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Posts from the ‘Child Support’ Category

Adultery and Affairs: Understanding the Basis for Divorce in Ontario

Adultery and Affairs: Understanding the Basis for Divorce in Ontario

Adultery and Affairs

The only ground for divorce in Canada is the breakdown of a marriage.

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This can be proven in three ways:

(1) The spouses have lived separate and apart for one year (no fault);

(2) The spouse against whom the divorce proceeding is brought has committed adultery (at fault);

(3) The spouse against whom the divorce proceeding is brought has treated the other spouse with physical or mental cruelty (at fault).

Learn more:

Can I divorce my spouse if they have committed adultery?

Top 5 Questions about Adultery and Divorce in Ontario

Top 5 Points about Adultery That You Probably Did not Know

Important Considerations when Filing for Divorce on the Ground of Adultery:

  • The courts will require proof of exactly what occurred in order to prove the claim.
  • Mere suspicion of adultery is not enough to prove the claim.
  • A single act of adultery is a sufficient basis on which to bring a divorce action on this ground.
  • It does not matter how long the affair was going on.
  • The adultery must have occurred before the divorce application is brought.
  • In order to qualify as “adultery”, there must be an actual physical sexual relationship between one of the spouses and another individual.
  • The person who committed the adultery with the spouse does not have to be named.   However, if this person is named then he/she has to be provided with the application and he/she may choose to answer the application.

Learn more:

Can You Sue a Cheater for Damages?

Wife’s Accusations about Husband’s Infidelities “A Waste of Time”

Is a Marriage Contract Invalid if Signed During an Affair with Someone Else?

 Impact of Adultery on Custody and Access

  • Past conduct of a parent is irrelevant in determinations of the issues of custody or access unless that conduct is relevant to the person’s ability to act as a parent to the child.
  • Adultery will not have any impact on child custody.

Learn more:

If my spouse has committed adultery, am I more likely to get custody of my children?

Did Husband Try to Kill Wife on Tropical Holiday? If So, Should He Be Denied Access to the Kids?

Fake Outbursts, and Adultery “Fines”, and “Bloody Minded” Calls for Jail Time – All in a Day’s Work for the Family Court

Impact of Adultery on Spousal Support

  • Adultery will have no impact on your entitlement to spousal support. For example, if you have been cheated on, you will not be entitled to obtain more money. Likewise, if you have cheated on your spouse, you will not have to pay more spousal support to your spouse as a result of your infidelity.

It is rare for family law practitioners to file for a divorce using the circumstance of adultery for the following reasons:

1) At fault divorces such as adultery and cruelty can be costly;

2) No further evidence is necessary when filing under the ground of living separate and apart, making this no fault basis more appealing;

3) It can take more than a year for the courts to decide the issue of adultery and by that time you may have already established the ground of living separate and apart for one year.

Learn more:

Can a “Misbehaving” Spouse Lose Out on Support?

Does Wife Get Unequal Share Due to Husband’s Extra-Marital Affairs?

Spurned Husband Gets $8.8 million Damages Award against Wife’s Affair Partner

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

Top 5 Questions about Adultery and Divorce in Ontario

Top 5 Questions about Adultery and Divorce in Ontario

It seems that celebrity gossip tabloids will never have a shortage of topics to cover, as long as there are stories about extramarital affairs by successful, high-profile celebrities. Recently, Amazon CEO Jeff Bezos admitted to cheating on his wife, MacKenzie, and in the past it has been alleged that Arnold Schwarzenegger fathered a child with the housekeeper employed in the home he shared with his wife of 25 years.

Leaving aside the intriguing question of how adultery affects couples psychologically and emotionally, the legal effect of adultery is quite clear.

In Ontario (as elsewhere in Canada), the laws relating to divorce based on adultery are governed by the federal Divorce Act, which provides that a “breakdown of a marriage is established only if the spouses have lived separate and apart for at least one year or the spouse against whom the divorce proceeding is brought has committed adultery or treated the other spouse with physical or mental cruelty.” (Note that it must be the other party who commits the act: a spouse cannot apply for a divorce based on his or her own adultery).

Adultery and Affairs: Understanding the Basis for Divorce in Ontario

Adultery is one of the established grounds for divorce in Canada. Questions often arise as to whether the duration, extent or nature of the adultery matters when it comes to the right to obtain a divorce. Here are some common questions answered in this regard:

1) Does it matter how long the affair was going on?

No. Provided that it can be proven that adultery has been committed by one of the spouses, the other spouse can ask for a divorce. However, the adultery must have occurred before the petition for divorce is brought.

Top Five Points about Adultery That You Probably Didn’t Know

Does Wife Get Unequal Share Due to Husband’s Extra-Marital Affairs?

Fake Outbursts, Adultery “Fines”, and “Bloody Minded” Calls for Jail Time – All in a Day’s Work for the Family Court

2) What if the extramarital sex occurred only a single time? What if the spouse is remorseful?

A single act of adultery is a sufficient basis on which to bring a divorce action. And as long as the adultery was committed by one of the spouses, the other spouse has legal grounds under the Divorce Act to proceed with a petition. Whether or not the spouse actually wants to do so will be a personal decision.

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Gambling, Drinking and Affairs – Should Spouses Have to Account for their Misdeeds?

In a Failed Romance, Can You Sue for Negligence?

Can You Sue Your Ex’s Affair Partner for Damages?

Were Negotiations Contingent on the Husband Ending His Affair?

3) Do you need clear proof of an affair? Is it enough to suspect that something is going on?

In order to prove adultery, there is no prerequisite that the other spouse gets “caught in the act,” or that there be photos or other physical evidence of the affair. Instead a court must be satisfied on a “preponderance” of credible evidence that adultery has taken place. (For example see Nelles v. Nelles).

This can take place by inference, i.e. where the facts and circumstances lead to the reasonable conclusion that adultery has indeed taken place. However, a mere suspicion of adultery is not enough, nor is evidence that the other spouse had the opportunity to cheat (see Doucette v. Doucette). Also, there is no requirement that the party with whom the adultery is taking place must be named or identified.

 

Finally, it is the spouse who wants to bring the divorce action who must bring forward the convincing evidence that adultery actually took place. There is nothing unusual about the type of evidence required; however, the evidence will be considered sufficient if the adulterous spouse admits to the affair (see for example d’Entremont v. d’Entremont), or if the third party with whom the spouse is having the affair gives evidence attesting to the fact (see Vickers v. Vickers).

My spouse committed adultery. Does this make it easier to get a divorce?

Is a Marriage Contract Invalid if Signed During an Affair with Someone Else?

l of Commitment? Or Was He Buying an Interest in Her Home?

Can I use evidence of my spouse “sexting” in court?

4) What if the husband had an affair with another man? Or the wife cheats with another woman? Does that count?

Yes. Historically, Canada’s Divorce Act defined adultery along the same lines as the former definition of “spouses”, which involved only people of the opposite sex. Adultery was similarly defined by the courts as consisting of voluntary sex outside of marriage, between a spouse and someone of the opposite gender.

However, both the definition of “spouse” and the concept of adultery has been expanded by the courts to encompass same-sex relationships. In a 2005 case called P. (S.E.) v. P. (D.D.) a B.C. woman was granted a divorce after it was shown that the husband had committed adultery by having an affair with another man.

Top Five Points about Adultery That You Probably Didn’t Know

Wife’s Accusations about Husband’s Infidelities “A Waste of Time”

5) What about cheating over the Internet?

In order to qualify as “adultery”, there must be an actual, physical sexual relationship between one of the spouses and a third party to the marriage. Phone sex and other forms of sexually-charged activity – if conducted “from a distance”, so to speak – do not generally qualify as “adultery” as that term is used in the Divorce Act.

Thinking of Doing Some Cyper-Sleuthing? Think Again

Although these cases are often interesting and quite sad, for most family law practioners in Ontario these circumstances do not form the basis for their clients’ divorce claims.  The Court does not want spouses to focus on fault and blame but rather resolution.  For the most part, blame does not improve or diminish one’s property rights or entitlement to share family property in Ontario.  And the practical reality is that an Application for divorce based on cruelty or adultery may take a few years before the matter is finally determined if a full hearing is required.  If this is the case then the party seeking the divorce could also likely rely on the fact that s/he has lived separate and apart for one year and use this as the basis for the divorce claim.

For the full-text of the decisions, see:

(S.E.)v. P. (D.D.),2005 CarswellBC 2137, 2005 BCSC 1290 (B.C. S.C.)

Nelles v. Nelles (1971), 2 R.F.L. 153 (Ont. H.C.)

Doucette v. Doucette (1986), 73 N.B.R. (2d) 407 (Q.B.)

d’Entremont v. d’Entremont (1992), 44 R.F.L. (3d) 224 (C.A.)

Vickers v. Vickers (1976), 24 R.F.L. 303 (B.C. S.C.)

 

At Russell Alexander, family lawyers our lawyers can provide customized advice in connection with the dissolution of a marriage based on adultery, and with a large array of other family law questions. For more information, feel free to visit us at Russellalexander.com.

 

Family Law Now Podcast – Episode 1: Top 10 Things You Should Know About Child Support

Episode Info

On this episode, hosted by Russell Alexander with special guest Michelle Mulchan, two family lawyers discuss everything from the basics to the complexities of child support. Tune in to Family Law Now to learn more!

Family Law Now podcast logo retro mic speach bubbleFamily Law Now

We are thrilled to launch our very own podcast series: Family Law Now. The new series delivers useful commentary and insights into timeless and trending family law issues. Family Law Now is free of charge to registered users and provides a convenient, low-commitment resource by which busy individuals who don’t have time to read long-winded articles can get answers to their legal questions, on-the-go.

Family Law Now is hosted by Russell Alexander and features a guest speaker with whom he presents a meaningful review and analysis of family law issues. With over 20 years’ experience helping families resolve their legal issues, Russell has developed a remarkable understanding of family law issues and is eager to share his jewels of wisdom with the listening public.

The podcast Family Law Now marks the culmination of a long-standing passion project and brings us one step closer to realizing our goal of democratizing access to information concerning family law matters. Tune in!

As always, please feel free to explore our articles and written commentary currently available on our blog, FamilyLLB, and online resource hub, Divorce Information Centre. The show notes are available for your reference below.


Show Notes:

Federal Child Support Advisory Guidelines (CSAG)

Screenshots included for illustrative purposes only and do not represent a complete reproduction of support tables contained in the Federal Child Support Advisory Guidelines”

child support guideline chart table for only childchild support guidelines for two children

CSAG sections (reproduced)

Section 24 – Failure to comply with court order

Where a spouse fails to comply with an order issued on the basis of an application under paragraph 22(1)(b), the court may

(a) strike out any of the spouse’s pleadings;

(b) make a contempt order against the spouse;

(c) proceed to a hearing, in the course of which it may draw an adverse inference against the spouse and impute income to that spouse in such amount as it considers appropriate; and

(d) award costs in favour of the other spouse up to an amount that fully compensates the other spouse for all costs incurred in the proceedings.

Section 19 – Imputing income

The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse’s property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

  • Reasonableness of expenses

(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.

  • SOR/2000-337, s. 5

Section 9 – Shared custody

Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared custody arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

Family Law Rules sections (reproduced)

 

Rule 23 – Evidence and Trial (excerpt or provisions relevant to ‘default hearing’)

 

Affidavit Evidence at Uncontested Trial

 

(22) At an uncontested trial, evidence by affidavit in Form 14A or Form 23C and, if applicable, Form 35.1 may be used without an order under clause 1 (7.2) (i), unless the court directs that oral evidence must be given.  O. Reg. 114/99, r. 23 (22); O. Reg. 202/01, s. 6 (5); O. Reg. 6/10, s. 8 (3); O. Reg. 69/15, s. 9 (5).

 

Rule 24 – Costs

 

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

 

  1. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.  O. Reg. 114/99, r. 24 (1).

 

NO PRESUMPTION IN CHILD PROTECTION CASE OR IF PARTY IS GOVERNMENT AGENCY

 

(2) The presumption does not apply in a child protection case or to a party that is a government agency.  O. Reg. 114/99, r. 24 (2); O. Reg. 544/99, s. 10 (1).

 

COURT’S DISCRETION — COSTS FOR OR AGAINST GOVERNMENT AGENCY

 

(3) The court has discretion to award costs to or against a party that is a government agency, whether it is successful or unsuccessful.  O. Reg. 114/99, r. 24 (3); O. Reg. 544/99, s. 10 (2).

 

SUCCESSFUL PARTY WHO HAS BEHAVED UNREASONABLY

 

(4) Despite subrule (1), a successful party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.  O. Reg. 114/99, r. 24 (4).

 

DECISION ON REASONABLENESS

 

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

 

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

 

(b) the reasonableness of any offer the party made; and

 

(c) any offer the party withdrew or failed to accept.  O. Reg. 114/99, r. 24 (5).

 

DIVIDED SUCCESS

 

(6) If success in a step in a case is divided, the court may apportion costs as appropriate.  O. Reg. 114/99, r. 24 (6).

 

ABSENT OR UNPREPARED PARTY

 

(7) If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice.  O. Reg. 114/99, r. 24 (7); O. Reg. 235/16, s. 4 (1).

 

BAD FAITH

 

(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.  O. Reg. 114/99, r. 24 (8).

 

COSTS CAUSED BY FAULT OF LAWYER OR AGENT

 

(9) If a party’s lawyer or agent has run up costs without reasonable cause or has wasted costs, the court may, on motion or on its own initiative, after giving the lawyer or agent an opportunity to be heard,

 

(a) order that the lawyer or agent shall not charge the client fees or disbursements for work specified in the order, and order the lawyer or agent to repay money that the client has already paid toward costs;

 

(b) order the lawyer or agent to repay the client any costs that the client has been ordered to pay another party;

 

(c) order the lawyer or agent personally to pay the costs of any party; and

 

(d) order that a copy of an order under this subrule be given to the client.  O. Reg. 114/99, r. 24 (9).

 

DECIDING COSTS

 

(10) Promptly after dealing with a step in a case, the court shall, in a summary manner,

 

(a) determine who, if anyone, is entitled to costs in relation to that step and set the amount of any costs; or

 

(b) expressly reserve the decision on costs for determination at a later stage in the case. O. Reg. 298/18, s. 14.

 

(10.1) Revoked: O. Reg. 298/18, s. 14.

 

SAME

 

(11) The failure of the court to act under subrule (10) in relation to a step in a case does not prevent the court from awarding costs in relation to the step at a later stage in the case. O. Reg. 298/18, s. 14.

 

Setting Costs Amounts

 

(12) In setting the amount of costs, the court shall consider,

 

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

 

(i) each party’s behaviour,

 

(ii) the time spent by each party,

 

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

 

(iv) any legal fees, including the number of lawyers and their rates,

 

(v) any expert witness fees, including the number of experts and their rates,

 

(vi) any other expenses properly paid or payable; and

 

(b) any other relevant matter. O. Reg. 298/18, s. 14.

 

Supporting Materials

 

(12.1) Any claim for costs respecting fees or expenses shall be supported by documentation satisfactory to the court. O. Reg. 298/18, s. 14.

 

ORDER FOR SECURITY FOR COSTS

 

(13) A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

 

  1. A party ordinarily resides outside Ontario.

 

  1. A party has an order against the other party for costs that remains unpaid, in the same case or another case.

 

  1. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.

 

  1. There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.

 

  1. A statute entitles the party to security for costs.  O. Reg. 114/99, r. 24 (13).

 

AMOUNT AND FORM OF SECURITY

 

(14) The judge shall determine the amount of the security, its form and the method of giving it.  O. Reg. 114/99, r. 24 (14).

 

EFFECT OF ORDER FOR SECURITY

 

(15) Until the security has been given, a party against whom there is an order for security for costs may not take any step in the case, except to appeal from the order, unless a judge orders otherwise.  O. Reg. 114/99, r. 24 (15).

 

Failure to Give Security

 

(16) If the party does not give the security as ordered and, as a result, a judge makes an order dismissing the party’s case or striking out the party’s answer or any other document filed by the party, then subrule (15) no longer applies. O. Reg. 322/13, s. 14.

 

SECURITY MAY BE CHANGED

 

(17) The amount of the security, its form and the method of giving it may be changed by order at any time.  O. Reg. 114/99, r. 24 (17).

 

PAYMENT OF EXPENSES

 

(18) The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. O. Reg. 418/18, s. 1.

 

Family Responsibility Office (FRO) – sections relating to Support Deduction Orders (SDO’s) and Support Deduction Order Information Forms (SDOIFs)

 

Director to enforce support deduction orders

 

20 (1) The Director shall enforce a support deduction order that is filed in the Director’s office, subject to section 7, to any change made to the support deduction order and to any alternative payment order made under section 28, until the related support order is terminated and there are no arrears owing or until the support order and support deduction order are withdrawn.  2005, c. 16, s. 9.

 

Notice of support deduction order to income sources

 

(2) The Director may serve a notice of a support deduction order to each income source from whom the Director is seeking payment, and may serve new notices when the amount to be paid under a support order changes or arrears are owing.  1996, c. 31, s. 20 (2).

 

Contents of notice

 

(3) The notice shall set out the amount of support owed by the payor under the support order and may also set out any amount in arrears under the support order and the amount required to be paid by the income source to the Director.  1996, c. 31, s. 20 (3).

 

Notice to payor

 

(4) The Director shall send to the payor a copy of every notice sent under subsection (2).  1996, c. 31, s. 20 (4).

 

Notice deemed garnishment for Family Orders and Agreements Enforcement Assistance Act (Canada)

 

(5) A notice of a support deduction order shall be deemed to be a notice of garnishment made under provincial garnishment law for the purposes of the Family Orders and Agreements Enforcement Assistance Act (Canada).  1996, c. 31, s. 20 (5).

 

Support deduction order not affected by stay of enforcement of support order

 

(6) The operation or enforcement of a support deduction order is not affected by an order staying the enforcement of the related support order unless the support order is also stayed.  1996, c. 31, s. 20 (6).

 

Contents of support order

 

9 (1) Every support order made by an Ontario court, other than a provisional order, shall state in its operative part that unless the order is withdrawn from the Director’s office, it shall be enforced by the Director and that amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.  1996, c. 31, s. 9 (1).

 

Court may require that order may not be withdrawn

 

(2) If the court considers it appropriate to do so, it may state in the operative part of the order, instead of the wording prescribed by subsection (1), that the order and the related support deduction order shall be enforced by the Director and that they cannot be withdrawn from the Director’s office.  1996, c. 31, s. 9 (2).

 

Form of support deduction order

 

11 (1) A support deduction order shall be in the form prescribed by the regulations.  1996, c. 31, s. 11 (1).

 

Information re payor, income source

 

(2) Before making a support deduction order, the court shall make such inquiries of the parties as it considers necessary to determine the names and addresses of each income source of the payor and the amounts paid to the payor by each income source and shall make such other inquiries to obtain information as may be prescribed by the regulations.  1996, c. 31, s. 11 (2).

 

Same

 

(3) If the support order is sought on consent or by way of motion for judgment or if the making of the support order is uncontested, the parties shall give the court the particulars described in subsection (2) and such other information as may be prescribed by the regulations.  1996, c. 31, s. 11 (3).

 

Completion of form, etc.

 

(4) The support deduction order shall be completed and signed by the court, or by the clerk or registrar of the court, at the time the support order is made and shall be entered in the court records promptly after it is signed, even if the support order may not have been settled or signed at that time.  1996, c. 31, s. 11 (4).

 

Tune in on Monday June 10th, 2019 for Episode 1 of Family Law Now

Family Law Now Podcast Logo

Tune in on Monday June 10th, 2019 for Episode 1 of Family Law Now

The new podcast series is the culmination of a long-standing passion project of democratizing access to information concerning family law matters.

Family Law Now is hosted by Russell Alexander and a featured guest with whom he presents a meaningful review and analysis of family law issues. With over 20 years’ experience helping families resolve their legal issues, Russell has developed a remarkable understanding of family law issues and is eager to share his jewels of wisdom with the listening public.

Family Law Now is a new audio series that delivers useful commentary and insights into timeless and trending family law issues. The podcast is free of charge to registered users and provides a convenient, low-commitment resource by which busy individuals who don’t have time to read long-winded articles can get answers to their legal questions, on-the-go.​ Tune in to Family Law Now!

With special guest Michelle Mulchan,

Michelle Mulchan
Collaborative Family Lawyer

Collaborative Family Lawyer, our first episode will focus on the 10 Things You Should Know About Child Support.

To learn more about our podcast please visit us here.

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

Irish Referendum Results: Separation Period Shortened to Fast-Track Divorce

Irish Referendum Results: Separation Period Shortened to Fast-Track Divorce

According to a recent article in the Irish Times, the people of Ireland have voted overwhelmingly in favour of a proposal to shorten the period of separation between married spouses before being eligible to apply for divorce.

Previously, a married couple could apply to get a divorce only if they had been living apart for four out of the past five years.   The proposal calls for reforms to legislation, allowing the separation period to be reduced to two years.  It also enables foreign divorces to be recognized under Irish constitutional law.

In addition to fast-tracking the divorce process, the abbreviated separation period also has the side-benefit of reducing the harm that may affect children because of protracted divorce proceedings between the parents.  It may also reduce the individual living costs that separated spouses have to bear while waiting out the former long separation period, before being able to fully move on with their lives apart.

The overwhelming support for these reforms was evident in the outcome of a constitutional referendum on divorce, which passed with 82.07 per cent support.   The “yes” vote garnered 1,384,192 ballots in favour (and 302,319 against), a result of a turnout of more than 50% of the voting population across 31 constituencies.

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

Married Thrice; Divorced Only Once – Court Untangles Man’s Complex Love-Life

Married Thrice; Divorce Only Once – Court Untangles Man’s Complex Love-Life

In a recent case called Lowe v. A.A. the court was asked to legally untangle the love-life of a man named Errol Lowe who had been married three times … but divorced only once.  This left the much-married Errol was in an interesting legal predicament, because it invited the question of whether his second and third marriages were valid, whether they were now eligible to be the subject of a divorce order, or whether they were void from the outset.

The court set the stage against which these issues were to be determined:

  1. OVERVIEW

Errol D. Lowe has entered into three marriages in the province of Ontario. Two of these marriages were entered into while he had prior existing marriages. He has only been divorced once. He has appealed to the court for help in “undoing” his second and third marriages.

Mr. Lowe’s circumstances are unusual. His complex marital history requires the court to examine the evidence and first determine the appropriate legal nature of each of his three relationships in order to identify the appropriate mechanisms for ending them.

In order to legally end Mr. Lowe’s second and third marriages, the court must decide whether these marriages were valid in the first place. This determination will affect whether the marriages are to be ended by way of annulment or divorce. If either of Mr. Lowe’s marriages were invalid from the start because he lacked the capacity to marry, that marriage is void from the beginning and a decree of annulment may be issued. If either marriage was valid, then the proper mechanism is divorce.

With that said, the court noted that in a practical sense some of these issues were actually moot and no longer affected Errol and his many wives directly; it seems that Errol was unable to make a go of his subsequent marriages anyway.  The court said:

I should note that whether Mr. Lowe’s second and third marriages are to end in divorce or annulment has little practical implication, either for him or for his second and third wives. I say this because he has been separated from his second wife for many years and has had no contact with her since before his third marriage. He married his third wife in 2008 and has been separated from her since the spring of 2016.

Moreover, in an interesting aside it seems that none of Errol’s wives were particularly proud of having married him at all.  In the court’s words:

I should note that Mr. Lowe testified at the initial return of this matter on February 21, 2018. Mr. Lowe’s third wife, the Respondent A.A., also testified with respect to application FS-17-291. She asked to be referred to by her initials in my written reasons. I have referred to Ms. A.A. and to Mr. Lowe’s first and second wives by their initials out of respect for their privacy.

The court did add that while none of Errol’s former wives were currently seek support from him, a support claim could still be a possibility in the future, regardless of whether the marriages ended in divorce or annulment.

There’s the old saying: “always a bridesmaid, never a bride”.  In Errol’s case, perhaps it was “never a groomsman, always a groom.”  His intriguing case gives rise to multiple legal issues, and we will cover more of them in some upcoming Blog posts.

For the full text of the decision, see:

Lowe v. A.A., 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

Is Husband Only in Contempt of RRSP Non-Depletion Order if He Buys a Ferrari?

Is Husband Only in Contempt of RRSP Non-Depletion Order if He Buys a Ferrari?

The wife and husband separated after having four children during eight years of marriage together.  They were divorced in 2012, but there had been extensive litigation in the years since, mainly revolving around the husband’s annual income (initially estimated by the court at $500,000) and his efforts to have his support obligations reduced.

The couple reached agreement on a much lower income amount, and settled the husband’s spousal and child support obligations by way of two orders made on consent.  Both orders included an express non-depletion component:  it prohibited the husband from depleting his property and assets, as a means of thwarting his ability to pay the wife.

Meanwhile, after the husband was laid off from work, he started his own company, at which he claimed to earn only $13,000 a year.  He then let that company go dormant, and became an employee of his parents’ company where he earned $72,000 per year.

The wife then learned that the husband had recently withdrawn about $105,000 from his RRSP money.  He claimed to use the money to pay his legal fees, credit card bills, and living expenses, including “rent” to his parents totaling $12,000.  (Although the court was provided with evidence of a cheque in that amount being cashed, it declined to conclude that it was for the payment of rent).

The wife accused the husband of being in contempt of the two prior orders.  She noted that his timing was suspect:  He knew she was about to ask the court to award her $373,000 as a lump, to cover child and spousal support arrears as well as going-forward support.

The husband admitted that he knew he was not supposed to deplete his RRSP funds.   However, claimed to have a rather unique understanding of what a non-depletion order was, as the court explained:

The husband stated that he understood non-depletion to mean that he was not to pay anything that was not part of his normal day-to-day living expenses. He was not to “abscond with the money,” “be irresponsible,” “go to Cuba type of thing” or “you know, buy a Ferrari.” He stated that he believed he could pay legal bills, pay rent, and pay for living expenses. He said that [his lawyer] Mr. Kelly told him that “you gotta do what you gotta do.”

To this, the court started by saying that the legal advice the husband had received about the RRSP withdrawals was “less clear than it could have been about what constitutes depletion.”  It also found that – despite his protests to the contrary – the husband could meet his reasonable living expenses soley from the salary his parents were paying him.

As for the contempt elements, the law was clear there were three elements that had to be proven:

1) That the orders clearly and unequivocally stated what should/should not be done;

2) That the husband had actual knowledge of the orders; and

3) That the husband intentionally did the act(s) that breached the orders.

For these purposes, to “deplete” or “dissipate” means to reduce one’s assets in a manner that impairs or defeats a claim for support.  It did not require the actions be wasteful to foolish.

Here, all the elements were present.  The husband knew about both orders, which were clearly-worded and unequivocal.  He knew exactly what he was ordered not to deplete.  And yet he admitted to withdrawing RRSP funds on three occasions.

The court added:

  If [the husband] wished to withdraw funds to pay legal fees or other expenses, the appropriate course was for him to seek permission from the Court to do so, mot to repeatedly breach the orders.

The court did not hesitate to find the husband in contempt, but gave him the chance to purge that contempt finding by repaying almost $105,000 to the RRSP within a short deadline.  If he did not do so, then his pleadings in the matrimonial litigation with the wife would be struck out entirely.

For the full text of the decision, see:

Weber v. Merritt, 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 Dad Merely a “Sperm Donor and Blank Cheque?” Or Was He Eligible for Shared Parenting?

 

Was Dad Merely a “Sperm Donor and Blank Cheque?” Or Was He Eligible for Shared Parenting?

In V.P. v. D.M. the court had to settle whether the father’s purported role in his young daughter’s care and upbringing was as extensive as he imagined, and whether he was entitled – and capable – of having a fuller role in her life on a shared parenting basis.

The mother, a nurse, was 47 years old.  The father was 53.  They met on-line in 2010, and maintained what was essentially a friendship.  They never lived together, and were never in a monogamous relationship.  At some point, the mother purchased a condominium in the same building as the father. After they had a few intimate encounters, the mother became pregnant.

The mother took a year-long maternity leave, and the father visited the child regularly in the evenings after work.  The mother claimed these were just visits, and did not involve the father actually caring for the child.  She said she did support his involvement, until it affected the stability of the child’s life and her own, and became an intrusion.  They ended up having a dispute over the father’s past and future role.  As the court explained:

The father’s evidence is that the mother used him to have a baby and that once that happened he was dispensable. He believes that the mother has treated him as a sperm donor and blank cheque. All he is trying to do is assert his right to be an involved father for his daughter who he loves very much. He believes that it is in [the daughter’s] best interest to spend equal time with her parents.

The father sees himself as the victim. He is a victim of the mother’s attempt to eliminate him from his daughter’s life; … he is a victim of the mother’s premeditated plan to use him as a sperm donor and a monthly cheque.

The court examined the evidence, as well as how the parties interrelated. It found the child loved both parents very much and was closely bonded to both of them.  It noted, however, that a shared parenting arrangement for the now 5-year-old child would require a significant amount of contact between the parents:

Homework is forgotten, money is required for a school trip, extracurricular activities will require coordination and flexibility, arrangements will have to be made for [the daughter’s] care on non-school days when the parents are working; who buys birthday gifts for parties attended by [her], who picks out [her] Halloween costume, and who takes [her] to the doctors and fills prescriptions?

Before it could decide that a shared parenting regime was in the best interests of this child, the court had to be able to find at least the following:

  • The parents could speak to one another directly and not just in writing;
  • The parents behaved respectfully towards one another;
  • The parents would cooperate to ensure the child’s needs are being met;
  • The parents were capable of putting the needs of the child before their own;
  • The parents demonstrated a reasonable amount of emotional maturity and would demonstrate that emotional maturity when there is a disagreement; and,
  • The parents would behave appropriately towards one another at all times in front of the child.

In this case, the court simply could not conclude that the parents in this case could meet these requirements.  It laid most of the blame squarely at the father’s feet.

For example, the mother was always the primary source of the child’s care; and it was now “disingenuous” for the father to claim he was an equal caregiver simply because he attended at the mother’s most evenings after work when the daughter was a baby.  The court added with what seemed like veiled incredulity:

Even though the mother was solely responsible for [the daughter’s] care all day, including feeding, bathing, doctors’ appointments, napping, changing her, and shopping for her as well as caring for her throughout the night after she went to bed, the father considered himself to be equally involved in [the daughter’s]  care.

As the court summarized: “The father’s visits after work do not make him a co-parent as he believes.”

Also, the mother testified that the father was extremely emotionally and verbally abusive towards her, particularly in his written communications, which were full of expletives.  The court agreed they were “vile and abusive”, and noted the mother never responded in kind, but was always calm and composed when dealing with him.  The father’s poor judgment was also of concern, especially since he had not participated in the counselling that had been recommended for him.

Noting the need to limit the daughter’s exposure to adult conflict, the court concluded overall that shared parenting was not feasible.  It ordered that the mother should have custody, with specified access to the father, as part of the many issues it was asked to decide between these parents.

For the full text of the decision, see:

V.P. v. D.M., 2019

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

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