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Posts tagged ‘and enforcement of court order’

Court Strikes Down Law Barring Platonic Parents from Adopting

Court Strikes Down Law Barring Platonic Parents from Adopting

In an important recent case called S.M. (Re), an Ontario court struck down as unconstitutional a legislative provision requiring adoptive parents to be “spouses”. The ruling opens the door for platonic friends to jointly adopt a child in certain scenarios.

The court was presented with joint application for adoption put forward by two women, who had been “good friends” for 12 years but were not in a romantic relationship of any kind.  They wanted to adopt a child, S.H., who had been living with them for three years as part of a foster care arrangement, since having been made a Crown ward only a few days after being born. The child’s half-sibling also lived in the loving home environment provided by the women, and they all considered themselves a family.

The glitch was that the Child, Youth and Family Services Act, 2017 (“CYFSA”) (and the former Child and Family Services Act, which it replaced) contained language to the effect that only “spouses” could jointly adopt a child that had been made a Crown ward.  The term “spouse” was specifically defined to include not only married partners, but also those in a “conjugal relationship outside of marriage”.  Since the women were only platonic friends, and not spouses, this wording technically precluded them from jointly adopting the child.

The women asked the court to strike down the spousal requirement, on the basis that it was contrary to the Charter because it discriminated against them on the basis of marital status.

In readily doing so, the court noted that one of the public policy goals of the CYFSA was to try and promote an increase in the adoption rates of children who were Crown wards.  It cited studies and statistics showing that CYFSA-prompted changes were indeed making a difference.

The court then observed that the restrictive spousal requirement in the CYFSA was having the opposite effect: It reduced the pool of joint applicants who could adopt a Crown ward.   More to the point, it did so by drawing a needless distinction between applicants who were marred or in a conjugal relationship, and those who were not.  The purported distinction was based on the women’s personal characteristics as two “single” individuals rather than spouses.

This, the court found, was in breach of the Charter, and could not be reasonably justified. The court added:

The applicants have chosen, in a free and democratic society, to live together as a family with emotional and financial interdependence.  They both sought to open their home to the most vulnerable in our society – children who are in need of protection.  The applicants applied for and were approved to be foster parents.  The subject child S.H. knows the applicants as her only parents.  The applicants, not unlike other long-term foster parents, now seek to adopt S.H., with the support and recommendation of the Society.  However, they cannot do so.

Why?  The answer:  their relationship is platonic; it is not conjugal.  They are not “spouses.”

While it may be argued that limiting joint applications to spouses will enhance the prospect of securing prospective adoptive parents who are in committed and stable relationships, it does not follow that those attributes would be absent when two individuals are in a long-term familial non-spousal relationship.

The absolute exclusion of non-spousal couples from joint adoption is arbitrary and is based on irrelevant personal characteristics, bereft of any merit-based assessment. 

The distinction created by the impugned legislation foments the stereotypic dogma that only traditional families with two “spouses” are able to apply for joint adoption.  I agree with the submission of the Attorney General of Ontario that the “prohibition also perpetuates and reinforces the pejorative view that families must match a specific model in order to be appropriate adoptive homes for children and youth.”

 The exclusion of the applicants is “at the front door.”  They cannot even apply.  …

The “front door” exclusion of non-spousal joint applicants without any opportunity for an assessment of their suitability as adoptive parents underscores the exclusion’s arbitrariness.

… The impugned legislation, rather than having an ameliorative effect, worsens the prospect for children to be adopted because it lessens the pool of prospective adoptive parents willing to make the crucial decision to adopt a child and give that child a loving home.

The court accordingly ruled that, under either the newer CYFSA or its predecessor Act, the legislative wording that required adoption applicants to be spouses was unconstitutional.  It “read down” or severed the law, by declaring the words “who are spouses of one another” of no force and effect in this context.

For the full text of the decision, see:

S.M. (Re), 2018

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

 

Wednesday’s Video Clip: Can an Ontario Support Agreement or Order Be Changed?

Wednesday’s Video Clip: Can an Ontario Support Agreement or Order be Changed? 

Yes, if both parents agree, they can simply make the change to the existing agreement or make a new agreement. The agreement must be dated, signed by both parents, and signed by a witness. The new agreement should be filed with the court where the original one was filed and then mailed to the FRO. If it is not filed with the court, the FRO cannot enforce the new support amount. If the parents cannot agree about changing the agreement, then either parent can go to court and ask the court to make an order about support. A court order can also be changed, but only by the court.

Either parent can go to the court that made the original order and ask the court to change it. The court will do this only if there has been a significant change in circumstances. For example, if:

• the paying parent’s income has gone up or down significantly

• the child has withdrawn from parental control

• the child has moved from one household to another, or

• the child has medical expenses

If the order has not been changed since the Child Support Guidelines became law in 1997, then the fact that the Guidelines are now in effect is also enough reason for the court to consider changing the order.

A change in the income of the parent receiving support is not usually a reason to change the order. This is because, under the Child Support Guidelines, that parent’s income is not usually taken into account when support is set. But there are some circumstances in which their income is considered when support is ordered.

Remember, if you do go to court to change an order, the judge will almost always apply the Child Support Guidelines. Before applying for a change, find out how the Guidelines would affect you.

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 Judge Says:   “The Guidelines are Not a Price List”

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Family Judge Says: “The Guidelines are Not a Price List”

Many of or previous Blog posts have illustrated how the provincial Child Support Guidelines, and its federal counterpart, the federal Child Support Guidelines work in various factual contexts, to guide parents and judges in determining how much child support each separated or divorcing parent should pay.

In the past year alone, we have given examples of  how special expenses such as a child’s sports or extracurricular activities are dealt with; how self-employment income is accounted for in the calculations, and even how the Guidelines are to be used to calculate child support for adult children..

What should be abundantly clear from those many illustrations, is that when the matter of child support is placed before a judge, the Guidelines are merely a starting-point for what becomes a complex mathematical calculation that takes numerous factors into account.   This is why it’s often perplexing for separating parents to try to determine what support amounts are fair, when they don’t have the help of a lawyer to guide them.

The recent case called Vidal v. Dunn is an excellent example of the complexity and number of different that this exercise entails.  As we chronicled in prior Blogs on this case, the parents had a raft of child support-related disputes between them, including the question of whether their troubled teenaged daughter’s criminal defence bills – totalling over $10,000 – were considered “special or extraordinary expenses” to be shared by the parents, and whether their 20-year-old daughter was still considered to be a “child” for the purposes of being eligible for support.

In the context of making a ruling on this last issue, the court noted that both the federal Divorce Act and the Ontario Family Law Act apply the Guidelines, and both have comparable child support objectives.

But the court went on to make an interesting observation about the nature of the Guidelines themselves:  For one thing, they are more complex than a fixed-price menu, but also not amenable to “short cuts” even by a court.  As the court wrote:

The authority to order further child support is found in legislation. The Child Support Guidelines were intended to help separated families set child support in a fair and predictable way. The Guidelines are not a price list.  It can be very complicated, especially for adult children. Entitlement to child support is a prerequisite before determining quantum under the Child Support Guidelines. The statutory path is mapped out. The court cannot customize legislation with short cuts. 

In a very recent case called Henry v. Boyer, the court emphasized the point made in Vidal v. Dunn that the Guidelines are aimed specifically at helping “separated families” to set child support both fairly and predictably.  But there are many variables in that calculation, a point that newly-separated parents should keep in mind when trying to forge the path forward towards a divorce.  It’s always a good idea to seek the advice of an experienced Family lawyer.

For the full text of the decisions, see:

Vidal v. Dunn, 2018 

Henry v. Boyer, 2018

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

 

Does Child Support Get Cut Off If University Student Take a “Gap Year”?

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Does Child Support Get Cut Off If University Student Take a “Gap Year”?

In the recent case in Hilhorst v. Amaral, the court considered the effect that a “gap year” in a student’s education had, on a parent’s overall child support obligations.

The court heard that the parents had lived separately for 18 years, and had a daughter together who was now 21 years old.  The daughter completed high school in 2016, and took a “gap year” where she did not immediately enroll into a college or university program.  At this point, the father took it upon himself to terminate child support.

Then, a year after graduating and with her “gap year” done, the daughter enrolled in a college Veterinary Sciences program for 9 months, to obtain her first diploma.  The father conceded that he owed (but had not paid) child support for that period.  However, he resisted paying child support for the period that covered the gap year; moreover he was not willing to pay child support for a second diploma, in Community Studies, that the daughter now wanted to pursue.

The mother applied to have the court order the father to pay child support for the entire period after their daughter completed high school, and until she completed her post-secondary education.

The court both explained the law in this area, and considered the circumstances, writing:

Dealing firstly with the continuity of the child support obligation, it is not the case that the obligation to pay support ceases automatically on the day a child finishes high school.  The test under the Family Law Act is set out in s. 31 (1).  Parents are obligated to pay support for children who are minors, who are enrolled in a full time program of education or who are unable because of illness, disability or other cause to withdraw from parental care.  This language is easily broad enough to cover a period of time between high school and college unless the child is actually self-sufficient. It is also broad enough to re-trigger an obligation to pay support if the child takes time off and then returns to school to pursue further education.

The question is not whether there is an absolute cut-off date or event for support but whether or not the child remains dependant on the parent to whom support is paid and whether or not that dependency remains reasonable under all of the circumstances.  …

The court then applied these principles to the case at hand:

In this case, the child took what amounts to a “gap year” during which she was working and saving money for college and travel.  During that time, she was paying modest rent to the [mother] and was able to travel to Europe.  The [mother] is not seeking support for the period of July 2016 to April 2017 and is not entitled to it.  The [mother] \is seeking support for the period of time the child was enrolled at Algonquin College pursuing a diploma as a veterinary assistant.  She also seeks to have that support continue during the time when the child is pursuing a second diploma in community studies.

The court concluded overall that it was not unreasonable for the daughter to pursue a second diploma to “enhance the education she has already obtained.”  The court noted that she has a “plan for her career and believes the Community Studies Program will enhance the value of the diploma she has already earned.”

In the end, the father was declared to have an ongoing child support obligation, lasting until the daughter completed her post-secondary education by obtaining a second degree.

For the full text of the decision, see:

Hilhorst v. Amaral

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 Real Estate Downtown Be Factored into Realtor’s Income for Support Purposes?

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Should Real Estate Downtown Be Factored into Realtor’s Income for Support Purposes?

Many of you will know that for child and spousal support purposes, the amount of annual income that a support-payor earns is tied to the amount of support that he or she must pay (although this is subject to other considerations as well).  In a recent Family Law case from B.C. the husband, a prominent and highly- successful  real estate agent, argued that the volatility and uncertainty in the real estate market should be factored into assessing his income for use in his divorce proceedings.

As background:  Under federal divorce and child support law, courts extrapolate a support-payor’s income using the past three years of his or her earnings.  In this case, that amount averaged about $2 million per year. The husband’s realty company – of which he was the sole shareholder – had done extremely well, with 7-year earnings of over $13 million.

Nonetheless, the husband claimed that his past earnings were not necessarily reflective of his future earnings, because of the uncertainty in the West Vancouver real estate market in which he worked.   He predicted an imminent downturn sparked by government’s Foreign Buyer’s Tax (among other things), which in turn would impact his ability to pay support for his former wife of 17 years and for their two children.  Although they had lived a lavish lifestyle in the past, he asked the court to take note of a pending market downturn, and adjust his support obligations in a commensurate manner.

As the court explained his argument:

The [agent husband] argues that it would be devastating to him if his income for support purposes is based on an average of the realty company’s past three years’ net income. He says that the real estate market slowed down from 2016 to 2017 and is likely to slow further down in 2018. He argues that the slow down has been caused by the foreign buyer’s tax, the tightening of residential mortgage insurance rules, and the increases to the Bank of Canada interest rate. The [husband] says these have resulted in a general tightening in the mortgage financing marketplace. Further, he says there is a hesitancy in the real estate market due to uncertainty over what steps the NDP government might take, some of which have been announced since the [husband] swore his affidavit.

The court essentially accepted some – but not all – of the husband’s argument.  It agreed that the upward trajectory of Vancouver-area real estate prices has likely ended, and accepted that the husband had “reason to be pessimistic about the real estate market and hence his income.”

However, the court found it reasonable to conclude that any negative impact has already been felt by now. The court accordingly looked at the husband’s 2017 income figures, together with his income for 2018 thus far, and set the child and spousal support figures accordingly.

For the full text of the decision, see:

Thiessen v Soprovich

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

Does Husband’s Bankruptcy Suspend His Obligation to Pay Costs Order in Wife’s Favour?

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Does Husband’s Bankruptcy Suspend His Obligation to Pay Costs Order in Wife’s Favor?

Here’s a legal scenario to consider:

  • The husband in a divorce proceeding is ordered by the court to pay $35,000 in legal costs to the wife. He fails to pay – or even to make any attempt to pay.
  • The wife succeeds in getting a court order to have the husband’s pleadings struck out entirely, for failure to pay the ordered costs. The court also orders that he be prevented from participating in the trial going-forward (e. he cannot testify, call or cross-examine witnesses, or make submissions).
  • However, given the drastic outcome, the court gives the husband a little extra time to pay the $35,000 before finalizing the part where his pleadings get struck out.
  • In the meantime, the husband makes an assignment in bankruptcy. He never does pay.

This was the situation in a case called Clark v. Moxley. The legal twist is that under Canadian federal bankruptcy legislation, all costs decisions against the husband were automatically stayed (i.e. suspended) the moment he declared bankruptcy.  After that point, creditors – including the wife with the $35,000 order in her favour – could no longer take individual steps to pursue payment from him, except via the trustee in bankruptcy.

So the legal question for the court was this:  If the wife was not in a position to enforce the costs order in her favour, did this still mean the husband’s pleadings could be struck out for non-payment?

Naturally, the husband was against this outcome:  He claimed that in light of his bankruptcy the order should not be given effect – especially since there were significant and serious custody / parenting issues outstanding, not to mention efforts on the wife’s part to exclude him from the child’s life.  If his pleadings were struck out, he would be alienated from the child.

Rather unsympathetically, the court noted that the husband was on the brink of a rather dire situation because of his own decision not to pay the ordered costs.  However, under federal bankruptcy law, that order was technically no longer enforceable once he assigned himself into bankruptcy.  That non-enforceability stripped the court of its legal justification to strike his pleadings.   Also, the husband’s bankruptcy had occurred before the motion to strike his pleadings was fully concluded.

The court therefore declined to strike the husband’s pleadings at this juncture.  It added the decision to strike pleadings is traditionally considered one of a last resort, to be used in a proportionate manner, and where there are no other remedies.

The court observed that the wife would still be eligible to fully participate in the husband’s bankruptcy proceedings, and to oppose his discharge from it.   If the costs survived the bankruptcy, then the court could still order the husband to pay them after-the-fact, or could ask for security for costs if the husband wanted to return to court to make a new application.

For the full text of the decision, see:

Clark v. Moxley

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

Can Bankrupt Wife Still Claim for Equalization of NFP?

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Can Bankrupt Wife Still Claim for Equalization of NFP?

If a spouse declares bankruptcy, is he or she then prevented from claiming for equalization of Net Family Property (NFP?) under Ontario Family law?

That was the question in Kinsella v. Mills, which involved a couple who had separated after 7 years of marriage. At that point, they signed Minutes of Settlement that finalized the splitting of their financial affairs, which was intended to deal with all issues including spousal support, equalization of NFP and constructive trust claims.  The Settlement reflected the couple’s agreement that the husband would take sole ownership of the matrimonial home and assume all debts and costs, and in return would pay the wife an agreed lump sum, together with a monthly amount.

Less than a year later, the wife declared bankruptcy.  She was automatically discharged nine months later.  The couple’s divorce was formalized a few months after that.

The wife then applied to the court to set aside that Settlement, claiming that it was unfair, signed under duress, and in a situation where she had no independent legal advice and did not know what she was signing. If she was successful, the wife planned to re-launch her claim for equalization of NFP, and wanted it divided unequally in her favour.

The husband resisted, pointing out that after the marriage breakdown he was left with a large amount of debt.  Because of the wife’s bankruptcy, she was released from having to pay it, but he was still saddled with debt that they had rung up together.  Nothing about the Settlement was unfair, in his view.

The court was asked to make a ruling.  It observed that nothing in the Family Law Act or the federal Bankruptcy and Insolvency Act  specifically prevents a spouse from making a claim for equalization of NFP after declaring bankruptcy. However, after examining the interplay between the two, the court concluded that the legislation operated to effectively do so.  The court noted the following:

  • The wife’s claim to any equalization payment from husband fell within the very broad definition of “property” under the bankruptcy legislation.
  • The moment she declared bankruptcy, she was no longer entitled to dispose of or otherwise deal with her property. Instead, it immediately vested in the bankruptcy trustee.
  • Once any equalization claim vested with the trustee – and unless the trustee actually joined the wife in the Family Law proceeding – the wife’s hands were tied.

The court added that this impasse be remedied by the wife being discharged as a bankrupt, but getting the trustee’s consent to go forward, or by firing the trustee.  The Family Court also had no authority to undo the wife’s bankruptcy.

Having found the wife to lack the capacity to bring the equalization claim, the court added that the Settlement itself was not subject to being undone, since there was no evidence of duress.  The wife had also failed to obtain legal advice before signing it, despite being encouraged to do so.

For the full text of the decision, see:

Kinsella v. Mills

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

Who Should Get Access to a Dead Person’s Emails?

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Who Should Get Access to a Dead Person’s Emails?

As reported in several recent articles in U.S. media outlets, the U.S. Supreme Court has been asked to rule on an intriguing new legal issue, one that is becoming increasingly prevalent in this era of rampant technology:  Who should have access to the emails belonging to a person who has died?

The question arose in connection with the Yahoo! account used by a now-dead Massachusetts man named John Ajemian.   Four years prior to his 2006 death in a motorcycle accident at the age of 42, he had set up the Yahoo! account with his brother. He had not bothered to make a Will, so when he died there was no governing provision for how the Yahoo! account was to be dealt with.

His two siblings were initially unsuccessful in their application to a Probate and Family Court to grant them access to his account, pursuant to their authority as his surviving relatives. That court had accepted Yahoo!’s lack-of-consent-related arguments, based on the federal Stored Communications Act.

However, after a successful appeal to the state Appeal Court, the lower-court ruling was overturned.  While falling short of imposing a positive mandate for Yahoo! to release the man’s emails, the Appeal ruling at least contemplated the possibility that Yahoo! could do so with the family’s permission.   (The Appeal court also sent one issue back to the Probate and Family Court for a re-hearing, namely the question of whether Yahoo’s stated Terms of Service agreement constituted a valid reason for refusing access.  That outcome will hinge on contract law principles, and will require the court to look at the matter from the standpoint of whether such agreements are valid and enforceable.)

The matter has now been scheduled to be considered yet again, this time by way of an application for judicial review brought before the U.S. Supreme Court.  No date has yet been set for that hearing.

It will be interesting to see how that top Court comes down on the matter, especially knowing that the outcome is so directly and arguably referable to other, similar tech-related scenarios and predicaments.

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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