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Trial Judge Shirks Duty – Support Order Overturned

Trial Judge Shirks Duty – Support Order Overturned

In a very recent family law case, the Ontario Court of Appeal criticized the trial judge’s decision for being inadequate and incomplete in several important respects, and proceeded to make its own Order as to child and spousal support payable.

In this case, the spouses were married for 18 years, and had three children. During the marriage the husband was self-employed as a commercial real estate broker and the wife took care of the children.

After they separated in 2006, they signed a separation agreement obliging the husband to pay a blanket $10,000 per month, as an undifferentiated amount to cover both child and spousal support. A review would take place after two years. In the meanwhile the wife had taken a job as a secretary and was earning about $45,000 per year.

When the two years had expired, the husband instigated the review process but the parties were unable to reach a mediated settlement despite several attempts. They brought the matter court to have their matter resolved.

At the trial, the judge found that the husband had both misled the wife as to his income when they signed the separation agreement, and also failed to accurately disclose his income afterwards for the review process. Still, the trial judge adopted what the husband proposed as a “compromise”: the husband would keep paying the $10,000 per month, but it would notionally be allocated as $2,000 for child support and $8,000 for spousal support.

The trial judge made the Order accordingly; however, the husband later appealed it to the Court of Appeal. He claimed that trial judge’s reasons provided insufficient explanation as to how the appropriate support level – which the husband himself had proposed – had been determined.

The husband’s appeal was successful. First of all, the husband’s “compromise” approach was not a proper foundation upon which the trial judge should have made the child support or spousal support award, since it overvalued spousal support and undervalues child support without any reason or explanation for doing so.

More importantly, the Court of Appeal decided that the trial judge’s reasons for judgment were entirely deficient, in that they:

• failed to explain the proper basis for the support orders made;

• failed to provide justification or explanation for the gap between the $2,000 a month for child support, and the generous $8,000 monthly spousal support award;

• made only general findings about the husband’s income, and didn’t even specify what he determined that income to be;

• failed to provide any justification for departing from the Child Support Guidelines; and

• failed to provide any reason for refusing to apply the Spousal Support Advisory Guidelines.

The Court of Appeal did note that the trial judge had strongly disapproved of the husband’s behaviour during trial, and the fact that he had been under-reporting his earned income and was earning less in commercial real estate than he was capable of. Nonetheless, none of this excused the trial judge’s failure to provide a properly-reasoned legal basis for the award.

Rather than send the matter back to trial, the Court of Appeal went on to determine the proper support amount. In light of the husband’s dishonesty and lack of financial disclosure, the Court attributed an annual income of $250,000 to him. Based on that income level, and applying the Child Support and Spousal Support Guidelines, child support was increased to $4,000, but spousal support was reduced to $4,500.

The Ontario Court of Appeal’s decision in Gagne v. Gagne, 2011 ONCA 188 can be found at: http://bit.ly/fdec5H

Russell Alexander and our team of family law professionals can assist you with ascertaining how child and spousal support amounts should be calculated. To learn more about this and other family law issues please visit our website at www.russellalexander.com

Husband Barred From His Own Divorce Trial

Husband Barred From His Own Divorce Trial

A recent Ontario Court of Appeal decision called Purcaru v. Purcaru confirmed that – although it may not happen often – in the right circumstances courts have the discretion to strike out a party’s pleadings and effectively bar them from participating in their own litigation proceedings.

In this case, the husband and wife were married for 7.5 years and had two children. They separated in 2003 and the wife sought a divorce in 2004. However, the litigation between them was very acrimonious and protracted, and over the next few years involved numerous court attendances and motions, as well as allegations by the wife that the husband had failed to comply with disclosure obligations and various interim orders. The husband suffered from depression and attempted suicide in 2008, and his recovery stalled proceedings even further.

The trial was finally scheduled for late 2008. Immediately before it was set to begin, and based on the assertion that the husband had committed multiple and continuing breaches of various non-depletion and restraining orders by the court, the wife brought a motion to strike his pleadings entirely, which would disentitle him from participating in the trial.

The trial judge granted this request: the husband’s pleadings and financial statements were struck, and he was precluded from participating in the trial except as an observer. The judge also granted the wife’s request for a divorce and her request for monetary relief.

The husband appealed unsuccessfully to the Court of Appeal. That Court found that – while it was an option that should only be used in exceptional circumstances where no other remedy would suffice – in this case the trial judge had appropriately used the discretion that all courts have to restrict the husband’s participation in the trial. Before making the ruling the trial judge taken appropriate steps to safeguard the husband’s interests: he had given the husband the opportunity to consult a lawyer, had emphasized that the husband could be prevented from presenting his case, and had given him a chance to either remedy or explain his failure to comply with the previous orders. The trial judge had also found that the husband’s participation would prolong the trial proceedings (which would be unfair to the wife), and had clearly turned his mind to the severity and potential consequences of the sanction he was about to impose.

Still, and despite the warnings by the trial judge, the husband continued to deny any wrongdoing and showed no indication that he would remedy his misconduct or comply with his disclosure obligations. In these circumstances, the trial judge had been entitled to impose a remedy that would provide a strong disincentive against parties breaching court orders, which in this case involved restricting this particular husband’s right to participate in the proceedings at all.

For the full text of theCourt’s decision in Purcaru v. Purcaru can be found at http://bit.ly/gYzRT9

Further information on family law and related issues is also available on our main website www.russellalexander.com

No Appeal for Husband Paying $110,000 Per Month to Wife

No Appeal for Husband Paying $110,000 Per Month to Wife

Last year at this time, the Court made a temporary award against a husband which ordered him to pay his wife spousal support in the amount of $110,000.00 per month, pending their divorce hearing. He had an annual income of over $3 million; the wife had never worked during the course of their 33-year marriage.

Not surprisingly, in the time since that decision the husband has taken steps to appeal the initial award. Given that this was a temporary order, his first hurdle was to apply for permission (or “leave”) of the court, which he did in March of this past year.

Before that second court, he initially argued since this was a temporary spousal support order made under the Canadian federal Divorce Act, he should automatically be allowed to appeal it without needing the court’s permission, in keeping with rules governing federal proceedings.

The court didn’t buy it.

Instead – citing court-approved policy that appeals from temporary orders in family law matters are to be discouraged – the court applied the traditional test under Ontario law to see whether leave to appeal should be granted.

That test involves consideration, among other things, of whether there is either:

1) a “conflicting decision” by another Ontario judge or court; or

2) “good reason to doubt the correctness” of the initial order.

On the first branch of the test, the husband’s claim that the initial judge had not adhered to established legal principles was rejected. As to the second branch, the husband cited certain procedural and other deficiencies in the proceedings leading up to the order. These included the fact that in arriving at the $110,000 monthly sum, the judge ignored the Spousal Support Guidelines, misapprehended some facts relating to an estate freeze, disregarded certain tax implications, and wrongly took into account the financial needs of the wife’s sister.

Surprisingly – and despite the staggering amount of this unusually-high support award – the court refused to grant leave to appeal. The Court found that neither of the two tests were met, nor was the matter of such “general importance” to the public (as opposed to being important to this particular husband and wife) that the husband should be allowed the right to appeal at this stage.

As a result, the husband will continue to pay the wife $110,000 per month until their divorce finally winds its way through the legal system for final determination.

The initial decision awarding the $110,000 monthly spousal support can be found at: http://bit.ly/dPedIi

The decision reviewing the temporary support Order is: Elgner v. Elgner, 2009 CanLII 68827 (ON S.C.) and can be found at: http://bit.ly/hRjXW8

Further information on family law and related issues is also available on our main website www.russellalexander.com