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Posts tagged ‘paternity disputes’

Did Remorseful Husband Succeed in Ending Arranged Marriage?

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Did Remorseful Husband Succeed in Ending Arranged Marriage?

A recent Ontario case casts light on what happens when cultural marriage traditions must be scrutinized under a Canadian legal microscope.  The court introduced the facts this way:

This application involves the fall-out from an arranged marriage that did not last. There were no children of this marriage.

In 2012, … [the wife] was a 22-year-old Pakistani woman who studied in the Master of Business Administration program at .. University. 

[The husband] was then a 28-year-old Canadian man whose parents had emigrated from Pakistan a generation earlier. [The husband] had graduated from secondary school in Toronto and was pursuing a career in the financial sector. [The husband’s]  mother set upon arranging for [the husband] to marry a woman from Pakistan.

[The husband’s] mother contacted [the wife’s] mother and they arranged for [the wife] to marry [the husband]. … The couple met for the first time in the days before the wedding and were married on July 6, 2012. …  After the wedding, [the wife] left her home to reside with [the husband] for about a week in a relative’s house. [The wife] testified that she and [the husband] consummated their marriage. [The husband] testified that they did not.

[The wife] recalled that she and her new husband happily celebrated with family members in the week after their wedding. [The husband] testified that he was immediately overcome with remorse. He had gone along with the arranged marriage to please his traditional parents, and to maintain cultural values, but was saddened to be married to someone he did not know and with whom he had little in common.

According to the reluctant husband’s evidence, and unbeknownst to the wife, he decided to divorce her by invoking a traditional religious divorce ceremony – which is recognized under Canadian law when validly performed.   The court continues the narrative:

[The husband] testified that late in the evening of May 28, 2013, he spoke with his mother and told her that he had decided that he could no longer remain married to [the wife]. He felt anxious and ill and wanted to terminate the relationship. [The husband] testified that he understood from his mother that as his marriage had not been consummated, it could be annulled if he convened a meeting with [the wife], her family, and a village elder, and spoke the word “Talaq” to [the wife] three times.

This conversation took place in Pakistan, where the husband, wife, and extended family members were all assembled to celebrate the wedding of another family member.  The husband testified to the court that he performed this religious ritual before the wife and other required parties the next day, on May 29, 2013.

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However, the wife’s version of the day’s events diverged significantly:  She claimed they simply spent the day happily shopping and dining together.  As the court explained:

[The wife] testified that [the husband] is “totally lying”. She states that there simply was no such ceremony. [The wife] is adamant that [the husband] did not attempt to divorce her in 2013 and that he did not even tell her that he wanted out of the marriage.

 

Thus the question of whether the couple were divorced under both Pakistani and Canadian came down to a matter of credibility.  The husband bore the onus of determining that a religious divorce had taken place on that day in May, as he claimed.

The court looked at the overall evidence presented, and disbelieved the husband outright.

For one thing, the subsequent email correspondence between him and the wife (who had remained in Pakistan) consisted of “the usual dialogue between a couple planning to get together after a time apart.”   The husband had taken no steps with the civil authorities in Pakistan to legalize the alleged divorce, and did not attend the country’s central registry to change his marital status.  Nor did he consult with a local lawyer to ensure the ceremonial steps he took complied with Pakistani divorce requirements.

Even looking at matters from the wife’s side, her conduct after May 29, 2013 was not consistent with someone who had been told her husband was leaving the marriage. Instead, she continued to prepare to reunite with her new husband in Canada, and to establish a married life with him.

Having ruled that the husband had not achieved a religion-based divorce as claimed, the couple remained legal spouses at the time of the hearing.  In a 100-paragraph judgment, the court went on to deal with numerous issues relating to property division and support, pending their upcoming divorce under Canadian law.

For the full text of the decision, see:

A.S.1 v. A.A.S., 2018

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

Was Husband in Contempt for Not Achieving the Impossible?

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Was Husband in Contempt for Not Achieving the Impossible?

The facts in Malboeuf v. Hanna raised an interesting issue:   Should a spouse be held in contempt for failing to satisfy a court Order that was impossible to comply with in the first place?

At an earlier hearing to address issues arising from their separation, the court ordered the husband to designate the wife as the irrevocable beneficiary of his life insurance policy.  Under the wording of the Order he was required within 30 days to “make arrangements to change the existing beneficiary designations to ‘irrevocable’ beneficiary designations ‘in trust for the children’ (if allowed by the insurer).  The goal was to secure the husband’s child support obligations towards their children by making the wife the trustee of the funds.

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The problem was that the insurer, RBC Insurance, did not allow such irrevocable designations on its policies.

This prompted the wife to claim that the husband was accordingly in breach of the strict wording of the Order, and should be found in contempt of court. At the least, he should have circumvented the obstacle raised by RBC’s policy by taking reasonable, good faith steps to try to achieve that required outcome through other means.  For example, he could have obtained a further Order requiring RBC to make the designation irrevocable, or could have purchased a new policy that did allow such designations to be made.

The husband countered that he had satisfied the technical wording of the Order by making the request to RBC; from there, it was out of his hands.  The “irrevocable” designation would be in place but for the fact that RBC did not allow it.

The court reviewed the law on civil contempt of court, noting that to prove the husband’s contempt the wife had to show all three of the following:

1)  that there was a clear and unequivocal Order stating what the husband should/should not do,

2) the husband actually knew the terms of the Order, and

3) he intentionally failed to do what was ordered of him.

The court added that even with all three elements established, it still had the power to override a contempt finding if it felt the husband had acted in good faith to take reasonable steps to try to comply.

In this scenario, the court concluded that the husband was not in breach. First of all, the Order did not clearly and unequivocally require him to irrevocably designate the wife, but rather contained built-in wording that contemplated a potential hurdle (i.e. “if allowed by the insurer”).  That alone absolved the husband from being held in contempt.

Nor was there anything in the wording of the Order that clearly and unequivocally required him to take other steps, such as getting a new policy or getting a court to force RBC to bend its policy.  Without such added obligations being clearly placed upon him, the husband could not be found in contempt in this situation.

For the full text of the decision, see:

Malboeuf v. Hanna, 2018

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 Curbs Father’s Social Media Activity

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Court Curbs Father’s Social Media Activity

The decision a case called Cooper v. Primeau serves as good illustration of the level of detail that a court must address, in disputes between parents and former spouses.   In this ruling, the court took specific aim at the father’s habit of posting derogatory comments about the mother on social media such as Facebook.

The factual underpinnings were rather routine, involving normal matters such as custody, access and child support of the separated parents’ two children.  After several prior rulings, the court was left with two issues:

  • Whether the parents were required to provide each other with their updated phone number; and
  • Whether the parents may post photos and information about the children on social media such as Facebook.

Issue around providing a phone number turned out to be easy:  The father indicated before the court that he was prepared to agree to providing the phone number as long as the calls from the mother were limited to emergencies regarding the children.  The court made an order accordingly.

But the social media aspect was a little more contentious.  The mother made several accusations around the father’s use of the internet, including that he had:

  • Blocked her on social media;
  • Used social media to broadcast and discuss his ongoing dispute with the wife regarding access to the children; and
  • Used “crowdfunding” through social media to raise funds to assist him with his legal costs. In doing so, he was very critical of the mother in his plea for funds.

In his defense, the father contended that he wanted to continue to use Facebook as a means for his family to get to know the children.

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Nonetheless, the court concluded that while it may be reasonable to allow him to publish photos and comments about his children generally, these types of posts could justifiably include any mention of the legal dispute between the parents, or any derogatory comments about the mother. The court noted that “associating the children to such a legal battle [between the parents] in a public forum is not in their best interests.”

Ultimately the court made an order about the social media aspect on specific terms:   Posting photos on Facebook was okay, but posting comments on his dispute with the mother, making derogatory comments about her, or posting anything about his access issues to the children, was not.

For the full text of the decision, see:

Cooper. v. Primeau, 2018 

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 Issues Important Ruling on “Double Wills”

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Court Issues Important Ruling on “Double Wills”

In some circumstances, we recommend  that clients prepare a “double” Will – more properly referred to as a “primary” Will and a “secondary” Will for a single testator.  The primary Will deals with estate assets that require probate; the secondary Will covers assets that can be transferred to beneficiaries without having to go through the probate process.

Done right, this can minimize a testator’s probate fees and administration taxes.

However, the ruling in a recent Ontario decision called Re Milne Estate addressed a question that can dramatically affect the legal validity of this kind of Will arrangement.  Specifically, the court considered whether a Will is still valid if it allows the executors to decide whether property falls under the primary Will or the secondary Will.

The testator in Re Milne Estate had created two Wills.  The Primary Will covered all his property except certain named assets, and except other assets that the Trustees determined did not need to be included after-the-fact.   The Secondary Will addressed all property owned by the testator, and then specifically included certain named assets, and included those assets that the Trustees decided could be left out.

This wording was problematic; the two Wills essentially worked at cross-purposes to each other.  To be valid in law, a Will of any type had to conform to certain requirements, most notably that it had to demonstrate certainty in terms of the subject-matter that it covered.   This included certainty as to:

  • The intention to create a legal trust mechanism;
  • The subject-matter or property committed to the trust; and
  • The objects of that trust or the purposes to which the property is to be applied.

After confirming that there is no legal prohibition against the use of multiple Wills in Ontario, the court held that in this particular case, the Secondary Will was valid, but the Primary Will was not.

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Although it met two of the other legally-required “certainties,” the Primary Will in this case fell short of meeting the requirement as to certainty of the subject-matter or property:  By giving the Trustees after-the-fact discretion it left questions as to the exact property that was subject to its provisions.  In contrast, Secondary Will included all of the testator’s property of every kind, without exclusion.  It overlapped with the Primary Will completely, and with no gap.

The court accordingly directed the registrar not to accept the Primary Will for probate, but allowed the Secondary Will to go forward.

For those with multiple Wills, this decision in Re Milne Estate signals a need to have the wording reviewed by a lawyer, to ensure that the wording is valid and achieves its intended goals.

For the full text of the decision, see:

Milne Estate (Re), (2018)

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

 

Italy Proposes New Law with Hopes to Abolish “Support”

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Italy Proposes New Law with Hopes to Abolish “Support”

The Italian government has recently proposed a Bill to abolish child support and sole custody. The Bill is intended to provide a framework for “perfect co-parenting”, yet critics fear the effects it may have on women’s rights.

The Bill indicates it would enable parents equal time with their children and each parent would pay for the child’s expenses whenever they are in their care. If one of the parents are unable to pay the expenses, then the other parent (who has the financial means) would pay for those expenses directly and not in the form of “support”.

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Critics of the proposed legislation fear that since Italy’s society is made up of less than 50 percent of women who work outside of the home, that this would influence mother’s with unstable employment to feel pressured into remaining in an unhealthy marriage. Nadia Somma, a representative of Demetra, an Italian anti-domestic violence center, stated that the proposed law would “turn back the clock 50 years on women’s rights”.

Due to current government support, this legislation is likely to pass in the Italian Parliament. Experts indicate the enforcement period to range from six to 17 months.

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

 

 

 

Coffee With Lawyers: From NBA to Law School

Coffee With Lawyers: From NBA to Law School

Ever want to sit down and grab coffee with a lawyer? Here’s your chance! Get to know our Student at law Ajit Roopnarine.

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

Online Game ‘Fortnite’ Cited in Hundreds of Divorces

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Online Game ‘Fortnite’ Cited in Hundreds of Divorces

The online video game “Fortnite” which has grossed over $1 billion in revenue since its launch in 2017 and 125 million users, has recently been discovered to have been one of the reasons that at least 200 couples in the United Kingdom have cited for divorce.

Divorce Online, a U.K. company which offers insight into divorce resources and services recently posted a blog indicating that they had noticed many of the inquires and petitions they were reviewing had mentioned the extended use of the game as a contributing factor for the couples divorce wishes. The findings also showed that these those who cited the game were for the majority from couples where one of the parties played the game, and the other did not.

 

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A Divorce Online spokesperson also stressed that although the game’s influences were only evident roughly 5% of the total petitions this year, there is a link between “gaming disorder” and other addictions to drugs, alcohol or gambling.  In June, the World Health Organization (WHO) had officially recognized “gaming disorder” as a mental health related issue. The disorder has shown to have negative effects on relationships due to the precedence that gaming takes to the person over other activities.

Time will tell if this is a mere blimp for couples reasons for a divorce but the popularity for “Fortnite” does not seem to be slowing down anytime soon as it currently maintains nearly 40 million players each month.

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

 

Does Clan Law Govern Family Dispute Between Indigenous Couple?  Appeal Court Hands Down Latest Ruling

 

Image result for indigenous lawDoes Clan Law Govern Family Dispute Between Indigenous Couple?  Appeal Court Hands Down Latest Ruling

The next chapter in the ongoing legal saga in the case of Beaver v. Hill has arrived – in the form of an Court of Appeal decision which potentially allows an important constitutional question on Indigenous self-governance to get a full hearing before an Ontario court in the future.

We have reviewed in the past about this case, which involves Ken Hill, who is a wealthy Indigenous co-owner of the largest cigarette company on the Six Nations reserve. He is resisting the claims by his former romantic partner, Brittany Beaver, for almost $86,000 a month in spousal support, and $33,000 a month in child support for a child they had together. Hill earns about $2.1 million per year, tax-free.

One of the key issues is whether this Indigenous former couple’s family dispute should be decided under the regular Ontario family laws, or else under the laws that govern their particular clan, which is the Haudenosaunee.  Essentially, Hill claimed that he had an Aboriginal and treaty-based right, protected by s. 35 of the Constitution Act, 1982, to have his family law disputes resolved pursuant to Haudenosaunee laws. He essentially claimed a constitutional exemption from having the Ontario court and family law processes to determine the dispute between him and Beaver.

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In a prior ruling on a motion, spanning more than 150 paragraphs, the judge dismissed Hill’s constitutional argument that Haudenosaunee laws should be applied to decide Beaver’s support claims.  She ordered those arguments be stricken from his pleadings, and directed that the matter proceed in the usual fashion, under the customary provincial family laws. The judge also addressed several procedural objections as to the adequacy of Hill’s pleadings on the constitutional issue, but refused to give him permission to amend them.

As we reviewed  back in April of this year, Hill had filed an appeal which asserted that the motion judge had been hasty in permanently closing the door to his constitutional challenge at such an early stage in the proceedings.

That appeal has now been heard and – from amidst numerous complex issues – Hill has at least been vindicated in his argument that the motion judge had been premature. The Appeal Court ruled that he should have been given permission to amend what were called his “woefully inadequate” pleadings, especially in light of the seriousness of the constitutional issue raised.   The court said:

The version of Mr. Hill’s amended answer considered by the motion judge was poorly pleaded and lacking in detail. Neither Mr. Hill’s pleading, nor the ramshackle way in which the constitutional claim was asserted and is being developed, does justice to the seriousness of the claim. … Nonetheless, as I will explain, it was premature to dispose of the constitutional claim at this early stage. It is difficult to evaluate Mr. Hill’s claim under s. 35 of the Constitution Act, 1982 at this early stage of the proceeding. It would be unwise to dismiss the claim summarily on such a scanty record.

In short:  Even in light of Hill’s shoddy pleadings, a summary motion to have them struck was not the proper way to deal with and dismiss his claims involving Aboriginal and treaty rights.

Instead, the court struck out Hill’s pleading on the constitutional issues, but granted an order allowing him to amend it with permission of another court. It also refused to have Beaver’s support claims halted until Hill’s constitutional challenge was fully resolved; instead, Beaver was allowed to obtain interim support for herself and the child.  This was the best way to balance her immediate financial needs while balancing Hill’s interest in having his constitutional claim determined.

For the full text of the latest decision, see:

Beaver v. Hill

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