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Posts tagged ‘offering pre-separation legal advice and assisting clients with family related issues including: custody and access’

Mother Wins Constitutional Challenge on Child Support for Disabled Adult Child

Mother Wins Constitutional Challenge on Child Support for Disabled Adult Child

The recent decision in a case called Coates v. Watson represents a landmark of constitutional law, with the court finding that section 31 of the Ontario Family Law Act discriminates against the adult disabled children of unmarried parents and is contrary to the Canadian Charter of Rights and Freedoms.

The case involved an unmarried Ontario mother who was responsible for caring for her adult disabled son named Joshua. The biological father had paid some child support, but was looking to have the support payments terminated now that Joshua was an adult.

Joshua suffered from DiGeorge syndrome, which left him with both physical and mental health issues. These in turn prevented him from attending school full-time.

The legal issue arose because section 31 of the provincial Family Law Act (“FLA”) states that every parent has an obligation to provide support, but only if the child is a minor or is in school full-time. The meant that in cases where the disabled child cannot attend school, section 31 actually operates to prevent him or her from falling within the definition of “child” and thus qualifying for child support. When applied to Joshua’s case, the law effectively eliminated the biological father’s obligation to assist in supporting his son.

In contrast, the federal Divorce Act contains no such qualification, and imposes a support obligation on the parents of disabled adult children, regardless of whether the child attends school.

In noting this discrepancy between the federal and provincial legislation, the court ultimately concluded that section 31 of the FLA was unconstitutional, because it discriminates against adult disabled children of unmarried parents on various grounds including parental marital status, and disability. That discrimination is contrary to s. 15 of the Charter, which enshrines the principle that every individual is “equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”

If the ruling in Coates v. Watson stands (and is not overturned on appeal), then there is speculation that the FLA might have to be amended by expanding the definition of “child”, or by incorporating the definition found in the federal Divorce Act.

For the full text of the decision, see:

Coates v. Watson, 2017 ONCJ 454 (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

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Wednesday’s Video Clip: What Are The Child Support Guidelines?


Wednesday’s Video Clip: What Are The Child Support Guidelines?

In this law video we discuss the child support guidelines.

In 1997, the federal government brought in a set of new rules and tables for calculating the amount of support a parent who does not have custody of his or her child must pay to the parent who has custody.

These rules and tables were later adopted by the Ontario government and are set out in the Child Support Guidelines.

A link to the Federal Child Support Guidelines is provided in the More Information, Courts and Statutes section of our web site Russellalexander.com.

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

Personal Injury Structured Settlements: Are They “Property” or “Income” Upon Divorce?

Personal Injury Structured Settlements: Are They “Property” or “Income” Upon Divorce?

In a recent family case called Hunks v. Hunks, the court considered whether structured settlements – such as the type that are reached as part of a personal injury claim – are considered “property” or else “income” for the purposes of the property-division and equalization regime under the Ontario Family Law Act (the “FLA”).

In that case, Donna and Gary got married in 1995. A few months later, Donna suffered an injury at a supermarket that left her disabled.   She successfully sued the supermarket, and was awarded more than $500,000 in compensation. After using spending about $200,000 for family-related needs, she used the rest to purchase a structured settlement (which is a mechanism by which a personal injury victim such as Donna could receive her settlement funds on a fixed schedule, rather than all up-front).

That structured settlement was arranged so that she would receive $1,290 per month for the rest of her life, as well as a lump-sum payment of $15,000 every five years (to a maximum of four such payments). All of this was subject to a small annual increase.

Unfortunately, the marriage between Donna and Gary did not flourish, and they separated about 15 years after Donna’s accident. In the course of settling out their financial affairs through the customary equalization process mandated by the FLA, the issue arose as to how the structured settlement should be properly characterized.

A lower court found that conceptually, a structured settlement was similar to a “pension” and rather than be excluded it formed part of Donna’s matrimonial property that was subject to equalization.

However, the Court of Appeal later overturned that ruling.   That court found that the structured settlement was essentially a special type of annuity, and it was more analogous to disability benefits. Under Ontario law, such benefits are considered “income” for FLA purposes, and while not subject to the equalization process per se, they are considered in determining spousal support levels.

For the full text of the decision, see:

Hunks v. Hunks, 2017 ONCA 247 (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

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“Gender Expression” Now Protected for Kids by Law

“Gender Expression” Now Protected for Kids by Law

In what is perhaps a controversial move, the Ontario government has recently passed legislation to allow children to be removed from their parents who opposed the child’s expression of “gender identity” or “gender expression”.

The Supporting Children, Youth and Families Act of 2017 received Royal Assent on June 1, 2017. Once passed, it will change or repeal/replace existing legislation and implement new requirements directing service providers and other entities to support a child’s choice of gender identity or gender expression.

These amended provisions are aimed primarily at courts, social workers, and adoption services. It mandates that when providing services or considering the best interests and welfare of a child, these entities must consider “race, ancestry, place of origin, color, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity, and gender expression.”

It also prevents parents from challenging a child’s same-sex orientation, or with identification not with the gender that he or she was born, but rather the opposite one.

This directive gives rise to a corollary assessment as well: Whether a child should be removed from a home where the parents oppose a child’s declaration of his or her homosexuality or choice of “gender”. The principle behind this part of the legislation is that a parent who refuses to recognize a child’s preference in this regard is actually perpetrating abuse; the child’s removal from the home environment and into child protection facilities would prevent further abuse from occurring.

The new law is not without its controversy. Objectors claim that it represents an unwarranted incursion into the rights of parents, particularly those relating to religion, and embodies an “anti-parent” agenda.

What are your thoughts on these new changes?

For the full text of the new legislation, see:

Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14.

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

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Wednesday’s Video Clip: Enforcement of Child Support in Ontario


Wednesday’s Video Clip: Enforcement of Child Support in Ontario

In this legal video, we discuss how enforcement in Ontario is done through a provincial government office called the Family Responsibility Office (FRO). The court automatically files all support orders made after July 1, 1987 with the FRO. Separation agreements can also be filed there if they have been filed with the court and then mailed to the FRO.

The parent who is to pay support is told to make all support payments to the FRO. When the FRO receives a payment, it sends a cheque to the parent with custody, or deposits the money directly into that parent’s bank account. It only does this after it has received the money from the paying parent.

If a payment is missed, the FRO takes action to enforce the order or agreement. To do this, the FRO needs as much up-to-date information about the paying parent as possible. This includes his or her full name, address, social insurance number, place of employment or business, income, and any property he or she owns. The information about the paying parent goes on a Support Deduction Information Form which is available at the court. This form is given to the FRO along with the support order or agreement. It is important to update this form whenever the information changes.

The FRO uses different ways to get the payments that are owed. It can:

• get the payments directly from the parent who is supposed to pay support

• have the payments automatically deducted from the parent’s wages or other income (other income includes things like sales commissions, Employment Insurance, Workers’ Compensation, income tax refunds, severance pay, and pensions)

• register a charge (a lien) against the personal property or real estate of a parent who fails to pay the support that he or she owes

• garnish (take money from) the bank account of a parent who fails to pay support

• garnish up to 50% of a joint bank account that he or she has with someone else, or

• make an order against another person who is helping a parent hide or shelter income or assets that should go toward support

The FRO can put more pressure on parents who do not make their support payments by:

• suspending their driver’s licences

• reporting them to the credit bureau so that it will be difficult for them to get loans, or

• canceling their passports.

Once the order or agreement is filed with the FRO, then it is the FRO, not the other parent, that is responsible for any actions taken to enforce it.
Sometimes parents receiving support withdraw from the FRO because it is easier to receive payments directly from the other parent. But if problems arise later, and they want to re-file with the FRO, they might have to pay a fee to do this.

Parents who have an obligation to pay support should also know that the FRO cannot change the amount that the order or agreement says they have to pay. If they think that a change in their financial situation justifies a reduction in the amount of support they should pay, they must get a new agreement or go to court to get the support order changed.

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

Do Partnership Principles Apply to Deciding Who Gets the Dog in a Split?

Do Partnership Principles Apply to Deciding Who Gets the Dog in a Split?

The legal issue of who owns the beloved family pet after separation or divorce has been covered many times by the courts across the country.  As I reported previously on a case called Henderson v. Henderson, the Canadian position is clear: “a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.”

This established principle was applied recently in a B.C. case called Brown v. Larochelle – but with a unique spin: the court held that partnership principles could apply to guessing what the parties might have intended if they turned their mind to what would happen to Luna in the event they broke up.

The young couple lived together for a few years. After their relationship ended the woman brought a court proceeding to determine which of them should get to keep a 3-year-old Korean Jindo rescue dog named “Luna”.   Alternatively, she asked that Luna be shared on/week off basis, or else that the man repay her $475 representing her half of the $950 they had together paid to adopt her.   The man, in contrast, wanted to keep Luna himself.

The court described the lead-up to the dispute this way:

In September of 2015 the parties stopped living together with the [woman] moving to a new apartment that did not permit pets.  In June of 2016 the [woman] obtained permission from her landlady to have pets and contacted the [man] about sharing possession of Luna.

That has led to this litigation.  The [woman] says there was an agreement to share Luna when it became possible.

The [man] says he paid $2,500 to the [woman] when she moved out to adjust certain matters between them and he believed ownership of Luna was one of those matters.

Since September of 2015 the [man] has had virtually exclusive possession of Luna.  The [woman] did take her for some visits/walks some 5 or 6 times after moving out but has had no contact since some time before June of 2016.

After reviewing the Canadian law on the topic, the court confirmed that dogs are treated as property, and distilled the following additional principles from the jurisprudence:

What I extract from the collective wisdom of these cases and some others is as follows:

(a)  pets will not be treated in a manner such as children;

(b)  courts are unlikely to consider interim applications for pet possession;

(c)  Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt;

(d)  that pets are a variant of personal property;

The above being acknowledged it is also clear that in Canada there is a legal requirement that animals (and in particular dogs and cats) be treated “humanely” unlike any inanimate personal possession.

The court then considered the fact that the couple had acquired Luna together, in what was essentially a “partnership”:

In this case, Luna was acquired by the parties not individually by either one but rather as what legally might be characterized as a partnership or joint venture.

Basic partnership law provides for an equal division of assets on dissolution of the partnership.  Many partners make agreements as to how they will deal with assets if the partnership winds up.  Many, such as here, do not. …

Applying established partnership principles to the question of the responsibility for Luna post-split, the court added:

… Partnership law requires that partners deal with each other fairly and equitably.  One of the maxims of the law of equity is: “Equity presumes that to be done which ought to have been done”.  In the context of this case, and having seen and heard the parties, I can assume that if they had directed their minds at the time they acquired Luna or during their joint care of her to what would happen if they split-up they would have agreed that this decision would take into account the best interests of Luna and her humane treatment.

After noting some of the tendered evidence that the Jindo breed of dog requires “strong training, patience, and plenty of walks”, the court concluded that joint use of Luna would not be best for her, based on either her breed, or her individual characteristics.   Since it was evident that Luna had “cemented her bond” with the man since the couple’s split, the better decision was to leave her with him.

In the end – and having found no persuasive evidence that the $2,500 the man paid to the woman when they split up was intended to cover Luna in a sort of “property settlement” – the court found that the man was entitled to keep the dog but was required to pay the woman $475 plus minimal court costs.

For the full text of the decision, see:

Henderson v Henderson, 2016 SKQB 282 (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

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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