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Posts tagged ‘paternity disputes’

Wealthy Man and Former Model:  Were They “Living Together” Despite Keeping Separate Residences?

Wealthy Man and Former Model:  Were They “Living Together” Despite Keeping Separate Residences?

In yet another Ontario case that offers a glimpse into the lifestyle of the mega-rich, the recent decision in Climans v. Latner allowed the court to examines the contours of what constitutes a “common-law spouse” under the Ontario Family Law Act, in a situation where the jet-setting couple kept separate residences and never lived together full-time.

The man and woman started dating in 2001, and parted ways almost 15 years later. When they met, the man was 46 years old and very wealthy; the woman was a 38-year-old former model earning about $60,000 per year.  Each had children from prior relationships, and the woman lived only a few blocks away with primary care of her two children.

After the first month of dating, the man began to pay the woman’s home expenses, gave her a monthly allowance, and was very generous to her children.  At this point, she stopped working at her job.

Over the course of their relationship, the man gave her access to his credit cards, car, and medical and dental insurance.  He bought her seven fur coats and paid for fur storage. He paid for her cosmetic procedures. He paid her telephone, cell, cable, internet, and security alarm bills. He also paid for her home insurance, gardening/landscaping. While they spent time together, the man paid for extravagant holidays, including trips on a private jet.  They spent most of each summer together at the man’s cottage, and spent time during the winters at the man’s Florida condominium.

At various stages, they started their day with a walk together, and had meals together every night except when the man was away travelling.

Yet, when they separated, the court described their very divergent positions on the nature of their relationship:

Ms. Climans:

It is Ms. Climans’s position that the parties were spouses and she was treated as a wife by Mr. Latner. Her evidence was that she received an engagement ring, a wedding band and an eternity band from Mr. Latner during their relationship.  They celebrated their anniversary each year.  Mr. Latner sent letters and cards, professing his love and commitment to her and their relationship.  … Mr. Latner was listed as her “husband” on her passport. …She believed them to be married for all intents and purposes, but for participating in a ceremony.

Mr. Latner:

Mr. Latner’s position is that Ms. Climans was a travel companion, his girlfriend, nothing more. He acknowledges that they were involved in a romantic relationship, but said they never lived together and therefore were not spouses.  The parties had separate bank accounts. He testified that he gave her a credit card as a matter of convenience for their expenses but that she did not have carte blanche to spend.  They maintained their own homes in Toronto.  Her children were her priority and his children were his priority. During their relationship, Mr. Latner asked Ms. Climans to sign a domestic contract, which was never signed.  Mr. Latner’s evidence was that he would never marry or move in with Ms. Climans without a domestic contract. 

(Indeed, although several domestic contracts were prepared, none were ever signed).

The exact nature of their now-ended relationship was an important issue, because the woman claimed spousal support from the man on the basis that they had been common-law spouses.

The legal wrinkle was this:  To be common-law spouses under Ontario law, they must have:

  • Had a relationship for at least three years (which test was easily met here);
  • Been in a “conjugal relationship”; and
  • “Lived together”.

The man argued that, technically, the woman could not meet that third test:  Despite all the time they spent together, the man and woman each maintained separate residences in Toronto, throughout their almost 15-year relationship.

The court examined the relationship between the couple, and assessed the credibility of both of them, eventually finding that the man’s credibility was shakier than that of the woman.  The court wrote:

 By way of example, when shown a picture of him and Ms. Climans in Costa Rica, with the words ‘will you marry me’ written in the sand, along with their names joined by a heart, he first denied proposing to Ms. Climans, suggesting that the people sitting next to them wrote the message in the sand, not him.  Then he said he could not recall. Then he said if he did, he was not sure what the point was.

The court then recounted in detail the evidence as to their commitment:

Commitment:  (Rings, love letters, anniversaries etc.)

There is no doubt from the evidence given by both parties that Ms. Climans was more than a “travel companion” or “girlfriend” to Mr. Latner.  The parties were in a committed relationship.

 In 2002, Mr. Latner gave Ms. Climans a 7.5 carat diamond ring, valued at approximately $45,000.  Mr. Latner proposed to Ms. Climans on several occasions, which proposals Ms. Climans accepted. However, the parties never married.  Mr. Latner also gave Ms. Climans a wedding band, followed by a diamond band (referred to as an eternity ring).  Ms. Climans wore both rings throughout the relationship. In 2011, Mr. Latner gave Ms. Climans a sapphire ring, an identical copy to the one his mother wore.

 In 2002, Ms. Climans gave Mr. Latner rings (in different colour metals) that he wore throughout the relationship.

The parties celebrated the anniversary of the day they met, every year.   

Mr. Latner was a prolific writer.  Numerous cards and letters were entered as exhibits at trial.  Throughout the entire relationship, Mr. Latner wrote many cards and letters to Ms. Climans, professing his love to her and his commitment to their relationship, in addition to the anniversary cards he gave her every year. … His position at trial that he wrote these cards to appease Ms. Climans is contradicted by the sheer volume and content of these communications.

After reviewing the case law, the court easily addressed the “conjugal relationship” threshold, concluding:

They were in a long term committed relationship.  Mr. Latner treated Ms. Climans as his wife. Their relationship was sexual in nature.  They held themselves out as a committed couple and were perceived as a couple by their family and friends. Ms. Climans was considered family by the extended Latner family.  The parties participated in social activities as a couple.  Mr. Latner supported Ms. Climans financially.  They travelled extensively together.  They lived together at the cottage each summer.

As for the “living together” criterion, the court considered whether their maintaining separate residences disqualified them from the test of “living together” for the purpose of being declared “common-law spouses”.  It concluded there was no “bright-line rule”, and that the law recognizes a variety of different relationships and living arrangements using a flexible approach.

In this case, it ultimately concluded that their extended time at the cottage, the man’s regular presence at the woman’s home (in the early years of their relationship especially), and their living together as spouses when in Florida, all pointed to their status as common-law spouses. The court emphasized that this conclusion on living together was not based on isolated facts, but rather was viewed along with all the other dynamics in the relationship.

The court proceeded to determine the woman’s entitlement to spousal support in the circumstances.

For the full text of the discussion, see:

Climans v. Latner, 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

Could Husband Dip Into Savings to Pay $125,000 in Wife’s Costs? Court Finds Husband’s Evidence of “Undue Hardship” Lacking

Could Husband Dip Into Savings to Pay $125,000 in Wife’s Costs? Court Finds Husband’s Evidence of “Undue Hardship” Lacking

In a recent case called Cassidy v. Cassidy, the court was asked to resolve competing costs arguments between the former husband and wife.  As the successful party in their now-concluded family law trial, the wife wanted her full legal costs – about $125,000.

In response, the husband said that paying this amount would impose undue hardship on him since his income was being eaten up by his child and spousal support obligations. He suggested he should pay $20,000 toward her legal costs instead.

The court noted the law presumes that the successful party in the litigation is entitled to recover his or her costs in a motion, case or appeal.  This presumption is rebutted if the successful party behaved in an “unreasonable” manner.

The court examined that aspect of reasonableness and bad faith in this case, and noted both parties had levelled accusations against each other. But as the court noted:

This is a high-conflict case that has spanned several years with different discrete instances of litigation. The parties have a history of mutual unreasonableness with each other. I have considered all the allegations leveled by the parties and only make mention of significant instances of unreasonable behaviour.

These included the husband’s unreasonable interpretation of various prior court orders that had been made against him.  Prominent among these was his refusal to comply with his financial disclosure obligations as ordered.  This was tantamount to bad faith, which would normally entitle the wife to her full costs.

However, at times the wife had acted unreasonably, herself.  Although both spouses had made offers to settle along the way, at one point the wife refused to even attempt settlement discussions, which increased the costs of the litigation.  This disentitled her to recover the full $125,000.

The court also entertained the husband’s argument that ordering him to pay that entire amount was not fair or reasonable, and that in his circumstances it amounted to an undue hardship.  He pointed out that his monthly net income was about $13,000, and from that amount he was already paying $3,000 a month in spousal support, $3,000 a month in child support, and $4,000 a month in retroactive child support.  This left him with little from which to pay the hefty costs order.

To this, the court stated:

Mr. Cassidy did not provide any information on whether he has any savings or other investments he can draw on to satisfy these financial obligations. Claims of undue hardship must be supported by sufficient evidence. Mr. Cassidy’s claim is supported by insufficient evidence. The deficiencies in the evidence advanced will go to weight.

The court added that as the unsuccessful party in their very protracted litigation, the husband should have reasonably expected that he would eventually be hit with a significant costs award in his wife’s favour.

With that said, the court did adjust the final amount, to take into account the proportionality of the overall costs award.  It settled on a figure of 65 percent of the wife’s legal bill, totaling $75,600.  It ordered the husband to pay this amount over four months.

For the full text of the decision, see:

Cassidy v. Cassidy, 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

The “Peanut Butter Incident” Helps Court Decide to Limit Father’s Access

The “Peanut Butter Incident” Helps Court Decide to Limit Father’s Access

In V.P. v. D.M. the court was asked to determine what level of access the father should have to his 5 ½-year-old child.  The parents had met online and were essentially in a friendship; they never lived together and were never in a monogamous relationship.  After getting sexually intimate on a few occasions, the mother got pregnant.  The parents’ brief relationship deteriorated, and the father now wanted shared custody; the mother wanted the father’s access to be limited to two days a week, with no overnights and alternating weekends.

The court scrutinized the lifestyle of both parents, and kept its keen focus on the various factors that go into determining access levels.  These included the best interests of the child, as well as the father’s proposed plan for her care and upbringing, and his ability to act as parent.

In this regard, the court honed in specifically on some incidents that occurred in the father’s household during the prior access visits that he had been temporarily been granted by the court. The mother pointed to these as highlighting the father’s questionable conduct and judgment; she claimed they supported her position that shared parenting was not in the daughter’s best interests and that the father’s access should be limited.

One of these, which the court called “The Peanut Butter Incident”, involved the father’s sister and her daughter (i.e. his niece, who also happened to be his goddaughter). The father had apparently made it clear to his sister by email that he expected her to side with him on the dispute with the mother – in what the court called a “you are either with me or against me” tone.   In an email to his sister that he later expressed no remorse for, the father wrote:

The days of having it both ways are over! If during your visit, you feel that you ‘must’ visit or plan an event with [the mother] – the person who has deliberately ensured my worst fear, I will not be a part of whatever that may be and it will have repercussions on ‘our’ relationship. I trust you will respect my wishes.

The sister, who had had a nice relationship with the child’s mother to this point, disregarded her brother’s expectations, and stayed with the mother while in town on a visit.

This set the tone for a subsequent visit to the father’s home by his sister and his niece. To the father’s knowledge, the niece was allergic to peanuts and was quite anxious about the allergy.  The sister wrote in advance to remind the father that that there should be no peanut butter in his home during their upcoming visit.  The father assured his sister that he would remove the peanut butter from his kitchen, and that he would put it somewhere safe and away from the niece.

At some point during their visit, however, the father made a peanut butter sandwich for his young daughter, in circumstances where he could not be sure whether the niece was at his home.  Fortunately, he quickly realized what he said was a mistake, and remedied the situation.

Still, the sister claimed this had been done deliberately: – that the father did not know for sure whether the niece was home, could not have forgotten that she had a life-threatening peanut allergy, and had deliberately put her health at risk.  The sister pointed out that even before the visit, she and the father had discussed that the daughter could not kiss the niece after eating peanut butter, since it would trigger a reaction.

As the court concluded:

In light of the father’s ‘you are either with me or against me’ email and his threats that her failure to comply with his demands will have consequences on their relationship, [the sister] considers her brother’s actions to be deliberate.

The sister waited a few days to digest what had occurred in connection with the peanut butter, and wrote the father a lengthy email in which she accused him of purposely endangering the niece’s life. The father never replied to that email, and never discussed it with her or anyone else.  Since the incident, he no longer had a relationship with his sister or her children and did not explain to the court why he had chosen not to speak to his niece since.

The court summed up the incident this way:

At best the father made an irresponsible and potentially grave mistake giving [his daughter] a peanut butter sandwich while [the niece] was visiting. At worst he was sending a warning to his sister of the “repercussions” she would face for taking “[the mother’s] side in this dispute and that she was not supportive” of him.

The fact that the father’s evidence makes little sense to the court bolsters the mother’s argument that he is vindictive and the sister’s evidence that the father’s actions were deliberate.

The court added, “The father’s evidence on this issue is incomprehensible.”

This incident informed the court’s view of the father overall.  It concluded he was vindictive, had repeatedly shown poor judgment, and took no responsibility for the damage he caused to his family relationships.  He also did not recognize the potential harm that his conduct might cause his daughter in the future.

In the end, and after considering this incident against the broader context of the father’s plan for and ability to care for the child, the court concluded that the father had demonstrated “very concerning behaviour” that affected the child’s best interests.  It concluded that he should not have shared custody – only access. Moreover, the access was to continue only on a specified schedule.

For the full text of the decision, see:

V.P. v. D.M., 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

Can Alienated Dad Stop Paying Support for 29-Year-Old Daughter?

man wearing jeans holding out cash money

Can Alienated Dad Stop Paying Support for 29-Year-Old Daughter?

The father applied to the court to eliminate his monthly $583 child support obligation for his now 29-year-old daughter.  He also asked the court to find he had been overpaying support for the past decade, since she graduated high-school, and that he should be reimbursed for those overpayments.

The daughter lived with her mother, and essentially had no relationship with her father.  He had been making support payments since 2006, and continued to do so until 2017.  At that point, after receiving long-requested information from the mother about their daughter’s activities as they pertained to her support entitlement, he brought a motion to change the 2006 eliminating his support duty.

As the court explains:

As a result of obtaining disclosure, the father amended his position for trial and asks the Court to terminate child support retroactively as of June 26, 2008, the date that [the daughter] J.K.N. graduated high school. The disclosure the father obtained reveals that J.K.N. enrolled in 6 different college programs in 3 different schools over the years since high school. In fact, in the year that the father launched this proceeding to terminate support, J.K.N., at age 28, enrolled in her 6th college program, after having been out of school for at least 4 years. Her transcripts reveal that she has earned only 1 credit, ever, in these various programs.

Even though the daughter was technically enrolled in various college programs, the father argued that her support entitlement should have ended after high school, and that the mother should now owe him for the overpayment.    The court described his position:

He argues that J.K.N. did not apply herself at college when she was enrolled, and at times, she was enrolled part-time or not at all. He argues that she switched programs multiple times, she earned very low grades or no grades at all, she failed to attend classes, she withdrew from courses, and she never obtained a degree or diploma.

The father says that his proposed termination date results in the mother owing him $66,233.66.

Eventually, the mother agreed that child support should end, but disagreed with the father on the end-date, and whether she owed him for any overpayment.  Thus the dispute as it was presented to the court was pared down to that narrow issue.

The court started by observing that the mother bore the burden of establishing that the daughter was still entitled to support.  Under the Child Support Guidelines, a child support order can be terminated if there a “change in circumstances”, which threshold was met when the daughter became an adult. However, that was not the sole criterion:  The court had to look at other factors as well.

The court heard evidence that the daughter was both financially and emotionally reliant on the mother, who also paid for any needed food, clothing, and bus tickets and also provided gas money.  The daughter was not currently working and indeed had never worked full-time in the 10 years since graduating high school, although she periodically held various part-time jobs.

Under the law, even if the court found it arguable that the adult daughter was engaged in a full-time program of education, this did not automatically mean she was still entitled to support.  Rather, the court also had to find that she was unable to withdraw from parental control.  This will occur if in her overall circumstances, she remained both financially and emotionally dependent on one or both parents.  The court said,

The analysis of this issue must be undertaken from a broad and objective standpoint. The judge must scratch beneath the surface of outward appearances to determine whether the child is truly dependent on a parent, or whether their overall circumstances are such that they are independent or reasonably capable of being so.

After considering a number of specific factors, including the reasonableness of the daughter’s education plan and her level of success in it, the court ruled that the father’s obligation to pay support ended retroactively as of April 2010.   At that date, the court reasoned, the evidence (in the form of school transcripts) showed that the daughter had passed only one of her courses, and “just barely”.

With that date in mind, the court calculated the father’s overpayment at almost $41,000, and ordered the mother to repay that amount.  Although the mother’s financial ability to do so was a relevant factor to consider, the court had only an incomplete picture of her finances, or how she was supporting herself.  It concluded that she was evasive when testifying about her income and financial circumstances.  With that said, the $41,000 was to be reduced by certain amounts that the father had not paid under two costs orders made in 2004 and 2006 respectively.

For the full text of the decision, see:

M.P.A.N. v. J.N., 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

 

“Runaway Train: Using Collaborative Practice to Derail High Conflict Court Cases”

low angle train tracks leading to pink sunset

“Runaway Train: Using Collaborative Practice to Derail High Conflict Court Cases”

High conflict court cases that never seem to end.  We have all heard, experienced and lived them. How can we use collaborative practice (CP) to address and redress the problems of high conflict family court litigation? Is it possible? Why would anyone try?

Many families cannot see the light that is CP; and court litigation is all they know, all they have been exposed to or was the only option presented to them when they separated.

One of the basic tenets of CP is that both lawyers agree not to go to court. They are ‘all-in’ with respect to the process and if it fails or break down they contractually agree to step aside and let new (often litigation) lawyers take over.

Newly Separate Spouses, Court and CP

We almost always start every file by proposing the CP process.  We write very open ended, friendly informative letters encouraging our client’s spouse to consider CP and hire a collaboratively trained lawyer.  Sometimes the other spouse does not respond or decides to be self-represented (or spouse 2  – “S2”). In these circumstances a court proceeding is commenced and sometimes proceeds undefended.  Usually at the very last step of the court process S2 then decides to retain counsel and respond to the proceeding.  If S2’s new lawyer has CP training this is a great opportunity to stop the litigation train as it is leaving the station.

The parties have the option to withdraw from court proceedings and pursue CP.  Or the parties can amend the standard CP agreement to reflect that the matter is already in court and place the existing court proceeding on hold until CP is pursued. Case management Judges have shown to be very accommodating with this approach and are often happy to get the case off their docket.  The one advantage to this approach is that any final CP agreement can be incorporated into a court order quite easily by administrative motion (14B) with little time or expense.  In addition, the court can also easily grant the divorce order.

Existing Court files and CP

What issues do you need to consider when existing court files are converted CP?  The addition of neutrals is always good practice and we should encourage client to always consider the benefits of a full CP team.  Family neutrals are excellent at improving communication and addressing immediate and ongoing parenting issues.  Financial neutrals can save time and expense and add credibility to the process of financial disclosure.

The lawyers and the clients then have to consider what do with the existing litigation: withdrawal the court action, put the action on hold, agree not to go to court with their former litigation counsel, agree to go back to court with the same counsel if the CP process fails, or agree to go to court to deal with specifically defined issues such as third party disclosure, maintaining jurisdiction of the children and divorce for example. Depending on the option chosen, the CP agreement may need to be modified accordingly.

CP Files and Court

There are a number of questions that arise when court files convert to CP and when converted CP files end up back in litigation.  A carefully crafted CP agreement can address many of these issues in advance but there are often unforeseen perils and pitfalls.

Stopping the runaway train of litigation using CP needs to be done with caution.  The simple option is to withdrawal the proceeding, agree not to return to court and enter into a standard CP agreement.

Sometimes, however, when there is impasse on varied issues such as valuations, parenting times, school location or jurisdiction it can be helpful to have a case management judge provide guidance to the parties using a modified hybrid CP approach.

A hybrid approach involves modifying the CP agreement to permit the parties to revisit case management for issue specific impasses, such as: disclosure, valuations, third party participation (shareholders or directors for example), schooling, time sharing and parenting issues. The CP agreement can also specify what information and disclosure could be used in later court proceedings if necessary.

Sections of the standard CP agreement that need to be addressed and possibly modified when stopping the train of runaway litigation include:

  • Agreement not to go to court
  • Agreement not to use information acquired in the CP process in court proceedings
  • Agreement to choose new lawyer
  • Notice provisions and waiting periods
  • And more

Summary

Purists will argue that modifying CP agreements and converting court actions or taking a hybrid approach to CP files (or small “c” collaboration) is not true to the cause and runs contrary to the principles of collaborative practice. However, there are many families caught up in the frenzy of court litigation and the system is being strained by the increasing number of family court matters and the increase in self represented litigants. Perhaps we can use CP creatively to put the brakes on or even stop the runaway train of family court litigation and help ease an overburdened justice system and find closure for families caught up in the disconnect of litigation.

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

Wife’s Support Premised on Speedy Return to Work – Is 22 Years Long Enough?

empty calendar page on desk surrounded by phone laptop newspaper clock

Wife’s Support Premised on Speedy Return to Work – Is 22 Years Long Enough?

In a recent case decided by the Ontario Court of Appeal called Choquette v. Choquette, the Court had to consider whether a former wife’s spousal support should end after 22 years, even though she was not well-positioned to make herself economically self-sufficient after more than two decades of being out of work.

The husband and wife had separated after 15 years of marriage, and divorced was finalized two years later.  During the marriage, the wife had left her job in commerce to raise their two children, while the husband continued working in the securities field where he earned a very good income for the family.  In most recent years, he earned more than $1,000,000 per year.

During their 1996 divorce proceedings, the husband had been ordered to pay the wife spousal support of $4,750 per month, indefinitely.  However, that award was predicated on the assumption that the wife would return to the workforce quickly.

She never did so.  She had planned to become self-sufficient, and obtained both her CMA accounting designation and a real estate agent’s license, but these alternate career paths did not come to fruition.

So the husband continued to pay spousal support for 22 years.  This was virtually the wife’s only source of income, and her current net worth was about $800,000.  Finally, when he was on the brink of retirement, the husband applied before a lower court judge to have the initial spousal support order changed, to have it terminated.

The now 62-year-old wife countered, by asking to have it increased, to $15,000 per month.  As the Appeal Court explained:

But she argues that it is too late in the day for her. She is not now capable of supporting herself at the standard of living the family enjoyed during the marriage, no matter what the incentive.

At that lower court hearing the wife had argued that she was frustrated in her attempts to find work because of the residual impact of having been out of the workforce and at home with the children for ten years during the marriage.  During the marriage she had also moved to Toronto, where she had no business contacts, and revealed that she suffered from depression, which prevented her not only from obtaining meaningful work, but also from even looking for work.

Despite these arguments, the husband’s motion was granted and his support obligations to the wife came to an end.  The lower court judge concluded that the wife had been capable of becoming self-sufficient relatively quickly, and that her failure to do so was a material change in circumstances that warranted terminating her support entitlement.

The wife appealed to the Ontario Court of Appeal, unsuccessfully.  The Court found no legal basis for overturning the previous unfavourable ruling.

In rejecting the wife’s argument that earlier judge had placed too much emphasis on self-sufficiency, the Appeal Court looked at the legislation.  Although the provisions of the Divorce Act do not require a spouse to become self-sufficient, it does direct that a support order should encourage a former spouse to become so, but only “in so far as practicable.”  This aspect was therefore not the turning-point as to whether the wife should still be entitled to support at this late stage.

Next, assuming that the original order in 1996 was based on compensating the wife for the economic and other effects of the marriage, there was nothing to suggest that previous judge had been wrong in concluding – on these facts – that support should not go on in perpetuity.

Finally, the Appeal Court also concluded that the lower court judge’s order to terminate the 1996 support order – rather than merely vary it – was not needlessly extreme in the circumstances.  The mere fact that there was a disparity between the current financial resources of the husband and those of the wife was not a legal reason to continue to support indefinitely.

While admitting that the result “appears harsh, given the resources of the [wife]”, the Appeal Court found the lower court had not made any evident errors, and it confirmed that prior ruling.  The Court confirmed that the wife’s entitlement to spousal support – after 22 years and with no career in sight – was now at an end.

For the full text of the decision, see:

Choquette v. Choquette, 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

 

Cross-Border Kid:  Where Should Kid with Dual Citizenship Live and Attend School?

Handing holding a globe in front of mountains and blue sky

Cross-Border Kid:  Where Should Kid with Dual Citizenship Live and Attend School?

In a recent case called Stoughton v. O’Ney, the court faced a unique problem that it described this way:

Sarah and Jessica are the parents of Rory who is a 4 year old boy. Currently, they share parenting time with him on an equal basis … Sarah lives in Niagara Falls, Ontario and Jessica lives in Niagara Falls, New York.  Rory is a dual citizen of Canada and the United States.  Because of the international border, it is not practical for Rory to continue this schedule once he attends school full-time. He must have primary residency with one parent and attend school either in the United States or Canada.  As he should begin school in September 2019, this issue must be resolved.

The court also prefaced its ruling with a comment on the difficulty of the task:

From all of the evidence that I have heard, it was evident that Rory is a lovable, intelligent child and that Rory has two loving mothers who want only the best for him.   Both mothers acknowledge that the other mother only wants what is best for Rory.

This makes the issue of where Rory should attend school, and what the arrangement for his custody should be, very difficult.

The court explained that Rory was born in 2014 in Buffalo, New York after Jessica was impregnated with an anonymous sperm donor. The couple then lived in Ontario immediately after they were married in Canada that same years.

The court started with the observation that joint custody was not an option in this scenario;  it would have to make a sole custody determination, which would in turn dictate both Rory’s primary residence, and the school he would attend.

After emphasizing that the best interests of the child always govern such determinations, the court noted in passing that even for same-sex parents, Rory’s best interests are also the sole governing test.  The law also states that for children conceived through assisted reproduction, each of the spouse are considered to be parents for these purposes, and both have an equal right to custody.  Finally, the goal of maximum contact with each parent is a mandatory consideration, but if the parents are to have joint custody, then there must be a high level of cooperation and communication.

Both mothers gave evidence, as did various extended family members on both sides.  The court heard a litany of testimony around various issues, including the details of their same-sex marriage ceremony in both New York and Canada, how each parent characterized the parenting skills of the other, allegations of dishonesty and abusive conduct, issues and conflict with extended family members, and numerous aspects pertaining to the relationship with the child.

The court also heard the respective plan that each parent had for Rory, in the event that sole custody was granted to them, including the plans relating to schooling.

Sarah’s plan involved having him attend a small U.S. private school close to her work.  It had very small class sizes and the capacity to deal with Rory’s special needs, and could accommodate his weekly speech therapy sessions.

Jessica, in contrast, had done little research on Ontario schools, other than to look into what schools were in her neighbourhood.  She had not explored what services might be available to Rory in Ontario schools.  The court heard the unbiased evidence of the private school principal, over that of Jessica whose evidence appeared to be self-serving.

While noting that both proposed plans had advantages for Rory, the court found the plan proposed by Sarah was overall stronger, and in Rory’s best interests.  It also noted differences in the cooperation levels between the two parents.  In an almost 300-paragraph ruling, the court summarized its conclusion this way:

Because of Jessica’s actions in the past, I have grave concerns that if she were granted sole custody and primary residence of Rory, she would effectively cut Sarah out of Rory’s life.  Because of the inclusive way that Sarah has acted in the past, I have no such concerns if she were granted sole custody and primary residence of Rory. …

I find that Sarah is clearly able to meet, and has been meeting, Rory’s needs, both emotional and physical.  Very importantly she has been doing this in a way that is very inclusive of Jessica, ensuring that Jessica is a part of that journey.

I find that after a gap of over one year, Jessica has taken steps in New York to provide for Rory’s needs, but has done it in a way that totally excludes Sarah from that process.

The court ordered Sarah to have sole custody of Rory, and he would attend school in the Niagara Region of Ontario. Jessica was allowed stipulated access (including overnights), and was ordered to pay a set level of child support, and was entitled to participate in parent/teacher interviews, and to be given copies of his report cards, among other things.

For the full text of the decision, see:

Stoughton v. O’Ney, 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

 

Can Husband Be Forced to Obtain a Separate Home Appraisal?

beautiful house at sunset

Can Husband Be Forced to Obtain a Separate Home Appraisal?

In a recent case called Kraemer v. Kraemer, the court confirmed two important procedural points relating to property valuation:

  • The divorcing spouse who “owns” or controls an asset has the primary obligation to obtain an accurate valuation of it; and
  • In the event of a dispute as to an asset’s value, each spouse may be obliged to get a separate expert appraisal.

The couple had been married for almost 15 years and had three children.   In the course of their divorce proceedings, they ended up asking the court to help with their disagreement over the proper value of the matrimonial home they previously shared.

The wife had had it formally appraised at $735,000.   In contrast, the husband claimed it was worth $800,000, but offered no evidence to support that figure.  He resisted getting an expert appraisal of his own.

To this last point, the court replied:

Mr. Kraemer takes the position that he cannot be required to value the home and, essentially, the value will be decided when the house is sold. In my view, he is wrong in that position.

Indeed, the husband’s (incorrect) position overlooked the core principles that in Family Law proceedings:

  • Each party just take disclosure “very seriously”, and is duty-bound to provide meaningful disclosure of asset values.
  • Each spouse has an obligation to provide credible, realistic values, including independent valuations – not a “guess” or a “fictional amount”.
  • A failure to provide credible evidence to support a value may result in a less-advantageous value being assigned by the court.

On the issue of which spouse is responsible for obtaining an accurate valuation:  The primary responsibility for establishing an asset’s accurate value on the valuation date lies with the spouse who “owns” or controls it.  This is particularly true if that spouse makes an assertion in his or her filed affidavit about the asset’s value.  The spouse then has the burden of proving the stated value is correct;  this may require the input of an expert.  If the other spouse does not agree to the value proposed, then he or she can respond with a valuation from a different expert entirely.

Having reasoned this way, the court found that the husband in this case was obliged by law to hire his own expert to provide a separate, accurate valuation of the matrimonial home.   The court also declined the husband’s requires to treat the latest valuation as a shared expense;  it noted that the wife had already paid for her own valuation, so the overall fees for both appraisals would effectively be split between them.

For the full text of the decision, see:

Kraemer v. Kraemer, 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

 

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