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Posts tagged ‘Separation Agreements’

Mother Wins Appeal of Order Forcing her to Return to England or Lose Custody

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Mother Wins Appeal of Order Forcing her to Return to England or Lose Custody

The upcoming summer travel season makes the case of Zafar v. Saiyid particularly interesting, since it involves a not-uncommon scenario of a separated parent taking children on holiday and then deciding never to come back. It illustrates only some of the complex judicial machinery that gets set in motion when a parent makes this kind of unilateral decision.

The mother and the two young children, who were Canadian citizens, had come to Canada from England for a summer holiday.  The father had given his permission for their travel, and she was slated to return to England by a certain date.

Instead, while still on holiday the mother advised the father that the marriage was over, and that she was staying in Ontario with the children. The father immediately filed an application under the Hague Convention, asking for an order for the children’s return.  The Convention allows a court to order the return of a child who has been wrongfully removed or detained from the jurisdiction.

In terms of granting such an order the jurisdictional test under the Hague Convention centers mainly on the children’s “habitual residence”, which in this case was England.  (This is unlike more substantive questions of custody, which under Ontario law focuses on the “best interests” of the children).

However, the Convention also allowed the mother to resist having to return the children on the basis that they were at risk of physical or psychological harm.  She accused the father of being “threatening, verbally abusive, financially controlling” and of showing “intolerable behaviour towards the mother”, which she claimed deprived the children of a safe environment. The father denied these allegations outright.

Initially, the mother lost her bid to stay in Ontario.  The lower court judge ordered her to return the children to England by December 1, 2018; if she did not, the father would be given sole custody.

The mother then obtained a stay of this order, and voluntarily returned to England where she applied for orders allowing her to formally relocate with the children to Canada.  She also brought an appeal in Ontario on procedural grounds, claiming among other things that the lower court judge had been legally wrong to order her to immediately return to England, and to threaten to strip her of custody if she did not.  She also claimed that the lower court judge had incorrectly failed to conduct a “risk analysis” about her allegations of psychological abuse on the basis that there was conflicting affidavit evidence on that point.

In hearing that appeal, the Ontario Court of Appeal concluded these were indeed mistakes on the part of the lower court judge.  On the point of the order to return, the Appeal Court said:

To award custody of the children to one parent as a consequence of the other parent’s failure to obey a court order is an error as it fails to consider or prioritize the children’s best interests. 

Similarly, to the extent that he did so, the application judge was without jurisdiction to order the appellant to return to England with her children.

As for the conflicting affidavits as to the father’s psychological abuse, the lower court judge should have considered whether to allow the mother and father to each give oral evidence in the circumstances.

Collectively, these failures by the judge were tantamount to an error in law, which warranted the granting of part of the mother’s appeal in Ontario.  (The remaining part, relating to whether the mother could return to Canada with the children, was still pending, with a hearing being scheduled on an urgent basis).

For the full text of the Appeal decision, see:

Zafar v. Saiyid

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

Wednesday’s Video Clip: What Is Power Of Attorney

Wednesday’s Video Clip: What Is Power Of Attorney

In Ontario, a Power of Attorney is a legal document that gives someone else the right to act on your behalf.

In this video, a Law Clerk with Russell Alexander Family Lawyers, discusses the importance of a Power of Attorney and what options and decisions you should consider when deciding who should be your power of attorney.

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

 

Husband Says “Enough is Enough” on Spousal Support – Court Agrees

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Husband Says “Enough is Enough” on Spousal Support – Court Agrees

This was a 15-year marriage that started in 1987, and ended with the couple’s separation in 2002.  From that point onward, pursuant to a court order the husband had been paying spousal support to the wife – for another full 15 years, in fact.  In other words, his support obligations to his wife (they never bothered to divorce) had endured as long as the marriage itself.

The husband applied to the court for an order to “eliminate all financial obligations from his marriage.” Specifically, he asked to have all his current and future spousal support obligations to her – as embodied in various orders that had been made along the way – reduced to nil, and to have any outstanding arrears vacated.

As the court explained the request:

Regarding termination of spousal support, the [husband] states he has paid support for over 15 years exceeding the length of his relationship/cohabitation with the [wife], and his position is “enough is enough”. He has paid support longer than suggested duration (7.5 to 15 years) in the Spousal Support Advisory Guidelines.

The wife actually did not oppose having her spousal support terminated.  As the court put it:

[W]hile she can make other arguments, she acknowledges for purposes of this motion that it would not be unreasonable for it to end on this date on the basis that support as of this date would have been paid for a duration representing the full length of the parties’ relationship.  The applicant agreed …. that terminating support effective December 1, 2017 arguably satisfies the purposes and considerations set by the applicable spousal support laws having regard for those purposes and considerations and the Guidelines.

Still, that was not the end of the matter, because the court still had to consider the facts and make a ruling.   The burden was on the husband to convince the court that the time had come for his obligation to the wife to end, since he was the one seeking to have the support order terminated.

The court noted that while there had been no change in the husband’s income, he had had some periods of long- and short-term disability in the years since one of the last orders was made in 2011.  He also retired in 2014 and began receiving a pension.  The court summarized his overall financial situation:

The respondent asserts that his cost of living has increased. His only source of income is his pension income.

The respondent claims monthly expenses of $3,717.66.

He owns a truck worth $2,000.

He has one bank account with a balance of $5.00

He lists no debts or other property.

The parties’ daughter has had to support him by way of providing him with food and meals.

His cost of living has increased he states.

He has managed to pay consistently for some time to date the sum of $550 to $500 (or it is collected by FRO).

It noted that the wife also lived alone, but in geared-to-income housing.  She had a cognitive disability, and her income consisted of social assistance, support from the husband, and very modest employment income of a few thousand dollars a year as a newspaper carrier.  The fact that she had a disability and health issues did favour allowing a slightly longer support period, but she was certainly not enjoying a high standard of living.

Nonetheless, spousal support could not continue indefinitely. After looking at all the circumstances, the court agreed to terminate going-forward spousal support from the husband, reasoning that to do so “adequately addresses the purposes and considerations for spousal support on these facts.”

However, the court declined to absolve the husband of his duty to pay the arrears, at a rate of $350 per month, especially now that he was no longer required to pay the $500 in monthly support he had been paying all along.

For the full text of the decision, see:

Sharpe v. Sharpe 

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

Deciding to Separate?  Some Noteworthy Points About the “Valuation Date” in Family Law

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Deciding to Separate?  Some Noteworthy Points About the “Valuation Date” in Family Law

A basic concept in Ontario Family Law is that, once spouses decide to separate, their respective entitlement to the matrimonial property they have brought into the relationship and accumulated during the marriage has to be assessed.  That assessment takes place on what is described in section 4(1) of the Family Law Act (FLA) as the “valuation date,” which is defined as:

The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.

Often – but not always – the valuation date will be the same as the formal separation date, which is often the date one spouse moves out of the former matrimonial home. But as we all know, life is not always that simple, and relationships do not always end cleanly.

Here are some important points that the court has clarified about this “valuation date”, in a case called Strobele v. Strobele:

  • The purpose of this FLA definition is to fix the date on which the economic partnership should be fairly terminated.
  • This definition has two aspects:
    • The date on which the spouses separate; and
    • That there is no reasonable prospect that they will resume cohabitation. In other words, there concepts of separation and cohabitation are linked.
  • However, the two concepts, while related, are not interchangeable, i.e.:
    • “Separation” requires more than living under separate roofs, but rather involves a cessation of the “multi-levelled intricate relationship between couples.”
    • Likewise, “cohabitation” implies conjugality.

If a separated couple is not agreed on the exact date on which these two factors were met, a court may have to make the determination for them.  This involves an evaluation of numerous aspects of the relationship and its ending, not to mention the mindset of each spouse.  As the court points out:

Continuation of a relationship requires two people. Either can end the relationship without the consent of the other. As a matter of common sense, there will be many cases where one spouse knows that there will be no reconciliation and the other does not because the one has decided he or she does not wish to reconcile, but the other does not yet understand this. A fair determination of this issue requires that an objective eye be cast upon the unique circumstances of the couple. Thus it is that there are cases where couples are found to have met the test under section 4(1) even though they both continue to live in the matrimonial home….

The court goes on to emphasize that the test under this FLA provision has a clear purpose:

When was it that there was no reasonable prospect that they would resume cohabitation? … In considering this question, it is helpful to keep in mind the purpose for which the question is being asked. It is to set the valuation date, the date at which the parties ceased being one kind of entity for financial purposes – a couple – and became another, a separated couple. Surely it is obvious that there is no one moment in time that can be fixed as the objectively true separation date. Rather the Court should determine the date on which it is fair that the parties no longer share the financial consequences of being married.

Finally, it should be noted that the FLA also allows for the valuation date to be set earlier or later than a couple’s separation date, depending on the circumstances.  The court explains:

Where one spouse with the intention of ending the relationship transfers or dissipates assets, an early valuation date may be appropriate. Where one spouse has decided to terminate the relationship, but has not made this clear to the other spouse, then a valuation date that is later may be in order. However, the test is not purely subjective. Groundless hopes of reconciliation should not extend a valuation date where one spouse has been clear in his or her intentions to end the relationship.

For the full text of the decision, see:

Strobele v. Strobele

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

Wednesday’s Video Clip: Confidentiality

 

Wednesday’s Video Clip: Confidentiality

In this video Russell discuss how all information you provide to your lawyer is completely private and confidential. All the details of your case will be handled with the utmost confidentiality and respect for your privacy.

The privilege of confidentiality between solicitor and client is, in law, a protection which belongs to the client. Therefore, it is up to the client, only, whether or not that confidentiality is to be waived.

Please remember this when your family members or friends request information directly from your lawyer. Lawyers are frequently contacted by new partners, or other family members who want to discuss your case.

You have to give your lawyer specific instructions to permit that discussion to take place. Also, as the time spent by your lawyer will be time spent on your file, you will be billed for any time spent discussing your case with anyone at your request, or in the context of your file.

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 Importance of Offers to Settle

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The Importance of Offers to Settle

It is often asked by clients why they need to prepare an Offer to Settle, and this article will examine that question by looking at the importance of Offers to Settle in the Family Law file.  As stated by Justice Blishen, “Under the Family Law Rules, O. Reg. 114-99, offers to settle are quasi obligatory.  Service of at least one offer to settle should be a basic step in every family law proceeding.”[i]

The Family Law Rules define an Offer as simply that, “…an offer to settle one or more claims in a case, motion, appeal or enforcement, and includes a counter offer.”[ii]  But how do you prepare one, and what is the benefit to preparing one, especially when you know the other party will not accept it?

An Offer to Settle needs to narrow the issues, and should be what you can except to achieve at a minimum.  The goal is to match or beat your Offer to Settle as if you do you will be rewarded (typically with costs).

Format of the Offer[iii]

An Offer to Settle is a settlement proposal as to the claims the person making the offer has advanced. This can be done even prior to commencing litigation, and provided that you have not withdrawn (formally told the other party that the offer is no longer available for acceptance or in the case of a time limited offer the expiration period has been met), any and all offers made remain open for acceptance and even better are available for cost arguments.  You should note that an Offer expires once the Court begins making a decision on the issue(s) contained in the Offer.

The Offer to Settle must be signed by you personally and if you are represented by counsel, your solicitor also.  Failure to abide by this term renders your Offer to Settle defunct (not able for acceptance).

Your Offer to Settle, needs to be about the issues before the Court, in other words, if you include issues in the Offer to Settle that are not being decided, the Offer will not meet the requirements under the Rules and may result in the loss of costs being awarded to you.  This issue can present at a Motion where the Notice of Motion does not reference the information in your Offer to Settle, or even at Trial, be mindful to always cross reference your pleadings to make sure that you are not seeking relief that you have no standing to claim.

It is crucial that you consult with your solicitor as to the impact of time limited Offers to Settle, as for costs to be awarded, your Offer needs to be open for acceptance at the time of the disposition of the Justice hearing your matter – time limited offers that have past their expiration points are the same as Offers to Settle that have been withdrawn.

When To Make an Offer

Typically, Offers to Settle are made:

  1. At the time of preparing Motion Materials;
  2. At the time of preparing for the Settlement Conference;
  3. After receipt of a parenting report/assessment;
  4. After the sale of property or after the exchange of financial information;
  5. During Trial preparations; and
  6. Such other times as advised by your solicitor.

Service of the Offer to Settle is important to note, there needs to be sufficient time for the other party to review and accept the Offer to Settle prior to the hearing (or next step) in your matter.  The Family Law Rules require that an Offer to Settle be made:

  • if for a motion, a minimum of one day in advance of the motion; and
  • if in advance of a trial or other step (conference), seven days in advance.

Costs

Many counsels have placed cost implications within the body of the Offer to Settle, the Family Law Rules however safeguard cost arguments by allowing either party to request costs if they were not claimed in the Offer to Settle.[iv]  You should speak with your solicitor more about the impacts of placing costs within the body of the Offer to Settle or leaving this up to the determination of the Justice at the hearing of the matter.

It is well settled law in Ontario that Offers to Settle are a yardstick by which to measure success and significant in considering both liability for costs and the amount of costs. See Osmar v. Osmar, 2000 CanLII 20380 (ON SC), 2000 CarswellOnt 2343 (S.D.J.).[v]

Failure to make an Offer to Settle can have serious repercussions, Justices have held that failure to make an Offer as “unreasonable”. [vi]

The Family Law Rules require that the parties and their counsel have a duty to act in a manner that takes into consideration any and all cost/time saving measures, narrow the issues focus on settlement and narrow the issues. The failure to serve an offer to settle will be an adverse factor when assessing costs. See Laing v. Mahmoud, 2011 ONSC 6737 (CanLII).

Summary 

Although you may feel the costs of preparing an Offer to Settle will not benefit you, after review of this article and the positions taken by Family Law Justices, you will see how important a role Offers to Settle play in the Family Law file.

[i] Justice Blishen, para 6, Laing v. Mahmoud, 2011 ONSC 6737 (CanLII)

[ii] FLR, 18 (1)

[iii] FLR, 18 (4)

[iv] FLR, 18 (11)

[v]    Madam Justice D. Summers, para 3, Stow v. Davidson, 2018 ONSC 3274 (CanLII)

[vi] Madam Justice D. Summers, para 13, Crump v. Crump, 2018 ONSC 3191 (CanLII)

Special thanks to Senior Law Clerk Amanda Crocker who authored this blog.  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

 

Father’s Threat to Tell Child “Everything” About Custody Conflict Attracts Court’s Reproach

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Father’s Threat to Tell Child “Everything” About Custody Conflict Attracts Court’s Reproach

In a recent blog I point to what is really a recurring theme in past years:  The courts’ willingness to admonish litigants for an assortment of misbehaviour, including lack of cooperation, lack of full disclosure, and – very commonly – a lack of focus on what’s important in a family setting:  The best interest of the children.

This latter point was the court’s theme in Delisser v. Tefferi, where the father had made a request to expand his access to the 9-year old son “J.”, who was currently living with the mother under a sole custody arrangement.

The court heard the history of litigation between these now-separated parents, which featured the father having what the court called a “toxic” attitude toward the mother.  This included an incident where, rather than agree to pick up the boy from where he was playing basketball nearby, the father called the police, claiming that the mother had breached the strict letter of a court order by not having her at her home for pickup at the start of the father’s access time.

In contrast, the court noted the mother had shown considerable flexibility toward the father, including accommodating him when he needed to change plans.

But more troubling was what the court concluded was the father’s overall level of hostility toward the mother.  The court recounted another incident:

On yet another occasion mother asked father not to talk to the child about what was going on in court or in the proceedings between them. Father responded by saying to the mother: “You’re a piece of shit and J. will know everything you said”.

This kind of response by father demonstrates such poor judgment, that the court is almost at a loss for words to explain to father why this is so. But since father will hopefully be reading these reasons, I will attempt that explanation.

The court explained the fuller basis for its concerns:

Disputes by parents which involve children, and which take the parents into the courtroom, are adult matters. They are not matters for children. It is a fundamental premise that parents must make all necessary efforts to shield their children from these disputes.

Children who are exposed to parental conflict risk becoming emotionally harmed by that conflict. This risk of harm is so patently obvious that it has been recognized repeatedly by courts for many years. …

Furthermore, a parent who believes that a child, at the age of only 9 years, is capable of understanding the basis for parental conflict, has no real appreciation for the ages and stages of child development.

Additionally, when a parent sets out to tell his child “everything” the other parent said, he has no appreciation of the damage he is creating, either to his own relationship with that child, or the relationship between the other parent and the child.

The fact that the father in this case was prepared to acknowledge the foregoing statement, and to not apologize for it, or to not appreciate why it was so clearly the wrong thing to do, demonstrates not only very poor judgment, but also a complete lack of insight.

In court, during the course of testimony, the father called the mother a “crazy controlling person”.

A statement like this is, unfortunately, entirely consistent with the anger and poor judgment the father displayed when he insisted that the mother was a “piece of shit” and that he was going to tell the child “everything you said”.

If the father is prepared to make statements like this in a courtroom, in front of a judge, the court can only shudder at what the father might be saying to the mother, or about her, away from the court’s scrutiny.

The father’s anger and hostility toward the mother is palpable. The court’s concern is the extent to which this anger and hostility is impacting the child, and the extent to which that may have actually resulted in emotional harm to J.

The court was left to conclude that the father had “unremitting anger and vitriol” toward the mother, and a lack of insight as to how it might affect the child.  However, the father clearly loved the child as well.  This left the court to balance the competing tension between preserving the father-child relationship, but still expressing its abhorrence with the father’s behavior.

In the end, the court somewhat-reluctantly agreed that there had been sufficient “material change” since the original order was made seven years earlier, which warranted expanding the father’s access to the boy.

But after rendering the decision on the legal issue, the court added:

Final words

It is absolutely imperative that the father read these reasons with an open mind. It is critical that he understand how his current behavior risks doing serious emotional damage to his son who, I have no doubt, he loves.

The father must develop an understanding that regardless of his negative feelings toward the mother, maturity and being child-focused necessitates that he puts those feelings on the back-burner when it comes to J.. and the manner in which he involves himself in J..’s life.

The father needs to understand that J.. is entitled to two loving parents, both of whom are required to nurture and sustain J..’s relationship with the other parent – in other words, doing the opposite of what he has been doing so far, namely, denigrating the mother and exposing J.. to his own hostility toward the mother.

The father also must understand that unless he assimilates this information and changes his behavior, the risk of harm to J.. may become so great that the court could ultimately be left with no choice but to suspend or even terminate his access entirely.

If this were to occur, the ultimate loser would be J.., the person with whom the court is necessarily most concerned — and the person about whom father should be most concerned.

I encourage the mother to continue to demonstrate her flexibility toward the father where it is appropriate to do so in J..’s best interests.

I have no doubt the mother will continue to act as she has done in the past.

For the father, however, the court strongly urges a greater generosity of spirit toward the mother, not just for its own sake but, more importantly, for the sake of the healthy development of his son.

There are wise words indeed, for any parent going through the family litigation process.

For the full text of the decision, see:

Delisser v. Tefferi

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

Wednesday’s Video Clip: Russell Alexander, Family Lawyers


Wednesday’s Video Clip: Russell Alexander, Family Lawyers

At Russell Alexander Family Lawyers, we are committed to practicing exclusively in the area of family law. As a result, our team is experienced in dealing with all aspects of family law matters, including:

  • Separation and divorce
  • Child custody and access
  • Child support Spousal support
  • The Family Responsibility Office (FRO)
  • Division of family property
  • Family mediation and alternative forms of dispute resolution
  • Domestic contracts, including separation agreements, paternity agreements and marriage contracts

Because our work is focused solely on family law, we understand the difficulties individuals face when going through a separation or divorce. We understand that family law can be very complex, and that its complexity can be amplified when coupled with emotionally straining circumstances.

Our office will help you by providing you with guidance during what can be a very difficult time in your life. This means providing you with the information to help you to identify and understand the issues, as well as the options and opportunities available to you to help in this transition. It means working with you to design a plan to help you make progress and achieve your goals.

We will keep you informed about matters as they arise and discuss with you any significant decisions that you are required to make. We will provide you with our best legal advice, but ultimately you will make the final decisions and provide us with instructions. If you have any questions or would like to find out more about your individual situation and how a family lawyer can assist you to achieve your goals, please contact one of our offices.

Visit us at Russellalexander.com

When Does a Lawyer’s Courtroom Incivility Amount to Professional Misconduct

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Supreme Court Rules For When a Lawyer’s Courtroom Incivility Will Amount to Professional Misconduct

In the recent case of Groia v. Law Society of Upper Canada, the Supreme Court has overturned the decision of the Law Society of Ontario’s  finding that Mr. Groia was guilty of professional misconduct due to his incivility during the proceedings of R v. Felderhof. 

The issue was to determine the ‘reasonableness’ of a lawyer’s incivility to be that which will amount to professional misconduct. Thus, when determining incivility, the courts have shown willingness to impose a multi-factored and context-specific inquiry, opposed to a rigid and precise definition.

The court indicated that:

 It sets a reasonably precise benchmark that instructs lawyers as to the    permissible bounds of ethical courtroom behaviour by articulating a        series of contextual factors — what the lawyer said, the manner and      frequency in which it was said, and the presiding judge’s reaction to        the lawyer’s behaviour — that ought generally to be considered when    evaluating a lawyer’s conduct, and by describing how those factors          operate when assessing a lawyer’s behaviour.

 The approach, with which I take no issue, targets the type of conduct that can compromise trial fairness and diminish public confidence in the administration of justice. It allows for a proportionate balancing of the Law Society’s mandate to set and enforce standards of civility in the legal profession with a lawyer’s right to free speech. It is also sensitive to the lawyer’s duty of resolute advocacy and the client’s constitutional right to make full answer and defence.

The court also stressed that counsel holds the responsibility to not only advocate for their client, but to also uphold ‘constitutional imperatives’ to criticize state actors:

  …for criminal defence lawyers, fearless advocacy extends beyond ethical obligations into the realm of constitutional imperatives

  Defence lawyers must have sufficient latitude to advance their clients’ right to make full answer and defence by raising arguments about the propriety of state actors’ conduct without fear of reprisal

Mr. Groia has since commented on the ruling stating:

civility does have an important role to play in the legal system and in the judicial system, but where there is a conflict between civility and our duties to defend our clients’ interests, the Supreme Court has made it very clear that it’s going to require very serious misconduct before a defence lawyer can be criticized for doing his or her job.

The three dissenting judges viewed the majority had incorrectly applied the standard for breach of civility. Yet, despite the courts decision to follow a context-specific approach in determining incivility, this has been a 10-year ordeal for Mr. Groia and has been outspoken that the process has been stressful and one which no lawyer wishes to go through.

For the full text of the decision, see:

Groia v. Law Society of Upper Canada 

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

 

If Your Spouse Moves Out, Can They Later Ask You to Pay Rent?

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If Your Spouse Moves Out, Can They Later Ask You to Pay Rent?

As was reported in a recent article in the Financial Post reported, the decision in a case called O’Brien v. O’Brien tackled the intriguing question of whether a spouse who stays behind in the matrimonial home after separation must pay “occupation rent” to the other spouse who has moved out pending their mutual divorce trial.

In this case, that divorce trial took place a full seven years after the separation, and it was the husband who continued to live in the jointly-held matrimonial home after separating from the wife.  Neither of them took steps to finalize the property-equalization process, and the home increased significantly in value during that time.  The husband also made some mortgage payments.

The husband continued to live the home, paid all the expenses, did renovations, and paid down some of the mortgage.  He claimed against the wife for her share of the maintenance and improvement costs, and the wife countered with a claim for occupation rent against the husband.  She claimed that he owed her $1,800 per month for approximately the past seven years, totalling about $78,000, and gave him notice of that claim only shortly before their divorce trial.

The court, in considering whether the husband was obliged to pay the wife a fair amount for the rent that he would otherwise be paying elsewhere, articulated some of the legal principles that must be factored in, namely:

  • The timing of the wife’s claim for occupation rent;
  • The duration of the husband’s occupancy;
  • The wife’s inability to realize on her equity in the property;
  • Any reasonable credits to be set off against the occupation rent potentially payable by the husband; and
  • Any other competing claims in the litigation.

Drawing from prior case precedent, the court listed some added factors that also needed assessment, specifically:

  • The wife’s conduct, including any failure to pay support (if previously ordered to do so);
  • The husband’s conduct, including any failure to pay support (if ordered);
  • Any delay by the wife in making her claim for occupation rent;
  • The extent to which the wife has been prevented from having access to her equity in the home;
  • Whether the wife moved out of the home so that it could be sold;
  • Whether the husband paid the mortgage and other carrying charges of the home;
  • Whether their children resided with the husband and whether the wife paid child support; and
  • Whether the husband increased the selling value of the property.

The court noted that the burden is on the wife in this case to satisfy the court that these factors are established – in whatever combination, and to the needed degree.  Also, it was up to the wife to provide specific evidence as to what the market value of the home would have been.

After reviewing all these components against the facts of this case – and despite the fact that the husband had in the former matrimonial home for more than 7 years pending trial – the court found that he did not owe the wife any occupation rent here.  Conversely, and in light of that conclusion, the husband was ineligible to make a claim against the wife for home maintenance and improvements, because he did that work for himself as an “occupier” of the home.

For the full text of the decisions, see:

O’Brien v. O’Brien

Griffiths v. Zambosco

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