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Posts tagged ‘divorce’

Can a Wife’s Contribution to the Welfare of the Family be Worth $1 billion dollars?

Can a Wife’s Contribution to the Welfare of the Family be Worth $1 billion dollars?

This could be one of Britain’s biggest divorce cases exceeding $1 billion Canadian dollars.

The Guardian reports that Tatiana Akhmedova is seeking a claim against her former husband, a Russian billionaire.

The paper reported that she has not received “a penny” and the case is under appeal. The Guardian also reported on the trial decision.

Akhmedov argues “she was due almost half of their £1bn fortune due to her “equal contributions to the welfare of the family” during their marriage”.

The case has similar overtones to the British case Antonio v. Rokos, [2016] EWHC 520 (Fam); Case No. ZCI5P04051, February 15, 2016, High Court of Justice Family Division that considered a mother’s child care budget that included £10,555 a year for wine.

So, what do you think? Does Akhmedov’s argument that her contributions to welfare of the family is worth up to $500 million dollars?

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.

Wife Rejects Husband’s Billion Dollar Settlement Cheque

billion

Wife Rejects Husband’s Billion Dollar Settlement Cheque

We recently came across Jeff Lander’s article A Multi-Billion Dollar Divorce: What All Divorcing Women Can Learn From Sue Ann Hamm published in Forbes. Jeff provides insight into the lessons that can be learned from the divorce of Sue Ann Hamm from her estranged husband, Oklahoma oilman Harold Hamm in what he refers to as “teachable moments.”

Unlike the Ontario Family Law Act which provides for equalization of matrimonial property and assets, this case focuses on the principle of “equitable distribution” which includes factors such as “active and passive appreciation”. The Canadian approach to these concepts can be loosely found in cases involving constructive and resulting trust claims.

The Hamm divorce also raises important questions and issues regarding the parties’ date of separation (DOS). Similarly, Ontario’s Family Law Act utilizes the DOS as an important factor in calculating equalization and how married couples are to share their property when they divorce.

Not surprising, the Hamm case continues to make headlines as Sue Arnal, the wife’s lawyer, recently refused the oil baron husband’s cheque for $974,790,317.77.

To learn more about divorce in Ontario Russell Alexander, Collaborative Family Lawyers focuses exclusively on 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 www.RussellAlexander.com.

Was Wife the “Target of a Campaign of Terror” at the Hands of Husband’s Mistress?

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Was Wife the “Target of a Campaign of Terror” at the Hands of Husband’s Mistress?

I ran across a case called Trinchi v. Trinchi recently, where I thought the judge – who called the facts “extreme and potentially explosive” – showed admirable restraint in not making a few rather tempting conclusions about the husband’s alleged infidelity and his choice of affair partner.

The couple had been married for 11 years, and had two children together. In the context of resolving their dispute over which of them should have primary care of the children, and who should remain in the matrimonial home, the judge wrote:

Since August, 2010, the mother has been the target of a campaign of terror which has involved hundreds of communications to her alleging that the father is having an extramarital affair with Donna Bardy. The mother deposes to having been terrorized by the receipt of haunting emails, texts, photographs and messages left on her car by an unknown person. She has involved the police. The person who is the source of the terror claims to be either a jilted former lover of the father or his current girlfriend. This is not a campaign from afar. One of the emails sent 13 days ago describes the matrimonial home in detail. It is clear that whoever sent the emails has been inside the home and has accessed the parties’ mail. Some of the emails have been left on the mother’s windshield at the Go Train parking lot. Many of the emails describe the father having sex with Ms. Bardy in graphic detail. Some of the emails threaten the mother with the loss of her children. One of the emails sent to the mother and the maternal grandmother attached naked pictures of the father. Other pictures sent to the mother include pictures of Donna Bardy, pictures of a tattoo on her arm stated to be the father’s dental impression, images of ropes that were allegedly used in the course of their sexual relationship, images of areas where their sexual liaison was allegedly conducted and images of various gifts that they have purchased for each other. For example, one of the emails sent to the mother stated:

“How long until she is sleeping in your bed, having dinner with your children, showering in your shower, acting like they all belong to her…she is staying with him. You will be out and she will be in and your children will be dependent on her. You will lose them all Julia.”

The mother deposes that in mid-December, 2010, she returned to the matrimonial home accompanied by her children and saw a woman unknown to her leaving her home. This woman identified herself as “Donna”. When the mother asked what she was doing there, the woman stated that the father had asked her to set up a camera at the front of the matrimonial home and to check the mailbox at the matrimonial home periodically to see if they could catch the stalker. The woman addressed the parties’ children by name. It is admitted by the father that Donna Bardy did place a camera at the front of the home. The camera was removed at the mother’s request. After the woman left, the mother, in the presence of the children, found a note attached to the door from “Donna” which stated that the father was having an affair with Donna Bardy. On Donna Bardy’s Facebook, she lists “stalking” as her hobby.

The judge observed that both husband and Donna Bardy had filed affidavits denying that they had an affair, and claiming that they were merely friends.

Nonetheless, having apparently concluded that it was not relevant to the determination of custody or exclusive possession of the matrimonial home, the judge said simply: “I refrain from expressing any conclusion on the credibility of the assertion by the father and Ms. Bardy that they are not having an affair or that they have no knowledge of who is harassing the mother.”

Personally, in view of these facts I might have had difficulty showing the same restraint. Your thoughts?

For the full text of the decision, see:

Trinchi v. Trinchi, 2011 ONSC 3855 (CanLII)

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 our main site.

Husband Continues to Live in Home After Split – Should He Pay Occupation Rent to the Wife?

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Husband Continues to Live in Home After Split – Should He Pay Occupation Rent to the Wife?

The couple, who had married in 1973, separated almost 40 years later. During the marriage the husband had worked at a local mill and mine, while the wife had a traditional role and stayed home to raise their children.

They owned the matrimonial home jointly, and the husband continued to live in it after they split.

The wife applied to the court for an order that the matrimonial home should be listed for sale; she also asked the court to order the husband to pay her occupation rent, pending the eventual sale.

After considering the various factors, the court granted part of her request forcing the home to be listed – even though the home was located in a small mill town where the mill had closed, there was still a market for real estate in the area and the home was to be listed at a mutually-agreed price after consulting with a realtor.

However, the court declined to order the husband to pay occupation rent. Pointing out that its ability to make such an order was fully at its discretion, the court still had to balance the various relevant factors to determine whether ordering occupation rent was reasonable in all the circumstances. It concluded that at this stage, such an order would be premature.

This was because the current arrangement allowed the husband to live in the house inexpensively, so it did not make sense to force him out of the home in the winter when there was no one available to look after it. Instead, the court ordered that the house did not have to be put on the market until April, and the proceeds could be put into trust until the court made another order.

For the full text of the decision, see:

Charron v. Charron (2014), 2014 ONSC 496, 2014 CarswellOnt 694, J. deP. Wright J. (Ont. S.C.J.) [Ontario]  http://canlii.ca/t/g2s0h

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 www.RussellAlexander.com.

 aperture

Aperture: The Finer Points of “Income”

A few weeks ago, we wrote about More on the Ins-and-Outs of “Income” and how Ontario family law treats some of the more specific sources of income in the hands of a paying spouse, for the narrow purpose of calculating child and spousal support.

Perhaps because RRSP contribution time just passed, and federal Income Tax time is looming on the horizon, we are prompted to revisit some of the finer points of that concept. Here are some additional principles for you to know:

1. Recurring capital gains and losses are usually treated as income for the purposes of calculating support; they can be offset by capital losses in some circumstances. The court will also assess them, using financial records, to confirm that the amounts are reasonable. Note however that capital gains and losses are not treated identically, and there are special rules as to how each are dealt with. One-time capital gains, on the other hand, are usually treated as one-off occurrences which are excluded from income. However, a court must be satisfied that the capital gain was indeed a one-time event, and will usually consider the paying spouse’s pattern of income for the previous three years.

2. Income fluctuations and non-recurring income is generally considered by a court on a situation-by-situation basis, since they represent an irregularity in the paying spouse’s income pattern. With this in mind, a court will try to determine to determine a more reasonable “baseline” or establish pattern of income that should be used in calculating the support owed, generally by using a simple averaging calculation applied over the previous three years.

Common examples of non-recurring income include:

• Redeeming an RRSP. In contrast to how this is treated for federal Income Tax purposes (where it is conclusively included as “income” for the tax year), a one-time redemption of an RRSP will generally not be considered part of the paying spouse’s income for child or spousal support purposes.

• Stock options. The regular exercise of stock options will be treated differently, but a one-time redemption will generally not be included as income for support purposes, but it depends on several factors.

• Personal injury or other damages awards. The outcome will depend on the nature of the damages award: If they arise from a personal injury action and are intended to compensate for pain and suffering, then they are generally excluded; if they are paid to compensate for loss of income, then they are usually included in income for support purposes.

Have questions about what constitutes “income” for support purposes? Feel free to contact us for fact-specific advice that is tailored to your situation.

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 www.RussellAlexander.com.

Familyllb Wins Clawbie for Best Practitioner Blog

clawbies-winner-2013

Familyllb Wins Clawbie for Best Practitioner Blog

As some of you may know, Russell Alexander and Familyllb were nominated for a Clawbie (the Canadian Law Blog Awards).

We recently learned that Familyllb had won a Clawbie for the Best Practitioner Blog.

What is a Clawbie?

The Clawbies back in 2005 as a fun and engaging way to encourage the growth of the Canadian legal blogosphere. Today, no encouragement is required: the volume and quality of Canadian law blogging continues to grow every year, amazing and inspiring us along the way. And every year, the job of choosing the Clawbie winners becomes that much more challenging! There are so many gems out there that rewarding the richest and brightest, means we’re leaving many other fine jewels unrecognized.

Nominations for the Clawbies were submitted from lawyers and law bloggers across Canada by blog post, tweet, or email ballot. That list was supplemented by selections from our three judges: Steve Matthews, Jordan Furlong, and Simon Fodden.

Here’s what the judges said about Familyllb:

Central Ontario divorce lawyer Russell Alexander writes about family law issues in a practical way. He’s clear, sincere, and isn’t afraid to experiment, as shown by his use of video content, or documenting of philanthropic activities.

We would like to recognize and congratulate all Clawbie winners and Finalists.

We would also like to thank our associate lawyers, staff, researchers and videographers who help us generate the content for Familyllb.

Thank you Familyllb readers and commentators for your passion and support.

Top Divorce Blogs of 2013

top 10

Top 10 Familyllb’s Blogs of 2013

Well it has been another busy year for us and our bog has been honoured with a Clawbies Award as one of Canada’s top legal blogs.  Thank you to everyone for your continued comments and support.

Here are some of our Top 10 Blogs for 2013:

Number 10: Top 5 Things Self Represented Litigants should know about conducting a trial10.1

As a self-represented party, you must present your own case at trial. The purpose of this blog is to set out some practical and procedural matters with respect to the trial process in order to assist you in representing yourself.

 

Number 9: Selling the Matrimonial Home – What if One Spouse Won’t Co-operate?9 9 9

A recent decision called Ivancevic-Berisa v. Berisa shows what Ontario courts can do if one spouse refuses to co-operate in selling the matrimonial home post-separation.

 

Number 8: Husband Downgrades Job, Then Quits Altogether – But Support Stays the Same8

This was a case which shows that a voluntary change in circumstances – including a significant reduction in income – does not necessarily mean that a parent’s obligation to pay child support will be reduced correspondingly.

 

Number 7: 5 Ways to Make Sure Your Separation Agreement is Valid 7

Separation agreements can be a useful means by which separating spouses can take first steps toward unwinding their financial and family-related affairs by way of a mutual agreement. This Blog was a fan favorite in 2012 and continues to be popular as it provides a list of the top five ways to ensure that a separation agreement is valid and enforceable in Ontario.

Number 6: We’re Officially Separated – Can I Change the Locks on the House? 6

When a couple first separates under contentious circumstances, I will often get questions about what each party’s respective rights are in the early stages, i.e. before the long process has started of formally dividing up their assets and dealing with any support and child-related issues. One of the most common questions is whether the spouse who remains in the matrimonial home after separation can change the locks in order to exclude the other spouse.

Number 5: Texting and Family Law – Top 3 Things to Know5.1 bmp

Virtually everyone texts these days. In the context of Family Law disputes, it can be a useful tool for short, informative exchanges between separated spouses, for example to efficiently communicate on matters relating to the day-to-day care and custody any children they share.

But in the hands of some former couples, they can serve as a high-tech medium for thinly-veiled hostility, confrontation, acrimony and confusion.

 

Number 4: Top 5 Things to Know About the Canada Child Tax Benefit 4

This blog was also a fan favourite in 2012. Soon it will be time to start thinking about individual income taxes, and all of the various components that go into providing the federal government with a financial “snapshot” for the past year.

For separated or divorcing spouses with children, one of those components is the Canada Child Tax Benefit (CCTB).

Number 3:  What “Material Change” is Not: Some Real-Life (and Perhaps Surprising) Examples3

The concept of “material change” involves the notion that a court-imposed order requiring a parent or spouse to pay support may have been fair at the time it was handed down, but subsequently becomes unfair due to unforeseen circumstances. Where a later court finds that such “material change” has taken place, it may have the authority in the right circumstances to vary the initial order accordingly.

This determination of what constitutes “material change” is not always straightforward. Indeed, some scenarios may intuitively seem to qualify on first blush, but on closer examination turn out not to meet the legal standard at all.

Number 2: Top 5 Questions About Adultery and Divorce in Ontario2.1

Leaving aside the intriguing question of how adultery affects couples psychologically and emotionally (and why such powerful, successful people would jeopardize their marital relationships in this manner), the legal effect of adultery is quite clear.

In Ontario (as elsewhere in Canada), the laws relating to divorce based on a adultery are governed by the federal Divorce Act, which provides that a “breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty.” (Note that it must be the other party who commits the act: a spouse cannot apply for a divorce based on his or her own adultery).

Number 1: 10 Things You Should Know About Child Support1.11.11.1  1.1

1.2Again, this continues to be a very popular post and is evidence of the ongoing need that parents have to for information about child support.  This blog examines how all dependent children have a legal right to be financially supported by their parents. When parents live together with their children, they support the children together. Parents who do not live together often have an arrangement in which a child lives most of the time with one parent. That parent is said to have custody of the child. This arrangement can be written in a separation agreement or court order (sometimes called legal custody), or may occur without a written agreement or court order (sometimes called “de facto” custody).

Either way, the parent with custody 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.

There you have it.  Some of our top Blogs for 2013.  Thank you  again to everyone who have visited our Blog and all your continued comments and support and thank you for the honour of a Clawbie Award.

The Ins and Outs of “Income”

 income

The Ins and Outs of “Income”

If you are the person obliged to pay child support, you likely know that one of the basic principles of Family Law is that the amount you are required to pay under the Canadian federal Child Support Guidelines is directly related to your income. It sounds simple enough; however there are some important points to know:

• For these purposes, your “income” means annual “total income” which is usually the amount found on the T1 General form as issued by the Canada Revenue Agency.1

• However – as discussed below – in some circumstances this amount may be adjusted by a court, or a different year’s tax return may be used.

• Also, the law recognizes that the amount disclosed on the tax return is not necessarily the same as the income that is calculated using the various listed “sources of income,” as those various categories are set out on the T1 tax return.2 (Usually they are the same, but not always – e.g. if you have not yet filed a return, or if the one you filed is not proper). So it is the latter amount that governs for Guidelines purposes.

There are some additional exceptions and qualifiers to this general rule:

• The Guidelines do not require that “income” is the figure on the last income tax return in every single case. Perhaps you have had an unusual year – your income may be higher or lower for that year due to some unique circumstances. In such cases, the court had the discretion to “consider more than a single number on a tax return”.3

• You and your spouse can also agree to some slight modifications to the general rule. For example:

o You may agree by way of separation agreement to use a prior year’s line 150, rather than the current one; the court may uphold this kind of adjustment if appropriate.4

o With some restrictions you may agree to use a different date from the one otherwise used for the taxation year. 5

• Finally, a court can itself make adjustments to the “income” amount in the right circumstances:

o For example, it can use an average of the past few years, if that is more representative determination of the amount.6

o Similarly, in unusual situations a court may add to your “income” – for example by adding back the amount of voluntary charitable donations you make in a year.7

Note that if for some reason you feel that the line 150 income amount is not the fairest determination of your income, then you have the burden of showing that this is the case.

For the full text of the decisions, see:

1. Bak v. Dobell, 2007 ONCA 304

2. Henry v. Henry (1997), 1997 CarswellOnt 4399 (Ont. Gen. Div.)

3. Clark v. Clark, 2012 ONSC 1026; additional reasons 2012 ONSC 1965

4. Hodge v. Jones, 2011 CarswellOnt 2582, 2011 ONSC 2363 (S.C.J.)

5. Crabtree v. Crabtree, 70 R.F.L. (6th) 371, 2009 CarswellOnt 1918 (S.C.J.)

6. Toon v. Toon, 2011 CarswellSask 511, 2011 SKQB 281 (Q.B.)

7. Zubek v. Nizol, 2011 CarswellBC 1481, 2011 BCSC 776 (S.C.)

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 www.RussellAlexander.com.