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Posts tagged ‘family law’

To All the Amateur Lawyers: How Do You Equalize When the House Cost More to Build, Than it’s Currently Worth?

To All the Amateur Lawyers:  How Do You Equalize When the House Cost More to Build, Than it’s Currently Worth?

Anyone who has built their own “dream home” knows that building costs can spiral out of control, and the project can turn into a financial nightmare. This is even more so, when it comes time to divide the value of the home during a divorce. Some very interesting – and legally perplexing — questions can arise, such as this one:

What happens if the value of the home turns out to be less than the money invested in building or renovating it?

That was the question in a case called Strobele v. Strobele. The court summarized the backstory this way:

Really Dr. and Mrs. Strobele have one issue that bedevils a fair resolution of the proceeding. In the final two years of their relationship, they embarked on a project to construct the house of their dreams. They have, between the two of them, spent all of their life savings and more in the construction of this house and, in the process, considerably exceeding the budget for the project. That budget started in the range of six hundred to $700,000 and, by the end of the project, they had put at least twice and perhaps as much as three times that much money into the project which was more money than the two of them had the time. In the process, of course, they have accumulated debt and a great deal of it.

The legal problem that arises from this uncommon dilemma, is that the rules for equalizing net family property on separation do not apply easily to these kinds of scenarios.  The court explained:

[A]lthough the as-built cost of the house is roughly in the neighbourhood of $1.8 million, its market value is roughly $1.2 million. If this situation was brought about by adverse market forces or poor business choices, the consequences would likely be visited upon the parties equally unless one of them engaged in deliberate or wrongful disposition of assets or there were other unusual circumstances, none of which are present here. As a general practice the phrase “for better or worse, for richer or poorer” comes to mind and is applied. But that is not what happened here.

To complicate matters further, the husband wanted to stay in the home, and apparently had access to the financial resources to do so.

For all the “armchair lawyers” among my readership, how would you divide the home’s value?  And if one of the parties wanted to “buy out” out the other, how would that calculation go?

We’ll leave the question as a cliff-hanger, and I’ll share the legal answer and outcome (at least as the judge determined it in this particular case), in my Blog next week.

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: Ontario Wills & Estates – What Is A Power Of Attorney


Wednesday’s Video Clip: Ontario Wills & Estates – What Is A Power Of Attorney

In Ontario, a Power of Attorney is a legal document that gives someone else the right to act on your behalf.

In this video we discuss the importance of a Power of Attorney and what options and decisions you should consider when deciding who should be your power of attorney.

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

Even Judges Get it Wrong Sometimes

Even Judges Get it Wrong Sometimes

A few weeks ago, I wrote about a case called Butty v. Butty. This was a decision by Justice Pazaratz in which he considered how the parties’ separation agreement, which was intended to exempt the husband’s farm property from the normal property-equalization regime, should be interpreted after it came to light that the husband owned two separate parcels of land, rather than one as originally thought.

At trial, Justice Pazaratz had declared the separation agreement invalid, and set it aside for what he concluded was the husband’s failure – and the failure of his lawyer – to disclose the existence of the two properties. The husband’s property was then divided in keeping with the usual Family Law Act rules, notwithstanding what the parties’ separation agreement may have intended.

The husband appealed, successfully. The Court of Appeal disagreed with Justice Pazaratz’s assessment of the facts as to the alleged lack of disclosure, and reversed his ruling. For one thing, it found that the judge had been highly critical of the husband’s trial lawyer, Mr. Jaskot, accusing him of suppressing facts and deliberately misleading the court and opposing counsel. The Appeal Court found these accusations unwarranted, writing:

As we have mentioned, the trial judge believed that Mr. Jaskot tried to hide the fact that there were two separate properties. In his reasons for decision, he describes Mr. Jaskot as having purposely suppressed information in an attempt to mislead opposing counsel and the court into believing that the farm property was a single parcel of land.

In light of the foregoing evidence, this characterization of Mr. Jaskot is completely unfounded. Opposing counsel and the court had documents clearly showing that the farm property consisted of two separate properties.

As a result of the reasons for judgment, Mr. Jaskot has suffered unwarranted personal and professional embarrassment.

And rather than lay blame on the husband’s lawyer for hiding the information, the Appeal Court found that the parties actually shared in the mistaken initial belief that the there was only one piece of property at stake.   After noting that Justice Pazaratz could have easily remedied the procedural fallout from the parties’ mutual misapprehension at the trial itself, the Appeal Court said:

This court cannot truly repair the damage that Mr. Jaskot has suffered. Having said that, its comments are intended to serve as an unequivocal statement that there was nothing improper in his conduct in this matter. We regret what appears, on this record, to be unwarranted judicial criticism levied against him.

Next, the Appeal Court found that the parties’ mutual misapprehension did not detract from a key fact: The wife was aware that the separation agreement was designed to circumvent the normal property-division scheme under the Family Law Act, and that she was giving up all her claims to the entire tract of property, whether consisting of one lot or two. The Appeal Court also observed that the wife had not been under duress when she signed the agreement, and had received independent legal advice (which she did not heed) before doing so.

Based on this and other errors by Justice Pazaratz, the Appeal Court restored the parties’ separation agreement, and proceeded to divide their property in accord with its express terms.

For the full text of the decision, see:

Butty v. Butty, 2009 ONCA 852 (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

 

Not All Internet Evidence is Created Equally

Not All Internet Evidence is Created Equally

Recently, I have touched on the issue of whether evidence taken from the Internet is reliable enough for the purpose of Family Law trials.

But as anyone knows who has ever spent time surfing the Internet – which is all of us – there are websites, and then there are websites. Just because something is on the internet, certainly doesn’t mean that it’s reliable, fully accurate, or even remotely true.

How do courts grapple with determining the reliability of website information, and giving it the proper weight for evidentiary purposes?

In a recent immigration case called El Sayed v. Canada (Citizenship and Immigration), the applicant had objected to the fact that the Immigration Officer had apparently searched the applicant’s LinkedIn profile, and had made certain judgments about him that reflected negatively on his immigration application.

The court turned its focused attention on the issue of internet evidence reliability, citing approvingly from an earlier case:

With regard to the reliability of the Internet, I accept that in general, official web sites, which are developed and maintained by the organization itself, will provide more reliable information than unofficial web sites, which contain information about the organization but which are maintained by private persons or businesses.

In my opinion, official web sites of well-known organisations can provide reliable information that would be admissible as evidence … For example, it is evident that the official web site of the Supreme Court of Canada will provide an accurate version of the decisions of the Court.

As for unofficial web sites, I accept … that the reliability of the information obtained from an unofficial web site will depend on various factors which include careful assessment of its sources, independent corroboration, consideration as to whether it might have been modified from what was originally available and assessment of the objectivity of the person placing the information on-line. When these factors cannot be ascertained, little or no weight should be given to the information obtained from an unofficial web site.

The court added that this approach was approved in some subsequent Canadian decision, but in others the court still demanded expert testimony as to the reliability of the website information, before it would accept it as evidence for the trial or hearing.

The bottom line, is that courts know that everything you see on the internet is not true. (Although I’m confident that they would approve of the Blogs on my website).

For the full text of the decisions, see:

El Sayed v. Canada (Citizenship and Immigration), 2017 FC 39 (CanLII)

ITV Technologies Inc. v. WIC Television Ltd., 2003 FC 1056 (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: Ontario Divorce without Courts: Introduction to Collaborative Practice


Wednesday’s Video Clip: Ontario Divorce without Courts: Introduction to Collaborative Practice

Collaborative Divorce, also known as “Divorce without Courts” or Collaborative Practice, is a new way for lawyers to help resolve your marital dispute respectfully, and without Courts. In Ontario, Lawyers can help negotiate divorce settlements, while maintaining open communication and creating a shared solution between spouses.

In this video we discuss the merits of collaborative practice in divorce.

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

Wife Didn’t Get “Wish List”, But Pre-Nup Still Upheld

Wife Didn’t Get “Wish List”, But Pre-Nup Still Upheld

The husband, who was a wealthy 50-year-old man, met the 42-year-old wife online at MillionaireMatch.com. Their first face-to-face meeting was in Las Vegas, and after a short long-distance courtship decided to marry. It was his third marriage; it was her first.

The husband asked the wife to sign a pre-nuptial agreement, which she did 10 days before the wedding date. It had been drafted by the husband’s lawyer but because the wife had been unhappy with its terms, she had it reviewed by her lawyer, who managed to negotiate some changes in her favour. As the court described the outcome of those negotiations:

I accept that the Wife hoped the draft contract would be more generous to her; however, given the Husband’s stated position that he wanted to protect his assets, I do not accept that she genuinely expected the contract to fulfill this wish list.

The final version entitled the wife to $6,000 in monthly spousal support, a 10% interest in the husband’s home after a period of time, and the immediate designation of the wife as beneficiary of the husband’s $1 million RSRP’s in the event that he died prior to any separation.

The relationship was tumultuous, and within a month of the wedding had already begun to unravel. After a series of separations and reconciliations, together with several incidents in which the police were called, the couple finally separated for good after about three years.

In the aftermath of the ill-fated union, the husband claimed that the pre-nuptial agreement should be set aside. He claimed that because the marriage was very short, the various terms including the provision giving the wife graduated spousal support was far too generous to the wife in the circumstances.

The wife, on the other hand, wanted the support and other terms increased in her favour, because she learned that the husband had not been fully forthcoming about his finances, and that she had entered into the agreement under duress and without being aware of the full facts, just days before having 200 wedding guests who were flying in “from all over the world.”

After reviewing the facts and circumstances in detail, the court upheld the pre-nuptial agreement. There was neither non-disclosure, misrepresentation nor duress operating to call its validity into question.

Admittedly, the agreement had been reached without the wife having knowledge of the full extent of the man’s wealth, since he had never provided complete documentation in that respect. However, the wife had never actually asked for it. Moreover, formal disclosure by way of sworn financial statements is not the only way for the husband to fulfill his disclosure obligations; by law it was enough that the wife was generally aware of his assets.

Despite her attempts at trial to portray herself otherwise, the wife was an intelligent woman who had experience with contracts and had operated two businesses of her own, one of which conducted business internationally. She understood the nature and consequences of the pre-nuptial agreement, which had been the result of lawyer-assisted negotiations. There was nothing unfair in enforcing the agreement as it was written.

The court confirmed that the agreement was valid and binding, and ordered that in keeping with its terms, the husband’s support obligations to the wife had ended, with no further spousal support to be paid.

For the full text of the decision, see:

Balsmeier v. Balsmeier, [2016] O.J. No. 667, 2016 ONSC 950

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

Wife Gets Husband’s Cats and Dogs in the Divorce

Wife Gets Husband’s Cats and Dogs in the Divorce

Recently, an older case with an interesting issue came to my attention: Based on the underlying premise that family pets are property, can a court order pet custody to be transferred as part of a divorce?

In Grimalyuk v. Concelos, the couple lived together for three years, and then got married. About three months into the marriage, the husband started to get physically and emotionally abusive with the wife, and with her 18-year old son from another relationship. The husband assaulted the wife on several occasions, and at one point attempted to evict them both from the matrimonial home.

Eventually, the wife had the husband arrested and charged with death threats, and the police removed him bodily from the matrimonial home.   He entered into a Peace Bond agreeing to have no contact with the wife for a 12-month period, and agreeing to attend alcohol counselling.

Not surprisingly, at this point the wife decided the two-year marriage was over, and she successfully went to court to obtain a divorce.   (The court also agreed to extend the restraining order for another year, since the husband had been seen skulking around the wife’s property despite having been ordered not to).

Beyond that, there was only one property-related issue still to be dealt with in the divorce: It related to what should be done with the family pets.

As the court explained, wife’s request in this regard was straightforward:

Equalization of Property

The only property sought by [the wife] is legal ownership of two dogs and one cat that are legally owned by [the husband] but have been living with and cared for by [the wife] since the date of separation.

Without hesitation, the court ordered that the husband transfer legal ownership of the three pets to the wife immediately.

It goes to show you: While many people complaint that their divorces go very badly, this one “went to the dogs.”

For the full text of the decision, see:

Grimalyuk v. Concelos, 2007 CanLII 1325 (ON SC)

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: Child Support in Ontario – Introduction to Child Custody


Wednesday’s Video Clip: Child Support in Ontario – Introduction to Child Custody

In Ontario, like other jurisdictions, both parents have a responsibility to financially support their children. For the spouse without custody, the amount of child support that must be paid is based on income and the number of children. In this short video clip we talk about custody and answer questions many people have about child support.

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

 

Two Properties, or One? Justice Pazaratz Sorts It Out – For Now

Two Properties, or One? Justice Pazaratz Sorts It Out – For Now

Here’s another noteworthy ruling by Justice Pazaratz – and one that was ultimately reversed on later appeal. Written in his inimitable style, the judgment begins this way:

You wouldn’t think the singular or plural should be so complicated.

Property.

Properties.

The same word. Add an “s”.

You really wouldn’t think that in a nine day trial, involving four presenting counsel — and three more lawyers as witnesses — they couldn’t keep it straight.

Or, that the court wouldn’t find out until the end of the seventh day of evidence – from the very last witness — that all the time we were talking about “property”, we really should have been talking about “properties”.

The Applicant’s lawyer — apparently the only one who knew all along about the mistake — says whether it’s “one property or two” really doesn’t matter.

I’m not so sure he’s right. Or that what he did was right.

This is a story about two houses; 151 acres; a benevolent matriarch; a pregnant bride; and a marriage contract apparently suffering from too many “cut and pastes”. More importantly, it’s a story about two children, still trapped under the same roof with a mother and father who can’t agree on either the past or the future.

With that prologue delivered, Justice Pazaratz went on to examine the merits of the former couple’s dispute, which (at least on the property side of things) related to a 151-acre piece of land that the husband owned at the date of the marriage. The matrimonial home was one of two houses on the property, the other being the husband’s mother’s home.

In 1996, the spouses had signed a marriage contract providing that in the event that they separated, the husband was entitled to exclude the assets that he owned at the time of the marriage. Neither spouse (nor their lawyers) knew at the time that the 151 acres were actually two separate properties, rather than one, and that the husband owned them both.

When the true state of affairs came to after the parties’ separation light years later, the wife claimed that the husband’s non-disclosure about owning both properties invalidated the marriage contract that they had purportedly reached.

Justice Pazaratz agreed with the wife, and held that the marriage contract should be set aside due to the material misrepresentation. At the time the contract was drafted and signed, the wife and her lawyer were misled that there was only one property. This omission rendered the contract inadequate to satisfy the disclosure requirements of the Family Law Act since it undermined the factual basis of the parties’ ostensible deal, and left the wife unable to accurately assess her rights and options.

After setting the marriage contract aside, Justice Pazaratz proceeded to divide the parties’ assets through the normal equalization process. (That ruling was later reversed by the Court of Appeal, which included comment on a “serious matter arising from the reasons for judgment given by the trial judge.” The later appeal ruling will be the subject of an upcoming Blog].

For the full text of the decisions, see:

Butty v. Butty, 2008 CanLII 23946 (ON SC)

Appeal level:

Butty v. Butty, 2009 ONCA 852 (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

Representing Yourself and Asking for Legal Costs? Read this First

Representing Yourself and Asking for Legal Costs? Read this First

Recently I wrote about a ruling on costs where a self-represented litigant was awarded significantly more in legal costs, than she had requested after trial.

That case, called McMurter v. McMurter, gave the court an opportunity to revisit some of the prior authorities on the issue, and to set out the principles that apply to awarding legal costs to self-represented family litigants.

Based on that review, if you succeed in represented yourself in your family law trial or motion and are looking to be awarded your legal costs from your unsuccessful opponent, here is what you need to know:

  • Whether you are legally trained or not, you cannot claim the same costs as a lawyer would charge. Instead, you can receive a “moderate” or “reasonable” allowance for your lost time.
  • Courts recognize that every litigant must prepare for court to some extent, whether represented by lawyer or not. So if you decide to represent yourself, you can only recover for the time and effort above and beyond what an average person would devote to getting ready for the proceeding.
  • You must also demonstrate that you spent time and effort doing work ordinarily done by a lawyer retained to conduct the litigation, and that you incurred an opportunity cost because of it.
  • Even if you did not give up remunerative activity to represent yourself in court, the court may award you costs for what would otherwise be lawyer’s work on the case. This means that you can get legal costs even if you are a homemaker, retirees, students, unemployed, unemployable, or disabled, etc.
  • The quality of your work as a self-represented person will also be a factor in the court’s assessment of what costs you might be awarded.

In terms of the actual fees, courts can vary widely on how they approach the mathematical calculation. Some will award an hourly rate varying from $20 to $150 per hour, minus the time you would have spent on the case if you had a lawyer present. Others have a “rule of thumb” that allows for a certain number of hours of preparation time, and a certain number of hours of trial time.

In any event, the amount must be reasonable, proportional and with the losing party’s expectations.

Returning to the McMurter v. McMurter case, the court applied these principles in awarding the wife her legal costs award of $30,000, even though she had asked for $18,000. It found that she had successfully represented herself in a complex case where there was a lot at stake. She had been exceptionally well-organized and presented her arguments well, and dealt with complicated legal issues and various family legislation. As the court put it, “She did the work of a lawyer in addition to the work expected of her as a litigant.”

For the full text of the decision, see:

McMurter v. McMurter, 2017 ONSC 725 (CanLII)

Main judgment:

McMurter v. McMurter 2016 ONSC 1225 (S.C.J.)

Fong v. Chan, 1999 CanLII 2052 (ON CA)

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