As such, there are certain things that spouses can and cannot do. Most notably, one spouse is not allowed to unilaterally do any of the following, without the other spouse’s consent:

• Lock the other spouse out of the matrimonial home;

• Sell the home;

• Mortgage or re-mortgage the home.

2) Court can make Orders. Depending on the nature and objective of the family litigation, an Ontario court is entitled to make an Orders that can affect your spousal rights to the matrimonial home. The court’s powers in this regard arise under the authority granted to it pursuant to the Ontario Family Law Act, the Family Law Rules, and the Courts of Justice Act.

3) Scope and nature of court Orders. There are a variety of Orders that a family court can make in connection with the matrimonial home, including an Order that only one spouse is entitled to be in possession of (i.e. live in) it, and an Order that one spouse may sell, mortgage or encumber it.

The last type of Order may become necessary in a case where (for various reasons) it is prudent for the home to be sold, mortgaged or otherwise encumbered, or where it makes sense in all the circumstances that one spouse has possession, but where the spouses cannot agree. The court in such cases has the power to make the necessary Order.

4) Mandated considerations. Needless to say, courts don’t take their powers lightly; whenever a court is poised to make an Order that deprives one spouse of his or her rights or interest in the matrimonial home, the court will consider a broad array of well-established factors and considerations. For example, if a court is considering making an Order giving one spouse exclusive possession of the matrimonial home, the court is obliged under the Family Law Act to take into account the following:

• The best interests of the children who may be impacted by the order. Under this heading, the court must consider 1) the possible disruptive effects on the child of a move to other accommodation; and 2) the child’s views and preferences, if they can be reasonably ascertained.

• Any existing court Orders relating to family property, including existing Orders for support;

• The financial position of both spouses;

• Any written agreement between the parties;

• The availability of other suitable and affordable accommodation; and

• Any violence committed by a spouse against the other spouse or children.

5) Other rights not suspended. Finally, the fact that a family court might be entitled to make an Order in connection with the matrimonial home does not mean that other litigation has to cease; a third party (i.e. not either of the spouses) might have rights in connection with a matrimonial home that can be enforced as usual. To give the most common example, there may be a mortgage on the home, which the bank can realize upon if it goes into default.

Do you have questions about the court’s rights to make Orders affecting the matrimonial home? Feel free to contact our office.

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.

Stay-At-Home Mom Ordered to Pay $30K Towards Fee for Wealthy Husband’s Expert

expert

Stay-At-Home Mom Ordered to Pay $30K Towards Fee for Wealthy Husband’s Expert

The father was a wealthy self-made businessman earning a half-million dollars per year, while mother was an unemployed stay-at-home mom to their daughter, whom the court referred to as their “love child”. After separation, the father had generously set up the mother and child in a rent-free/mortgage-free home to live in.

After a 9-day family law trial that took six years to reach court, joint custody was granted, with the father being ordered to pay $3,750 per month in child support. This amount was vastly lower than what the mother had claimed.

A separate court hearing was held to determine what portion of legal costs were payable by each of them. In the mother’s case, she had spent $213,000 in legal fees and costs, while the father had spent about $172,000.

As part of this exercise, the court honed in on the expert fees that had been paid by each of them. It started by saying that “the parties incurred almost obscene expenses for expert testimony”. Specifically, the mother had paid her expert almost $100,000; yet the court chimed in that “Her expert was of no help to me (or to her)”. Similarly, the fee for the father’s expert was about $60,000 (although the court conceded that the resulting report was indeed helpful).

The trial itself had resolved a number of issues (including support, custody and access), but there was no clear winner: numerous offers had been exchanged over the six years but only on the eve of trial did the father make an offer that would have put the mother “miles ahead”, had she accepted it. Conversely, the mother persisted in taking the matter to trial in “dogged pursuit” of an amount of child support that was unreasonable in the circumstances.

The court noted that the apportionment of legal costs usually proceeds on a costs-follow-the-event basis; they must also be fair and reasonable in the circumstances, and must be in line with the expectations of the losing side. It also acknowledged that in the mother’s financial circumstances she would have difficulty paying even her own lawyer’s bill, let alone any portion of the father’s costs.

Still, it was appropriate in this case to order the mother to pay $30,000 towards the fee the father paid to his expert. The parties were otherwise each responsible for their own costs.

For the full text of the decision, see:

Goetz v. McConnell (2014), 2014 ONSC 2910

Additional reasons to (2013), 2013 ONSC 7949

 

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.

Transfer of Property in Ontario Separation or Divorce – video

 

Wednesday’s Video Clip: Transfer of Property in Ontario 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 explain 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.