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Posts tagged ‘division of family property’

Setting Aside Separation for Non-Disclosure of Assets:  Is There a Difference Between “Considerable” and “Significant”?

Setting Aside Separation for Non-Disclosure of Assets:  Is There a Difference Between “Considerable” and “Significant”?

In a case called Turk v. Turk, there was no dispute about the fact that the husband had failed to disclose “considerable” assets during the negotiation of a Separation Agreement with his wife.  The narrower question was whether those undisclosed assets were “significant” enough to invoke the court’s power to set aside the parties’ Separation Agreement altogether.

The couple had been married for nearly 19 years when they separated in 2008.  After lengthy mediation, they struck a Separation Agreement in which the husband agreed to pay the wife $10,000 per month for child and spousal support, together with a $180,000 in equalization payment.

Four years later, the wife went to court to have the Separation Agreement set aside, in favour of several orders in her favour.  She relied on a provision of the Ontario Family Law Act (FLA) allowing a court to set aside any Separation Agreement where there had been a failure by one of the parties “to disclose to the other significant assets … existing when the [Separation Agreement] was made.”

That word “significant” was key.  An earlier trial judge had found that the husband had indeed failed to disclose interests in certain family business acquired during marriage, as well as payments from a shareholder loan, and capital income from a share sale.   Despite concluding that these ongoing non-disclosures were “blameworthy” and that asset value was “considerable”, the court found there were not “significant” within the meaning of the FLA.

The earlier trial judge reasoned that even with the non-disclosure, the husband had agreed to settle on terms that were very favourable to the wife, especially since his business was in decline.  He had also made certain monetary concessions at the mediation, which may not have happened otherwise.  In short, the trial judge concluded that had the husband disclosed the concealed assets during mediation, he would have taken a less-generous, more hard-line approach to the negotiations.  This in turn would have resulted in a vastly different Settlement Agreement from the wife’s point of view.

A later appeal to the Court of Appeal was dismissed.  The Court noted:

The trial judge is said to have answered the wrong question – whether the non-disclosure was significant – instead of whether the non-disclosed assets were themselves significant. But this seems to be a purely semantic distinction. It is the significance of the non-disclosed assets that makes the non-disclosure itself significant. Determining the significance of non-disclosed assets is not, as the [wife] argued, the purely mathematical exercise of comparing the value of the non-disclosed assets against the value of the disclosed assets. Rather, the trial judge appropriately relied on case law finding that “the term significant must refer and be measured in the context of the entire relationship between the parties” … and that significance “should not be considered in isolation of all of the surrounding circumstances”.

The Appeal Court concluded that the trial judge correctly applied the law, by assessing the “significance” of the assets within the context of the surrounding circumstances, not necessarily by their dollar-value.  Here, the husband’s undisclosed assets had no bearing on either the equalization payment or the amount of child or spousal support (which had been calculated on something much higher than the husband’s actual income).

(The Appeal Court added that even the assets were “significant”, the FLA sill allowed the trial judge to use her discretion on whether the Separation Agreement should be set aside; there was no reason to interfere with the way the discretion was exercised in this case.)

For the full text of the decision, see:

Turk v. Turk, 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 Husband’s Death Affect Pending Divorce Order?

Does Husband’s Death Affect Pending Divorce Order?

Does a spouse’s sudden death trump an in-process divorce, or is it vice versa?   That was the legal question for the Ontario Court of Appeal in a case called White v. White, which featured a quirky set of facts.

The husband had applied for a divorce from the wife, and the court granted it.  However, before that divorce became final (which under Canadian law is on the 31st day after the divorce judgment) the wife obtained a court order for a “stay” – which had the legal effect of suspending the divorce proceedings entirely.  It seems that certain of her responding materials on the divorce application had not been brought to the judge’s attention.   There was no time-limit on the stay, however; it stated only that the divorce was stayed “pending further court order.”

As it turned out, the husband died before the stay could be lifted.

Since the divorce was never truly finalized, it was arguable that at the moment he passed away, the husband and the wife were technically still married.  This was an important point for estate purposes, since it affected the wife’s tentative entitlement under the deceased husband’s Will.  Sure enough, a dispute arose soon after between the wife and the husband’s adult children as to whether the marriage was terminated by divorce, or by the husband’s death.

The wife went to court to have it untangle the legal effect of this unusual scenario.

First, she brought a motion asking the court for an order “discontinuing or terminating” the pending Divorce Order, and declaring instead that the marriage was terminated the moment the husband died.  The wife’s motion was dismissed, and she appealed.

The Court of Appeal overturned the earlier ruling.  The Court’s reasoning was this:

  • The Divorce Order, which was still in process when the husband died, did not have the effect of ending the marriage. That was because under the wording of the Divorce Act, any marriage is only considered “dissolved” when divorce judgment “takes effect” – which is 31 days after the judge issues it.
  • In the usual course, a couple remains legally married during those 31 days.
  • However, If one of the spouses dies during that period, the judgment granting the divorce simply cannot take effect.

Turning next to the effect of the stay:  the court reasoned that at the time of the husband’s death, the Divorce Order was still in a state of suspension:

In this instance, the Divorce Order had been stayed until further order of the court, which prevented it from taking effect and from dissolving the marriage.

At the time of Mr. White’s death, the stay had not been lifted and the parties were still married. It follows that it is Mr. White’s death that ended the marriage.

In light of this conclusion, the wife’s request to terminate the marriage through divorce was superfluous. Still, the court also ordered that the Divorce Order was to be permanently stayed. The Court also clarified that the order did impact the wife’s right to seek any claim against the deceased’s husband’s estate.

For the full text of the decision, see:

White v. White, 2015 

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

 

When Can (or Should) a Court Force Parents to Go to Reunification Therapy?

When Can (or Should) a Court Force Parents to Go to Reunification Therapy?

Reunification therapy is court-ordered counselling, conducted by a court-designated therapist, designed to help bridge the rift between a parent and a child after a divorce or separation.  It can be part of a determination as to custody and access, or may come up as part of a review once these orders have already been made. Reunification therapy can be ordered at a motion or at a trial.

Two recent Ontario cases provide guidance on when these kinds of orders are appropriate.

In Testani v. Haughton, the court considered whether to order reunification counselling for the daughter of two parents who had significant conflict in the post-separation period.  At separation, they had been married about 12 years and had two children together, including a 13-year-old daughter who the father claimed was actively being alienated from him by the mother.  The father had had no access to the daughter for several years, and she wholly refused to see him.

The child had attended counselling as directed by the court, and it resulted in the therapist’s recommendation that – while the daughter loved her father and was looking forward to future access with him – she should not be forced to see him at this point, since it would damage the prospect of any future relationship.  It was also recommended that she should receive individual counselling, as well as joint reunification with the father, to ease his transition back into her life.

The mother claimed she was on-board with these recommendations, but also did not want to force the daughter if she was currently unwilling to see him.

In examining this scenario in the context of resolving the parents’ issues, the court stipulated some of the criteria it must consider, in deciding whether to make an order for reunification therapy in the first place.

First, the court reflected on whether it even had the jurisdiction to make this kind of order at all, and after reviewing the prior cases, concluded it did.  Then it summarized the governing principles to be applied, as follows:

  • Orders for reunification therapy are to be made sparingly.
  • There must be “compelling evidence” that the therapy will be beneficial.
  • The request to the court must be adequately supported by a detailed proposal, identifying: a) the proposed counsellor; and b) what is expected.
  • A parent’s or a child’s resistance to therapy is an important factor in deciding whether to make the order, but it is not a determining one.
  • Where practical, the court should give appropriate direction to the counsellor or therapist, and should receive a report after the therapy is concluded.
  • If a clinical investigation or assessment is already underway, the order should wait until those steps have been concluded.

On the point of a parent’s resistance to participating in therapy, a second recent case called Leelaratna v. Leelaratna stresses that a court must look beyond a parent’s stated refusal to co-operate, and assess how likely the parent would be to actually go.  The court said:

There may be various reasons for a parent’s resistance to therapeutic intervention; the parent may not be satisfied that the cause of the breakdown in the child-parent relationship has been properly identified; the parent may feel that therapy is premature and that other steps must first be completed; the parent may lack the financial resources to retain the recommended therapist, and/or; the parent may not wish to have to physically force a resistant child to attend counselling.  The court should assess the likelihood that a parent will comply with a therapeutic order once it is made, despite that parent’s professed refusal to engage. 

For the full text of the decisions, see:

Testani v Haughton, 2016 

Leelaratna v. Leelaratna, 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 Wife’s 27-Year-Long Failure to Look for Work Override Her Right to Spousal Support “Until Death”?

Does Wife’s 27-Year-Long Failure to Look for Work Override Her Right to Spousal Support “Until Death”?

The Ontario Court of Appeal was asked to address some interesting questions in a recent case called Haworth v. Haworth.  The former spouses – who had actually separated more than 30 years ago – came before the Court for its ruling on whether a 1991 spousal support agreement they had reached should be varied.  The questions were these:

Should that 1991 agreement, which granted the wife spousal support until death, still be valid once the husband retires from his lucrative profession?   And should it matter that the wife did not look for work at all throughout those 27 years?

The spouses had been married for 17 years when they separated, and were now both 73 years old. The wife, who was a research assistant at university, had stopped working outside the home after the birth of their second child. The husband had been a successful dentist – earning up to $300,000 per year – until he retired at the age of 72.

The 1991 agreement, which was enshrined by a court in a Divorce Judgment, provided that the wife should receive $4,000 per month until death.  The husband claimed that since his post-retirement income had now dropped to about $65,000 per year, the wife’s support entitlement should come to an end completely.

An earlier motion court judge had agreed, finding that the combined effect of the husband’s decreased income and the wife’s failure to look for work post-separation justified dropping her support entitlement to only $1 per month.  In fact, the motion court judge said the wife’s failure to look for work was “the most significant material change”, adding that she should manage her assets (including properties in France and Panama) in a way that achieved a reliable income stream for herself.

On the wife’s later appeal, the Appeal Court disagreed on this last point specifically. The wife’s failure to seek employment was not a “material change in circumstances”; moreover, the husband had been tardy in raising the issue.  The Court wrote:

We disagree that the [wife’s] failure to seek employment since 1991 constitutes a material change in circumstances. The clear wording of the divorce judgment was that spousal support would continue to death. The [wife] was entitled to rely upon that judgment. The [husband] waited far too long to raise the [wife’s] decision not to seek gainful employment until an age when she was effectively precluded from correcting the situation.

Simply put:  The 1991 agreement (as reflected in the Divorce Judgment) was a valid contract; it was safe to assume that at the time they entered into it, the spouses had contemplated the future certainty that the husband would be retiring at some point.

Plus, the agreement called for $4,000 per month support, which was actually a low figure given the husband’s income.  This spoke to the fact that it was intended not to reflect the current situation, but rather it was a “long view” arrangement that was intended to cover the wife’s support needs over her lifetime.  It also contained some measure of recompense for the fact that the wife had left her career to raise the couple’s children.

On the other hand, the husband’s sharp drop income was a “material change” allowing for a variation of the level of support.  The Appeal Court noted that while the fact of retirement may have been within the spouses’ contemplation in 1991, the effect of the retirement was not a factor in fixing the amount of support the wife was to receive.  The spouses, and the judge confirming that 1991 agreement, could not know at that time what the husband’s financial circumstances would be some 25 years later.

In adjusting the support amount, the Spousal Support Advisory Guidelines (SSAGs) could still be used as a benchmark today, even though they did not exist in 1991.  Reasoning that it should use the same ratio as the original agreement and order, the Court said:

Looked at in this way, the original order was for a low amount of support, i.e. only $4,000, but for a potentially much longer period of time, i.e. the [wife’s] lifetime. Now that the [husband’s] income has decreased to the equivalent of an earned income of $65,000 plus a return on his investment estimated at 27,000 per year (3% on one half of his jointly owned “open investments” of $1.8 million), and the [wife’s] income has increased to $32,000 per year, the amount of support should be varied accordingly. Given that the original support constituted approximately two thirds of the low end of the SSAGs, we would continue with that same formula, but based upon current income. Having regard to the parties’ current income, today the low end of the SSAGs would be $1,275. Two thirds of that amount is $850 per month for life.

For the full text of the decision, see:

Haworth v. Haworth, 2018 ONCA 1055, [2018] O.J. No. 6919 

Earlier motion to change:

Haworth v. Haworth, 2018 ONSC 159 (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

 

What Constitutes “Hardship” When You Are Well-to-Do?

What Constitutes “Hardship” When You are Well-to-Do?

In determining the proper amount of spousal support that should be awarded after a married couple divorces, the court is guided by various established legal and policy-based principles. One of them is that the support should seek to alleviate economic “hardship” on the part of the spouse who is entitled to receive it.

As with many of the other factors, the concept of “hardship” is relative:  What amounts to hardship in one family setting will be vastly different to what is considered hardship in another.

This dichotomy was well-illustrated in Plese v. Herjavec, which involved the high-profile divorce between Canadian television personality Robert Herjavec (most recently seen on the reality shows Shark Tank and Dragon’s Den) and his wife of 24 years, Diane Plese.

In the context of determining the appropriate amount of spousal support to which the wife should be entitled, the court wrote:

Spousal support is also designed to relieve economic hardship.  What is “hardship” in the context of this family?  I need to look at the pre-separation lifestyle of the family to understand this context.

At the date of separation, the parties lived in a 22,000 square foot home (not counting the basement) with an indoor pool, ballroom, tennis court, tea house, and ten-car garage housing numerous luxury vehicles. The home was located on more than 2 acres in one of the most exclusive areas of Toronto.  The parties owned a ski chalet in Caledon, a luxurious vacation property in Florida, boats and other water craft and a Muskoka cottage.

The former couple’s lifestyle was commensurately extravagant, as the court described:

The family travelled extensively.  Family holidays were often taken using THG’s private jet, which Ms. Plese described as one that can fly “over the ocean”.  Holidays included European destinations.  On a holiday in Greece, the parties rented a yacht and staff to sail the family around the Greek Isles.  Ms. Plese testified that if the aircraft was being used for THG business, and she wished to take a trip, Mr. Herjavec would charter a private plane for her.   Mr. Herjavec did not refute this evidence.

Ms. Plese’s financial statement shows she owns considerable expensive jewellery from Cartier.  At valuation day it was worth over $428,000.  Ms. Plese says this figure reflect roughly half of what it cost.  Again, I heard no evidence to the contrary.

Mr. Herjavec testified he spent $100,000 on a piano for High Point, but, since no one in the family could play, invested a further $25,000 on a device that would play the piano.  Mr. Herjavec owned and operated numerous luxury cars. The middle child, Skye, received a car for her 16th birthday.  The children were educated at exclusive private schools.  The two girls attended elite American universities.  Both older children have pursued post-graduate studies, at no personal financial cost to them.  The family lived a rarified existence of privilege and luxury.

It is telling that [their daughter] Skye, when asked whether it was true she enjoyed luxurious holidays with her family, simply answered:

I mean they were just vacations to me, I don’t – it depends on how you see them.

Skye was then asked how she saw them. She answered:

I was going on vacation with my family … it depends what you – like that’s how I grew up, that’s – it was a vacation with my family is how I saw it.

In awarding support, the court had to examine the post-split downgraded lifestyle that the wife was now living, in light of the divorce after a longstanding marriage.  The court explained:

Ms. Plese testified that her lifestyle has suffered since the breakdown of the marriage.  For example, instead of travelling by private jet, she flies with commercial airlines.  Instead of staying in a suite of rooms at luxurious hotels, she now stays in a single hotel room.   I have no evidence that Mr. Herjavec has experienced any similar reduction in his lifestyle.

I conclude that without spousal support, Ms. Plese will have suffered economic hardship as a result of the end of the marriage.

For the full text of the decision, see:

Plese v. Herjavec, 2018 

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

Court Decides it Can Order “Reunification Therapy” To Repair Fractured Parent-Child Relationship

Court Decides it Can Order “Reunification Therapy” To Repair Fractured Parent-Child Relationship

The parents had a child together who was now 12 years old.  When the husband returned from a two-week trip out of the country to deal with some urgent matters, he found that the mother hand moved out of the matrimonial home. The next day, he received a letter from the mother’s lawyer, saying she was formally separating from him.  Aside from a few visits within the next few days, the father was told that the child did not want to see him.  He launched legal proceedings immediately, to get a court order allowing him some access and shared parenting time.

Unfortunately, the twice-weekly access visits between the father and son did not go well, and the child showed strong resistance to participating in them. As the court explained:

I found, based on the evidence before me, that it was undisputable that [the child] experienced significant stress and anxiety around his visits with his father.  However, the cause of that fear and anxiety was quite unclear.   The mother blamed that fear on the father’s own behavior and actions, whereas the father was of the view that the mother was the cause of that fear as a result of her alienating behaviours and lack of support for the father-son relationship.  The contradictory and untested evidence did not allow me to come to any clear conclusions in that regard.

What was clear to the court, however, was that imposing more access with the father in these circumstances would likely lead to a further deterioration of the relationship with the child.  This was echoed by a  registered psychologist, who had been hired to perform a full parenting assessment.  The psychologist noted there was “something terribly amiss here”, and it led to extraordinary distress and conflict.  He recommended that separate therapy for the father and for the mother, as well as private counselling sessions for the child.  He also recommended joint counselling sessions for the child and his father, to try to build a functional and healthy relationship, and concluded that progress could not be made unless the court imposed participation and progress requirements on the parents.

In alignment with these recommendations, the court added:

It is crystal clear to me, based on the evidence before me, that without an integrated professional therapeutic intervention with this family, any hope to rebuild a positive relationship between [the child] and his father will be lost forever.  There is simply no legal solution for this family, unless it is grounded upon, and supported by, therapeutic assistance.  If this court does not have the ability to impose on the parties and their child the therapeutic order that is necessary to achieve the long-term changes in behaviours which are essential to rebuild [the child’s] relationship with his father, this court will have no power to assist this family or this child.  This conclusion is rooted in my finding that, without a sustainable change in behaviour, access between [the child] and his father, in its current form, is detrimental to his mental health and overall well-being, and not in his best interests.

However, this raised an important legal question:  Whether the court had the jurisdiction to make a therapeutic order requiring the parents or the child to engage in these various types of counselling, including “reunification therapy”.

After noting that the significant controversy arising from Ontario court rulings on this point, the court concluded that it did have the needed powers under the provisions of the Children’s Law Reform Act and under the Divorce Act, in accord with the “best interests of the child.”  The court was already imbued with broad powers allowing it to address a child’s best interests when the parents could not agree; these could comfortably include making therapeutic orders where warranted.   Also, even though they are not expressly provided-for in the legislation, courts routinely make a wide variety of orders in the course of adjudicating on custody and access matters (including requiring a parent to complete a parenting course; deciding in which school or in which activities a child will be registered; determining whether a child will be allowed to travel to a specific country; and deciding whether a child will be raised in a particular faith or educated in a particular language).

Having concluded it had the legal authority to make the order, the court considered all the established factors that are relevant to its exercise of discretion in this particular case, including the child’s own willingness to participate. It added while access to the father was not currently in the child’s best interests, there was still hope that the relationship could be repaired “if everyone meaningfully engages in the therapeutic work necessary to achieve that goal.”

In the end, the court ordered the father, mother and child to each engage in the therapy and counselling recommended by the psychologist, before access to the father could resume.  The court also asked the psychologist to undertake an update assessment in six months’ time.

For the full text of the decision, see:

Leelaratna v. Leelaratna, 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

Former Shark Tank Star Ordered to Pay Ex-Wife $125,000 Per Month in Support

Former Shark Tank Star Ordered to Pay Ex-Wife $125,000 Per Month in Support

In a recent ruling by the Ontario court the husband, well-known TV-celebrity Robert Herjavec was ordered to pay his ex-wife, Diane Plese, $125,000 per month in spousal support for an indeterminate period.  He was also ordered to pay her about $25 million, representing an equalization payment and her entitlement to shares in a cottage and vacation property. This is in addition to about $20 million she already received in assets from the marriage.

Herjavec, one of the stars of television’s Shark Tank and Dragon’s Den reality shows, had been married to Plese for 24 years before they split in 2014.  Their separation was prompted by the revelation that he had been having an extramarital affair.

At stake in the divorce was what they considered an “unimaginable fortune,” which had snowballed from an original $31 million sale of Herjavec’s cyber-security company called “Brak” in 2001.  This funded the development of a similar, equally-lucrative business later on.  The influx of wealth had a significant effect on the couple’s lifestyle, as the court explained:

After the Brak sale, the family’s spending patterns changed dramatically.  A new family home was purchased for over $7 million.  It was located in the exclusive Bridle Path area of Toronto.  In addition to many bedrooms, bathrooms, living and dining and family room, it also featured an indoor swimming pool, a ballroom, teahouse, and a huge garage, large enough to store many vehicles. 

They acquired a new recreational property on Fisher Island in Florida.  It cost more than $2.6 million.  Boats and cars were purchased.  The children were sent to exclusive private schools.  Ultimately, Ms. Plese stopped working outside the home altogether.

In the context of settling their family law issues, the court turned to valuing the former couple’s property, including their 22,500-square-foot matrimonial home now valued at around $17 million, their $5 million cottage, their $4.8 million property in Fisher Island, as well as various boats, vehicles, and even their Aeroplan points.  This was a considerable challenge due to the significant difference in valuations provided by their respective experts:   For example, respecting the value each expert attributed to Herjavec’s current business alone, there was a spread of $30 million.

After concluding that Plese was entitled to about $25 million for her share of these items, the court turned to the issue of how much spousal support Herjavec should pay her.  In doing so, the court cited from a paragraph of his own book, as evidence of the importance of the marriage and Plese’s support to his success. The court said:

This was a lengthy marriage of nearly three decades.  The parties both testified they worked as a team.   Mr. Herjavec himself perhaps put it best in his book titled Driven: How to Succeed in Business and in Life.  At page 286 he says:

I’m fortunate in so many ways to have Diane as my spouse.  She earned her optometry degree over six strenuous years of study, years that included countless nights of study and work as an intern.  She knows what it’s like to work eighteen or twenty hours a day in pursuit of a goal; she understands the motivation behind it.  Having obtained her degree she could count on a good income from steady employment, providing a safety net if one of my projects went belly up.  This was enormous comfort to both of us, especially during my first years as an entrepreneur. 

Clearly, Ms. Plese’s contributions from her own work were critical to Mr. Herjavec’s financial success, particularly in the early years of the marriage when he began Brak.   Brak, of course, provided the foundation for [the later company] and its ultimate success.  What Ms. Plese lost when she stopped working outside the home was that very steady employment and her own financial safety net created from her own separate earnings.  This is a compensable loss.

In all the circumstances, the court concluded that Plese was entitled to spousal support of $125,000 per month, with no set termination date.  Although this amount was actually lower than what the Spousal Support Advisory Guidelines would otherwise dictate, it incorporated the ongoing capital positions of each of the former spouses, and represented a reasonable balancing of the economic consequences of the end of their marriage.

For the full text of the decision, see:

Plese v. Herjavec, 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

Mom Unilaterally Pays for Kids’ Special Expenses for School – Years Later, Should Dad Be Expected to Contribute?

Mom Unilaterally Pays for Kids’ Special Expenses for School – Years Later, Should Dad Be Expected to Contribute?

At the time of their separation and divorce 20 years ago, the court had made an order requiring the father to pay child support to the mother, to help cover the expenses of their two children, who were now both in their early 20s.

Some of these expenses related to their son’s attendance at a U.S. university until mid-2018, and to their daughter’s briefer stint at a local college for about a year.  The father faithfully paid the required child support over the years.

The mother now applied to the court to have that decades-old prior order changed retroactively, to add a new requirement that the father share in paying for the “special expenses” (as prescribed in section 7 of the Child Support Guidelines) relating to both children.  She asked that the father be obliged to pay for a period starting in at least the year 2000.

It seems that over the years, the mother had been unilaterally paying what she said were significant special expenses for the children’s in relation to their schooling, especially in the past few years when the children were pursuing post-secondary education.  However, she was either remiss or reluctant to ask the father for his contribution.  As the court explained:

The [mother]  claims that on June 12, 2014, she emailed the [father] alerting him to the fact that the children would both be attending university, and impliedly requested the [father] to contribute.  The [father] insists that he did not receive the email, and points out that he had changed his email address approximately a year before the email was sent. 

In explaining why it took her a further four years after that e-mail to go to court to try to have the father’s obligations enforced, the mother said she was afraid of the father, because he had been abusive towards her during the marriage and after separation.

In response, the father pointed out that:

1) There was nothing in the original order requiring him to contribute to section 7 expenses;

2) He was never consulted in any way as to the expenses the mother was incurring;

3) He never had an opportunity to provide input on what activities should be contributed to;

4) He already spent about $80,000 on extracurricular activities for the children over the years, himself, which would already fall in the category of the section 7 expenses being claimed.

After assessing the evidence on the whole, the court rejected the mother’s retroactive request for the section 7 special expenses, writing:

There are several difficulties with the [mother’s] claim for a contribution to section 7 expenses. 

First, apart from some general emails there was no formal request for a contribution to specific special expenses.  Ordinarily, parties would discuss which specific activities or other matters would legitimately constitute a special expense, to which both parties should contribute, and court action, in the event of disagreement, could sort out the matter at the time.  That did not happen.

Furthermore, at this point it would be difficult to determine, with any accuracy, exactly what contributions either party has made to what could legitimately be considered to be special expenses.  Both parties have attempted to do so, but I am not convinced that their calculations are particularly accurate. 

The court observed that at this late stage it would be “difficult, if not impossible” to impose a reasonable cost-sharing agreement after-the-fact.  It also noted the parents had essentially been informally sharing the children’s extra educational costs over the years, without a formal court order being in place.

For the full text of the decision, see:

Lochhead v. Lochhead, 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