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Posts tagged ‘division of family property’

Wednesday’s Video Clip: Top 5 Questions about Spousal Support

Wednesday’s Video Clip: Top 5 Questions about Spousal Support in Ontario

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

Money is No Object for Divorcing U.K. Couple

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Money is No Object for Divorcing U.K. Couple

Over the years I have often posted about cases in which a Canadian court invites warring former spouses to reflect on the sheer amount of money they are spending on lawyers and court costs, in waging prolonged battles with each other. [Russ:  there are several of these but here’s just one. All too frequently, the costs of repeatedly going to court – often to dispute relatively trifling legal points – can quickly outstrip the monetary value of what’s being fought over, not to mention the benefit of the overall exercise.

This dubious litigation strategy is certainly not confined to Canadian family law litigants.  As reported in a recent article in the U.K. newspaper known as The Guardian, a separated wealthy British couple have already spent over £2 million (about CDN $3.5 million) slugging it out both in and out of court, all to fight over their £6.6m in family assets (about CDN$11.5 million). This despite the fact that they are only the pre-trial stage of the proceedings, with the trial yet to come.

According to one judge, the two have “completely lost touch with reality,” and noted that the trial itself will cost at least another £200,000 (or CDN$350,000) in lawyers’ fees.

The article reports that the former couple, who ran a company that supplies luxury towels and bathrobes to high-end hotels and spas, had been so single-minded embroiled in their conflict that they ran the risk that there would be no money left for either of them at the end.  At least one judge had admonished them along the way, advising that their litigation campaign was a “scandalous waste of court time.”

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

Was Unplanned Pregnancy Tantamount to “Theft of DNA”?

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Was Unplanned Pregnancy Tantamount to “Theft of DNA”?

An interesting recent case considered a novel legal argument by a 23-year-old man who unexpectedly found himself the father of a child he didn’t plan to have, after a brief relationship with a 38-year-old woman he met a music festival.

The father, an apprentice iron worker, was in an intimate relationship with the mother for several months.  After learning from the mother that she was pregnant, he decided that he did not want to be involved and they ended their relationship before the child was born.  The mother had sole custody, and the father essentially had chosen to have no contact with the child whatsoever.

Nonetheless, the mother brought an action against the father for child support.  He resisted, claiming that under the “strict terms of their sexual engagement,” he made had it clear to the mother that he did not want to become a parent.  Although they did not use condoms or other physical birth control, they engaged in the “withdrawal method” to prevent conception.  He also claims the mother told him she was “medically infertile.”

Essentially the father asked the court to recognize a new civil claim in tort, one that featured a “hostile sexual act” of the theft of the DNA contained in his ejaculate.  The court described the father’s stated position this way:

The father argues that he is not legally obligated to pay child support because the mother engaged in a “premeditated theft of the father’s DNA” during “a hostile sexual act of DNA theft” leading to the birth of the child. According to the father, he was a victim of the theft of his DNA by the mother “to satisfy the [mother’s] motive to bear a child prior to the [mother’s] biological reproductive expiration.”

The mother brought motion for summary judgment, asking for an immediate court order requiring the father to pay child support, and dismissing the father’s claim outright, on the basis that there was no genuine issue requiring a trial.

The court granted the mother’s motion, and ordered the father to pay.  There was simply no legal basis for the father’s attempt to create a new defence against the mother’s child support claim. Not only did the court not recognize the tort of a “hostile sexual act of DNA theft”, but even if it existed it did not relieve him of his legislated obligation under the Ontario Family Law Act to pay child support.  There was no dispute as to the child’s paternity.

The man and woman had engaged in consensual sex, and had not used birth control (except for the unreliable “withdrawal method”, which the court found was actually evidence that the father did not rely on the mother’s own birth control methods, or on her self-proclaimed infertility).  In short, with their decision to have unsafe sex came with inherent risk of unwanted pregnancy, and with it came child support obligations in law.

In assessing the amount of support the father had to pay, the court noted that the father’s income suddenly dropped significantly when the mother started her court application for child support.  He was currently unemployed, was not looking for work, and had provided the court with no persuasive medical or other evidence on why he was not working despite being capable. Under Ontario law, he had an obligation to earn at whatever level he capable of doing so. Based on the undisputed evidence, the father would be able to earn $35, 000 per year, and his support obligation and arrears were calculated accordingly.

For the full text of the decision, see:

M.-A.M. v. J.C.M.

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 Does A Lawyer Do?

Street Answers: What Does A Lawyer Do?

Let’s ask a lawyer! It sounds like an easy question, do you know the answer?

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 a member at the firm reviews a court decision from earlier this year, 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

Can You Sue a Cheater for Damages?

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Can You Sue a Cheater for Damages?

These days, not a week goes by without some sort of sexual scandal in the news. Recently, it has focused on allegations of sexual harassment by prominent figures and celebrities but this merely adds to usual crop adultery-scandal coverage that routinely graces the cover of magazines seen while waiting in the check-out line.

I was reminded of an older Family Law decision the other day, which considered the question of whether one person can sue another for cheating on them, or for falsely promising to marry them or have an exclusive relationship with them.

The decision in Lee v. Riley raised exactly this scenario.  The matter came before the court the initially to consider whether the lawsuit actually raised any valid legal claims.  (Under Canadian law, this process serves as a preliminary “screening mechanism” for weeding out those claims adjudged to be entirely without merit, so as not to waste the court’s time (and the taxpayers’ money) on frivolous or otherwise untenable lawsuits.   The prevailing test at the time was whether it is “plain and obvious” that the cause of action cannot succeed.)

In Lee v. Riley the woman had sued the man for what has a rather novel claim.  As the court put it:

The plaintiff [woman] alleges that the defendant [man] failed to advise her that he was involved with another women whom he later married while he was carrying on an intimate relationships with her within a context of an apparent ongoing developing relationship. When she discovered the truth, the [woman] claims that she became ill and has suffered damages. The [woman] asserts a number of causes of action arising out of these facts, including assault, intentional infliction of mental suffering, and fraudulent or negligent misrepresentation.

Although it appeared to have sympathy for the woman, the court dismissed her claim outright, having found no supportable, legal cause of action in her pleadings.  The court wrote:

The [man’s] conduct, as alleged, is morally reprehensible and disgraceful. Nevertheless, the law has never punished either criminally or in civil proceedings, the untruths, half-truths and other inducement which accompany seduction, absent a fraudulent relationship or the presence of a known serious transmittable disease. The [woman] knew who the [man] was and knew the [illegible text] sexual acts being undertaken. The law cannot protect every person against the kind of behaviour the [man[allegedly manifested. Relationships involve risk-taking. People should be honest but it is well known that frequently they are not.

What are your thoughts?  Are there circumstances where the law should recognized a claim in damage by the cheated-on partner?

For the full text of the decision, see:

Lee v. Riley, 2002 CarswellOnt 5558

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

 

 

 

Kiss & Tell: The Divorce Lawyer’s Duty of Confidentiality

Kiss & Tell: The Divorce Lawyer’s Duty of Confidentiality

Newsweek reported recently that President Trump’s former divorce lawyer Jay Goldberg is has penned a tell-all book that will include details for his two former divorces.

President Trump was formerly married to Ivana Trump and to Marla Maples. Both matters are now settled.

Golberg’s potential book may fly in the face of long held and important traditions and rules of confidentially. Clients tell their lawyers their deepest secrets with the protection that that information and confidence will not be misused or abused. 
This is known as solicitor-client privilege and forms the cornerstone of the solicitor client relationship and enables the lawyer to get the full picture, develop legal strategies that will be in their client’s best interests and fosters the dispensing of legal advice.

Divorce lawyers in Ontario are governed by strict Rules of Professional Conduct that ensure clients’ confidences are kept secret.

So what do you think? Should lawyers be allowed to write tell-all books about their former clients’ divorces and legal affairs?

 

Simple Divorce & It’s Over Easy

Simple Divorce & It’s Over Easy

Is there such a thing as a “simple divorce”?

In Ontario there has been a great discussion of opening up the family law system and permitting paralegals to practice and provide limited family law services. Although their role and permitted duties have not been clearly defined it is apparent that change is coming.

In the U.S. divorce lawyer Laura Wasser has recently released an app for people looking for an easier way to divorce – “it’s over easy”.

Lifehacker reports that the price ranges $750, while the top-of-the-line Premium plan costs $2500 + processing and state fees to use “it’s over easy”.

Although this sounds easy now, there is still a good chance that you may require the services of an experienced family lawyer especially if your spouse files a response and seeks relief from the court such as division of family property and or support.

In addition, there are many other legal implications of divorce that can be easily overlooked such as life insurance, benefits, wills and estate planning, providing disclosure of family assets and securing releases with respect to claims that might be made in the future.

However, given the complexity and expense of the current family law system anything, including innovative apps, that help streamline and simply the system for the public will be a welcomed step in the right direction.

Can You Go to Jail for Not Paying Child Support?

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Can You Go to Jail for Not Paying Child Support?

Most separated and divorced parents are at least vaguely aware that there are certain enforcement mechanisms available in cases where a parent fails or is unwilling to pay the child support that he or she has been ordered to pay by a court.

Specifically the Family Responsibility Office (FRO), which is a provincial government agency, enforces child and spousal support from delinquent support-payers, and to this end has various enforcement tools at its disposal.  These include garnishment of the support-payer’s wages, and suspension of his or her driver’s license.

But people may not be aware that a parent in default may also face jail time, under the provisions of the Family Responsibility and Support Arrears Enforcement Act (“FRSAEA”).  Although this outcome is not common, it does arise in some cases.

The recent decision in Ontario (Director, Family Responsibility Office) v. Garrick was one of them. The father owed child support arrears for over $55,000, which amount had been racked up over several years.  He explained the non-payment with the fact that much of those years had been spent behind bars, after his highly-publicized conviction for fraud perpetrated against several well-known people, including “two football icons” and a doctor at the Hospital for Sick Children.   And while he had now served his time and was released, he claimed that with his criminal record and notoriety, he was now practically unemployable in the community.

The court did not buy it.  It observed that the father had not provided financial disclosure of his income, nor did he bring forth evidence as to the jobs he had applied for, or the rejections he received.  The court also added that his evidence fell short in other ways, too:

A payor in a default proceeding has the onus [under the FRSAEA] of proving that he or she has accepted responsibility to pay child support and has placed the child’s interests over his or her own. Mr. Garrick has provided no evidence of having done anything of the sort.

Indeed – and despite the father’s claims to the contrary – the court found that he was healthy and employable, but had wholly abdicated his support responsibilities to his child while continuing to live an affluent lifestyle.  He had spent a full seven years actively avoiding his financial obligations to his own child.

Turning to the available recourse in these situations, the court noted that the role of incarceration was to compel the father’s compliance with his support obligations, not to punish him.   However, the court added:

I have considered all of those submissions. But the court must conclude that this is a textbook case of a payor arranging his affairs in order to avoid paying the support that he has been found to be capable of paying. [The father] has carried the metaphorical keys of his prison in his pocket. If he is incarcerated, he has, for reasons of his own, chosen to lock himself in.

The court ordered the father to be incarcerated for 90 days, or until the child support arrears were paid in full. Additional jail time was ordered in the event that on a going-forward basis the father continued to put himself in default.

 

For the full text of the decision, see:

Ontario (Director, Family Responsibility Office) v. Garrick 

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

New! Expanded EI Parental Leave

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New! Expanded EI Parental Leave

The Canadian federal government has announced recently that it is changing the rules relating to parental leave under the Employment Insurance program.  After the birth of a child, a parent can now spread up to 12 months of his or her EI benefits over an 18-month period. The total value of the benefits to which a parent is entitled does not change, so the benefits for that 18-month period are paid at a lower rate.

In other words, from a dollar standpoint this means that a parent who would normally receive $543 per week over 12 months can now receive $326 per week over 18 months.

The changes take effect on or after December 3, 2017 for federally-regulated employees (e.g. employees in banking, transportation, telecommunications, the federal public service, etc.); the corresponding amendments that apply to provincial workers are not yet in force, so employees in that sector may have to wait until they are eligible to actually have the extra time off work.  (The Ontario government has committed to bringing in analogous amendments, however).

The intent is to give families more flexibility around arranging for family responsibilities, and these changes are being implemented in tandem with changes to family caregiver and maternity benefits.

See also the CBC News report on these changes.

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