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Posts tagged ‘paternity disputes’

What’s Considered ‘Bad Faith” in Family Law?

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What’s Considered ‘Bad Faith” in Family Law?

Everyone has stories about divorces-gone-bad:  High levels of conflict over trivial matters, under-reporting income or hiding assets, and other forms of generally bad behaviour by former spouses towards each other.

Divorce being the emotionally complex process that it is, it’s hard to draw the line between straightforward “asserting your legal rights” versus outright “bad faith” behaviour.

This leads to an interesting question:

Does Canadian Family Law have a test for what is tantamount to “bad faith” conduct?

It turns out, it does.  This was confirmed in an Ontario Court of Appeal decision called Scalia v. Scalia where the court said:

The legal test for bad faith in the family law context … is that the impugned behaviour must be shown to be carried out with “intent to inflict financial or emotional harm on the other party or persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court.” In short, the essential components are intention to inflict harm or deceive.

As against this stated test, courts are sometimes called upon to evaluate a Family litigant’s behavior. They don’t always do so correctly.

For example, in a recent case called Turk v. Turk, a court found that an earlier judge on an application had failed to properly identify and apply the “bad faith” test to an acrimonious property and custody dispute between spouses.   The results at trial had been mixed, and both parties were now seeking their legal costs from the other.  However, the wife added that she should get full costs from the husband because of his “egregiously bad faith behaviour”.

The court considered the evidence on this point, and reviewed the application judge’s findings that the husband had:

  • Failed to comply with this disclosure obligations;
  • Had been dishonest about the status of one of his corporate ventures, claiming that it was in its “infancy”, when in reality – according to a public statement the wife’s lawyer  found on the internet — the corporate launch was imminently due; and
  • Failed to disclose, and offered no credible explanation for, his interest in another corporate venture.

The reviewing court chronicled these shortcomings of the husband, and said:

… It is possible that [the husband] consciously and deliberately concealed his interest in [the companies] when the Separation Agreement was being negotiated. When I consider the totality of his non-disclosure conduct, I prefer a different characterization of [the husband’s] behaviour that is just as serious. [The husband] does not care if he is complying with his disclosure obligation. He has made this clear through his repeated non-compliance with this important obligation. He is dismissive of the documentary disclosure process and the Family Law Rules. His chronic non-compliance reveals incomplete sworn financial statements and a failure to follow court orders.

Simply put, [the husband] remembers what is beneficial to his position in this litigation.

Indeed, the court found that the husband’s conduct “created an atmosphere of distrust and unnecessarily contributed to the cost of this litigation.”  He also took numerous unreasonable stances in the proceedings, disputed non-essential points, and needlessly drove up the time and costs to untangle the couple’s issues.

Still, previous application judge’s conclusion that the husband had acted in “bad faith” could not stand, since it did not meet the established Family Law-specific legal test on these facts.  In short – and while finding that “there was good reason to criticize Stuart for his unacceptable and unreasonable conduct” – the court ultimately concluded that it did not “rise to the level of wrongdoing, dishonest purpose or moral iniquity the test for bad faith requires.”

The court went on to allocate litigation costs between the parties, accordingly.

For the full text of the decisions:

Turk v. Turk

Scalia v. Scalia

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

Is Using the SSAGs Truly “Voluntary”? When Can a Court Deviate from Them?

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Is Using the SSAGs Truly “Voluntary”? When Can a Court Deviate from Them?

Those of you who read my Blog regularly are familiar with the Spousal Support Advisory Guidelines (the “SSAGs” or simply the “Guidelines”) which are designed to help spouses, lawyers, mediators and judges to “determine the amount and duration of spousal support within the existing legal framework of the Divorce Act and the judicial decisions interpreting its provisions.”

However, the law makes it clear that the Guidelines are not legally binding, and they are used “only voluntarily”.   But does that mean they can be disregarded by judges entirely, when making a ruling on spousal support?

Not exactly.

In a case called Slongo v. Slongo, the Ontario Court of Appeal confirmed that any departure by a judge from the Guidelines requires “adequate explanation.”  As the Court explained:

…the Guidelines, while not binding, should not be lightly departed from. This is in large part because, without them, it is very difficult to establish a principled basis for arriving at a figure for spousal support.

This principle was expounded on in a recent case called Sharpe v. Sharpe where the court said:

The Guidelines were designed to be used under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as am. ss. 1 to 35.1, but are in fact used as a useful tool by federal, provincial and territorial courts in the determination of spousal support and variation. I recognize that the Guidelines are neither legislated nor binding but note that it seems that use of the Guidelines has evolved from a “cross-check” or “starting point” to the Guidelines being a useful tool that should not be deviated from lightly.

So without wanting to quibble at the meaning of the word “voluntary”, it seems the use of the Guidelines is something a little more than that, at least for judges making a spousal support ruling.

For the full text of the decision, see:

Sharpe v. Sharpe

Slongo v. Slongo

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: We’re Here to Help

Wednesday’s Video Clip: We’re Here to Help

Have a question?

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

 

Must a Judge Actually Read the Materials That Family Litigants File?

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Must a Judge Actually Read the Materials That Family Litigants File?

In a recent Court of Appeal decision, the court entertained a novel little question:

Does the fact that a motion court judge admitted to not having read the materials filed by the parties automatically mean his or her judgment on their matter should be overturned?

The background facts in Kelly v. Findlay were uncomplicated:  The unmarried parents of a 20-year old daughter, who never lived together and never married, were in court before a judge on a motion to deal with child support and the payment of extraordinary expenses, most notably relating to the daughter’s horseback riding activities.

Apparently, during the course of hearing the motion on those issues the judge stated (in her own words) that she had “not had an opportunity to review the materials in any detail.”    However, she went on to make a substantive ruling on the various issues the parties had raised.

Afterwards, the father brought an appeal on the basis that the motion judge’s admitted failure to read the materials prior to the hearing brings the administration of justice into disrepute.

However – and perhaps surprisingly – the Appeal Court rejected this ground of appeal.

Clearly, the motion judge overtly admitted to not having read the file in detail, stating that she only received it the morning of the hearing.   But this was not fatal in the circumstances.  The Court of Appeal observed:

However, it is also clear that the Motions Judge took the opportunity to both listen to the arguments made by the parties and to consider the materials that were before her.  She also provided the parties with a detailed endorsement, outlining both her decision and the reasons for that decision.

A judge who acknowledges that she has not had an opportunity to read all the materials does not bring the administration of justice into disrepute.  There is no merit to this argument and I reject it.

For the full text of the decision, see:

Kelly v. Findlay

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: What Are The Child Support Guidelines?

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

In this video we discusses 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.

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

 

 

Court Finds Wife’s New Lawyer’s Attempt to Renege on Deal “Too Cute By Half”

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Court Finds Wife’s New Lawyer’s Attempt to Renege on Deal “Too Cute By Half”

The question in a case called Hillis v. Hillis was whether the wife’s new lawyer could (conveniently) rely on the fact that the wife had not signed her own Offer to Settle, as a means of getting out of a deal they had negotiated with the husband.

Spoiler alert:  The court wasn’t buying it.

The separated husband and wife had been negotiating through their respective lawyers about selling their matrimonial home and related issues.  The wife’s first lawyer made a formal Offer to Settle, and the husband’s lawyer accepted it on the husband’s behalf.

However – and despite being the one to put the Offer forward – the wife herself never personally signed it.   Technically, this was a breach of the Family Law Rules (FLR) on validly-accepted Offers to Settle.  Still, the parties took steps in furtherance of their intended agreement.

Then, the wife got a new lawyer.  Perhaps opportunistically, that new lawyer relied on technicalities to claim the wife’s non-signature meant there was not Offer capable of being accepted.  Essentially, the new lawyer reneged on the Offer that had been made to the husband.  The husband went to court for an order validating their mutual acceptance of the deal that had been struck, even despite the lack of signature.

The court agreed with the husband that “there are different routes to a contract that don’t always require compliance” with the FLR as to signature:

Using the ordinarily understood principles of contract law, it is clear to me that there was offer and acceptance and hence a valid and binding agreement.

The court pointed out that this couple had previously entered into a formal cohabitation agreement, and knew that their lives together were governed by contract, including the question of how the matrimonial home would be dealt with, the custody and access of their two children, and the exchange of financial information.  They agreed to have the draft Minutes of Settlement incorporated into a formal Court Order.  The court said:

[The wife’s] counsel prepared and provided those draft Minutes shortly after the [the husband’s] acceptance.

There was some jigging of the language of that document by the parties’ counsel.

Then, the [wife] changed counsel and lo and behold! her new counsel disapproved of the draft Minutes and entered the fray demanding that the Minutes be tailored to be precisely consistent with “the offer your client claims to have accepted”. …

It seems to me that after the [husband] had accepted her Offer, the [wife] had second thoughts and that those second thoughts were occasioned by the only material change in the parties’ circumstances:  her new counsel.

In rejecting the late-breaking technical objection by the wife’s new lawyer, the court concluded that the former couple had agreed to all essential terms of the wife’s Offer, when the husband accepted.  The court made a formal order that incorporated those same terms, adding:

It is important to remember that the Offer was made by the [wife].

It my view, the [wife’s] new lawyer’s position is too cute by half.

For the full text of the decision, see:

Hillis v. Hillis

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

 

New Online Divorce Application Service Enters Pilot Stage 

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New Online Divorce Application Service Enters Pilot Stage 

The Ontario Superior Court of Justice (OSCJ) has announced that couples who live Brampton, Hamilton, Ottawa, or Toronto and who collectively agree to a divorce may now file an application for divorce online. This pilot study is being conducted with an intention to speed up the process of filing for a divorce.

Although, before you submit an application you must qualify and have all of the required documents. The OSCJ states that:

To file online either you or your spouse must:

  • currently live in one of the four pilot locations (Brampton, Hamilton, Ottawa and Toronto)
  • have lived in Ontario for at least one year (leading up to filing your application)
  • be separated for at least one year

Both you and your spouse must also:

  • have been married in Canada or have an electronically-issued marriage certificate (not a scanned copy) from another country
  • agree to the divorce
  • be able and willing to sign court documents
  • must swear that the documents are true in front of a notary public or commissioner for taking affidavits
  • have already resolved any other family law matters, such as parenting, spousal support or division of property
  • not require a fee waiver

The OSCJ also required the relevant documents:

  1. Form 8A: Application (Divorce)
  2. Form 36: Affidavit for Divorce
  3. Form 25A: Divorce Order
  4. Copy of your marriage certificate
  5. Form 35.1: Affidavit in Support of Claim for Custody or Access
  6. Child or Spousal Support Forms

The cost of an application is currently $447. After application the court will review it and send an email including a) your joint divorce application with an attached court seal and, b) the assigned court file number and date of issue.

The OSCJ also advises that any couple wishing to file an application should speak to a lawyer beforehand to ensure that they qualify, and have all of the requisite documents.

More information on how to apply can be found here. Or if you have any questions you can contact us at 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

Wednesday’s Video Clip: What if my child doesn’t want to visit their other parent? 

Wednesday’s Video Clip: What if my child doesn’t want to visit their other parent? 

It is difficult to feel as though you are forcing your child to visit their parent if they do not want to. However, if your partner has court ordered access rights, you are responsible to ensure that they attend their visit. The court looks poorly on parents who do not facilitate a relationship between a child and their parent. Your responsibility to foster this relationship applies even if your child has special plans or is sick during a scheduled access time. Stopping access between your child and their parent is only permitted in very limited circumstances; such as if you fear your partner is harming your child. In these situations, you may have the obligation to report this harm to the Children’s Aid Society. In order to stop access altogether, you will need to go to court to change the access arrangements. If you are concerned about access between your child and their parent, it is always advisable to speak to a family lawyer to learn more about your rights as a parent.

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 Know Husband Had Divorced Her – Can She Overturn it?

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Wife Didn’t Know Husband Had Divorced Her – Can She Overturn it?

In Rai v. Grewal, the couple had started living together in 2003, and got married 8 years later, only to split up a few years after that. The husband applied for a Simple Divorce, which is a straightforward procedure designed for cases where the parties have no complex divorce-related issues between them, with evidence being put in by Affidavit.   The husband was granted a divorce “over the counter” at the courthouse in early 2018.  He married another woman two months later.

The problem was, the wife apparently did not realize the divorce had been granted.  It was only when she and the husband were negotiating their remaining matrimonial issues – a month after the Divorce Order and a month before his wedding to the new woman – that the wife realized that the husband had formally divorced her.

The wife then waited another three months after this revelation.  She then brought a motion to set aside the Divorce Order, and refused to agree to any compromise that would simply separate out the matrimonial issue from the divorce itself.

In support of her motion, the wife claimed the husband had lied on his Affidavit.  But even giving the wife the benefit of the doubt on that point, the court pointed out that this was her only real objection, and the sole basis for setting the Divorce Order aside.   It noted that the wife’s motive seemed to be to “exact leverage” against the husband.

The larger problem, the court said,  was that if the divorce was overturned at this stage, the husband would be significantly prejudiced, since he had moved on to a new relationship. The court said:

In this case, there is real prejudice to the Husband. He is remarried.  His new wife will be prejudiced. He will be “disadvantaged” if the order sought is granted as will his new spouse.

In this case, the Wife refuses to accept an order which would remove all prejudice she claims – the corollary relief, including child and spousal support.

The refusal to consider and accept [an] order [dividing the issues] suggests that the Wife’s motivation is to exact leverage on the Husband regarding the corollary relief rather than avoiding any prejudice to her. 

The court also called the woman out on her three-month delay, rejecting her claims that it took time to investigate the matter before brining the motion.  It found the evidence was to the contrary:  Neither the wife nor her lawyer had made any enquiries of the husband about the Divorce Order – not even to obtain a copy of it.  Nor had they obtained a copy from the Trial Coordinator’s Office, which would have taken a day or two at most.

After weighing the spouses’ respective positions, the court declined to set aside the Divorce Order, and ordered the remaining marital property issues to go forward for resolution by separate court processes.

For the full text of the decision, see:

Rai v. Grewal

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

 

Newfoundland Court Makes Landmark Ruling Recognizing Polyamorous Parents

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Newfoundland Court Makes Landmark Ruling Recognizing Polyamorous Parents

As the CBC recently reported an East coast court has made a ground-breaking ruling that affirms the parental rights of those in non-traditional families.

In Canada, polyamorous relationships – which involve three consenting unmarried adults rather than the customary two – are legal.  (They are different from marriages that purport to involve multiple parties, such as bigamy and polygamy.  These are illegal under Canadian law).

What has not been as clear, is whether and how parents who hare involved in polyamorous unions should be legally recognized. Recently, the family court in Newfoundland and Labrador had a chance to tackle this very issue.

The case involved a family consisting of two men, and the mother of an infant. The court introduced the unconventional family arrangement this way:

J.M. And J.E. are the two male partners in a polyamorous relationship with C.C., the mother of A., a child born of the three-way relationship in 2017. The relationship has been a stable one and has been ongoing since June 2015. None of the partners in this relationship is married and, while the identity of the mother is clear, the biological father of the child is unknown.

The adults went to court to have all three of them legally recognized as the parents of the child.  This followed after their failed bid to the Newfoundland Ministry of Service to have themselves administratively designated as parents; that application was rejected on the basis that the provincial Vital Statistics Act allowed only two parents to be listed on a child’s birth certificate.

In making the order in their favour, the Newfoundland family court focused on the best interests of their child, which remains the predominant factor in any family issue involving children.  It noted that the unique arrangement between the three adults gave rise to a stable, loving family, and one that certainly did not detract from the child’s well-being.

While conceding that the province’s three-decades-old Children’s Law Act also allowed for no more than two people to be named as the legal parents of a child, the court said this did not embrace the “now complex family relationships that are common and accepted in our society.”  It noted that the more narrow historical interpretation should not circumvent what was in the child’s best interests, adding that “[s]ociety is continually changing and family structures are changing along with it.”

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