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Posts from the ‘Ontario Spousal Support’ Category

Changes to Divorce Act Recommended

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Changes to Divorce Act Recommended

The Canadian Bar Association (CBA), which is the largest professional, nation-wide association for lawyers in Canada, has recently recommended updates to the federal Divorce Act. Put forward by the CBA’s Family Law Section, these suggested changes are aimed at reflecting new realities related to modern-day parenting.
The proposed changes relate to three topics:

• Relocation – Although the test for a court ordering a child to be relocated hinges on the “best interests” of that child, courts are given little guidance on how to apply that test in specific cases. The proposed legislative changes would improve clarity and consistency.

• Child Support in shared parenting situations – The suggested amendments call for the legislation to include a formula for determining child support in shared parenting situations. Currently, the proper approach for courts to apply is complex.

• Updating Divorce Act terminology – The CBA’s proposed changes would see both the Federal Child Support Guidelines and the Divorce Act get updated so that terms such as “custody”, “access” and “best interests of the child” are modernized and replaced with more progressive terms. In particular, the clarity and meaning of the latter term would benefit from incorporating specified factors such as the impact of the child’s cultural, linguistic or spiritual upbringing, as well as the question of whether there is domestic violence in his or her home life.
If for no other reason, from a sheer temporal standpoint this kind of “freshening up” of the Divorce Act is long overdue, since it’s provisions have not been significantly amended for 30 years.

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

If You are Divorced in a Foreign Country, Can a Canadian Court Make Orders Too?

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If You are Divorced in a Foreign Country, Can a Canadian Court Make Orders Too?

The facts in Cheng v. Liu are a little unusual, but the core question was this:

If a couple’s divorce is validly granted outside of Canada by a foreign court, does this preclude a Canadian court from later making any corollary orders – such as rulings on issues of support or custody – arising from that same divorce?

The husband, an engineer, was a Canadian citizen who lived in Canada.  The wife lived in China and had never been to Canada.  They got married in China in 2006 and had a daughter who lived with the wife in China her entire life.  They separated about a year after getting married, in around late 2007 or early 2008.

The wife then covered all the legal bases:  She applied in China for a divorce, and custody of their child.  She also applied in Canadian, under the federal Divorce Act, to ask for a divorce, as well as spousal support, child support, and custody.  Finally, also in Canada under the Ontario Family Law Act, she asked for equalization of net family property.

Meanwhile, the Chinese court granted the wife her divorce and awarded her sole custody of the child.  The wife’s other Ontario-based claims were still pending.

The husband, faced with all of these competing actions requiring his response, asked the Ontario court to suspend (or “stay”) the proceedings so that the entire matter could be determined in China.  This led to several rulings and some procedural wrangling, and ultimately a hearing before the Ontario Court of Appeal for its determination.

Against this complicated background the Ontario Court of Appeal had a simple question to consider:  In light of the Chinese divorce order, could a Canadian court make additional orders relating to child support, spousal support, and equalization of property?

The Court’s conclusion was mixed:  The divorce-related issues were closed for consideration, but the child support issues were still up for an Ontario Family court to rule on.

On the first point – and based on longstanding precedent that considered the provisions of the federal Divorce Act – the law states that once the foreign Chinese court had made a valid divorce order, this removes the authority of the Ontario court to hear and determine corollary matters.  So on the remaining divorce-related issues, the Ontario court had no authority.

However, the situation under the provincial Family Law Act was different:  the Ontario court could still rule on questions relating to child support, since the foreign court in China had not already done so in its divorce order.   The Family Law Act allowed child support claims to be made even after a divorce, and the foreign divorce order had no impact on that.  Indeed, the whole purpose for the Ontario legislation was to ensure that parents provide financial support for their dependent children.  Allowing the Ontario court to continuing to make orders under the Family Law Act even though the Divorce Act provisions had been trumped was actually a harmonious outcome to ensure child support would be covered.

For the full text of the decision, see:

Cheng v. Liu

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

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

Under the law governing Islamic marriage, a “Maher” (sometimes written as “Mahr”) is a written marriage contract.  In the recent Ontario Court of Appeal decision in Bakhshi v. Hosseinzadeh, the narrow legal question was whether, under the Ontario Family Law regime, the property transferred under a Maher is excluded from the definition of Net Family Property (NFP), and by extension excluded from the equalization calculation of the parties’ respective NFPs upon divorce.

When they married in Iran in 1995, the couple had entered into the Maher in keeping with their religious and cultural beliefs.  The Maher contained a clause that required the husband to pay the wife 230 gold coins promptly upon her request.  The spouses later immigrated to Canada.

When in 2013 the wife began divorce proceedings and various related court applications, the issue arose as to how the notional transfer from the husband of those 230 gold coins under the Maher was to be treated in law.  At the initial trial, the judge concluded that the Maher obligation was valid and that the value of the gold coins – about $80,000 – was to be excluded from the wife’s NFP total.

The Court of Appeal was asked to entertain the husband’s appeal.  It began by confirming the ruling of prior courts to the effect that despite being religion-based, marriage contracts such as a Maher can be enforceable, provided they satisfy the elements of a valid domestic contract under Canadian law.  Once deemed valid, they are interpreted like any other civil contract, by looking at their wording and the objective intentions of the parties at the time the agreement is made.

Next, the Court observed that definition of NFP found in the provincial Family Law Act includes all property owned by a spouse on the valuation date.   The Maher in this case contained no express agreement that the payment of 230 gold coins was to be excluded from the wife’s NFP, nor was there any basis to infer that the spouses intended at the time to exclude it.  To the contrary, it was executed in Iran and contained other terms that suggested the couple envisioned continued life in that country, and were not contemplating their potential mutual obligations under the Ontario legislation.

The Appeal Court concluded that the Maher payment was to be treated under the Family Law Act like any other payment obligation between the spouses, meaning that it was to be included in the overall calculations.  That outcome was in keeping with the rest of the legislative regime, which envisions that spouses own property separately during marriage, and does not allow for transactions between spouses to be excluded from NFP calculations.

The Court re-calculated the NFP by including the value of the Maher payment, while clarifying that the husband still needed to actually (i.e. physically) transfer the 230 gold coins to the wife’s possession.  Even though its value was to be included in the overall equalization calculation, the Maher payment itself was considered a demand obligation with a paper value, which meant the wife was entitled to pursue debt collection remedies if the husband refused to pay.

For the full text of the decision, see:

Bakhshi v. Hosseinzadeh

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

 

Should (Another) 20-Year-Old Cohabitation Agreement Be Upheld?

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Should (Another) 20-Year-Old Cohabitation Agreement Be Upheld?

A few weeks ago, I wrote about a case in which the court was asked whether a separation agreement signed by a couple 20 years earlier should be upheld.

Coincidentally, another recent Ontario Court of Appeal case involved a similar circumstance.

When the couple started living together 20 years ago – and at the husband’s insistence, since he’d had a prior relationship end acrimoniously – they signed a cohabitation agreement.  The husband took care of having it drafted, and he presented it to the wife for her signature.  He wanted the security of having the agreement in place before moving forward in the relationship and buying a home with her.

The wife did not have independent legal advice at the time, although she was given the opportunity to obtain it.  Under the terms of the agreement she signed, the wife agreed to give up all her claims to spousal support.

Still, when they separated 20 years later, she claimed for spousal support nonetheless.  The trial judge upheld the separation agreement, and dismissed her claim for support.  The wife brought an appeal.

In evaluating whether to allow that appeal, the court had to embark on a two-stage analysis, the first stage of which required it to:

1) look at the circumstances surrounding the negotiation and execution of the agreement, to determine whether there was any reason to discount it; and then

2) consider the substance of the agreement, to determine whether it was in substantial compliance with the general objectives of the Divorce Act at the time it was formed.

Then, in the second stage, the court had to consider – now 20 years later – whether the wife had established that the agreement no longer reflects the original intention of the parties, and whether the cohabitation agreement is still in substantial compliance with the legislated objectives of the modern-day Divorce Act.

Applying those standards here, the wife argued that the agreement was invalid, and that the trial judge failed to consider certain important facts when applying this two-stage test, namely:

  • That there was a power imbalance between her and the husband;
  • That she had not discussed spousal support with the husband;
  • That the husband’s financial disclosure was incomplete; and
  • That she did not have independent legal advice.

While conceding that she was not coerced, the wife argued that the agreement simply did not align with the overall objectives of the Divorce Act, whether now or back when it was signed.  This was particularly true since the couple went on to have an 18-year relationship, they had two children together for whom the wife bore the primary responsibility, and his income exceeded hers.

The Appeal Court considered the wife’s arguments.  After examining the objectives of the legislation, it rejected her spousal support request. There had been no error of law or misapprehension of fact by the trial judge, who carefully reviewed the relevant test and found:

  • The wife was aware of the husband’s desire to have a cohabitation agreement.
  • They had discussed the cohabitation agreement before the wife received it.
  • She was aware of all of the husband’s sources of income and assets, but did not pursue further disclosure.
  • She skimmed over the cohabitation agreement, reading some parts but not others.
  • There was no fraud, coercion, or duress.
  • Although given the opportunity, the wife did not seek independent legal advice even though – on her evidence – she had six weeks to do so.
  • At the time of signing the agreement, the wife thought it was fair and that it fairly outlined the parties’ discussions regarding the purchase of a house.
  • The agreement is in substantial compliance with the Divorce Act.

The court noted that the trial judge was entitled to make the findings that he did on the evidence, and are entitled to deference from appeal court.  It added that even if the cohabitation agreement did not exist, on all the facts the wife would not be entitled to spousal support anyway.  The court dismissed her appeal.

For the full text of the decision, see:

Smith v. Smith

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

 

 

Court Finds Husband Just “Going Through the Motions” on His Job Search

Court Finds Husband Just “Going Through the Motions” on His Job Search

One of the basic principles underpinning Ontario family law, is that the parties must behave with good faith towards each other in when participating in the separation and divorce process. And courts are wary – and frequently critical – of spouses who do not behave this way.

This is illustrated in the decision in Cammaroto v. Cammaroto. There, the couple had married in 2000 after a 2-year long distance relationship, with the 48-year-old husband moving from New York to be with the wife in Ontario. He had expected to easily find work in the retail travel industry, but this never panned out, and he began to drink heavily. Meanwhile the wife, aged 44, was working 12-hour shifts in her job as a nurse.

By 2008, the relationship deteriorated to the point where the husband communicated with the wife mainly by giving her notes and list. Still, the couple continued to live together under the same roof for several more years.

As part of their divorce proceedings, the court had to decide whether the husband should be entitled to spousal support from the wife, who had been supporting him for the entirety of their marriage.

To make this determination, the court had to consider the couple’s overall relationship. In the husband’s favour was the fact that he had moved from New York and left behind a secure job. But by 2006, which was 6 years into the marriage, he had made virtually no genuine effort to find work and the wife had clearly run out of patience. The court concluded that the husband’s failure had been “a very significant cause of the marriage break-down”, and that his alcohol consumption also contributed to it.

The court itemized the husband’s so-called efforts to find work in this manner:

Exhibit 29 records [the husband’s] attempts to find employment. It illustrates a wide ranging attempt at looking into potential jobs, even low level employment such as flyer deliveries, gas bar employment and entry level sales positions. It records a range of dozens of small local employers as well as large chains such as Walmart, Staples, Rogers, Canadian Tie, Home Depot, the LCBO, several hotel chains, Zellers and Leons.

The most impressive aspect of [the husband’s] attempts to find employment are the personalized and well-written cover letters that he sent with resumes or job applications. Superficially, the documentation of [the husband’s] employment search over the years 2000 – 2006 is impressive. However, on closer examination it is apparent that [the husband] was “going through the motions”, documenting many contacts from ads for jobs that he must have known he could not do or would not accept even if he could get a job interview. Some of the content of Exhibit 29 is clearly an attempt to “pad” his efforts to find employment. For example, it is rather silly to include employment as a flight attendant, a short-order cook, a store manager, etcetera. The actual number of job interviews he got over the years was few.

In 2001, [the husband] applied for 17 jobs in total, never more than three in any given month. He agreed on cross-examination that it was not a “diligent” job search that year. In 2002, he made one job application and in 2003, 31. He admitted on cross-examination that many of the “applications” were for jobs he could not do anyway. …

It is also hard to escape the inference that Mr. Cammaroto deliberately sabotaged the only successes he had.

He obtained a job in the travel industry in 2003 but quit the job after taking the initiative with U.S. authorities to check if he could be “in trouble” as a U.S. citizen selling trips to Cuba. He blew the whistle on himself. Then, when told it was not a problem to work for a travel agency selling trips to Cuba so long as he didn’t do so personally, he quit the job anyway.

He was hired as a security guard in December 2005 or January 2006 but quit that job before his first shift to take another travel agency job that lasted only a few weeks.

In April 2006 he was hired at Stock Transportation to drive autistic children in a van but quit during the training session because the children were “wild and noisy” and he was afraid he would crash the vehicle.

There are other examples of how he thwarted actual employment opportunities himself or wasted his time on obviously fruitless pursuits. It is hard to know whether he was genuinely interested in working or just kidding himself. He turned looking for a job and the documentation of his efforts into a job itself. By 2006 he had given up any real effort. Perhaps even before that.

The court also noted that by 2010, when he and the wife were still living together, he was actively looking for other relationships on Match.com under what he called his “contingency plan”. It ultimately concluded that the husband’s lack of genuine job-hunting had been deliberate:

[The husband] admitted that as early as 2008 he was aware of the “rule of 65” in the spousal support advisory guidelines, referencing the principle that if a dependent spouse’s age plus years of marriage equals or exceeds 65 then recommended spousal support should be for an “indefinite” duration.

It is clear from all the evidence that [the husband] was determined to delay the inevitable separation as long as possible to maximize his entitlement to support and not because there was any realistic hope, even in his own mind, that a true marital relationship would ever resume.

Still, the court observed that at the time of the trial, the husband had been out of the workforce for 15 years, and had depression, anxiety, and some other mental health issues that clearly pre-dated the marriage. In these circumstances, he was entitled to some time-limited support from the wife, who had the ability to pay from her $90,000 income as a nurse.

For the full text of the decision, see:

Cammaroto v. Cammaroto, 2015 ONSC 3968

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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Wednesday’s Video Clip: Top 5 Questions About Spousal Support in Ontario, Canada


Wednesday’s Video Clip: Top 5 Questions About Spousal Support in Ontario, Canada

In this video we review the top 5 questions about spousal support in Ontario, Canada.

Spousal support – which is sometimes called “maintenance” or (especially in the U.S.) “alimony” – is money paid from one spouse to the other after the dissolution of the relationship. The obligation to pay spousal support is a legal one, and may arise either from a marriage, or from a common-law relationship. Either spouse can make a claim for it, provided:

• the spouses have lived together in a “marriage-like relationship” for at least three years; and
• the claim for spousal support is made within one year of couples’ separation.

The obligation for one spouse to pay spousal support to the other does not arise automatically from the fact that the parties had a relationship together (whether formally married or common law). Rather, the spouse who is claiming spousal support must prove an entitlement to it.

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

Wednesday’s Video Clip: 4 Ways To Enforce Child and Spousal Support Orders in Ontario


Wednesday’s Video Clip: 4 Ways To Enforce Child and Spousal Support Orders in Ontario

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are several points about the enforcement of such orders or agreements that are noteworthy, this video reviews some important points to consider.

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

Wednesday’s Video Clip: Two Necessary Evils – Know Your Obligations Re: Income Tax and Spousal/Child Support


Wednesday’s Video Clip: Two Necessary Evils – Know Your Obligations Re: Income Tax and Spousal/Child Support

Income tax: Not a popular concept even at the best of times. But add in the obligations, which arise in the context of paying child or spousal support, and it’s enough to cause heart palpitations in most Canadians.

This is because the Canada Revenue Agency rules relating to how support payments are to be treated are quite complex. To make things more confusing, the federal Income Tax Act has separate rules for spousal support as opposed to child support.

In this video we review some key points to keep in mind.

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