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Russell Alexander’s #IceBucketChallenge for ALS Canada – video


 

Wednesday’s Video Clip: Russell Alexander’s #IceBucketChallenge for ALS Canada

Accepting the challenge from Janie Alexander, Russell completed his ice bucket challenge and threw down the gauntlet challenging Jamie Alexander at ESG, Lee Rosen in North Carolina and the lawyers at Russell Alexander, Collaborative Family Lawyers.

The Globe and Mail has recently reported:

Until late last month, the ice bucket challenge existed for months on the Internet as a silly social media dare with no connection to any charity. Then, on July 29th, a Boston man with ALS filmed himself dumping ice on his head, and challenged viewers to do the same or give to ALS research. Before that moment, ALS was a tiny voice in the loud world of big attention-grabbing causes like breast cancer and AIDS.

….

The donations are unlike anything the ALS Society of Canada has seen before. Due to overwhelming traffic, it has taken down its regular website and directed all visitors to its Ice Bucket Challenge page. While the campaign started in the United States, Canadian participants helped to direct roughly $400,000 in donations to the organization (and its provincial affiliates) on Tuesday alone. In total, the campaign has raised almost $800,000. As a comparison, in the entire summer period last year, “we’re talking just thousands of dollars,” said Interim CEO Tammy Moore.

In the U.S., the numbers are massive: $31.5-million (U.S.) in donations compared with just $1.9-million in the same period – July 29 to Aug. 20 – last year.

What it’s all about? Amyotrophic lateral sclerosis (ALS), sometimes known as Lou Gehrig’s disease, is a neurological disease that attacks the nerve cells we use to control our muscles. It can start with tightness or weakness in certain muscles, and eventually progresses until a person loses the ability to walk, speak, swallow and even breathe. While these functions deteriorate, the disease leaves cognitive functions mostly intact: a person with ALS is aware of what is happening to them. There is no cure.

ALS in Canada: 3,000: the rough number of people currently living with ALS in Canada; 1,000: the estimated number who will be diagnosed in Canada this year; roughly the same number of people will die from the disease this year; 90 per cent: the proportion of ALS cases where there is no hereditary link to the disease. ALS is indiscriminate, and strikes regardless of age, ethnicity, gender – or family history.

Top countries by participation in the ice bucket challenge: 

1. United States
2. Australia
3. New Zealand
4. Canada
5. Mexico
6. Brazil
7. Germany
8. Philippines
9. Puerto Rico
10. India

To lean more or to donate visit the ALS Society of Canada.

Court Sees Through Support-Paying Spouse’s Shell Game

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Court Sees Through Support-Paying Spouse’s Shell Game

We have written before that separated and divorcing spouses have an obligation to make full disclosure in connection with their financial affairs, and that courts will countervail attempts to reduce income to avoid support. This is vital to the family law process, since accurate financial information is what drives the calculation of each spouse’s respective support obligation to the other.

In a recent Ontario case, the court was asked to consider a situation in which one of the spouses had deliberately transferred away shares in a lucrative business in order to lower the income on which support would be based.

The parties had been married for almost 15 years when they split. The father worked full-time while the mother stayed home to care for their two children. Under a negotiated separation agreement, which was later incorporated into their divorce judgment, the parties agreed that the father’s income would be deemed to be $200,000 per year, and that he would pay child and spousal support based on that figure. His support obligations would remain at that level unless his income changed by more than 10 percent.

Ten months later, the father transferred the entirety of his shares in a business he owned to his new common-law spouse. Then – claiming that his income should be based on Line 150 of his federal income tax return, rather than the $200,000 agreed – he brought a court motion to have his support obligations reduced accordingly. At the time, he owed the mother more than $100,000 in arrears.

The court declined to make such an order, and the Court of Appeal later concurred. Clearly, the father had unilaterally and willingly reduced his income, by making what the court called a “voluntary non-arm’s-length transfer of an income-producing asset for nominal if any compensation “. In other words, the only motive behind the share transfer to the new spouse was to reduce the income on which the father’s support would be based. The lavish lifestyle that the father and his new wife continued to enjoy was at least partly the result of the lucrative business that was now in her hands.

Also, the parties had to stick with the contract they had made (and the subsequent divorce order incorporating it). The $200,000 figure that was agreed to represent the father’s income included money he would earn from the business; he had failed to show that his income had dropped more than the requisite 10 percent to trigger a variation.

For the full text of the decision, see:

Verschuren v. Verschuren (2014), 2014 ONCA 518

 

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.

Kids and Travel – Interactive On-line Form for Letter of Consent

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Kids and Travel – Interactive On-line Form for Letter of Consent

In past Blogs we have discussed the various issues and requirements around children’s Passports,  and the application process for obtaining them. Obtaining a Passport for a child becomes particularly important in situations of separation and divorce, since if one parent wants to travel with the child, then the other parent must usually agree to (or at least condone) the intended plans.

The Government of Canada strongly recommends that even after a valid Passport has been issued, any time there are plans made by one parent for a child to travel outside Canada, whether accompanied by that parent, alone, or with another person (e.g. a relative or family friend or in a group), a Letter of Consent should be obtained from the other parent. For these purposes, a “child” is anyone under the age of majority.

While strictly speaking it is not mandatory, the Letter of Consent serves as evidence that the child has the consent of both parents to travel. It is signed primarily by the individual(s) with the legal right to make major decisions for the child (i.e. the custodial parent or guardian); however, even if it is a parent with sole custody who is travelling with the child, to be on the safe side it is recommended that Letter of Consent be filled out by any parent or other individual with access rights.

The Letter of Consent can be presented upon demand by immigration authorities when entering or leaving a foreign country, or by Canadian immigration officials upon the child’s return. While having a Letter of Consent handy does not guarantee that there will be no difficulties crossing a border, it will likely make the process much faster and easier.
Although there is no standard form, and no official guidelines for its contents, the federal government website now has a interactive on-line form that can be modified and filled out to fit each situation. It is always recommended that the Letter be completed with as much detail as possible.

Finally, the Government of Canada has a useful Frequently Asked Questions page , which sets out the answers to questions arising in various travel scenarios.

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 Child Custody: Who is Considered a Parent? — video


 

Wednesday’s Video Clip: Ontario Child Custody: Who is Considered a Parent?

When it relates to family law, a parent can be the birth mother or father, an adoptive parent, or a step-parent.

In this video we take a look at who is considered a parent for the purpose of child support, along with the role of step parents.

Can A Lawyer Claim “work product” To Prevent Opposing Counsel From Obtaining A Digital Copy of the Submissions filed with the Court?

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Can A Lawyer Claim “work product” To Prevent Opposing Counsel From Obtaining A Digital Copy of the Submissions filed with the Court?

Recently, a hotly contested family case resulted in a several day trial at the Ontario Superior Court.

Both counsel produced hard copies (paper copies) of their case briefs and written submissions and arguments at the end of the trial. Counsel for the husband also produced a digital copy. Counsel for the wife requested that a digital copy of what was submitted to the court should also be produced to the wife.

Counsel for the husband indirectly stated that since he was an officer of the court that the wife would have to accept a hard copy only. Husband’s counsel also mentioned that the digital copy he submitted to the Court was his “work product” and was concerned his arguments may be reproduced and used against his clients in future cases.

Given the level of distrust between the litigants and that the wife required the digital copy to complete her file; wife’s counsel indicated that as a matter of good practice the information, submissions, cases and arguments submitted to the court by one party should be also produced to the opposing party in the same format as it was produced to the court.

Wife’s counsel filed a motion with the trial Judge seeking production of the digital information filed with the Court by the husband. The trial judge agreed with the wife and ordered:

“The court received both paper and electronic copies of the respondent’s closing and case briefs. No exhibits or evidence were received in electronic form. I see no reason why the electronic copy should not be available to the applicant, as was the paper copy. Order to go that the respondent provide to the applicant an electronic copy of his closing and case briefs within thirty days of release of this decision.”

Accordingly, counsel are required to produce to the opposing party information filed with the court in the same format as filed with the Court. There is no “work product” defence or argument that justifies withholding production.

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.

Is $84,000 a Year Too Much to Spend on Post-Separation Rent?

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Is $84,000 a Year Too Much to Spend on Post-Separation Rent?

Is it unrealistic for a separated spouse to expect to maintain the same post-separation lifestyle as he or she enjoyed before the split? Is $7,000 per month for rental or mortgage payments trial too much to ask for, in advance of the divorce trial?

In at least one recent Ontario case called Kochar v. Kochar, the answer to both of those questions was: “Yes.”

The couple was married for 7 years and had two children. The husband, aged 33, earned about $205,000 per year as vice-president of a company, while the 30-year old wife was employed at the same place providing interior design services and earning about $78,000 per year. When they separated in 2012, the wife was terminated and given a six-month severance package. (And one of the issues in their scheduled divorce trial would be whether the wife actually provided services to the company, or whether it was merely an income-splitting arrangement.)

The husband now had a new partner, and was planning to move out of his rental accommodation into a home that was renovated by his parents. The parents would live there as well, as would the husband’s grandfather and his caregiver. The two children of the marriage would also live there part of the time, in keeping with the custody schedule agreed to by the parents.

On a motion to the court, the wife asked for an order for interim spousal support pending trial. The court set out the principles relevant to that general determination, as follows:

• Interim support is designed to provide income to dependent spouses from the time the proceedings start, until trial.

• The Court need not conduct a complete inquiry into all aspects and details to determine the extent to which either spouse suffered economic advantage/disadvantage as a result of the relationship. That question must be left to the trial judge.

• Interim support is essentially a “holding order” to maintain the accustomed lifestyle, if possible, pending final disposition. However, the person claiming interim support must be able to present a triable case that there has been economic disadvantage.

• Assuming such a triable case exists, interim support is to be based on the parties’ means and needs. However, the full merits of the case must await a final hearing.

Against this background, and in the course of asking that the husband be ordered to pay various amounts for interim spousal support, the wife in her proposed budget asked for $7,000 per month for rent or mortgage payments.

The court found this to be wholly unrealistic. Referring to the wife as either “Wife” and “Mother” by alternating turns, the court in its reasons explained:

The Court notes that the Mother in her proposed budget is asking for $7,000 a month for rent or mortgage payments, whereas the expenses for the existing home are approximately $2,000 per month. The Mother does not want to remain in the matrimonial home; she wants to move out and have it sold. When asked at the hearing as to what type of accommodation she wishes to have for $7,000 per month her counsel indicated that it would be the equivalent of the new accommodations of the Husband living with his parents.

The Wife’s assertion that she should be able to spend $84,000 a year on either mortgage payments or a rental payments is not realistic. The Wife is not contributing anything towards the family expenses, even though she is not working, not going to school, has a full-time nanny, the children are in school and they, the children, live week almost about with each parent.

The Wife’s expenses are unrealistic in relation to the Husband’s income and imputed income of $230,971.20. In the Court’s view, lifestyle and perks of both parties has been supported by the Husband’s parents and/or Phoenix Home and possibly by the Wife’s parents. These perks can be withdrawn by the parents and the company at will. There is no obligation to continue to provide them.

When the perks and lifestyle expenses are removed it is financially impossible and irresponsible for the former couple to expect to maintain a lifestyle post-separation, the way they did pre-separation.

Having made this finding as well as other numerical findings of fact relating to the husband’s income and other matters, the court sent each of the parties “back to the drawing board” to provide new calculations as to the interim spousal support that should be ordered. If they could not agree, then the court would itself set the amount.

For the full text of the decision, see:

Kochar v. Kochar, 2014 ONSC 3220

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.

Common Questions About Child Support in Ontario – video

 
 

Wednesday’s Video Clip: Common Questions About Child Support in Ontario

In Ontario, both parents have a responsibility to financially support their children, both when they are living together and if they separate. This applies to all parents, regardless of whether they were married, living together or have never lived together.

In this video we review common questions lawyers are asked about child support, including undue hardship, reducing support, information required, and when support ends

Do 20-Something Kids Need to Stay in the Matrimonial Home for “Stability”?

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Do 20-Something Kids Need to Stay in the Matrimonial Home for “Stability”?

Common among parents these days is the complaint that their “kids” – meaning adult children over the age of 18 – are staying longer at home before moving out on their own, or worse, are returning home after finding that independent living or navigating the job market is tougher than they anticipated.

It begs the question of how much emotional and financial support young adults need (and expect) in the modern family context.

In a recent case the court had to consider whether kids in their 20s needed to remain in the luxurious former matrimonial home for “stability”, after their parents split and until a divorce trial could be held. (The question of whether for family law purposes they were considered “children of the marriage”, and therefore eligible for child support longer-term, would have to be determined at a later trial.)

The facts were these: After a 17-year marriage, the couple separated and brought a court motion to determine the question of how their $1.5 million matrimonial former home should be dealt with. Their three children – currently aged 19, 22 and 25 – were all still living in the home with the father. As the court described the situation: “there is unanimity of opinion that the children are accomplished, high functioning young men with goals and aspirations that their parents encourage and have to date supported financially and otherwise.”

During the marriage, the couple split their income, and the wife went on title as owner of the home. However the husband originally owned the land on which the home was built, had paid all the home maintenance and carrying costs throughout the marriage, and had invested $200,000 into renovations. It was still subject to a debt of about $600,000, and the husband would be seeking an equitable interest in the home at the pending divorce trial.   After a 2013 flood, the couple received insurance funds for repair, but the amount remained unspent because they were unable to agree on how those insurance funds should be spent, and when.

Against this background the wife, who had moved to the Cayman Islands to pursue studies at a veterinary college, applied to the court for an order to have the matrimonial home repaired, listed and sold.   Although the husband was not opposed to the sale at some future date, he resisted selling it now since he was adamant that the home provided security and stability for the children.

The court began by observing:

“The youngest child will become an adult in November of this year; the older two are in their twenties now. Upon the evidence currently available, whether or for how long these young men will continue to live in the matrimonial home is speculative at best.”

The court then pointed out that although the husband earned $320,000 per year, his expenses for housing himself and his sons in the existing home would likely not be satisfied by his remaining (though still substantial) income after he had paid interim spousal support to the wife pending trial.

More to the point, there was no realistic need to maintain that particular house for the stability of his adult or near-adult children, nor was there any reason to delay the repair and sale of the home until trial.   To do so would be to merely add time to the already-lengthy process of translating the asset into funds that could be allocated by the parties in the proportion yet-to-be adjudicated at trial.

The court ordered that within 30 days the parties should agree on how to spend the insurance proceeds to repair the home, failing which the wife would have the authority to deal with the insurance and repairs, and choose an agent with which to list. The court added:

“If an acceptable offer to purchase the property is received, the [wife] shall offer the respondent the opportunity to sign as a spouse on the acceptance of the offer. If the [husband] refuses to sign the offer before it expires, the [wife] is authorized hereby to proceed with the sale without the [husband’s] consent.”

For the full text of the decision, see:

Goodman v. Goodman, 2014 ONSC 3466

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 Dad Be Refunded for Orthodontic Work That Was Never Done?

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Should Dad Be Refunded for Orthodontic Work That Was Never Done?

Determining child support obligations – including balancing out any arrears and overpayments – is all part of a day’s work for the family court. But the recent Ontario case in Chenard v. Hodgson shows that these calculations are predicated on the parties having sufficient proof, either way.

The father and mother had two children together, now aged 26 and 20. Given that both of them were over 18 and living on their own, and were no longer dependent on the parents for their education or otherwise, the father brought a motion to court to have his support obligations changed.

Among other things, he asked to have the mother repay him about $4,000, representing over $200 per month for almost two years. This amount had been included in a 2010 court order intended to cover the total estimated expense for orthodontic work for his youngest daughter. The father had been paying that monthly amount for the two years since the order was made, but now wanted the money back because he claimed that the orthodontic work had never actually been performed on her.

In reviewing the request, the court observed that the father had no evidence to prove that he paid something that should now be repaid. He had no receipts, or any kind of other documented proof that would satisfy the court. Moreover, even if he did have such proof, it could not be overlooked that he was in arrears for other child support that he owed (unrelated to the orthodontic work), which totalled over $8,500.

Until the father could provide complete evidence showing the alleged overpayments for orthodontic work he was simply not entitled to an order for the alleged repayment in this regard. (However, the court did terminate his going-forward obligations to pay for the dental work, but also made certain adjustments to take the $8,500 in child support arrears into account).

For the full text of the decision, see:

Chenard v. Hodgson, 2014 ONSC 3074 (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.

Ontario Child Support: How Do You Arrange For Support To Be Paid? – video

 

Wednesday’s Video Clip: Ontario Child Support: How Do You Arrange For Support To Be Paid?

Sometimes parents are able to work out child support payments on their own. Other times, they get help from a mediator, or a judge determines what the payments will be.

In this video we examine how support payments can be made, the need for financial information and use of the child support guidelines. Written agreements are helpful and the need for separate or independent legal advice is also discussed.