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Posts from the ‘Court Cases’ Category

Did Remorseful Husband Succeed in Ending Arranged Marriage?

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Did Remorseful Husband Succeed in Ending Arranged Marriage?

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

For the full text of the decision, see:

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

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

Was Husband in Contempt for Not Achieving the Impossible?

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Was Husband in Contempt for Not Achieving the Impossible?

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

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

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

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

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

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

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

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

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

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

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

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

For the full text of the decision, see:

Malboeuf v. Hanna, 2018

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Court Curbs Father’s Social Media Activity

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Court Curbs Father’s Social Media Activity

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

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

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

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

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

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

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

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

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

For the full text of the decision, see:

Cooper. v. Primeau, 2018 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Court Issues Important Ruling on “Double Wills”

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Court Issues Important Ruling on “Double Wills”

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

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

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

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

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

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

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

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

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

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

For the full text of the decision, see:

Milne Estate (Re), (2018)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

Can a Parent’s Substance Addiction Justify His or Her Unemployment?

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Can a Parent’s Substance Addiction Justify His or Her Unemployment?

I have written several prior Blogs that showcase the court’s power under the Child Support Guidelines to “impute” income to a deliberately unemployed or under-employed parent, so that a proper calculation can be made as to the child support that he or she may owe to the other parent.  Recently, for example, we detailed a case where the court considered whether a support payor who was in jail could be considered intentionally unemployed or under-employed for these purposes.

The power to impute income to an economically under-achieving parent – in what the Guidelines state are an amount the court “considers appropriate in the circumstances” – stems from this principle:   Parents obliged to earn what they are capable of earning.  A parent who falls short of that will be deemed intentionally under-employed or unemployed.

The parent need not specifically intend to evade child support for this rule to apply; it merely requires that the parent has chosen to earn less than what he or she is capable of earning.  This can involve quitting a perfectly good job, or deliberately getting fired from one.  It can involve not looking for new work once a former job legitimately ends.  The court will then look at whether the parent’s actions are voluntary, and reasonable, and it is up to the parent to show that his or her decision is justified in a compelling way.

Needless to say, the given excuses that a parent may have for being under-employed or unemployed are numerous.  Courts must scrutinize these on a case-by-case basis.   After doing so, a court may find that the parent’s employment shortfall is justified after all, and that no income should be imputed to him or her after all.

On this last point, one of the more interesting scenarios relates to a support-paying parent with a substance addiction problem, as illustrated in a case called Lindsay v. Jeffrey.  There, the mother asked the court to impute income to the father at the $35,000-a-year level, which was what he was earning before he quit his job as a mechanic.

The father, in contrast, claimed his income was only $9,000 for the year in question.  He claimed that he was unemployed because of his drug addiction.

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In looking at the similar precedent cases, the court noted that they tend to go both ways:  Substance abuse has been held to justify a parent’s unemployment in some Canadian court decisions, but not in others.   For example, in an Ontario case called Hutchinson v. Gretzinger, the court rejected substance addiction as a justifiable excuse, reasoning as follows:

The trial judge accepted the affidavit of the legal assistant to counsel for the [father] as evidence that the [father] was addicted to drugs, including cocaine. In my view, it was an error to do so: better evidence was required. However, even if one were to accept that the [father] is a drug addict, his addiction is not a defence to a support claim. When one first consumes illicit drugs, one must be taken to know that addiction can result: addiction is a reasonably foreseeable consequence, as is the resultant loss of income or employment. To the extent that drug addiction is properly viewed as an involuntary illness, the initial drug use is voluntary and, therefore, it is intentional. It is wrong in law (and contrary to public policy) that a parent be exempted from his or her child support obligation because of drug addiction. …

Yet in a Saskatchewan decision called Kalanuk v. Michelson, the court accepted that the father had serious drug addiction issues that impaired his ability to work.  Although this did not absolve him of all responsibility for child support, the court saw fit in his particular circumstances to reduce the child support arrears he owed, because of it.

Returning to the present-day Lindsay v. Jeffrey decision, the court endorsed this second approach – but only with proper evidence.  As the court explained:

… The ravages of drug and alcohol addiction are observed weekly in this court in custody/access and child protection cases. Many parents who love their children very much and are very motivated to play an important role in their children’s lives have their roles in their lives profoundly reduced or even eliminated because they have a substance addiction over which they have little control. This court views substance addiction as a health issue. With proper evidence, this court is willing to consider that substance addiction is a reasonable health need of a parent that can justify underemployment or unemployment, pursuant to clause 19 (1) (a) of the Guidelines.

That said, the court found the required evidence was lacking in the present case.  The father had no corroborated evidence on the extent of his drug use, how it adversely affected his ability to work, and for what period of time (if any) it stopped him from working to his full capacity.  Nor, for that matter, whether it justified his quitting a good job in the first place.

The court said:

… It is not enough for a payor to come to court and state: “I am a drug addict and this is why I haven’t worked”.  The only corroborative evidence of the father’s addiction was a certificate that he completed a 60-day day treatment program (that was completed prior to the start date of this order). The court received no medical evidence about the father’s condition.  Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his reasonable health needs justify his decision not to work.

As a final point, the court said it initially had “some sympathy” for the father over his drug issues, that sympathy had been “squandered”:  The court learned that “despite not paying any child support (and purportedly having nominal income) he purchased, in 2012, a truck for $6,000 and a 60-inch color television for $1,300. These are not the actions of a person with limited means.”

In view of the $34,000 per year that the father had earned at his mechanic’s job immediately before he quit, the court imputed income to him of $35,000 per year for child support calculation purposes.

For the full text of the decisions, see:

Lindsay v. Jeffrey

Hutchison v. Gretzinger

Kalanuk v. Michelson

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 Wife Entitled to $28,000 a Month?  Court Clarifies Purpose of Temporary Support

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Was Wife Entitled to $28,000 a Month?  Court Clarifies Purpose of Temporary Support

The goal of temporary support is not to “pay for the costs of imprudent purchases,” according to the Ontario court in a recent case named Angst v. Angst

The husband and wife had separated after 24 years of marriage.  The wife asked the court to order the husband to pay her temporary support – designed to tide her over until the trial of the broader issues in their divorce.  Despite showing actual expenses of $5,800 per month, and despite the husband’s existing $5,800 monthly payments, the wife requested a dramatic increase to the amount that he should pay.

She claimed the husband’s ability to pay support was far greater than the $107,000 per year income that he had shown on his latest tax return.  In fact, he had two corporations with retained earnings of $3 million overall, which had netted a combined after-tax net income of over $610,000 in the most recent tax year.

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The wife asked the court to deem the husband as having $718,000 in annual income, and to use the Spousal Support Advisory Guidelines (SSAGs) as a benchmark.  This would put her support entitlement in the $21,000 to $28,000 per month range.

The husband, meanwhile, conceded that he owed the wife temporary support, but felt that with the uncertainty around him dividend-based income and the corporations’ value, it was premature to set such a high figure.   The amount the wife was requesting was about four times the amount the couple had actually lived on, prior to their separation.

The court agreed that there was uncertainty around the husband’s income, including the fact that both parties admitted running some of their personal expenses through the corporation. The husband also owed some child support, which impacted the calculations.

Next, the court noted the SSAGs are not mandatory, but rather could be deviated from where the court feels it appropriate.  In this case, to award the SSAGs-dictated amount would allow the wife a far more opulent lifestyle than the one she’d actually enjoyed while married:

… [U]sing the SSAGs would result in a spousal support award that would give the applicant a radically different lifestyle than the one enjoyed by the parties during their cohabitation.  The [husband] deposes that the parties lived a modest lifestyle in order to save for retirement and to provide something to give to their children one day.  …

In addressing the wife’s actual needs as it pertained to the proper support amount, the court described the purpose behind temporary support orders this way:

The goal of a temporary support order is to maintain as much as possible the parties’ pre-separation lifestyle pending trial …

The court added that the wife had had incurred expenses that were not, strictly speaking, justifiable in the circumstances:

Since separation, the applicant has purchased a $455,000 waterfront home and spent $11,000 furnishing it.  By trading in her previous vehicle and with help from the [husband] she is driving a 2016 luxury car.  She even bought herself a $19,500 Donzi boat and trailer.  Thus, the applicant is now living roughly the same lifestyle that she had before separation.

The [wife] complains that she had to cash in RRSPs to purchase some of these things, but the goal of a temporary spousal support award is not to rebuild the recipient’s asset base.  Nor is it to pay for the costs of imprudent purchases.  The [wife] applicant also complains that she had to borrow funds for the purchase of her house at exorbitant interest rates that are costing her more monthly than they should.  But this is entirely the [wife’] fault.  She purchased the home while the parties were still attempting to negotiate a resolution of their family issues.  When that failed, she had to look to a mortgage broker to be able to close the deal.  In any event, the [wife’s] present needs of $5,800 per month include her mortgage payments.

The court ultimately concluded that to maintain her pre-separation lifestyle, the wife’s temporary support entitlement should be closer to the $5,800 she paid in actual monthly expenses.  Adjusting that figure upward to take into account the tax implications, it awarded her $8,500 a month.

For the full text of the decision, see:

Angst v. Angst

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

 

 

Italy Proposes New Law with Hopes to Abolish “Support”

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Italy Proposes New Law with Hopes to Abolish “Support”

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

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

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

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

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com

 

 

 

Online Game ‘Fortnite’ Cited in Hundreds of Divorces

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Online Game ‘Fortnite’ Cited in Hundreds of Divorces

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

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

 

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

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

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at RussellAlexander.com