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Posts tagged ‘exclusively family law’

Does the End of the Relationship Have to be a Two-Sided Decision?

Does the End of the Relationship Have to be a Two-Sided Decision?

In an older case called Strobele v. Strobele, the court considered a narrow and easily-overlooked question:  If spouses agree to separate and one of them wants to reconcile but the other does not, how do you know when the marriage is officially over for the purposes of valuing the marital property?

After a lengthy marriage, the couple was beginning to have marital difficulties.  After enlisting the help of another couple who were mutual longtime friends, they agreed to a written plan of action that involved the wife leaving the matrimonial home for two months.  The idea was that the spouses would get some time and space from each other, seek support and perhaps some counselling, and then regroup to re-evaluate their marriage.

The court heard evidence that although even though it was not his idea, the husband was willing to participate in the plan, even though the wife had a “firmer goal” of reconciling than he did at that point. As the court explained:

[The wife] sought a commitment from [the husband] that he would not have other women in the house during that time. [The husband] demurred and it was left that each would do as she or he pleased during that time apart. … [The wife] makes the point that she only agreed to leave on the understanding that she was not abandoning the home or the relationship and I accept and I think it is clear that she was not abandoning either at that time. It does seem clear that [the husband] was more ambivalent about the long-term prospects than was [the wife]. He would not agree to the monogamy stipulation during the time apart and he required the two-month limit on the period they would cohabit after the time apart.

As it turned out, when the two months was up the husband told the wife that he did not wish to reunite after all, and that the relationship was over.  After a brief return to what was now a tension-filled home, the wife moved out permanently and started divorce proceedings.

This gave rise to a legal question, namely the date on which the couple could be said to have formally separated, for the purposes of pinpointing the valuation date for the equalization of their matrimonial property.  The wife placed the separation date as being the point at which the husband stated he did not wish to reconcile (i.e. after the two-month break), whereas the husband claimed it was a full six months earlier.

The court pointed out that under the Ontario Family Law Act, the valuation date is defined to be “the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.”  Although there is no single factor that determines when this legislative test has been met, the key issue is when the parties know, or – acting reasonably – ought to have known that their relationship was over and would not resume.  The court said:

Continuation of a relationship requires two people. Either can end the relationship without the consent of the other. As a matter of common sense, there will be many cases where one spouse knows that there will be no reconciliation and the other does not because the one has decided he or she does not wish to reconcile, but the other does not yet understand this. A fair determination of this issue requires that an objective eye be cast upon the unique circumstances of the couple. 

Turning that “objective eye” to the couple’s situation, the court ascertained that the separation date was immediately after the two-month break, when the husband indicated a firm intent not to reconcile. At that point, there was no reasonable or foreseeable prospect that they would resume cohabitation, and the marriage had irretrievably broken down.

In contrast, the earlier negotiations mediated by the other couple, and the action plan involving the two-month separation, still pointed to both spouses entertaining the possibility that the marriage could be saved, even if the wife was hoping for that outcome more than the husband.For the full text of the decision, see:

Strobele v. Strobele, [2005] O.J. No. 6312, 34 R.F.L. (6th) 111

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: 4 Ways To Enforce Child and Spousal Support Orders in Ontario


Wednesday’s Video Clip: 4 Ways To Enforce Child and Spousal Support Orders in Ontario

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are several points about the enforcement of such orders or agreements that are noteworthy, this video reviews some important points to consider.

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

Facebook Steps in to Counteract “Revenge Porn”

Facebook Steps in to Counteract “Revenge Porn”

Recently I posted a few blogs that dealt with the criminal exposure and privacy interests that can be placed at stake when one former relationship partner decides to post salacious images of the other partner without his or her consent, in what has been colloquially referred to as “revenge porn”.

According to a recent announcement by Facebook’s Global Head of Safety, Antigone Davis, the company has deployed custom software tools in the form of photo-matching technology, to prevent users from uploading nude or sexual images of others on its social media platform.

These steps are in addition to exiting measures and policies forbidding users from posting revenge porn; if they are caught doing so (after being flagged by fellow users), their accounts are subject to being deleted. Now, according to company representatives, Facebook also intends to use computer software to identify revenge porn and to automatically match it so that images cannot be posted multiple times.

The move by Facebook may have been initiated in partial response to a Northern Ireland lawsuit by a 14-year old girl who accused the social medial giant of failing to take active steps to prevent a man from repeatedly posting nude images of her without her consent. She sued Facebook directly by way of a pending claim to be brought before the Northern Ireland court, for misuse of her private information, for negligence, and for breach of the U.K. Data Protection Act. That case is still pending.

This initiative by Facebook will also add teeth to existing legislative measures that aim to counteract the instances of revenge porn postings generally. Currently in Canada, the enactment of the Protecting Canadians from Online Crime Act (S.C. 2014, c. 31) already makes it illegal to engage in cyberbullying, including posting revenge porn, and allow police to obtain information about an internet user and obtain a warrant where they have “reasonable grounds for suspicion”.

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

Must Support-Paying Father Abandon Music-Career Dreams?

Must Support-Paying Father Abandon Music-Career Dreams?

In a case called Caine v Ferguson, the court was asked to consider whether a support-paying father of a child, who now had additional children to support, should be relieved of paying $11,000 in support arrears, because he acted as a stay-at-home dad while pursuing a fledgling part-time music career.

The 29-year old father had been previously ordered to pay $332 per month for his first child, who was now 9 years old, based on what the court imputed to be his income of about $35,500. He paid no support whatsoever, and the Family Responsibility Office started taking steps to collect on about $11,000, representing the unpaid support arrears that had accumulated so far. The child’s mother was on social assistance.

The father was now married to another woman with whom he had two additional children. The court described his part-time musical endeavours this way:

He stated that he is a talented musician and that he is writing, performing and producing his own music. He showed the court his recent CD. He says that he is not making any money yet, but he is giving away the CD at no cost and performing at shows for free in order to become better known. He said that his music is being played on music stations. He also has made some music videos that are on the internet.

The father brought a motion asking the court to eliminate the arrears entirely, claiming that he earned no income in the two most recent tax years.

The court found that – despite his child care obligations to his new family – the father was deliberately under-employed, and his decision to stay at home was simply not reasonable in light of his obligations to support his first child. (And it did not help him for the court to learn that he quickly depleted a $10,000 personal injury settlement, obtained after a car accident, by traveling to St. Maarten with his new wife and making music videos).

Rather than try to pursue his music career part-time, the court found that the father could have been earning at least $21,300 per year at a minimum wage job, even taking into account his child care responsibility to his other children. As the court put it:

He is choosing to pursue a speculative music career at [his first child’s] expense. He has no desire to pay child support for [her] and appears quite content with the status quo

He refused to pay child support and completely ignored the order. He has financially abandoned this child. … The court cannot condone such behaviour and needs to send a clear message that there are consequences for acting this way.

… [The mother’s] social assistance entitlement has remained unchanged. It has been the taxpayer who has had to subsidize the [father’s] financial neglect of [his child]

The court concluded that he had made nominal efforts to seek work since 2008, when the order for support of his first child was initially made.  Nothing about his current situation called for a change to that order, other than to adjust the $35,500 that had been imputed to him at the time, since in all the circumstances it was unrealistically high.

The court retroactively imputed that amount of income to the father, and adjusted the arrears slightly to accord with the lower income figure that it imputed. The court also observed that the father could still pursue his musical aspirations on a freelance basis, if he remained adamant.

For the full text of the decision, see:

Caine v Ferguson, 2012 ONCJ 139 (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 us at RussellAlexander.com

Wednesday’s Video Clip: Two Necessary Evils – Know Your Obligations Re: Income Tax and Spousal/Child Support


Wednesday’s Video Clip: Two Necessary Evils – Know Your Obligations Re: Income Tax and Spousal/Child Support

Income tax: Not a popular concept even at the best of times. But add in the obligations, which arise in the context of paying child or spousal support, and it’s enough to cause heart palpitations in most Canadians.

This is because the Canada Revenue Agency rules relating to how support payments are to be treated are quite complex. To make things more confusing, the federal Income Tax Act has separate rules for spousal support as opposed to child support.

In this video we review some key points to keep in mind.

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

Justice Pazaratz Blasts Father for Using Mother’s Sexy Selfies in Court

Justice Pazaratz Blasts Father for Using Mother’s Sexy Selfies in Court

Recently I’ve highlighted some of the rulings by the often-outspoken Ontario Superior Court Justice Pazaratz. The decision in S. (J.) v M. (M.) is the next in line, and involves Justice Pazaratz lambasting the father in a custody battle for filing inappropriate materials with the court as part of the parties’ custody battle. Specifically, he filed sexually-explicit selfies that he had retrieved from the mother’s discarded cell phone, among other salacious images and text.

In a sharply-worded preface to his finding that the irrelevant and scandalous materials did nothing to assist the father in his interim custody determination, Justice Pazaratz focused on the impact of his conduct from the child’s perspective, and on the needlessly-hurtful approach to the parents’ litigation.

Justice Pazaratz wrote:

Do nude pictures of parents help judges decide who should get custody?

A silly question?

Why then, on this motion for temporary custody, has the Applicant father attached to his affidavit a series of sexually explicit “selfies” of the mother, retrieved from her discarded cell phone?

And why did he attach dozens of screen shots of the mother “sexting” with another man, describing her sexual preferences in graphic detail?

If the objective was to humiliate the mother, undoubtedly the father succeeded.

But how does humiliation help in family court?

How does irrelevant and scandalous information help a judge determine the best interests of the child?

More importantly — from the child’s perspective — what is the long-term impact of this needlessly hurtful approach to litigation?

a. How will this family ever heal?

b. How will the parents ever again be able to get along?

c. Can cheap shots ever be forgiven?

Justice Pazaratz also lamented the lack of decorum and privacy sensitivity by Family litigants:

Separating parents are already in crisis.  Our court process can either make things better or worse.  And our success will hinge in part on our ability to address the modern realities of technology and social media.

Between e-mails, Facebook, Twitter, texts and selfies — privacy and discretion seem a thing of the past.  These days there’s no shortage of really embarrassing stuff couples can dredge up against one another — if that’s really the path we want to encourage.

But what about relevance (never mind dignity)?

Finally, in his customary blunt manner, Justice Pazaratz summed up his impressions of the father’s “cheap shot” tactics this way:

… [W]here behaviour is neither unusual, illegal nor disputed, there’s no need to inflame tensions by attaching texts and pictures that tell us nothing we need to know.

In this case, a fundamental evidentiary issue relates to the father’s unauthorized use of the mother’s discarded cell phone.

But more to the point, the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet:  The mother has a sex life.

Big deal.

For the full text of the decision, see:

J.S. v M.M., 2016 ONSC 2179 (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 us at RussellAlexander.com

For a Divorce Trial, is $430,000 in Legal Fees Too Much?

For a Divorce Trial, is $430,000 in Legal Fees Too Much?

Anyone who has gone through a divorce will know that legal costs can get out of control. But consider the recent Ontario case of McCabe v Tissot, where the court was asked to rule on whether the husband should pay the wife’s legal fees of $430,000, part of divorce litigation that “financially devastated” both former spouses, and which saw the wife alone rack up almost $1 million in legal fees overall.

The court’s first step was to determine which member of the sparring couple had been the successful party at trial, because under Ontario civil procedure this is essentially the starting-point for determining how costs should be apportioned, although additional factors come into play as well. Both parties claimed that they had been entirely successful on all significant issues.

Perhaps not surprisingly, in addition to disputing her entitlement the husband also took issue with the wife’s dollar-figure: the $430,000 she was claiming was both excessive and disproportionate, in his view. The wife had chosen to endlessly litigate to the point where both parties’ financial stability, and thus the well-being of their son, was in jeopardy.  He said that for his own part, he had been financially ruined by the whole process.

The court, after considering the various circumstances (including the reasonableness of the parties’ positions at trial, the offers to settle they had exchanged, and prior courts orders), agreed that the wife had been more successful overall. But it rejected the notion that she should receive the full costs she was claiming. The court said:

[t]he amount of legal fees spent by the parties on this litigation is astronomical and completely unreasonable. The [wife] has mortgaged her home and has very little equity left as was her evidence at trial and as set out in her sworn Financial Statements. The [husband] also spent an exorbitant amount on legal fees borrowing funds from his parents to finance the first trial. The [wife] alone has spent close to $1 million on legal fees and disbursements. The [husband] borrowed over $393,000 from his parents. The fees spent by the parties are completely disproportionate to the issues before the court.

The court continued:

The parties lost sight of what is reasonable and what is proportionate. The financial devastation suffered by this family will last a lifetime. Most importantly it will once again negatively impact their son….

And further:

…from the spring of 2013 onward conflict ensued and they attended court numerous times, obtaining approximately 41 court orders. Not only did this financially devastate the parties and affect Liam detrimentally as set out in my Reasons, but it also resulted in the use of an inordinate amount of judicial resources. My only hope is that the parties have now come to the realization that the destruction both financially and emotionally was not worth it and they will not become embroiled in further litigation in the future. Only time will tell.

After reviewing all the relevant factors, the court concluded that legal costs in the amount of $125,000 were payable by the husband to the wife in the matter.

For the full text of the decision, see:

McCabe v Tissot, 2016 ONSC 4443 (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 us at RussellAlexander.com

“The Courthouse is Not a Restaurant,” Says Exasperated Judge

“The Courthouse is Not a Restaurant,” Says Exasperated Judge

The mother was as self-represented litigant who had “very aggressively” pursued multiple claims against the father, and had filed more than 430 documents since their litigation began almost 10 years earlier. Those documents were part of a long history of numerous motions, appeals and a litany of related procedures to contest virtually every aspect of untangling their former relationship, including settling out child custody and support of their two children.
In advance of one of those many motions, the mother had arbitrarily and on short notice absented herself from a half-day court hearing that had been scheduled for March 1, 2013. Less than a week before the motion she had faxed a letter to the court, indicating that she could not attend.

In the court’s e-mail reply, it advised the mother that an adjournment could not be granted without the father’s input, and that since the father’s lawyer would not consent in advance, she could make the request in person at the scheduled hearing date and take her chances.

Instead, the mother failed to show up at the hearing at all. Nor did she call in. She later claimed that she had mixed her calendar up.

The father asked the court for an order forcing the mother to pay for the legal costs he had wasted in preparing for a motion that she did not even bother to attend.

The court, after concluding that the mother’s excuse for missing the hearing date “stretches credulity past its breaking point”, entertained striking out the mother’s motion outright, but ultimately decided to strike it off the list and impose significant costs against her instead.

In its lengthy rebuke of the mother’s conduct, the court wrote:

In coming to my decision I had to deal with a matter of increasing judicial awareness in Canada, namely how to sanction or impose meaningful consequences on irresponsible and inappropriate behaviour by a litigant.


Adding to the difficulties of this case is the “customer-service” expectations that the mother brings to these proceedings. Unlike a retail environment, where the customer is king, the administration of justice cannot possibly proceed in any meaningful way if litigants adopt a customer-service mentality at the courthouse.

The courthouse is not a restaurant where reservations can be rescheduled at the last minute or simply cancelled on the whim of a litigant. Neither can a litigant pick and choose which procedural rules and time deadlines they wish to comply with. The court must impose sanctions on litigants who behave irresponsibly or recklessly.

The court continued:

The attitude and behaviour that the mother brings to this litigation is troubling as it only increases the intensity of the conflict and creates an environment in which any kind of settlement discussions are impossible.

It must be obvious to the mother, even as an unrepresented litigant, that the time deadlines imposed at the case management meetings for the filing of affidavits and briefs and concluding cross examinations are significant and cannot be casually disregarded on a whim. The mother must have known, or ought to have known, that the father would have already incurred significant legal costs in compliance with those deadlines when she attempted to cancel the March 1, 2013 Hearing on less than five business days notice.

Somehow the mother is also oblivious to the obvious fact that by running up the father’s legal bills she is also depriving her children of potential financial resources.

Moreover the mother somehow expects the court to ignore the fact that her last minute demand for an adjournment would not only have a significant financial impact on the father and the children but also on the court’s time and resources. A half day was reserved for the hearing that she demanded and that time slot was denied to other litigants and made an already backlogged list even longer.

The court has a duty to administer its scarce resources wisely and cannot allow litigants to run roughshod over its own process by ignoring deadlines, the rules of court and capriciously failing to show up at scheduled hearings.

After scrutinizing the costs thrown away, the court ultimately awarded the father $3,000, which it intended as:

… a strong message to the mother that her disregard for the rules of court and the meticulous timelines set out at the case management conferences and her unilateral decision to fail to appear at the March 1, 2013 Hearing are totally unacceptable. This kind of behaviour is simply intolerable and must be sanctioned by the court to protect the integrity of the court process and as a warning to the mother and other litigants that this kind of behaviour will have significant consequences.

What are your thoughts about the court’s admonishments? Do too many litigants approach the justice system with a “customer service” mentality, as the court in this case says?

For the full text of the decision, see:

Delichte v Rogers, [2013] M.J. No. 113, 2013 MBQB 93

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: The Family Courts and Rules – The Basics


Wednesday’s Video Clip: The Family Courts and Rules – The Basics

Most people will have no reason to become familiar with the workings of the Ontario Family Law system. Exposure to the justice system is usually a result of necessity, such as a separation or divorce, with its resulting property, support and child custody issues. As a result, most people do not know how the Family Court system works.

This video will provide a brief and basic review of the Ontario Family Courts, and the Rules that people are expected to follow.

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

All Parents Are Equal Act, 2016 Now In Force – Surrogacy Arrangements Impacted

All Parents Are Equal Act, 2016 Now In Force – Surrogacy Arrangements Impacted

Several months ago, I wrote a series of pieces including: Ontario Government Introduces Bill to Strengthen the Legal Status of All Parents, New Surrogacy and Parenting Declaration Laws Upcoming in Ontario, and New Proposed Law Clarifies Parentage, Surrogacy Rights, and Rights Arising from Assisted Reproduction about the All Parents Are Equal Act, 2016.

That Act is now in force, effective January 1, 2017 and (among several other things) amends the Ontario Children’s Law Reform Act to change the former practice around surrogacy arrangements. That former practice called for a court to make a declaration – on the parties’ consent – as to the child’s parentage after birth, and required the parties to file a formal court application to obtain it.

Since obtaining the court declaration was the more costly portion of the former multi-stage process for legally recognizing “parent” status in surrogacy arrangements, the elimination of this steps may come as a welcome change.

However, the Act’s more streamlined is not without its detractors. With the elimination of the need for a court declaration in some circumstances, the safeguards have been moved to the front end of the process, before the child is conceived and born. Now, up to four intended parents of a child born to a surrogate will be recognized without a court order if the following conditions are met:

  • The surrogate and the intended parent(s) received independent legal advice and entered into a written pre-conception surrogacy agreement.
  • The surrogate provided written consent to give up her parental status both before conception and seven days after the birth of the child.

(That seven days is a “cooling off” period, to ensure that the written consent by the surrogate is validly given).

Since in routine cases there will no longer be any court oversight of the process, it will be left to the parties themselves, with the help of their lawyers, to ensure that they meet the requirements of the Act, and that when the time comes, the surrogate gives her consent to relinquish the child.

What do you think of these new changes? Are they an improvement?

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