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Posts from the ‘Ontario Custody’ Category

On Income Tax, Support Arrears, and Retroactive Support

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On Income Tax, Support Arrears, and Retroactive Support

Income tax time will be upon us soon enough.  If you are receiving spousal support from your former spouse, you may wonder how those support payments should be treated when it comes time to file your income tax return with the Canada Revenue Agency.

The answer is straightforward:  If you are receiving spousal support from your former spouse or common-law partner, under a court order or written agreement that specifies the amount, frequency and duration of the payments, then those amounts are fully taxable in your hands.  In other words, all those amounts must be reported as “income” on your tax return, and will be taxed accordingly. (This is unlike the situation with child support, which from the recipient’s vantage point is generally considered non-taxable).

Normally, that obligation to declare your spousal support as income on your tax return triggers a corresponding entitlement by your former spouse or partner to claim an equivalent deduction on his or her tax return for those same payments, with some exceptions.

So the short answer, is that spousal support is considered “income.”  But what if the payments you receive now cover support payments that your former spouse should have made in the past?

A pair of recent decisions tackled a narrow – but important – issue relating to how: 1) retroactive support, and 2) support arrears, are to be handled for personal income tax purposes.

In a case from last year called Gonsalves v. Scrymgeour, the court reviewed the law on the tax treatment of retroactive spousal support awards (being those where the support paying spouse is newly-ordered to pay an amount that covers a past period of time during which the other spouse was eligible to receive it). The court confirmed that an award of retroactive spousal support should be reduced, to take into account the benefit of the income tax deduction that the paying spouse would have been able to claim, using the mid-point of the spouse’s respective marginal tax rates.

The more recent decision in Negin v. Fryers addresses support arrears (which are unlike retroactive support because they consist of unpaid amounts that were due under an order made previously).  There, the separated parents had agreed in 2004 that the father would pay child support to the mother in line with Guidelines amounts, together with a set amount of spousal support.   Apparently for some of the years since then, the father overpaid child support by over $52,000, and underpaid spousal support by more than $155,000.  After offsetting these amounts, the mother claimed the father owed just under $103,000 in arrears.

The father claimed – unsuccessfully – that the lump-sum gross amount he now owed the mother in arrears should be “netted down” to account for the different tax treatment of lump sum spousal support, as compared to an order for periodic support.  The wife pointed out – and the court agreed – that it was the policy of the Canada Revenue Agency to allow non-retroactive lump-sum spousal support payments to be deducted by father in the role of the support payor.  The court directed the parents to calculate the amount of child and spousal support owed or overpaid accordingly (as the case may be), in keeping with its specific directions and ruling.

Nobody loves tax time (except perhaps the Income Tax Preparers and Accountants!)  If you have questions about the spousal support you receive, feel free to give our office a call.

For the full text of the decisions, see:

Negin v. Fryers, 2018

Gonsalves v. Scrymgeour, 2017

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

 

 

GM Oshawa Assembly Plant Closing & Divorce

The Ghosts of GM: Past, Present and Future

On November 26, 2018, the General Motors Company (GM) announced that it will cease allocating new product to its Oshawa assembly plant beyond the end of 2019. This came as a shock to the 2,500 employees who work at the Oshawa plant and the many more who depend on their income. While the jury is still out on whether GM will be laying off or re-training its 2,500 employees, one thing is certain—a large cohort of GM’s employees stand to lose their livelihood.

Whether laid off or re-trained, employees who have a potential, current or settled family law matter will need to govern themselves wisely to weather the impact that closure will have on their day-to-day lives. Accordingly, this post explores the likely, and, not so likely, family law implications of GM’s closure of its once thriving Oshawa assembly plant.

The Ghost of GM Past: Settled Family Law Matters

If your family law matter was previously settled by way of a Separation Agreement or Final Order, the loss of employment income may trigger a review of child support or spousal support, or parenting.

Support obligations

It is likely that the loss of employment income will mean that you cannot afford to pay child support and/or spousal support as set out in a Separation Agreement or Final Order. In the case of a Separation Agreement, you may be able to rely on a built-in review clause to revisit the issue of support. Most Separation Agreements contain a dispute resolution clause which may be the first place to start in this endeavor. In the case of a Final Order, you will likely want to bring a Motion to Change a Final Order if you and your ex-spouse cannot agree on the appropriate adjustment out of court. A qualified lawyer can assist with making this process as seamless as possible.

Parenting

It is not likely that your loss of income will impact settled parenting arrangements. However, you may find yourself needing to reduce your parenting time with the children in order to focus on finding a new job. In this scenario, you may likely need to rely on the dispute resolution clause in your Separation Agreement or bring a Motion to Change a Final Order altering an access schedule in order to achieve the desired relief.

The Ghost of GM Present: Current Family Law Matters

If you are currently going through a legal separation from your spouse, the loss of employment income may affect a number of aspects in your separation, including but not limited to, support, assets and liabilities and alternative career planning.

Child support and spousal support

You may have credible grounds by which to vary a temporary Order for support in your legal proceeding. As an Order for support would have been based on your GM income at the time, the Order may be varied by the new circumstances. You may seek such relief at a pre-trial conference or by bringing a motion. It is not likely, however, that your loss of income resulting from being laid off will extinguish your entire obligation to pay support. Rather, you may still be required to pay support on the basis of employment insurance income or imputed income. However, the extent of any such continuing obligation depends on the particular facts of your case.

Assets and liabilities

The loss of employment income may result in a budgetary deficit, impacting your ability to keep the matrimonial home. If you are no longer able to maintain your share of the mortgage and bills associated with the matrimonial home, it may have to be listed for sale—which may be the most poignant of all of your post-closure concerns. Worry not. There may be options available to you for preventing this outcome such as, a buy-out, borrowing or disposition of investments, RRSPs, RRIFs or your GM pension. However, the viability of these options to save the matrimonial home will need to be assessed against the surrounding issues in your proceeding such as support, equalization and other issues relevant to your case.

Alternative career planning

You may wish to delay your re-entry into the workforce to obtain credentials in a more stable industry. While this will yield economic benefits in the long run, your current financial obligations of support and solvency will be deciding factors. Delayed income generation caused by alternative career training may likely be manageable provided that the financial obligations of your ongoing separation are minimal. However, your freedom and ability to pursue such an undertaking may require a corresponding compromise and will depend on the unique facts of your case.

The Ghost of GM Future: Potential Family Law Matters

If you have been planning to separate from your spouse, the loss of employment income can have significant family law implications on a number of obligations arising in separation, including but not limited to, support, parenting and family property.

Child support and spousal support

It is not likely that being laid off will defer support obligations. You may be obligated to pay support if you receive employment insurance income sufficient enough to meet legislative minimums. If you do not qualify for employment insurance, your spouse may still seek support by imputing an income on you commensurate with your work experience, whereby you will be required to pay support. In either scenario, the obligation to pay child support and spousal support may survive the loss of income depending on the facts of your particular situation.

Parenting

It is likely that being laid off will mean expanded parenting time. While increased parenting time may yield social benefits, it may also impinge on your economic rehabilitation. Your spouse may expect you to dedicate your new found time to caring for young children who are not in school. These, and other significant changes to parenting time after initiating your separation, may likely hinder your re-entry into the workforce. A properly drafted parenting agreement can help by moderating unrealistic expectations.

Family property

You will have a legal duty upon separating from your spouse to avoid the reckless depletion of family property. While you may wish to list personal or real property for sale to help make ends meet, it is not likely that you will be able to freely dispose of family property after your date of separation without your spouse’s prior consent or proper accounting. You will have to be mindful of how you manage family property as mismanagement may prejudice the equalization of net family property and may result in a Court order.

Bottom line

The closure of GM’s Oshawa assembly plant in 2019 will disrupt the lives of many families, the impact of which might be felt most by those dealing with a potential, current or settled family law matters. Contacting a lawyer for legal advice tailored to the particular facts of your case is a proven way to mitigate the effects of an imminent disruption to income. While it may seem impossible to afford a lawyer at this time, there may be options available to finance the cost of much-needed legal representation.

At Russell Alexander Collaborative 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.

Did Wife’s Lawyer Know of Husband’s Asset?  And Can Court Assume Wife Knew, Too?

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Did Wife’s Lawyer Know of Husband’s Asset?  And Can Court Assume Wife Knew, Too?

In a family law decision called Anderson v. McWatt, the Ontario Court of Appeal addressed a narrow evidentiary point:  If one party is truly unaware of a certain fact, but his or her lawyer may have known about it, can a court impute that knowledge to the party?

The background facts involved a former couple who were interior designers with a successful business.  They started living together in 1980, married in 1989, and separated in 2000, after which point they became embroiled in a full 15 years of high-conflict litigation.

Part of that litigation involved apportioning the spouses’ respective interests in a commercial property in Toronto.  Just prior to their 1989 marriage the husband had bought the property, and led the wife to believe was owned by a development corporation that had been set up.  In reality, he put title in his own name only – a fact he did not reveal in his sworn affidavits and financial statements for over a decade after their 2000 separation.  The wife only learned of the true state of affairs in 2012.

The date of her awareness as to title was key:  One of the issues was the point at which her claim to the commercial property was barred under the two-year limitation period. Indeed, the wife amended her pleadings about two years after making the discovery, to add claim based in equity (i.e. claims for unjust enrichment and constructive trust);  however, if it could be shown she knew or should have known earlier, then her legal claim would be barred.

At trial, the judge confirmed that the wife herself did not actually know that the husband held title to the property until 2012, but ruled that she should have known in 2001.  This is because (as the judge concluded) her own lawyer seemed to know about it, based on some comments he made while questioning the husband in 2001.  The upshot of the lawyer’s comments was that the wife “may very well have a claim against the property” and that “We will make our claim as and when we feel we have sufficient facts to base it on.”

On later appeal, the Court of Appeal rejected the trial judge’s conclusion on this point.   The lawyer’s statement did not prove that he – or by extension, the wife – knew the husband was the actual owner of the commercial property.    At the time of that questioning in 2001 – and for the next decade – the husband had been hiding the facts of his ownership in his sworn court documents.  The wife was allowed to rely on this false information, and her own lawyer’s indication that she “may” have a claim was not an admission sufficient to trigger the limitation period. In fact, the Court found that the wife did “all she reasonably could to determine the truth that the [husband] was concealing.”

For the full text of the decision, see:

Anderson v. McWatt, 2016

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

 

Did Wife Need to Stay Home for 20 Years to Raise Kids?

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Did Wife Need to Stay Home for 20 Years to Raise Kids?

In a 2018 case called Zomparelli v. Conforti, the divorcing couple had gone to court 15 years earlier, in 2003, to address spousal support.  At that time, a judge had ordered the husband to pay the wife monthly support, reviewable after a few years, and noted the wife was a “capable person and could succeed at most forms of employment she seeks if she were to set her mind to it.”

After almost 15 years of paying, the husband returned to court to have his spousal support obligations discontinued.

The wife countered with various arguments to have it extended further.  Among them was the claim that, career-wise, she suffered economic disadvantage during the marriage because she could never work full-time because of her child care responsibilities to their two children. The court explained her argument:

Spousal Support Arising from Post-Separation Child Care Responsibilities

Notwithstanding [the prior court’s] findings about her competency and ability to obtain a job, Ms. Conforti has not obtained full-time employment. She has worked part time on occasion, but insists that her time and effort was largely taken up by caring for her children. When cross examining Mr. Zomparelli, she suggested that she had to care for children after the trial up until they turned age 23 because of Mr. Zomparelli’s failure to assist her with their upbringing. She said that because of her child care responsibilities, which only ended recently, she was unable to return the workforce. She says that she is at a disadvantage as a result, for which she should be compensated in spousal support.

The husband pointed out that when the couple first separated in 2003, the children were 14 and 12.  They were now in their 20s, so there was no impediment to the wife becoming self-sufficient and moving on with her career. The court described the husband’s position this way:

Mr. Zomparelli says that he should no longer be made to pay spousal support. He says that there is no reason why Ms. Conforti should not be self-sufficient at this point in time, and points out that he has paid spousal support longer he was married to the [wife]. He notes that the children are no longer dependent on their parents, and says that Ms. Conforti has made no reasonable effort to become self-sufficient since [the judge’s earlier] order of April 17, 2003. He says that it is time that spousal support come to an end.

The court agreed.  It said that the wife had failed to explain why her child care responsibilities after 2003 prevented her from becoming self-sufficient.  It echoed the earlier judge’s conclusion that she had put “roadblocks in the way of her self-sufficiency, insisting on caring for the children full time when they did not need this level of attention as they got older.”  The court elaborated:

These parties separated in 2000. By 2003, when the spousal support award was made of $1,300 per month, the children were old enough to allow Ms. Conforti to go out into the work force. She was not over 50 years of age at that point, but, as pointed out by [the previous judge], a perfectly capable 40-year-old woman. She continues to be capable … there is no impediment to Ms. Conforti working full time, and she is managing university well, achieving an “A” average. [The prior judge] allowed for support to allow Ms. Conforti to become self-sufficient and I have no evidence of any continuing disadvantage resulting from the marriage which would prevent her from doing so; any disadvantages to her may very well result from decisions made by Ms. Conforti herself since the trial.

I accept that Ms. Conforti has applied for full time work after separation, but other than saying that she was blacklisted (and I am uncertain what she meant by that and she did not state how she was blacklisted or who had blacklisted her), she did not explain why she could not obtain employment other than her age and time outside of the workforce. …

…  As well, it is unreasonable for Ms. Conforti to insist that she needed to care for the children full time, or that her care for teenaged children prevented her from exploring career opportunities or in obtaining full time employment of some sort. I do not find that, 17 years after the parties separated, that her inability to find work is related to her child caring role within the marriage which was, after all, of medium length only.

For the full text of the decision, see:

Zomparelli v. Conforti, 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

Ontario Court of Appeal Speaks Out on Need for Family Law Appeal Reform – Again

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Ontario Court of Appeal Speaks Out on Need for Family Law Appeal Reform – Again

It’s not often that the Ontario Court of Appeal steps outside of its decision-making role in order to comment on deficiencies in the Family Law justice system.  But that is exactly what it has done – on more than one recent occasion – to call for much-needed reform of the Family Law appeal process.

The Court’s criticisms in Mattina v. Mattina were embedded in a costs ruling following a father’s series of unsuccessful appeal in a custody and access matter, including one that he brought in the wrong court.

Those proceedings had a convoluted history: They started with an unfavourable Family Court ruling denying the father sole custody of his three children (aged 10, 15 and 17), and ordering him to pay the mother’s legal costs to the tune of almost $81,000.

He tried to appeal that ruling to the Divisional Court, which concluded that it did not have the jurisdiction to hear it.  Instead, it transferred the matter to the Court of Appeal for an expedited hearing, and for a decision on how to apportion liability for the costs wasted on preparing for and attending that ill-conceived Divisional Court hearing in the first place.

Thus the matter came before the Court of Appeal, where the father argued that he and the mother should each bear their own costs. The court explained his position:

The father submits that there should be no costs related to the parties’ preparation and attendance before the Divisional Court. The appeal routes in custody and access cases are not straightforward. He calls the costs incurred as they related to the Divisional Court appeal “an institutional loss” that should not attract cost consequences.

Further, the mother should have raised jurisdictional concerns sooner. It would be unfair for the father to be penalized by a costs award because the motion judge at the Divisional Court made an error in assuming jurisdiction and the mother failed to take steps to remedy that error.

The mother disagreed, claiming that the father should never appealed in the first place – and if he did, he should have known he would be on the hook for the mother’s costs once he was (predictably) unsuccessful.  As the court elaborated:

The mother contends that it was unreasonable for the father to appeal, as the appeal had no merit. Second, the mother says that even if the appeal had merit, the father appealed to the wrong court. Instead of conceding the point, once the error was pointed out to him, the father held fast to his position, wasting time and money.

Against this background, the Court of Appeal lamented the confusing pathway to appeals in Family Law cases, and its often-repeated call for reforms of the process. It wrote:

(2)         The costs before the Divisional Court

  1. Confusion surrounding family appeal routes

This court has repeatedly commented on the fact that this province’s family law appeal routes are confusing for the public, counsel, and institutional litigants: Christodoulou v. ChristodoulouMarchildon v. BeitzPriest v. Reilly. In particular, this court in Christodoulou noted the cost implications of this confusion at para. 35:

The inconsistency in current appeal routes can be confusing for the public, for counsel and for institutional litigants. It can also create an inequality in access to justice between litigants whose disputes at first instance are heard in provincial courts versus superior courts – the former must incur the costs and delays of two appeals in order to reach the Court of Appeal while the latter must incur the cost and delay of only one.

This case illustrates once again the unnecessary costs parties bear as a result of this confusion. We therefore echo this court’s plea in Priest v. Reilly (at para. 6): “It has been over eight years since MacPherson J.A. in Christodoulou specifically invited legislative reform in this area. This is a serious access to justice problem that must be remedied.”

Given this legislative deficiency, it would be unjust in our view for the father to pay the mother’s costs associated with the appeal before the Divisional Court. The father’s behaviour throughout this case is in our view sufficiently addressed by the costs awards for the remainder of the proceedings.

In light of the convoluted appeal route, and the injustice suffered by the father because of it, the Court parsed the prior costs rulings that had been awarded against the father in favour of the mother.  It deducted almost $25,000 from the total, which it calculated as being those specifically associated with the unfruitful Divisional Court appeal.

For the full text of the Appeal decision on costs, see:

Mattina v. Mattina, 2018

For the lower court decision, see:

Mattina v. Mattina, 2017 

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

 

Did Husband Own $17 Million in Properties?  Or Only $80K Worth, as He Claimed?

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Did Husband Own $17 Million in Properties?  Or Only $80K Worth, as He Claimed?

In a recent case called Hussein v. El-Awny, the court assessed the credibility of a recalcitrant husband who’d steadfastly refused to comply with prior orders to pay support to his wife and three children, to the point where he would rather be thrown in jail than pay.

The court explained the disputed circumstances around the husband’s ability to pay support:

The husband was born in Egypt and is a naturalized Canadian citizen.  He works in Saudi Arabia and earns a substantial income.  Apart from his interest in the parties’ jointly-owned matrimonial home … the husband has no exigible assets of any value in Canada.

This posed a problem for the wife when it came time to enforcing a prior support order, which mandated the husband pay $4,000 per month plus certain living expenses, based on a court-estimated annual income of $250,000.  When he was more than $21,000 in arrears, the Family Responsibility Office obtained a further order requiring the husband post a security bond for between $250,000 and $500,000, and to surrender his Canadian passport and other travel documents issued by Egypt and Saudi Arabia.

The husband still paid nothing towards the monthly support or the arrears, and was arrested for non-payment.  After serving the required 90 days in jail, he then brought a motion asking the court to order his passport returned, claiming he could not afford to post up to $500,000 as a security bond.

The wife objected, stating that the husband’s alleged inability to either pay support or post security was simply untrue.  As the court explained:

The wife claims, and the husband disputes, that he owns properties in Egypt worth in excess of $17,000,000 CDN and that his net worth exceeds $28,000,000 CDN.  The husband has claimed that these properties are owned by the parties’ children or that his purchase of them is “in limbo”.

Aided by affidavit evidence from two of the couple’s three children (all of whom live with the mother), the father explained that he only owned one home – in Egypt – worth about CDN$70,000, and that he had paid a $20,000 deposit on an Egyptian apartment still under construction.

He explained that several other properties had been purchased as “gifts” to their children.  In one instance right after separation, the husband bought their 8-year old son a house costing CDN$110,000. It was now worth about CDN$220,000.  The husband claimed that similar “gifts” of Egyptian property were given to the other children, and that none of them were in the husband’s name.

Other real estate transactions, the husband claimed, were “in limbo” because of an alleged “legal dispute between the Government and the previous owners.”

The court articulated the mother’s response to these assertions:

The wife claimed, and the children denied, that they were being “manipulated” by their father because they were (as was she) financially dependent on him.  There is merit to her claim.  The information for many of the statements contained in the supporting affidavits of the oldest two children dealing with their parent’s financial relationship during their marriage and their father’s financial affairs could only have come from him and are, for the most part, argumentative and hearsay.  What is patently clear is that the children know very little about what their father has done, is doing, or what he has told third parties and the court in these proceedings about his net worth.  Or that they are complicit in his effort to mislead the court.

The court noted many inconsistencies between the husband’s financial statements – where he claimed to hold only four small properties collectively worth $82,000 – and a 2014 mortgage application, where he listed numerous opulent properties worth a combined total of over $17 million.

The court succinctly summed up its assessment of this apparent discrepancy:

I don’t believe the husband.  His evidence is riddled with inconsistencies.  Either he misrepresented to the lending institution his financial circumstances in 2014 or he has repeatedly lied to this court about his net worth.  The evidence is also clear that the husband has purchased, and probably owns, properties in Egypt some of which he has “gifted” to his children, one of whom (as already noted) was eight years old in 2008 and all of whom were living, and continue to live, with their mother in Canada pursuing their studies.

There is no credible explanation from the husband how in 2014 his net worth was $17,600,000 (at least) and two years later less than $200,000.

There is no credible evidence whatsoever that the husband is unable to post security as ordered.

The court continued:

The sole object of the husband’s motion is, in my view, the return of his passport and other travel documents after which I have no doubt that he will leave this jurisdiction never to return.  The wife’s support and equalization rights would be irreparably prejudiced in that event.  The husband is over five months in arrears of his support payments and, according to the wife, he has not been compliant with paragraph 5 of the support Order of with respect to payment of various housing and related expenses for the wife and children.

The husband’s motion is dismissed.

For the full text of the decision, see:

Hussein v. El-Awny, 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

How a Homemade Separation Agreement Sparked Several Trips to Court

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How a Homemade Separation Agreement Sparked Several Trips to Court

In this age of do-it-yourself separation agreements, here’s what’s become a rather common tale:  It’s of a couple who tried to draft their own agreement, but who ended up in court several times, to settle their disputes over what they meant versus what they wrote, and to resolve what the proper legal interpretation of their document really was.

The former spouses, who had been married almost 10 years, separated over the Christmas holidays in 2013 while living in Bermuda.  They drafted their own separation agreement shortly after.  Although they both spoke French as their first language, the wife drafted the agreement in English with input from the husband. Both were well-educated, and neither of them received independent legal advice at the time.

At that point and for several years after, the husband was earning in excess of US$1 million a year tax free, to the knowledge of the wife.   However, with the spouses’ concurrence the agreement treated the husband as if he earned about US$300,000 per year, and stated that child support would be calculated accordingly under Canadian law.  However, it was murky on how the Child Support Guidelines might factor in, and instead set a “minimum” yearly child support payment of $70,000, regardless.  For the first few years after separation the husband freely paid that amount of child support annually.

Although the agreement was intended to address all the post-separation issues between them, its interpretation had nonetheless become a source of continuing conflict between them over the years.  It all came to a head when the husband retired at age 40, which the couple had discussed and agreed to during their marriage.

Specifically, at that point the fundamental basis for the husband’s post-retirement child support obligations suddenly became unclear.  The wife claimed the agreement clearly stated two things:  1) that if the husband was still working, he had to pay child support based on the Guidelines amount, and – with the US exchange rate factored in – he now owed child support arrears of almost $1 million; and 2) that if he had ceased working, then he was to pay child support based on an imputed income of about US$300,000 annually.

There was also the issue of whether the husband’s annual income should have been grossed up over the years, to account for the fact that he earned his money in U.S. dollars, tax free.  The homemade separation agreement was also silent on this point.

The wife therefore applied to the court for some remedies, but even those were not clearly stated in her materials.  The court deduced that she might be asking to have the agreement enforced, or possibly was asking to have it set aside based on duress, lack of full financial disclosure by the husband, and unconscionability.   Either way, the husband countered that he was paying exactly what the agreement called for, which was $70,000 a year regardless of his actual income, and regardless of what the Guidelines called for.

In reviewing the materials, the court began by stating it was “quickly apparent” that the agreement had not been drafted by a lawyer, and that it contained some “unusual provisions.”  The court said:

This Agreement is far from clear. The [husband] was working at the time of its execution and, if the parties wanted to calculate child support based on this high income, they could have easily provided some projected calculations to demonstrate their understanding of the Guidelines. There is no text of the Guidelines and specifically no reference to section 4. There is no mention of a gross-up for taxes.

Nonetheless, in light of the agreement’s ambiguity the court tried to find evidence to shed light on what the couple may have intended when they drafted it.  But even this additional material, consisting primarily of affidavits from each of them, was contradictory.   The court then looked at the former spouses’ subsequent conduct, including an email they exchanged which was written in French.  The court noted that in that correspondence the wife was never asking for Guidelines-level support; rather, she asked merely for an adjustment based on “inflation” and requested to be paid what was “reasonable” in the circumstances.

In the end – and after rejecting the husband’s suggestion that the wife was “cherry picking” the parts of the contract that suited her – the court concluded that it simply could not presently interpret the provisions of this homemade separation agreement on the record before it.  This also meant it had to defer the decision on whether the husband owed nearly $1 million in arrears, as the wife claimed.

Instead, the court found it best to entertain an application to possibly set aside the agreement at a later date, should the wife care to bring one.  There were other issues between the parties that were being dealt with in other hearings, and it was best to resolve those first.

For the full text of the decision, see:

Beaulieu v. Beaudoin, 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

It’s Holiday Season:  What if the Parents are of Different Faiths?

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It’s Holiday Season:  What if the Parents are of Different Faiths?

Holidays are supposed to be special times involving family.  But if you are in the midst of separation or divorce, it can be challenging to navigate the festive season, especially if it requires shuttling children back and forth between homes in time to participate in beloved family traditions.

As a general rule, a court will safeguard a parent’s right to have a child participate in specific holidays – particularly if they are meaningful – unless the overall circumstances are likely to harm the child.  As the court in a case called Rosenberg v. Minster stated:

Religious holidays are the quintessential markers of faith. They are the gatherings, the foundations of familiar affinity – the milestones of a life lived in accordance with one’s faith. They maintain traditional practices while nurturing adaptive and evolving religious expressions. To exclude a parent from sharing religious holidays with his or her child, irrespective of the child’s age, is to tear away at the very fabric of a parent-child bond.

The bigger problem arises when separated spouses belong to different faiths.   A case from a few years ago called Seed v. Desai illustrates how this can play out in real-life.  The parents of two pre-teen daughters had had a high-conflict divorce several years prior, and neither of them had yet been awarded formal custody.

The court explained the nature of their dispute:

The parents have different religious faiths.  The mother is Catholic.  The father is Muslim.  The parents agreed to baptize the children in the Catholic faith.  They also agreed the children would attend Catholic schools.  Despite these agreements, disagreements have arisen. The father has asked the mother not to serve pork to the children.  She regards this as undue interference in her household.  She has fed them pork but says the girls refuse it now in any event.

Now, the father has the children join him when he is observing religious days by fasting.  He explains they want to share in his observance with him.  The mother describes this in an email to the father as him “withholding food and water” from the children.

In response to the father’s request for an order forcing the mother to comply with his specific dietary practice, the court examined the situation, keeping in mind the “best interests of the children” test that governs all disputes of this nature – even those involving the parents’ differing religious beliefs.

The court held that the father’s desire to engage in daytime religious fasting during Eid did not put children in danger, especially since he was planning to make it obligatory for the children participate if they did not want to.   He was free to engage in those practices while the children were in his care. Also, and while the children’s independent refusal to eat pork had made the matter essentially moot, the court added:

I find the [mother] could easily have respected the [father’s] wish that she not serve pork to the children, while still providing them a balanced diet.  I find her description of the children’s participation in his religious observance of fasting to be intentionally provocative.

In all the circumstances, the court declined to make an order one way or the other.

For the full text of the decision, see:

Seed v. Desai, 2014 

Rosenberg v. Minster, 2011 

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