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Posts tagged ‘exclusively family law’

Wednesday’s Video Clip: How are child payments taxed?


Wednesday’s Video Clip: How are child payments taxed?

In this video we discuss the tax consequences of child support.

Parents who receive child support payments under an agreement or court order made after April 30, 1997, do not have to include those payments in their taxable income. Parents who make these payments cannot deduct the payments from their taxable income.

This tax rule does not apply to continuing support paid under agreements or court orders made before May 1, 1997. The old rule still applies until the agreement or order is changed. Under the old rule, parents receiving support must pay tax on the amount received, and parents paying support can deduct the payments from their taxable income.

The new tax rule means that more of the support money received by the parent with custody is available to spend on the children. It also means that parents paying child support under an agreement or court order made after April 30, 1997, will have less after-tax income than parents paying the same amount according to an agreement or order made under the old tax rule. Courts take this into account when making new support orders.

Parents who have a support arrangement under the old tax rule may agree that they want the new tax rule to apply. They can do this if they both sign a form called “Election for Child Support Payments (T1157)”, that says they want the amount of support to stay the same but the new tax rule to apply.

You can get this form from any tax services office. Or you can call the Canada Revenue Agency (CRA) at 1-800-959-2221 and ask to have a copy mailed to you, or download a copy from their website.

If one parent wants to change to the new tax rule, but the other does not, the parent who wants the change must apply to court to change the existing child support order or agreement. Parents thinking of doing this should be aware that when the court makes a new child support order or changes an existing order or agreement, it must apply the Child Support Guidelines.

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 a Judge Go “Off the Map” When Making a Ruling?

Can a Judge Go “Off the Map” When Making a Ruling?

In an interesting recent Court of Appeal case named Gomez v. McHale, a question arose as to whether a motion judge, asked to award an amount for equalization of net family property, was constrained to award only the exact dollar amount proposed by the spouse who succeeds on the motion, or whether the judge was entitled to craft a different monetary award that made sense in the circumstances.

The couple’s relationship had lasted about five years. Under s. 5(6) of the Ontario Family Law Act, a court can award un unequal amount for equalization of net family property in cases where awarding an equal amount would be “unconscionable”, in light of various factors including the length of time the couple had lived together.

They both brought summary judgment motions against each other, with the wife asking for one of two things:

• A straightforward equalization of net family property, which would result in her receiving $268,000 (which we will call “Option 1”); or

• An unequal division, to the tune of four-fifths of that amount, which was $214,000 (“Option 2”).
The husband, in contrast, wanted the either of the wife’s claims – whether under Option 1 or Option 2 – to be dismissed outright by the court.

Ultimately, a court granted the wife a third Option – but one that neither of them had asked for. For various reasons related to the specific facts, the court ordered the wife to receive an equalization payment of $60,000.

The wife appealed, claiming that the motion judge had strayed from the available choices presented at the motion hearing. In particular, the wife contended that the judge’s only available choices were to pick either Option 1 or 2, or possibly to grant her partial judgment in some amount, and direct that the rest of the issues be sent on to be resolved at a full trial.

The Court of Appeal disagreed. As that Court wrote:

Put bluntly, this is not the way motions for summary judgment, especially duelling motions, work. The motion judge was entitled to consider all the evidence and then apply the relevant statutory provision, s. 5(6) of the FLA, and determine both whether an unequal division was appropriate and, if so, the quantum of the unequal division. He was not limited to choosing one of the two amounts proposed by the appellant and, if he was inclined to reject them, referring the question of quantum on to a trial. … He was not limited to choosing only one of the appellant’s alternative positions.

The wife also claimed that the judge had made an error by not following a mathematical formula for calculating the unequal division of net family property (using the actual period of cohabitation as a percentage of the five-year period specified in s. 5(6) of the Family Law Act). The court disagreed: While a mathematical approach might help the court in some cases, it did not have to be applied in every single one.

In the end, the Appeal Court concluded that the motion judge’s final amount of equalization, set at $60,000, was fair and reasonable in view of all the circumstances, which included the fact that the wife had not made any significant contributions to the home during the period of cohabitation and marriage.

For the full text of the decision, see:

Gomez v. McHale, 2016 ONCA 318 (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

Canadian Law At-a-Glance: Passports for Kids

Canadian Law At-a-Glance: Passports for Kids

With winter break right around the corner, it’s a good time to touch on the requirements for obtaining or renewing your child’s valid Passport. Here is what you need to know:

Does My Kid Need a Passport?

The short answer: Yes.

All Canadian children – from newborn on upward – require their own Passport in order to travel. Any Passport issued for your child is valid only for a maximum of 5 years, at which time it expires and must be renewed.

Who Can Apply?

If your child is under the age of 16:

• The Passport application must be submitted by at least one of the child’s parents (or legal guardian, in which case proof of legal guardianship must be provided).

• Ideally, however, you and the other parent should both sign the application, because the Passport Program may contact the other parent in any case.

• If you are separated or divorced from the child’s other parent, then the parent who has custody of the child is the one eligible to apply. In that case, you must provide copies of any separation agreements or relevant court orders to the Passport Program.

If your child is aged 16 or over, then he or she must submit their own Passport application, since for these purposes they are considered an adult.

Say “Cheese”

Along with the filled-out application form, you must also provide a photo which will appear in your child’s Passport.
Under the current requirements, the photo must have been taken in the last 6 months, must be taken in person by a commercial photographer, and must otherwise conform to certain specifications set out by the Government of Canada’s Passport Program. If the photo does not comply, your child’s Passport application will be rejected.

Fees and Process

When you submit your child’s Passport application form, you must also include payment of a fee, which is currently set at CAN$57. There are additional fees for “express” or “urgent” processing (and note that those are two different things), which expedited service must be requested in-person at a Passport Office that offers them.

Processing times will vary according to where and how the application is submitted (i.e. in person, or by mail) and range from between 10 and 20 business days.

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 Difference Between Separation and Divorce in Ontario


Wednesday’s Video Clip: The Difference Between Separation and Divorce in Ontario

A separation occurs when one or both spouses decide to live apart with the intention of not living together again. Once you are separated, you may need to discuss custody, access and child support with your spouse. You may also need to work out issues dealing with spousal support and property. You can resolve these issues in different ways:

• You can negotiate a separation agreement. A separation agreement is a legal document signed by both spouses which details the arrangements on which you have agreed. In some jurisdictions, independent legal advice is required to make the document legally binding.

• You can make an application to the court to set up custody, access, support and property arrangements under the provincial or territorial laws that apply to you.

• You can come to an informal agreement with your spouse. However, if one party decides not to honour the agreement, you will have no legal protection.

To legally end your marriage, you need a divorce, which is an order signed by a judge under the federal law called the Divorce Act.

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

Naughty, or Nice? Which of Santa’s Lists were YOU On this Year?

Naughty, or Nice? Which of Santa’s Lists were YOU On this Year?

In the hundreds of posts I wrote for this Blog during the past year alone, I chronicled a long and dizzying list of poor behaviour by various Family Law litigants.

The more devoted readers among you will remember the ones who:

And, not surprisingly, such behaviour has prompted judges on more than one occasion to roundly chastise misbehaving parents for their conduct both in the courtroom and outside (see Court Conjures “Breaking Bad” Analogy for Warring Parents, and Judge Laments Financial “Tragedy” Parents’ Custody Battle), and in one instance, to “break up” with the squabbling couple.

Needless to say, my own stance as a Collaborative Family Lawyer is that the resolution of divorce and custody disputes, no matter how acrimonious and ugly, should always be achieved with as little discord as possible, and with zero naughtiness, underhandedness, and spite.

So my aim in writing about these topics is to educate and inform – not to give any of my readers ideas. I hope that in the past year you have gained some insight into the type of conduct to avoid in your own Family Litigation. Let’s hope that I won’t be writing about any of you in these Blogs in the coming year.

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

Biological Father Responds to Court Documents by Scribbling “a Very Offensive Word” – Can His Consent to Adoption be Dispensed With?

offensive

Biological Father Responds to Court Documents by Scribbling “a Very Offensive Word” – Can His Consent to Adoption be Dispensed With?

Under what circumstances will a court trump a biological parent’s legal right to give consent to the adoption of his or her child by another person?

This was the issue raised in a recent Ontario decision. The step-father of the 10-year-old girl had married her mother (who had sole custody), after dating her for about five years and living with her for four. He had always treated the girl as his own, and had supported her financially, emotionally, and physically. He participated in her education, made medical decisions for her, and they shared a deep emotional connection. Plus, the girl had always viewed the stepfather as her parent and called him “dad” of her own accord.

In stark contrast, the girl’s biological father had absolutely no relationship with her: Not only had he not seen her for the past 8.5 years, he had never even asked to do so. Child support was something he paid only involuntarily. He had been verbally and physically abusive to the mother throughout their 5-year relationship, which started when she was just 17 years old.

After being advised repeatedly that the stepfather wanted to adopt the 10-year-old girl as his own, the biological father contacted the mother through Facebook to suggest that he would give his consent in exchange a $10,000 fee.

Instead of paying up, the stepfather simply applied to the court, asking for an order that the biological father’s consent to the proposed adoption could be dispensed with.

The court readily agreed.

For one thing, even at her current young age the girl herself had consented to the adoption, and was keen for it to proceed. She was very family-oriented, and – since the stepfather and the girl’s mother had a 3-year old together, and were expecting another child – it made her anxious and distressed that the rest of her family and siblings had a different last name. That last name was really her only tie to her biological father, since she had no recollection of him.

In light of the biological father’s obvious disinterest in the girl, and the stepfather’s unfailingly positive involvement, it was clearly in the girls’ best interests to grant the order, the court found.

Incidentally, the biological father did nothing to help his own case: despite being properly served with the stepfather’s court documents, he failed to even file a response and did not appear in court. Indeed, he returned the court documents in a less-than-mature and uncooperative manner, as the court explained:

He apparently opened the envelope, read the contents, scribbled randomly on one of the pages of an affidavit; wrote a very offensive word in bold letters on one of the pages, and then re-sealed and sent the envelope back to the [mother’s] counsel marked “Return to Sender”.

For the full text of the decision, see:

S.M.L.L. v. J.K.M., [2016] O.J. No. 2519, 2016 ONSC 3198

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 we review a court decision from earlier this year, in which 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 Text Messages Amount to “Violence”? Maybe.

text-message

Can Text Messages Amount to “Violence”? Maybe.

In a recent Blog I discussed the concept of “violence” in the Ontario Family Law context, and in particular how its presence in the relationship could affect the right of the victimized spouse to be given exclusive possession of the matrimonial home upon separation, by way of a court order.

Under the governing provision, which is found in the Family Law Act, the violence can be either physical or emotional; the court is left with the task of determining when the appropriate level of either type of violence has been met.

Needless to say, this can be a challenging task. Over the years, courts have offered thoughts on the nature of the legal threshold.

For example, in a case called Kutlesa v. Kutlesa, the court reflected on the essential elements required to meet the threshold of “violence” for the purposes of the Family Law Act provision, writing:

The “violence” referred to in section 24(3)(f) [of the Family Law Act] must, of necessity, contemplate that spouses may need to be protected from serious injury or harm which can arise even without physical hitting. Intimidation and emotional abuse can take many forms. The court has a responsibility to address the real dynamics between the parties, including any effort by a strong or dominant partner to engage in psychological warfare, or coerce settlement without making disclosure.
Similarly, in a case called Hill v. Hill, the court concluded that that violence can be achieved “by words not deeds” and added that violence is “not restricted to violence which can be achieved solely by physical abuse.”

But these loosened definitions do not eliminate the requirement to meet the threshold set by law. In a recent case the court considered whether it can be met through the use of text messages, but emphasized that the overall context of the spouses’ relationship had to be considered. The court wrote:

I agree with the [wife’s] submission that domestic violence can be demonstrated on social media and by use of electronic communications. I also agree that the [husband’s] electronic communications to the [wife] were at times vulgar, offensive and threatening. The worst of the text messages came in April 2014, after the first time the [the wife] left the matrimonial home without notice … and after she had consulted with a lawyer. This was the same month that the parties had a terrible fight leaving the [husband] and [the child] with scratches. The [husband’s] electronic communications cannot be assessed in isolation. They are part of a broader picture of two parents bitterly fighting to control the process of separation and the custody of their daughter. This is not to excuse the [husband’s] communications. His response to the [wife] and her supporters was not acceptable. In this context, however, in my view, it would be a mistake to characterize such communications as domestic violence or abuse.

The bottom line is that “violence” can take many forms: emotional, verbal, and even by text message sometimes.

For the full text of the decisions, see:

Hill v. Hill, 1987 CarswellOnt 238, [1987] W.D.F.L. 2243, [1987] O.J. No. 2297, 10 R.F.L. (3d) 225, 6 A.C.W.S. (3d) 355

Kutlesa v. Kutlesa, 2008 CanLII 13187 (ON SC)

J.K. v. W.R.N, 2016 ONSC 3179 (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

In Ontario, Should Harassment by Extended Family Count as “Family Violence”?

harassment

In Ontario, Should Harassment by Extended Family Count as “Family Violence”?

Last week I discussed some of the principles that are relevant to an Ontario court’s ability to consider “violence” against one spouse by the other as a factor in whether to order that the victimized spouse be granted exclusive possession of the matrimonial home (read the full post here).

In British Columbia, the legislators have gone one step further: the counterpart to our province’s Family Law Act expressly expands the definition of “family violence” to specifically include:

• Physical abuse of a family member, including forced confinement or deprivation of the necessities of life, but not including the use of reasonable force to protect oneself or others from harm,

• sexual abuse of a family member,

• attempts to physically or sexually abuse a family member,

• psychological or emotional abuse of a family member, including;

o intimidation, harassment, coercion or threats, including threats respecting other persons, pets or property,

o unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy,

o stalking or following of the family member, and

o intentional damage to property, and

• in the case of a child, direct or indirect exposure to family violence.

(And it should be noted that B.C. courts are allowed to consider family violence not merely in connection with post-separation possession of the family home as in Ontario, but also in relation to numerous other aspects of the parents’ relation and separation, including assessing the best interests of the child).

In a recent B.C. decision, the court was asked to consider the limits of this expanded definition. There, the wife claimed that not only had the husband engaged in this kind of impugned conduct, but that the husband’s brother had been aggressive and abusive to her as well.

For example, the brother – who was a physically large man – attended at the drop-offs and pick-ups of the couple’s daughter at the mother’s apartment. He was in the room when the mother had FaceTime visits over the internet with the child, and once filmed the child while having dental treatment. On one noteworthy occasion, he held up a hand-lettered sign to the mother, in the presence of the child, that had the word “LIAR” printed on it.

The husband had stood by and simply acquiesced in the brother’s conduct on these occasions. The wife claimed that she should be sheltered from such conduct, and that it met the definition of “family violence” for the purposes of the B.C. legislation.

Although the court refrained from ruling specifically on the mother’s argument on this point, it did reproach both the husband and the brother’s conduct in the ruling, calling the latter “infantile, and exceedingly inappropriate”. In the context of examining the existing child care and custody routine, and in the course of revising those arrangements, the court made an order specifically directing the husband to restrain his brother from such further behaviour, for example by ensuring that the brother no longer attend at drop-offs/pick-ups and FaceTime visits and no longer do any filming in relation to the child and mother.

Do you think that the B.C. definition of “family violence” should be adopted in Ontario for Family Law purposes? What are your thoughts?

For the full text of the decision, see:

Z.S.R. v. R.S., 2016 BCPC 200 (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.

Appeal Court Rules on Privacy of Text Messages

iphone

Appeal Court Rules on Privacy of Text Messages

A just-released criminal case from the Ontario Court of Appeal has some interesting things to say about the privacy of text messages whether they are subject to constitutional protections – and it may have some trickle-down effect in the Family Law realm someday.

The accused was convicted of multiple firearms offences, which convictions hinged squarely on certain text messages between two other parties (one of whom was a co-accused) in which gun trafficking was discussed.

In considering whether there had been a breach of the Charter in connection with the admission of that text evidence, an application judge held that there was no expectation of privacy in connection with the text messages found on the co-accused’s iPhone. Specifically, that judge said:

… I accept that the sender of a text message has a reasonable expectation of privacy in its contents after it has been sent but before it reaches its intended destination. This would include text messages stored in a service provider’s data base. Once the message reaches its intended recipient, however, it is no longer under the control of the sender. It is under the complete control of the recipient to do with what he or she wants. In my view, there is no longer any reasonable expectation of privacy in the sender.

The Appeal Court was asked to rule on whether this conclusion by the application judge was correct. Two out of three judges on the panel agreed that it was:

There is, in my view, a lack of empirical evidence to support a conclusion that senders of text messages have a presumptively reasonable expectation, from an objective standpoint, that their text messages will remain private in the hands of the recipient. In fact, there are many examples of behaviour in text messaging (and in other forms of communication) that suggest that senders are alive to the fact that their communications may no longer be private once sent or made.

For example, the use of pseudonyms and coded language in text messaging (generally in the context of criminal activity) is often used to disguise who is speaking in a text message and the subject matter of the message.

Because many contextual factors can tip the balance in either direction, it must be that the objectively reasonable expectation of a text user in a particular case should be assessed on a case-by-case basis, not on a broad presumption about how text messaging is used in society…

Admittedly, this was a criminal case, and it was handed down by the court along with two other criminal cases, R. v. Jones and R. v. Smith, each of which had similar outcomes. How and whether these rulings affect other areas of the law, including Family Law, still remains to be seen.

For the full text of the decisions, see:

R. v. Marakah, 2016 ONCA 542 (CanLII)

R. v. Jones, 2016 ONCA 543 (CanLII)

R. v. Smith, 2016 ONCA 544 (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.