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Posts tagged ‘and enforcement of court orders’

Representing Yourself and Asking for Legal Costs? Read this First

Representing Yourself and Asking for Legal Costs? Read this First

Recently I wrote about a ruling on costs where a self-represented litigant was awarded significantly more in legal costs, than she had requested after trial.

That case, called McMurter v. McMurter, gave the court an opportunity to revisit some of the prior authorities on the issue, and to set out the principles that apply to awarding legal costs to self-represented family litigants.

Based on that review, if you succeed in represented yourself in your family law trial or motion and are looking to be awarded your legal costs from your unsuccessful opponent, here is what you need to know:

  • Whether you are legally trained or not, you cannot claim the same costs as a lawyer would charge. Instead, you can receive a “moderate” or “reasonable” allowance for your lost time.
  • Courts recognize that every litigant must prepare for court to some extent, whether represented by lawyer or not. So if you decide to represent yourself, you can only recover for the time and effort above and beyond what an average person would devote to getting ready for the proceeding.
  • You must also demonstrate that you spent time and effort doing work ordinarily done by a lawyer retained to conduct the litigation, and that you incurred an opportunity cost because of it.
  • Even if you did not give up remunerative activity to represent yourself in court, the court may award you costs for what would otherwise be lawyer’s work on the case. This means that you can get legal costs even if you are a homemaker, retirees, students, unemployed, unemployable, or disabled, etc.
  • The quality of your work as a self-represented person will also be a factor in the court’s assessment of what costs you might be awarded.

In terms of the actual fees, courts can vary widely on how they approach the mathematical calculation. Some will award an hourly rate varying from $20 to $150 per hour, minus the time you would have spent on the case if you had a lawyer present. Others have a “rule of thumb” that allows for a certain number of hours of preparation time, and a certain number of hours of trial time.

In any event, the amount must be reasonable, proportional and with the losing party’s expectations.

Returning to the McMurter v. McMurter case, the court applied these principles in awarding the wife her legal costs award of $30,000, even though she had asked for $18,000. It found that she had successfully represented herself in a complex case where there was a lot at stake. She had been exceptionally well-organized and presented her arguments well, and dealt with complicated legal issues and various family legislation. As the court put it, “She did the work of a lawyer in addition to the work expected of her as a litigant.”

For the full text of the decision, see:

McMurter v. McMurter, 2017 ONSC 725 (CanLII)

Main judgment:

McMurter v. McMurter 2016 ONSC 1225 (S.C.J.)

Fong v. Chan, 1999 CanLII 2052 (ON CA)

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

 

Wednesday’s Video Clip: Obligations to Pay Child Support Even with Undue Hardship


Wednesday’s Video Clip: Obligations to Pay Child Support Even with Undue Hardship

In this video we review a court decision in which the court confirmed that a father was still obligated to pay support for his two children from a first marriage even though: 1) he no longer had a relationship with them; 2) he had a new family (and two other small children) to support; and 3) the child support obligation would cause him undue hardship, in light of his difficult financial circumstances.

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

Evidence from the Internet – Is It Good Enough for Court?

Evidence from the Internet – Is It Good Enough for Court?

In a case I reported on recently called Caine v. Ferguson the father claimed that his income was too low for him to pay child support for his daughter. The court considered evidence designed to refute his claim, put forth by the opposing side and taken from various U.S. music-industry-specific websites. The court wrote:

[The lawyer] submitted that the [father] could be earning $35,000 per annum as a musician. In support of this argument, she attempted to introduce internet articles from two websites from the United States, called Payscale and Musician Wages.com.

The court reflected on the general trustworthiness of these kinds of tendered materials sourced from the Internet, and pointed out that the dependability will vary with their source and nature:

In [prior court cases, the court] permitted the introduction of reports from Ontario Job Futures and Statistics Canada as evidence of income levels for a payor in the insurance industry. In these cases, the reports came directly from provincial and federal governments and had some indicia of reliability. However … I expressed the need to exercise considerable caution in how much weight the court could attach to such documents as they were unsworn third-party statements that could not be tested by cross-examination.

Ultimately, in this instance the court rejected the music-industry website evidence outright, stating:

The documents sought to be introduced here are much more problematic. There was no evidence led that the documents were from reputable sources …  No foundation was provided as to the qualifications of the writers of the documents. The articles were both from the United States. The author of the Musician Wages.com article is an associate conductor of a Broadway play. There was no evidence indicating that he would have any knowledge about what level of income a freelance musician could earn in Toronto. The articles were from 2007 and 2008 respectively. I did not admit the documents into evidence as they did not come close to achieving threshold reliability.

Although a court’s determination will vary from case-to-case, the question of the admissibility and reliability of internet evidence can arise in virtually all kinds of cases, not just those that spring from family disputes.

In fact, it came up squarely in a 2017 immigration case called El Sayed v. Canada (Citizenship and Immigration), where the court’s conclusions included a commonsense point: Information from official web sites, developed and maintained by the relevant organization itself, is more reliable than unofficial ones which contain information about the organization but which are maintained by private persons or businesses.

In a future blog post, I will discuss some of the other principles confirmed and summarized in that recent immigration case.

For the full text of the decisions, see:

Caine v. Ferguson, 2012 ONCJ 139 (CanLII)

El Sayed v. Canada (Citizenship and Immigration), 2017 FC 39 (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

Spousal Support Advisory Guidelines – Are They a Package Deal?

Spousal Support Advisory Guidelines – Are They a Package Deal?

In a decision called Mason v. Mason, the Ontario Court of Appeal considered a narrow legal question: Is a judge entitled to use the Spousal Support Advisory (SSAGs) for partial purposes, but disregard it for others? And if the judge departs from using the SSAGs, must he or she give specific reasons for doing so?

The Masons were a husband and wife who had decided to divorce after a marriage spanning almost 20 years. During their relationship they had worked together to build a successful business, and after separating were able to settle all issues except the amount of spousal support that the husband should pay the wife in the circumstances. They went to court to have a trial judge determine that amount for them.

In his reasons, he had made a finding that the husband’s annual income was about $400,000, including certain corporate income that came from the husband buying out the wife from the business. He determined the wife’s income to be about $82,500.  After consulting the SSAGs to determine the proper range of support, he ordered the husband to pay about $9,000 per month.

The former spouses appealed, each claiming that the trial judge had incorrectly approached the income determinations, and had mis-used the SSAGs in doing so. They took issue with the income that had been attributed to them and with the resulting amount of the support award.

As many of you will know, for Canadian judges who are asked to determine spousal support upon the dissolution of marital relationship, the SSAGs set out a pre-determined – but non-mandatory – set of calculations.   As the name suggests, they are “advisory” in nature.

But in this case the Appeal Court found that the trial judge had used them incorrectly:   In the process of reviewing and setting the parties’ respective income, he had used the SSAGs to set the range of appropriate support, but then had abandoned using them when it came time to make the actual income determination.   The Appeal Court said:

As the trial judge was using the SSAGs to determine the amount of spousal support, it was incumbent on him to either rely on the Guideline provisions for determining income — or to explain why they should not apply.

It’s a thinly-sliced distinction, but means that despite being an advisory guide, once the trial judge had referred to the SSAGs in determining the spousal support range, he was required to at least explain why he considered them inapplicable in the Masons’ case.

With that said, the Appeal Court reiterated that the SSAGs “cannot be used as a software tool or formula” whereby the judge merely plugs in the income figures, obtains a range, and chooses the midpoint. They must be “considered in context and applied in their entirety”. The Appeal Court also pointed out that the trial judge had given too few reasons on how the specifics of the various dollar-amounts were calculated.

In the end, having identified errors in the trial judge’s income calculations for both parties, the Appeal Court declined to send the matter back to trial, and opted instead to make the income adjustments itself. It adjusted the husband’s income downward by about $200,000, and the wife’s upward by about $20,000. The spousal support component, payable by the husband to the wife, was adjusted to $1,500 per month.

For the full text of the decision, see

Mason v. Mason, 132 O.R. (3d) 641, 2016 ONCA 725 (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

Wednesday’s Video Clip: Top 5 Questions About Spousal Support in Ontario, Canada


Wednesday’s Video Clip: Top 5 Questions About Spousal Support in Ontario, Canada

In this video we review the top 5 questions about spousal support in Ontario, Canada.

Spousal support – which is sometimes called “maintenance” or (especially in the U.S.) “alimony” – is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship. Either spouse can make a claim for it, provided:

• the spouses have lived together in a “marriage-like relationship” for at least three years; and
• the claim for spousal support is made within one year of couples’ separation.

The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.

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

Canadian Justice System Rankles Canadian Justice

Canadian Justice System Rankles Canadian Justice

As I’ve reported in the past there has been no shortage of noteworthy decisions from Justice Pazaratz. The case of Chree v. Chree is one of several in which he critiques the Canadian justice system, this time for the shortcomings of what is essentially a bifurcated system.

The facts involved two separated parents who were now each living in different provinces. In such scenarios, Canadian law allows for one party in any single family law dispute to pursue certain proceedings and remedies in his or her home province, while the other party does the same in another province.   But the court order made by a judge in one jurisdiction must often be confirmed by a second judge in the other jurisdiction.

Essentially, it’s a two-step, separate judge/separate hearing system.

In a ruling which sharply critiqued that system for being procedurally inelegant, duplicative, and challenging for judges to work within, Justice Pazaratz began this way:

There’s an old saying: “Two Heads Are Better Than One”.

But not when it comes to trial judges.

The facts involved the parents of two children who had divorced. The mother was living in Ontario with the children, and the father had moved away to Nova Scotia. A court in that province had ordered him to pay child support, which he completely failed to do. He eventually brought a motion to a Nova Scotia judge, asking to have his support obligations changed.

Although the mother was not required to travel from Ontario to appear on that motion (nor did she do so), under the bifurcated system the Nova Scotia order was rendered merely provisional in nature, and still had to be brought before an Ontario judge for confirmation, variation, or rejection.

Enter Ontario Superior Court Justice Pazaratz. Commenting on the two-step system, he wrote:

Two judges. Each hearing different parts of the case. On different dates, many months apart. Having to make decisions on the same case.

It may sound good on paper.

It may even seem like the only practical way to deal with motions to change support, where parties live in different parts of the country and neither can afford to travel.

But except in the simplest of cases, it creates an almost impossible task for judges …

For one thing, there were significant evidentiary hurdles to be faced by each of the judges who were involved:

But the problem with this procedure is that neither court hears from both parties at the same time. The court hearing from one party may not know whether there might be evidence contradicting that party’s position.

But what if the first judge fully believes the Applicant, and the second judge fully accepts the contradictory evidence of the Respondent?

In Justice Pazaratz’s view, efforts to bridge the evidence gap, for example by using teleconferencing or other measures, did not always solve the problem.

While conceding that the two-step system aimed to relieve unfairness for parents living in different provinces, Justice Pazaratz felt that it gives rise to an extensive list of procedural challenges and shortcomings. And while Canadian legislation does provide for reciprocal enforcement of certain support orders (for which the father’s particular order was ineligible), similar concerns still arise in those kinds of proceedings as well. The Justice capped off his exhaustive list of detailed concerns by asking simply, “When will it end?”

Justice Pazaratz has certainly used his family cases as a soapbox for venting his broader concerns over how the Canadian justice system works – or doesn’t work. But perhaps it begs the question: Is this an appropriate role for a judge to take? And if so, is a family law proceeding the right place for a judge to air his concerns and criticisms?

For the full text of the decision, see:

Chree v. Chree, 2015 ONSC 6480

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

Does the End of the Relationship Have to be a Two-Sided Decision?

Does the End of the Relationship Have to be a Two-Sided Decision?

In an older case called Strobele v. Strobele, the court considered a narrow and easily-overlooked question:  If spouses agree to separate and one of them wants to reconcile but the other does not, how do you know when the marriage is officially over for the purposes of valuing the marital property?

After a lengthy marriage, the couple was beginning to have marital difficulties.  After enlisting the help of another couple who were mutual longtime friends, they agreed to a written plan of action that involved the wife leaving the matrimonial home for two months.  The idea was that the spouses would get some time and space from each other, seek support and perhaps some counselling, and then regroup to re-evaluate their marriage.

The court heard evidence that although even though it was not his idea, the husband was willing to participate in the plan, even though the wife had a “firmer goal” of reconciling than he did at that point. As the court explained:

[The wife] sought a commitment from [the husband] that he would not have other women in the house during that time. [The husband] demurred and it was left that each would do as she or he pleased during that time apart. … [The wife] makes the point that she only agreed to leave on the understanding that she was not abandoning the home or the relationship and I accept and I think it is clear that she was not abandoning either at that time. It does seem clear that [the husband] was more ambivalent about the long-term prospects than was [the wife]. He would not agree to the monogamy stipulation during the time apart and he required the two-month limit on the period they would cohabit after the time apart.

As it turned out, when the two months was up the husband told the wife that he did not wish to reunite after all, and that the relationship was over.  After a brief return to what was now a tension-filled home, the wife moved out permanently and started divorce proceedings.

This gave rise to a legal question, namely the date on which the couple could be said to have formally separated, for the purposes of pinpointing the valuation date for the equalization of their matrimonial property.  The wife placed the separation date as being the point at which the husband stated he did not wish to reconcile (i.e. after the two-month break), whereas the husband claimed it was a full six months earlier.

The court pointed out that under the Ontario Family Law Act, the valuation date is defined to be “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.”  Although there is no single factor that determines when this legislative test has been met, the key issue is when the parties know, or – acting reasonably – ought to have known that their relationship was over and would not resume.  The court said:

Continuation of a relationship requires two people. Either can end the relationship without the consent of the other. As a matter of common sense, there will be many cases where one spouse knows that there will be no reconciliation and the other does not because the one has decided he or she does not wish to reconcile, but the other does not yet understand this. A fair determination of this issue requires that an objective eye be cast upon the unique circumstances of the couple. 

Turning that “objective eye” to the couple’s situation, the court ascertained that the separation date was immediately after the two-month break, when the husband indicated a firm intent not to reconcile. At that point, there was no reasonable or foreseeable prospect that they would resume cohabitation, and the marriage had irretrievably broken down.

In contrast, the earlier negotiations mediated by the other couple, and the action plan involving the two-month separation, still pointed to both spouses entertaining the possibility that the marriage could be saved, even if the wife was hoping for that outcome more than the husband.For the full text of the decision, see:

Strobele v. Strobele, [2005] O.J. No. 6312, 34 R.F.L. (6th) 111

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

Wednesday’s Video Clip: 4 Ways To Enforce Child and Spousal Support Orders in Ontario


Wednesday’s Video Clip: 4 Ways To Enforce Child and Spousal Support Orders in Ontario

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are several points about the enforcement of such orders or agreements that are noteworthy, this video reviews some important points to consider.

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

Facebook Steps in to Counteract “Revenge Porn”

Facebook Steps in to Counteract “Revenge Porn”

Recently I posted a few blogs that dealt with the criminal exposure and privacy interests that can be placed at stake when one former relationship partner decides to post salacious images of the other partner without his or her consent, in what has been colloquially referred to as “revenge porn”.

According to a recent announcement by Facebook’s Global Head of Safety, Antigone Davis, the company has deployed custom software tools in the form of photo-matching technology, to prevent users from uploading nude or sexual images of others on its social media platform.

These steps are in addition to exiting measures and policies forbidding users from posting revenge porn; if they are caught doing so (after being flagged by fellow users), their accounts are subject to being deleted. Now, according to company representatives, Facebook also intends to use computer software to identify revenge porn and to automatically match it so that images cannot be posted multiple times.

The move by Facebook may have been initiated in partial response to a Northern Ireland lawsuit by a 14-year old girl who accused the social medial giant of failing to take active steps to prevent a man from repeatedly posting nude images of her without her consent. She sued Facebook directly by way of a pending claim to be brought before the Northern Ireland court, for misuse of her private information, for negligence, and for breach of the U.K. Data Protection Act. That case is still pending.

This initiative by Facebook will also add teeth to existing legislative measures that aim to counteract the instances of revenge porn postings generally. Currently in Canada, the enactment of the Protecting Canadians from Online Crime Act (S.C. 2014, c. 31) already makes it illegal to engage in cyberbullying, including posting revenge porn, and allow police to obtain information about an internet user and obtain a warrant where they have “reasonable grounds for suspicion”.

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

Must Support-Paying Father Abandon Music-Career Dreams?

Must Support-Paying Father Abandon Music-Career Dreams?

In a case called Caine v Ferguson, the court was asked to consider whether a support-paying father of a child, who now had additional children to support, should be relieved of paying $11,000 in support arrears, because he acted as a stay-at-home dad while pursuing a fledgling part-time music career.

The 29-year old father had been previously ordered to pay $332 per month for his first child, who was now 9 years old, based on what the court imputed to be his income of about $35,500. He paid no support whatsoever, and the Family Responsibility Office started taking steps to collect on about $11,000, representing the unpaid support arrears that had accumulated so far. The child’s mother was on social assistance.

The father was now married to another woman with whom he had two additional children. The court described his part-time musical endeavours this way:

He stated that he is a talented musician and that he is writing, performing and producing his own music. He showed the court his recent CD. He says that he is not making any money yet, but he is giving away the CD at no cost and performing at shows for free in order to become better known. He said that his music is being played on music stations. He also has made some music videos that are on the internet.

The father brought a motion asking the court to eliminate the arrears entirely, claiming that he earned no income in the two most recent tax years.

The court found that – despite his child care obligations to his new family – the father was deliberately under-employed, and his decision to stay at home was simply not reasonable in light of his obligations to support his first child. (And it did not help him for the court to learn that he quickly depleted a $10,000 personal injury settlement, obtained after a car accident, by traveling to St. Maarten with his new wife and making music videos).

Rather than try to pursue his music career part-time, the court found that the father could have been earning at least $21,300 per year at a minimum wage job, even taking into account his child care responsibility to his other children. As the court put it:

He is choosing to pursue a speculative music career at [his first child’s] expense. He has no desire to pay child support for [her] and appears quite content with the status quo

He refused to pay child support and completely ignored the order. He has financially abandoned this child. … The court cannot condone such behaviour and needs to send a clear message that there are consequences for acting this way.

… [The mother’s] social assistance entitlement has remained unchanged. It has been the taxpayer who has had to subsidize the [father’s] financial neglect of [his child]

The court concluded that he had made nominal efforts to seek work since 2008, when the order for support of his first child was initially made.  Nothing about his current situation called for a change to that order, other than to adjust the $35,500 that had been imputed to him at the time, since in all the circumstances it was unrealistically high.

The court retroactively imputed that amount of income to the father, and adjusted the arrears slightly to accord with the lower income figure that it imputed. The court also observed that the father could still pursue his musical aspirations on a freelance basis, if he remained adamant.

For the full text of the decision, see:

Caine v Ferguson, 2012 ONCJ 139 (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