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Should Support-Paying Ex-Husband Be Saddled with Ex-Wife’s Financial Irresponsibility?

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Should Support-Paying Ex-Husband Be Saddled with Ex-Wife’s Financial Irresponsibility?

The couple – both musicians in their 50s – separated after 23 years’ marriage. They had a wedding/corporate events band together for which the husband was the keyboardist and manager, while the wife was the lead singer. However, the wife had been diagnosed with Multiple Sclerosis during the marriage and her health was in significant decline. This had translated into them having fewer and fewer gigs for the band; this affected the net income for both of them, and by extension the calculation of support after their split.

Their matter came back before the court to determine how much spousal support the husband should pay, particularly in light of the wife’s ongoing illness-related need. While he conceded that he owed her spousal support, he took issue with the $1800 per month she was asking for, insisting that a figure of $700 was more appropriate in light of his income, her ability to earn at a reduced level, and the fact that she had dissipated a large chunk of her capital assets since the separation.

In particular, the court heard that shortly after they split up, the couple had come to an agreement: The wife was paid $371,000, with 2/3rd of that representing a buy-out of her interested in the matrimonial home, and the remainder being certain RRSP rollovers and the returns on certain investments the couple had made during the marriage. However, within two years after separation, she had already spent or squandered $170,000 of that money, mainly through gambling and making questionable financial decisions. These included her extending a $20,000 undocumented loan to a friend, buying a new car for that same friend to use on a regular basis, and losing $20,000 on the rash purchase of a co-op condo that – it turned out – had no elevator and did not permit dogs, both of which were deal-breakers for her.

The husband said that in light of the wife’s gambling and poor financial decision-making, both of which led to her squandering the capital she was supposed to use for day-to-day living, he should not be held accountable to pay higher support payments to compensate. At the least, her income for support purposes should include those amounts that she could have earned had she invested the $371,000 wisely.

The court considered these arguments, and pointed out that in some sense the wife’s mis-spent capital was irrelevant to how much support the husband should pay because no matter what the amount, it would be insufficient to meet her living expenses and she would have to keep encroaching on the capital regardless. Still, the court agreed that when determining the amount, the wife should be imputed to have earned a reasonable amount of investment income; the effect of her failure to invest should not now be visited on the husband.

In the end, the court determined that under the circumstances the wife should have been earning $2,000 per year through investments, plus another $6,000 from mentoring young musicians and other various pursuits that she could be earning even despite her medical limitations. After scrutinizing the husband’s income and assets in detail as well, the court arrived at a figure of $1,000 per month that he was ordered to pay her in spousal support.

For the full text of the decision, see:

Rossi v. Spanier, [2014] O.J. No. 4880; 2014 ONSC 4984

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 Wills & Estates: What Is A Power Of Attorney – video

 

Wednesday 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 we examine  the importance of a Power of Attorney and what options and decisions you should consider when deciding who should be your power of attorney.

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.

One Spouse Remarries – What Happens to the Support Obligations of the Other? It Depends.

road endsOne Spouse Remarries – What Happens to the Support Obligations of the Other? 

Although Ontario family law is guided by governing principles, much of the litigation is decided on a case-by-cases basis, applying those principles to the unique facts of each case.

One of the common questions I get, is what happens when a former spouse gets remarried to a new partner? In particular, do the first spouse’s support obligations continue, even though his or her former spouse has remarried to someone else?

Of course there is no set answer that applies to every case, but this was among the questions for the court in a case called J. (L.) v. J. (P.), 2014 ONSC 7241. The facts were convoluted and the litigation was acrimonious to say the least; the court set the overall tenor of the judgment in this way:

To trace, in detail, the long and litigious history of this proceeding would only serve to make the reader become depressed and cause the parties to feel a great deal of regret. I will spare the reader and the parties those feelings. …

The basic elements were these: The couple started lived together in 1997, married in 2000, and split up seven years later. After a brief reconciliation, they separated for a final time in 2011. The husband was temporarily ordered pay the wife $2,000 in monthly spousal support, all of which was based on an income of $60,000. This temporary order stayed in place for 7 years, and a final order was granted by the court in 2014.

Meanwhile the wife remarried in 2011. At that point the husband brought a motion to terminate spousal support altogether. (Incidentally, he also applied at the same time to reduce his child support obligations, and to have almost $75,000 in arrears of basic child support rescinded).

In considering his submissions, the court pointed out that under Canadian law the objects of spousal support include: 1) recognizing the economic advantages/disadvantages to spouses arising from the marriage and its breakdown; 2) relieving the economic hardship of the marriage breakdown; and 3) promoting former spouses’ economic self-sufficiency. Further, support is awarded by courts either to address the recipient spouse’s need, or because there is a desire to compensate him or her (usually for giving up educational or employment opportunities to care for the children, etc, which often enhances the earning potential of the other spouse as well).

The court pointed out that when one spouse remarries, spousal support is not automatically terminated; it may however be reduced, especially where the recipient spouse’s support entitlement is based on need, rather than having a compensatory goal.
In this case, the court was not satisfied that the wife was being paid support on a compensatory basis; instead, she was being paid based on need arising from the marriage and its breakdown. This being the case, her decision to re-marry (and the corollary financial benefits that might accrue) were relevant in determining whether and to what extent the first husband’s support obligations to her should continue.

In this case, the $1,000 per month the wife was currently receiving was simply too high. In an effort to be fair to both parties in light of all the circumstances (including the wife’s remarriage), the court cut that support obligation in half, despite not having complete information as to the financial circumstances or income of the wife’s new husband.

As the court explained:

At the same time, [the husband’s lawyer] is correct that the remarriage or re-partnering of the recipient spouse does affect spousal support. The submissions of [the wife’s lawyer] that the Court ought to ignore the income of [the wife] L.J.’s current husband are, with respect, wrong in law. Re-partnering does not automatically mean that spousal support is terminated, but it often means that the amount will be reduced, especially if the entitlement is based on need rather than compensation.

That is another reason why I have reduced by fifty per cent the quantum of monthly spousal support that was sought by the wife.

The court reduced the spousal support award to $500 per month, and in recognition of various other circumstances, also rescinded the child support arrears and made other adjustments to the parties’ financial obligations to each other.

As an aside, however, the court ended its judgment with this plaintive observation:

I would urge the parties to think about how much more of their lives they want to spend in litigation. It is hard to imagine, but these parents have been fighting in the Court for three-quarters of the life of their youngest child. That is very sad.

For the full text of the decision, see:

L.J. v. P.J., 2014 ONSC 7241

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.

Battle of the Ex-Spouses – Who Gets the $2.4 “Prize”?

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Battle of the Ex-Spouses – Who Gets the $2.4 “Prize”?

In a contest between two former spouses, which of them gets the deceased husband’s $2.4 estate? That was the question for the court in a recent Ontario case called Quinn v. Carrigan.

The man, Ron, had been estranged for 12 years from his first wife Melodee, with whom he had two now-adult children. They did not divorce or even enter into a formal separation agreement, but Ron promised that he would always support her. For the last 8.5 years of their separation, he had been living common law with another woman, Jennifer, who had a limited income and medical problems. At the time of his sudden death from a heart attack at age 57, Ron was the sole financial support for both women.

After Ron died, it came to light that he had left nothing in his will or pension for Jennifer; instead, he left his whole $2.4 estate to Melodee and their daughters. He also gave a 1/3 share of his $1 million pension to each of them. The title to the condo that he and Jennifer lived in together at the time of Ron’s death was actually in his and Melodee’s name.

Jennifer applied under the Ontario Dependent’s Relief Act, which allows a court to order Ron’s estate to pay her support – whether or not he left a Will – in cases where he failed to adequately provide for her financially. The court awarded her $350,000 to be paid from Ron’s estate and pension.

But after two trials, and two appeals, the true legal characterization of Jennifer’s status for claiming under the estate and pension was still uncertain. Under pension legislation, for example, the question of who was Ron’s “spouse” was unclear: at least one earlier court had found that it was Jennifer (who had been living with him in a common-law relationship at the time of Ron’s death) rather than Melodee (who was technically still married to him). A later appeal ruling had overturned that finding, concluding that the mere fact of living with Ron did not turn Jennifer into a “spouse” for pension purposes.

Returning to the dependent’s relief application (which was separate from the pension issue), the court reviewed the complex details of Ron’s estate and the various holdings, expenses and entitlements of both spouses and the adult daughters. Although Ron was certainly entitled to arrange his estate so that his first wife Melodee receive the bulk of it (and that it would eventually trickle down to his children and grandchildren), his wishes could not ignore or override Jennifer’s valid legal claims. While there was evidence that he intended to provide for Jennifer somewhat, those intentions were never implemented and in any event they would not have been enforceable unless Ron made full disclosure to her of his substantial wealth (which he did not want to do) and unless she obtained independent legal advice (which was never done).

The court explained that under that same dependent’s legislation, Melodee was still entitled to a “preferential share” of Ron’s estate; however, it was unfair to ignore Jennifer’s support entitlement, particularly since she was in poor health and impoverished. (She had returned to work shortly before Ron’s death, but had lost her job due to an economic downturn. Her health concerns also limited her employment prospects, and had no assets other than her personal belongings, and had some debts. In contrast, the first wife Melodee and the daughters were living comfortably).

Ultimately – and after some complicated analysis – the court allowed Jennifer’s appeal, and awarded her $750,000, comprised of $550,000 for her legal entitlement to spousal support (calculated using the Spousal Support Advisory Guidelines and based on Ron’s significant annual income) plus another $200,000 reflecting her “moral claim” to Ron’s estate.

For the full text of the decision, see:

Quinn v. Carrigan, [2014] O.J. No. 4589, 2014 ONSC 5682 (Div. Ct.)

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 Divorce Law: Is Collaborative Practice Right for You? – video

 

Wednesday’s Video Clip: 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 review the concepts of collaborative practice and many of the benefits this process offers couples going through a separation and divorce in Ontario.

 

Government of Canada Funds Projects Aimed at Helping Families Deal with Divorce or Separation

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Government of Canada Hopes to Help Families Deal with Divorce or Separation

Earlier this month the Department of Justice Canada announced funding for projects that will help families deal with difficult issues related to divorce or separation with funding aimed at improving access to the family justice system and promoting compliance with family obligations related to divorce or separation.

The project is hoping to develop “tools such as a manual that lawyers, mediators, teachers and Le Petit Pont’s supervised access service providers can use to help families that are experiencing a lot of family conflict. These tools will enable users to provide more effective assistance to families in resolving issues related to separation and divorce and to take appropriate steps to intervene where, for example, family conflict appears to be escalating and could put family members at risk of violence.”

The Press Release included the following Quick Facts

Funding for these projects is being provided through the Supporting Families Fund, which is administered by the Department of Justice Canada under the Supporting Families Experiencing Separation and Divorce Initiative (SFI).

The main goals of the Supporting Families Initiative are to make it easier for families to gain access to the family justice system and to encourage compliance with financial support, custody and access obligations.

To help achieve the objectives of the Supporting Families Initiative, funding is provided to non-government organizations for public legal education and information projects, and for professional training projects

In addition, the Supporting Families Fund contributes $15.5 million annually to provincial and territorial governments for the development and delivery of family justice services such as mediation. These services help families resolve issues related to separation or divorce without the need for expensive, time-consuming and stressful litigation.

 To learn more about this and other Federal Government family Justice initiatives visit their main site.

Court Admonishes Litigants Who Drive Up Their Own Legal Fees

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Court Admonishes Litigants Who Drive Up Their Own Legal Fees

Family law litigation is frequently (and unfortunately) filled with intense acrimony between former partners, plus highly-charged emotions and a “win-at-all-costs” mentality. From the perspective of litigation procedure, this often plays itself out with one spouse deliberately inflicting needless inconvenience or added cost on the other, by making otherwise-legitimate procedural decisions that are secretly aimed to drive up his or her legal expenses.

Good examples of this kind of strategic one-upmanship on the part of former spouses include: bringing proceedings in an inconvenient location; failing to cooperate with existing orders; taking unneeded steps or bringing unnecessary motions (or forcing the other spouse to bring his or her own motion to get compliance with an earlier order); generally failing to co-operate, and racking up needless legal costs. These deliberate cost-inflating tactics are particularly egregious in light of the “loser pays” that governs costs in Ontario family proceedings: once the matter is over, the former spouse who is unsuccessful at trial will generally be required to pay the legal costs of the successful spouse.

But despite the common adage that everyone “deserves their day in court”, judges are not unfailingly patient with litigants who choose this strategy. To the contrary, courts will usually express their displeasure by way of an unfavorable costs order, or by crafting an order to apportion costs in a manner that makes it clear that the otherwise-successful party is nonetheless being penalized for his or her behaviour.

This was the situation in a high-conflict Ontario divorce case between two University professors called Czegledy-Nagy v. Seirli. Early in the proceedings, after hearing two preliminary motions for temporary orders relation to custody of the children and prompt sale of the matrimonial home, the court was asked to make a ruling on which of them was to pay the whopping $65,500.00 in legal costs that the husband had apparently incurred so far.

In this context, the court took the opportunity to reflect on the reasonableness of the husband’s decisions as to choice of counsel and approach to litigation preparation, particularly since resolving the issues between him and the wife would doubtless require protracted litigation in the future.

The court wrote:

[The husband] may hire as many lawyers as he wishes to have on his team, from whichever city he wants them to come from. That is his prerogative. (See Grant v. Grant, 2006 CarswellOnt 17 (Ont. SCJ)
However, no litigant should expect to drive up the cost of litigation in that manner for his/her own satisfaction or his/her need for attention and then to have the court saddle the other litigant with that bill.
There are many very competent local counsel (some are even LSUC family law “specialists”) in this Region.

The need to import another from afar is unnecessarily and indulgent.

In any event, the Court need only consider as one factor the amount that a successful litigant has expended to achieve success. Some litigants need more “hand-holding” than others and some counsel bill heavily for the slightest effort where others do not.

Therefore, despite [the husband] spending almost $65,500.00 to get to a temporary order (which required two attendances on motions), the principle of reasonableness that directs my determination is whether a reasonably party, opposing [the husband’s] motions could possibly anticipate an order for costs against her even approaching such a breathtaking quantum were she to lose those motions.

Despite my colleague, Wood J.’s view, expressed in [the decision in] Grant … that losing litigants in centres outside of Toronto should be ready to face “Toronto rates” if their opponent hired a Toronto Carriage Trade Counsel, my view is that [the wife] could not possibly anticipate being held responsible for the gargantuan costs order as sought, (especially when her counsel charged her only $15,000 for those same services).

I find that the Applicant’s cost-request entirely overreaching …

Ultimately – and rather than award the husband his full costs – the court adjusted them greatly downward, taking into account the poor behaviour of both spouses so far. Among other things, it ordered the wife to pay $9,500 in legal costs in connection with the earlier emergency motion brought by the husband, which the court pointed out was necessitated by her “selfish action to remove the children from their home and their father.”

For the full text of the decision, see:

Czegledy-Nagy v. Seirli, 2012 ONSC 119 (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.

Transfer of Property in Ontario Separation or Divorce – video


 

Wednesday’s Video: 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 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.

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 Court Stop Dad From Posting Pictures of Child on Facebook?

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Should Court Stop Dad From Posting Pictures of Child on Facebook?

In a recent Ontario decision called Rego v. Santos, the court had to grapple with a very modern-day issue: whether to prohibit a father from posting pictures of his child on the internet, in what was essentially a social media “publication ban”.

The parents of the now-four-year old child had never married; they met at work and by all accounts had an intermittent relationship. The mother claimed they were sexually intimate on only one occasion, and even denied the father’s paternity until she was reluctantly conceded otherwise based on paternity test results. The father, in contrast, claimed they had good rapport until a minor incident occurred which changed the mother’s disposition toward him. She thereafter made it clear that she wanted the father out of her life and away from the child, and eventually obtained a court order for sole custody, with specified access to the father. But when the father tried to exercise that access, he was refused and actively blocked in his attempts by the mother.

Against this background, the father applied successfully to have custody of the child himself, pointing to the mother’s obstructionist tactics respecting access, and her unwillingness to foster a relationship between the father and the child. The court granted the father’s application for a custody changed, and with access to the mother.

In the context of granting this order, the court entertained a complaint by the mother to the effect that the father had shown poor judgment in connection with this internet use; specifically that he had posted comments about and pictures of the child on Facebook, despite an earlier court order to the contrary. One of the posts included a comment by the father as follows:

To [my daughter] – my “angel”, 2 years ago I was the first to hold you, I was the first one to feed you. Today you turned 2 and although I am unable to see you and be there for you. One day you will ask why, and when that day comes, I will simply tell you to ask your mother. Just know this, I love you … Happy Birthday.
The mother objected on the basis that such postings were actually intended by the father to draw attention to himself, to portray the two parents and child as an intact family, and to garner sympathy for his family situation from other social media users.

In refusing to grant the mother’s sought-after publication ban, the court wrote:

The internet is a relatively new communication forum that does not have established rules of play. Users are on their own to show respect, accuracy and good grace in their publications. [The father] in the past demonstrated his great pride in his daughter that lead to postings of the child’s pictures. I think he could have been a little more tactful in his posted messages, but as just stated, there is a wide range of comments that can be made with impunity. Some people are concerned that children can be located by persons who wish to do harm. Care must be taken to avoid descriptive or locational information in pictures or messages.

[The mother] is a very private person, perhaps obsessively so. As she testified, only her closest friends even know about [the father] as [the child’s] father. The solution is for [the father] to be circumspect in his posted messages, and for [the mother] to be more tolerant of internet communication. I see no reason why [the father] should be interdicted from, or even regulated in his use of internet postings. The only harm I can see from postings would be an intrusion into [the mother’s] unreasonable demand for all-encompassing privacy. If he were allowed to do any postings even under court restricted conditions, my concern is that [the mother] would find fault, and require court attendances to allege contempt.

Another facet of [the mother’s] concern is that persons other than [the father] may make postings. The [mother] may believe the [father] is encouraging others to do so, but that is not probable. In any event, it is not possible for this court to require [the father] to control who else posts messages on the internet.
The court accordingly refused to grant an order restricting the father from posting pictures of family or comments on the internet, and vacated the earlier court order that had purported to prevent him from doing so.

What are your thoughts? Should courts issue a Facebook “publication ban” in high-conflict family law cases? Or in all cases?

For the full text of the decision, see:

Rego v. Santos, [2014] O.J. No. 3341, 2014 ONCJ 330

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.

5 Divorce Questions — Coast to Coast (Canadian Edition): Interview of Quebec Lawyer Orna Hilberger

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5 Divorce Questions — Coast to Coast (Canadian Edition): Interview of Quebec Lawyer Orna Hilberger 

This week we interview Westmount, Quebec lawyer Orna Hilberger. Ms. Hilberger has been practicing Family Law since 1986. She attended McGill University for both an undergraduate degree in Commerce and two Civil Law degrees and completed the Quebec Bar in 1986.

Russell Alexander: “How often do people ask you for advice or guidance about separation and divorce and in which jurisdictions do you practice in?”

Orna Hilberger: “I am constantly asked advice about separation and divorce since I have concentrated almost exclusively in this field for the past 29 years. I am only licensed to practice in the province of Quebec but certainly travel outside the jurisdiction of Montreal for the various courthouses.”

Russell Alexander: “What are the biggest concerns people raise with you about separation and divorce?”

Orna Hilberger: “The answer to this varies as to whether men or women are asking the question. Invariably, men are concerned about payments, whether it be short or long term alimony and concerns over property division. On the other hand, women seem to be more concerned about custody and access and secondarily about financial issues.”

Russell Alexander: “What advice do you have for people looking for a family lawyer?”

Orna Hilberger: “Do your homework. Ask other lawyers for references concerning family law lawyers and look online for cases they may have been involved with.”

Russell Alexander: “What are the top 3 tips you have for people going through a divorce?”

Orna Hilberger:

orna hilberger
1. Be patient and do not expect a divorce to happen overnight.

2. Ensure that any agreement will look after both your short and long term needs.

3. Ensure that you keep a level head because not every issue is a major one.

Russell Alexander: “What do you envision for the future of family law?”

Orna Hilberger: “I envision a collaborative field that urges the participants to make their own terms of settlement in that they have to live with the outcome.”