Skip to content

Posts tagged ‘division of family property’

Court Curbs Father’s Social Media Activity

Image result for social media

Court Curbs Father’s Social Media Activity

The decision a case called Cooper v. Primeau serves as good illustration of the level of detail that a court must address, in disputes between parents and former spouses.   In this ruling, the court took specific aim at the father’s habit of posting derogatory comments about the mother on social media such as Facebook.

The factual underpinnings were rather routine, involving normal matters such as custody, access and child support of the separated parents’ two children.  After several prior rulings, the court was left with two issues:

  • Whether the parents were required to provide each other with their updated phone number; and
  • Whether the parents may post photos and information about the children on social media such as Facebook.

Issue around providing a phone number turned out to be easy:  The father indicated before the court that he was prepared to agree to providing the phone number as long as the calls from the mother were limited to emergencies regarding the children.  The court made an order accordingly.

But the social media aspect was a little more contentious.  The mother made several accusations around the father’s use of the internet, including that he had:

  • Blocked her on social media;
  • Used social media to broadcast and discuss his ongoing dispute with the wife regarding access to the children; and
  • Used “crowdfunding” through social media to raise funds to assist him with his legal costs. In doing so, he was very critical of the mother in his plea for funds.

In his defense, the father contended that he wanted to continue to use Facebook as a means for his family to get to know the children.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox. Sign up here.]

Nonetheless, the court concluded that while it may be reasonable to allow him to publish photos and comments about his children generally, these types of posts could justifiably include any mention of the legal dispute between the parents, or any derogatory comments about the mother. The court noted that “associating the children to such a legal battle [between the parents] in a public forum is not in their best interests.”

Ultimately the court made an order about the social media aspect on specific terms:   Posting photos on Facebook was okay, but posting comments on his dispute with the mother, making derogatory comments about her, or posting anything about his access issues to the children, was not.

For the full text of the decision, see:

Cooper. v. Primeau, 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

 

Court Issues Important Ruling on “Double Wills”

Image result for wills

Court Issues Important Ruling on “Double Wills”

In some circumstances, we recommend  that clients prepare a “double” Will – more properly referred to as a “primary” Will and a “secondary” Will for a single testator.  The primary Will deals with estate assets that require probate; the secondary Will covers assets that can be transferred to beneficiaries without having to go through the probate process.

Done right, this can minimize a testator’s probate fees and administration taxes.

However, the ruling in a recent Ontario decision called Re Milne Estate addressed a question that can dramatically affect the legal validity of this kind of Will arrangement.  Specifically, the court considered whether a Will is still valid if it allows the executors to decide whether property falls under the primary Will or the secondary Will.

The testator in Re Milne Estate had created two Wills.  The Primary Will covered all his property except certain named assets, and except other assets that the Trustees determined did not need to be included after-the-fact.   The Secondary Will addressed all property owned by the testator, and then specifically included certain named assets, and included those assets that the Trustees decided could be left out.

This wording was problematic; the two Wills essentially worked at cross-purposes to each other.  To be valid in law, a Will of any type had to conform to certain requirements, most notably that it had to demonstrate certainty in terms of the subject-matter that it covered.   This included certainty as to:

  • The intention to create a legal trust mechanism;
  • The subject-matter or property committed to the trust; and
  • The objects of that trust or the purposes to which the property is to be applied.

After confirming that there is no legal prohibition against the use of multiple Wills in Ontario, the court held that in this particular case, the Secondary Will was valid, but the Primary Will was not.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox. Sign up here.]

Although it met two of the other legally-required “certainties,” the Primary Will in this case fell short of meeting the requirement as to certainty of the subject-matter or property:  By giving the Trustees after-the-fact discretion it left questions as to the exact property that was subject to its provisions.  In contrast, Secondary Will included all of the testator’s property of every kind, without exclusion.  It overlapped with the Primary Will completely, and with no gap.

The court accordingly directed the registrar not to accept the Primary Will for probate, but allowed the Secondary Will to go forward.

For those with multiple Wills, this decision in Re Milne Estate signals a need to have the wording reviewed by a lawyer, to ensure that the wording is valid and achieves its intended goals.

For the full text of the decision, see:

Milne Estate (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

 

Italy Proposes New Law with Hopes to Abolish “Support”

Image result for italy law

Italy Proposes New Law with Hopes to Abolish “Support”

The Italian government has recently proposed a Bill to abolish child support and sole custody. The Bill is intended to provide a framework for “perfect co-parenting”, yet critics fear the effects it may have on women’s rights.

The Bill indicates it would enable parents equal time with their children and each parent would pay for the child’s expenses whenever they are in their care. If one of the parents are unable to pay the expenses, then the other parent (who has the financial means) would pay for those expenses directly and not in the form of “support”.

     [While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox. Sign up here.]

Critics of the proposed legislation fear that since Italy’s society is made up of less than 50 percent of women who work outside of the home, that this would influence mother’s with unstable employment to feel pressured into remaining in an unhealthy marriage. Nadia Somma, a representative of Demetra, an Italian anti-domestic violence center, stated that the proposed law would “turn back the clock 50 years on women’s rights”.

Due to current government support, this legislation is likely to pass in the Italian Parliament. Experts indicate the enforcement period to range from six to 17 months.

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

 

 

 

Coffee With Lawyers: From NBA to Law School

Coffee With Lawyers: From NBA to Law School

Ever want to sit down and grab coffee with a lawyer? Here’s your chance! Get to know our Student at law Ajit Roopnarine.

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

Online Game ‘Fortnite’ Cited in Hundreds of Divorces

Image result for fortnite

Online Game ‘Fortnite’ Cited in Hundreds of Divorces

The online video game “Fortnite” which has grossed over $1 billion in revenue since its launch in 2017 and 125 million users, has recently been discovered to have been one of the reasons that at least 200 couples in the United Kingdom have cited for divorce.

Divorce Online, a U.K. company which offers insight into divorce resources and services recently posted a blog indicating that they had noticed many of the inquires and petitions they were reviewing had mentioned the extended use of the game as a contributing factor for the couples divorce wishes. The findings also showed that these those who cited the game were for the majority from couples where one of the parties played the game, and the other did not.

 

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox. Sign up here.]

 

A Divorce Online spokesperson also stressed that although the game’s influences were only evident roughly 5% of the total petitions this year, there is a link between “gaming disorder” and other addictions to drugs, alcohol or gambling.  In June, the World Health Organization (WHO) had officially recognized “gaming disorder” as a mental health related issue. The disorder has shown to have negative effects on relationships due to the precedence that gaming takes to the person over other activities.

Time will tell if this is a mere blimp for couples reasons for a divorce but the popularity for “Fortnite” does not seem to be slowing down anytime soon as it currently maintains nearly 40 million players each month.

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 Clan Law Govern Family Dispute Between Indigenous Couple?  Appeal Court Hands Down Latest Ruling

 

Image result for indigenous lawDoes Clan Law Govern Family Dispute Between Indigenous Couple?  Appeal Court Hands Down Latest Ruling

The next chapter in the ongoing legal saga in the case of Beaver v. Hill has arrived – in the form of an Court of Appeal decision which potentially allows an important constitutional question on Indigenous self-governance to get a full hearing before an Ontario court in the future.

We have reviewed in the past about this case, which involves Ken Hill, who is a wealthy Indigenous co-owner of the largest cigarette company on the Six Nations reserve. He is resisting the claims by his former romantic partner, Brittany Beaver, for almost $86,000 a month in spousal support, and $33,000 a month in child support for a child they had together. Hill earns about $2.1 million per year, tax-free.

One of the key issues is whether this Indigenous former couple’s family dispute should be decided under the regular Ontario family laws, or else under the laws that govern their particular clan, which is the Haudenosaunee.  Essentially, Hill claimed that he had an Aboriginal and treaty-based right, protected by s. 35 of the Constitution Act, 1982, to have his family law disputes resolved pursuant to Haudenosaunee laws. He essentially claimed a constitutional exemption from having the Ontario court and family law processes to determine the dispute between him and Beaver.

While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox. Sign up here.]

In a prior ruling on a motion, spanning more than 150 paragraphs, the judge dismissed Hill’s constitutional argument that Haudenosaunee laws should be applied to decide Beaver’s support claims.  She ordered those arguments be stricken from his pleadings, and directed that the matter proceed in the usual fashion, under the customary provincial family laws. The judge also addressed several procedural objections as to the adequacy of Hill’s pleadings on the constitutional issue, but refused to give him permission to amend them.

As we reviewed  back in April of this year, Hill had filed an appeal which asserted that the motion judge had been hasty in permanently closing the door to his constitutional challenge at such an early stage in the proceedings.

That appeal has now been heard and – from amidst numerous complex issues – Hill has at least been vindicated in his argument that the motion judge had been premature. The Appeal Court ruled that he should have been given permission to amend what were called his “woefully inadequate” pleadings, especially in light of the seriousness of the constitutional issue raised.   The court said:

The version of Mr. Hill’s amended answer considered by the motion judge was poorly pleaded and lacking in detail. Neither Mr. Hill’s pleading, nor the ramshackle way in which the constitutional claim was asserted and is being developed, does justice to the seriousness of the claim. … Nonetheless, as I will explain, it was premature to dispose of the constitutional claim at this early stage. It is difficult to evaluate Mr. Hill’s claim under s. 35 of the Constitution Act, 1982 at this early stage of the proceeding. It would be unwise to dismiss the claim summarily on such a scanty record.

In short:  Even in light of Hill’s shoddy pleadings, a summary motion to have them struck was not the proper way to deal with and dismiss his claims involving Aboriginal and treaty rights.

Instead, the court struck out Hill’s pleading on the constitutional issues, but granted an order allowing him to amend it with permission of another court. It also refused to have Beaver’s support claims halted until Hill’s constitutional challenge was fully resolved; instead, Beaver was allowed to obtain interim support for herself and the child.  This was the best way to balance her immediate financial needs while balancing Hill’s interest in having his constitutional claim determined.

For the full text of the latest decision, see:

Beaver v. Hill

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

Cheating Wife Busted When Husband Spots Her on Google Maps

Image result for google maps

Cheating Wife Busted When Husband Spots Her on Google Maps

Many of my past Blogs have chronicled the use – or attempted use – of Facebook evidence in Canadian family law proceedings.  But here’s a little twist:  In a news item from Peru, a husband learned of his wife’s extramarital affair through an image he found on Google Maps, through the “Street View” feature.

While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox. Sign up here.]

The photos shows his wife, sitting on an outdoor bench with a man reclined and leaning his head on her lap.  She is stroking his hair in what suggests there is an intimate connection between them.  Perhaps ironically, the image was taken near the Puente de los Suspiros (or “Bridge of Sighs”), which is a tourist attraction in Lima, Peru.

The husband uncovered the photos, which were taken by Google in 2013, while planning a trip to that area.  He was using Google Maps to look for directions.   After finding the image, he confronted his wife about the affair, which she admitted to.  They have since divorced.

Latin American news site La Cronica reported that the man posted about the incident on Facebook.

For further reports on this item, see:

https://www.newshub.co.nz/home/world/2018/10/divorce-after-cheating-wife-snapped-on-google-maps.html

https://www.travelandleisure.com/travel-tips/mobile-apps/man-discovers-affair-google-maps-divorce

https://imagesvc.timeincapp.com/v3/mm/image?url=https%3A%2F%2Fcdn-image.travelandleisure.com%2Fsites%2Fdefault%2Ffiles%2Fstyles%2F1600x1000%2Fpublic%2F1539363024%2Fbridge-of-sighs-lima-peru-WMNCAUGHT1018.jpg%3Fitok%3DTbSrmZwA&w=1000&q=85

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

$25 Online “Therapy Dog” Certificate Did Not Solve Former Couple’s Dog Ownership Dispute

Image result for therapy dog

$25 Online “Therapy Dog” Certificate Did Not Solve Former Couple’s Dog Ownership Dispute

The recent decision in Murray v. Choudhary features an interesting twist on the usual dog-ownership dispute between formerly married couples.

The spouses had been married 10 years when they separated, and had numerous issues that they needed the court to resolve between them.  These included spousal support, a declaration in connection with the matrimonial home, listing the home for sale, and the return of the wife’s engagement and wedding rings, worth over $19,000.  Also it was alleged that the husband had moved to Germany under the pretext of doing is MBA abroad and setting up a business, when it seems he was really there to take up with another woman.  This sparked various issues around separation date and related matters.

Now that the couple sorting out their financial and other issues before the court, one of the points of contention was over their dog, named Bianca.

The wife claimed that the dog belonged to her, and the court tallied up the evidence in favour of that conclusion:

The [wife] provided evidence to the court that she paid $700 for Bianca in July of 2012, she reported her purchase to her family by email and photograph on July 19, 2012, she completed training with Bianca at “Dog Dayz” in February of 2014, she attended to all of Bianca’s veterinary appointments, she registered Bianca with the City of Ottawa as her dog, she cared for Bianca (but for one feeding in the evening and some walks), and she reported Bianca as having been stolen to German authorities when she feared Bianca would not be returned to her.

While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox. Sign up here.]

The husband claimed otherwise;  he insisted that Bianca was a “form of therapy dog” that soothed and comforted him, and that he had insisted on taking the dog with him to Germany because she would “help him succeed in his studies.”

However, the wife gave evidence to easily explain away that contention:  She said they had simply purchased a $25 certificate over the internet to give the dog “therapy dog” status, with no verification whatsoever that the husband needed or would benefit from it.   This sham certificate paved the way for the husband to travel with the dog unfettered.   As the court explained:

The [wife] however, provided an explanation that she and the [husband] obtained a Certificate that Bianca was a “Therapy/Companion Dog” on the internet for $25 in 2015 to permit them to travel to the US to visit the [husband’s] family and to stay in hotels with Bianca. They later obtained a letter from a psychologist on-line, who had never seen the [husband], for $200 which permitted them to travel with Bianca to Europe in the spring of 2017. To demonstrate how easy it is to get a service dog certificate on-line, the [wife] again did so on February 22, 2018 for $200.

Still, the court pointed out no matter how easy it had been to buy a “therapy dog” certificate online, it did not help the court in determining who actually owned Bianca.  The court said:

All of which is to say, that any of the certifications provided by the [husband] or the [wife] either that Bianca is a “service” or “support” dog, or that she is permitted to travel with one or the other, do not assist the court in making the determination of who owns her. Most significantly, the [husband] has provided no evidence from any treating physician that he currently has that he requires a support or service animal. Based, therefore, on all of the evidence referred to above, I find that the [wife} is the rightful owner of Bianca.

Although the court had many other complex issues to contend with in the larger context of the parties’ litigation, it said that the issue of who owned Bianca in this scenario was straightforward:  It was the wife.

For the full text of the decision, see:

Murray v. Choudhary

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