Skip to content

Posts tagged ‘custody and access’

Court Comes Down Hard on Self-Represented Wife – And Orders $150,000 in Costs Against Her

Image result for judge ruling

Court Comes Down Hard on Self-Represented Wife – And Orders $150,000 in Costs Against Her

On a recent ruling to allocate costs of the litigation between a former couple that lasted almost two decades, the court had some pointed comments about self-represented litigants in general, and about the wife’s unreasonable conduct in the case, specifically.

The court began its judgment this way:

A New Year

It is 2019, and Ian and Katherine Kirby, after 17 years, have a Final Order in their marathon matrimonial struggle.

There is one more battle to fight, however – costs.

The Judgment

The trial, more like a sentence than a sojourn, lasted ten days.  Katherine acted for herself, and she is responsible for much of the prolongation of the hearing.

Although the divorce itself was agreed upon, the court listed the many specific legal issues that needed to be resolved through litigation between the former couple.  Each spouse had been successful on some issues and not others, and some had garnered only “mixed” success.  Overall, however, the court concluded that the husband was more successful in the outcome than the wife, and that he was more deserving of costs.

The court then made some general comments about self-represented litigants:

The proliferation of self-represented litigants in family law cases is here to stay.  I suspect that there are many reasons for that: cuts to legal aid services, the self-help resorted to on the world wide web, and (let us not be so naïve to ignore) the voluntary choice by some litigants to act for themselves because they think that the judge will be forced into being their advocate.

With respect to the latter category of self-represented litigants, it is time that we recognize that there are some (not most, maybe even not many) persons who can readily afford legal counsel but simply choose to act for themselves because they think that it will provide them a tactical edge in the courtroom.  It will cause the presiding judicial official to go overboard with assistance, not just procedurally but substantively, or so goes the rationale.

There is nothing wrong with self-representation.  What is wrong, though, is hijacking the proceeding at the expense of the other side (who has counsel) and then expecting mercy from the court when it comes to deciding costs.

We do not have two sets of rules and principles for costs in family litigation – one for those who hire lawyers and one for those who act for themselves.

It then elaborated on what a court’s guiding principles are when awarding costs:

The principles apply to both types of litigants: (i) in deciding entitlement to costs, consider the presumption that a successful party deserves some costs, and consider the factors outlined in the Family Law Rules, and take into account any other relevant circumstance; (ii) in deciding quantum of costs, remember the basic tenet that the goal is to achieve something that is fair, just and reasonable, and keep in mind the prudent expectations of the parties, and pay attention to the importance of proportionality, and assess (but do not dissect line by line) the reasonableness of the time spent and the fees and disbursements charged.

The court added:

Above all, place some emphasis on why we award costs to begin with – to partially indemnify successful litigants, and to encourage settlement (even where the final result was worse than what the party offered to settle for), and to sanction and deter inappropriate conduct by litigants (even behaviour that falls short of “bad faith”).

The process by which we decide costs is not science.  It is more artful than that.  Consequently, there is an inescapable degree of arbitrariness to any costs award.  To pretend otherwise, I respectfully suggest, is a little rich.

The court then examined the spouses’ respective conduct during the course of the litigation.  In fairness, it noted that both spouses were responsible for the fact that the file languished for years and years. But it credited the husband for making greater efforts to settle without a trial, for being better prepared, and for behaving “much more admirably during trial”.

On the other hand, the wife’s conduct was unreasonable:  She made late-breaking “wild allegations” of being raped by her husband, and failed to comply with prior orders.  Even her submission on costs was filed late, after being granted an extension, and it did not comply with the court’s express directions on its length.  (The court read it nonetheless, as a courtesy).

As the court summed it up:  “She single-handedly caused the hearing to be significantly longer than it should have been” and her conduct in the past two years or so was “worthy of serious condemnation by this Court”.

It concluded that the case “out to have never went to trial,” and that “awarding to [the husband] every cent of the $190,438.63 is in the cards”.

However, the court noted that the wife is “indeed, mentally ill”, a fact confirmed by the family physician’s evidence, and surmised that some of her unreasonableness is due to her psychological issues.  Concluding that this militated against awarding the husband his full costs, the court reduced the total to an even $150,000, all-in.  Those costs were to be immediately deducted from the wife’s share of the proceeds of the matrimonial home.

For the full text of the decision, see:

Kirby v. Kirby, 2019

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: Can an Ontario Support Agreement or Order Be Changed?

Wednesday’s Video Clip: Can an Ontario Support Agreement or Order be Changed? 

Yes, if both parents agree, they can simply make the change to the existing agreement or make a new agreement. The agreement must be dated, signed by both parents, and signed by a witness. The new agreement should be filed with the court where the original one was filed and then mailed to the FRO. If it is not filed with the court, the FRO cannot enforce the new support amount. If the parents cannot agree about changing the agreement, then either parent can go to court and ask the court to make an order about support. A court order can also be changed, but only by the court.

Either parent can go to the court that made the original order and ask the court to change it. The court will do this only if there has been a significant change in circumstances. For example, if:

• the paying parent’s income has gone up or down significantly

• the child has withdrawn from parental control

• the child has moved from one household to another, or

• the child has medical expenses

If the order has not been changed since the Child Support Guidelines became law in 1997, then the fact that the Guidelines are now in effect is also enough reason for the court to consider changing the order.

A change in the income of the parent receiving support is not usually a reason to change the order. This is because, under the Child Support Guidelines, that parent’s income is not usually taken into account when support is set. But there are some circumstances in which their income is considered when support is ordered.

Remember, if you do go to court to change an order, the judge will almost always apply the Child Support Guidelines. Before applying for a change, find out how the Guidelines would affect 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

Family Judge Says:   “The Guidelines are Not a Price List”

Image result for legal costs

Family Judge Says: “The Guidelines are Not a Price List”

Many of or previous Blog posts have illustrated how the provincial Child Support Guidelines, and its federal counterpart, the federal Child Support Guidelines work in various factual contexts, to guide parents and judges in determining how much child support each separated or divorcing parent should pay.

In the past year alone, we have given examples of  how special expenses such as a child’s sports or extracurricular activities are dealt with; how self-employment income is accounted for in the calculations, and even how the Guidelines are to be used to calculate child support for adult children..

What should be abundantly clear from those many illustrations, is that when the matter of child support is placed before a judge, the Guidelines are merely a starting-point for what becomes a complex mathematical calculation that takes numerous factors into account.   This is why it’s often perplexing for separating parents to try to determine what support amounts are fair, when they don’t have the help of a lawyer to guide them.

The recent case called Vidal v. Dunn is an excellent example of the complexity and number of different that this exercise entails.  As we chronicled in prior Blogs on this case, the parents had a raft of child support-related disputes between them, including the question of whether their troubled teenaged daughter’s criminal defence bills – totalling over $10,000 – were considered “special or extraordinary expenses” to be shared by the parents, and whether their 20-year-old daughter was still considered to be a “child” for the purposes of being eligible for support.

In the context of making a ruling on this last issue, the court noted that both the federal Divorce Act and the Ontario Family Law Act apply the Guidelines, and both have comparable child support objectives.

But the court went on to make an interesting observation about the nature of the Guidelines themselves:  For one thing, they are more complex than a fixed-price menu, but also not amenable to “short cuts” even by a court.  As the court wrote:

The authority to order further child support is found in legislation. The Child Support Guidelines were intended to help separated families set child support in a fair and predictable way. The Guidelines are not a price list.  It can be very complicated, especially for adult children. Entitlement to child support is a prerequisite before determining quantum under the Child Support Guidelines. The statutory path is mapped out. The court cannot customize legislation with short cuts. 

In a very recent case called Henry v. Boyer, the court emphasized the point made in Vidal v. Dunn that the Guidelines are aimed specifically at helping “separated families” to set child support both fairly and predictably.  But there are many variables in that calculation, a point that newly-separated parents should keep in mind when trying to forge the path forward towards a divorce.  It’s always a good idea to seek the advice of an experienced Family lawyer.

For the full text of the decisions, see:

Vidal v. Dunn, 2018 

Henry v. Boyer, 2018

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

 

On Income Tax, Support Arrears, and Retroactive Support

Related image

On Income Tax, Support Arrears, and Retroactive Support

Income tax time will be upon us soon enough.  If you are receiving spousal support from your former spouse, you may wonder how those support payments should be treated when it comes time to file your income tax return with the Canada Revenue Agency.

The answer is straightforward:  If you are receiving spousal support from your former spouse or common-law partner, under a court order or written agreement that specifies the amount, frequency and duration of the payments, then those amounts are fully taxable in your hands.  In other words, all those amounts must be reported as “income” on your tax return, and will be taxed accordingly. (This is unlike the situation with child support, which from the recipient’s vantage point is generally considered non-taxable).

Normally, that obligation to declare your spousal support as income on your tax return triggers a corresponding entitlement by your former spouse or partner to claim an equivalent deduction on his or her tax return for those same payments, with some exceptions.

So the short answer, is that spousal support is considered “income.”  But what if the payments you receive now cover support payments that your former spouse should have made in the past?

A pair of recent decisions tackled a narrow – but important – issue relating to how: 1) retroactive support, and 2) support arrears, are to be handled for personal income tax purposes.

In a case from last year called Gonsalves v. Scrymgeour, the court reviewed the law on the tax treatment of retroactive spousal support awards (being those where the support paying spouse is newly-ordered to pay an amount that covers a past period of time during which the other spouse was eligible to receive it). The court confirmed that an award of retroactive spousal support should be reduced, to take into account the benefit of the income tax deduction that the paying spouse would have been able to claim, using the mid-point of the spouse’s respective marginal tax rates.

The more recent decision in Negin v. Fryers addresses support arrears (which are unlike retroactive support because they consist of unpaid amounts that were due under an order made previously).  There, the separated parents had agreed in 2004 that the father would pay child support to the mother in line with Guidelines amounts, together with a set amount of spousal support.   Apparently for some of the years since then, the father overpaid child support by over $52,000, and underpaid spousal support by more than $155,000.  After offsetting these amounts, the mother claimed the father owed just under $103,000 in arrears.

The father claimed – unsuccessfully – that the lump-sum gross amount he now owed the mother in arrears should be “netted down” to account for the different tax treatment of lump sum spousal support, as compared to an order for periodic support.  The wife pointed out – and the court agreed – that it was the policy of the Canada Revenue Agency to allow non-retroactive lump-sum spousal support payments to be deducted by father in the role of the support payor.  The court directed the parents to calculate the amount of child and spousal support owed or overpaid accordingly (as the case may be), in keeping with its specific directions and ruling.

Nobody loves tax time (except perhaps the Income Tax Preparers and Accountants!)  If you have questions about the spousal support you receive, feel free to give our office a call.

For the full text of the decisions, see:

Negin v. Fryers, 2018

Gonsalves v. Scrymgeour, 2017

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

 

 

Jeff Bezos Does Not Have a Separation Agreement – But You Should!

Image result for jeff bezos divorce

Jeff Bezos Does Not Have a Separation Agreement – But You Should!

Jeff Bezos, the 54-year-old billionaire founder of Amazon.com, and his 48-year-old wife MacKenzie Bezos have decided to divorce.  The couple met in 1993, long before Jeff had even amassed his first million, and they got married six months later.

Now, those more austere newly-wed days are a long-ago memory:  Jeff is currently the richest man on the planet, with an estimated worth of US$137 billion.  He owns 16 percent of Blue Origin, an aerospace manufacturer.

We have to wonder whether Jeff wouldn’t mind turning back the hands of time to those humbler newly-wed days:  It is reported that before exchanging vows he and MacKenzie did not make a separation agreement (which in the U.S. is often called a “pre-nuptial” agreement or simply a “pre-nup”).

Since they will likely file for divorce in the state of Washington where they own a home (and which has a “community property” regime for the equal split of assets on divorce) this means that they will likely split the US$137 billion evenly.  In other words, all income and earnings that were amassed during the marriage are split on a 50-50 basis, which would make MacKenzie the world’s richest woman.

Reportedly, Jeff and MacKenzie’s split is on very amicable terms – and only time will tell whether it will remain so.  Still, the division of assets will likely be complex, because the former pair own vast swaths of land in the U.S. which may be challenging to put a value on, for the purposes of splitting it up equally.

Even though this power-duo did not have a separation agreement, it’s always a good idea to have one – no matter what your net worth is.  That’s because a separation agreement is a negotiated legal contract between you, ideally before you get married, reflecting your pre-agreed resolution to how certain aspects of your relationship will be governed in the event you decide to split later on.

It need not be limited to asset-division:  Under Canadian law it can cover other items such as spousal support, child support, as well as the day-to-day issues relating to any children that you already have.

And, because it is tailored to your unique situation and individual needs, it can be very effective for speeding up your divorce process and cutting down your costs.  The key benefit is that it can avoid altogether the need to go to court or engage in other pricier methods for resolving your disputes.  Even if you later disagree on some unanticipated issues,  a well-thought-out separation agreements can go a long way towards at least narrowing the issues between you.

Few of us have to worry about how to divide tens of billions of dollars upon separation or divorce.  But even if your assets are much more modest now – and even if you consider yourself merely a “billionaire-in-the-making” – a separation agreement is always a great idea to protect what you have now and in the future.

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

 

 

close dialog

 

 

Did Wife’s Lawyer Know of Husband’s Asset?  And Can Court Assume Wife Knew, Too?

Related image

Did Wife’s Lawyer Know of Husband’s Asset?  And Can Court Assume Wife Knew, Too?

In a family law decision called Anderson v. McWatt, the Ontario Court of Appeal addressed a narrow evidentiary point:  If one party is truly unaware of a certain fact, but his or her lawyer may have known about it, can a court impute that knowledge to the party?

The background facts involved a former couple who were interior designers with a successful business.  They started living together in 1980, married in 1989, and separated in 2000, after which point they became embroiled in a full 15 years of high-conflict litigation.

Part of that litigation involved apportioning the spouses’ respective interests in a commercial property in Toronto.  Just prior to their 1989 marriage the husband had bought the property, and led the wife to believe was owned by a development corporation that had been set up.  In reality, he put title in his own name only – a fact he did not reveal in his sworn affidavits and financial statements for over a decade after their 2000 separation.  The wife only learned of the true state of affairs in 2012.

The date of her awareness as to title was key:  One of the issues was the point at which her claim to the commercial property was barred under the two-year limitation period. Indeed, the wife amended her pleadings about two years after making the discovery, to add claim based in equity (i.e. claims for unjust enrichment and constructive trust);  however, if it could be shown she knew or should have known earlier, then her legal claim would be barred.

At trial, the judge confirmed that the wife herself did not actually know that the husband held title to the property until 2012, but ruled that she should have known in 2001.  This is because (as the judge concluded) her own lawyer seemed to know about it, based on some comments he made while questioning the husband in 2001.  The upshot of the lawyer’s comments was that the wife “may very well have a claim against the property” and that “We will make our claim as and when we feel we have sufficient facts to base it on.”

On later appeal, the Court of Appeal rejected the trial judge’s conclusion on this point.   The lawyer’s statement did not prove that he – or by extension, the wife – knew the husband was the actual owner of the commercial property.    At the time of that questioning in 2001 – and for the next decade – the husband had been hiding the facts of his ownership in his sworn court documents.  The wife was allowed to rely on this false information, and her own lawyer’s indication that she “may” have a claim was not an admission sufficient to trigger the limitation period. In fact, the Court found that the wife did “all she reasonably could to determine the truth that the [husband] was concealing.”

For the full text of the decision, see:

Anderson v. McWatt, 2016

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: What can I do if my spouse doesn’t want to get divorced? 

Wednesday’s Video Clip: What can I do if my spouse doesn’t want to get divorced? 

If your spouse wants to oppose your divorce and you have been separated for more than one year, then there is very little they can do to stop it. Once you have filed an application, they must file materials claiming that the two of you have actually not been living separate and apart for that period of time. If they choose to do this they may be able to delay your divorce, but in most cases you can fairly easily provide evidence of the truth and your divorce will go through. A brief attempt at reconciliation after your initial separation (less than 90 days) will not count towards interrupting the one year separation period.

One way your spouse can make things more difficult for you is if they actively attempt to avoid service of the divorce documents. If you think this might occur, you can simply avoid warning your spouse of your intentions and a process server can easily surprise them with the documents. Once the process server confirms a person’s identity, they can leave the documents with that person even if the person refuses to physically take them.

A more difficult situation occurs if you cannot find your spouse at all. In this situation you must prove to the court that you made significant efforts to find your spouse. This can include telling the court that you have spoken to family and friends, tried to contact your spouse via email and Facebook and taken any other obvious steps you could think of. You will have to fill out additional paperwork to prove this and you may want to retain a lawyer to help you do so to convince the court that you have done this thoroughly.

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

Did Wife Need to Stay Home for 20 Years to Raise Kids?

Image result for stay at home mom

Did Wife Need to Stay Home for 20 Years to Raise Kids?

In a 2018 case called Zomparelli v. Conforti, the divorcing couple had gone to court 15 years earlier, in 2003, to address spousal support.  At that time, a judge had ordered the husband to pay the wife monthly support, reviewable after a few years, and noted the wife was a “capable person and could succeed at most forms of employment she seeks if she were to set her mind to it.”

After almost 15 years of paying, the husband returned to court to have his spousal support obligations discontinued.

The wife countered with various arguments to have it extended further.  Among them was the claim that, career-wise, she suffered economic disadvantage during the marriage because she could never work full-time because of her child care responsibilities to their two children. The court explained her argument:

Spousal Support Arising from Post-Separation Child Care Responsibilities

Notwithstanding [the prior court’s] findings about her competency and ability to obtain a job, Ms. Conforti has not obtained full-time employment. She has worked part time on occasion, but insists that her time and effort was largely taken up by caring for her children. When cross examining Mr. Zomparelli, she suggested that she had to care for children after the trial up until they turned age 23 because of Mr. Zomparelli’s failure to assist her with their upbringing. She said that because of her child care responsibilities, which only ended recently, she was unable to return the workforce. She says that she is at a disadvantage as a result, for which she should be compensated in spousal support.

The husband pointed out that when the couple first separated in 2003, the children were 14 and 12.  They were now in their 20s, so there was no impediment to the wife becoming self-sufficient and moving on with her career. The court described the husband’s position this way:

Mr. Zomparelli says that he should no longer be made to pay spousal support. He says that there is no reason why Ms. Conforti should not be self-sufficient at this point in time, and points out that he has paid spousal support longer he was married to the [wife]. He notes that the children are no longer dependent on their parents, and says that Ms. Conforti has made no reasonable effort to become self-sufficient since [the judge’s earlier] order of April 17, 2003. He says that it is time that spousal support come to an end.

The court agreed.  It said that the wife had failed to explain why her child care responsibilities after 2003 prevented her from becoming self-sufficient.  It echoed the earlier judge’s conclusion that she had put “roadblocks in the way of her self-sufficiency, insisting on caring for the children full time when they did not need this level of attention as they got older.”  The court elaborated:

These parties separated in 2000. By 2003, when the spousal support award was made of $1,300 per month, the children were old enough to allow Ms. Conforti to go out into the work force. She was not over 50 years of age at that point, but, as pointed out by [the previous judge], a perfectly capable 40-year-old woman. She continues to be capable … there is no impediment to Ms. Conforti working full time, and she is managing university well, achieving an “A” average. [The prior judge] allowed for support to allow Ms. Conforti to become self-sufficient and I have no evidence of any continuing disadvantage resulting from the marriage which would prevent her from doing so; any disadvantages to her may very well result from decisions made by Ms. Conforti herself since the trial.

I accept that Ms. Conforti has applied for full time work after separation, but other than saying that she was blacklisted (and I am uncertain what she meant by that and she did not state how she was blacklisted or who had blacklisted her), she did not explain why she could not obtain employment other than her age and time outside of the workforce. …

…  As well, it is unreasonable for Ms. Conforti to insist that she needed to care for the children full time, or that her care for teenaged children prevented her from exploring career opportunities or in obtaining full time employment of some sort. I do not find that, 17 years after the parties separated, that her inability to find work is related to her child caring role within the marriage which was, after all, of medium length only.

For the full text of the decision, see:

Zomparelli v. Conforti, 2018 

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