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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

Must a Father Pay a Decade’s Worth of Unpaid Child Support? And Is Mother Too Late to Ask?

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Must a Father Pay a Decade’s Worth of Unpaid Child Support? And Is Mother Too Late to Ask?

In Le v. Tran, the couple had been dating for several years but never lived together, and in fact had separated a few months before their child was born in 2000. The child had always lived with the mother, and had very little contact with the father, who never made any child support payments towards the child’s care whatsoever. However, in fairness the mother had never asked him for any payments, either.

More than a decade later, in 2011, the mother sent the father a letter, asking him to pay child support for their now-11-year-old child. By this time the father had married someone else, and had two other children of his own. After receiving the letter, the father began paying monthly support going-forward. However, he refused to pay the additional 10 years’ in support payments – totalling about $65,000 – that the mother was asking for.

The mother (who was also remarried but currently unemployed) went to court to obtain an order.

Although the court had the authority to make a retroactive support order for the full 10 years, it declined to do so in this case. It factored in the child’s circumstances, the conduct of both parents, and the hardship that might be caused.

On the one, the father’s conduct was certainly blameworthy: he never paid any child support whatsoever until the mother initiated the court proceedings. He could not claim that he was unaware that the child was his, or that the mother had blocked him from having contact with the child.

On the other hand, the mother’s reasons for taking over a decade to request child support – which included the excuse that she was an immigrant from Vietnam and was unfamiliar with Canadian law – were simply not reasonable. Rather, the court concluded that after getting a little legal advice early on, she had merely done a “cost-benefit” analysis in her own mind, deciding that the amount she would have to pay in legal fees to chase the father down was not worth the support she might receive from him as result of those efforts.

Both parties had acted unreasonably; still, an award forcing the father to pay at least some retroactive support was appropriate. The question remained, as to how much.

Here, the father had substantial income (about $90,000 per year), some savings, owned a home, and had very little debt. However, an order requiring him to pay the full $65,000 would cause hardship to the man’s children from another relationship, whom he also supported.

The court therefore granted the mother’s request, but only to a limited extent: in addition to continuing $800 in monthly payments, the father was ordered pay $14,000 to cover unpaid support as far back as January of 2010, but nothing beyond that.

For the full text of the decision, see:

Le v. Tran, 2012 ONCJ 601 (CanLII)  http://canlii.ca/t/ft3jr

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.

Father Obliged to Pay Child Support Even Where Undue Hardship Results – Duty to Support New Family Just One Factor


Father Obliged to Pay Child Support Even Where Undue Hardship Results – Duty to Support New Family Just One Factor

In a decision from earlier this year, the court confirmed that a father was still obliged to pay support for his two children from a first marriage even though:  1) he no longer had a relationship with them; 2) he had a new family (and two other small children) to support; and 3) the child support obligation would cause him undue hardship, in light of his difficult financial circumstances.

In a case called Espiritu v. Javinal, the husband and wife had two children together.   After they separated, the mother – who had a third child from a previous relationship — moved all three children with her to Manitoba.   The mother earned about $24,000 as a hairstylist plus another $9,000 in child support for the third child she had from the other relationship.

Meanwhile the father, who remained in Ontario, had embarked on a new relationship with another woman, and had two more children with her.  He was the sole support for this new family unit which consisted of his new wife, the two children, and his mother-in-law (who lived with them).   The father earned about 56,000 as a service technician, but this included significant overtime which was not reliably available to him in the future.

The mother applied to the Ontario court for an order for child support from the father, in respect of the two children they had together.

The court noted that on a straightforward application of the Federal Child Support Guidelines – without more – the father would be required to pay about $850 per month.   However, the father was asking for a deviation from this amount based on undue hardship, so the court was obliged to compare the household incomes of the parties.

First, the court considered the fact that the father’s had a new family to support.   Indeed, it accepted his claim that was struggling financially to support them, particularly since he had the added burden of having his mother-in-law living in the home.   He was heavily in debt, and owed considerable amounts to extended family members.  Admittedly, the father received a little assistance on car payments from his father-in-law from time to time, but these were not a regular part of his income.  And even if his new wife was able to return to the workforce in the future, her added income would be offset by day care costs, since the mother-in-law was not capable of looking after the children.

The court also made an interesting observation:  Since the father admitted that he did not in fact see his older two children anymore (the mother having apparently cut him out of their lives when she moved to Manitoba), his current debts and precarious financial situation were wholly unrelated to his prior relationship with the mother.   Furthermore, while the father may have had a moral obligation to support the mother-in-law, he did not have a legal one.  As such, the father’s dire financial scenario was essentially of his own making, and could not be the grounds for his “undue hardship” claims.

As such, there was no avoiding the conclusion that the father was legally obliged to pay child support for his two children of his first union; however, in determining the proper amount the court was entitled to consider all of the circumstances, including the father’s financial obligations to his new family.

Looking at the numbers, the father’s overall financial situation was not significantly worse than that of the mother:   He had a household of three adults and two children, with an income of $56,000 at his disposal.  She, on the other hand, had a household of one adult and three children, with an income of about $32,000.

In the end – and despite finding that he would endure financial hardship – the father was ordered to pay the mother child support.   However, in light of all the circumstances the court adjusted the amount to $400 per month.

For the full text of the decision, see:

Espiritu v. Javinal, 2012 ONCJ 13 (CanLII)   http://canlii.ca/t/fpmh9

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

 

 

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