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Posts from the ‘Court Cases’ Category

Court Says: Being Abusive to Your Child’s Other Parent = Bad Parenting

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Court Says: Being Abusive to Your Child’s Other Parent = Bad Parenting

In a recent Ontario decision involving a child custody and access determination, the court made a rather sweeping – though likely not incorrect – conclusion:

“[A]busing the other parent of your child be it verbally or in writing, is bad parenting.”

The facts of the case were chronicled in a prior Blog. They featured a father who asked the court to rule on the appropriate level of access he should be given to his child, who was now 5 years old.

The complicating factor was the nature of the father’s relationship with the child’s mother: He had been persistently abusive to her both verbally and emotionally, and took every opportunity to act vindictively toward her. Especially in his email and text conversations, he called her names like “bitch and “idiot” and engaged in blaming and manipulative behaviour. The court summed up this collective correspondence as being “extremely offences and abusive” and “vile and abusive”.

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Now that he was before the court to ask for access rights, the father claimed to have reformed himself. But after looking at a detailed chronicling of the incidents between them, the court found otherwise. It stated:

The court finds that there is no evidence to demonstrate that the father’s attitude towards the mother has changed in any significant way. While he says he has changed and that there is little recent evidence of inappropriate behaviour by him towards the mother, it was readily apparent during his evidence that he sees himself as the victim and the mother as the villain and that this belief system informs his judgment and decision making process.

Importantly, the court reflected on how the father’s continued abusiveness impacted on his ability to parent his child, especially in a shared parenting model which would require cooperation and communication between him and the mother. The court explained:

The court finds the father’s conduct towards the mother to be highly concerning. As difficult as the situation is between the parties and acknowledging that conflict between separated parents can create a heated and emotional environment, [the law] mandates the court not to treat this level of vitriol as typical or acceptable. What must be acknowledged is that this is very poor parenting. The way in which the parents treat one another goes directly to the issue of parenting. The court must acknowledge that abusing the other parent of your child be it verbally or in writing, is bad parenting. If this is how the father communicates when he feels the need to assert himself with the mother, how will these parents function in a shared parenting arrangement that will most certainly require frequent contact?

Perhaps the court’s conclusions simply accord with common sense. But while many child custody / access cases end up tainted by acrimony, parents seem to overlook the simple correlation between mistreating the other parent, and demonstrating to the court that their own parenting skill and judgment leaves something to be desired.

The decision in V.P. v. D.M. helps to make that connection clear. Hopefully more separated and divorcing parents will hear that message well in advance of their child custody hearings.

For the full text of the decision, see:

V.P. v. D.M., 2019 ONCJ 289 (CanLII),

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

Tick, Tock: What’s the Legal Deadline for Trying to Set Aside a Separation Agreement?

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Tick, Tock: What’s the Legal Deadline for Trying to Set Aside a Separation Agreement?

In a recent case called F.K. v. E.A. the court was asked to rule on a novel question: If a spouse wants a court order setting aside his or her signed separation agreement as invalid, what is the deadline for applying? And when does it begin to run?

The couple began their relationship in 2000, and the husband proposed in 2004. The wedding itself was hastily-planned over a period of less then 30 days, and took place in June of 2005. Against that background, the couple entered into what they called a “Prenuptial Agreement” based on a template that the wife found on the internet. It was witnessed by a mutual friend. In it, the couple agreed that each of them:

1) Waived the right to claim spousal support from each other, and

2) Would remain separate as to property, and not be subject to an equalization of Net Family Property.

The Agreement also purported to confirm in writing two events that did NOT actually happen, namely:

1) That the parties had provided fair and reasonable financial disclosure to each other before signing, and

2) That both of them retained their own lawyer and received independent legal advice.

The wife later explained that they did not bother “going through the motions” to fulfil these two duties because the Agreement was wholly uncontentious: Both before and after the wedding they had conducted themselves with financial independence; the Agreement merely confirmed and documented that agreed status.

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Unfortunately, the spouses split in October of 2012, after 7 years of marriage. The wife gave the husband $1,600 to help with first and last months’ rent, but made it clear he could expect nothing further from her.

He then went to a lawyer to discuss his legal options, and explained the lack of legal advice and financial disclosure in particular. Although his lawyer advised that the Agreement was “not worth the paper it was written on”, the husband took no concrete steps at that time.

A full five years later, in 2017, he applied to the court to have the Agreement set aside. In addition to its other shortcomings impacting validity, he claimed it was signed after the wife issued an ultimatum; this left him feeling rushed and in a state of duress, he said.

The wife countered by stating the husband was simply out of time to have the Agreement set aside. She said this type of claim was subject to a two-year limitation period set by provincial legislation, and that the husband had failed to take any steps with the court within that deadline. She asked the court to grant her summary judgment.

The court addressed the various legal arguments. First, it concluded that husband’s bid to set the Agreement aside was indeed tantamount to a legal “claim”, and was theoretically subject to the general two-year deadline. The more pressing question, however, was precisely when the clock on that two-year period began to run.

In law, this “discoverability” threshold was the point at which the husband knew or ought to have known that:

1) He had suffered some loss, and

2) A legal proceeding was the appropriate method for trying to redress it.

In this case, that point was back in 2012, when the husband first attended his lawyer’s office post-separation.

At that point, he knew there was some potential legal issue with the validity of the Agreement and the circumstances in which it was signed, based on the advice from his lawyer. He also knew he could expect “nothing further” from the wife after separation, beyond the $1,600 in rent money, and that all other financial issues were off-the-table. So he knew in 2012 that he was facing a potential loss, and he knew that a legal claim would be the only way to potentially recover it.

Since it was now 7 years past that discoverability point, the husband was too late to bring his claim to set the Agreement aside.

As a last-ditch argument, the husband had also asked for special forbearance in the circumstances: The law should not be applied to him, since his case was the first time in all the Ontario jurisprudence where a claim to set aside a marriage contract was being foreclosed by the two-year deadline.

But the court rejected this argument too. The husband’s error or ignorance about the limitation period did not stop it from running, it said. All citizens are presumed to know the “law of the land”, and it applied equally to his situation even if the husband’s thwarted claim was the “test case”.

Since the husband was out of time to bring his claim, there was no genuine issue for trial. The court granted the wife’s application for summary judgment.

For the full text of the decision, see:

F.K. v. E.A., 2019 ONSC 3707 (CanLII),

How To: Make a Valid Separation Agreement

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

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.

 

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

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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

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