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Posts from the ‘Ontario Divorce’ Category

Gambling, Drinking and Affairs – How do Ontario Divorce Courts Treat Spouses for their Misdeeds?

Gambling, Drinking and Affairs – How do Ontario Divorce Courts Treat Spouses for their Misdeeds?

A case called Malandra v. Malandra, where the court found that – for the purposes of deciding whether their Net Family Property (NFP) should be unequally divided – the husband should not be held solely accountable for certain bad business investments.

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This question of whether the NFP should be divided unequally comes up often: among other things courts must consider whether one of the spouses behaved in a manner that makes an even split unfair. Here are some of the categories of spousal misdeed that can come under the court’s scrutiny:

Learn more:

Property Division 101: Introduction to Sharing Family Property in Ontario Divorce

“Property” or “Income”? Appeal Court Rules on Structured Settlement Annuities

Is Husband’s Payment of 230 Gold Coins Under Islamic Marriage Contract Excluded from Wife’s Property?

  1. Reckless Investing

In a case called Lamantia v. Solarino, 2010 ONSC 2927, the question was whether the husband should be held accountable for deceit and various financial misconduct designed to hide his reckless investments in the stock market. He had forged the wife’s signature, and had borrowed from credit cards for which she became liable without her knowledge. He also took active steps to keep the wife from learning the true state of their financial affairs; for example, he made sure their bank statements were sent to another address. Furthermore, he continued to play the stock market even though the wife had asked him to stop. Those bad investments led to significant capital losses for the couple.

In finding that the NPF should not be equally divided, the court found that the husband had engaged in a pattern of deceit and engaged in conduct that made it unconscionable for the NFP to be divided equally.

Learn more:

Should Support-Paying Ex-Husband Be Saddled with Ex-Wife’s Financial Irresponsibility?

When Can You Vary a “Final” Spousal Support Order on an Interim Basis?

 My Spouse Has Bad Credit – What’s My Exposure?

  1. Spending to Feed an Addiction

In a second case, Dillon v. Dillon, 2010 ONSC 5858, the husband was a severe alcoholic, who incurred debts to feed his alcohol addictions. He lost many jobs over the years, and took pains to hide the dire family financial circumstances from the wife, who was completely unaware.

Given that their financial circumstances were spurred by the husband’s need to incur debt to feed his addiction, the court found this was a situation completely out of the wife’s control. Because of his reckless behaviour, she had effectively contributed significantly more than the husband toward amassing their family assets which formed the NFP – for example a cottage worth $260,000, and RRSPs funds amounting to $150,000. She had also paid over $50,000 towards the husband’s debts in order to keep things afloat for the benefit of their children.

By concealing the extent and timing of his “financial perdition” (as the court called it), the husband deprived the wife of an opportunity to prevent his destructive behaviour, or to prepare herself for retirement. The court found that the husband had “taken advantage of the [wife’s] selfless act of placing herself in a position of vulnerability in the best interests of her children.” An unequal division of NFP was ordered.

Learn more:

82 Year-Old Gambling Husband Loses Almost Everything – Should the Wife Get What’s Left?

Leaving lost wages? Court may order an unequal division property.

Should Alcoholic, Unemployed Father Be Forgiven $40,000 in Support Arrears?

  1. Spending Money on an Affair Partner

Finally, in a case called Hutchings v. Hutchings (2001), 2001 CanLII 28130 (ON SC), 20 R.F.L. (5th) 83 (Ont. S.C.J.), the husband was engaged in an extra-marital affair, and used family money in to order to travel with his mistress to Europe and Quebec. The wife was suspicious, and accused the husband of spending money on not just this but other affairs as well; however she was never able to prove the allegations. In this case, the court also ordered that the husband

had engaged in reckless and intentional depletion of the NFP and that there should be an unequal division.

Learn more:

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

Can a “Misbehaving“ Spouse Lose Out on Support?

If Husband Was Unfaithful, Should Wife Get Bigger Share of Equalization?

 

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

Family Law Now | Episode 4: Top 10 Things You Should Know About a Financial Professional



On this episode, Russell Alexander is joined by Carrie Heinzl to share insight into understanding financial documents, developing creative solutions, and compromising with family members - all while going through a divorce.

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Dad’s Poverty Claim Foiled by Instagram Pics

fuji camera lens vintage

Dad’s Poverty Claim Foiled by Instagram Pics

The father had been ordered to pay child support in 2009, but never did. Over the course of the following decade, the child support arrears had accumulated to the point where he owed the mother more than $145,000 in respect of their two children.

It was only in 2018 that the matter came back before the courts, when the father asked the court to rule that he had met the tests for reducing the arrears, and for eliminating the going-forward support obligations. By law, this included the court looking at whether there had been a change of circumstances that occurred since the original child support order was made.

The father claimed that he’d had to move out of province to look for work in 2010, and that his income had dropped significantly from the almost $73,000 on which his child support levels had been calculated. In fact, he said he’d earned just over $11,000 in that year, and ended up living on the streets and panhandling for money. He said he also became an alcoholic, and sobered up only in 2012 when he met his former fiancée. However, he claimed that he and the fiancée were no longer in a relationship.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox, Sign up here or listen to our Podcast Family Law Now.]

The court relied on Instagram to both prove – and then disprove – various parts of the father’s story.
First, it accepted the claim that the father met his fiancée in 2012, because Instagram photos were filed with the court showing them together. But other Instagram photos proved to the court that the father was lying when he said the relationship had since ended, and that he was currently living alone in poverty in a basement apartment. The court said:

[The father] says that he is separated from [his fiancée], and that they are co-parenting their child, Nina, who lives with [the fiancée]. [The father] claims to live in relative poverty in a basement apartment costing him $400 per month. …
However, the Instagram photographs filed by [the mother] demonstrates a completely different lifestyle. They disclose a number of trips to Columbia, the most recent of which may have been as late as 2019, as well as trips to Portugal and to France. There are numerous smiling images of [the father and his fiancée] enjoying visits to exotic locations. There was a post from [the fiancée’s] mother which congratulates [the father] for acquiring a residence in Columbia. [The father] flew his daughter, Vanessa, to Columbia for a holiday in 2017. …
[The father] claims … to have paid these trips through points earned by buying gas for company vehicles which he drove when he was working. Outside of the fact that he needed about 300,000 points to go on the trips that [the mother] was able to find out about, that statement does not ring true. [The father] must be driving a lot to earn points to buy flights to Portugal for himself and his daughter, Nina (60,000 points). Yet he claims to effectively be working part-time because of his own health issues, which would mean that he would not be driving very much at all …

This evidence contradicted the father’s claims that he was earning $16 per hour and had an annual income of $17,000 per year; his stated income and lifestyle were simply at odds. The court surmised that it was more likely that he was being paid under-the-table by the fiancée, who owned her own business. When giving evidence they were both vague about the company he worked for and the details of his alleged employment.

Wednesday’s Video Clip: 10 Tips About Collaborative Practice Agreements

video thumbnail of lawyer talking with his hands in boardroom

Wednesday’s Video Clip: 10 Tips About Collaborative Practice Agreements 

1. How does collaborative practice work? 5-Step Roadmap:

STEP ONE: Establish a Foundation

STEP TWO: Gather and Exchange Information

STEP THREE: Identify Choices and Options

STEP FOUR: Evaluate the Consequence

STEP FIVE: Come to a Decision and Implement an Agreement

infographic of the collaborative process as a roadmap

2. The process is voluntary as set out in the cp agreement. Parties are expected to engage in the spirit of compromise.

3. We focus on goals and interests.That is specifically set out in the collaborative practice agreement.

4. Both lawyers and their clients agree not to take advantage of each other’s mistakes. So if a mistake is made the lawyer is expected to identify it to the other party.

5. Neither lawyer will go to court should the process fail. If the process fails, the parties must retain new lawyers to take the matter to court.

6. The lawyers still function and give legal advice. They have the responsibility to diligently represent their clients.

7. Lawyers may engage other professionals. For example, we may bring in a Neutral Family Professional or Neutral Financial Professional to assist and join the Collaborative Team.

infographic to show the full collaborative family law team members

8. Both parties are expected to make full and timely disclosure by providing all information both parties need to make an informed decision.

9. All communication within the collaborative process is considered confidential. The expectation is that information gathered through cp isn’t going to be used later in a court setting.

10. If an agreement is put in place, signed by parties and their lawyers, that agreement will be enforceable and can be later used in court if necessary. You are expected to live by the agreements that you sign in the collaborative process.


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.  For more information, visit us at RussellAlexander.com

Dad Wrests Custody from Mom After She Alienates the Kids from Him

Dad Wrests Custody from Mom After She Alienates the Kids from Him

The parents married in 2007, and had two daughters. In 2016 they separated very acrimoniously, and the court ordered the children to live primarily with the mother pending a later determination of their fuller issues. The father as given generous access on a set schedule.

At that later hearing, the mother asked for joint custody but with the added stipulation that the children would live with their father only on a limited basis, pursuant to a set schedule. In a somewhat unusual move, the father asked the court to change the status quo so that he had sole custody, with an equal timesharing agreement during various set days.

According to the father, the basis for this request was that the mother had used the time since their separation to intentionally alienate the children from him, and to relegate him to a small role in their lives and upbringing.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox, Sign up here or listen to our Podcast Family Law Now.]

The court heard that even during the marriage the father had tried to be actively involved with the children, but that the mother had made all the decisions about their care. In the court’s words, she “attempted to dominate all aspects of the children’s lives and attempted to reduce the [father] to a spectator regarding his own daughters”. This changed only when it suited the mother’s needs, and in the father’s view it only got worse after they split up.

For instance, he claimed that since separation she blocked him from having overnight access, even though he lived with his parents in a five-bedroom home that the family had occupied during the marriage. She suddenly and unilaterally terminated his right to pick up the children from school. She refused to allow him summer access, forced him to go to court three times over that issue – and then did not even show up for one of the court hearings.

The father also accused the mother of thwarting the children’s everyday interactions with him. Since separation, he still encouraged the children to call their mother during every one of his access weekends; conversely, he had received only two calls in the entire time they were with her. The children were also encouraged to keep secrets from the father, and were coached not to eat meals with him on those limited days during the week when he had access. The mother also did not inform the father of any medical, dental or counselling appointments, even though she had been ordered by the court to do so. Finally – and tellingly in the court’s view – she also insisted that the father’s weekend access be interrupted so that she could take the eldest child to piano lessons on Saturday mornings, and to her church on Sunday mornings.

The court found this collectively indicative of the mother’s “selfishness and lack of appreciation of the role that the [father] plays in his own daughters’ lives.”
The court added that both parents clearly loved the children, and both had the requisite parenting skills. But while the father’s overall conduct was geared towards the children’s best interests, the mother’s conduct was not. Joint custody was not appropriate, since the mother had not been willing to cooperate and make joint decisions. As the court explained:

The [mother] does not value and recognize the [father’s] crucial role in the lives of the two children. The [mother] is self-centred and only considers her best interests and not those of her children. Rather than embrace the [father’s] involvement in the children’s lives, the [mother] has attempted to minimize and restrict his involvement in major decisions affecting the girls and in a parenting scheme that is in the girl’s best interests.

The court accordingly ordered that it would be in the children’s best interests that there be shared physical access to the children, but that the father should have sole custody. Although the father was required to consult with the mother prior to making any final decisions, in the event of a dispute, he was granted the right to make the final decision. Otherwise, the children would reside equally with both parents on a stipulated, strict schedule.

For the full text of the decision, see:
Pryce v. Pryce, 2019 ONSC 3558 

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

Joint Custody? Parallel Custody? What’s the Difference? And When Can They Work?

Joint Custody? Parallel Custody? What’s the Difference? And When Can They Work?

The concepts of “joint custody” and “parallel custody” sound similar – and can feature nuances that can be confusing even to Family Lawyers and practitioners, let alone to the separated and divorced parents who are trying to navigate the effective care and custody of the children they have together.

The recent decision in Lall-Persaud v. Persaud afforded the Ontario court a chance to clearly articulate the basic elements of these two child custody formats.  This is the first of our two-part Blog on this case, and it covers the court’s stated thoughts on the “joint custody” model as one of the available paradigms.

The background facts were these:  The couple – Vanessa and Devendra — first met in 2004.  When they learned in 2014 that Vanessa was pregnant, they got legally married in a Hindu wedding ceremony performed at the home of Devendra’s parents.  They began living together in the matrimonial home – which was also owned by Devendra’s parents – only about a week after the child was born, due to renovations being made.

The court summed up the problem that quickly developed between the newlywed parents:

The parties had great difficulties adjusting to their new life. Both parties accused each other of not being a good partner.

Vanessa objected to her in-laws’ over-involvement in their lives.  She complained that Devendra did not treat her in a loving manner, was bullying, disrespectful and both physically and emotionally abusive.  She said he was not doing enough around the house, and was spending too much time working as a Disc Jockey.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox, Sign up here or listen to our Podcast Family Law Now.]

Conversely, Devendra felt underappreciated by his new wife, and felt she as not doing enough around the house while home with their child.  He claimed that far from being verbally or physically abusive, he said she was the one who liked to start arguments and be aggressive towards him.

This culminated in a fight just in late 2015, where the police were called but no charges were laid.  Vanessa moved out with their child to her parents’, for what she said was a few days;  however she never returned with the child to live in the matrimonial home with Devendra.

Since separation, Vanessa had been the primary caregiver of their child, but Devendra was actively involved.  The parents asked the court to determine the issue of custody, and what specific form it should take.

The court began by reflecting on the concept of “joint custody”.  Since it requires the parents to make joint decisions regarding their child, it is “an exceptional remedy that would be granted in circumstances where the parties demonstrated cooperation and consent” – including good communication. The court summarized some of the prevailing considerations:

For example, is there a history of day-to-day decisions made between the parties, or are there concerns that will one party will make unilateral decisions or involve the child unnecessarily in the disputes between the parties? There must be a measure of communication and cooperation for a joint custody order to work, although a standard of perfection is not required.

In considering whether joint custody is appropriate, it is not enough to hope that communication will improve once the litigation is completed. A party may also not act unreasonably by impeding access and marginalizing the other parent, only to then claim sole custody on the basis of lack of cooperation and communication.

In the case of Vanessa and Devendra, both parents seemed to accept that this would never work for them, since neither of them were asking the court for a straightforward joint custody order.  The court agreed that a custody model requiring them to decide parenting issues together would be simply unworkable in light of their existing level of conflict.

Instead, the court closely considered Devendra’s request, which was for joint custody with a “parallel-parenting” regime — where the parents would try to make decisions together, but where each of them has final decision-making in connection with specific issues.

More on that in next week’s Blog, when we will revisit the Vanessa and Devendra’s case while highlighting the court’s rules on when parallel parenting should and should not be ordered.

For the full text of the decision, see:

Lall-Persaud v. Persaud, 2019 ONSC 3587

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

Domestic Contracts 101

Domestic Contracts 101

The term “domestic contract” is one used in the Ontario Family Law Act (FLA) to cover a wide variety of agreements between partners, parents, and spouses.

What many people may not recognize is that domestic contracts are subject to certain rules around how they are made, what they can apply to, and how they can be overridden, changed or terminated.

Couples usually find this out the hard way, after trying to do their own negotiating and drafting because they want to avoid having to pay a lawyer to do it.  Unfortunately, these well-intentioned Do-It-Yourself attempts often go wrong, and end up creating legal problems which cost time and money to resolve.

Here is a brief primer on the topic of domestic contracts under Ontario law.

  • A “domestic contract” is a defined concept. Under the FLA, it means any of the following:
    • a marriage contract,
    • separation agreement,
    • cohabitation agreement,
    • paternity agreement or
    • family arbitration agreement.
  • Each of these sub-types is subject to certain legislated rules. For example, a “cohabitation agreement” is defined by the FLA to be an agreement entered into by “two persons who are cohabiting or intend to cohabit and who are not married to each other.”  The agreement can cover their respective rights and obligations during cohabitation or after they stop doing so, and can include topics such as:
    • ownership in or division of property,
    • support obligations,
    • the right to direct the education and moral training of their children, but not the right to custody of or access to their children, and
    • any other matter in the settlement of their affairs.

Plus, if two people have a cohabitation agreement and they end up getting married, it gets converted into a marriage contract.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox, Sign up here or listen to our Podcast Family Law Now.]

Each of the other categories of domestic contract (listed above) is also subject to detailed rules.

  • There are prescribed rules around how they are made and enforced. Specifically:
    • A domestic contract has to be in writing, signed by the parties, and witnessed.
    • A domestic contract that deals with a matter that is also dealt with in the FLA prevails over that legislation, unless the FLA provides otherwise.
    • A minor (i.e. someone under the age of 18) can enter into a domestic contract, subject to the court’s approval either beforehand, or after it is made.
    • A domestic contract can be filed with the court by one of the parties to it. Once this is done, it can be enforced, varied, or recalculated as it relates to financial support or maintenance of the adult partners.
  • Provisions can be set aside or overridden. No matter what the couple may intend, the court has certain power to set aside the provisions of their domestic contract in prescribed circumstances. For example:
    • A court can set aside a domestic contract if one of the parties failed to disclose significant assets, debts or liabilities that existed when the contract was made, then the court can set the contract aside.
    • A provision in a domestic contract between parents that relates to a child’s custody/access, education, or moral training can be disregarded by a court if doing so is in the best interests of the child, in the court’s opinion.
    • Likewise, a provision in a domestic contract between parents that relates to a child’s support can be disregarded or overridden if it is unreasonable having regard to the Child Support Guidelines.

With these essential points around domestic contracts in place, in an upcoming Blog we will take a closer look at some interesting cases in which these provisions were examined or clarified by the courts.

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

Family Law Now | Episode 3: OCL Office of the Children’s Lawyer

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On this episode, hosted by Russell Alexander with special guest Jarret Johnston, a children's lawyer explains their role, lays out the process and clarifies common misconceptions. Tune in to Family Law Now to learn more.

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