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Posts from the ‘Ontario Child Support’ Category

Couple Ask Court to Declare Their Marriage Void – So That They Can Marry Each Other a Second Time

Couple Asks Court to Declare Their Marriage Void – So That They Can Marry Each Other a Second Time

A few months ago, we reported on a decision that required the court to untangle the complicated love-life a thrice-married man.

In another recent case, a married couple named Elizabeth and Patrick mutually asked the court to declare them “un-married” by way of an annulment – but only so that they can get married to each other again.   Turns out they had recently received a surprise from Canadian immigration officials, advising them that Patrick was ineligible to sponsor Elizabeth to immigrate to Canada as his wife, because he was still married to someone else.

Patrick’s first wife was a woman named Yao, whom he had met and married in 2011.  They separated in 2012, and he started divorce proceedings a year later.  He had not year from her in several years, and both he and Elizabeth assumed that the marriage had been validly dissolved when they tied the knot in August of 2017.  Soon after, Patrick applied to sponsor Elizabeth as his spouse for immigration purposes.

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However – much to the newlyweds’ surprise – they received correspondence from Immigration, Refugees and Citizenship Canada that Patrick was not eligible to sponsor Elizabeth because his earlier marriage to Yao was still in-force.    It turns out the divorce had never been finalized because Patrick’s lawyer was having trouble locating Yao.  It was only two years after their wedding to Elizabeth, in 2019, that Patrick was able to get a Certificate of Divorce that formally ended his first marriage to Yao.

Elizabeth and Patrick therefore asked the court to declare their 2017 marriage a nullity, which ironically would allow them to get married again, and would allow Patrick to apply a second time to sponsor Elizabeth for immigration.

This request for an annulment prompted the court to review the provincial and federal legislation that allows a court the authority to annul a marriage, and that prohibits a person from contracting a new marriage until every prior one is dissolved by death, divorce or court order.  The court also noted that one ground for an annulment is that there is a prior marriage still in existence.

The court therefore granted Patrick and Elizabeth’s request, on consent.  It declared that their 2017 marriage was void, because at the time the ceremony took place he was still legally married to Yao. They were thus free to marry each other again, thereby satisfying immigration authorities in the process.

For the full text of the decision, see:

Arevalo v. McHenry, 2019 

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

Woman Loses Support Bid from Man with “Harem” of Others

Woman Loses Support Bid from Man with “Harem” of Others

In an Ontario case involving unmarried romantic partners, the court was asked to examine the contours of precisely when a dating relationship turns into something more – at least in the eyes of the law.  The court began its judgment this way:

 Can a romantic partner – even one in an apparently close and loving relationship for several years – make a claim for dependant relief without establishing that she actually lived together with the deceased for at least three years?  In my view the answer is that she cannot. 

The partners were a man named Jeffrey and a woman named Branislava.  Although they had been together romantically for seven years, the court concluded that they kept separate residences and never officially “lived together”.  Jeffrey died of an apparent heart attack on New Year’s Even in 2016, at age 63.   His Will, which was made a full three years after their relationship started, did not make any provision for Branislava.

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In this context, Branislava was asking for “dependant’s relief”, which is a right based in provincial Estates law.  Since Jeffrey had not adequately provided for her in his Will, Branislava might be entitled to financial support from his Estate if she could prove that she was his “dependent” in the years before he died.  That term is defined by statute to include a common-law spouse.

The court was left to examine the relationship history between the couple, and heard evidence of people who knew them.  One of them was a platonic female friend of Jeffrey’s, Ms. Wolfe, who offered insight as to how Jeffrey viewed the connection:

[The female friend] Ms. Wolfe first met Jeffrey in 2001 when she met him on a Jewish dating site.  While they did not ultimately become romantically involved, they did become close friends.  Jeffrey confided in her and shared intimate details of his life with her, including details of his relationship with what he sometimes jokingly described as his “harem” of women.  He certainly felt close enough to Ms. Wolfe to name her as his executrix.  Ms. Wolfe was in almost daily contact with him.  She invited him over for Sabbath dinners or for High Holiday celebrations. 

Ms. Wolfe described Jeffrey as being something of an eccentric.  This eccentricity manifested itself in a number of ways.  For example, he feared being bitten by mosquitos and often wore protective clothing.  He was wary of travelling in cars and he sometimes purchased new tires for his girlfriends to ensure they were safe.  He had established something of an on-line religion through a web site that he sought to leave in his will to, among others, Mark Zuckerberg (there is no evidence that the two were acquainted in any way).  He lived alone in a cluttered, ill-kept three bedroom apartment.  There is no visible sign of it having been occupied by anyone other than Jeffrey.

While eccentric, Jeffrey was also a very charming and even charismatic man.  He formed a number of close relationships with women, some of whom he met in on-line dating sites.  He maintained his on-line dating membership right up until the time of his death.  Not all of these were sexual relationships, but he described himself to Ms. Wolfe as promiscuous.  He was generous with his female friends and there were several of them.  On January 22, 2016, the deceased wrote a handwritten note for a file he kept in his apartment called “Branislava” naming some of them:  Alla, Olga, Charlie, Falicia, Chauntelle.

In looking even more closely at the nature of the relationship between the parties, the court took the following approach:

The real world of human relations more closely resembles a spectrum than a well-ordered world of binary certainties.  A myriad of close relationships exhibiting some elements of dependancy exist in the world of real people leading real lives.  The inquiry I must undertake cannot be reduced to a simple checklist.  While it is clear that the substance of the relationship needs to be examined, that examination must proceed in the light of the minimum requirements of the legislation. 

On the evidence, the court rejected Branislava’s suggestion that Jeffrey gave her up to $10,000 per month in financial support while they dated, or that he paid her rent.  He was certainly generous to her, using income he had inherited from his own father’s $40 million Estate. But he never took financial responsibility for her, nor encouraged her not to work and to be dependent on him.

Also – and especially in light of their separate living arrangements — Branislava also did not meet the definition of “spouse” so that she qualified as a dependant. The mere fact that they had a close and loving relationship, or that they were sexually intimate, was not sufficient to meet that threshold.

In the end, the court ruled that Branislava was not entitled to support from Jeffrey’s Estate.  (She later appealed unsuccessfully to the Ontario Court of Appeal, and her motion to extend the time to file leave to appeal with the Supreme Court of Canada was dismissed.)

For the full text of the decisions, see:

Stajduhar v. Wolfe, 2017 

Kerzner Estate, 2018 

Branislava Stajduhar, et al. v. Arlene Wolfe, executrix of the Estate of Jeffrey Kerzner, 2019 

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

 

 

Adultery and Affairs: Understanding the Basis for Divorce in Ontario

Adultery and Affairs: Understanding the Basis for Divorce in Ontario

Adultery and Affairs

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

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This can be proven in three ways:

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

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

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

Learn more:

Can I divorce my spouse if they have committed adultery?

Top 5 Questions about Adultery and Divorce in Ontario

Top 5 Points about Adultery That You Probably Did not Know

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

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

Learn more:

Can You Sue a Cheater for Damages?

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

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

 Impact of Adultery on Custody and Access

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

Learn more:

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

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

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

Impact of Adultery on Spousal Support

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

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

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

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

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

Learn more:

Can a “Misbehaving” Spouse Lose Out on Support?

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

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

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

Top 5 Questions about Adultery and Divorce in Ontario

Top 5 Questions about Adultery and Divorce in Ontario

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

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

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

Adultery and Affairs: Understanding the Basis for Divorce in Ontario

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

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

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

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

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

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

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

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

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

In a Failed Romance, Can You Sue for Negligence?

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

Were Negotiations Contingent on the Husband Ending His Affair?

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

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

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

 

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

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

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

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

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

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

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

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

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

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

5) What about cheating over the Internet?

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

Thinking of Doing Some Cyper-Sleuthing? Think Again

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

For the full-text of the decisions, see:

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

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

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

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

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

 

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

 

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

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

Read more

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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