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Posts tagged ‘division of family property’

Wednesday’s Video Clip: Finding a Lawyer

Wednesday’s Video Clip: Finding a Lawyer

In this video we talk about the various ways people can find a lawyer to help them, including:

Community Legal Clinics

Community legal clinics provide legal services to low-income people in areas such as housing, employment insurance, income support, immigration, human rights, and workers’ compensation. Some clinics also provide assistance with wills, powers of attorney, and education law. To find the community legal clinic nearest you, visit the Legal Aid Ontario web site or call Legal Aid Ontario.

The Law Office of Russell Alexander Family Lawyers

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

Mother’s Bid to Relocate Child – Was it Just a Pretext to Join New Romantic Partner?

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Mother’s Bid to Relocate Child – Was it Just a Pretext to Join New Romantic Partner?

The parents of a 5-year old boy had separated in 2015, and had a court-approved agreement as to joint custody and shared parenting.  The mother now wanted to relocate with her son from Cochrane, Ontario to Thunder Bay where she had multiple job offers waiting.  She had recently quit her job as a prison transport officer in Cochrane, which did not allow her to properly fulfill her childcare responsibilities. As the court explained:

…. [H]er schedule was unpredictable; sometimes working out of town, sometimes working overtime, sometimes both, and never knowing until the last minute. This would have impaired her ability to care for her son – not knowing in advance whether she would be called in to work in the morning before he went to school, or whether she would be home in time to pick him up again – but her employer temporarily accommodated her with a schedule that avoided unpredictable deployment. Eventually, however, her employer withdrew this accommodation. After exhausting her vacation time and sick leave, the mother resigned her position. Prior to her resignation, her employer invited her to apply for another position in Cochrane with a more parenting-friendly schedule. She was successful, but the employer subsequently had to revoke the offer.

The mother said the move to Thunder Bay was necessary to remain financially viable and provide for her son, and that as the son’s primary caregiver, her decisions about where to live and work out to be given considerable weight.

The father objected to the mother’s plan.  For one thing, it would strip him of the chance to influence his son.   For another, he claimed the mother’s alleged need to move was merely a pretext to be with her new romantic partner, who also lived in Thunder Bay.   He also questioned her lack of ability to find new work in Cochrane, and felt that – since she had quit her job – her current state of financial hardship was self-imposed.

The mother’s bid to move had been rejected earlier by a motion judge, who discounted the allegation that the ostensible need for the move was a pretext.  However, the judge did conclude that both parents’ views had equal weight, and that the resolution called for a simple balancing of pros and cons between Cochrane and Thunder Bay, from the perspective of how the boy might benefit. In the end, the motion judge concluded that the mother should be able to find suitable work in Cochrane if she tried.

The Appeal Court saw things differently, and granted the mother’s appeal.

First of all, the motion judge had erred in not characterizing the mother as the primary caregiver, and in not giving her particular reasons for moving “serious consideration.”  Also, the judge was wrong in deciding that the mother’s financial circumstances were not self-imposed; they were brought on by the employer’s withdrawal of prior accommodation of her childcare responsibilities.  Nor was there any basis for the judge to conclude that the mother could likely find work in Cochrane – in fact the evidence showed otherwise.

The Appeal Court explained:

There is, in our view, a valid and compelling parenting-based reason for the move: it is necessary to enable the primary caregiver to remain financially viable while providing care for the child. The mother has done all she can be expected to do to secure employment in Cochrane. It has not worked out, and there is no good reason for her and her son to live in poverty when she has secured employment in Thunder Bay that will allow her both to parent her son and to provide economically for him.

The court also said it was “encouraged” in this regard by the fact that the mother had offered to provide air travel to Cochrane for the child, which was one of her employment benefits at one of the Thunder Bay jobs.  She also offered to accommodate the father’s work schedule as a forest firefighter when he was deployed across Canada.

The court granted the mother’s appeal, allowing her to move with the child to Thunder Bay, and ordered a new access regime, with the parents working out an acceptable access schedule between them.

For the full text of the decision, see:

Porter v. Bryan

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

Couple’s Use of Support Set-Off Calculations Costs Husband His $15,000 Tax Credit

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Use of Support Set-Off Calculations Costs Husband His $15,000 Tax Credit

The husband and wife separated in 2011.  Based on their respective yearly incomes, they amicably resolved their issues as to child support by way of an agreement and consent order that was filed with the court.   They reached an agreement on child support by using a software program which, as the court put it, “introduce[d] various offsetting inputs and devise[d] a final unilateral payment from one spouse to the other.”

The outcome of the calculations was that the husband owed a single payment to the wife, who acknowledged that he was not required to pay further support for a specified time-period.   On this income tax return for the year, the husband then went ahead and claimed non-refundable child tax credits of almost $15,000 in respect of their two children.

As the court explained:

All of the usual stressful, difficult and emotional issues for this couple relating to child custody, financial support and raising a family within the constraints of marriage breakdown were resolved in a laudatory, sensible and agreeable fashion. [The husband] testified all issues settled amicably. Lawyers were involved to prepare all documents, undertake court proceedings and ensure all details complied with the parties’ wishes and the law. All seemed to unfold accordingly until the Minister’s reassessment disallowing the 2012 dependent deductions. Understandably, [the husband’s] child support commitment was predicated upon his use of the dependent deductions to reduce his taxable income.

The problem was that the Income Tax Act provision under which the husband had purported to claim that tax credit, namely s. 118(5.1), was an exception to the general rule in another section of the Act that disallows a support-paying person from claiming a tax deduction for dependents in certain stipulated instances.  Under the wording of that latter provision, the loss or non-use of the dependent deduction could be prevented only where both parents factually pay to the other an amount for child support.

In this case, since the spouses had essentially used a set-off procedure to come up with a single payment by the husband to the wife, there was no such payment by each of them separately, as the provision required.

Unfortunately, this meant that the Minister of National Revenue disallowed the $15,000 the husband purported to claim under s. 118(5.1) of the Act.  Because the husband was the only spouse to pay “a support amount”, the Minister concluded, he did not fall within the exception in s. 118(5.1) and was not eligible.

The husband appealed the Minister’s decision, but was unsuccessful.   The court pointed out that the case law precedent was uniform in its interpretation of the Act, and that the fact that the couple had used a set-off mechanism in the course of calculating their child support obligations to each other did not transform the respective and distinct values they used into “a support amount” as that term is used in the Act’s provision.  The Act, as worded, did not accommodate for the “expeditious use of a computer software program, the culmination of which is a unilateral payment of a support amount by only one parent to the other.”

Despite this outcome arguably based on technicalities, the court said it had “no alternative but to dismiss” the husband’s appeal, “however sympathetic it may be.”

For the full text of the decision, see:

Harder v. The Queen

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: How Base Child Support is Calculated

Wednesday’s Video Clip: How Base Child Support is Calculated

In this video we discuss how the Child Support Table in the Guidelines sets out the amounts of support to be paid, depending on the “gross income” of the paying parent and the number of children that the support order covers. Gross income means before taxes and most other deductions. The amounts to be paid are based on the average amounts of money that parents at various income levels spend to raise a child.

In simple cases, the table alone will determine how much money will be paid. In more complicated cases, the table is used as the starting point. There is a different table for each province and territory.

If both parents live in Ontario, the Ontario table applies. Also, if the paying parent lives outside of Canada and the parent with custody lives in Ontario, the Ontario table applies. But if the paying parent lives in another province or territory, the table for that province or territory is the one that applies.

You can get a copy of the Child Support Table for Ontario by phoning 1-888-373-2222.

Or you can visit the Department of Justice Canada’s web site at www.canada.justice.gc.ca/en/ps/sup and click on “Simplified Federal Child Support Tables” to find the table for each province and territory.

The table sets out the amount of support that must be paid at different income levels from $8,000 to $150,000, depending on the number of children. A base amount is given for every $1,000 increase in income, along with a way to calculate amounts in between.

There is also a Simplified Table where you can look up the paying parent’s income to the nearest $100, without having to do any calculations.

Sometimes, a judge does not accept a parent’s statement of income. Instead the judge uses an amount of income that is reasonable based on things such as the parent’s work history, past income, and education. The judge will then apply the table to that income.

A judge might do this if the parent:

• fails to provide the required income information

• is deliberately unemployed or under employed, or

• is self-employed or working “under the table”, and there is reason to believe they do not report all of their income

Before the Guidelines came into effect, judges had more flexibility in deciding the amount of support. Now, in simple cases, judges must order the amount shown in the table. Judges can order different amounts, but only in special cases. And they must use the table amount as a guide.

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

 

Religious School’s Barring Child of Same-Sex Couple Not a Breach of Human Rights

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Religious School’s Barring Child of Same-Sex Couple Not a Breach of Human Rights

In a perhaps-surprising decision of an adjudicator of the Human Rights Tribunal of Ontario, a Christian evangelical school that refused to admit the adopted son of a married same-sex couple was held not to have breached the anti-discrimination provisions of the Ontario Human Rights Code (the “Code”).

The private school had justified barring the child from its preschool program on the basis that it had a long-established biblical stance against same-sex marriage, and that to allow the child to attend would clash with the school’s teaching and values.

Faced with the school’s rejection of their application, the couple brought a complaint under the Code for discrimination based on sex, creed, marital status and family status.

The adjudicator ruled that the school’s decision fell within a narrow “special interest” exception found in s. 18 of the Code.   That exception essentially permitted the school to discriminate in providing services where “membership or participation in a religious … organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified.”  In other words, the school was not in breach of the Code if it could prove that it was effectively restricting participation in the school’s program to only those who were part of the religious group that it was designed to serve, even if that restriction was otherwise discriminatory.

The adjudicator concluded that the evangelical school fell within the definition of a “special interest” organization, and had not breached the Code-enforced right to equal treatment of services.  As the adjudicator stated:

The school has a well-defined and specific set of creedal beliefs, mission statement and mandate. The respondent [school’s] evidence was clear that the school requires all parents to share these values if they are considering the school for their family.

The adjudicator added that the parents chose to apply to the school precisely because of the opportunity to immerse the child in a Christian religious educational environment. The adjudicator added:

While I empathize with the parents’ feelings of unfairness that their child would not be admitted, the respondent [school] made no secret of its beliefs and was upfront that it may not be the right fit for every family.

Does this ruling come as a surprise?  What are your thoughts?

For the full-text of the decision, see:

H.S. v. The Private Academy

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

Child’s Aboriginal Heritage Not a “Super-Weight” Factor in Adoption, Court Rules

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Child’s Aboriginal Heritage Not a “Super-Weight” Factor in Adoption, Court Rules

Recently I wrote about a Charter-based challenge to certain provisions of the Ontario Child and Family Services Act, where a Métis father claimed that provisions of that Act offended his child’s right to equality under the law.  He claimed that because the term “Native child” did not include those of Métis heritage, the legislation’s effect was to unjustly exclude his son from receiving certain services to which other Aboriginal children were entitled.

Aboriginal heritage was likewise one of the key elements in a recent B.C. Court of Appeal decision.

The birth mother of a 10-year old Aboriginal child opposed the application by another family to adopt him.  The boy’s grandmother had become his legal guardian immediately after birth; she had had him placed with the new family full-time at 20 months, where he has lived continuously ever since.  After obtaining legal custody and guardianship a few years ago, the family applied successfully to the court to formally adopt him.

The birth mother appealed that adoption order.  She claimed that the lower court judge who granted it failed to fully consider the importance of the child’s Aboriginal heritage and cultural identity as a factor contributing to his best interests, as required under section 3(2) of the provincial Adoption Act.

The Appeal Court disagreed; that factor was just one of many listed in the legislation that a court needed to consider.   The court observed:

With respect, I am unable to agree with the birth mother’s interpretation of s. 3(2) of the Act. First, in determining whether an adoption order should be made, a child’s Aboriginal heritage and cultural identity does not attract a “super-weight” over the other factors. Neither do the words in s. 3(2), nor the context of the Act, allow for an expanded interpretation beyond the plain meaning of the text of the provision. …  [E]ven if the birth mother’s interpretation of s. 3(2) were to be accepted, the evidence establishes that the adoptive parents have done everything they could reasonably have done to ensure that the child learns about, participates in, and appreciates the significance of his Aboriginal heritage and culture. The evidence is clear that the child knows about his particular Band and First Nation, and speaks with pride about being Aboriginal.

The court also pointed out that in this case, the child had a strong emotional bond with the adoptive family, which included his two siblings, identified the parents as his “mother” and “father”, and would suffer significant emotional harm if he was removed from their care at this point.  The lower court judge had properly weighed all the factors and had not applied the legislative mandate improperly.

For the full text of the decision, see:

M.M. v. T.B.

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: 10 Ways to Get Information About Family Law

 

Wednesday’s Video Clip: 10 Ways to Get Information About Family Law

In this video we discuss how there are many professional people, organizations and other sources that can help you or provide information about family law issues:

1. An information centre specializing in family justice

2. A parent education course for separating parents

3. Duty counsel at a legal aid office

4. A community legal clinic

5. A university law school with a student-run legal information service

6. A law society or bar association referral service for a lawyer

7. A divorce support or self-help group

8. Relevant library books and videos

9. The yellow pages, white pages or blue pages in your telephone book have listings for many of these resources, and

10. A librarian at your public library may also be able to help 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

Was Parents’ Money a Gift or Loan? The Perils of Poor Documentation

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Was Parents’ Money a Gift or Loan? The Perils of Poor Documentation

Picture this not-uncommon scenario:   The parents provide their newly-married adult daughter or son with a significant amount of money to put towards the down-payment of a first home.

All goes well until a few years later when that son or daughter, ensconced in the home purchased partly with the parents’ money, decides to divorce.  How does that money get treated in that divorce settlement?  Was it a gift to the couple, or a loan that was expected to be repaid?

The question is a very important one because under Ontario family law, the characterization of the parents’ money in the hands of the adult son or daughter becomes a prime consideration in the valuating separation-date assets. Under the Family Law Act, funds that are gifts to the couple during marriage get put into the “pot” for equalization of Net Family Property as usual; funds that are considered loans must naturally be repaid to the original lender.

So the intent behind the advance of funds is key.

In a recent 130-paragraph judgment in a case called Chao v. Chao, the courts scrutinized the evidence to determine what the parents’ intentions had been a full 37 years earlier, when they advanced over $450,000 to their newly-married son, as well as half the cost of the couple’s new $260,000 home.

The then-newlyweds used invested those funds wisely:   For the last 25 years of their marriage, neither husband nor wife worked at anything other than small jobs here and there, and essentially lived off the income generated from investments purchased with the money from the husband’s parents.  By the time of the trial, their investments and various account balances had grown so that the couple’s assets were nearing the $2 million mark, although neither party provided reliable figures.

Indeed, the court commented specifically on the unsatisfactory state of the financial and other evidence that had been given, some of which was purported to come from the husband’s mother, who was now 89 years old.  (The husband’s father had already passed away).  As for murky evidence of the intent behind the initial advance of funds, the court wrote:

 It is noteworthy that neither the [wife], the [husband], nor the [husband’s] mother … gave evidence of any verbal agreements, representations, expressions of intent or discussions between either of the [husband’s] parents and one or more of the parties surrounding or touching upon the [financial] advances. The evidence of each of the affiants regarding the intentions of the [husband’s] parents in making the advances consist of assumptions, understandings or conclusions of what was intended by the parents, rather than indications of what one or more of the parties may have said at the time.

By way of illustration, the husband said that in 1975 when the parents advanced half the costs of their first home, there was “an understanding” between him, them and the wife that whenever the house was sold, half the proceeds would be returned to the parents.  However, the court noted that he “never asserted that anyone ever expressed this understanding verbally or in writing.”

The court also dismissed some other late-breaking evidence put forth by the husband:

 I would strike out exhibit D to the [husband’s] affidavit as it is stated by the respondent to be undated handwritten lists made by him which he “discovered” when he “found” a file and “discovered” that it contained “some evidence to support my case that while I was unemployed, my mother provided investments in our names for our living expenses.”

The handwritten list is self-serving, has marginal probative value and in any event should have been disclosed earlier by the [husband] The probative value of handwritten list is marginal because there is no suggestion by either party that the investment accounts owned by them or with their children originated from their own earnings or resources. It is common ground that the investments were derived from advances made by the [husband’s] parents. The issue is how to properly characterize those advances, whether as gifts, loans or as subject to a resulting trust.

Ultimately the court considered what little evidence had been provided, in the context of deciding a motion for summary judgment which (if granted) would obviate the need for a trial on this issue.   It found as follows:

Based upon all of the evidence before me I find that the presumption of resulting trust in favor of [the husband’s mother] has been rebutted. I also find that the various advances made by the [husband’s] parents cannot be characterized as loans from them to the [husband]. Based upon the evidence the reality of the situation is that there never was any expectation, prior to the parties’ separation, on the part of [the husband’s mother] that the [husband] and the [wife] would be required to repay any portion of the funds advanced by her and her husband. … [I]t would be unfair to permit the [husband] to receive a credit for a debt to his mother, with the financial benefits that would flow to him from that credit on the equalization calculation.

The lesson to be learned from Chao v. Chao is a simple one.  Parents:  Put it in writing. 

Anytime parents advance funds to adult children with the expectation of being paid back, they must make sure there is ample evidence in the form of clear documentation that a loan was intended.

For the full text of the decision, see:

Chao v. Chao

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

 

Should Aboriginal Heritage Trump Child Protection Needs?

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Should Aboriginal Heritage Trump Child Protection Needs?

In a recent child protection case, the court summed up nature of the proceedings with a definite air of gravitas:

This case is also about the equality rights of Métis children and their families in the child protection context in Ontario, and whether the provincial government is respecting those rights. It is an important opportunity for this province to demonstrate its commitment to act upon the Calls to Action that the Truth and Reconciliation Commission of Canada issued in 2015.

The facts involved a child who had been apprehended at birth by the Children’s Aid Society (CAS), and was in foster care ever since.  He was now almost two years old.

The father claimed the child was of Métis heritage.  This claim was an important fact, because the definition of “Native child” contained in the Child and Family Services Act (CFSA) did not include Métis.   This meant that a Métis child would not gain the same advantages as one who had been designed a “Native child” under the CFSA; including the benefit of a legislative mandate to the court to the effect that any order made in relation to the child was to bear his or her cultural, religious, and regional differences in mind.

Against that background, the CAS had applied to have the child made a Crown ward, with no access to the parents at all.  This sparked a successful Charter of Rights challenge by the child’s father, who claimed that the differing treatment of Métis children was in violation of the guarantee of “equality before and under law, and equal protection and benefit of law”.  A prior court had temporarily addressed the father’s concern by ordering the child to be treated as if he were in the more beneficial “Native child” category for the purposes of the court application by the CAS to make him a Crown ward.

The court then turned to assessing the parties’ positions on that application.  It acknowledged that there were numerous factors involved in deciding a child protection application, and the child’s Aboriginal heritage was just one of them.  Here, the father had raised the issue at the eleventh hour, and had supplied only scarce evidence to show that maintaining the native heritage and culture was important to the family.  The court said:

What I have outlined above is the totality of the evidence this court was given relative to [the father’s] background. He did not give any testimony about his Aboriginal background or any connections that he had or has in that community other than his relatively brief contact with the Métis Ontario Healthy Babies Healthy Children Program.

The court quoted from a prior ruling in which the court had to deal with similar issues, then added its own comments:

Our compassion toward and recognition of the importance of native heritage and families remains unwavering.  But special status does not equate to a blanket exemption from legislation carefully crafted to protect vulnerable and often damaged children.

 I agree with all of the considerations that are set out by [the prior judge] in the above-quoted paragraph. In addition, I do not feel that the legislative scheme put in place to recognize the importance of Native heritage and culture for children who have been designated as Native can be meaningfully applied in the abstract. There must be evidence of the nature of the involvement of the child’s family in the Native community. The mere claim that someone is Native does not allow the court to consider the relevant factors within the legislative scheme, without some evidence of what is important to this family, this child, and the Aboriginal community the child is said to be a member of.

In this case, the required proof was absent. The father had also not shown that his prior inappropriate parenting skills had improved even though he had parenting services available to him for several years.  An attempt to find the child suitable placement with extended family-members had failed.  Meanwhile, the child had begun to thrive in his current care arrangement that did not feature any involvement by the parents.

Finally, the court observed that prior to bringing its application, the CAS had invited members of various Ontario-based Métis communities to participate in the litigation or provide the placement options for the child, without success.

Ultimately, the child was made a Crown ward, with no access to the parents.  However, the court also directed that the CAS should make every effort that any foster parent or adoptive placement would be willing to educate the child on his Aboriginal heritage and culture, and to expose the child to his culture on an age-appropriate basis.

For the full text of the decision, see:

CCAS v G.H. and T.V.

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: Confidentiality

Wednesday’s Video Clip: Confidentiality

In this video Russell discuss how all information you provide to your lawyer is completely private and confidential. All the details of your case will be handled with the utmost confidentiality and respect for your privacy.

The privilege of confidentiality between solicitor and client is, in law, a protection which belongs to the client. Therefore, it is up to the client, only, whether or not that confidentiality is to be waived.

Please remember this when your family members or friends request information directly from your lawyer. Lawyers are frequently contacted by new partners, or other family members who want to discuss your case.

You have to give your lawyer specific instructions to permit that discussion to take place. Also, as the time spent by your lawyer will be time spent on your file, you will be billed for any time spent discussing your case with anyone at your request, or in the context of your file

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