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Posts tagged ‘spousal support’

Husband’s Decision to Return to School Full-Time was Unreasonable – Ordered to Cough Up Arrears

back-to-school-pig

Husband’s Decision to Return to School Full-Time was Unreasonable – Ordered to Cough Up Arrears

In a recent Ontario case, the court was asked to consider two interesting claims by a husband who was looking to avoid paying support arrears: 1) that he couldn’t earn more money because he was “blacklisted” in his industry; and 2) that his post-bankruptcy decision to go back to school full-time was reasonable.

The background facts were these: The husband had been paying about $800 per month in spousal support based on an annual income of about $56,000. For several years, his income had hovered around that point, but he lost his job in 2009, and claimed that he could not find work in the construction industry anywhere in the Greater Toronto Area because his “name in the industry was tarnished”. He claimed that in order to do manual work, he would have to join the union. He therefore did not pursue any manual labour jobs in construction.

Instead, he worked at various jobs until he declared bankruptcy in 2011, then went back to school full-time for the Law Clerk/Paralegal Program. Although he did not finish the program, he intended to do so on a part-time basis, aiming to complete it in 2015. His income therefore dropped for a few years to near $20,000, and he was currently working at a building supply store and expecting to earn $35,000 in 2013. (As an aside, the husband also admitted to spending $175,000 in less than 2 years, with $30,000 being spent towards a condominium, and $145,000 going toward three lawyers for his file.)

The wife, who earned about the same amount as a funeral home receptionist, asked the court to enforce the arrears in spousal support that had accumulated in the past few years, and also asked to have income imputed to the under-earning husband. She claimed that his decision to go back to school full-time to become a Law Clerk or Paralegal was unreasonable in the circumstances, given that it meant he would not be able to meet his obligations to support his family.

The court concluded that it was indeed unreasonable for the husband to go back to school full-time, and that in any event he had not made a diligent effort to complete the program and find employment in the field. He was also under-earning even in the work he did have at present. Still, the court declined to impute the full $65,000 income to him; rather it assumed he could have been earning just over $40,000 per year. As for the husband’s contention that his name had been tarnished, the court said:

The husband’s position that he was blacklisted from ever being hired in the construction industry is speculation and conjecture. It is difficult to accept that testimony without some corroboration. The construction industry in the GTA is a large industry and it is difficult to understand how he could be blacklisted throughout the entirety of that industry. I also cannot accept that [the husband] would have been unable to work in the construction industry in some other capacity other than as a Project Co-ordinator or Manager.

As a result, the court adjusted the support accordingly and ordered the husband to pay a portion of arrears, pointing out that an order for him to pay full arrears would “crush” him.

For the full text of the decision, see:

Bozzelli v. Bozzelli (2014), 2014 ONSC 254 http://canlii.ca/t/g2psf

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.

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DVP

Tired of working long hours and getting stuck in traffic?

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We are seeking an Associate Lawyer to join our team. A minimum of 2 years post-call experience in family law is required. Compensation will include a salary plus incentive based compensation. Our offices are located close to the GTA in Whitby, Markham & the City of Kawartha Lakes.

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Should Support Be Extended When the Recipient Spouse Loses Their Job?

In a recent case called Lawder v. Windsor, the court grappled with the issue of whether a support-paying spouse should have to pay for a longer period if the other spouse unexpectedly loses his or her job.

The couple had divorced in 1998 after 16 years of marriage. In 2000, the husband had been ordered by the court to pay $800 in monthly spousal support to the wife. He continued to make those payments until 2012, when he applied to the court for an order terminating his support obligations.

The husband claimed that in the circumstances, 12 years of paying support had been enough: he was now 56 years old and retired (he took an early retirement option as part of his termination due from a long-held job due to downsizing), and was two part-time jobs earning about $10 an hour. He also received a pension.

On the other hand the wife, now aged 51, was also employed and had enjoyed a steady increase to her income in the past five years. Unbeknownst to the husband, her income during that period rose from $38,000 to over $62,000 in 2012.

The glitch, however, was that the wife had recently lost her job due to corporate restructuring. She had received a termination package, but on the grounds that she was now unemployed she wanted the husband to continue paying support. (The court pointed out that she had provided no proof that she was actively looking for work, however).

The court considered the circumstances, and declined to extend support; it terminated the husband’s support obligations effective one month hence.

The court reasoned that spousal support was designed in part to compensate the wife for any economic disadvantage that she had suffered as a result of the marriage or its breakdown. That goal had been achieved through the husband paying support since 2007; the job loss now had nothing to do with the marriage or its breakdown.

Further, it was clear that the wife had achieved economic self-sufficiency: she had gotten a good job with a high degree of responsibility, and her income had increased steadily in the past five years alone. She had also never asked for a review of the support order and had never taken advantage of its built-in indexing of support amount.

In short: The wife’s recent job loss was not a good reason for extending support now; there was nothing to suggest that her temporary unemployment would affect her self-sufficiency in the bigger picture, and any short-term financial setback was something she could address through her own efforts and diligence.

For the full text of the decision, see:

Lawder v. Windsor, 2013 ONSC 5948  http://canlii.ca/t/g0qb3

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.

Top 5 Tips for Dealing with the Family Responsibility Office

tips

Top 5 Tips for Dealing with the Family Responsibility Office

A while ago I wrote about the role of the provincial Family Responsibility Office (FRO) More About The Family Responsibility Office, Some Common Problems Addressed.  (For those who aren’t aware: In Ontario, all child support orders are automatically filed with the FRO, which operates under legislation giving it an arsenal of mechanisms by which to encourage and enforce timely payment of support on the part of the paying parent.)

If you are such a payor pursuant to a court-issued Support Order, here are five tips for dealing with the FRO:

1. Always keep the FRO updated on address changes.

Otherwise, you may miss out on receiving the various noticed that the FRO is required by law to give you. These may include a warning that the enforcement mechanisms that can be levied against you are about to be stepped up – for example a notice that your driver’s license is about to be suspended.

2. Keep the FRO apprised of your employment situation.

If you have lost your job, have been laid off work, or have had your income reduced due to disability or a reduction of overtime, then the FRO should be made aware. In such situations your next step may be to obtain a variation of the filed child support order that triggers the FRO’s involvement in the first place, which will in turn affect the FRO’s role and mandate in the enforcement process.

3. Don’t ignore anything you have received from the FRO.

Many of the processes involving the FRO allow for only a few days for you to respond; the FRO may quickly escalate the remedies available to assist with collection and you don’t want to be surprised by any of them. The FRO’s available avenues for encouraging your compliance and payment can include: suspending your driver’s license or passport, a garnishee of your wages (via a “Support Deduction Order” sent to your employer), filing writs or liens against your property, seizing your income tax refunds and HST rebates, seizing your bank accounts and – last but not least – imposing jail time of up to 180 days.

4. Document everything.

This includes not only your correspondence with the FRO, but also the paper trail of any support payments that you have made. Payments to the FRO can be made by way of internet banking or telephone banking and may be the easiest to document; payments by cheque or money order are more cumbersome to track. But regardless of the method, make sure to designate the FRO case number on any payment that you make.

5. Always make the mandated support payments if you can.

As mentioned, the FRO has a wide arsenal of options to deal with delays or non-payment, including jail time if necessary. Naturally, these shorter-term consequences should be avoided if at all possible. But there can be longer-term drawbacks as well: arrears in child support payments will show up negatively on your credit bureau report, which can affect you for years to come.

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 http://www.russellalexander.com/practice/family-responsibility-office-fro-and-default-hearings/

So what do you think?  Do you have any tips or comments for dealing with FRO?

Wednesday’s Video Clip: The Need for a Support System

 

Wednesday’s Video Clip: The Need for a Support System

In this short video Russell Alexander discusses the importance of having a support system in place when you go through a divorce.
 
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

Did Wife’s Unforeseen Post-Separation Illnesses Override a Separation Agreement?

illness

Did Wife’s Unforeseen Post-Separation Illnesses Override a Separation Agreement?

In 2001, the parties separated after 15 years’ marriage. At that time, they entered into a separation agreement under which they agreed not to claim spousal support from each other. Almost 10 years after their separation, in 2010, the husband applied for what he likely envisioned would be an uncontested divorce.

However, there was a bit of a wrinkle: since separation the wife had experienced numerous health-related challenges, including a heart attack, a motor vehicle accident, anxiety and diabetes. She was currently on Ontario Works and had recently applied for a disability pension; the motor vehicle accident left her unable to work.

In answer to the husband’s divorce application, the wife continued to disclaim any right to monetary spousal support payments. Instead, she simply asked that the husband maintain extended health coverage (available to him through his work) for her benefit, which would effectively amount to a different kind of “support” for her.

The husband wanted the divorce but without this added imposition – he was engaged to someone else and wanted to be able to cover his new wife if necessary. Covering his soon-to-be-ex-wife for her medical coverage would prevent him from doing so. He pointed to the 2001 separation agreement in which they both agreed to forego spousal support; although that agreement expressly acknowledged there may be changes to their financial circumstances for a variety of reasons (including health-related ones), it did not envision either of them claiming either traditional monetary spousal support or the extended health coverage the wife was suggesting.

The question for the judge, therefore, was whether the separation agreement should be “opened up” in these circumstances, in light of the wife’s many post-separation health concerns.

The judge began by confirming that, in law, a court can stray from the terms of a pre-existing separation agreement reached by the parties, but it required a two-step process: 1) analyzing the agreement; and 2) considering the parties’ current circumstances.

In this case, the agreement was valid at the time it was entered into. It had been drafted by the wife’s lawyer (the husband was unrepresented at the time), and they had both reviewed the agreement line-by-line in the lawyer’s office. The wife understood the agreement’s terms and what she was giving up.

Nonetheless, in looking at the parties’ current circumstances, it was clear that at the time of the agreement neither of them the wife would suffer a heart attack, anxiety, a motor vehicle accident, and be diagnosed with diabetes – all within a short time-period. The judge was therefore prepared to open up the agreement, but only to the extent necessary to address the wife’s predicament. Moreover, the judge was still mindful that there had to be some finality to allow the parties to move on.
To this end, the divorce was ordered to be delayed for one year, and in the meantime the husband was to maintain for the wife’s benefit the medical, dental and drug coverage that was available through his employment. The benefits to the wife would cease when the divorce was issued.

Wilbur v. Laevens, 2012 ONSC 5858 (CanLII)  http://canlii.ca/t/ft94q

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.

The Lavish Lifestyle of the Ballerina and the Banker

ballet

The Lavish Lifestyle of the Ballerina and the Banker

In Glasco v. Bilz, the couple had been living together since 2000, and had one child together. When they met, the woman was a principal dancer with the National Ballet of Canada, and had substantial assets and savings. However, once she and the man began living together, she turned over all her assets to him so that he could manage and invest them. Moreover, during the relationship she did not work outside the home, and had no other income. While together, the coupled lived “very comfortably”: they drove expensive cars, lived in excellent neighbourhoods, dined out and travelled extensively. Their child attended private school.

Since separation, the woman and the child were living in a rented Forest Hill home for $6,000 per month. The rent was in arrears, and they were in jeopardy of being evicted. The man had paid nothing toward that rent, nor towards interim child or spousal support. He was currently living with his parents.

Given her lack of income and the fact she did not know what had become of the assets that she had entrusted to the man for investment, she applied to the court for interim spousal and child support until a trial could be held. However, determining the man’s true income level for these purposes turned out to be a problem.

The man, who worked at RBC Royal Bank, claimed to have earned $240,000 in the past year, but alleged his annual expenses of almost $350,000 more than offset that. In contrast, the woman claimed he was vastly understating his income, and was hiding significant assets in the form of investment income. She offered the court some “smoking gun” evidence to bolster that claim:

In support of this position, the applicant [woman] points to a credit application found in the applicant’s papers at their home, signed by the respondent [man] on January 14, 2012, in which he claims his income from his company, rental income and other income exceeds $708,000, with expenses of only $146,000 and that his net worth exceeds $3.7 million.

Although the man did not respond to the woman’s evidence on the credit application, he did concede owning worth more than $3 million; however, he claimed that over $2.2 million of that money was already his before he started living with her. More to the point, he claimed that in any case his current financial circumstances are diminished, and would continue to be so, and that he was incapable supporting the woman and their child with what he called her “lavish spending” on “frivolous items.”

The court began by pointing out that woman’s claim interim support entitlement was designed to make sure had sufficient means to maintain a reasonable lifestyle until trial. The amount of support the man may be required to pay will be determined – among other things – by looking at the woman’s and child’s need, coupled with the man’s current ability to pay.

The court then took a closer look at the man’s finances for the purposes of determining support levels. It found that in addition to his annual income, he had been involved in various real estate investment properties in the U.S., and owned properties in Toronto which generated rental income for him. None of these had been adequately disclosed. Simply put, the court disbelieved that the man’s income was only $250,000 in salary as he claimed; at the very least it was closer to the $300,000 the woman asserted.

Based on that figure, the man was ordered to pay child support of almost $2,400 pending trial. As for spousal support – for which the woman was claiming an additional $11,000 in monthly expenses – the court found that some of her listed expenses were a little high. For example, the $6,000 in monthly rent for the Forest Hill home might be reduced if the woman found more modest accommodation once the least was up. Still, the court found it reasonable for the man to pay this amount pending trial, given that it was a fixed and term-limited obligation that he had entered into when the couple was still living together. Most of the woman’s other expenses were also allowed by the court.

For the full text of the decision, see:

Glasco v. Bilz, 2012 ONSC 4556  http://canlii.ca/t/fsb8p

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.

Husband Sabotages Wife’s Job – Then Claims She is Under-Employed

sabatage

Husband Sabotages Wife’s Job – Then Claims She is Under-Employed

Family law litigation has a well -deserved reputation for often being unpleasant: by definition, all disputes involve conflict but the addition of emotional factors frequently foster mud-slinging and accusations, sneaky tactics, and generally bad behaviour on the part of separated and divorcing spouses.

Although certainly not the worst I’ve seen, a decision from last week released by the Ontario Superior Court of Justice called Myers v. Myers illustrates this, and in particular shows how such tactics can sometimes backfire on the party perpetrating them.

The couple had been married for about 15 years when they separated. They had two children aged 16 and 12 at the time. Respecting the child custody arrangement, the court wrote:

After separation, they maintained their separate residences relatively close to one another in the Napanee area. They developed and maintained an equal time sharing regime for the children, who moved seamlessly from one parent’s home to the other. This continued until that arrangement was disrupted as a result of an incident in August 2010 during a baseball tournament in New Brunswick. [The daughter’s] baseball team was playing for the champanionship. The Respondent/father, a spectator, became involved in an incident which found several of the parents confront one another on the playing field. [The daughter] was embarrassed and angry at her father. Their relationship unfortunately deteriorated to the point where [the daughter] has refused to see her father as of December 2010. Since then, she has resided in the sole care and custody of her mother and has not had any contact with her father. Although this unfortunate estrangement could and should have been resolved a long time ago, it continues to linger. In my view, a little goodwill and some humility would likely restore the prior unblemished relationship of father and daughter. They both owe it to one another. [The other daughter] continues with the original sharing arrangement, spending equal time with each parent.

The wife sought support from the husband, and claimed that he was routinely under-reporting his income from his self-employment as a plumber.

The husband, in turn, was asking for spousal support from the wife. However, her current work situation and income-earning capacity was in turmoil, a situation that was at least partly orchestrated by the husband himself.

This is because the wife, who had been employed with Legal Aid Ontario (LAO), had been the subject of a work-related complaint lodged by the husband himself in 2010 (i.e. after separation) that she was misconducting herself in her job, by directing legally-aided clients to her own lawyer. The court described the situation this way:

With respect to the Respondent’s complaint made to LAO, she has and continues to deny it. She states there is no substance, nor factual support for the complaint. In confronting the Respondent, he admitted to her that “if you throw enough s***, something will stick.” Additionally, the Respondent told her that if she were to discontinue her Application, he would withdraw his complaint to LAO. In this trial, the Respondent called no evidence to substantiate any of the allegations of his complaint to LAO. In fact, he admitted that he had no facts to support his complaint and that it was entirely an unsubstantiated feeling upon which he had acted. Nevertheless, it had a drastic adverse consequence for the Applicant. Despite her prior unblemished work record, she was in effect put on a dead end track by LAO, pending the outcome of the investigation launched as a result of the complaint. To this day, the investigation does not appear to have reached an official conclusion.

Not surprisingly, the allegation took its toll on the wife personally: She had been removed from the front lines of her workplace, had been instructed to work from home, gradually became depressed and struggled with her work. Her doctor recommended a leave of absence, and she sought counselling. She was eventually diagnosed with post-traumatic stress disorder.

On the husband’s motivation for filing the complaint, the court wrote:

I find the complaint made by the Respondent to be malicious and without substance. By his own admission, the Respondent acknowledged the complaint was in retaliation by him to the Applicant’s actions in attempting to identify the particulars of any cash transactions in which he may have been involved with respect to his business. He acknowledged that he had no information regarding the Applicant’s status of her employment with LAO and had no information regarding her emotional disability resulting from the complaint which he launched. To his credit, he has accepted that the Applicant has gone through a difficult period as a result of his unfounded complaint.
Since her job status with LAO was uncertain, the wife switched careers by training to become a licensed paralegal. Yet despite his undeniable role in her work-related woes, the husband nonetheless claimed she was deliberately under-employed.

The court found that, to the contrary, under the circumstances this change in the career path was reasonable in the circumstances. Indeed, it commented that the husband had advanced a spousal support claim against the wife “[f]or reasons that are not clear.” He currently earned more than she did, and in light of all the usual legal considerations was the party who was in a better position to pay support.

Furthermore, the husband had been hiding his true income. The court concluded that as sole proprietor of an unincorporated plumbing business, he was regularly operating on a cash-sales basis with no “paper trail”, and he was earning unreported income that amounted to at least 10% of his annual declared gross sales. The court also found the husband had significantly inflated his business expenses.

In the end, the court took all these conclusions into account, and allocated the husband as having 60% of the child support responsibility, while the wife was to have 40%. He was to pay $1,750 per month for 2012, $2,000 per month for 2013, with adjustments made for subsequent years until 2017 when support would terminate. The court also made additional findings in connection with special expense and costs.

For the full text of the decision, see:

Myers v. Myers, 2013 ONSC 170  http://canlii.ca/t/fvj1g

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 Wealthy Ex-Spouse Be Required to Tap into Capital to Maintain a Privileged Lifestyle?

capital

Should Wealthy Ex-Spouse Be Required to Tap into Capital to Maintain a Privileged Lifestyle?

In another Blog recent week,  we touched upon the question of how courts will look at the “economic disadvantage” that is suffered by spouses after the breakdown of the marriage, and how a court will remedy the disparity through a spousal support award to the disadvantaged spouse.

In a case from the B.C. Court of Appeal, the court was faced with a wealthy couple who were divorcing, and had to consider how the breakdown of the marriage would affect the parties’ ability to support themselves in keeping with the luxurious lifestyle to which they had both become accustomed during marriage.

The case, called Bell v. Bell, involved a couple had started living together in the 1980s, and married in 1990. They had two children, who were 21 and 16. The husband was currently 71, and had been a career diplomat who retired in 1998 after having served as Canada’s Ambassador to the Ivory Coast, Brazil and Malaysia. The wife was 48 years old at the time of the divorce in 2006.

As part of the unwinding of their financial affairs, they negotiated the equal division of their family property, which was worth about $12 million. However, the question of whether the wife should get spousal support still had to be resolved, because there was a considerable difference between the husband’s and wife’s income levels post-divorce. Specifically, in recent years the husband had earned a high of almost $1.5 million per year and a low of about $650,000 per year; the wife on the other hand earned $140,000.

In allowing the wife’s appeal of a prior order terminating temporary support, the Court of Appeal summarized the wife’s financial situation as follows:

The parties met when Mr. Bell was in his forties, serving as the Canadian Ambassador to the Ivory Coast. He brought to the marriage assets of $4.0 million. Ms. Bell was in her twenties and had assets of $35,000. She had achieved considerable success as a fashion designer and had developed a clothing design business in the Ivory Coast. She moved to Brazil when Mr. Bell became the ambassador and they were married there. Operating her business was no longer viable and, shortly after their second son was born, it was closed down. She devoted herself to raising the children and fulfilling the somewhat demanding role of the spouse of an ambassador.

Mr. Bell retired from External Affairs in 1998. When the parties separated they were living in Vancouver. The equal division of their assets, on which they agreed in 2006, saw Ms. Bell retain the matrimonial home, which was appraised at $2.0 million (subject to a mortgage of about $622,000), and receive one-half of substantial holdings in income-generating cranberry farms, with her interest being valued at about $4.0 million. Ms. Bell sold the home for $2.7 million, paid off substantial debt including $250,000 in legal fees, and purchased another home in 2007 for $1.47 million. She spent $500,000 on renovations and incurred a substantial mortgage obligation. She also spent $95,000 acquiring property in the Ivory Coast. Her income from investments and dividends for 2008 as stated on her tax return (admitted as fresh evidence) was $181,574. Ms. Bell has chosen not to seek employment. She considers the skills she once had in the fashion business in the Ivory Coast would be of limited use in the North American market but she accepts she could be earning $30,000 in a sales position if she wished. Her income could then be perhaps $210,000.

Nonetheless, the Court considered the great discrepancy between the husband’s and the wife’s income, together with the consequences of the marriage breakdown. It concluded that – even with the wife’s current assets and earning potential – she was entitled to spousal support due to the economic disadvantage she incurred from the fact that the husband’s income was no longer available to her. In other words, even though her current income and accumulated capital would allow her to be economically self-sufficient, she was disadvantaged because of the marriage breakdown because she had to some degree lost the standard of living that she was able to enjoy because of the husband’s large income. Furthermore, there was nothing in Canadian law obliging the wife to encroach upon her capital in order to bring herself up to the standard of living she formerly enjoyed (and which her husband was still able to enjoy).

As a result, the Court of Appeal held that the wife was entitled to receive spousal support of $5,000 per month. (This amount was reduced from the trial court’s previous award of $10,000 per month, which had been based on higher projected income level for the husband than was actually being earned).

For the full text of the decision, see:

Bell v. Bell (2009), 2009 BCCA 280; additional reasons at 2010 BCCA 138.

http://canlii.ca/t/2412r

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.

Husband’s Wealthy Family Slipped Him Funds “As Needed” – Spousal Support Obligation Set Accordingly

slipped

Husband’s Wealthy Family Slipped Him Funds “As Needed” – Spousal Support Obligation Set Accordingly

The husband was a Canadian citizen and resident. In 2009 he met a woman in Iran while visiting family there, and they got married in that country a few months later. The husband then returned to Canada and sponsored the wife to join him.
As part of that sponsorship process, the husband agreed to support the wife for at least three years from the date that she officially became a permanent resident. As is customary for Canadian sponsors, he gave Citizenship and Immigration Canada an undertaking to provide the wife with food, clothing, shelter, and other personal and medical needs, and also promised that neither the sponsored wife nor her family will need to apply for social assistance. He committed to this undertaking irrespective of any changes in his life.

The wife joined the husband in Canada in late 2009. She had studied English, but had not become entirely proficient. Despite being trained as an optometrist in Iran, she had not qualified to work as one in Canada and never obtained a job in her field. She also did not have her own bank account here.

The husband and wife separated in 2011, and the wife applied for interim spousal support pending trial.

In response to that spousal support application, the husband claimed that he was a self-employed Pilot Examiner earning approximately $26,000 per year. However, there was evidence in the form of a letter to Citizenship and Immigration Canada from an employer called Lakeview Millworks – a company apparently owned by the husband’s brother – attesting to the fact that the husband had been employed there at a job earning $58,500 per year.

However the husband was the sole title-holder on a home that was listed for sale at a price of $949,000. He also was the registered owner of five vehicles (though he claimed to use only three of those personally). It was also clear that the husband came from a wealthy family; his parents resided in Canada for only about half the year, and travelled back and forth to Iran two or three times annually. There was clear evidence that they frequently slipped him some money when needed.

In summary about his banking practices, the court said:

In this case, where the Husband had a “primary chequing account” at the Bank of Montreal in his name alone, funded from deposits from other Bank of Montreal accounts in his name or from others, where he has deposed that he received his father’s assistance “as needed,” that his father “typically” pays the monthly mortgage payments on the matrimonial home and where it appears that the Husband also pays his credit card balances using funds from this account, where he qualified for a $600,000 mortgage, where he showed yearly expenses of $110,994.60 and claimed income of $29,418.96 per year in his financial statement of March 14, 2012, his asserted income level is in doubt.

In this case, there are copies of uncashed cheques in addition to the income he is claiming and a representation to the Government of Canada of earnings of $58,500.

I do not accept that the Husband’s means are as limited as he alleges.

In my view, there is ample evidence that spousal support should be calculated on an income of far more than $26,000 or $45,000 per year. It is clear from the Husband’s own affidavits that he “typically” received and expected to receive funds “as needed” to support his lifestyle from his family, a lifestyle and a source of means that he shared with his Wife during the marriage.

The court accordingly imputed an annual income of $200,000 to the husband. At that income level, the Spousal Support Advisory Guidelines would have dictated monthly spousal support in the range of $700 to $933. However, this amount was insufficient in the circumstances; the court was required to consider the means of both parties.

In that regard, the court pointed out that by sponsoring the wife and bringing her to Canada as a permanent resident, the husband had promised to help her become a Canadian citizen, and had provided an undertaking to provide for her until December of 2012. However – aside from a one-time payment of $5,000 which was prompted by a court order – the husband had not provided her with any funds for the past six months. The Guideline amount had to be increased to provide the wife with a reasonable standard of living, having regard to the parties’ respective means and to the standards they reasonably expected to enjoy together at the time she relocated to Canada, and that she had actually enjoyed during the time they lived together.

Taking into account all the circumstances, the court therefore ordered the husband to pay interim spousal support in a gross monthly amount that would leave the wife with $3,250 net.

Kkabbazy v. Esfahani (2012), 2012 ONSC 4591  http://canlii.ca/t/fsrdq

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