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Posts from the ‘Divorce’ Category

Custody Battle Gone Very Wrong:  Mom’s Cellphone Tracker Shows How Misguided Dad Really Is

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Custody Battle Gone Very Wrong:  Mom’s Cellphone Tracker Shows How Misguided Dad Really Is

I have reported previously about a case called M.M.B. (V.) v. C.M.V., the background facts of which are not terribly unique:  After their split in 2013 the parents had agreed to a “parallel parenting” and equal-time arrangement for their three children.  The mother now claimed that in the time since, the father had been engaging in a concerted effort to alienate her from them.  She asked for sole custody and an order that the father undergo therapy.

What’s more noteworthy is the rather epic court ruling in their case, which spanned over 1200 paragraphs, where the court recounted a dizzying array of tactics by each of the parents; overwhelmingly, however, the ruling focused on the misconduct of the father, who the court repeatedly noted had viewed himself as being “in a war” with his former spouse and determined to “win” at all costs.

Among the many accusations of rather mind-boggling misconduct on his part, one of the more interesting ones involved him using an app installed on the mother’s own cell phone to “track” her location.  As the court explained the gist of the mother’s testimony:

During the last two years of the relationship prior to separation, her evidence is that the [father] became more volatile and threw things at or near her. The [mother] testified that he was obsessed with the idea that she was having an affair. Her evidence is that she had never had an affair during the marriage.

 She further testified that the [father] had a constant need to be “in control” and that he utilized a feature on her cell phone to be able to track her whereabouts. Two examples that she cited were, on one occasion when she attended at a lawyer’s office in July 2011, he telephoned her four times during her appointment with the lawyer, knowing exactly where she was at the time. The second example she gave happened in August 2011. They were in New York for a few days and she left early to return to school. While the [mother] was still in New York, she claims that he was able to track her whereabouts and knew that she had taken a different route home. She says that she did so in order to look at possible housing for her and the children. He accused her that she was travelling to a residence for purposes of having an affair.

 As further proof that he was tracking her whereabouts through her cell phone, she indicated that she, as a result of these situations, learned that there was a “track my phone” feature on her phone which she then disabled. Shortly thereafter, however, she testified that he insisted on having her cell phone for some unrelated purpose. When he returned it to her she noticed that that the tracker had been reconnected. …

 When asked about the allegation of tracking the [mother] on her cell phone, his explanation for his knowledge of her going to a lawyer is that their cleaning lady told him this in July 2011 when the [mother] was going to the lawyer.

 When asked about the feature of “find my phone” so that he could allegedly track her whereabouts from his phone, he has a very “plausible” explanation. He claims that because he was using his phone for Association work they jointly downloaded this app so that she would be able to find his phone in the event that he lost it.

 Regarding the knowledge that he had that the [mother] was on a different route on the way home from New York City, the [father] once again has a “plausible” explanation. His brother who is a real estate agent, by happenstance, was showing a house across the road from where the [mother] was driving. His brother took it upon himself to call the [father] to report that he had seen his vehicle, thinking that it was the [father] but of course it was the [mother].

 This court views each of these explanations with a great deal of cynicism.

That cynicism was borne from many other conflicting and incredible explanations by the father, including one piece of “smoking gun” evidence noted by the court several hundred paragraphs later:

In response to the [mother’s] concern that the [father] was tracking her and the children’s whereabouts, the [father’s] response is somewhat contradictory. On the one hand, he “denied this” and stated that he “doesn’t care where she goes”. On the other hand, on several occasions, he admitted to “wanting to locate the children and not her”, which he believes to be a safety issue. He said he ”was able to locate the children by their cell phone devices”.

 This was an admission by the [father] that the court finds is consistent with the evidence given by the [mother] at trial; that she knew that the [father] was tracking her movements through her cell phone. The court finds that this is inconsistent with the [father’s] “explanations” of how he knew the [mother’s] whereabouts on two separate occasions at about the time of the separation. He specifically denied under oath at trial that he was tracking her whereabouts through her cell phone. Undoubtedly, he had forgotten what he said during the assessment, or did not expect this court would take the time to read all of the exhibits.

Particularly as it relates to the father’s highly misguided win-at-all-costs focus, the M.M.B. (V.) v. C.M.V. decision is a virtual judicial textbook on “How Not to Behave” in the post-separation phase.  It could be interesting reading for those who can get through the 1,200-paragraph judgment.

For the full-text of the decision, see

M.M.B. (V.) v. C.M.V.

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

 

 

Bitcoin and Divorce: Perils and Pitfalls

 

Bitcoin and Divorce: Perils and Pitfalls

We are seeing increasing divorce cases that involve Bitcoin and other crypto currencies.

This Is Money reports that there have already been several divorce cases that involve Bitcoin. They rightly point out that discovery and tracing of this asset can be problematic for lawyers:

“Tracing cryptocurrencies could be enormously time-consuming and expensive. This is, of course, much easier if cryptocurrencies are traded via an online investment platform and bought with funds from a bank account, as the original value of the transaction can then be established. When cryptocurrency is purchased directly and moved offline, it becomes almost impossible to trace.”

For divorcing couples in Ontario, full financial disclosure is the norm. So, if you own Bitcoin or other crypto currencies you will need to disclosure these assets (and their value) to your spouse. If fail to disclose your Bitcoin then there is a chance that any Court Order or divorce agreement you enter into may be set aside if the asset is discovered later as result of this non-disclosure.

The relevant date to value the asset would be your date of separation (DOS). The Bitcoin may also be exempt from sharing if you brought this asset into the marriage and owned it on your date of marriage (DOM). The value of the Bitcoin on your DOM may be a deduction to any final sharing you do with your spouse. However, the value increase of you Bitcoin from your DOM to your DOS may have to be shared with your spouse.

You should engage the services of an experienced family lawyer if you are divorcing and you (or your spouse) own Bitcoin or other crypto currencies.

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

A Day in the Life:  Court Uses “Ladder” Metaphor to Get Through to Firefighter Dad

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A Day in the Life:  Court Uses “Ladder” Metaphor to Get Through to Firefighter Dad

In an upcoming blog about an Ontario court decision in which the court was tasked with sorting out a particularly acrimonious, high-conflict separation and divorce between couple.  The result was a written court ruling that took up more than 1,200 paragraphs.

Obviously, the court had quite a lot to say.  And what was especially noteworthy was the court’s attempt to “get through to” the parents in a manner that they will understand.

The court prefaces that unusually-lengthy ruling with the following comments:

In addition, of course, to the monies spent by the parties, there has been an incredible expenditure of community resources in an attempt to address the conflict this family faces.

The financial cost is just one aspect of the damage done to this family.

The emotional cost to the parties, and in particular to the children, is something that cannot be quantified.

This court heard fourteen days of trial.

This court, at the risk of being accused of being delusional or blinded by eternal optimism, has crafted a decision pursuant to which the court is optimistic that the respondent father’s mentality can be changed from one of “war” as it has been described until now, to one in which the objective is changed from “winning” and “destroying” the other parent to one in which the objective is to have an environment pursuant to which the children can be free to love both parents and can freely move back and forth between them willingly, happily and without the need for the intervention of any of the resources earlier referred to.

This court is not naïve and does not expect that that will occur overnight but on the other hand, this court believes that if it did not try to create that situation it would have let these children down and simply “given up” on them. This court is not prepared to do that.

The court’s next step was to comment on the approach taken by each of the parents throughout the protracted litigation, first to castigate the father, and then to laud the mother. About the father, the court used a metaphor that it hoped would resonate with the father, writing:

As will be seen in this judgment, this court has found that the respondent father has engaged in a “war” as two witnesses have indicated he characterized it at the beginning. The respondent of course denies that he said this but his actions speak far louder than any words that he could have uttered.

The respondent is an acting District Fire Chief and therefore the court has found it appropriate to use a word picture involving a ladder, being a piece of equipment associated with firefighting.

This court finds that the respondent has climbed a ladder and reached the top almost realizing his perceived goal. That goal was to have control over the children and to be in a situation where the mother of those children, being a mother whom he chose for them, was totally marginalized. He almost achieved that goal in that the children at their current ages have each expressed that they do not wish at the current time to have any meaningful relationship with their mother, nor to spend time with her on a regular basis.

This court hopes that the respondent father will see, as this court sees so clearly, that the wall that his ladder should have been against, and the wall that hopefully he will climb after he climbs down from this current ladder is one in which at the top of the wall is a situation whereby the children have a healthy relationship with both parents and can freely love each of them without feeling any guilt towards the other. Love is not a finite quantity pursuant to which if you give love to one of your parents you must take it away from the other. In fact, the children can also love the respondent father’s girlfriend as a “stepmother” without having to feel that by doing so they need to thereby not love their biological mother.

In contrast was the mother’s conduct throughout, which the court found was praise-worthy overall:

This court would be remiss if, in its summary of this case, it did not comment on the applicant mother. This court finds, as with any parent, the applicant mother is far from perfect. In fact, some of her actions, likely taken out of fear of losing her children, exacerbated the situation. This court finds that her parenting style is far more structured than that of the respondent father which “played into” his desire to alienate the children from their mother.

Having said that, the applicant mother has been subjected to not only emotionally abusive treatment from the respondent father and those under his “control” but emotionally and even physically abusive behavior from the children. The court does not “blame” the children as, there is an obvious reason why they are behaving in the manner in which they are behaving.

Many, and in fact probably most, mothers even those who deeply love their children would have “thrown in the towel” by now, but the applicant mother did not. That, this court finds, is not only to her credit but will be something that this court anticipates in years to come will be greatly appreciated by her children.

With that preface to the subsequent 1,200 paragraph’s worth of specific rulings designed to resolve the couple’s dispute, the court added – perhaps optimistically – that:

… this court has crafted a decision that it believes is one that could result in a 180° change being made in their lives from one of adversarial conflict between their parents, the extended families, and unfortunately the children themselves and their mother, to one in which they are allowed once again to “be children” and not have to constantly be concerned about the conflict between their parents.

The court’s stated objective is a good one, and it applies with equal pertinence to anyone embroiled in family litigation involving custody and access issues.

For the full text of the decision, see:

M.M.B. (V.) v C.M.V.

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

 

 

 

Money is No Object for Divorcing U.K. Couple

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Money is No Object for Divorcing U.K. Couple

Over the years I have often posted about cases in which a Canadian court invites warring former spouses to reflect on the sheer amount of money they are spending on lawyers and court costs, in waging prolonged battles with each other. [Russ:  there are several of these but here’s just one. All too frequently, the costs of repeatedly going to court – often to dispute relatively trifling legal points – can quickly outstrip the monetary value of what’s being fought over, not to mention the benefit of the overall exercise.

This dubious litigation strategy is certainly not confined to Canadian family law litigants.  As reported in a recent article in the U.K. newspaper known as The Guardian, a separated wealthy British couple have already spent over £2 million (about CDN $3.5 million) slugging it out both in and out of court, all to fight over their £6.6m in family assets (about CDN$11.5 million). This despite the fact that they are only the pre-trial stage of the proceedings, with the trial yet to come.

According to one judge, the two have “completely lost touch with reality,” and noted that the trial itself will cost at least another £200,000 (or CDN$350,000) in lawyers’ fees.

The article reports that the former couple, who ran a company that supplies luxury towels and bathrobes to high-end hotels and spas, had been so single-minded embroiled in their conflict that they ran the risk that there would be no money left for either of them at the end.  At least one judge had admonished them along the way, advising that their litigation campaign was a “scandalous waste of court time.”

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 Wife’s Contribution to the Welfare of the Family be Worth $1 billion dollars?

Can a Wife’s Contribution to the Welfare of the Family be Worth $1 billion dollars?

This could be one of Britain’s biggest divorce cases exceeding $1 billion Canadian dollars.

The Guardian reports that Tatiana Akhmedova is seeking a claim against her former husband, a Russian billionaire.

The paper reported that she has not received “a penny” and the case is under appeal. The Guardian also reported on the trial decision.

Akhmedov argues “she was due almost half of their £1bn fortune due to her “equal contributions to the welfare of the family” during their marriage”.

The case has similar overtones to the British case Antonio v. Rokos, [2016] EWHC 520 (Fam); Case No. ZCI5P04051, February 15, 2016, High Court of Justice Family Division that considered a mother’s child care budget that included £10,555 a year for wine.

So, what do you think? Does Akhmedov’s argument that her contributions to welfare of the family is worth up to $500 million dollars?

Can You Sue a Cheater for Damages?

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Can You Sue a Cheater for Damages?

These days, not a week goes by without some sort of sexual scandal in the news. Recently, it has focused on allegations of sexual harassment by prominent figures and celebrities but this merely adds to usual crop adultery-scandal coverage that routinely graces the cover of magazines seen while waiting in the check-out line.

I was reminded of an older Family Law decision the other day, which considered the question of whether one person can sue another for cheating on them, or for falsely promising to marry them or have an exclusive relationship with them.

The decision in Lee v. Riley raised exactly this scenario.  The matter came before the court the initially to consider whether the lawsuit actually raised any valid legal claims.  (Under Canadian law, this process serves as a preliminary “screening mechanism” for weeding out those claims adjudged to be entirely without merit, so as not to waste the court’s time (and the taxpayers’ money) on frivolous or otherwise untenable lawsuits.   The prevailing test at the time was whether it is “plain and obvious” that the cause of action cannot succeed.)

In Lee v. Riley the woman had sued the man for what has a rather novel claim.  As the court put it:

The plaintiff [woman] alleges that the defendant [man] failed to advise her that he was involved with another women whom he later married while he was carrying on an intimate relationships with her within a context of an apparent ongoing developing relationship. When she discovered the truth, the [woman] claims that she became ill and has suffered damages. The [woman] asserts a number of causes of action arising out of these facts, including assault, intentional infliction of mental suffering, and fraudulent or negligent misrepresentation.

Although it appeared to have sympathy for the woman, the court dismissed her claim outright, having found no supportable, legal cause of action in her pleadings.  The court wrote:

The [man’s] conduct, as alleged, is morally reprehensible and disgraceful. Nevertheless, the law has never punished either criminally or in civil proceedings, the untruths, half-truths and other inducement which accompany seduction, absent a fraudulent relationship or the presence of a known serious transmittable disease. The [woman] knew who the [man] was and knew the [illegible text] sexual acts being undertaken. The law cannot protect every person against the kind of behaviour the [man[allegedly manifested. Relationships involve risk-taking. People should be honest but it is well known that frequently they are not.

What are your thoughts?  Are there circumstances where the law should recognized a claim in damage by the cheated-on partner?

For the full text of the decision, see:

Lee v. Riley, 2002 CarswellOnt 5558

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

 

 

 

Kiss & Tell: The Divorce Lawyer’s Duty of Confidentiality

Kiss & Tell: The Divorce Lawyer’s Duty of Confidentiality

Newsweek reported recently that President Trump’s former divorce lawyer Jay Goldberg is has penned a tell-all book that will include details for his two former divorces.

President Trump was formerly married to Ivana Trump and to Marla Maples. Both matters are now settled.

Golberg’s potential book may fly in the face of long held and important traditions and rules of confidentially. Clients tell their lawyers their deepest secrets with the protection that that information and confidence will not be misused or abused. 
This is known as solicitor-client privilege and forms the cornerstone of the solicitor client relationship and enables the lawyer to get the full picture, develop legal strategies that will be in their client’s best interests and fosters the dispensing of legal advice.

Divorce lawyers in Ontario are governed by strict Rules of Professional Conduct that ensure clients’ confidences are kept secret.

So what do you think? Should lawyers be allowed to write tell-all books about their former clients’ divorces and legal affairs?

 

Simple Divorce & It’s Over Easy

Simple Divorce & It’s Over Easy

Is there such a thing as a “simple divorce”?

In Ontario there has been a great discussion of opening up the family law system and permitting paralegals to practice and provide limited family law services. Although their role and permitted duties have not been clearly defined it is apparent that change is coming.

In the U.S. divorce lawyer Laura Wasser has recently released an app for people looking for an easier way to divorce – “it’s over easy”.

Lifehacker reports that the price ranges $750, while the top-of-the-line Premium plan costs $2500 + processing and state fees to use “it’s over easy”.

Although this sounds easy now, there is still a good chance that you may require the services of an experienced family lawyer especially if your spouse files a response and seeks relief from the court such as division of family property and or support.

In addition, there are many other legal implications of divorce that can be easily overlooked such as life insurance, benefits, wills and estate planning, providing disclosure of family assets and securing releases with respect to claims that might be made in the future.

However, given the complexity and expense of the current family law system anything, including innovative apps, that help streamline and simply the system for the public will be a welcomed step in the right direction.

Can You Go to Jail for Not Paying Child Support?

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Can You Go to Jail for Not Paying Child Support?

Most separated and divorced parents are at least vaguely aware that there are certain enforcement mechanisms available in cases where a parent fails or is unwilling to pay the child support that he or she has been ordered to pay by a court.

Specifically the Family Responsibility Office (FRO), which is a provincial government agency, enforces child and spousal support from delinquent support-payers, and to this end has various enforcement tools at its disposal.  These include garnishment of the support-payer’s wages, and suspension of his or her driver’s license.

But people may not be aware that a parent in default may also face jail time, under the provisions of the Family Responsibility and Support Arrears Enforcement Act (“FRSAEA”).  Although this outcome is not common, it does arise in some cases.

The recent decision in Ontario (Director, Family Responsibility Office) v. Garrick was one of them. The father owed child support arrears for over $55,000, which amount had been racked up over several years.  He explained the non-payment with the fact that much of those years had been spent behind bars, after his highly-publicized conviction for fraud perpetrated against several well-known people, including “two football icons” and a doctor at the Hospital for Sick Children.   And while he had now served his time and was released, he claimed that with his criminal record and notoriety, he was now practically unemployable in the community.

The court did not buy it.  It observed that the father had not provided financial disclosure of his income, nor did he bring forth evidence as to the jobs he had applied for, or the rejections he received.  The court also added that his evidence fell short in other ways, too:

A payor in a default proceeding has the onus [under the FRSAEA] of proving that he or she has accepted responsibility to pay child support and has placed the child’s interests over his or her own. Mr. Garrick has provided no evidence of having done anything of the sort.

Indeed – and despite the father’s claims to the contrary – the court found that he was healthy and employable, but had wholly abdicated his support responsibilities to his child while continuing to live an affluent lifestyle.  He had spent a full seven years actively avoiding his financial obligations to his own child.

Turning to the available recourse in these situations, the court noted that the role of incarceration was to compel the father’s compliance with his support obligations, not to punish him.   However, the court added:

I have considered all of those submissions. But the court must conclude that this is a textbook case of a payor arranging his affairs in order to avoid paying the support that he has been found to be capable of paying. [The father] has carried the metaphorical keys of his prison in his pocket. If he is incarcerated, he has, for reasons of his own, chosen to lock himself in.

The court ordered the father to be incarcerated for 90 days, or until the child support arrears were paid in full. Additional jail time was ordered in the event that on a going-forward basis the father continued to put himself in default.

 

For the full text of the decision, see:

Ontario (Director, Family Responsibility Office) v. Garrick 

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

Saving the Golden Goose: Part III – Privacy, Protection, and Planning

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Saving the Golden Goose: Part III – Privacy, Protection, and Planning

This blog builds upon our previous blogs Saving the Golden Goose: Part I and Part II to discuss the importance of privacy, protection, and planning in managing the effects of separation and divorce on family businesses. One illustration of this arose in a case whereby both spouses owned shares in the family company. As an additional wrinkle, a third business partner was involved and actively expressed concerns about the effect of the separation and divorce on the business.

One spouse actively managed the finances of the business, and the other was less involved. This created an unbalanced feeling for the second spouse, who felt that they were open to being taken advantage of financially. The spouse in active management of the business was incredibly concerned about market changes and the viability of the business going forward into the future. This vulnerability split into discussions around how the business should be properly valued.

The spouses had several adult children who had been supported by the family business in various ways throughout their teenage years and adulthood, either through part time jobs or full time employment. These children had very vocal views on how the couple’s separation should proceed. The children also felt that the family cottage should remain in the possession of the spouse who was in active management of the family business, as it was a retirement plan.

In this matter, a full team approach was utilized to create a creative solution which met the spouse’s needs amidst the “background noise” of the children and the business partner. The family professional was able to mitigate any backlash from the children expressing their feelings about the family business and the cottage, and the financial professionals were able to ensure that the non-managing spouse felt competent enough to actively participate in the financial negotiations.

In order to ensure that the family business was preserved, several options were suggested by the team to the spouses:

Shares from non-managing spouse be transferred to managing spouse; other family property transferred to non-managing spouse

  • Shares from non-managing spouse be transferred as a gift to the children
  • Non-managing spouse retains cottage; managing spouse leases family cottage back and covers operating and capital costs with option of re-purchasing in the future
  • Non-managing spouse retains the shares for a period of five years during which the managing spouse acts as the voting proxy, after which time the managing spouse has the option of buying back the shares at the current value

Associated issues such as the capital gains liability of each scenario, as well as the valuation dates for transferred property were also taken into account. Notably, these options would not be available in the traditional court context. Perhaps most importantly, the spouses would not have had the “luxury” of being supported by an interdisciplinary team and provided time to process and decide which option made the most sense to themselves, their family, and their business.

The above case examples illustrate the ability of collaborative family law to shape a resolution with the best interests of the family business at the core. The collaborative process emphasizes privacy, protection, and planning. By keeping the matter outside of the courtroom, families can maximize their privacy with respect to the highly personal matter of restructuring their family and business.  The collaborative process offers a respectful alternative to the court system for those wishing to ensure that their legacy remains intact for generations to come through estate and succession planning for the business. The business does not need to be destroyed by family restructuring. Minimizing the financial and emotional impact of a separation and divorce on both the family and their business is a tall order, but it can be done with the support of an interdisciplinary team who is specially trained to identify creative solutions with the goal of resolution. This process allows spouses to take back control of your family’s future from impartial third party adjudicators.  Divorce and separation may represent both an ending and a beginning. Collaborative practice helps spouses anticipate and include their need to move forward, and makes the future of their business a key priority.

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

Part I

Part II