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Posts tagged ‘Ontario Court of Appeal’

Canadian Divorce and Foreign Same-Sex Couples – Appeal Ruling Now In

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Canadian Divorce and Foreign Same-Sex Couples – Appeal Ruling Now In

Last year I wrote about an interesting Ontario family law case called Hincks v. Gallardo, [link to: ]. In a nutshell, the case hinged on the question of whether, for the purpose of divorce, a same-sex union in another country can amount to a “marriage” under Canadian law.

The couple, who were two men named Wayne and Gerardo, had exchanged rings and gone through a “civil partnership” ceremony in the U.K., under laws that recognized same-sex unions in that country. They moved to Ontario and later decided to divorce. Wayne asked for equalization and spousal support from Gerardo under the province’s Family Law Act (the FLA) and the federal Divorce Act (DA).

As a prerequisite to obtaining that divorce-related relief, Wayne had to prove they were actually married first. Gerardo claimed that the union between them was not a “marriage” under Canadian law.

The judge hearing the original motion disagreed and – in its judgment rendered recently – the Ontario Court of Appeal confirmed that decision. Emphasizing that the wording of the FLA and DA were to be interpreted in their entire context, and in their grammatical and ordinary sense in harmony with the scheme and purpose of the legislation, the Court of Appeal concluded:

The interpretation by the motion judge of the terms “spouses” and “marriage” is entirely consistent with the modern approach [to statutory interpretation] mandated by the Supreme Court of Canada [in a prior decision]. Her interpretation achieves one of the fundamental purposes of the DA and the FLA: it provides the parties with an equitable and certain process for resolving their economic issues arising out of the dissolution of their relationship. In contrast, the interpretation urged upon us by the appellant would result in the parties being effectively treated as legal strangers under the legislation and would force them to assert their economic claims through more limited and less predictable means, such as trust claims.

As a result, under the FLA two people who are in a relationship that is both formally and functionally equivalent to marriage may be considered spouses under that Act; likewise, they have the same standing for the purposes of the divorce legislation. The appeal was accordingly dismissed.

For the full text of the decision, see:

Hincks v. Gallardo, 2014 ONCA 494 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

Husband’s Bad Behaviour Prompts Order to Pay $1 Million in Wife’s Legal Costs

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Husband’s Bad Behaviour Prompts Order to Pay $1 Million in Wife’s Legal Costs

Recently, I wrote about an Ontario Court of Appeal called Stevens v. Stevens that dealt with a number of issues, among them the question of whether the trial judge’s opinion of the husband had been tainted by the fact that the husband had had an extra-marital affair. Reference  “Did Fact of Extra-Marital Affair Taint Trial Judge Against Husband?”

One of the other interesting points that were addressed in the appeal was the question of whether the husband – who lost his appeal bid – should be saddled with paying almost $1 million in legal costs incurred by the wife. (And to his credit, the husband conceded that the wife was entitled to her costs; he just took issue with their amount.)

The case had involved numerous issues to be determined, including the validity of the marriage contract, the status of the matrimonial home and a cottage, and what amount of spousal support and arrears the husband owed. The wife had been successful on every one of them.

In deciding the costs question, the court began by pointing out that under the Family Law Rules, there is a presumption that as the successful party the wife was entitled to her costs in the case. There is also a rule that states that if a party has acted in bad faith, the court must decide costs on a “full recovery basis” and order him or her to pay those costs immediately.

The court reviewed the husband’s conduct throughout the course of the litigation, and decided he had acted unreasonably. Among other things the husband:

• Caused a one-year delay in having the matter brought to trial, despite repeated requests from the wife to set a trial date. (And the court noted this delay caused significant financial repercussions to the wife, since she had to draw on the capital in order to meet her living expenses and those of her children).

• Refused to admit to 30 specific facts up-front. In reality, these facts were uncontested and the wife was needlessly forced to incur the cost and time to marshal evidence to prove those facts at trial.

• Asked the court to enforce a marriage contract signed by the wife that he knew contained an important legal and factual mistake.

• Engaged in bad faith conduct which included not making full, complete and timely disclosure of certain information; other information validly requested by the wife was never provided at all.

• Was untruthful about what his income was.

• Came to court to ask to be relieved of child support payments that he was legally required to make.

• Wrote to the trial judge directly, to ask that his child support payments be reduced because he claimed he had no income. (And not only did the husband not copy the wife on this very ill-advised letter – which was returned by the court – but he was also represented by a lawyer at the time, making his direct request to the judge doubly inappropriate).

• Improperly used funds from a company in which he had shares to pay some of his legal fees.

In the course of categorizing the husband’s condemnable behaviour, the court wrote simply:

“It is hard to prioritize the bad conduct on the part of Joel during this whole process as there are so many egregious incidents of Joel taking advantage of Pamela.”

After applying the various established factors that must be considered in awarding costs (including the importance and complexity of the issues, and the unreasonableness of each spouse’s behavior in the case), and after considering additional factors including any possible financial hardship that might be endured by the husband, the court concluded that $950,000 in legal costs incurred by the wife should be paid by the him, plus pre-judgment interest of another $55,000. (This trial court ruling was later upheld on appeal).

For the full text of the decisions, see:

Stevens v. Stevens, 2013 ONCA 267 (CanLII) http://canlii.ca/t/fx7g0

Stevens v. Stevens, 2012 ONSC 6881 (CanLII) http://canlii.ca/t/fv2c9

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Should Alcoholic, Unemployed Father Be Forgiven $40,000 in Support Arrears?

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Should Alcoholic, Unemployed Father Be Forgiven $40,000 in Support Arrears?

In tough economic times, it is not uncommon for a paying parent to rack up significant unpaid child support arrears, especially when there is some personal crisis or unexpected hardship on the job-front. One skipped payment leads to two…. and the arrears continue to accumulate, sometimes over a period of a year or more.

In such circumstances, paying off the outstanding arrears becomes a huge burden to the paying parent, and seems like an insurmountable challenge.

But do courts sympathize?

In an Ontario Court of Appeal case called Defrancesco v. Coutu, the issue was whether a father should be entirely relieved of having to pay $40,000 in unpaid child support arrears that had accumulated over almost a decade. He was an alcoholic and had trouble holding down a steady job. Unemployed and on public assistance for most of the time since the original court order, he was not even at a subsistence level of income. To further compound his difficulties, he was disentitled from receiving unemployment insurance benefits due to various circumstances (which included secretly working for a cousin while improperly claiming workers’ compensation benefits, and quitting a job due to a personality conflict with his boss).

He applied to the court to have his $40,000 liability for support arrears waived, claiming that his personal circumstances had changed significantly since the support order was first made. The child’s mother objected, pointing out that even when the father had money to make support payments or pay off some arrears, he did so only involuntarily; she frequently had to chase him down for the money.

The Court of Appeal declined to relieve the father of his obligation. Although he clearly did not have the money to pay off his arrears now, this did not mean he would not have the money in the future. The court was also troubled by the father’s unwillingness to voluntarily support his children.

In coming to this conclusion, the court was entitled to look at the total picture, which included:

• the nature of the father’s obligation to pay support (i.e. by contract, by legislation, or by court order);

• his ongoing financial capacity to pay;

• the ongoing financial need of both the mother and the child;

• whether there was any unreasonable and unexplained delay on the mother’s part in seeking the arrears;

• whether there was any unreasonable and unexplained delay by the father to ask to be relieved of his obligation as to arrears.

Despite the father’s unfortunate circumstances, there was no legal basis to rescind the arrears. However, the court was not entirely unsympathetic: given the father’s situation, his going-forward child support obligation was adjusted downward to take into account his dire financial situation, alcoholism and bleak prospects for steady employment.

For the full text of the decision, see:

Difrancesco v. Couto, 2001 CanLII 8613 (ON CA) http://canlii.ca/t/1f7kx

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

When Will a Court Allow a Consent Order to be Appealed?

 

 

When Will a Court Allow a Consent Order to be Appealed?

The husband and wife were married in 2006, had one child together, and separated in 2010. The wife applied to the court for a divorce, and for sole custody of the child (with the husband getting access). The husband wanted custody to be shared.
A few days later, the wife brought an urgent motion for temporary sole custody, exclusive possession of the home, and a restraining order against the husband. After negotiations, the parties essentially agreed to the wife’s request in full (including the restraining order) but the husband was to have supervised access. The court signed a Consent Order to that effect.

Various other motions followed; again, the parties were able to negotiate a settlement. Those matters that remained unresolved were brought before the court in May of 2011. Both parties were represented by counsel at that hearing, and once again a settlement was reached in connection with child custody and support, and spousal support. Minutes of Settlement were signed and presented to the Motion Judge, who agreed to grant an order on consent, i.e. in line with the parties’ mutually-agreed resolution.

A week later – and of his own initiative – the Motion Judge wrote reasons to elaborate on why he was willing to sign the Consent Order. He also suggested that three additional terms be added to it: 1) that the parties cease criticizing each other; 2) that they do not allow others to criticize them in front of their child; and 3) that the wife’s brother’s affidavit be removed from the court records.

The final Order that was ultimately signed by the Motion Judge did contain these three added terms.

The wife later appealed the Order, claiming the judge had made incorrect comments about her behaviour, had treated her in a stressful manner, and had essentially vitiated her consent. The husband countered by pointing out that the appeal was of a Consent Order, and – pursuant to the provisions of the Courts of Justice Act – such an Order could only be appealed with leave of the court. No such consent had been obtained in this case.

The matter eventually came before the Ontario Court of Appeal.

That Court observed that – while there is no specific test for obtaining leave to appeal a Consent Order set out in the Courts of Justice Act – such Orders are essentially formal contracts, made in the context of adversarial judicial proceedings. Therefore, the same principles for setting aside such agreements apply to Consent Orders, as for any other contract: there must be fraud, duress, mistake or some other vitiating circumstance. Essentially, they can be appealed if no true enforceable agreement existed; absent evidence of such lack of consent, leave to appeal should not be granted by a court.

Having said that, matters involving children fall into a special category; in such cases the court has an obligation to give priority to the best interests of the child. Therefore, where the Consent Order involves a child, a leave application is treated somewhat differently, but the threshold for granting such leave still remains high. Specifically, leave should not be granted unless the record demonstrates that the Consent Order, at the time it was made, was not in the child’s best interests.
Applying these principles to the facts at hand: in this case, even though the final version of the Consent Order contained the three additional terms suggested by the judge, it was still made on “consent” as required in law. As such, it qualified as a “Consent Order” for which leave to appeal had to be obtained under the relevant provisions of the Courts of Justice Act.

Next, there was no evidence to suggest that the Motion Judge had failed to consider the child’s best interests, or that he had failed to adhere to his obligations as a judge. Nor was there evidence to indicate that the wife’s consent to the negotiated agreement founding the Consent Order was vitiated by fraud or duress as she claimed. To the contrary, she had her own legal representation throughout the proceedings. The court founds that since the wife’s “assertion of duress is doomed to virtually certain failure,” leave to appeal the Consent Order should be dismissed.

For the full text of the decision, see:

Ruffudeen-Coutts v. Coutts, 2012 ONCA 65  http://canlii.ca/t/fptxn

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Lawyer-Less Father Misses Opportunities at Trial; Appeal Denied

 

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Lawyer-Less Father Misses Opportunities at Trial;  Appeal Denied 

Recently we highlighted an Ontario decision  that illustrated how a litigant’s outcome in court can potentially be hampered by his or her decision not to have competent legal representation.  

Although there are many, many examples of this, another recent case, this time from the Ontario Court of Appeal, shows that unrepresented litigants – who are generally unfamiliar with legal procedure – can unwittingly deprive themselves of the opportunity to assert their rights or put forward helpful evidence at the appropriate procedural juncture.

As usual, the parties were former spouses, who had decided to separate and divorce.   They went to court to resolve the legal issues arising from that decision, chief among them the question of who was to get custody of the three-year-old child they had together.  

At trial, the mother was granted custody; the father, who was not represented by a lawyer, was given access that was to be supervised by the Salvation Army.  Moreover, the trial judge also imposed a five-year restraining order on him, blocking him from contacting or going near the mother, the child, and members of the mother’s extended family.

The trial judge had also refused to adjourn the proceedings to allow the father to properly prepare, produce documents, and obtain witnesses.   He was also not permitted to bring forth his treating psychiatrist to give evidence at trial.

The father – who was now represented by a lawyer – appealedall of these lower-court rulings to the Ontario Court of Appeal.  

His appeal was dismissed.  

The court found that the trial judge had carefully considered the parties’ respective submissions.   The father had a full 15 months prior to the trial date in order to prepare his materials and submissions.   He knew of the exact trial date two months before it took place.   Moreover, the matter concerned the best interests of the child, and it was important to keep the proceedings moving along.  The trial judge’s decision refusing to allow the father an adjournment in the circumstances was not in error.

With respect the treating psychiatrist’s evidence:  the father’s request to produce his doctor was made only after the trial had already begun, and he had not complied with the procedural requirements of the Family Law Rules that govern the calling of expert witnesses (including giving the mother a copy of the expert’s curriculum vitae, or a list of his or her qualifications).   Furthermore, the Appeal Court found that – even if the trial judge felt it appropriate to give the father some leeway in this regard – the doctor’s evidence would likely have made no difference in the orders that were ultimately imposed at trial.

As for the substantive ruling that gave the father supervised access only, with custody to the mother – the Court of Appeal found that the evidence in support of this outcome was “overwhelming” and that the trial judge’s decision on supervised access “was a wise one”.   The child had been in the mother’s custody since birth, had strong ties to her, and had virtually no emotional ties to the father at all.  Previous attempts at supervised access by the father had failed completely.  And while the court conceded that this might change in the future, it was the appropriate arrangement for the time being.  

Finally, the Appeal Court saw no error in the 5-year restraining order.  There was clear and convincing evidence that the father had been violent to the mother and her family in the past.  

The father’s appeal was ordered dismissed, with fixed costs of $10,000 being imposed on him.

For the full text of the decision, see:

French v. Riley-French, 2012 ONCA 702 (CanLII)  http://canlii.ca/t/ft9lq

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com.

 

 

Father Loses Home and Rental Income – His Child Support Obligation Stays the Same

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Father Loses Home and Rental Income – His Child Support Obligation Stays the Same

In a recent decision in Roscoe v. Roscoe, the issue was whether a father who had lost his home under seizure and sale – and whose income from a rental unit had likewise been eliminated – was entitled to have his child support obligations reduced.

The answer from both the lower court and the Court of Appeal was: “No.”

In this case the father had been ordered in 2003 to periodically pay support for the child he had with the mother from whom he was now divorced. Since that time, however, the father had been delinquent in making those child support payments; indeed had never voluntarily paid child support since the original order was made and instead had to be coerced to fulfil his obligations. In fact, he stopped making support payments entirely in March of 2011. The child was now 14 years old.

It was also noteworthy that the court-ordered support amount was based on the court imputing the father with a rental income of $16,800 per year from his home; the court had been forced to guess at the father’s income because he had not been forthcoming with the requisite financial disclosure.

Then, in 2010 the father fell into default on his mortgage payments, and his home was seized and sold by the bank. This naturally eliminated the father’s source of rental income, whether at the level imputed by the court or otherwise.

In light of his situation, the father – who was self-represented and who had previously been declared a vexatious (i.e. pesky) litigant – brought a motion to court to have the original 2003 support order varied, and to have the amount he owed to the mother reduced retroactively. At that variation hearing the father was unsuccessful: the lower court judge refused to retroactively reduce the amount he owed to the mother, and replaced the prior periodic payment schedule with an order requiring him to pay her $32,000 as a lump sum. It also prohibited the father from bring further motions (some of which included various constitutional challenges that the father was contemplating).

The father then sought to have the lower court ruling overturned on appeal; likewise, he was unsuccessful before the Ontario Court of Appeal (where, incidentally, he represented himself as well).

The appeal court began by making particular note of the father’s recalcitrance in his refusal to make child support payments voluntarily, and in his refusal to make proper financial disclosure. It also pointed out that the father had dragged the mother into protracted litigation.

Against this background, the court then evaluated the father’s financial situation. It conceded that the father’s financial circumstances had indeed changed somewhat from the date that the original support order had been issued. However – apart from the seizure of his home – the father had not demonstrated any other change in his circumstances. The fact that the father was apparently not working at the present time did not rebut the trial judge’s conclusion that he was nonetheless capable of working.

In short – and with the father’s history of being unjustifiably litigious and yet unwilling to comply with prior orders – the court refused to cut the father any slack.

Ultimately, the appeal court confirmed that the $32,000 lump-sum award was appropriate, and that there was no reason to reduce the retroactive child support that the father owed.

For the full text of the decision, see:

Roscoe v. Roscoe, 2012 ONCA 817  http://canlii.ca/t/ftwzw

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.