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Posts tagged ‘Ontario Family Law Act’

Wife Rejects Husband’s Billion Dollar Settlement Cheque

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Wife Rejects Husband’s Billion Dollar Settlement Cheque

We recently came across Jeff Lander’s article A Multi-Billion Dollar Divorce: What All Divorcing Women Can Learn From Sue Ann Hamm published in Forbes. Jeff provides insight into the lessons that can be learned from the divorce of Sue Ann Hamm from her estranged husband, Oklahoma oilman Harold Hamm in what he refers to as “teachable moments.”

Unlike the Ontario Family Law Act which provides for equalization of matrimonial property and assets, this case focuses on the principle of “equitable distribution” which includes factors such as “active and passive appreciation”. The Canadian approach to these concepts can be loosely found in cases involving constructive and resulting trust claims.

The Hamm divorce also raises important questions and issues regarding the parties’ date of separation (DOS). Similarly, Ontario’s Family Law Act utilizes the DOS as an important factor in calculating equalization and how married couples are to share their property when they divorce.

Not surprising, the Hamm case continues to make headlines as Sue Arnal, the wife’s lawyer, recently refused the oil baron husband’s cheque for $974,790,317.77.

To learn more about divorce in Ontario Russell Alexander, Collaborative Family Lawyers focuses exclusively on 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.

82 Year-Old Gambling Husband Loses Almost Everything – Should the Wife Get What’s Left?

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82 Year-Old Gambling Husband Loses Almost Everything – Should the Wife Get What’s Left?

The couple had been married for over 60 years in a traditional marriage: The husband, now 82 years old, had always been the breadwinner and had handled the couple’s finances; the wife, now aged 78, had stayed home throughout the marriage to raise their children.

But as they neared their twilight years the wife started to take notice about their finances: she realized that they seemed to be losing net worth over time, rather than gaining it. It was only when the bank started making demands on various loans and mortgages (the existence of which she was unaware), that she learned that they were in financial trouble.

It turned out that – unbeknownst to her – the husband had gambled away almost all their money. In fact two of their adult children had to come up with money in order to save the couple’s home; their other children had to step financially, in as well.

The wife could not persuade the husband to stop; eventually, all they had left was $60,000 in the bank. After significant resistance by the husband, the wife placed the remaining money in a joint account and added the name of one of the couple’s daughters, who would have to be consulted if any funds were withdrawn. This, as the court described it, made the husband “furious”; things went further downhill from there. The court explained:

The [husband] refers to the placing of the remaining funds in the three names as “the swindle”. He says the adult children were all involved in “the swindle”. The [wife] does not dispute the facts of the alleged “swindle” but felt it was necessary to enlist [the daughter] to stand with her against the husband’s expected demands to take the money and lose it.

The court continued:

 

[The husband] has been angry with [the wife] and their children ever since they began interfering with his control of all things financial. … The parties had two jointly owned properties in Florida that were sold. Because he was angry with his wife and children, [the husband] took the proceeds of $15, 567.08 from the first sale in Florida and either spent, gambled or hid it.

[The husband’s] anger about “the swindle” was exacerbated by the support his children gave their mother when she left him. To address what he perceived as wrongs against him, after the separation, he went out and borrowed $44,000 against a line of credit. This line had been paid off from the proceeds of sale of the [matrimonial] home and was still available for borrowing up to an allowable limit of $44,000. The [wife] did not appreciate that the line could be activated and she would still be a joint signatory and therefore liable. The [husband] either spent, gambled or hid the money. He knew full well that this would rebound to affect his wife. He admits that he did it on purpose and would have borrowed more, even up to $60,000, if he could have.

The court summed up the husband’s approach this way:

The demeanour of the [husband] in the trial was such that the court could only conclude that he was not sorry for the predicament that he had created for his wife, but rather, he was quite pleased with himself.

In these circumstances, the court had no trouble finding that the husband had engaged in improvident depletion of the couple’s funds, pointing out that the husband had squandered the money needed for mortgage payments, basic living, and retirement, and not the couple’s disposable income. It also wasted no time in concluding that the husband’s gambling and hiding of funds was outrageous or “unconscionable”, to the point where there should be an unequal division of property in favour of the wife under the Ontario Family Law Act.

It therefore ordered that the husband’s right in the remaining bank accounts be transferred to the wife, and that the need for his consent to do so should be dispensed with.

For the full text of the decision, see:

Weddel v. Weddel, 2006 CanLII 21589 (ON SC)  http://canlii.ca/t/1nptd

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.

Do Kids Have the Right to Make Their Own Decisions?

Do Kids Have the Right to Make Their Own Decisions?

The question of whether children have the legal right to make their own decisions is a complex one. In this first of a two-part blog, I wanted to touch upon the policy and various considerations that go into determining this question.

First of all, in Canadian family law there is a well-established legal principle that courts are to consider the “best interests” of a child whenever making judicial decisions that affect him or her. In some narrow circumstances, there is a corollary to this principle that is not always stated: children have a right to give their own input in some scenarios.

The Canadian government has recognized this as a generally-accepted policy, as evidenced by its role as a signatory to the United Nations Convention on the Rights of the Child, which in Article 12 gives children the express right to be heard in proceedings that affect them:

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

This same principle is embodied in Ontario legislation as well, though perhaps a little less expansively. The Ontario Family Law Act sets out in section 24(2) that – in the context of determining the best interests of a child – the court may also consider “the child’s views and preferences, if they can reasonably be ascertained”.

In practice, this typically means a child has the right to express his or her views (though not necessarily make an affirmative decision) on topics such as which parent they prefer to live with in the event of separation or divorce. However, despite the child’s input, the parents can nonetheless agree on who will have custody of the child, and the nature and extent of the access that is to be granted the other. Ultimately, the decision falls to the parents or – if they cannot agree – to the court.

There are other family-related areas in which a child may have a say in what happens to them: this arises regularly in cases where there is a need for court-ordered child protection, for example. Specifically, the Ontario Child and Family Services Act, which sets out the relevant regime and related processes, contains numerous provisions that expressly allow consideration of a child’s own wishes, most notably in specified circumstances where the child is determined to be in need of protection, or where the chid is to be placed in, discharged from, or transferred to a residential placement.

But in whatever context, it should be noted that whenever a child’s views are to be taken into account, they are not necessarily wholly determinative – rather, the court will give different weight to a child’s wishes depending on various factors such as the stage of the child’s life. As a general rule, the older the child gets, the greater the range of input the child will usually have on the question of what is in his or her best interests. The maturity of the child – as demonstrated by numerous factors such as the child’s behaviour at home and at school – will also be an important consideration.

For more information, or to schedule an appointment, contact Russell Alexander, Family Lawyers at 1.905.655.6335.

 

Despite Man’s Four-Year Delay and Significant Means, Woman Ordered to Pay Him Spousal Support Pending Trial

Despite Man’s Four-Year Delay and Significant Means, Woman Ordered to Pay Him Spousal Support Pending Trial

Recently we wrote about a case, Court Finds Spouse Not Disabled, Merely Afflicted by “Lack of Desire to Work http://bit.ly/SbhphJ , in which the female partner in a common-law relationship had been paying post-separation spousal support to her male partner for more than 10 years.  At the eventual trial, the court ordered that in light of the man’s ability to work and become self-sufficient he was no longer entitled to receive this support, despite his misguided claim that the woman had a “social, moral and ethical responsibility to support him for the rest of his life.”

In another Ontario decision, Sloan v. Weidner, the issue was whether the man in a common-law relationship was entitled to receive spousal support from the woman pending trial.  He was also asking for an order that she should pay his disbursements, meaning advance costs to allow him to pursue the litigation.

By way of background:  their relationship had lasted over 10 years, finally ending in 2009 when they separated.  At that time, the man was 66, and the woman was 62.   However, at the time of the request, the man owned two businesses which generated a combined revenue of $430,000 for 2009, and almost $360,000 for 2010; he had also just sold a home he owned for $285,000.  Notwithstanding the business revenue, however, he declared only $17,000 in personal income for 2009, and about $20,000 for 2010.

The woman, on the other hand, was a successful business person in her own right.  Despite a recent business reversal (arising from the loss of one of her key contracts), she had historically earned significantly more income than the man, and would continue to do so in the future.  She also had considerably greater financial means and assets overall, most of which had been left to her by her late husband.  In resisting his claim for support pending trial, the woman claimed that the man was never dependant on her, and suffered no economic disadvantage as a result of the relationship; indeed, he was in at least a good – if not better – position than before the relationship.

At the hearing before the court, the man’s success on his two claims was divided.

First, in considering the man’s interim support claim, the court confirmed that in light of the duration of the parties’ common-law relationship, the man was eligible to request that relief under the Ontario Family Law Act.  It then turned to consider the merits.

The court noted that interim support was a short-term, “makeshift” remedy designed to ensure that a dependent person has sufficient means to maintain a reasonable lifestyle until trial. In this case, the parties ran separate businesses, maintained separate finances, and had separate bank accounts.   They never intermingled their funds. However, during the relationship they did live together as spouses, travelled together, and functioned as a couple to the point where it could be said that the man developed an economic dependency upon her.  On consideration of all the evidence, he had demonstrated sufficient need for at least some financial support until the hearing date; the woman was accordingly ordered to pay him $1,500 per month until trial.

In contrast, the man’s request for disbursements to be paid pending trial was disallowed.  This was not one of the special or exceptional cases in which it was necessary to “level the playing field” by ordering his pre-trial expenses to be paid.   The man had managed to participate in and pursue the litigation for almost four years, before he saw fit to come to court to ask for them. Indeed, his updated Financial Statements as filed with the court showed that his assets had increased modestly since the separation date, so there was nothing to indicate that he could not reasonably afford to pay them.  More importantly, there was no evidence to suggest that the man would be deprived of the opportunity to proceed to trial, if the order for interim disbursements was not granted.

For the full text of the decision, see:

Sloan v. Weidner, 2012 ONSC 1859  http://canlii.ca/t/fqr5m

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.