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Posts tagged ‘and enforcement of court orders’

Court Says: Being Abusive to Your Child’s Other Parent = Bad Parenting

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Court Says: Being Abusive to Your Child’s Other Parent = Bad Parenting

In a recent Ontario decision involving a child custody and access determination, the court made a rather sweeping – though likely not incorrect – conclusion:

“[A]busing the other parent of your child be it verbally or in writing, is bad parenting.”

The facts of the case were chronicled in a prior Blog. They featured a father who asked the court to rule on the appropriate level of access he should be given to his child, who was now 5 years old.

The complicating factor was the nature of the father’s relationship with the child’s mother: He had been persistently abusive to her both verbally and emotionally, and took every opportunity to act vindictively toward her. Especially in his email and text conversations, he called her names like “bitch and “idiot” and engaged in blaming and manipulative behaviour. The court summed up this collective correspondence as being “extremely offences and abusive” and “vile and abusive”.

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Now that he was before the court to ask for access rights, the father claimed to have reformed himself. But after looking at a detailed chronicling of the incidents between them, the court found otherwise. It stated:

The court finds that there is no evidence to demonstrate that the father’s attitude towards the mother has changed in any significant way. While he says he has changed and that there is little recent evidence of inappropriate behaviour by him towards the mother, it was readily apparent during his evidence that he sees himself as the victim and the mother as the villain and that this belief system informs his judgment and decision making process.

Importantly, the court reflected on how the father’s continued abusiveness impacted on his ability to parent his child, especially in a shared parenting model which would require cooperation and communication between him and the mother. The court explained:

The court finds the father’s conduct towards the mother to be highly concerning. As difficult as the situation is between the parties and acknowledging that conflict between separated parents can create a heated and emotional environment, [the law] mandates the court not to treat this level of vitriol as typical or acceptable. What must be acknowledged is that this is very poor parenting. The way in which the parents treat one another goes directly to the issue of parenting. The court must acknowledge that abusing the other parent of your child be it verbally or in writing, is bad parenting. If this is how the father communicates when he feels the need to assert himself with the mother, how will these parents function in a shared parenting arrangement that will most certainly require frequent contact?

Perhaps the court’s conclusions simply accord with common sense. But while many child custody / access cases end up tainted by acrimony, parents seem to overlook the simple correlation between mistreating the other parent, and demonstrating to the court that their own parenting skill and judgment leaves something to be desired.

The decision in V.P. v. D.M. helps to make that connection clear. Hopefully more separated and divorcing parents will hear that message well in advance of their child custody hearings.

For the full text of the decision, see:

V.P. v. D.M., 2019 ONCJ 289 (CanLII),

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

Tick, Tock: What’s the Legal Deadline for Trying to Set Aside a Separation Agreement?

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Tick, Tock: What’s the Legal Deadline for Trying to Set Aside a Separation Agreement?

In a recent case called F.K. v. E.A. the court was asked to rule on a novel question: If a spouse wants a court order setting aside his or her signed separation agreement as invalid, what is the deadline for applying? And when does it begin to run?

The couple began their relationship in 2000, and the husband proposed in 2004. The wedding itself was hastily-planned over a period of less then 30 days, and took place in June of 2005. Against that background, the couple entered into what they called a “Prenuptial Agreement” based on a template that the wife found on the internet. It was witnessed by a mutual friend. In it, the couple agreed that each of them:

1) Waived the right to claim spousal support from each other, and

2) Would remain separate as to property, and not be subject to an equalization of Net Family Property.

The Agreement also purported to confirm in writing two events that did NOT actually happen, namely:

1) That the parties had provided fair and reasonable financial disclosure to each other before signing, and

2) That both of them retained their own lawyer and received independent legal advice.

The wife later explained that they did not bother “going through the motions” to fulfil these two duties because the Agreement was wholly uncontentious: Both before and after the wedding they had conducted themselves with financial independence; the Agreement merely confirmed and documented that agreed status.

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Unfortunately, the spouses split in October of 2012, after 7 years of marriage. The wife gave the husband $1,600 to help with first and last months’ rent, but made it clear he could expect nothing further from her.

He then went to a lawyer to discuss his legal options, and explained the lack of legal advice and financial disclosure in particular. Although his lawyer advised that the Agreement was “not worth the paper it was written on”, the husband took no concrete steps at that time.

A full five years later, in 2017, he applied to the court to have the Agreement set aside. In addition to its other shortcomings impacting validity, he claimed it was signed after the wife issued an ultimatum; this left him feeling rushed and in a state of duress, he said.

The wife countered by stating the husband was simply out of time to have the Agreement set aside. She said this type of claim was subject to a two-year limitation period set by provincial legislation, and that the husband had failed to take any steps with the court within that deadline. She asked the court to grant her summary judgment.

The court addressed the various legal arguments. First, it concluded that husband’s bid to set the Agreement aside was indeed tantamount to a legal “claim”, and was theoretically subject to the general two-year deadline. The more pressing question, however, was precisely when the clock on that two-year period began to run.

In law, this “discoverability” threshold was the point at which the husband knew or ought to have known that:

1) He had suffered some loss, and

2) A legal proceeding was the appropriate method for trying to redress it.

In this case, that point was back in 2012, when the husband first attended his lawyer’s office post-separation.

At that point, he knew there was some potential legal issue with the validity of the Agreement and the circumstances in which it was signed, based on the advice from his lawyer. He also knew he could expect “nothing further” from the wife after separation, beyond the $1,600 in rent money, and that all other financial issues were off-the-table. So he knew in 2012 that he was facing a potential loss, and he knew that a legal claim would be the only way to potentially recover it.

Since it was now 7 years past that discoverability point, the husband was too late to bring his claim to set the Agreement aside.

As a last-ditch argument, the husband had also asked for special forbearance in the circumstances: The law should not be applied to him, since his case was the first time in all the Ontario jurisprudence where a claim to set aside a marriage contract was being foreclosed by the two-year deadline.

But the court rejected this argument too. The husband’s error or ignorance about the limitation period did not stop it from running, it said. All citizens are presumed to know the “law of the land”, and it applied equally to his situation even if the husband’s thwarted claim was the “test case”.

Since the husband was out of time to bring his claim, there was no genuine issue for trial. The court granted the wife’s application for summary judgment.

For the full text of the decision, see:

F.K. v. E.A., 2019 ONSC 3707 (CanLII),

How To: Make a Valid Separation Agreement

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

Tune in on Monday June 10th, 2019 for Episode 1 of Family Law Now

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Tune in on Monday June 10th, 2019 for Episode 1 of Family Law Now

The new podcast series is the culmination of a long-standing passion project of democratizing access to information concerning family law matters.

Family Law Now is hosted by Russell Alexander and a featured guest with whom he presents a meaningful review and analysis of family law issues. With over 20 years’ experience helping families resolve their legal issues, Russell has developed a remarkable understanding of family law issues and is eager to share his jewels of wisdom with the listening public.

Family Law Now is a new audio series that delivers useful commentary and insights into timeless and trending family law issues. The podcast is free of charge to registered users and provides a convenient, low-commitment resource by which busy individuals who don’t have time to read long-winded articles can get answers to their legal questions, on-the-go.​ Tune in to Family Law Now!

With special guest Michelle Mulchan,

Michelle Mulchan
Collaborative Family Lawyer

Collaborative Family Lawyer, our first episode will focus on the 10 Things You Should Know About Child Support.

To learn more about our podcast please visit us here.

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

Irish Referendum Results: Separation Period Shortened to Fast-Track Divorce

Irish Referendum Results: Separation Period Shortened to Fast-Track Divorce

According to a recent article in the Irish Times, the people of Ireland have voted overwhelmingly in favour of a proposal to shorten the period of separation between married spouses before being eligible to apply for divorce.

Previously, a married couple could apply to get a divorce only if they had been living apart for four out of the past five years.   The proposal calls for reforms to legislation, allowing the separation period to be reduced to two years.  It also enables foreign divorces to be recognized under Irish constitutional law.

In addition to fast-tracking the divorce process, the abbreviated separation period also has the side-benefit of reducing the harm that may affect children because of protracted divorce proceedings between the parents.  It may also reduce the individual living costs that separated spouses have to bear while waiting out the former long separation period, before being able to fully move on with their lives apart.

The overwhelming support for these reforms was evident in the outcome of a constitutional referendum on divorce, which passed with 82.07 per cent support.   The “yes” vote garnered 1,384,192 ballots in favour (and 302,319 against), a result of a turnout of more than 50% of the voting population across 31 constituencies.

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

Married Thrice; Divorced Only Once – Court Untangles Man’s Complex Love-Life

Married Thrice; Divorce Only Once – Court Untangles Man’s Complex Love-Life

In a recent case called Lowe v. A.A. the court was asked to legally untangle the love-life of a man named Errol Lowe who had been married three times … but divorced only once.  This left the much-married Errol was in an interesting legal predicament, because it invited the question of whether his second and third marriages were valid, whether they were now eligible to be the subject of a divorce order, or whether they were void from the outset.

The court set the stage against which these issues were to be determined:

  1. OVERVIEW

Errol D. Lowe has entered into three marriages in the province of Ontario. Two of these marriages were entered into while he had prior existing marriages. He has only been divorced once. He has appealed to the court for help in “undoing” his second and third marriages.

Mr. Lowe’s circumstances are unusual. His complex marital history requires the court to examine the evidence and first determine the appropriate legal nature of each of his three relationships in order to identify the appropriate mechanisms for ending them.

In order to legally end Mr. Lowe’s second and third marriages, the court must decide whether these marriages were valid in the first place. This determination will affect whether the marriages are to be ended by way of annulment or divorce. If either of Mr. Lowe’s marriages were invalid from the start because he lacked the capacity to marry, that marriage is void from the beginning and a decree of annulment may be issued. If either marriage was valid, then the proper mechanism is divorce.

With that said, the court noted that in a practical sense some of these issues were actually moot and no longer affected Errol and his many wives directly; it seems that Errol was unable to make a go of his subsequent marriages anyway.  The court said:

I should note that whether Mr. Lowe’s second and third marriages are to end in divorce or annulment has little practical implication, either for him or for his second and third wives. I say this because he has been separated from his second wife for many years and has had no contact with her since before his third marriage. He married his third wife in 2008 and has been separated from her since the spring of 2016.

Moreover, in an interesting aside it seems that none of Errol’s wives were particularly proud of having married him at all.  In the court’s words:

I should note that Mr. Lowe testified at the initial return of this matter on February 21, 2018. Mr. Lowe’s third wife, the Respondent A.A., also testified with respect to application FS-17-291. She asked to be referred to by her initials in my written reasons. I have referred to Ms. A.A. and to Mr. Lowe’s first and second wives by their initials out of respect for their privacy.

The court did add that while none of Errol’s former wives were currently seek support from him, a support claim could still be a possibility in the future, regardless of whether the marriages ended in divorce or annulment.

There’s the old saying: “always a bridesmaid, never a bride”.  In Errol’s case, perhaps it was “never a groomsman, always a groom.”  His intriguing case gives rise to multiple legal issues, and we will cover more of them in some upcoming Blog posts.

For the full text of the decision, see:

Lowe v. A.A., 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

Is Husband Only in Contempt of RRSP Non-Depletion Order if He Buys a Ferrari?

Is Husband Only in Contempt of RRSP Non-Depletion Order if He Buys a Ferrari?

The wife and husband separated after having four children during eight years of marriage together.  They were divorced in 2012, but there had been extensive litigation in the years since, mainly revolving around the husband’s annual income (initially estimated by the court at $500,000) and his efforts to have his support obligations reduced.

The couple reached agreement on a much lower income amount, and settled the husband’s spousal and child support obligations by way of two orders made on consent.  Both orders included an express non-depletion component:  it prohibited the husband from depleting his property and assets, as a means of thwarting his ability to pay the wife.

Meanwhile, after the husband was laid off from work, he started his own company, at which he claimed to earn only $13,000 a year.  He then let that company go dormant, and became an employee of his parents’ company where he earned $72,000 per year.

The wife then learned that the husband had recently withdrawn about $105,000 from his RRSP money.  He claimed to use the money to pay his legal fees, credit card bills, and living expenses, including “rent” to his parents totaling $12,000.  (Although the court was provided with evidence of a cheque in that amount being cashed, it declined to conclude that it was for the payment of rent).

The wife accused the husband of being in contempt of the two prior orders.  She noted that his timing was suspect:  He knew she was about to ask the court to award her $373,000 as a lump, to cover child and spousal support arrears as well as going-forward support.

The husband admitted that he knew he was not supposed to deplete his RRSP funds.   However, claimed to have a rather unique understanding of what a non-depletion order was, as the court explained:

The husband stated that he understood non-depletion to mean that he was not to pay anything that was not part of his normal day-to-day living expenses. He was not to “abscond with the money,” “be irresponsible,” “go to Cuba type of thing” or “you know, buy a Ferrari.” He stated that he believed he could pay legal bills, pay rent, and pay for living expenses. He said that [his lawyer] Mr. Kelly told him that “you gotta do what you gotta do.”

To this, the court started by saying that the legal advice the husband had received about the RRSP withdrawals was “less clear than it could have been about what constitutes depletion.”  It also found that – despite his protests to the contrary – the husband could meet his reasonable living expenses soley from the salary his parents were paying him.

As for the contempt elements, the law was clear there were three elements that had to be proven:

1) That the orders clearly and unequivocally stated what should/should not be done;

2) That the husband had actual knowledge of the orders; and

3) That the husband intentionally did the act(s) that breached the orders.

For these purposes, to “deplete” or “dissipate” means to reduce one’s assets in a manner that impairs or defeats a claim for support.  It did not require the actions be wasteful to foolish.

Here, all the elements were present.  The husband knew about both orders, which were clearly-worded and unequivocal.  He knew exactly what he was ordered not to deplete.  And yet he admitted to withdrawing RRSP funds on three occasions.

The court added:

  If [the husband] wished to withdraw funds to pay legal fees or other expenses, the appropriate course was for him to seek permission from the Court to do so, mot to repeatedly breach the orders.

The court did not hesitate to find the husband in contempt, but gave him the chance to purge that contempt finding by repaying almost $105,000 to the RRSP within a short deadline.  If he did not do so, then his pleadings in the matrimonial litigation with the wife would be struck out entirely.

For the full text of the decision, see:

Weber v. Merritt, 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: 10 Tips About Collaborative Practice Agreements

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

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

STEP ONE: Establish a Foundation

STEP TWO: Gather and Exchange Information

STEP THREE: Identify Choices and Options

STEP FOUR: Evaluate the Consequence

STEP FIVE: Come to a Decision and Implement an Agreement

infographic of the collaborative process as a roadmap

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

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

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

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

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

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

infographic to show the full collaborative family law team members

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

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

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


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

Was Dad Merely a “Sperm Donor and Blank Cheque?” Or Was He Eligible for Shared Parenting?

 

Was Dad Merely a “Sperm Donor and Blank Cheque?” Or Was He Eligible for Shared Parenting?

In V.P. v. D.M. the court had to settle whether the father’s purported role in his young daughter’s care and upbringing was as extensive as he imagined, and whether he was entitled – and capable – of having a fuller role in her life on a shared parenting basis.

The mother, a nurse, was 47 years old.  The father was 53.  They met on-line in 2010, and maintained what was essentially a friendship.  They never lived together, and were never in a monogamous relationship.  At some point, the mother purchased a condominium in the same building as the father. After they had a few intimate encounters, the mother became pregnant.

The mother took a year-long maternity leave, and the father visited the child regularly in the evenings after work.  The mother claimed these were just visits, and did not involve the father actually caring for the child.  She said she did support his involvement, until it affected the stability of the child’s life and her own, and became an intrusion.  They ended up having a dispute over the father’s past and future role.  As the court explained:

The father’s evidence is that the mother used him to have a baby and that once that happened he was dispensable. He believes that the mother has treated him as a sperm donor and blank cheque. All he is trying to do is assert his right to be an involved father for his daughter who he loves very much. He believes that it is in [the daughter’s] best interest to spend equal time with her parents.

The father sees himself as the victim. He is a victim of the mother’s attempt to eliminate him from his daughter’s life; … he is a victim of the mother’s premeditated plan to use him as a sperm donor and a monthly cheque.

The court examined the evidence, as well as how the parties interrelated. It found the child loved both parents very much and was closely bonded to both of them.  It noted, however, that a shared parenting arrangement for the now 5-year-old child would require a significant amount of contact between the parents:

Homework is forgotten, money is required for a school trip, extracurricular activities will require coordination and flexibility, arrangements will have to be made for [the daughter’s] care on non-school days when the parents are working; who buys birthday gifts for parties attended by [her], who picks out [her] Halloween costume, and who takes [her] to the doctors and fills prescriptions?

Before it could decide that a shared parenting regime was in the best interests of this child, the court had to be able to find at least the following:

  • The parents could speak to one another directly and not just in writing;
  • The parents behaved respectfully towards one another;
  • The parents would cooperate to ensure the child’s needs are being met;
  • The parents were capable of putting the needs of the child before their own;
  • The parents demonstrated a reasonable amount of emotional maturity and would demonstrate that emotional maturity when there is a disagreement; and,
  • The parents would behave appropriately towards one another at all times in front of the child.

In this case, the court simply could not conclude that the parents in this case could meet these requirements.  It laid most of the blame squarely at the father’s feet.

For example, the mother was always the primary source of the child’s care; and it was now “disingenuous” for the father to claim he was an equal caregiver simply because he attended at the mother’s most evenings after work when the daughter was a baby.  The court added with what seemed like veiled incredulity:

Even though the mother was solely responsible for [the daughter’s] care all day, including feeding, bathing, doctors’ appointments, napping, changing her, and shopping for her as well as caring for her throughout the night after she went to bed, the father considered himself to be equally involved in [the daughter’s]  care.

As the court summarized: “The father’s visits after work do not make him a co-parent as he believes.”

Also, the mother testified that the father was extremely emotionally and verbally abusive towards her, particularly in his written communications, which were full of expletives.  The court agreed they were “vile and abusive”, and noted the mother never responded in kind, but was always calm and composed when dealing with him.  The father’s poor judgment was also of concern, especially since he had not participated in the counselling that had been recommended for him.

Noting the need to limit the daughter’s exposure to adult conflict, the court concluded overall that shared parenting was not feasible.  It ordered that the mother should have custody, with specified access to the father, as part of the many issues it was asked to decide between these parents.

For the full text of the decision, see:

V.P. v. D.M., 2019

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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