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Posts tagged ‘Divorce Act’

Was Your Marriage Contract Signed “Under Duress”?

duress

Was Your Marriage Contract Signed “Under Duress”?

About-to-be-married couples are wise to protect themselves by signing a marriage contract beforehand. But the key to having those agreements hold up is that they must be freely and voluntarily executed.

We’ve all heard stories of pre-nuptial contracts being signed by the happy couple on their wedding day, virtually on the altar. Or else cases where the couple are negotiating the agreement for months, against the backdrop of a year of planning and thousands of dollars in deposits laid down, and it’s finally signed at a time when pre-wedding stress is at an all-time high.

Are marriage contracts signed under these conditions worth the (embossed) paper they are written on?
In Ontario, the Family Law Act and the related jurisprudence says: “it depends”. First of all, the legislation lays out certain types of clauses that are never valid (such as a clause attempting to prohibit a spouse from remarrying after separation), and sets out various scenarios that can prompt the court set aside all or part of a marriage contract. Among those scenarios – by general reference to basic contract principles established in the cases – is the concept that a contract that was signed under duress will not be enforced in law.

“Duress” is colloquially regarded to mean those situations where one intended spouse has put some sort of pressure on the other spouse to sign what is usually alleged after-the-fact to be an unfavourable, unfair, or one-sided agreement.

Legally, the meaning is a bit more precise, even though the Family Law Act itself does not contain a definition for this term. However, in a case called Ludmer v. Ludmer, the court examined the nature of duress, stating:

Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. There can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract. To prove duress, the applicant must show that she was compelled to enter into the marriage contract out of fear of actual or threatened harm of some kind. There must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.

So what forms does “duress” take, in the real world? In the case we commented on last week, Shair v. Shair, the court considered whether the wife had been subject to duress in signing a marriage contract that she later complained had stripped her of certain support rights that she would otherwise have under the Family Law Act and Divorce Act.

However, the court rejected her claim that she signed the agreement out of duress, finding instead that she:

“…chose to sign it voluntarily as she wanted to be married and she trusted that the Applicant husband would treat her fairly independent of the clear language of the marriage contract. The option of not signing the marriage contract in the form as presented and returning to Romania, or extending her visa, were both open to her and she pursued neither.”

For the full text of the decisions, see

Ludmer v. Ludmer, 2013 ONSC 784, [2013] O.J. No. 699

Shair v. Shair, [2015] O.J. No. 4883, 2015 ONSC 5816

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

The Finer Points on Court-Ordered Interim Support

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The Finer Points on Court-Ordered Interim Support

As regular readers of my Blog likely know, in cases of separation and divorce the entitlement to child or spousal support is governed mainly by Canadian federal law, and (to a lesser extent) by Ontario legislation. Those laws allow a court to make a final order that intends to fully address the estimated future needs of former spouses and children, taking into consideration the various factors that have been established as being relevant to assessing need.

As much as it would be ideal for a court to be able to make such an order immediately, from the moment the couple irrevocably separates, the reality is that the process leading to a formal divorce is lengthy and often costly, and that the parties’ needs and means remain pressing and immediate, yet may change over time.

For this reason, Canadian law empowers a court to make one or more temporary or “interim” orders for support, which are intended to address the support recipients’ needs on a shorter-term basis, pending the full resolution of the issues that arise from the dissolution of the couple’s relationship.

These temporary orders (which at one time were called “interlocutory”), are generally governed by the same considerations that affect a court’s decision-making on final orders: Child and spousal support rights/obligations arise from sections 15.1 and 15.2 of the Divorce Act, respectively, with additional guidance being given by the Spousal Support Advisory Guidelines and the federal Child Support Guidelines. For example, section 15.2 set out the specific factors that must be considered when making either an interim or final order, including:

• the length of time the spouses lived together;

• the functions each of them performed;

• any order, agreement or arrangement relating to the support of either of them.

The section also sets out in detail the various objectives that the court should strive to meet when making either a final or temporary award.

However – and despite the overall similarity in approach – courts have also recognized that the objectives of a final order versus an interim order are not identical, and that there are slight nuances in the assessment exercise. Plus, each case is different, and the court must balance the factors as the situation dictates.

For this reason, an Ontario case from a few years ago named Driscoll v. Driscoll remains helpful in formulating an approach to interim orders in particular, by providing an added list of governing principles. The court, citing a contemporary B.C. decision named Robles v. Kuhn, endorsed the following eight points:

(1) On applications for interim support the [support recipient’s] needs and the [support payor’s] ability to pay assume greater significance;

(2) An interim support order should be sufficient to allow the [recipient] to continue living at the same standard of living enjoyed prior to separation if the payor’s ability to pay warrants it;

(3) On interim support applications the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;

(4) The courts should not unduly emphasize any one of the statutory considerations above others;

(5) On interim applications the need to achieve economic self-sufficiency is often of less significance;

(6) Interim support should be ordered within the range suggested by the spousal support advisory guidelines unless exceptional circumstances indicate otherwise;

(7) Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and

(8) Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

The court in Driscoll also emphasized that these principles are not exhaustive; rather they are intended to assist the court in providing a “contextual analysis”.

Do you have questions about your interim support rights or obligations? Contact us for some advice that is tailored to your unique situation

For the full text of the decision, see:

Driscoll v. Driscoll, 2009 CanLII 66373 (ON SC)

Robles v. Kuhn, 2009 BCSC 1163 (CanLII), [2009] B.C.J. No. 1699

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

Recurring $50,000 Annual Gift – Should it be Included in Husband’s “Income”?

recurring gift

Recurring $50,000 Annual Gift – Should it be Included in Husband’s “Income”?

In a recent decision called Horowitz v. Nightingale, the key question for the court was whether, in calculating the husband’s annual “income” for equalization purposes, the total should include a regular gift of $50,000 he received each year from his wealthy parents.

The couple had been married about 16 years when they separated. They had three children together, each of whom had special needs. The wife was looking for about $35,000 per month in spousal and child support, based on the husband’s income which her experts estimated was about $1.7 million for 2013, and over $3 million for 2014, including certain withdrawals the husband made from his RRSP. The husband, in contrast, claimed that his overall income for 2013 was under $600,000, and that his support obligation should be adjusted downwards accordingly.

As part of the task of ascertaining the husband’s true income for these purposes, the court was accordingly asked to characterize the $50,000. The parties were at odds on whether the annual cash gifts were regular enough to be counted: The wife claimed that they had been consistently given in the past, and could be counted on to recur in the future. To bolster her position, she produced an excerpt from an e-mail she received from the husband in which he confirmed that the gift was regularly given each year. It read:

It’s a good thing my father gave me $50,000 each year to help with all your expenses (my parents have the cancelled cheques). Don’t expect to see that anymore. And the money many years I had to take out of my RRSP to pay for everything. Don’t expect that to happen anymore.

The husband refuted that the gifts were regular; moreover he pointed out that his father had had passed away recently. Since the gifts had come from both parents (rather than from either of them individually) there were no guarantees, he said, that his widowed mother would keep up the generosity now that the father was gone.

The court started the examination by pointing out that in law, both child and spousal support was governed by the provisions of sections 15.1 and 15.2 of the federal Divorce Act. Those sections provides a list of factors that the court must consider whether ordering the amount of temporary support the husband had to pay the wife in this case. One of them was the consideration of the husband’s means, and his corresponding ability pay support in all the circumstances.

Next, the court observed that for child support purposes, gifts received by a parent are not presumed to be part of part of his or her presumptive annual income; however, under the Child Support Guidelines, the court had discretion to impute income if it was considered appropriate in the circumstances. However, “gifts” was not among the non-exhaustive list of amounts/items a court could impute.

The court then considered prior law on this issue, which confirmed the receipt of gifts was not generally an appropriate circumstances in which to impute income to the recipient. However, that precedent also established a list of other factors, all of which could be considered in this case, including: how regular the gifts are (or whether there were circumstances that made them exceptional); how many years they had been given by the parents to the husband; whether they were part of the family’s income and lifestyle while the couple was together; the income generated by the gifts relative to the husband’s entire income; their true purpose and nature; and whether they are likely to continue.

With this in mind, the court turned to the present facts: The $50,000 gift had been given by the husband’s parents in each of the prior 8 years, since 2006, as confirmed in the husband’s e-mail. He testified that “every dollar” had been used for family purposes, which meant the funds were part of the family’s overall income, and contributed to the lifestyle they came to enjoy. Finally – while conceding that there was no obligation on the husband’s mother to continue making the gifts at all, in the same amount, or with the same regularly – the court concluded that they were likely to continue in the immediately foreseeable future. (Incidentally, the husband had given no specific evidence as to how his father’s death might affect whether there would be future gifts, nor had he presented to the court any copies of the cashed cheques, even though they were available to him. The court drew a particularly negative inference from this latter omission on the husband’s part).

The court therefore concluded that the annual $50,000 annual gift should indeed be considered part of the husband’s income, for the purposes of calculating both spousal support and child support.

For the full text of the decision, see:

Horowitz v. Nightingale, 2015 ONSC 190

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 Difference Between Separation and Divorce in Ontario – video

 

 

Wednesday’s Video Clip: The Difference Between Separation and Divorce in Ontario

A separation occurs when one or both spouses decide to live apart with the intention of not living together again. Once you are separated, you may need to discuss custody, access and child support with your spouse. You may also need to work out issues dealing with spousal support and property. In this video we examine how you can resolve these issues in different ways, including:

•  You can negotiate a separation agreement. A separation agreement is a legal document signed by both spouses which details the arrangements on which you have agreed. In some jurisdictions, independent legal advice is required to make the document legally binding.

•  You can make an application to the court to set up custody, access, support and property arrangements under the provincial or territorial laws that apply to you.

•  You can come to an informal agreement with your spouse. However, if one party decides not to honour the agreement, you will have no legal protection.

To legally end your marriage, you need a divorce, which is an order signed by a judge under the federal law called the Divorce Act.

Tax Rules Made Simple – Deductibility of Legal Fees

simple

Tax Rules Made Simple – Deductibility of Legal Fees

Most people aren’t turned on by tax law; even lawyers find the topic unduly complex and labyrinthine. But there are a few relatively-straightforward tax rules and specific principles about which separating and divorcing couples should be aware.

I will start with one of the easier ones:

Legal fees that are paid to pursue child or spousal support are deductible from the recipient spouse’s income.

The concept – at least as tax principles go – it relatively straightforward. The Income Tax Act specifically allows that for the purposes of determining taxable income, a person can deduct any legal and accounting fees (which the legislation collectively calls “professional fees”) that are incurred in the pursuit of a claim for child or spousal support. The professional fees are deducted in the year in which they are paid. In this way, by deducting those professional fees from total income, the person receiving child/spousal support enjoys a reduced level of income tax liability. (Note that legal fees incurred by the paying spouse or partner are not deductible).

However, this tax rule comes with some rather finicky exceptions and clarifications. For example:

• Legal costs to quantify a spousal support entitlement, established under the Ontario Family Law Act, can be deducted from income.

• Legal costs in connection with determining child support are always deductible, whether the proceeding takes place under the Ontario Family Law Act or the Divorce Act.

• Legal costs to establish the entitlement to child or spousal support amounts under the Divorce Act are not deductible.

• In contrast, legal costs incurred to enforce a pre-existing right to either interim or permanent support are deductible.

Complicated? It can be. Always seek competent Family Law and tax advice in connection with the deduction of legal fees from income.

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.

Top Five Points About Adultery That You Probably Didn’t Know

adultery 2

Top Five Points About Adultery That You Probably Didn’t Know

As I have written before, one of the grounds on which divorce can be granted to spouses in Canada is that of adultery. For the most part, the concept is quite straightforward: “Adultery” for these purposes is precisely what most people think it would be.

However, from a Canadian legal standpoint there are some finer points that are worth mentioning, largely derived from cases that have been decided over the years. Here are the top five lesser-known points to know:

1 • Adultery may occur if there is “[i]ntimate sexual activity outside of marriage may represent a violation of the marital bond and be devastating to the spouse and the marital bond regardless of the specific nature of the sexual act performed.” (From the case called P. (S.E.) v. P. (D.D.))

2 • A single act of sexual intercourse can amount to “adultery” for the purpose of divorce in Canada. (Henderson v. Henderson and Crellin)

3 • Adultery can occur with a same-sex partner. (P. (S.E.) v. P. (D.D.))

4 • An affidavit admitting to adultery with an unnamed party is sufficient for Divorce Act purposes. (d’Entremont v. d’Entremont)

5 • In the right circumstances, adultery can be condoned. For example, if out of love and a desire to make the marriage work one spouse takes back an adulterous cheating spouse, then he or she may not be able to ask for a divorce based on the earlier adultery. In this scenario, the innocent spouse may be considered to have condoned the adultery for divorce purposes. (Ingram v. Ingram)

For the full text of the cases, see:

d’Entremont v. d’Entremont (1992), 44 R.F.L. (3d) 224, 118 N.S.R. (2d) 51, 327 A.P.R. 51 (C.A.)

Henderson v. Henderson and Crellin, [1944] A.C. 49, [1944] 1 All E.R. 44

Ingram v. Ingram (1985), 1985 CarswellSask 768, 48 Sask. R. 157 (Sask. Q.B.)

P. (S.E.) v. P. (D.D.), 2005 CarswellBC 2137, 2005 BCSC 1290 (B.C. 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

New Family Law Act in B.C. – An Updated Law for a Modern Society

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New Family Law Act in B.C. – An Updated Law for a Modern Society

On March 18, 2013, B.C. passed its new Family Law Act, which replaced the former Family Relations Act and made some sweeping changes to the law in that province, bringing it more in line with the governing legislation in Ontario, but adding some new elements as well.
Among the more important changes:

• In certain contexts – including spousal support entitlement – the term “spouse” has been expanded to include people who have lived together for less than two years but have had a child together (this is now in-line with the Ontario definition).

• The new Act now applies to both married and certain unmarried couples in connection with particular family law topics including division of property or debt.

• Unlike Ontario (where analogous provisions do not exist), the B.C. legislation specifically addresses situations where a parent wants to relocate with a child in a way that will interfere with another person’s ability to maintain his or her relationship with that child. Under the new Act, the parent must now give 60 days’ notice of an intended move in certain circumstances.

• There are new provisions to promote co-operation and dispute resolution between spouses.

The new Act also adds clarity and precision to certain terms: for example the concept of “excluded property” has been expanded to incorporate certain specific items. Likewise, the term “best interests of the child”, which is a test used in connection with determining matters such as which parent should have custody, now specifically incorporates elements such as the child’s emotional health and well-being, and consideration of his or views if appropriate.

Finally, certain language used in B.C. family legislation have been clarified and updated, and reference to the terms “custody” and ”access” are no longer used (however, they are still used in the federal Divorce Act). Instead, they have been

replaced by the more inclusive terms “guardianship”, “parenting arrangements”, “parental responsibilities”, “parenting time” and “contact”. This reflects the goal of modernizing the legislation to make it more reflective of the many different living arrangements and family relationships that exist in our Canadian society.

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 Russell Alexander.com

Wednesday’s Video Clip: Whether a parent has a right to move with a child – the concept of “mobility” in family law

 

 

Whether a parent has a right to move with a child – the concept of “mobility” in family law

The moment that the parents of a child separate, everyone’s life circumstances change immediately: there are usually new living arrangements and a custody and access schedule put in place.

But as time passes, there may be other developments as well; for example the parents may embark on new relationships with new partners, or may change jobs.

The potential impact on any court-ordered support, custody or specific access arrangement, and the effect on each parent’s rights must be assessed and weighed.

In cases where one parent’s new relationships or new jobs require a move to another city or province, the concern is even greater. This is because such scenarios give rise the a legal issue of whether the circumstances and preferences of the parents should be allowed to dictate the child’s living circumstances, whether such moves should be allowed and by whom, and – if so – what happens to the custody and access arrangements that are in place.

In family law, this is known as a “mobility” issue.

In Canada, courts generally recognize that the well-being of a child is fundamentally interrelated with the well-being of the custodial parent; indeed, a 1996 Supreme Court of Canada ruling in a case called Gordon v. Goertz established conclusively that judges must apply the “best interests of the child” test in making decisions about whether a parent should be allowed to relocate with a child, which in turn requires an individual, fact-specific assessment. As the court put it:
“The focus is on the best interests of the child, not the interests and rights of the parents.”

Courts are required to make a “full and sensitive” inquiry. This means that they are obliged to take into consideration a vast array of factors, including:

• the existing custody arrangement and relationship between the child and the custodial parent;

• the existing access arrangement and the relationship between the child and the access parent;

• the desirability of maximizing contact between the child and both parents;

• the views of the child;

• the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

• the disruption to the child of a change in custody; and

• the disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

It is worth pointing out that in making this assessment, there is no presumption in favour of either parent (whether the custodial parent or otherwise).

The authority for a court to make such a determination on behalf of parents and children is set out in various provincial and federal family-legislation.

The federal Divorce Act, for example, provides that if a court gives one parent custody of a child, the court may also require that parent to give at least 30 days’ notice to the other parent of any planned change of residence of the child (although practically speaking, most orders specify a 60-day period).

The access parent, upon receiving such notice, can apply to the court to challenge the proposed change of residence, or seek a variation of the custody or access arrangements; this notice period also afford the parents the chance to negotiate acceptable relocation terms, before it happens.

When mobility issues arise, it is important to get experienced and competent legal advice, to ensure that the best interests of all parties – particularly the children of the relationship – are safeguarded.

We hope you have found this video helpful.  If you require further information about mobility issues and family law please give us a call or visit our website at www.russellalexander.com