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Family Law Now | Episode 6: Case Conferences

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On this episode, Russell Alexander is joined by Adam Borer to answer your questions about case conferences and help you prepare for your day in court.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1) He had suffered some loss, and

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

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

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

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

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

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

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

For the full text of the decision, see:

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

How To: Make a Valid Separation Agreement

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

Introducing Family Law Now

Family Law Now Podcast Logo

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

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

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

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

With special guest Michelle Mulchan,

Michelle Mulchan
Collaborative Family Lawyer

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

To learn more about our podcast please visit us here.

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

When Can You Vary a “Final” Spousal Support Order on an Interim Basis?

When Can You Vary a “Final” Spousal Support Order on an Interim Basis?

The name itself suggests finality:  A Final Order for spousal support.  But under Canadian divorce law, even a Final Order can be changed by the court, if there are new facts that warrant it.  This typically takes place by one of the spouses bringing a Motion to Vary.

However, in some limited circumstances, a Final Order can be changed on an interim basis – meaning even before a Motion to Vary can be heard.   The precise circumstances in which this can take place was the focus of a recent Ontario decision called Berta v. Berta.  The court introduced the background this way:

This has been an unhappily lengthy and contentious proceeding. It has been ongoing since 2010. The court file now comprises 21 volumes of the continuing record. That record is stored in seven banker’s boxes, requiring two large carts to haul it into court. There have been numerous motions and trips to the Ontario Court of Appeal in this and related proceedings.

The result of all that paperwork, as well as 9 days of trial time, was that the husband had ultimately been ordered by way of a Final Order for spousal support to pay his wife about $13,800 a month, based on his income which was imputed to be about $645,000 per year.  He had also been ordered to pay the wife $322,125 in costs.  However, he had paid only $73,000 toward that amount so far, and the support arrears alone totalled $480,000.

Instead of paying the rest, the husband applied to the court on an interim basis for an order requiring him to pay only $1,129 per month, until such time as a full Motion to Vary could be heard.  He based this request on numerous grounds amounting to a material change in circumstances, including a downturn in his business, health considerations, the loss of two key clients in his business, and what he called his wife’s “misconduct” in forcing him to buy out her shares in their jointly-owned business.

The wife countered by stating (among other things) that the husband’s business still earned enough net income to pay the full amount of monthly support – he just chose not to pay.  Plus, the husband had not come to court with “clean hands”:  He was currently in arrears, and had not complied with previous court-ordered disclosure, in one case taking 22 months to provide only partial documentation.

This factual background gave the court the opportunity to conclusively establish the proper legal test for varying a Final Order for support on an interim basis, under Canadian Family Law.   After reviewing the various thresholds that had been used by courts in the past – and while adding that the interim variation of Final Orders should not be routine – the court concluded that it could make such an order in this case if the wife makes out a “clear case for relief”.  The relevant factors include:

  1. A strong prima facie case;
  2. A clear case of hardship;
  3. Urgency;
  4. That the moving party (in this case, the husband) has come to court with “clean hands”.

Applying these tests, the court found the husband had simply not made out a case for an interim order.  In particular, he had not demonstrated even a prima facie case around his alleged decline in business earnings and other financial circumstances – let alone a “strong” one.  There was no evidence that the wife had engaged in any misconduct relation to the forced sale of shares, and the price he received was fair.  His claim to be suffering from various health problems was without proof. He also had not demonstrated any urgency, nor that he would suffer any hardship if he had to keep complying with the original Final Order.  The question of “clean hands” was unnecessary to decide, in light of the shortcomings in meeting the other parts of the test.

The court dismissed the husband’s motion.

For the full text of the decision, see:

Berta v. Berta, 2019

Related Article: The Finer Points on Court-Ordered Interim Support

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

 

Lori Dubin joins the team at Russell Alexander Collaborative Family Lawyers

Lori Dubin is now an associate lawyer at Russell Alexander Collaborative Family Lawyers. She is recognized for her client-centered approach and efforts to provide practical and efficient advice in order to achieve the best possible results. She has extensive experience in resolving high conflict cases and successfully settles most of her cases prior to trial.

Lori has practiced law for over 15 years. Prior to working in family law, Lori had 11 years of experience as a criminal trial lawyer with a focus on crimes arising out of domestic relationships. During her academic career, Lori was the recipient of several scholarships based on her academic achievement at York University. She achieved magna cum laude in her final year of her Honours Bachelor of Arts degree program in Psychology and Mass Communications.

Lori studied for her LLB at Osgoode Hall Law School, graduated in 2003 and was called to the bar after a year of Articling for a prominent Toronto firm. She’s trained new lawyers at the Law Society of Ontario’s Law Practice Program, acted as an articling principle, adjunct professor at various institutions, and commentator on Court TV Canada. Lori is an active member of the Toronto Lawyers Association and the Toronto Family Law Association. She has served her community on numerous Legal Aid Panels and Pro Bono assignments.

Aside from working, Lori has a very active family and social life. She is a fitness enthusiast and loves dogs, especially her own toy poodle.

Welcome to the team, Lori!

 

 

The Bezos fortune gets divided in a private divorce agreement and Amazon doesn’t miss a beat

The Bezos fortune gets divided in a private divorce agreement and Amazon doesn’t miss a beat

MacKenzie Bezos announced earlier today in a tweet that she and, now ex-husband, Jeff Bezos, have settled their financial affairs in a private divorce agreement. Though full details of the Agreement are not publicly available, MacKenzie declared she was “happy” to sign over 75% of the couple’s jointly owned stock in Amazon as well as voting control of her shares and her interests in The Washington Post and the Blue Origin aerospace company.

Following the news of the Bezos family settlement, Amazon’s stock price reportedly dropped by a mere 0.4%. The Bezos’ settlement out of court played a significant role in stabilizing the effect their separation would have on Amazon’s viability and stock price. Consider the contrary, for a moment—had the Bezos’ litigated their family law dispute, personal financial details would have been made public record, and the very fate of Amazon may have been at the discretion of a family court judge—which could have resulted in an outcome felt around the world.

The success of the Bezos family settlement illustrates key benefits of resolving legal issues out of court: privacy, creativity and a controlled impact on the family business. These same benefits can be realized by family business owners who choose the collaborative process. Collaborative clients are empowered to privately resolve legal issues using creative solutions like share transfers, family trusts and delayed equalization, to name a few, to ensure an orderly transition, preserving the family business, and family legacy for generations.

We have published several other posts on the very topic of how the collaborative process can help family-run businesses survive and thrive after divorce. To learn more, click here.

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

The Family Law Limited Scope Services Project 

The Family Law Limited Scope Services Project 

The Law Foundation of Ontario recently reported that:

“A new website designed to help Ontarians with their family law needs will officially launch on February 12, at a special reception that will take place at the Law Society of Ontario.

The Family Law Limited Scope Services Project aims to improve access to family justice for middle-income Ontarians by increasing the use of limited scope retainers and legal coaching, also known as “unbundled” legal services. These services are an option between full representation and no representation at all. The Project provides access to these services through the website, which includes a searchable roster of trained lawyers who are willing and able to provide such services in communities across Ontario.

The website presents easy-to-understand, step-by-step information on limited scope services and legal coaching in family law matters for both the public and practising lawyers. In addition, it offers practical tools such as checklists, flow charts, precedent retainer agreements, as well as resources and referral information for family legal services in Ontario.

The Family Law Limited Scope Services Project is a collaborative legal project funded by The Law Foundation of Ontario with the aim of improving access to family justice for middle and lower-income Ontarians by increasing the use of limited scope retainers (such as court document drafting or in-court representation on a single appearance), legal coaching (lawyer assists client by offering advice, guidance, and support) and summary legal counsel (scheduled lawyers provide day-of-court assistance for a fee to unrepresented litigants not eligible for Legal Aid).”

Are “Unbundled” Legal Services in Family Law a Good Thing? Time Will Tell

We examined the issue of unbundled legal services in 2012.

The Ontario family law system sees more than its share of unrepresented litigants; the option to use a lawyer for unbundled services is designed to bridge the divide between those who can afford competent legal representation, and those who struggle to do so.

There remain risks that procedural and other issues that could or will arise in the context of litigation.  Further, potential problems inherent in this option may still come to light, and of course, there is always the potential that disputes will arise between the client and his or her chosen lawyer, in connection with the particular scope, nature, duration, and cost of the services that were agreed to be provided.

The Family Law Limited Scope Services Project website connects clients with a lawyer and provides valuable information to litigants which is a step in the right direction for addressing our overburdened family court system.

Divorce Information Centre

Learn more about divorce and the Ontario Court Process at our divorce information centre where you find helpful tips, resources, videos, and downloadable ebooks.

Resources include:

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

GM Oshawa Assembly Plant Closing & Divorce

The Ghosts of GM: Past, Present and Future

On November 26, 2018, the General Motors Company (GM) announced that it will cease allocating new product to its Oshawa assembly plant beyond the end of 2019. This came as a shock to the 2,500 employees who work at the Oshawa plant and the many more who depend on their income. While the jury is still out on whether GM will be laying off or re-training its 2,500 employees, one thing is certain—a large cohort of GM’s employees stand to lose their livelihood.

Whether laid off or re-trained, employees who have a potential, current or settled family law matter will need to govern themselves wisely to weather the impact that closure will have on their day-to-day lives. Accordingly, this post explores the likely, and, not so likely, family law implications of GM’s closure of its once thriving Oshawa assembly plant.

The Ghost of GM Past: Settled Family Law Matters

If your family law matter was previously settled by way of a Separation Agreement or Final Order, the loss of employment income may trigger a review of child support or spousal support, or parenting.

Support obligations

It is likely that the loss of employment income will mean that you cannot afford to pay child support and/or spousal support as set out in a Separation Agreement or Final Order. In the case of a Separation Agreement, you may be able to rely on a built-in review clause to revisit the issue of support. Most Separation Agreements contain a dispute resolution clause which may be the first place to start in this endeavor. In the case of a Final Order, you will likely want to bring a Motion to Change a Final Order if you and your ex-spouse cannot agree on the appropriate adjustment out of court. A qualified lawyer can assist with making this process as seamless as possible.

Parenting

It is not likely that your loss of income will impact settled parenting arrangements. However, you may find yourself needing to reduce your parenting time with the children in order to focus on finding a new job. In this scenario, you may likely need to rely on the dispute resolution clause in your Separation Agreement or bring a Motion to Change a Final Order altering an access schedule in order to achieve the desired relief.

The Ghost of GM Present: Current Family Law Matters

If you are currently going through a legal separation from your spouse, the loss of employment income may affect a number of aspects in your separation, including but not limited to, support, assets and liabilities and alternative career planning.

Child support and spousal support

You may have credible grounds by which to vary a temporary Order for support in your legal proceeding. As an Order for support would have been based on your GM income at the time, the Order may be varied by the new circumstances. You may seek such relief at a pre-trial conference or by bringing a motion. It is not likely, however, that your loss of income resulting from being laid off will extinguish your entire obligation to pay support. Rather, you may still be required to pay support on the basis of employment insurance income or imputed income. However, the extent of any such continuing obligation depends on the particular facts of your case.

Assets and liabilities

The loss of employment income may result in a budgetary deficit, impacting your ability to keep the matrimonial home. If you are no longer able to maintain your share of the mortgage and bills associated with the matrimonial home, it may have to be listed for sale—which may be the most poignant of all of your post-closure concerns. Worry not. There may be options available to you for preventing this outcome such as, a buy-out, borrowing or disposition of investments, RRSPs, RRIFs or your GM pension. However, the viability of these options to save the matrimonial home will need to be assessed against the surrounding issues in your proceeding such as support, equalization and other issues relevant to your case.

Alternative career planning

You may wish to delay your re-entry into the workforce to obtain credentials in a more stable industry. While this will yield economic benefits in the long run, your current financial obligations of support and solvency will be deciding factors. Delayed income generation caused by alternative career training may likely be manageable provided that the financial obligations of your ongoing separation are minimal. However, your freedom and ability to pursue such an undertaking may require a corresponding compromise and will depend on the unique facts of your case.

The Ghost of GM Future: Potential Family Law Matters

If you have been planning to separate from your spouse, the loss of employment income can have significant family law implications on a number of obligations arising in separation, including but not limited to, support, parenting and family property.

Child support and spousal support

It is not likely that being laid off will defer support obligations. You may be obligated to pay support if you receive employment insurance income sufficient enough to meet legislative minimums. If you do not qualify for employment insurance, your spouse may still seek support by imputing an income on you commensurate with your work experience, whereby you will be required to pay support. In either scenario, the obligation to pay child support and spousal support may survive the loss of income depending on the facts of your particular situation.

Parenting

It is likely that being laid off will mean expanded parenting time. While increased parenting time may yield social benefits, it may also impinge on your economic rehabilitation. Your spouse may expect you to dedicate your new found time to caring for young children who are not in school. These, and other significant changes to parenting time after initiating your separation, may likely hinder your re-entry into the workforce. A properly drafted parenting agreement can help by moderating unrealistic expectations.

Family property

You will have a legal duty upon separating from your spouse to avoid the reckless depletion of family property. While you may wish to list personal or real property for sale to help make ends meet, it is not likely that you will be able to freely dispose of family property after your date of separation without your spouse’s prior consent or proper accounting. You will have to be mindful of how you manage family property as mismanagement may prejudice the equalization of net family property and may result in a Court order.

Bottom line

The closure of GM’s Oshawa assembly plant in 2019 will disrupt the lives of many families, the impact of which might be felt most by those dealing with a potential, current or settled family law matter. Contacting a lawyer for legal advice tailored to the particular facts of your case is a proven way to mitigate the effects of an imminent disruption to income. While it may seem impossible to afford a lawyer at this time, there may be options available to finance the cost of much-needed legal representation.

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.

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