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Posts from the ‘Ontario Spousal Support’ Category

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

Wednesday’s Video Clip: Top 4 Points About Enforcing Child and Spousal Support Payments


Wednesday’s Video Clip: Top 4 Points About Enforcing Child and Spousal Support Payments

In this video we review 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 will review four 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: 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 some of the more common questions about spousal support in Ontario, including:

1) What is spousal support?

Spousal support — which is sometimes called “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.

2) What is the legal basis for obtaining spousal support?

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.

A court may order spousal support, and will set an amount and duration based on various factors that exist between the parties. The jurisdiction for a court to award spousal support comes from either the federal Divorce Act (as part of a divorce order), or from the Ontario Family Law Act.

3) What factors dictate the duration and amount of spousal support?

The determination of how much support a spouse should receive, and for how long, is a complex equation. In making a spousal support order courts consider several factors, including:

• the length of the entire relationship (including time living together before marriage);

• the financial circumstances of each spouse, both during the relationship and
after separation;

• the functions performed by each spouse during the relationship;

• the financial repercussions or detrimental financial effect on one or both spouses of caring for each other or for any children of the relationship; and

• each spouse’s ability to support him or herself.

In some cases one spouse may have suffered a financial loss or disadvantage as result of joint career and lifestyle decisions made during the marriage or relationship (for example the decision to move the family so that a spouse can take a new job, or that the mother will give up her career to stay home and raise the children). A disadvantaged spouse will be entitled to support to compensate him or her for that setback.

There may also be a limit on the duration of the support that one spouse receives from the other, as means of encouraging the recipient spouse to achieve post-separation financial independence as quickly as possible. Alternatively, the order may contain a built-in review mechanism.

Note that there are certain tax consequences relating to spousal support — both from the payor’s and the recipient’s perspective. In short — and provided it is paid pursuant to either a written separation agreement or a court order — it is considered “taxable income” in the hands of the spouse who receives it, and is deductible from the taxable income of the spouse who pays it. These tax ramifications are taken into account when determining the amount of support.

4) How does the spouse’s behaviour affect spousal support entitlement?

Generally speaking, the entitlement to spousal support is not dependent on the spouse’s pre- or post-separation behaviour, morality, or ethical conduct. In other words, a spouse who is otherwise entitled to spousal support after the dissolution of a marriage will not become disentitled because he or she was violent, or because it is later discovered that he or she had an extra-marital affair during the marriage.
Having said that, a court’s determination of the amount and duration of spousal support will hinge upon each party providing forthright, comprehensive financial disclosure to each other. If in making the determination the court feels that one spouse has withheld financial information (e.g. has failed to disclose a source of significant income), the court may impute income to the spouse and award the other spouse his or her support accordingly.

5) What happens if there is a change in circumstances?

As indicated above, the notion of one spouse receiving spousal support from the other is rooted in several concepts and principles, including:

1) the financial disadvantage or dependence that relationship gave rise to must be redressed post-separation; and

2) the ability of the paying spouse to fund the spousal support award must be taken into account.

The amount or duration of spousal support may have to be adjusted if there is significant change in the financial circumstances of either party. This change must be significant, and must not have been foreseen when the separation agreement or the court-ordered spousal support award was made.

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

Collaborative Law Practice – Coming to More Ontario Law Firms Near You

Collaborative Law Practice – Coming to More Ontario Law Firms Near You

As the name of my firm says, here at Russell Alexander Collaborative Family Lawyers we practice what is known as “Collaborative Family Law”, which is a voluntary, contract-based Alternative Dispute Resolution (ADR) process for those seeking to negotiate a resolution of their Family Law dispute, rather than having one imposed on them by a court or an arbitrator. In many ways, it’s similar to mediation, except that it usually does not involve the participation of a neutral third party to help the couple reach a resolution.

Although use of the Collaborative Law process is perhaps not as widespread in Ontario as in other North American jurisdictions, the release on October 27, 2016 of the Ontario Collaborative Law Federation’s “Draft Accreditation Standards” paves the way for an even broader presence in the province. These Accreditation Standards aim to bring consistency, professionalism and heightened standards of competence to practitioners of Collaborative Law (like my firm).

The Ontario Collaborative Law Federation currently represents 18 groups of specially-trained professionals across the province, and imposes rigorous standards for membership. (For example, in the case of Collaborative Legal Professionals, it requires the completion of at least 40 hours of collaborative training, including interest-based negotiation skills training and Collaborative Family Law skills training).

Moreover, all Collaborative lawyers are already licensed and regulated members of the legal profession, and in their role as advocates for their clients, are already duty-bound to adhere to certain professional standards imposed by the Law Society of Upper Canada.

But once approved, the Draft Accreditation Standards will provide an additional layer of obligation and competence for all professionals who participate in the Collaborative Law process.

Accreditation is voluntary, but those who will choose to obtain this designation will have to adhere to the Accreditation Standards’ mandatory requirements (once they are approved); however, those who opt not to apply for accreditation are not prohibited from engaging in Collaborative Law provided they adhere to the same requirements.

In other words, once they are in final form, the Accreditation Standards will effectively govern both those who choose to seek accreditation, and those who do not.

This will be a welcome addition to the Collaborative Law field, and by extension a good development for Family Law litigants in Ontario. In the U.S., since the year 2010 there is already a Uniform Collaborative Law Rules and Act, which among other things standardizes the most important features of Collaborative Law participation agreements between the parties, and requires Collaborative lawyers to take certain steps and make certain inquiries of their clients.

In Canada, the use of Collaborative Law has perhaps been somewhat piecemeal in nature, but it’s growing. The Alberta Family Law Act (in section 5), the British Columbia Family Law Act (in section 8), and Saskatchewan Family Property Act (in section 44.1), each require lawyers who act on behalf of a spouse to inform him or her of the Collaborative Law service that might help resolve their matters. The legislative counterpart in Ontario (i.e. the Family Law Act) does not contain such a requirement, but it’s likely on the horizon soon.

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: Ontario Divorce Law – Is Collaborative Practice Right for You?


Wednesday’s Video Clip: Ontario Divorce Law – Is Collaborative Practice Right for You?

Collaborative Practice is a way for you to resolve disputes respectfully – without going to court – while working with trained professionals who are important to all areas of your life.

In this video we introduce the concepts of collaborative practice and many of the benefits this process offers couples going through a separation and divorce in Ontario.

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