Skip to content

Posts tagged ‘court order’

Father Loses Work, Refuses to Sign Negotiated Agreement – Now What?

refuses2

Father Loses Work, Refuses to Sign Negotiated Agreement – Now What?

Couples who have separation agreements in place sometimes have to make changes to reflect new and unforeseen circumstances. But what happens if one of them refuses to sign?

A recent case demonstrates this scenario, and what a court will do once it is asked to step in.

The couple had separated in 2008 after six years of marriage. They signed Minutes of Settlement at the time, which covered most of the legal issues between them including child support. When the husband’s income subsequently increased, it became necessary to vary that agreement. The parties commenced negotiations, set out the framework of a new deal, and were very close to settling on a new support amount. Minutes of Settlement that had been drafted by the wife’s lawyer were sent to the husband for his review.

Then, things took a turn for the worse. The husband was a home renovation contractor, but he lost his major ongoing contract. A partnership in which he was involved also failed. As a result, he was unable to pay child support at the level that had been discussed during negotiations. In fact, he was unable to pay even at the former level.

He refused to sign the draft Minutes of Settlement that had reflected their discussions up to that point.

The wife went to court, asking for an Order that reflected the terms of the Minutes of Settlement that had been most recently drafted and sent to the father. She claimed that she and the husband had reached an agreement on substantially all the issues in dispute, and that a court Order should be granted on the same terms.

The husband, meanwhile, argued that the two of them had not fully come to terms – a minor issue about one of their children’s allergies was still not settled. He also claimed that his present employment situation rendered him unable to pay child support as had been tentatively agreed.

The court described its task as follows: “The court must initially make a finding as to whether the parties had reached an agreement and if it finds that they had done so, it must decode whether to exercise its discretion to enforce the agreement.”

By the law, if the parties had reached an agreement, then it could still be enforced even if it was not signed. But the court was entitled to use its discretion in deciding whether or not to enforce it – and there were certain factors that had to be considered, namely:

1. The agreement’s terms were not improvident or unconscionable.

2. There was no inequality of bargaining power.

3. Neither party acted in bad faith.

4. Neither of their lawyers acted without authority.

5. The terms were sufficiently clear as to avoid further litigation.

6. The terms dealt with most of the issues in dispute.

Here, there were factors going both ways: On the one hand, the agreement was fair, and had been negotiated freely and in person. On the other hand, and the husband had waited 11 months to advise the wife’s lawyer that the last draft he received was unacceptable to him.

Overall, the court found in this case that the husband and wife did not reach a final agreement; it added, however, that even if that conclusion was wrong, the court would nonetheless exercise its discretion not to enforce it.

Instead, the court amended the agreement to the negotiated agreement, with variation to reflect the change in employment and other circumstances that took place since the tentative agreement was reached. The level of child support owed by the husband, both past and going-forward, was adjusted accordingly.

Kalverda v. Kalverda, 2013 ONSC 1795 (CanLII)  http://canlii.ca/t/fwrts

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 Russell Alexander.com

Made in China? Don’t worry the Ontario Court will still Order Child Support

Made in China?  Don’t worry the Ontario Court will still Order Child Support

It being Father’s Day this weekend, I thought I would write about a case in which an Ontario man who took frequent business trips abroad – and who was surprised to learn that he had fathered a child during one of them – was unsuccessful at having the child support hearing heard in another country, instead of here.

The man, who was 42 and married with three children, had always lived in Ontario (and continues to do so). In his self-employed capacity he travelled to China about seven times per year on business.

Apparently, however, he had time for at least some non-business activities on these trips as well. During one of them, he met the 29-year old woman, who had been born and raised in China. (And their stories diverge as to the nature of their subsequent relationship: she claimed they met at a bar where she worked, that he told her he was not married, and that their relationship was a romantic one. He, on the other hand, claimed that the relationship was purely sexual, and in fact he had paid her for sex.)

The woman gave birth in China to a daughter in August of 2011; the man initially disavowed paternity and encouraged her to have an abortion. Subsequent DNA testing established that the man was indeed the baby’s father.

The woman, who currently lives in China with the child, brought an application to the Ontario court for child support.

The man countered with a motion to dismiss, on the basis that the Ontario court had no jurisdiction to entertain the application, and that in any event, it was not a convenient forum in which to hear it. Instead, he claimed that since mother and child both lived in China, and since neither of them had any connection to Ontario, the matter should be heard by a Chinese court instead.

As background to the law in such cases: the potential jurisdiction of the Ontario court is founded on the simple fact that the man is present, and is ordinarily resident in this province. Legally, that fact alone gives the Ontario court the right to hear a child support matter.

However, the Ontario court can still consider whether – notwithstanding this automatic jurisdiction – it should nonetheless exercise its discretion to allow the matter heard elsewhere, on the basis that Ontario is not a convenient forum in the all the circumstances.

In making this determination, the court is entitled to consider:

• the location of the majority of the parties and of the key witnesses;

• any contractual provisions that specify the applicable law or grant jurisdiction to a decision-maker;

• geographical factors;

• the desire to avoid a multiplicity of proceedings;

• the applicable law and its weight, as compared to the factual questions that need to be decided;

• whether, if the Ontario court declines to hear the matter, it would deprive the mother of a legitimate advantage that she would otherwise be entitled to by having the matter heard in the province.

With this in mind, the man claimed that in all of the circumstances and applying these legal tests, the matter should be heard in China, not Ontario.

The court disagreed. First of all, after weighing all of these factors it honed in on the fact that if the matter were heard in Ontario, it would be considerably easier to enforce an order to pay child support against the man, when one was granted. Conversely, it was uncertain whether a Chinese order for child support was enforceable here at all.

Secondly, there were no multiple, potentially-competing claims in the works (e.g. for child custody or access); at this point the mother was claiming only for child support, and nothing else.
Finally, the man – who bore the legal onus to show that China was more convenient – simply did not satisfy that burden in this case. In fact, if the matter were heard in Ontario it would be highly convenient for the man: he would not have to travel, he would have any key witnesses available locally, and he would not have to incur the costs to fly to China. Any inconvenience arising from an Ontario hearing would actually be suffered by the woman (who was willing to bear it).

In the end, the Ontario court decided that it had the jurisdiction to entertain a claim for child support. A hearing would be scheduled.

For the full text of the decision, see:

Long v. Seelman, 2012 ONSC 1342   http://canlii.ca/t/fqbwh

Russell Alexander Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. For further information, or to schedule an appointment, call 1.905.655.6335.

 

 

More About the Family Responsibility Office: Some Common Problems, Addressed

 

More About the Family Responsibility Office:  Some Common Problems, Addressed

In one of last week’s Blog posts, I detailed some of the more specific elements and frequently-asked questions about the Family Responsibility Office (FRO), which is a government office in charge of processing child and spousal support orders, and providing enforcement support for recipients through various means.

To continue on that topic, I am addressing some question from spousal or child support recipients or payors that come up quite frequently:

1) What if the payor’s address is unknown? The FRO can enforce a support order even if it does not have the support payor’s current address or employer information (although it certainly helps!)    Even if the FRO does not have the payor’s current address, telephone number and employer information, the FRO will still register the recipient’s support entitlement, and can track support payments and arrears.

Incidentally, by law payors are required to tell the FRO about any changes to their personal information within 10 days of the change to avoid possible enforcement action.  If a payor does not provide this information within the time stipulated, If we don’t get this information from the payor or the recipient, we have a number of tools available to search for the payor’s address or employment information. Once we find the information we need, we can take enforcement action, if necessary, to recover any money owed.

2) What if the payor has left the province or the country?   In cases where there is a cross-border element, (e.g. the recipient lives in Ontario but the payor lives in another province or in the U.S.) the FRO can take various steps to enforce payment.   These arise through legislation including the Ontario Interjurisdictional Support Orders Act, 2002, which allows the FRO to enforce support orders involving Ontarians and people who live in other reciprocating jurisdictions.

For example, if the payor moves to another province, the Act specifically allows the FRO can ask the province to enforce the support order.  On the other hand, if the payor moves to another country, and provided there is a reciprocal enforcement agreement in place, the FRO can ask the government of that country to enforce the support order.   FRO has entered into enforcement agreements with every Canadian province and territory, as well as 31 countries. These different governments are known as ‘reciprocating jurisdictions’.

Finally, the Interjurisdictional Support Orders Act, 2002 also allows the FRO to:

•Register and enforce support orders issued outside of Ontario;

•Make or change a support order when the recipient lives in Ontario and the payor lives in a reciprocating jurisdiction; and

•Make or change a support order when the payor lives in Ontario and the recipient lives in a reciprocating jurisdiction.

For example the FRO may file a Writ of Seizure and Sale against the support payor in Ontario, which allows the FRO to take any profits the arise on the sale of the payor’s assets, such as his or her home or cottage.  The FRO can also suspend the payor’s driver’s license if needed.

3) What if the payor is self-employed?   In the normal course, when the court issues a support order, it also issues a “support deduction order”, which gives the FRO the authority to ask the payor’s employer (or other source of income) to deduct the support payments from the payor’s income, and forward them directly to the FRO.   (And a payor is obliged to notify the FRO if he or she changes employers.)

However, those payors who are not on a regular payroll, or who are self-employed or unemployed, are responsible for making all payments directly to the FRO.  This can be arranged in one of several ways:  1) Pre-authorized debit (PAD) from a bank account; 2) Internet banking and telebanking; 3) Cheques or money orders; or 4) by mail.

4) Is it true that my car can be impounded for non-payment of support?

As I have detailed previously, the FRO has a wide variety of enforcement options at its disposal.  For example, in some circumstances the FRO can suspend the payor’s driver’s license for non-payment of support.   (Note that this consequence is not generally imposed after only one missed payment, but rather my result after the payor has continued to default on payments and is unwilling to work out a payment plan.  Moreover, this avenue is taken only after the payor is notified in writing in advance, and is given various options to avoid the suspension.)   However,  as part of the Ontario Road Safety Act, 2009 which is effective December 1, 2010, a driver who is found to be driving with a suspended licence under the Highway Traffic Act for (among other reasons) continuing to default on support payments, the police may impound the driver’s vehicle for seven days.   So – as a result of the combined operation of these two events – a defaulting payor may indeed find that his or her vehicle has been impounded.

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 roperty, paternity disputes, and enforcement of court orders.  For more information, visit us at www.RussellAlexander.com

 

 

10 Things You Should Know About Child Support

The parent with custody of a child has the main responsibility for the day-to-day care of the child and has most of the ordinary expenses of raising the child. The other parent should help with those expenses by paying money to the parent with custody. This is called child support.

Read more

Prenupt May Not Shield Against Temporary Support Order

Court orders husband to wife support despite the existence of a prenuptual agreement.

Read more

Court Orders, Changes and Enforcement — Family Law

A discussion of enforcing and changing court orders dealing with parenting and support issues.

Read more