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Can A Misbehaving Spouse Get Occupation Rent? Maybe.

Right Facing Red For Rent Real Estate Sign in Front of Beautiful House.

Can A Misbehaving Spouse Get Occupation Rent? Maybe.

As we wrote in an article back a few years ago in Ontario the concept of “occupation rent” arises in family law in situations where spouses who co-own a matrimonial home have decided to separate, and one of them physically moves out.

When it comes time to untangle their financial affairs leading up to or part of a divorce, the remaining (i.e. still-occupying) spouse may at the court’s discretion be obliged by law to pay and amount for “rent” to the other spouse starting on the separation date, and based on fair market value rent. This is by no means an automatic right in every case (and indeed, it is considered by courts to be an “exceptional remedy”). However, once established this rent obligation can theoretically continue as long as the occupying spouse remains living on the premises, pending sale of the property and a splitting of proceeds as part of the equalization.

In deciding whether to pay occupation rent, the court must take numerous established factors into account. One of them (from among more than a half-dozen) is the conduct of the non-occupying spouse.

This has been the focal point of several recent cases:

• In a decision we wrote about a few weeks ago, Malik v. Malik, the husband claimed occupation rent from the wife even though he had acted very badly: He had taken the equity out of the family home, had absconded the jurisdiction, and had made no voluntary child support payments at all, even though he could financially afford to. In disallowing his claim, the court said: “A non-occupying spouse ought never receive occupational rent for a period in which he or she has deliberately avoided the payment of child support.”

• Likewise, in Wimalaratnam v. Wimalaratnam, the husband’s claim for occupational rent was even more tenuous: not only did he fail to meet his support obligations to his wife and children, and stopped paying his share of the mortgage and other home expenses, but he was actually excluded from the home as a result of his own criminal conduct. He had been forcibly removed from the home after being charged with several criminal offences, and was later found guilty of one of them. This being the case, the husband was the author of his own misfortune in terms of being excluded from the home; in the circumstances it was not appropriate to award him occupation rent.

• Similarly in Wawzonek v. Page, the husband claimed occupation rent from the wife in connection with the jointly-owned home that she and the children continued to live in after the couple separated. The court refused to grant the request, pointing out that the husband had been removed from the home after being criminally charged by police after a physical altercation. He was largely, if not solely responsible for being ordered to stay away from the home, so he was not entitled to occupation rent in the circumstances.

Trying to predict whether occupation rent will be awarded can be a slippery exercise; as with so many legal determinations, the outcome will always depend on the specific facts.

For the full text of the decisions, see:

Malik v. Malik, 2015 ONSC 2218

Wimalaratnam v. Wimalaratnam, 2010 ONSC 4491

Wawzonek v. Page, 2015 ONSC 4374

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 RussellAlexander.com.

Over Three Years and $500,000 Later, Judge Laments Financial “Tragedy” Parents’ Custody Battle

tradegyOver Three Years and $500,000 Later, Judge Laments Financial “Tragedy” Parents’ Custody Battle

In a costs ruling from earlier this month in an Ontario custody battle, the court began its ruling this way:

There are many factors to be considered in deciding costs. I will review them below.
But pause for a moment to consider the overwhelming tragedy of this case.
These are nice, average people. Of modest means (now considerably more modest). They drive old cars and probably pinch pennies shopping at Costco.
And yet somehow, between them, they spent more than half a million dollars on lawyers “to have a judge tell us something we could arrange ourselves.”
No matter what costs order I make, the financial ruin cannot be undone. They’ll never recover. Their eight year old daughter’s future has been squandered.
How did this happen? How does this keep happening?
What will it take to convince angry parents that nasty and aggressive litigation never turns out well?

The court’s lament was particularly poignant given that the father had written an e-mail to the mother, long before the court case started, imploring her to be reasonable and avoid “spending 40 to 50 thousand dollars apiece in lawyer fees.” In the end, about 3.5 years later, the father had actually spent $300,000 on lawyers in order to obtain sole custody of their daughter, while the mother had incurred more than $200,000 in legal fees to resist his claim.

Given his overall success in the matter, the father went back to court for an order requiring the mother to pay his legal costs incurred. To that end, the court scrutinized the various offers to settle that the parents had made to each other during the course of the hearings, as well as their overall approach to the litigation. In particular, it found that the wife had engaged in “unreasonable behaviour” by refusing the father’s reasonable settlement offers, by fabricating or manipulating the evidence, and by attempting to alienate the child from her father.

For that reason (among others) the court ordered the mother to pay the father $192,000 in costs and then added: “All of this could have been avoided. All of this should have been avoided.”

What are your thoughts on the court’s rather sobering comments?

For the full text of the decision, see:

Jackson v Mayerle, 2016 ONSC 1556 (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 RussellAlexander.com

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, Rita explains 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, click here.

Self-Represented Father Files in Wrong Court (Plus Other Blunders); Court Throws Out Appeal

Right Decision, Wrong Decision Road Sign

Self-Represented Father Files in Wrong Court (Plus Other Blunders); Court Throws Out Appeal

A recent Ontario case underlines an important point: If you decide to represent yourself, don’t expect a court to automatically cut you any slack merely because you don’t know the law.

The facts in Schwilgin v. Szivy were nothing unusual: In the course of protracted matrimonial litigation, the now self-represented father had been unsuccessful in his bids to vary the court-ordered child support that he was required to pay, and to have $75,000 in unpaid child support arrears rescinded.

Unhappy with the court’s ruling against him, the father then decided to appeal. But in doing so he made a number of procedural errors: First, he filed the appeal within the correct deadline, but did so in the wrong court (the Divisional Court). In fact, he persisted in going ahead with that improper filing, even though his mistake was pointed out to him by the mother’s lawyer.

When the father nonetheless showed up in the wrong venue, the Divisional Court refused to transfer the matter to the proper place for the type of hearing he was asking for.

That ruling was rendered in May of 2014. The father decided he would appeal this ruling as well, but missed the 30-day deadline to do so. This prompted him to bring yet another motion to the Court of Appeal to extend the time to file his appeal. However, the father waited more than 1.5 years to take that next step.

Finally, the matter came before the Appeal Court, which was asked to give a ruling on whether to grant the father an extension. This required the Court of Appeal to consider the father’s various procedural missteps and especially his excuses for the 1.5-year delay.

First, the father blamed his filing mistake on the fact that he was merely a “lay person”. But in rejecting that excuse, the Court of Appeal wrote:

[The father] deposed that he appealed to the Divisional Court as a result of a mistake he made as a lay person. In assessing that assertion, I must take into account two other factors. First, in her 2010 reasons [the prior judge] described [the father] as a “talented and experienced computer engineer.” He is a person of some sophistication.
The father also blamed his own long delay on the fact that the mother’s lawyer had not given consent to transfer the appeal to the proper court – even though that same lawyer had been the one to warn the father of his mistaken filing in the first place. The Appeal Court rejected this excuse as well. Indeed, the father admitted to the Court of Appeal that, back in 2014, the mother’s lawyer had tipped him to the fact that he was bringing the appeal in the wrong venue. His persistence in filing there nonetheless – and opposing counsel’s unwillingness to agree to allow the mistake to be remedied – could not now form a valid excuse. Nor could it be said that the Divisional Court made an error by refusing to transfer the matter to the proper venue when initially requested.

Noting that the mother would be prejudiced otherwise, the Court of Appeal refused to grant the father’s request to extend the time to appeal; it added that he was not only full of implausible excuses, but had shown a history of using court proceedings to delay the payment of the child support arrears he owed.

For the full text of the decision, see:

Schwilgin v. Szivy, 2015 ONCA 816, 2015 CarswellOnt 17887

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 RussellAlexander.com

Hospitalized (and Self-Represented) Mother Misses Five Out of Seven Trial Days – Then Loses Appeal

 

 

hospitalized

Hospitalized (and Self-Represented) Mother Misses Five Out of Seven Trial Days – Then Loses Appeal

In a recent Ontario decision, the mother involved in child custody litigation was hospitalized for anxiety only two days into a 7-day trial – and yet the court proceeded in her absence and ruled against her. Perhaps more surprisingly, her subsequent appeal was dismissed.

The background facts were these: After 4.5 years of being unable to reach an agreement on the custody of their two children and related issues, the parents went to trial to get the court’s determination and ruling. Ultimately, the trial judge awarded sole custody to the father, with support to be paid by the mother, in light of what was later described as a “deeply acrimonious and dysfunctional relationship” between the parents.

That ruling followed a 7-day trial that intermittently spanned several months. In the reasons supporting the award of custody to the father (as well as other relief mainly in the father’s favour), the trial judge described the course of those proceedings this way:

The Trial started on May 28, 2014. The Father was represented by counsel. The Mother was self-represented for this portion of the trial.

After the Father had completed his evidence, the trial was adjourned to the next morning to commence the Mother’s case, which was to be solely her evidence. The Mother failed to attend the next day for the continuation of the trial. Considerable attempts were made to contact the Mother that morning. No messages were received by the courthouse advising of any issue encountered by the Mother. The trial was completed without any evidence from the Mother. The Father was to file written submissions the following week. The trial was over.

Or so the court thought:

The following week, the Mother advised that she had gone to the hospital the morning the trial was to have continued and had been too ill to appear. She apparently had an anxiety attack. The Mother decided to retain counsel to complete the trial. The Mother brought a motion to re-open the trial. The Father consented to re-opening the trial to permit the Mother to present her case. A significant adjournment was necessary. I granted the relief on certain terms …

Notwithstanding the adjournment and hiring of new counsel, the trial judge ruled against the mother. She later appealed that decision on several grounds. The Court of Appeal picked up the narrative this way:

After a seven day trial, the trial judge awarded sole custody to the respondent [father] with generous access to the appellant. The appellant [mother] appeals on several grounds.

First, the [mother] submits that the trial judge erred by hearing evidence in the absence of the self-represented mother. After the first two days of trial, the [mother] did not show up for the third day. She went to hospital but did not contact anyone at the court to explain her absence. The court made unsuccessful efforts to find her. In these circumstances, the trial judge allowed the trial to continue. The father’s final witness testified. The [mother] submits that the trial judge should have adjourned the hearing, at least for a day.

The Court of Appeal rejected this. It wrote:

We do not accept this submission. The appellant made no effort to contact the court for six days.

The Appeal Court also rejected the mother’s complaint that there was a reasonable prospect or apprehension that the original trial judge had been biased against her, since he had openly blamed the mother for her absence from trial, and had expressed skepticism over her reason for it. The Appeal Court found nothing in the judge’s comments that were troubling; moreover the ultimately custody and support ruling was not inappropriate or incorrect in light of all the factual circumstances.

For the full text of the decision, see:

Jackson v. Arthur, 2015 ONCA 902

Jackson v. Arthur, 2015 ONSC 1140

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 RussellAlexander.com

Ontario Custody and Access, Who’s Is Entitled To The Child? – video

 

Wednesday’s Video Clip: Ontario Custody and Access, Who’s Is Entitled To The Child?

There is a general misconception that when a couple separates, the children must automatically stay with their mother. But in Ontario, the mother and father are equally entitled to custody of the child.

In this video we review who is entitled to custody of the child, defacto custody, and mistake parents, often fathers, make regarding custody and the establishment of a status quo. She also explains the difference between custody and access.

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 RussellAlexander.com

Is the Our Definition of “Spouse” Evolving?

spouse

Is the Our Definition of “Spouse” Evolving?

In Ontario, the Family Law Act (FLA) is the key legislation governing the “the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the [marriage] partnership”, as the FLA’s preamble expressly states. For the purpose of that exercise, the term “spouse” is defined in section 1 to include two persons who are actually legally married, or who in good faith entered into a marriage that turned out to be void or voidable. (And note that the definition is not limited to male-and-female partnerships only; the definition expressly uses the gender-neutral “two persons”).

However, the FLA also broadens the definition of “spouse” for certain purposes, most notably for determining support obligations between ex-spouses and between former partners in common-law relationships. In section 29 of the FLA the term “spouse” is expanded to encompass two unmarried persons who a) have cohabited for no less than three years, or b) are “in a relationship of some permanence” and have a child together.

That last term – a “relationship of some permanence” – might be somewhat difficult to quantify, and courts sometimes struggle to put their collective judicial finger on where the line is to be drawn.

In an interesting recent decision from the British Columbia Court of Appeal called Weber v. Leclerc, the Court grappled with the meaning to be given to the analogous term – namely cohabiting in a “marriage-like relationship” – that is found in the equivalent family law legislation in the province. In particular, the Court considered the effect that societal norms may have on precisely where that fine line may be drawn.

The court had been asked to determine whether two unmarried former partners, who happened to keep respective finances separate throughout their now-ended union, nonetheless met the legislative criterion for a “marriage-like” relationship. In this context the B.C. Court of Appeal observed:

“Marriage-Like Relationship”

The parties have referred to three decisions of this Court that have addressed the scope of definitions of “spouse” similar to the one in the FLA … It is noteworthy that the cases span a considerable period of time – a significant factor in terms of an expression like “marriage-like relationship”. Social norms surrounding marriage have changed considerably over the years, and it should not be surprising that, along with those changes, evaluations of what relationships are “marriage-like” have also evolved.

Later in the judgment, the Court added:

[The woman] argues that approaches like that taken in [those prior Court decisions] are nothing more than “checklists”, and do not adequately analyse the nature of a relationship. While I agree that a checklist approach is not appropriate, it is my view that cases like [those] are helpful as indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship.

With that said, the Appeal Court did acknowledge that the parties’ intentions – particularly the expectation of a long, indeterminate relationship – may also be important when assessing whether the “marriage-like” standard has been met in any given case. However, it also stressed that mere intentions are not enough; rather they must be coupled with objective evidence of the parties’ lifestyle and interacts.

Should family-legislation concepts and terms such as “a marriage-like relationship” or “a relationship of some permanence” be influenced by social norms and expectations? What are your thoughts?

For the full text of the decision, see:

Weber v. Leclerc, 2015 BCCA 492

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 RussellAlexander.com

Parents Get Along With Kid – But Not Each Other: Is Joint Custody a Good Idea?

child 4

Parents Get Along With Kid – But Not Each Other: Is Joint Custody a Good Idea?

As we wrote in an earlier blog about the decision in Pollack v. Pollack  [1995] O.J. No. 3792 (Gen. Div.), when courts find that even when separated or divorced parents are engaged in a “power struggle,” court will sometimes award them joint custody.

This same approach was taken in a case called S.R.S. v. A.H.H. The parents had been separated for several years, but still had an acrimonious relationship with each other. Nonetheless, each of them had a good relationship with their children one-on-one, and they had continued to share the parenting as they had done since the children were born. The children were clearly bonded to both parents, whom the court said were “satisfactory, albeit not perfect, care providers.”

In this scenario, and despite their relationship problems, the court had to reconsider the shared parenting arrangement. For one thing, both mother and father themselves felt it was no longer working. More problematic was the nature and tenor of the problems between them: They disagreed about financial issues, about whether a certain car was a gift to the mother from the father, and about who should have control of the passports, health cards and social insurance cards.

The former couple also had an established tendency to involve the police in their frequent disputes, (which admittedly never turned physical). For example, the father called the police on the day the trial was to begin because the mother was a few minutes late in sending the children down the hall to his apartment.

In assessing this scenario of ongoing acrimony, the court was mindful of the trend in these kinds of cases; for example in a case called Johnson v. Cleroux, the Ontario Court of Appeal cautioned that “joint custody requires a high degree of cooperation between parents and should be awarded only where parents have demonstrated the ability to cooperate.”

Still, in this case of persistently-warring former spouses the court concluded:

Whatever the genesis of the personality clash, it is clear that these parties have not yet learned to communicate effectively, and that they continue to have verbal fights bordering on physical disputes, even when the best interest of their daughters clearly demands that calm communication occur.

Still, the court was prepared under the circumstances to award them joint custody, although not without first admonishing the parents this way:

In this case, both parents want sole custody. I perceive that for each of them this would be viewed as a “victory”. This Court wishes to make it clear that there is to be no victory in the award of custody. These children are entitled to and must receive the loving support of both of their parents, whatever the terminology is used to address the custody and access situation. Despite the unfortunate verbal disputes and the frequent and unreasonable involvement of the police in this case, the parents have been cooperating, in the sense that the shared care arrangement is working. It is inevitable that the disputes will have caused the children some distress, but nonetheless it is apparent that they have managed to develop a close relationship with both parents and both sides of the extended family. This is hopeful.

Accordingly, the court refused to grant either of the parents the sole custody they wanted; instead it ordered that the existing shared care arrangement should continue.

For the full text of the decision, see:

S.R.S. v. A.H.H., 2003 CanLII 2254 (ON SC)

Pollack v. Pollack, [1995] O.J. No. 3792 (Gen. Div.)

Johnson v. Cleroux, 2002 CanLII 44929 (ON CA), [2002] O.J. No.1801

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 RussellAlexander.com.

Ontario Divorce without Courts: Introduction to Collaborative Practice – video

 

Wednesday’s Video Clip: Ontario Divorce without Courts, Introduction to Collaborative Practice

Collaborative Divorce, also known as “Divorce without Courts” or Collaborative Practice, is a new way for lawyers to help resolve your marital dispute respectfully, and without Courts. In Ontario, Lawyers can help negotiate divorce settlements, while maintaining open communication and creating a shared solution between spouses.

In this video, Abi Adeusi reviews the merits of collaborative practice in divorce.

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 RussellAlexander.com.

Judge may ascertain child’s views and preferences through a judicial meeting

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Judge may ascertain child’s views and preferences through a judicial meeting

Our summer Student Amelia Rodin recently researched the issue of Judicial Interviews of children, she notes that decisions regarding custody and access have an immense impact on the best interests of the child. In order to ensure that the best interests of the child are met, there are three commonly employed methods of incorporating a child’s views and preferences into the judicial process.

Representation of the child by a lawyer is perhaps the most prevalent method, and children are often assigned a lawyer from the Office of the Children’s Lawyer to represent their interests. Expert reports written by professionals such as social workers or psychologists are also used to communicate the child’s preferences to the court in an unbiased manner. Perhaps the least common method of ascertaining a child’s views and preferences is through judicial interviews, or meetings between a judge and child . Judicial interviewing has historically been a controversial method for determining a child’s views, and whether the court embraces this approach is largely based on the judges comfort level and training.

However, in appropriate situations, judicial interviewing may be an important supplement to legal representation and expert reports . In G. (L.E.) v. G. (A.) the court identified three main purposes for judicial interviews with children:

Obtaining the wishes of children; making sure children have a say in decisions affecting their lives; and providing the judge with information about the child.

An interview can occur at many different stages of a case, and in G. (B.J.) v. G. (D.L.), the court held that:

Judicial interviews can take place both at the more informal judicial dispute resolution stage, such as at a family case conference or a settlement conference, and during more formal court hearings and trials.

In the Ontario case P.L.M. v. L.J., Justice R.J. Harper conducted a judicial interview with a 12-year-old child for the purpose of hearing her wishes in regards to custody issues.

In this case, the child was not represented by a lawyer from the Office of the Children’s lawyer, but had seen a therapist who had submitted a report to the court. Despite the therapist’s records, there were concerns that the child did not feel heard by the court.

The interview was held privately in the judge’s chambers and recorded. In addition to the judge and the child, the court reporter, court services officer, and the child’s therapist were present.

Throughout the interview, the child was able to express feelings of parental alienation, and describe situations of deep conflict between her mother and herself. In consideration of the insights provided by the interview, as well as the totality of the evidence presented throughout the case, the judge ordered custody to the father.

For the full text of the decision, see:

P.L.M. v. L.J., 2008 CanLII 35923 (On S.C.).

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 RussellAlexander.com.