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Think Your Past Support Obligations Are Up-to-Date? Make Sure That Belief is “Reasonably-Held”

Closeup on man`s hands writing a check

Closeup on man`s hands writing a check

Think Your Past Support Obligations Are Up-to-Date? Make Sure That Belief is “Reasonably-Held”

Few weeks ago, a wrote a Blog about an important Supreme Court of Canada decision called S. (D.B.) v. G. (S.R.), which is the leading Canadian case on the question of the factors that go into making a retroactive child support order – meaning an order that the paying parent “cough up” support that should have been paid all along, but which (for various reasons) was never paid.

According to the court, one of the considerations is whether there has been “blameworthy” behaviour by the paying parent; that assessment is a subjective one, but there are several objective factors and elements to be considered as well.

One of those arises from a simple corollary question: Did the paying parent have a reasonably-held belief that he or she was already meeting the required support obligations? If yes, then this is what the court called a “good indicator” of a lack of blameworthiness; if no, then he or she may have been actively or passively avoiding paying the required child support, in which case a retroactive child support order might certainly be warranted.

So what constitutes to a “reasonably-held belief”, in this context?

Naturally, it depends on the scenario. But the concept was illustrated in a subsequent Ontario case called Grose v. Summers, where the court applied the principles in S. (D.B.) v. G. (S.R.), and evaluated the conduct of the support-paying father, as follows:

It is inconceivable in today’s world that a support payor would not know that child support is linked to the payor’s income. A payor cannot have a reasonably held belief that his payment of child support fulfills his legal obligation if he ignores the fact that his income is increasing annually. Mr. Summers income in 3 of the years between 2002 and 2007 was 50% higher than the income upon which his support payment was based. His conduct cannot be excused. While his is not the worst case of blameworthy conduct, it is definitely blameworthy and this court so finds.

It should be noted that this assessment of whether the belief is “reasonably-held” is fact-based, but according to the Supreme Court of Canada in S. (D.B.) v. G. (S.R.), there are certain hallmarks that the evaluating court can use. For example:

• A court may use a straight calculation of how much should have been paid, as opposed to how much was actually paid; the closer the two amounts, the more reasonable the belief by the parent that his or her obligations were being met (which in turn informs the blameworthiness assessment).

• A court assessing the situation should consider any previous court order or agreement that the paying parent was following; since these are presumed valid, the paying parent should be presumed to have been acting reasonably when paying it.

The bottom line is this: a parent who consciously avoids his or her child support obligations, or who does not disclose relevant increases in income, are very likely to find themselves facing a retroactive support order. All the more so where the avoidance/lack of disclosure is calculated and deliberate.

For the full text of the decision, see:

S. (D.B.) v. G. (S.R.), 2006 SCC 37 (S.C.C.)

Grose v. Summers, 2009 CanLII 55695 (ON SC)

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.

Should A Lawyer Punch a Little Kid? – video

 

Wednesday’s Video Clip: Should A Lawyer Punch a Little Kid?

Above the Law recently reported:

“In the annals of legal marketing, a lawyer punching out a little kid is a new one (but let’s be honest, a welcome one).
Though that’s the odd premise of the latest ad from attorney Mike Slocumb, aka “The Alabama Hammer.”

A tipster sent us this ad, declaring it comedy gold. He could not have been more wrong. Not that watching 2nd Period Smackdown isn’t entertaining, it’s just this isn’t even the best advertisement from the Alabama Hammer.”

So what do you think, is this an effective advertisement or does it reflect poorly on the legal profession? Do you want to see more adds from the Alabama Hammer?

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.

Worried About Having Your Income Grossed-Up for Support Purposes? Here’s Some Court-Inspired Insight

top up

Worried About Having Your Income Grossed-Up for Support Purposes? Here’s Some Court-Inspired Insight

As we have written before (such as “Court Disbelieves Father Claims About Income for Support Purposes – Concludes Lack of Job Search Means Father Already Earns a Good Living”;  and “Husband Downgrades Job, Then Quits Altogether – But Support Stays the Same” about the concept of “imputed income” in spousal and child support calculations, where the court decides that a paying spouse is deliberately under-employed, all as a means of artificially reducing the income on which support obligations are calculated. The court’s remedy – which is authorized in Canadian family legislation – is to gross-up or “impute” income to the support-paying spouse, to bring it in line with the true reality of that person’s income or income-earning capacity (as the case may be).

Given the case-by-case, fact-driven nature of spousal and child support determinations, the precise mechanics of a court’s conclusion to impute income can be difficult to generalize. However, in a decision called Smith v. Smith, Justice Chappel took a stab at setting out some of the factors that should guide family courts in deciding whether to impute income in any given case.

Justice Chappel identified the following points and factors as being relevant:

General points:

• Where any party fails to provide full financial disclosure relating to their income, a court is entitled to draw an adverse inference of that lack of disclosure, and to impute income to him or her.

• Similarly, a court may impute income in a situation where it finds that a paying spouse is deliberately under-employed.

• In order for a court to impute income, it is not necessary to establish bad faith on the part of the paying spouse, nor that there was an attempt to thwart his or her support obligations.

• The amount of income that the court imputes is a matter of its own discretion; however, there must be some basis on the evidence for the amount that the court has chosen to impute.

Respecting under-employment by the paying spouse:

• A paying spouse has a duty to actively seek out reasonable employment opportunities that maximize his or her income potential in order to meet the needs of dependants.

• A self-induced reduction of income is not a basis on which a paying spouse can reduce his or her support obligations.

• Likewise, courts will not excuse or reduce the support obligations of an under-employed person who has persisted in un-remunerative employment, or who has pursued “unrealistic or unproductive career aspirations”.

• “Intentional under-employment” occurs where the paying spouse earns less than he or she is capable of, having regard to all the circumstances, and with the court assessing what is reasonable in the situation (taking account the age, education, experience, skills, health, and past-earning history of the paying spouse, as well as the amount he or she could reasonably earn if employed to full capacity).

For the full text of the decision, see:

Smith v. Smith, 2012 ONSC 1116

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

Adult Child is in School Because They Have “Nothing Better to Do” – Do They Still Get Child Support?

adult children

Adult Child is in School Because They Have “Nothing Better to Do” – Do They Still Get Child Support?

Increasingly, parents are finding their kids are “leaving the nest” later and later. There can be several reasons, but often it’s because kids in their late teens/early 20s are still unfocused in their career and educational plans, and have little incentive to leave a rather cushy arrangement. Or they may be attending post-secondary education because they have nothing better to do. But even young adults who are dedicated students may find that in this economy their planned courses of higher education have not yielded them jobs that can financially sustain them. They may need second (or even) third university degrees before they can launch themselves on the path to self-sufficiency.

It’s a widespread societal phenomenon, and the individual repercussions are all the more magnified when “child” – who by this stage is often over 18 and is really an “adult” – has parents who are separated or divorced. We have written several prior Blogs about cases in which courts are asked to decide whether an adult child pursuing higher education is still entitled to child support, but the situation comes up very often; since the outcomes are very fact-driven, the more guidance to people in this scenario, the better.

In a recent Ontario case called Menegaldo v. Menegaldo, the court scrutinized closely the issue of whether an adult child is entitled to receive support, and provided a good set of guidelines. First of all, it emphasized that the analysis is fact-driven in every case, and the overriding legislative test is whether the adult child’s education plan is reasonable in terms of the child’s abilities, the plans and expectations of the parents in regard to the child’s post-secondary education, and the needs and means of both the child and the parents.

But with that background in place, the court added that the following factors and questions are also relevant:

• How old is the “child”?

• What are his or her qualifications, experience, aptitude, and abilities?

• What is his or her level of maturity, commitment and responsibility?

• Is the child actually enrolled in a course of studies? Full- or part-time?

• Has the child applied for student loans or financial assistance? Has he or she received any scholarships or bursaries? If so, how much?

• How well can the child contribute to his or her support through part-time employment?

• Is the child’s education and career plan reasonable and appropriate? Or are they in school because they have nothing better to do?

• Is the child succeeding in their chosen course of studies?

• What are / were the parents’ plans for the child’s education, particularly when the family was intact?

• What are the financial means of the parents and the child? What are their respective financial needs?

• How willing is the child to remain accountable to the parents for post-secondary education plans and progress?
(Note that it is not necessary to establish all of these factors exist; they are just part of the courts’ considerations.)

The question of whether an adult child is still entitled to support is a complex one, but in my law practice it often and shows little sign of abating in frequency. Perhaps it’s a sign of the times.

For the full text of the decision, see:

Menegaldo v. Menegaldo, 2012 ONSC 2915

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

Who Pays Child Support in Ontario? – video

 

Wednesday’s Video Clip:Who Pays Child Support in Ontario?

In Ontario, all parents have a legal responsibility to support their dependent children to the extent that they can. In this video, we examine who is responsible to pay child support and why.

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.

Man Gives Woman $130K: Was it a Post-Infidelity Symbol of Commitment? Or Was He Buying an Interest in Her Home?

gift

Man Gives Woman $130K: Was it a Post-Infidelity Symbol of Commitment? Or Was He Buying an Interest in Her Home?

During the course of their 6-year relationship, the man moved into the woman’s home, which she had owned for 10 years. He gave her $130,000, and contributed to her expenses. When the relationship ended due to the man’s infidelity, a dispute arose as to what they each intended the $130,000 payment to represent. Had they agreed that the man was buying half the woman’s home, as he asserted? Or was the money simply a gift, as the woman claimed? This was the main question for the court to decide.

Essentially, this was a “he said/she said” exercise: In assessing the facts and credibility of the party’s evidence – a task the court found “neither simple nor scientific” – the court found that it made no sense that someone with the man’s credentials would ostensibly advance $130,000 to purchase a share in the legal title in the woman’s home and yet fail to document it properly.

The court recounted the man’s self-described achievements this way:

The [man] … describes himself as a highly educated and sophisticated businessman, a recognized pioneer of financial planning in Canada and an offshore private banker.

Wright has a Bachelor of Arts, a Master’s in Business Administration, certifications as a Registered Financial Planner, Certified Planner, and Certified Fraud Examiner and has received a Canadian Forces decoration medal for service in the Canadian Navy. He has authored a book entitled “Demons in the Financial World and How to Spot Them” and was a lecturer at both Seneca College and Centennial College. He states that he has been working on his Ph.D., but that he had to recently withdraw from the course due to what he describes as post-traumatic stress disorder suffered as a result of issues pertaining to this lawsuit.

Yet the man’s version of events was incredible, and the documentation he produced as being all that remained of a massive computer failure was “at times riddled with implausible error”, according to the court. Further, in his dealings with third parties (for example bank employees from whom he was applying for a mortgage), he had self-servingly called his interest in the home “contingent”; conversely he did not declare any interest in the woman’s home in a later application for subsidized housing. In other words, the nature of his professed legal interests in the woman’s home seemed to shift to suit his own needs at any given time.

Similarly, the court pointed out that it did not make sense that the woman, who owns a successful design-services business and had an 11-year old daughter to support, would not want to document the same transaction.

This lack of documentation not only supported the woman’s version of events, but made even more sense in light of the more personal side of her story: She claimed the $130,000 was a gift representing a symbol of the man’s commitment to the relationship, since he had recently proposed to her after being unfaithful. (The man denied any infidelity, but the court found that the evidence showed otherwise). The court elaborated:

I accept the evidence of [the woman] that she did not tell her family and friends because she was embarrassed; embarrassed by the infidelity in February 2007, embarrassed that she forgave [the man] for it and accepted his proposal, embarrassed that he paid her a large sum of money as an apology and a symbol of commitment. I also accept the submissions of [the woman’s] counsel that if [the woman] was going to make up a story that the $130,000 was a gift she would also have made up the details surrounding her receipt of the money.

The court found the man had effectively used the money and a marriage promise to “secure” the woman in a relationship that he felt would be financially beneficial to him: He knew the woman’s parents had given her financial gifts in the past, and he had concluded that they were wealthy.

The court accordingly declared that the woman remained the sole owner of the home, and accepted her evidence that the $130,000 was a gift. It also dismissed the man’s claim for expenses during the time they lived together, and in fact ordered him to pay the woman $3,000 for damage he had caused to the property.

For the full text of the decision, see:

Wright v. Holmstrom, 2015 ONSC 1906

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.

Russell Alexander 2015 Giving Fund Recipient: Bayley Simpson

Bayley Simpson Trailer

Russell I. Alexander Awards 2015 Charitable Giving Fund Grant to Canadian Cyclist  Bayley Simpson who is representing Canada at the 2015 Junior Track Cycling World Championships

Russell I. Alexander Giving Fund

NEWS & PRESS

Thursday, May 28th, 2015

Contact: Darla Weir

Marketing Coordinator, 905.655.6335

Russell I. Alexander Awards 2015 Charitable Giving Fund Grant to Canadian Cyclist Bayley Simpson.

LINDSAY, ON May 28th, 2015 –

A local business has just helped a local athlete and Canadian Cyclist Bayley Simpson with a grant of $500.00.

The Russell I. Alexander Charitable Giving Fund provides grants and financial support to community organizations that are doing great work, but may not be as visible as some of their larger counterparts.

Bayley Simpson says “the grant will help and used for extra costs, such as travel and accommodations, when training in warmer climates, whether on my own or as part of Provincial and National Team projects. In addition, there are many equipment related expenses, including bikes, race and training wheels, and of course consumables, like tires, cables, etc., required for bike maintenance. The support provided by my parents, extended family, coaches, local cycling community and friends, as well as the many generous local business donations, helps to make all of this possible. Without the continued support of my amazing community, I would not be able to compete at this level.”

You can learn more about Bayley Simpson and 2015 Junior Track Cycling World Championships here.BS

About Russell I. Alexander

Russell I. Alexander is a law firm dedicated solely to family law. With five experienced lawyers and a great team of law clerks and support staff, the firm provides guidance on matters relating to family law. For additional information about the Russell I. Alexander Giving Fund, please visit our main site.

Previous Giving Fund recipients include: Covenant House Homeless Youth Shelter, Lindsay Muskies Hockey Association, Whitby Girls Hockey Association, the Lindsay Lynx Girls Hockey Association, and the Kawartha Lakes Food Source.

To learn more about the Russell I. Alexander, Family Lawyers, you can also visit them on Facebook.

Interviews with Mr. Alexander and or his staff can be arranged by contacting 905.655.6335.

 

 

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 we review 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.

Ontario Courts Tell it Like it Is

A judge-cartoon

Ontario Courts Tell it Like it Is

While reviewing a few Ontario family decisions recently, I noticed that the judges introduced their written reasons with a subtle and judicially-uncharacteristic lament, and in some cases, outright incredulity.

Using phrases like “a family tragedy” or “unhappy story” the judges provide a glimpse of some of the empathy and quiet frustration underlying their otherwise-impartial decisions.

For example, in Zesta Engineering Ltd. v. Cloutier, the court introduced the case this way:

This lawsuit is a case study of the risks and consequences of intertwining business, family, and marital relationships. On its face, this proceeding involves claims for breach of fiduciary duty and misappropriation of corporate assets by departing employees, coupled with counterclaims for wrongful dismissal. Beneath the surface it is the unhappy story of the impact of a marriage breakdown on a successful business enterprise, and the decade of litigation that has ensued.

In a case called VanSickle (Elms) v. VanSickle the court began its judgment this way:

This is a family tragedy. The [father’s] relationship with his two children, … is now irreparably shattered. The parties have spent money they could ill afford on four days of trial wherein the [husband] has done his utmost to convince the court that his daughter, a university student, is no longer a dependent and not entitled to any support from him. ….

And from Justice Quinn (who can often be relied on for a little editorializing in his judgments, see my previous Blogs, there is the less-moderate introduction to the decision in Szakacs v. Clarke, where he pointedly tells it like it is:

Introduction

For best courtroom adaptation of a work of fiction, the award goes to the applicant, Clarissa Olenka Szakacs, who shamelessly feigned what she thought was necessary to convince the court to circumscribe access by the respondent to their almost-six-year-old daughter.

One could sit in Family Court for many years and not encounter such a callously conniving and mendaciously manipulative litigant. …

At several points throughout the trial, Ms. Szakacs emphasized that she was a Christian who practiced Christian values. There must be some key pages missing from her copy of the Bible.

Finally, in a judgment from only a few months ago called De Cruz-Lee v. Lee, the exasperated yet still-mindful judge said:

Overview

1 This case is a classic illustration of the difficulty of obtaining justice when a trial is conducted by a party or parties who are self-represented. Ms. Angela De Cruz-Lee (“Ms. De Cruz-Lee”) was self-represented and conducted the trial by herself. It is said that a person who represents himself has a fool for a client. That saying should add something about how self-representation is about the most expensive trial lawyer you can pay for. … [T]his trial originally was scheduled for one to four days and was set … to settle two issues. On November 17, 2014 a further pre-trial was held. The issues were down to ownership of the home estimated to be a one to two day trial. The trial in fact went on for nine days. The dispute was over an approximate $53,000 held in trust. Regrettably, the costs of this trial will consume most if not all of that amount. I note that Superior Court trials in Family Court are governed by a variety of rules. These rules are designed to ensure trials are expeditiously run at some cost efficient level. At this trial, those rules meant nothing. …

In writing this judgment, I have cautioned myself, that in the end, Ms. De Cruz-Lee was poorly represented and I am going to have to make allowance for that fact in making my decision.

Judges are only human. Such sentiments are no real surprise in light of the parade of difficult, doubtless heart-wrenching family disputes that come before them daily – some of which should never have been aired in a Canadian courtroom at all.

For the full text of the decisions, see:

Zesta Engineering Ltd. v. Cloutier, 2010 ONSC 5810

VanSickle (Elms) v. VanSickle, 2012 ONSC 7340

Szakacs v. Clarke, [2014] O.J. No. 6214

De Cruz-Lee v. Lee, 2015 ONSC 1900

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

Thinking of Snooping on Spouse’s Email? Read This First

snooping

Thinking of Snooping on Spouse’s Email? Read This First

If you are involved in a divorce or separation, you may still have access to your spouse’s personal e-mails, and it may be tempting to read them. But that is precisely what got a husband in trouble with the court in a case called Golchoobian v. Vaghei.

The former couple, who were now involved in divorce proceedings, still owned a clinic together and both continued to work there pending full resolution of their legal issues. The husband was caught on the clinic’s security cameras using the reception-area computer to access his wife’s personal e-mail. He was also heard in an audio recording telling someone else certain information about the wife that he could only have known by looking at her e-mails.

At least one of those e-mails had been written by the wife to her lawyer, and this gave rise to a legal issue about whether by accessing them the husband had deliberately violated her solicitor-client privilege. In other words, the wife had justifiable concerns that the husband had gained access to sensitive and private information contained in hundreds of emails to and from her lawyer, which would reveal her litigation strategy in the divorce case against him.

As a threshold determination, the court held that the e-mail in question involved the wife asking for (and the lawyer giving) legal advice that was intended to be confidential. It was therefore subject to solicitor-client privilege, which is a fundamental aspect of the Canadian legal system designed to preserve the confidentiality of information passing between a client and his or her lawyer.

Next, the court did not hesitate to find that the husband deliberately accessed his wife’s personal e-mails and that his explanation to the contrary (that he had come across them while looking at business e-mails for the clinic) were simply not truthful. This was a deliberate breach of the wife’s solicitor-client privilege on the husband’s part, coupled with lies to try to cover up his conduct, and deserved significant court-imposed sanctions.

Although the court stopped short of imposing a hefty fine or striking out the husband’s court pleadings altogether, it ordered him to pay the wife’s full costs of the motion she was forced to bring because of his misconduct. The court also ordered the husband to provide an Affidavit confirming what documents he obtained and what he had done with them, and required him to give an undertaking to the court that he will not repeat the offensive behaviour.

Finally, the court also warned the husband that:

• He must be vigilant to observe the wife’s right to solicitor-client privilege;

• He must comply with the Family Law Rules, the Rules of Civil Procedure and any orders or judgments;

• He will be exposed to serious consequences should he be found to violate those Rules, judgments or orders;

• Future transgressions would attract more serious consequences, including striking his pleadings;

• The consequence of his conduct would “remain a stigma” throughout the remainder of the proceedings.

For the full text of the decision, see:

Golchoobian v. Vaghei, 2015 ONSC 1840 (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