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Posts tagged ‘and enforcement of court’

Is Four Years Long Enough for Wife to “Adjust” to Canada?

 arrive

Is Four Years Long Enough for Wife to “Adjust” to Canada?

After a divorce, the question of whether a former spouse is entitled to spousal support involves many factors and considerations: One of them is financial means of the spouse who is paying; the other is the level of economic self-sufficiency of the other spouse who would be receiving it.

In a recent Ontario case, one of the key questions for the courts was how long it should take a separate wife to “adjust” to Canada, to the point where she could work and be self-sufficient enough not to need her former husband’s financial support.

The couple had met on-line in 2002, and were married in Panama in 2004. The wife, together with her child from a previous relationship, moved to Canada in 2007 under the husband’s sponsorship. When they separated two years later, the husband was earning almost $80,000 per year, while the wife was unemployed.

On an interim basis pending their divorce, the husband was ordered to pay a total of $62,500 spread out over four years, mainly for spousal support.

However, as part of the later divorce proceedings the wife asked for spousal support beyond that initial 4-year period, claiming the husband should pay support to her until she could find a full-time job working 35 hours per week. The court described her position this way:

The applicant was self-sufficient before losing her job [in Panama]. After that she became dependent on the respondent. When the applicant arrived in Canada, her dependency on the respondent increased. She was living in a new country where she had no friends or family other than the respondent. The applicant was concerned about her son who spoke minimal English and was anxious to get him settled in his new life.

While conceding the wife’s significant dependence on the husband, the court pointed out that her current efforts to find work were not particularly persistent or focused:

Unfortunately, the [wife] has devoted time trying to upgrade her education rather than earning income. She is now focused on working as a teacher, but she has no idea if her credentials will be accepted by the College.

The [wife] has had ample time to adjust to living in Toronto. Her son is settled in school. They have been living in Toronto for almost six years. While I accept that she has been looking for work, her efforts have not been aggressive and focused. Her job search record shows that she has been emailing her resume. She has not recently relied on any job placement agencies to assist her.

Moreover, the court accepted the husband’s position that by this point, the wife could be earning at least $20,000 per year, for example by working part-time in a restaurant, store, or as a cleaning lady. In making its determination, and imputed this income to the wife accordingly.

In the end, and in light of all these circumstances, the court ordered the husband to pay an additional 12 months support of almost $1,000 per month, past the 4-year mark, after which time his obligations to her would end. In other words, a total of 5 years of support from the husband was adequate in the circumstances.

For the full text of the decision, see:

A. (L.M.) v. H. (P.) (2014), 2014 ONSC 1707; additional reasons at (2014), 2014 ONSC 3366

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

 

Is Two Decades Too Long to Wait to Ask for Spousal Support? Yes… and No.

 decades

Is Two Decades Too Long to Wait to Ask for Spousal Support? Yes… and No.

I came upon an older case that I thought provided a good lesson on not waiting too long to pursue your legal rights and remedies in family law. In this case, the foot-dragging was unusually lengthy, but the underlying lesson serves as a good reminder to everyone.

The Alberta case in R.B. v. S.B., involved a couple who had already been divorced for about 18 years when the wife went to court for the first time to ask for a spousal support order.

The question for the court was this: Was it too late? And how much support should the wife receive after that length of time?

By way of background, the couple had been married six years and had a severely disabled child together when they decided to separate. In preparing for divorce the wife had received independent legal advice confirming that she was entitled to seek spousal support from the husband under the circumstances. Rather than do so, the court reserved the issue of spousal support, but ordered the husband to pay $75 per month in child support.

The couple then went their own separate ways. The wife continue to care for their disabled child and in the early years after divorce earned about $6500 per year; she was later diagnosed with chronic fatigue and fibromyalgia and at the time she applied for support was earning only about $100 per month doing babysitting. She had never asked for an increase in child support in the entire post-divorce period.

The husband, meanwhile, had remarried about thirteen years after the divorce and had another family.

A full 18 years after the divorce the wife claimed spousal support from the husband, who was now a social worker earning $43,000 per year. She was successful before a judge, who – despite the wife’s very lengthy delay in making her claim – ordered the husband to pay $1,500 per month without giving any written reasons for the decision.

The husband appealed; while he conceded that he owed spousal support, he disputed the amount.

The Appeal Court allowed the husband’s appeal, and reduced the $1,500 per month to only $500 per month, writing:

There is nothing in the very unusual facts of this case that provides a method of setting the quantum of spousal support with any degree of mathematical certainty. However, the long delay in seeking spousal support and the short duration of the marriage are key factors militating against the amount awarded by the chambers judge. In our view, that award was excessive.

The [wife’s] circumstances make it unlikely that she will ever enjoy a comfortable level of income. On the other hand, although the [husband] is more economically secure than she is, he is not wealthy and he has a new child to support. In this situation, all that can be accomplished with a spousal award is a modest alleviation of the impoverished circumstances of the [the wife].

Bottom line: While the wife was still entitled to spousal support after nearly two decades. However, the fact that she had waited so long was one of the factors the Appeal Court took into account in awarding only a modest amount.

For the full text of the decision, see:

R.B. v. S.B., 1996 ABCA 2015 (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 our main site.

Husband Continues to Live in Home After Split – Should He Pay Occupation Rent to the Wife?

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Husband Continues to Live in Home After Split – Should He Pay Occupation Rent to the Wife?

The couple, who had married in 1973, separated almost 40 years later. During the marriage the husband had worked at a local mill and mine, while the wife had a traditional role and stayed home to raise their children.

They owned the matrimonial home jointly, and the husband continued to live in it after they split.

The wife applied to the court for an order that the matrimonial home should be listed for sale; she also asked the court to order the husband to pay her occupation rent, pending the eventual sale.

After considering the various factors, the court granted part of her request forcing the home to be listed – even though the home was located in a small mill town where the mill had closed, there was still a market for real estate in the area and the home was to be listed at a mutually-agreed price after consulting with a realtor.

However, the court declined to order the husband to pay occupation rent. Pointing out that its ability to make such an order was fully at its discretion, the court still had to balance the various relevant factors to determine whether ordering occupation rent was reasonable in all the circumstances. It concluded that at this stage, such an order would be premature.

This was because the current arrangement allowed the husband to live in the house inexpensively, so it did not make sense to force him out of the home in the winter when there was no one available to look after it. Instead, the court ordered that the house did not have to be put on the market until April, and the proceeds could be put into trust until the court made another order.

For the full text of the decision, see:

Charron v. Charron (2014), 2014 ONSC 496, 2014 CarswellOnt 694, J. deP. Wright J. (Ont. S.C.J.) [Ontario]  http://canlii.ca/t/g2s0h

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.

Should Kids Be Forced to Spend Christmas With Dad?

christmas dad

Should Kids Be Forced to Spend Christmas With Dad?

The holidays are supposed to be about family togetherness. But for many separated and divorced Canadian parents, it means yet another layer of hassle on top of what has already been an acrimonious split from each other.

The Ontario decision in Gharabegian v. Mckinney is a case in point. There, the father applied to the court on a last-minute basis to obtain access to his two kids, aged 12 and 7, during Christmas. Since the kids were going to be spending the first half of Christmas with their mother and her family in Connecticut, the father wanted them to spend the second half of the holiday with him. He wanted the court to order the mother to deliver the children to the Air Canada counter at La Guardia airport at 3 p.m. on December 26th, so that he could take them to Blue Mountain Resort for a week-long ski holiday. (He initially asked for police assistance with enforcing the order if necessary, although that request was later abandoned).

However the mother objected to the father’s plan, mainly because she said the children did not want to go. The 12 year-old son had apparently threatened to lock himself in the bathroom.

The court had to decide whether it should grant the father’s access despite the children’s express wishes.

It decided it should. It was in the children’s best interests to go on the week-long ski getaway under the circumstances.

First, the court acknowledged the Ontario family law principles recognizing that, for the best interests of the children, they must have maximum access with both children and the custodial parent must facilitate such contact.

Next, the court noted the benefits of the father’s plan: for example it did not prevent the mother from taking the children to Connecticut as she had done in years past. Moreover, the mother had actually agreed by way of Minutes of Settlement that the father would actually have the children for an uninterrupted week each Christmas. To allow otherwise would mean that the mother would succeed in impeding the father’s attempts to build his own family traditions with the children.

The court then focused on how and to what extent the children’s wishes should factor in its decision. While acknowledging that it was required to consider them, those wishes were not the only factor that governed. Rather, they had to be considered against the entire factual background and the history and relationship between all the parties.

For example, while it accepted that the 12-year old son especially did not want to go, the court noted that the boy had been having normal issues with the father and this made it all the more important for them to spend time together and foster their relationship. Likewise, although the 7-year old daughter had also emailed the father to tell him to “stop ruining Christmas for me and making me upset”, it was likely that the mother’s expressed anger to the children about the father had influenced the daughter’s views in this regard.

Overall, the mother had likely helped create an environment where the children were feeling conflicted. Yet the court emphasized that the children could not be asked to make these kinds of decisions, as it was asking them to choose between two parents whom they love. This was too heavy a responsibility for them to bear.

For the full text of the decision, see:

Gharabegian v. Mckinney, 2008 CanLII 68150 (ON SC)  http://canlii.ca/t/220f9

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.

Even More Quips from Mr. Justice Quinn

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Even More Quips from Mr. Justice Quinn

Those of you who have read my Blogs in the past will know that in the past I have highlighted some of the more amusing decisions written by Mr. Justice Quinn of the Family Court branch of the Ontario Superior Court of Justice. In a recent Family Law decision called Stirling v. Blake, Mr. Justice Quinn is in fine form yet again.

The factual background of the case – which involved an application by a mother to vary a prior order giving the father access to their children – is not really necessary to appreciate the literary flair that the judge demonstrates, in both the judgment itself and in numerous humorous footnotes. Mr. Justice Quinn begins his reasons in Stirling v. Blake with this opener:

In the period 2001-2013, these parties (individually or together) appeared in Family Court 65 times. At the St. Catharines Court House, they are more tenants than litigants.

After chronicling the mother’s various failed relationships with other men after her separation from the father, the judge wrote:

The fact that [the mother] appears to be a serial spouse is unsettling, but it is not terribly relevant to the motions.

In a footnote, Mr. Justice Quinn added:

If her current relationship fails, [the mother] should seek counselling with a view to determining why she has no talent for picking a mate. Alternatively, she should not live with or marry another man without the written permission of her six closest friends, who, no doubt, will see what she, so far, has failed to see.

Turning next to a description of the father, Mr. Justice Quinn observed:

[The father] is a 55-year-old, self-employed painter, sometimes likeable, frequently articulate and always passionate. He has been married, divorced and is a grandfather and, like so many of the poor souls who amble into Family Court, he has not learned from his mistakes. He is too busy perfecting them. [The father] dances to the tune of a different drummer.

In a footnote, he added:

In fact, so does his drummer.

About the father’s residence:

After making a point of defending the cleanliness of his apartment, he freely admitted that his premises “have clutter.” As he put it, the clutter consists of the evidence of “all of the past activities” of his children. Apparently, over the years, whatever the children have done in his apartment, he has left in place as some sort of shrine.

In the footnote, Mr. Justice Quinn writes:

This might be cute for a few days, but after years have gone by cute becomes creepy.

On the father’s admitted frequent marijuana use:

I was alarmed when I heard that [the father] uses marijuana with the same casual frequency that others drink coffee. But my eyebrows were the only ones in the courtroom that arched. His marijuana use is a fact known from 2001 onwards, yet it did not play a role in any of the orders that were made. Perhaps my alarm manifests a fuddy-duddy perspective (I am aware that the decriminalization of marijuana use currently is part of the platform of at least one Federal political party). I gave thought to ordering that [the father] not use marijuana when with the children. However, I abandoned the notion as it would be a mere finger-wagging order (I would be directing [the father] to behave himself and to not commit a criminal offence during access visits).

As an aside, in yet another footnote Mr. Justice Quinn added:

I might as well order Mr. Blake not to rob a bank while exercising access.

And finally, Mr. Justice Quinn observed:

In a trial involving self-represented litigants, my expectations are low: all I ask is that they be clothed. If they can fake civility toward each other and pretend to be respectful of the court, that is a merciful bonus.

For the full text of the decision, see:

Stirling v. Blake, 2013 ONSC 5216 (CanLII)  http://canlii.ca/t/g02jg

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.

The Ins and Outs of “Income”

 income

The Ins and Outs of “Income”

If you are the person obliged to pay child support, you likely know that one of the basic principles of Family Law is that the amount you are required to pay under the Canadian federal Child Support Guidelines is directly related to your income. It sounds simple enough; however there are some important points to know:

• For these purposes, your “income” means annual “total income” which is usually the amount found on the T1 General form as issued by the Canada Revenue Agency.1

• However – as discussed below – in some circumstances this amount may be adjusted by a court, or a different year’s tax return may be used.

• Also, the law recognizes that the amount disclosed on the tax return is not necessarily the same as the income that is calculated using the various listed “sources of income,” as those various categories are set out on the T1 tax return.2 (Usually they are the same, but not always – e.g. if you have not yet filed a return, or if the one you filed is not proper). So it is the latter amount that governs for Guidelines purposes.

There are some additional exceptions and qualifiers to this general rule:

• The Guidelines do not require that “income” is the figure on the last income tax return in every single case. Perhaps you have had an unusual year – your income may be higher or lower for that year due to some unique circumstances. In such cases, the court had the discretion to “consider more than a single number on a tax return”.3

• You and your spouse can also agree to some slight modifications to the general rule. For example:

o You may agree by way of separation agreement to use a prior year’s line 150, rather than the current one; the court may uphold this kind of adjustment if appropriate.4

o With some restrictions you may agree to use a different date from the one otherwise used for the taxation year. 5

• Finally, a court can itself make adjustments to the “income” amount in the right circumstances:

o For example, it can use an average of the past few years, if that is more representative determination of the amount.6

o Similarly, in unusual situations a court may add to your “income” – for example by adding back the amount of voluntary charitable donations you make in a year.7

Note that if for some reason you feel that the line 150 income amount is not the fairest determination of your income, then you have the burden of showing that this is the case.

For the full text of the decisions, see:

1. Bak v. Dobell, 2007 ONCA 304

2. Henry v. Henry (1997), 1997 CarswellOnt 4399 (Ont. Gen. Div.)

3. Clark v. Clark, 2012 ONSC 1026; additional reasons 2012 ONSC 1965

4. Hodge v. Jones, 2011 CarswellOnt 2582, 2011 ONSC 2363 (S.C.J.)

5. Crabtree v. Crabtree, 70 R.F.L. (6th) 371, 2009 CarswellOnt 1918 (S.C.J.)

6. Toon v. Toon, 2011 CarswellSask 511, 2011 SKQB 281 (Q.B.)

7. Zubek v. Nizol, 2011 CarswellBC 1481, 2011 BCSC 776 (S.C.)

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.

What is an “Uncontested Divorce”, Exactly?

uncontested

What is an “Uncontested Divorce”, Exactly?

The term “uncontested divorce” is one that is often bandied about quite casually, but is one that likely isn’t well-understood by most people.

In Canada the law sets out that you can only obtain a divorce if certain criteria are met – namely that the marriage between a couple has broken down. By law, this is deemed to occur if:

• you and your spouse have lived separate and apart for one year with the idea that your marriage is over; or

• your spouse has committed adultery and you have not forgiven your spouse; or

• your spouse has been physically or mentally cruel to you, making it unbearable to continue living together. (Cruelty may include acts of physical violence and those causing severe mental anguish).

However, in cases where you and your spouse are “on the same page” and do not dispute the need for a divorce from each other, then there is a relatively straightforward procedure in place for obtaining one (at least in comparison to situation where the divorce is contested).

You must simply file an Application for Divorce with the court that is located in the municipality where either you or your spouse have lived for at least one year (or where your children reside if you are seeking to have custody or access settled as well).

You must file, serve and register this Application in accordance with certain rules, together with a filing fee and a copy of the marriage certificate or marriage registration certificate (if available. If the certificate is not available or is impractical to obtain, then you must include the reason, in an affidavit that is filed alongside the other materials).

Any arrangements in connection with child support must be properly described, and they must conform to the Child Support Guidelines. Any prior court orders or domestic contracts that you or your spouse have obtained previously, relating to support (etc) must also be filed.

Finally, you and your spouse will also include a draft Divorce Order; this will have to include certain other documents in situations where child or spousal support is also being settled as part of the uncontested divorce.
Once all the documentation is in order, the court will issue a Divorce Order and send a copy to you and your spouse. The Divorce Order officially takes effect on the 31st day after the date it was granted by the court.
Seems easy, right? The process is certainly more streamlined than a contested divorce, but it still involves a lot of detail; feel free to give our office a call and we can help.

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.