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Posts tagged ‘paternity disputes’

“Smoking Gun” Email Helps Convince Court to Strike Out Husband’s Pleadings

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“Smoking Gun” Email Helps Convince Court to Strike Out Husband’s Pleadings

When a court “strikes out” a litigant’s pleadings, it essentially precludes that person from participating in the proceedings any further.  It is a drastic order by the court, usually in response to a situation where the person’s conduct shows that he or she is unwilling to co-operate in the orderly judicial resolution of the dispute.

In a case called Milutinovic v. Milutinovic, a wayward email by the husband – accidentally sent to the wife’s lawyer – helped convince the court to make such an order against him, since it showed that he was wilfully failing to comply with his court-mandated obligations.

Indeed, the husband had failed on numerous prior occasions to comply with court orders made in connection with his divorce from the wife, including one directing him to make financial disclosure or else the wife could apply to have his pleadings struck.  When he failed yet again to supply the information, including his long-requested income tax returns, the wife brought an application to strike as she was entitled to do.

Evidently the judge hearing that application felt inclined to give the husband yet another chance, noting that that the earlier order had stated that the husband’s pleadings “may be” struck (not “must be”).  That later judge gave the husband some extended opportunity to comply with some of his shortfalls in providing information, including providing his tax returns specifically.

Still, the husband did not provide the wife with the information she was owed.  As the trial was about the start, the wife renewed her motion to strike out his pleadings.  She claimed that there was no longer any lee-way by the court to allow him to continue with his side of the case when he had failed to breach so many of the prior significant orders.

The court began its deliberation on the issue this way:

This is a serious remedy; it removes a party from the litigation and prevents that party from having his or her side of the story placed before the court.  The court must use caution in doing so, especially on the eve of trial.

On the other hand, the court went on:

That being said, it is a serious business to breach a court order or court orders, something that [the husband] acknowledges that he has done.  This is especially so, where we are on the first day of trial and the [husband] has not provided the disclosure that he was obligated to do by various court orders made throughout these proceedings … And to make this more egregious, it is more than justified where child support is in issue, and the court is left without the ability to determine the [husband’s] income to pay that child support….

The court did consider the many excuses for non-compliance that the husband had put forward:

However, he says that he has been extremely stressed by these proceedings and is not seeing his children.  He says that he has been unable to turn his mind to the litigation or deal with it.

Noting that months ago the previous court had given him “one last chance” to at least provide the crucial income tax returns, the court concluded that the husband had simply not been vigilant about meeting his disclosure obligations.  In fact, the court had proof – in the form of an errant e-mail that the husband had accidentally send to the wife’s lawyer.  The court explained:

However, and what is extremely surprising, if not shocking to the court, is the fact that [the husband] sent an email to his bank only this morning requesting the money that [the prior judge] ordered to be released.  The order for release of funds was made more than 11 weeks ago, yet the respondent only sent the email this morning to his bank directing them to release funds.  [The husband] acknowledges that he sent the email, but was surprised that the [wife’s] lawyer had it.  Then it became clear that he had sent the email to [the wife’s] lawyer by accident and he acknowledged that he had only sent it today.  He had no excuse for this.

After itemizing yet again the husband’s many shortcomings in terms of providing disclosure over the preceding months, the court added:

The fact that this email was only discovered by inadvertence is, in a sense, poetic justice, considering that the [husband] should have disclosed his attempts to comply with his disclosure requirements in any event.

The court reiterated that the husband was in breach of at least five prior orders, most notably those that required him to provide responding materials.  (And the court was careful to note that it was not relying on the email to prove that the husband had breached the orders; it only relied on it to determine the nature of the husband’s breach, for the purposes of the motion to strike).   Although the husband had tried to blame his own lawyer, the breaches were his own fault, and more importantly were intentional and wilful.

In the end, the court felt amply justified in striking out the husband’s pleadings.  He was foreclosed from participating in the trial in any way, nor to give evidence or cross example witnesses.

For the full text of the decision, see:

Milutinovic v. Milutinovic

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

 

Calculating Child Support: What About Those Self-Employment Expenses?

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Calculating Child Support: What About Those Self-Employment Expenses?

In a recent case called Sawma v. Zeidan, the court was tasked with calculating the child support amounts payable by the separated father to the mother for the child they had together. The essential issue was the father’s annual income for a 5-year period; those figures would be used to calculate his ongoing support obligation amounts as directed by the Child Support Guidelines.

To their credit, the former couple had largely agreed between themselves as to the correct amount for the father’s gross income figure for each of the five years in question. However, they remained at a crossroads over the proper amount of his deductible business-related expenses for each year. The father’s purported deductions under this category related to usual items such as his cell phone, internet, gas heating and bookkeeping expenses, but he also claimed hefty amounts as “mileage expenses” – in some years totalling the equivalent of between one-third to one-half of his gross income.

The mother questioned the father’s proof that these business expenses were valid, claiming they were either unbelievable or poorly-supported. She also pointed out that he had a pattern of hiding income.

In order to address the key question, the court drew from a 2017 Alberta Court of Appeal decision called Cunningham v. Seveny, that set out the guiding principles (which are of equal relevance to Ontario). Those principles are:

• Onus. When a self-employed parent argues that his or her gross income should be reduced by business expenses for purposes of calculating income for child support, the onus or burden of proving that the expenses are reasonable falls clearly on the parent claiming them.

• Evidence. A parent who claims a deduction for business-related expenses must present evidence to justify those expenses.

• Explanation. If the claimed expenses also resulted in a personal benefit to the parent claiming the deduction, then “an explanation is required for why those expense deductions (or a part of them) should not be attributed to the parent’s income for child support purposes.”

• CRA Not Deteminative. Even if expenses have been approved for income tax purposes by the Canada Revenue Agency, this does not mean that the test for deducting expenses from income for child support purposes has been met.

• Child’s Right. Child support is considered to be the right of the child. A parent’s legal obligation to pay child support that fairly reflects the parent’s income in accordance with the Child Support Guidelines is not to be curtailed or limited by income tax statutes that allow for business expense deductibility.
In this case, and with the exception of certain car-related expenses (for which the father filed six thick volumes of receipts) the court concluded that he had failed to prove any of the so-called business expenses were reasonable and properly deducted from his gross income for calculating child support.

The court said:
Despite the amount of paper that was filed and the work I accept must have been devoted to compiling the hundreds of receipts and adding up the totals, the [father] has not provided the evidence I would require to find that the receipts and totals represent expenses that were all actually incurred by the [father] or that they represent business expenses exclusively and not personal expenses.
For example, the father did indeed provide evidence that he used his car for business purposes, but not the extent to which it was used for that reason, rather than for personal use. He claimed aggressive amounts for car-related expenses, but did not prove to the court’s satisfaction which of them were business-related. Likewise, his proof about his cell phone, internet, office space, and gas heating charges was also deficient.

The court added:
In addition to finding that the [father’s] evidence in support of his claimed expenses is insufficient, I find that, overall, the [father’s] evidence lacks credibility. I find that he is not a party who can be given the benefit of any doubt. My conclusion in this regard is based on the steps the [father] took to conceal income from the [mother], which included preparing a letter the [father] informed the [mother] his employer had prepared and falsifying bank records. In both cases, the [father] initially denied but eventually admitted what he had done.

The court also noted the father received a mileage allowance from three different companies. He argued these should be excluded from income the same way that Canada Revenue Agency (CRA) permitted this on his tax return, but the court rejected this notion. The mileage allowance represented money that went into the father’s pocket, and therefore had to be taken into account in determining his income for child support purposes regardless of what the CRA did.

With that said, and having recognized the father received mileage allowances, the court conceded that permitting him to claim certain car-related business expenses was appropriate, such as certain amounts for gas and repairs.

For the full text of the decision, see:

Sawma v. Zeidan

Cunningham v. Seveny

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 a Child Conceived After a Parent’s Death Still Entitled to Inherit?

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Is a Child Conceived After a Parent’s Death Still Entitled to Inherit?

It’s a narrow legal issue, and one that likely does not come up often. But an amendment to the Ontario legislation governing who gets to inherit a deceased’s parent’s property makes it possible for children conceived after a parent’s death – through Assisted Reproductive Technology – to inherit.

The amendment has the cumbersome title of the All Families are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, and amends the provincial Succession Law Reform Act (SLRA) and some related legislation. Its main achievement is to amend the definitions of “child” and “issue” in the SLRA to expressly include a child and a descendant who is conceived and born after the death of a parent. The term “posthumously-conceived child” is used describe such offspring.

The changes, which came into force January 1, 2017, recognize the general inheritance rights of posthumously-conceived children, provided certain conditions are met. These include:

• Giving written notice to the Estate Registrar for Ontario. The spouse of the deceased person must give notice indicating that he or she may use the deceased’s “reproductive material” (meaning sperm or eggs or an embryo) to try to conceive a child.

• The child is actually born. Any posthumously-conceived child must be born no later than the third anniversary of the deceased’s death. (The court can extend this in some circumstances).

• Court declaration of parentage. The spouse must apply to the court for a declaration that the deceased person is considered to be the parent of the posthumously-conceived child. This involves the spouse proving that the deceased person consented in writing to be the parent of such a child prior to his or her death, and that the consent was not withdrawn.
The expanded definition of “child” and “issue” applies to the distribution of the deceased parent’s estate, whether or not that parent left a Will.

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

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