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Top 5 Latin Terms You Should Know Before Going to Court


Latin terms are often used in the Court of law sans English translation or explanation. If the party to the ligation is not familiar with these terms, he/she may not fully understand what is going on in their own legal matter. These are the Top 5 Latin Terms You Should Know before attending your family law case in Court.

1. In loco parentis

“In the place of a parent”

This phrase is used to refer to a person or entity assuming the normal parental responsibilities for a minor child. It is often used in situations where there is a transfer of legal guardianship, or to refer to schools or other institutions that act in the place of the parents on a day-to-day basis.

 

2. Lex loci

“In the law of the place”

The term refers to the law of that particular country, state, or locality where the matter under litigation took place. It usually arises in connection with legal disputes that span multiple jurisdictions, for example where children have been removed from Canada by one parent and the issue arises as to which jurisdiction’s laws govern the situation (an area of law called “conflict of laws”).

 

3. Non est factum

“It is not my deed”

This term is more commonly used in contract law, but it can be applied in the context of separation agreements that have been reached between spouses or common law partners. It refers to an assertion by one signatory to a contract that the agreement is invalid on the basis that he or she signed unintentionally and without fully understanding its implications.

 

4. Parens Patriae

“Parent of the nation”

This term refers to the power of the State to act as parent to a child, in situations where the legal parents are unable or unwilling to do so. For example, when children are removed from their parents’ care in order to be cared for under the auspices of the Children’s Aid Society, such a step is achieved and authorized through the exercise of the Ontario government’s parens patriae authority.

 

5. Res judicata

“A matter judged”

A matter that is res judicata is one that has been adjudicated to the point of conclusion, meaning no further appeals or legal actions by the involved parties is permitted. For example, if divorcing parties have brought their claims for equalization of net family property to one court, and have had the matter heard and adjudged, then they cannot afterwards go judge-shopping to a different court for a different or better outcome on that particular aspect of their separation. Once their issues have all been heard (and leaving aside those legal matters that are eligible for applications to vary), the matter becomes res judicata.

 

Honorary Mention…

Inter vivos

“Between the living”

This term is used to refer to a gift or other non-sale transfer between living parties. For example, a gift by living parents to their children is called a gift inter vivos; this is distinct from a transfer made by Will, which takes effect upon the testator’s death.


This blog is an updated version of the original article published in 2012.

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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 www.RussellAlexander.com

Divorce Information Centre – New Section

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Divorce Information Centre announced a new section today titled, Working With Your Divorce Lawyer. The section provides access to information including:

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: 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

Top 5 New Year’s Resolutions for Divorced Parents

Top 5 New Year’s Resolutions for Divorced Parents

Many people aren’t fans of making New Year’s resolutions, since the artificially-imposed “fresh start” seems arbitrary and contrived. But no matter what time of year, I think it’s never a bad idea to reflect on our behavior, especially when it is likely to affect our children.

(And for separated and divorced parents, this kind of reflection can never be done too frequently, since the inherent acrimony of the divorce process makes it all-too-easy and tempting to engage in bad behavior often, and all throughout the year).

Here are my suggestions for the Top 5 New Year’s Resolutions.

For the Year 2017, I Resolve To:

1) Celebrate what’s good about my child’s other parent.

Once a relationship dissolves, so it seems do the parents’ respective memories of what drew them together in the first place. Children eventually grow up with their own perspectives on each parent’s character, flaws and attributes; it’s not the place of either parent to point out the flaws of the other, or to taint that process by bad-mouthing the other parent in front of the child. Although this is very common, it is highly damaging to the children. With only a few exceptions, children thrive when they have balanced relationships with both parents.

2) Keep argument and discord to a minimum.

Just as it’s easy to focus on the other parent’s shortcomings, it’s equally easy to get drawn into battle with him or her over every little thing.   Not every single disagreement has to become a full-blown war. It’s important to “pick your battles” if you can. And it bears repeating: Children who see their parents fight are very negatively impacted, particularly young children who may assume that they are somehow to blame.

3) Try to model good conduct and a healthy lifestyle.

New Year’s is often the time that people resolve to quit smoking, lose weight, and rid themselves of many other bad habits and lifestyle choices. This same desire to purge unwanted behaviour should extend to your family’s lifestyle too, since most children view their parents as role models. So, even when living with the practical after-effects of separation and divorce, it’s important to model things like healthy eating, getting adequate sleep, sticking to established routines, being respectful of others’ time and traditions. The list goes on.

4) Be flexible.

Nobody goes into a marriage thinking that it will end in divorce; nobody chooses to become a parent with the idea that will eventually end up having to deal with custody and access schedules, dealing with separate residences, and dividing up summers and holidays. The easiest way to thrive in an adjusted family is to maintain flexibility and (if possible) a good sense of humour.

5) To be happy.

Even when the separation or divorce is not your idea, it’s important for your children to see you living a personally-fulfilled, happy and well-adjusted life to the greatest extent possible. This includes not only spending time with them, but also making time to yourself to pursue your own passions, friendships, and rewarding work. Children will themselves be happiest when they live in a happy home.

Whatever happens to be on your list of New Year’s resolutions this year, from the staff of Russell Alexander, Family Law, we wish you a happy and prosperous 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

Top 5 Tips for Reducing Divorce Costs

Top 5 Tips for Reducing Divorce Costs

Even in the most routine of Ontario divorces, there are a large number of associated costs: lawyers’ fees, court filing fees, expenses relating to obtaining transcripts and documents, expert reports, and counselling fees. That’s just to name the main ones.

But – if you are smart – there are at least a few ways to minimize some of these costs. Here are my Top 5 tips:

1. Contracts are the Way to Go. The best way to cut down the costs of a contentious divorce, is to try your best not have a contentious divorce in the first place. Cohabitation agreements and separation agreements are the best way for you to try to maximize the likelihood of a smooth, quick, and relatively cheap divorce. They set the course of action and outline the legally-binding mutual expectations of you and your partner as to how to handle finances and assets both during your relationship, and after it ends.

2. Consider the Alternatives to Court. Family Court is not the only way to get disputes resolved. There are several alternatives available, such as mediation, arbitration, and collaborative family law. (Of course, this requires both of you to co-operate, which is not always possible).

3. Try Not to Sweat the Small Stuff. Not every dispute needs to be trotted out before the Family Court. Trivial issues, or disputes driven more by ego than by true disagreement, are often not worth the trouble and especially may not be worth the cost. For example, if you are paying your lawyer to fight for everyday items such as specific pieces of furniture or minor possessions, the “value” of the items can get quickly eclipsed by the time and legal costs needed to do so. In other words: choose your battles wisely, and keep the cost/benefit in mind.

4. Do Some of the Legwork Yourself. Most people are not capable of competently acting as their own lawyer (although many do try, nonetheless). But that doesn’t mean you can’t efficiently do some of the tasks that lawyers and their support staff would otherwise do for you. This can include obtaining and organizing your documents (which will expedite your lawyer’s more focused review), making a start on your own financial statements, and obtaining documents from the Canada Revenue Agency or other government departments.

5. Capitalize on the Things that are Free. There are many good, reliable, and free resources out there. Take advantage of them. These can include the website maintained by the Ontario Ministry of Consumer and Social Services, as well as many special-interest websites and resources aimed specifically at Family Law litigants. Using these resources, you can obtain some high-level familiarity with the Ontario and federal legislation and policies (including the Child Support Guidelines, and the Spousal Support Advisory Guidelines), and educate yourself on some of the legal processes you are about to embark upon. Familiarize yourself with the reliable information available to help you at least understand, if not actually make a decision on, your various options.

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

Top 5 Ways to Make Divorce Easier on Your Kids

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Top 5 Ways to Make Divorce Easier on Your Kids

The new year is a time for many people to make resolutions. And while that brand-new gym membership card may sit unused by March (despite the best intentions!), it’s definitely worth putting extra effort into any resolution that may involve your children.

Here are the top five ways to make the divorce process and related transition phases easier for your kids:

1. Vow to keep things as consistent as possible, despite the turmoil.

Kids thrive on routine, rules, and familiarity. While divorce is by definition a disruptive process, try to maintain as much consistency as possible in terms of their day-to-day lives. If your kids are switching homes as part of a shared custody arrangement, try to keep bedtimes and other rules consistent, and allow them to bring their favourite toys, books, teddy bears, and treasured items from home to home.

2. Don’t turn your child into the messenger.

While it may be difficult to choreograph complicated custody and access schedules, medical care, and schooling and extracurricular activities, it remains the parents’ job to communicate to each other directly –without involving the child. Too often a child is directly or implicitly expected to convey information from one parent to the other, and this is never a good idea. For one thing, it places an immense responsibility on the child to give accurate and timely information; it also places the child in a difficult and unhealthy role in terms of being a potential mediator for any disagreements that become a “he-said/she-said” type dispute.

3. Don’t badmouth each other.

On the point of communication, it’s sometimes important for parents to show restraint as well. The inherent acrimony involved in most divorces makes it easy for parents to slip into making disparaging comments about the other. Kids pick up on negative messages both spoken and unspoken – even a silent eye-roll by one parent over frustrating or disappointing news about the other will quickly convey a message of disrespect. Resist the temptation; it can be very damaging.

4. Learn to deal with emotions – both yours, and your child’s.

When a couple divorces, it is common that certain previously-untapped jealousies will arise: one parent may resent that the children seem to prefer being with the other parent more, or may feel jealous that the other parent has moved on to a new relationship quickly. These comparisons between adults are normal human reactions, but children should be scrupulously sheltered from them. Conversely, parents should be deeply sensitive to the emotions that can arise in children when faced with the huge involuntary change in their lives that they are not merely being asked to undergo, but to accept without question or input.

5. Share birthdays and other occasions that are special to the child.

While it may be challenging to do in cases where the divorcing parents are truly challenged to even be in the same room together, parents should consider celebrating a child’s birthday together. Birthdays, school plays and events, and sports distinctions are all about celebrating the child; the ability by the parents to set aside their differences for an hour or two in order to relish a milestone or achievement can be very meaningful to a child.

Need more tips on how to make your divorce easier? Give us a call.

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 www.RussellAlexander.com.

Do Courts Adjust Support for Temporary Income Fluctuations?

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Do Courts Adjust Support for Temporary Income Fluctuations?

The calculation of the amount of child support payable by one parent to the other has been made easier by the Child Support Guidelines, which provide a formula based on income. And, as I’ve written in a post recently Income for Child Support Purposes , “income” is a relatively static number, based primarily on income as reported to the Canada Revenue Agency.

However, unfairness can arise – either to the paying parent or the recipient – when income levels fluctuate unexpectedly throughout the tax year. For example a paying parent’s income may temporarily drop due to illness or other unforeseen cause, to the point where he or she will have markedly less actual income for a period, than the actual income figure on which the child support payments are based.

This kind of income fluctuation was the focus of a recent case before the Ontario court called Simms v. Brown. The parents had joint and shared custody of their children. However, in the past few years and for several extended periods of time the father had been off work for medical reasons. As a result he claimed that his income tended to fluctuate, and when at their lowest he had difficulty meeting his ongoing monthly child support payments.

The father went to court to ask to have his $13,000 in support arrears reduced to zero.

The mother, in contrast, not only resisted the reduction of arrears, but wanted a retroactive adjustment as well as an upward adjustment to his going-forward obligations. She insisted that the father actually earned more than the income that had been used to calculate the Guidelines amounts.

To support this, she provided a chart showing the father’s actual income from 2010 through 2012, versus the income on which the father was ordered to pay support based on the Guidelines. It also showed the point at which the parents’ custody obligations changed to a shared-custody arrangement. For example, for 2010 the mother had sole custody, and the father was paying support based on reported income of $74,000 per year. However, it turned out his actual income for that year was $86,000. The mother was asking for retroactive support of $1,800 for that year, to make up the difference and reflect what he should have been paying. Similarly in 2011, the father paid support based on reported income of $76,000, but his actual income for that year was $106,000 because of a one-time severance retirement package he received.

The mother added that the Director of Family Responsibility Office had refused to enforce the prior support order because it was “too confusing”.

The court considered these figures in great detail. It observed that, generally speaking, it was not realistic that the father’s child support obligations should be re-adjusted anytime there is a short-term change in his income. Rather, for the purposes of calculating support “income” is the amount reflected on Line 150 of the father’s annual Notice of Assessment from Canada Revenue Agency. The court also acknowledged that this meant that any short-term changes in income would not be reflected on Line 150, and that realistically any child support order would often be several months behind any temporary changes in the father’s income in any event.

Nonetheless, in this case the court made some complex mathematical adjustments to support; this included an adjustment to account for the fact that, before the parties started their shared parenting arrangement, the mother had sole custody of the child and was legally entitled to receive appropriate child support from the father for that period. The court also streamlined the support amount to take into account various credits, setoffs, adjustments relating to child support and extraordinary expenses, and factored in retroactive support owed by the father as well.

In terms of going-forward, the father advised the court that he was back to earning a full salary of $80,000 per year – but he was planning to make a claim for disability which would once again reduce his income somewhat. The court pointed out that this would mean his final income for 2013 would again be difficult to predict in advance, but it set an amount based on his 2012 income, for the time being.

For the full text of the decision, see:

Simms v. Brown, 2013 ONSC 6854  http://canlii.ca/t/g1qtk

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 www.RussellAlexander.com.

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