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How To Find More Information About Ontario Family Law – video

 

Wednesday’s Video Clip: How To Find More Information About Ontario Family Law

In this law video we review the different ways you can get more information about family law.

There are many professional people, organizations and other sources that can help you or provide information about family law issues, including:

1. An information centre specializing in family justice

2. A parent education course for separating parents

3. Duty counsel at a legal aid office

4. A community legal clinic

5. A university law school with a student-run legal information service

6. A law society or bar association referral service for a lawyer

7. A divorce support or self-help group

8. Relevant library books and videos

9. The yellow pages, white pages or blue pages in your telephone book have listings for
many of these resources, and

10. A librarian at your public library may also be able to help you.

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

The Perils of “Homemade” Court Orders

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The Perils of “Homemade” Court Orders

We wrote recently about a case called Cinapri v. Fleck, where the main issue involved a dispute between the parents as toIn that context, the case highlights the difficulties that can arise when parents try – in good faith and with the best of intentions – to negotiate agreements for themselves, which are later endorsed by the court and incorporated into a formal document known as a Consent Order.

While this intent on parents’ behalf may be motivated by numerous factors – including the desire to minimize conflict, to advance the best interests of their children, and to save lawyers’ and court costs – the court in Cinapri v. Fleck summarized the problems inherent in this approach:

Every day, judges across the province make temporary or final orders in family law cases that are based on language engineered by the parties themselves. The parties or their counsel often wordsmith the terms of the consent, minutes of settlement or draft order with little or no input from the court upon reaching a resolution of the dispute between them. Even though the language used in a consent, minutes of settlement or a draft order are subject to the approval of the presiding judge, I think it would be fair to say that those consent documents often do not contain language that is as precise as the terms a judge would normally craft when making an order after a contested hearing. This is one of the reasons why language in a Consent Order is often contentious, particularly where the parenting of a child is involved.

In that case, the particular quibble between the parents that required their return to court was whether their use of the mandatory “shall” in the Consent Order was to be strictly observed. The father insisted it was; the mother claimed that she performed her obligations in good faith and that the father was holding her to a standard not required by either the spirit or the letter of the Consent Order.

After scrutinizing the wording of seven specific paragraphs of the Consent Order, and after reviewing whether the mother had complied to a legally-sufficient extent, the court made further detailed orders to clarify what she still needed to do.

In this case the parents may have thought they were speeding their litigation along, negotiating their own solutions, and saving themselves legal fees in the process. All of which is admirable – but in the end they still had to hire lawyers to represent them before the court to sort out a relatively minor technical dispute, focused on the meaning and intent of the words they used in the Consent Order.

For the full text of the decision, see:

Cinapri v Fleck, 2016 ONSC 1297 (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

Seven Adult Kids Pool Their Money So Mom Can Buy Family Home – So Whose House is it?

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Seven Adult Kids Pool Their Money So Mom Can Buy Family Home – So Whose House is it?

The dispute in Andrade v. Andrade was factually-complicated in the way that only family arrangements can be: At its heart was the legal ownership of a home that had been in the family for 40 years. It involved a mother of seven children in a very tight-knit family, together with commingled family funds and undocumented intentions. And it was triggered by a daughter-in law’s desire to have her deceased husband’s contribution toward the home’s purchase-price recognized in law.

The mother of those seven children was named Luisa; she lived in the home from the time it was purchased in 1974, right up to her death in 2014. The initial problem was that both the $58,500 purchase price for the home, as well as virtually all the money needed for mortgage payments and upkeep, had historically come from her unmarried (and now-adult) children, not from Luisa herself. As the trial judge explained:

Everyone who testified at trial … described a tight-knit family that greatly respected and continuously supported their mother, and that tended to pool resources to an unusual extent. As each child left school and began their working lives, they contributed their paycheques (or a substantial portion thereof) to their mother for her support and for support of the children still too young to work.

For each of Luisa’s seven children, this pooled-earnings arrangement ended only when they married and moved out of the home. This meant that the source of the money used to purchase and maintain the home had always been commingled and indistinct.

But an added legal problem arose from the manner in which title to the home was taken: Soon after it was purchased in 1974 the home was put in the names of two of Luisa’s sons, one of whom was named Joseph. Along with his other unmarried siblings, Joseph had been contributing his earnings to the pooled family funds, until he married a woman named Manuela.

After Joseph died, it was this Manuela (i.e. Luisa’s daughter-in-law) who brought an action to have the court make a declaration as to the rightful ownership of the family home that Luisa still lived in. In the role of widow and executor of her deceased husband Joseph’s estate, Manuela asked the court to declare her to be a beneficial owner of a half-interest in the home, in recognition of Joseph’s financial contribution towards its purchase and maintenance, as well as his status on title.

Luisa, in contrast, asked the court to declare that she owned the entire home herself, even technically though she did not hold legal title. (And Luisa died before the trial, but the action was carried on by her estate. She was unsuccessful, and her estate appealed).

Central to the trial court’s earlier ruling was the conclusion that – light of the family’s pooled-fund arrangement – Luisa “had no money of her own”. This meant she could not have made any financial or other legally-recognized contribution to the house that she technically did not even hold title to.

This conclusion, the Appeal Court found, was a mistake. Simply because the source of Luisa’s money was through gifts from her unmarried adult children (rather than employment income that Luisa may have earned herself), this did not mean it was not her money. This conclusion remained true even if those adult children gave with the intention that Luisa would use the money to support other family members.

Moreover, at various times over the years Luisa had single-handedly rented out parts of the home and was also in receipt of both old age security and a legal settlement, all of which funds were deposited into her own bank account and used for mortgage payments, home maintenance, and expenses. These funds also counted as Luisa’s money for the purposes of crediting her with a contribution to the home. In contrast, none of the adult children ever made such payments or contributions, and the court found that none were expected to.

The key time for assessing the legal situation, and Luisa’s intentions especially, was at the time the property was purchased in 1974. Using that reference-point, there was nothing to indicate that Luisa intended to buy the home for her children’s legal benefit, or to gift it to two of her sons, even though she may have put title into their names.
The Appeal Court found that the situation gave rise to a “purchase money resulting trust” in Luisa’s favour for the full value of the home; this recognized Luisa’s legal interest notwithstanding that title was registered to her two sons.

For the full text of the decision, see:

Andrade v. Andrade, 2016 ONCA 368 (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

What Are The Child Support Guidelines? video

 

Wednesday’s Video Clip:What Are The Child Support Guidelines?

In this law video we discuss the child support guidelines.

In 1997, the federal government brought in a set of new rules and tables for calculating the amount of support a parent who does not have custody of his or her child must pay to the parent who has custody.

These rules and tables were later adopted by the Ontario government and are set out in the Child Support Guidelines.

A link to the Federal Child Support Guidelines is provided in the More Information, Courts and Statutes section of our web site russellalexander.com

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.

Travel Outside Canada: Will My Child Custody Arrangement Be Recognized?

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Travel Outside Canada: Will My Child Custody Arrangement Be Recognized?

Recently I wrote about how to apply for a Canadian Passport for a child. But with the prospect of Canadian children travelling abroad, separated or divorced parents may have concerns over what might happen if their child custody issues flare up while they are at their destinations or even en route. Here are some things to think about:

First Things First

• Long before you even decide to travel with your child out of Canada, make sure your specific custody agreement or separation/divorce order allows it. This may involve some consultation with a lawyer, but it will avoid last-minute disputes or disappointments after you have already incurred the expense of travel.

• Make sure you have a Letter or Permission (sometimes called a Letter of Consent), signed by the other parent, which gives you his or her permission to enter or leave the country with the child. Although it is not a legal requirement in Canada, it can make travel much easier because some foreign immigration authorities may ask to see it before allowing you to enter or leave.

• Ensure that you have proper identification for both you and your child. This includes not only a valid Passport for each of you, but also evidence of residency, and documents to provide evidence of your custodial rights as well.

• Consult with the Government of Canada website [link to https://travel.gc.ca/] that provide various Guides for parents considering travel with their children.

Could My Canada-Issued Custody Order Come into Question?

Be prepared for the possibility that your Canadian child custody order – though validly issued and fully enforceable in Canada – may not automatically be recognized in the country to which you are travelling. This may result in difficulties when leaving the country.

In countries where you think this may become an issue, you may want to confirm your own status or that of your child with the country’s Embassy or Consulate in Canada, before you travel.

What if a Custody Issue Arises While We Are Away?

Ideally, you and your child will be travelling with either the written consent of the other parent, or with proof of court-ordered entitlement. However, in some unfortunate situations, a custody dispute might arise while you and your child are abroad.

In that case, you can contact the Case Management Division of Global Affairs Canada. These officials can provide you with information about:

• The legal system in which you are travelling, and specifically relating to family law and local customs;

• The contact information for local lawyers, as well as that of family counsellors and social workers; and

• How to answer questions posed by local officials as to the purpose and certification of the Letter of Permission that you have supplied in the course of travelling.

These officials may also serve as a liaison for you between local authorities and Canadian ones (such as law enforcement, social services, etc.).

With that said, note that Canadian government officials located abroad do not have authority to:

• Intervene in private legal matters (including your family and custody dispute);

• Provide legal advice;

• Take legal procedural steps towards enforcing your Canadian custody agreement in that other country;

• Force the other country to make a specific determination in your custody case; or

• Provide financial assistance to you in connection with pursuing your legal rights, or for travel, accommodation or other expenses.

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

Self-Reporting Your Income: How to Go Wrong

Canada Revenue Agency Warning Sign, A Canadian road warning sign with words Canada Revenue Agency with a sky background

Self-Reporting Your Income: How to Go Wrong

If you are a separated or divorced parent and also self-employed, then you likely know of your legal obligation to report your income so that any child support obligations (or entitlements) can be determined under the federal Child Support Guidelines (the “Guidelines”).

This can be more complicated than you may think. Because unlike those who receive a straight salary, if you earn your living through self-employment, or if you are paid through a corporation, then the calculation of your income can fluctuate greatly from year to year. It may also require some crystal ball-gazing, and be driven by numerous esoteric variables and discretionary business-decisions.

Not surprisingly, when family disputes involving one or more self-employed parents end up in court, the judge is authorized to closely scrutinize your self-reported income to fix the true amount. As part of this exercise, the Guidelines allow the judge to “add back” or impute income to your declared income in certain cases. These include situations where you:

• Are intentionally unemployed or under-employed;

• Divert income;

• Unreasonably under-use property that could be used to generate income;

• Fail to produce income information when legally required to do so;

• Deduct an unreasonably high amount of expenses from income (and this is not solely governed by whether the deduction is permitted under the Income Tax Act); and

• The beneficiary under a trust.
(The Guidelines also allow the court to impute income to you in certain defined tax scenarios).

Needless to say, there is a lot of gray-area in that list; for example, in a small corporation or single-person business you may have a lot of leeway in determining the amount of expenses that you deduct from income. Essentially, it is an “executive decision” in the colloquial sense, highly dependent on factors unique to your specific self-employment arrangement, and may vary from year to year as business needs and economic factors dictate.

In fact, the over-generous deduction of business expenses is the area where most self-employed parents trip up in reporting their total income for child support purposes. Here are just a few of the ways that you can go wrong in reporting income:

• By trying to deduct business expenses for what are actually recreational purposes. For example, in a case called Dunham v. Dunham the court added back 100 percent of the amount that the self-employed spouse had tried to claim for gasoline and oil expenses relating to a snowmobile and an airplane.

• By being over-generous in deducting expenses for items that have a dual purpose. For example, in A. (A.) v. A. (C.) the court disallowed certain capital cost allowance deduction in relation to a $60,000 truck and a computer, because they were used by the father (who was a private investigator) for both personal and business-related purposes).

• By hiding behind your accounting professional in justification of various decisions made in coming up with an income amount;

Note the following:

• Just because the deduction is allowed by the Canada Revenue Agency (CRA) does not mean it will be allowed for Guideline support and income-determination purposes.

• On the flip-side, if the deduction clearly disallowed by the CRA, then it will also be disallowed under the Guidelines when calculating income.

• The fact that a deduction may have survived a CRA audit does not mean that for child support purposes the deductions will not be added back by the court if warranted. Family courts have a great deal of discretion in this area.

For the full text of the decisions, see:

Dunham v. Dunham, 1998 CarswellOnt 4571 (Ont. Gen. Div.)

A. (A.) v. A. (C.), 2012 CarswellBC 3001 (B.C. S.C.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offerig 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

Enforcement of Child Support in Ontario – video

 

Wednesday’s Video Clip: Enforcement of Child Support in Ontario

In this legal video we review enforcement in Ontario is done through a provincial government office called the Family Responsibility Office (FRO). The court automatically files all support orders made after July 1, 1987 with the FRO. Separation agreements can also be filed there if they have been filed with the court and then mailed to the FRO.

The parent who is to pay support is told to make all support payments to the FRO. When the FRO receives a payment, it sends a cheque to the parent with custody, or deposits the money directly into that parent’s bank account. It only does this after it has received the money from the paying parent.

If a payment is missed, the FRO takes action to enforce the order or agreement. To do this, the FRO needs as much up-to-date information about the paying parent as possible. This includes his or her full name, address, social insurance number, place of employment or business, income, and any property he or she owns. The information about the paying parent goes on a Support Deduction Information Form which is available at the court. This form is given to the FRO along with the support order or agreement. It is important to update this form whenever the information changes.

The FRO uses different ways to get the payments that are owed. It can:

• get the payments directly from the parent who is supposed to pay support

• have the payments automatically deducted from the parent’s wages or other income (other income includes things like sales commissions, Employment Insurance, Workers’ Compensation, income tax refunds, severance pay, and pensions)

• register a charge (a lien) against the personal property or real estate of a parent who fails to pay the support that he or she owes

• garnish (take money from) the bank account of a parent who fails to pay support

• garnish up to 50% of a joint bank account that he or she has with someone else, or

• make an order against another person who is helping a parent hide or shelter income or assets that should go toward support

The FRO can put more pressure on parents who do not make their support payments by:

• suspending their driver’s licences

• reporting them to the credit bureau so that it will be difficult for them to get loans, or

• canceling their passports.

Once the order or agreement is filed with the FRO, then it is the FRO, not the other parent, that is responsible for any actions taken to enforce it.
Sometimes parents receiving support withdraw from the FRO because it is easier to receive payments directly from the other parent. But if problems arise later, and they want to re-file with the FRO, they might have to pay a fee to do this.

Parents who have an obligation to pay support should also know that the FRO cannot change the amount that the order or agreement says they have to pay. If they think that a change in their financial situation justifies a reduction in the amount of support they should pay, they must get a new agreement or go to court to get the support order changed.

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

Appeal Court Confirms: Dishonest Husband Required to Show “Scrupulous Care” for Wife’s Interests

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Appeal Court Confirms: Dishonest Husband Required to Show “Scrupulous Care” for Wife’s Interests

Consider this scenario: Two spouses divorce after 20 years of marriage and three children. They enter into a separation agreement to establish the combined child and spousal support the husband should pay, and agree that a home they purchase after separation would be taken in the wife’s name alone.

However, in 2005 they decide to enter into an Amending Agreement: Among other things, it adjusts the support amount to reflect the husband’s declared income of $80,000 per year, and changes the split on the home’s ownership to 50-50 for each of them (with the title documents amended accordingly).

Years later, the wife later finds out that the husband’s income was not $80.000 as he claimed, but rather closer to $345,000. The vast majority of that income came from various contracting / home building businesses that the husband owned, which generated significant unreported income about which the Canada Revenue Agency was unaware.

The wife then asks the court to set aside the Amending Agreement as unconscionable, and to declare her the sole owner of the property. This is based mainly on the husband’s untruthfulness about his true income. In response, the husband complains that the wife should have raised her objections sooner in their proceedings, and that she should be barred from raising them now.

The questions for the court was this: Should the Amending Agreement be aside in these circumstances?
Not surprisingly, two different courts’ answer was a resounding “yes”. But what was interesting is that both courts concluded that the husband had a duty to act with “scrupulous care for [the wife’s] welfare and interests” in the circumstances.

The matter first came before an applications judge who found that the wife would not have signed the second agreement had she known of the husband’s true income. That judge set aside the agreement and declared her to be the sole owner of the home.

In doing so, the judge found there had been inequality between the parties and that the husband was preying on the wife, especially in light of her economic vulnerability. As such, he had a duty to act with her best interests in mind, and – as the later Appeal Court confirmed – his “failure to disclose that his income was roughly four times that which he represented it to be was a serious breach of that duty.”

There was no doubt on the evidence that the husband misrepresented his income as being $80,000, when in fact he had significant additional undeclared income. The wife did not find out about it until long after she began the court proceedings, so it did not lie in the father’s mouth to she should have raised it earlier in the proceedings.

Also, the Court of Appeal found no fault in the prior judge’s assessment that the Amending Agreement was unconscionable in law, based on both the husband’s non-disclosure of significant income, as well as the manner in which the parties purported to deal with their real estate. Although the concept of “unconscionability” in the context of domestic contracts is not the same as for regular contracts, one principle remains the same: where there are circumstances of oppression, pressure, or other vulnerabilities, and where there is evidence that one party exploits those vulnerabilities during the negotiation process to the point that the domestic contract deviates substantially from what the relevant family legislation would otherwise dictate, the contract need not be enforced.
The Amending Agreement was therefore set aside and the wife was declared the sole owner of the property.

For the full text of the decision, see:

Tadayon v. Mohtashami, 2015 ONCA 777 (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.

Did Traditional Dowry Gift from Groom’s Family Come with Conditions?

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Did Traditional Dowry Gift from Groom’s Family Come with Conditions?

In the interesting recent case called Abdollahpour v. Banifatemi the Ontario Court of Appeal was asked to examine the interplay between Canadian family law on one hand, and traditional Iranian marriage traditions on the other.

The facts involved a young Iranian couple who were married in Ottawa in 2012. As was the custom in the Iranian culture and tradition, the groom’s family had provided the bride with a dowry (known as a “Mahr”) on the occasion of the wedding. In this case, the Mahr was comprised of a 50% interest in a home that the groom’s parents owned.

About a year after the wedding, the bride decided to move out and the couple formally separated. The groom’s parents asked for the 50% interest in the home back, arguing that it had been a conditional gift, with the condition being that the bride not leave the marriage.

On a motion for summary judgment, the bride succeeded in obtaining an order that she keep the 50% interest in the property, with the court finding that had been an irrevocable and unconditional gift from the groom’s parents.

When the groom and his parents appealed, they sought to introduce fresh evidence in the form of a translated copy of the marriage contract, which expressly listed the 50% interest in the home as being part of the Mahr. They also brought a report by a scholar who was an expert on the Islamic traditions, which confirmed that in certain circumstances the Mahr is to be returned by the wife in the event the marriage breaks down. The expert also gave an opinion as to what he thought the couples intended at the time of the transfer.

The Ontario Court of Appeal dismissed the appeal and confirmed that the bride could keep the 50% interest in the home. The Court drew a narrow but important distinction between what the expert could and could not give an opinion on, writing:

The issue is not whether Iranian culture or tradition features the characteristics explained by the expert, but whether the parties agreed to the transfer being subject to the conditions imposed by that culture or tradition. An expert cannot give an opinion as to what the parties’ intentions were – the very issue the motion judge had to decide – which is what the proposed expert purported to do here.

Also, applying the well-established legal test for what constitutes a “gift”, the Appeal Court also confirmed the motion court’s earlier ruling that the transfer of the 50% interest in the property was an irrevocable, unconditional gift. Based on the correspondence, negotiations and discussions between the various parties and their respective lawyers, it was clear that the interest in the home was intended to be a gift; it was also clear from the Deed of Gift itself, which had been prepared in order eliminate uncertainty. It made no mention of their being conditions attached.

The appeal was accordingly dismissed; the bride was entitled to keep the 50% interest in the home belonging to the groom’s family.

For the full text of the decision, see:

Abdollahpour v. Banifatemi, 2015 ONCA 834 (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

The Difference Between Separation and Divorce in Ontario – video

Wednesday’s Video Clip: The Difference Between Separation and Divorce in Ontario

A separation occurs when one or both spouses decide to live apart with the intention of not living together again. Once you are separated, you may need to discuss custody, access and child support with your spouse. You may also need to work out issues dealing with spousal support and property. You can resolve these issues in different ways:

• You can negotiate a separation agreement. A separation agreement is a legal document signed by both spouses which details the arrangements on which you have agreed. In some jurisdictions, independent legal advice is required to make the document legally binding.

• You can make an application to the court to set up custody, access, support and property arrangements under the provincial or territorial laws that apply to you.

• You can come to an informal agreement with your spouse. However, if one party decides not to honour the agreement, you will have no legal protection.

To legally end your marriage, you need a divorce, which is an order signed by a judge under the federal law called the Divorce Act.

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