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If the Parties Settle, Who’s Entitled to Legal Costs?

If the Parties Settle, Who’s Entitled to Legal Costs? 

The father had applied to the court for an order setting up an equal time-sharing parenting plan for his 5-year old son, and to have his child support obligations adjusted accordingly.  He felt this would allow the child to spend the maximum amount of time with both him and the child’s mother.

However, he waited until the final settlement conference to consider withdrawing his application – then decided against.  Instead he fired his lawyer.  He then abandoned the claim entirely, himself.

He and the mother ended up reaching an agreement on consent, which the court said “closely resembled” the parenting plan that they had in the first place, as part of their separation agreement from three years earlier.

In light of the father’s fruitless and excessive application, and the unneeded legal fees and court time it required, the mother asked for her full costs of over $12,200.

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In response, the father asked for his costs of over $7,100, on the basis that he was forced to bring the application because the mother backed out of earlier negotiations after he accepted her settlement proposal.   He felt her position was unreasonable, and that he ended the court proceedings because he “did not have the energy to continue the fight.”

The court was asked to decide which of them was entitled to legal costs from the other.  It started by confirming the basic principles on how legal costs are to be awarded in Family Law proceedings, including the presumption that the successful party is entitled the costs of a motion, enforcement, case or appeal.  Plus, a party who has behaved unreasonably may be deprived of all or part of the costs to which they would otherwise be entitled.

However, there are dedicated costs rules covering situations where the parties end up settling their issues with each other.  As the court wrote:

Awarding Costs in a Case that has Settled:

Courts have often held that where parties reach a settlement, the court should be slow to award costs in favour of one of the parties unless there are compelling reasons to do so. Courts want to encourage parties to settle their cases in order to avoid costs. It is also sometimes very difficult to determine who is the “winner” and the “loser” in a negotiated settlement. …

However, there are cases when costs may be awarded when parties reach a signed agreement. There may be instances where a settlement is a “clear capitulation” by one party in favour of another, and it is obvious who the successful party is in the litigation. …

Simply because the parties have settled, this does not mean that a court cannot still undergo a full costs analysis, taking into account the usual factors.  A court may even consider a party’s behaviour in actually settling the case, adding:

But if a party eventually makes a good litigation choice by signing Minutes, that epiphany doesn’t automatically wipe out any history of bad litigation choices which would otherwise justify costs. Settling in the face of the inevitable may be little more than damage control.

If a party brings a motion asking to change almost everything, and at the last minute signs a Consent which changes almost nothing, how can they possibly argue that a judge will have a hard time figuring out who was successful?”

In this case, the settlement agreement was a “clear capitulation” by the father; he had completely abandoned his claim for equal shared parenting and a reduction of child support on the last hearing day, after firing his lawyer.  He had also refused to exercise additional access to the child gradually, unless there was a full and equal parenting plan in place by court order or agreement.  In fact, there were days leading up to the settlement where he could have spent more time with the child, but refused to do so.

As the court put it:

The father’s position was “all or nothing”. There was no middle ground for him. When he did not achieve “all” immediately, he withdrew his claim and blamed the mother.

The father’s position was not child-focused. It was about his rights as a father and not about what was in his child’s best interests. …

On the other hand, the court decided the mother had behaved reasonably throughout, and had been “put to great expense” in responding to the father’s unreasonable application, which was “an entirely wasted application and court process.”

As the successful party, the mother should be entitled to some costs, but not the full $12,200 claimed because she had never served a formal offer to settle.  Instead, the court order the father to pay her $6,000.

For the full text of the decision, see:

Mitchell v. Longley, 2019 ONCJ 161 (CanLII)

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

 

 

Canoe Tragedy at Cottage Leads to Conviction for Impaired Driving

We are well into the long days of summer, which can be the season for family outings to the beach, European vacations, and lazy days at the cottage.

But not every well-intentioned summer adventure ends with good memories.

The recent criminal law decision in R. v. Sillars described an idyllic-sounding Muskoka canoe trip gone bad, culminating in the tragic death of an 8-year old boy.   The accused David Sillars – who was dating the boy’s mother – becomes the first person in Canada to be convicted of impaired driving charges while paddling a canoe.  He now faces a potential maximum sentence of life imprisonment (though it is likely that he will receive a sentence ranging between two and 10 years).

The events of the fateful day in April 2017 started unremarkably:  The 37-year-old Sillars had been at a friend’s cottage on the Muskoka River with his girlfriend and her 8-year old son, Thomas.  Although he had been drinking and consumed marijuana earlier in the day, with his mother’s permission he decided to take Thomas canoeing. The outing turned to tragedy when they paddled toward a barrier that blocked them from 50-foot rocky-bottomed waterfall.  Sillars was trying to reach a blue barrel that had been wedged near the barrier. Thomas stood up in the canoe to help, and the canoe tipped over. Sillars was able to clamor to the shore, but what was described as the “extremely fast-flowing” current carried Thomas toward the waterfall, and ultimately to his regrettable death.

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In addition to addressing culpability for the death of Thomas – who considered Sillars to be a father figure – the case also offered the court an unprecedented opportunity to consider several legal issues:  1) the meaning of “vessels” that is found in the Criminal Code, and as it relates to impaired driving offences specifically; and 2) whether paddling a canoe can fall within the definition of impaired “driving”.  The case also represented the first time that charges had been prosecuted in connection with a person operating a canoe after consuming alcohol and marijuana.

On the legal definitions, the court ruled that canoes do count as vessels, and that being impaired – whether by alcohol or drugs — while paddling in a canoe can give rise to criminal liability.  In this case Sillars had admitted to drinking two alcohol coolers before setting out, but the breathalyzer results showed he was over the legal limit of 80mg per 100 mL of blood.  Additional blood tests also showed the presence of cannabis.

Additionally, the Crown was successful in persuading the court that the evidence, when viewed cumulatively as a whole, proved beyond a reasonable doubt that:

… David Sillars’ decision to canoe towards a yellow warning barrier, in the existing water conditions on April 7, 2017, with an eight year old boy, to retrieve a blue barrel from a yellow warning barrier a short distance before High Falls, was a “marked and substantial” departure from the conduct of a reasonable prudent person in the circumstances and that it showed a wanton and reckless disregard for the life and safety of Thomas Rancourt.

The court also found that Sillars’ consumption of alcohol and marijuana impaired his ability to quickly react when the canoe tipped over and got caught in the current. Sillars was found guilty of: impaired operation of a vessel causing death; operating a vessel with over 80mg of alcohol in 100 mL of blood causing death; dangerous operation of a vessel causing death; and criminal negligence causing death. He is yet to be sentenced.

For the full text of the decision, see:

R v. Sillars, 2019 ONCJ 474 (CanLII)

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

 

What’s the Legal Effect of Setting a Domestic Agreement Aside Pending Trial?

In a recent case called MacLeod v. MacLeod, the court focused on a provision in the Ontario Family Law Act (namely, section 33(4)) that gives a court the clear power to overrule what spouses may have intended in their signed, written domestic agreements.

But what became less clear, is what the court’s proper legal approach should be when faced with a spouse who asks to have a domestic agreement set aside on an interim basis, (i.e. temporarily) until a full hearing into the issue can be held.  For example, if a court agrees to temporarily set aside a separation agreement until trial, and that agreement covers spousal support amounts, then how are support levels to be calculated in the meantime?

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In MacLeod, a couple had signed a marriage contract addressing the issue of spousal support in the event they separated.  The contract called for the husband to top-up the wife’s monthly income to a certain level, and to pay her a $150,000 lump-sum, among other things.

A few years later they did separate, but the wife asked the court to set that marriage contract aside, on the basis that she did not understand it at the time she signed it, and did not obtain legal advice prior to doing so.   She made this request, together with a bid for short-term spousal support, on an interim hearing, meaning one that was well in advance of a full trial of all of their issues (which would take place later).   In other words, she was asking the court for a temporary order at this stage.

The husband objected.  He argued that – depending on whether the wife was successful in having all or part of the contract set aside – such an order could throw his obligations into some uncertainty, and compromise him financially.  The court explained the conundrum:

… [U]ntil it is set aside, there is a presumption that the parties’ executed marriage contract is valid. Where one party seeks to set aside a domestic contract and seeks interim support, support should be ordered in accordance with the marriage contract. Courts should exercise great caution in granting interim relief that contradicts the terms of a contract signed by the parties.

If I were to presume, on a temporary basis, that the marriage contract is valid, and limit the mother’s spousal support entitlement to what the contract provides (an amount sufficient to top up the mother’s income to $36,000 per year), then it seems to me that I should also order the father to immediately pay the $150,000 lump sum as well.  The father objects to paying this lump sum on a temporary basis for two main reasons. First, he takes the position that the mother is a significant flight risk, and receiving this important payment will only increase her ability to remove the child from Canada.  In addition, he states that if the marriage contract is ultimately declared invalid, he will have paid to the mother a significant advance towards future spousal support which he may never be able to recover down the road.

This raised the legal question of how, pending that full hearing, the court should treat the agreement the couple had reached, and whether all or parts of it should be enforced for the time being.

Essentially, the court took the middle-road:  It concluded that husband’s concerns over the $150,000 lump-sum payment were “compelling”, and temporarily relieved him of the obligation to make that payment until the later hearing.  However, he was still ordered to pay spousal support in a set amount, as the marriage contract called for.  This would allow the wife to maintain her existing lifestyle until the trial, which was the primary goal of interim spousal support at this stage.

From a practical standpoint, this also made sense:  If the couple’s marriage contract was set aside at trial, then the husband’s spousal support obligations could be adjusted retroactively by the trial judge.  Conversely, if the contract was upheld at trial, then any overpayment the husband made in the interim could be offset against the $150,000 he still owed under it.

For the full text of the decisions, see:

MacLeod v. MacLeod, 2019 ONSC 2136 (CanLII)

Balsmeier v. Balsmeier, 2014 ONSC 5305 (CanLII)

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

Was Ex Wife Entitled to $500,000 in Life Insurance? Or Was it Merely to “Secure” Support?

In Birnie v. Birnie the question for the court was this:

In a Separation Agreement, was the husband’s obligation to secure life insurance, naming his wife as a beneficiary, a “standalone” one, or was it solely for the purposes of “securing” his spousal support payments?

Michael died suddenly at age 61.  At the time, he was married to Sharon whom he had married in 2009.

Michael’s first wife was Janice, whom he married in 1987 and who he separated from in 2002.  Under his 2004 Separation Agreement from Janice, Michael agreed to secure a life insurance policy for $500,000, designating Janice as the irrevocable beneficiary for as long as he was required to pay spousal support to her.

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However, he never did.  He died without ever arranging for the policy as required under the Agreement.

Janice now claimed that the Separation Agreement clause requiring him to obtain $500,000 in insurance was a “standalone” clause, fully enforceable as against the Estate.

Sharon (who was also the Estate Trustee of Michael’s Estate) argued otherwise:  The life insurance policy was simply intended to “secure” spousal support while Michael was alive and obliged to pay it, she said.

The court had to consider which of these two opposing interpretations of the Separation Agreement were correct.  As context, the court noted that Janice was in considerable financial need:  The spousal support she had been receiving from Michael was her primary source of income.  She was now 69 years old, and had not worked during their traditional marriage so that she could support Michael’s career as a lawyer, where he earned almost $1 million in annual income just prior to his death.  She had also been diagnosed with cancer.

In interpreting the wording of the Separation Agreement, the court agreed with Janice:  The Estate was required to pay her the full $500,000.

When examining the Agreement terms, the court had to look at the plain meaning of the language Michael and Janice had used. Also, if there were two competing interpretations, the more reasonable one – and the one that produces a fair result – will be the one assumed by the court to best promote the intentions of the parties.

Here, the overriding intention of parties was clear:  They wished to have their affairs settled once and for all.  As the court said:

While arguments exist that the parties’ sole intention was to have the insurance act as mere “security”, a reading of the whole contract makes clear that such an interpretation would be inconsistent with the parties’ stated goals.  The parties wanted their matrimonial issues to come to an end.  They effectively stated as much in the preamble of the Separation Agreement.  They provided each other with expansive releases.  These are clear examples where the parties acted upon their intentions.

These conclusions were especially persuasive given that both Michael and Janice were represented by separate lawyers when the Separation Agreement was drafted.  If they had intended the life insurance policy to operate as a “stand alone” benefit on Michael’s death, without being linked to the obligation to pay spousal or child support, then it was open to them to strike such a bargain and memorialize it in their Separation Agreement.

For the full text of the decision, see:

Birnie v. Birnie, 2019 ONSC 2152 (CanLII)

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

 

Parental Alienation and Custody Switches: Fostering Relationships is Key

Parental Alienation and Custody Switches: Fostering Relationships is Key

In a prior Blog, we discussed a case called Pryce v. Pryce where the court ruled the mother had alienated their children from the father, who originally had only access to them.  In response, the court ordered that custody should be switched from the mother to the father; this ensured children’s best interests would be served by maximizing their relationships with both parents.

This kind of court-ordered custody switch is not particularly common, but a finding of parental alienation is somewhat more so.  Perhaps this is understandable, since so many separations and divorces between parents are acrimonious, and often result in custody battles and acrimony.

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There is no bright line that a custodial parent must overstep, to be found to have alienated the other one to the extent that a custody switch is warranted.  It all depends on the facts and the circumstances.

But among the specific behaviour that courts hone in on, is an unwillingness of the custodial parent to put the children’s best interests at heart, and to “do the right thing” when it comes to fostering a good relationship with the other parent.

In Attia v. Garanna, for example, the court also took custody away from the mother and gave it to the father instead, emphasizing that the mother had made attempts to minimize the father’s role in their children’s lives.  Indeed, the court found she had done her “utmost” to restrict his access to them.  In contrast, the court found the father was “ready, willing and able” to share his parental role with the mother in a significant way.  This included abiding by court orders.

Likewise, in Rogerson v. Tessaro the Court of Appeal confirmed a lower-court ruling that custody of the children should also be switched from the mother the father.  While the mother insisted that she was supportive of the children’s relationship with their father, in reality she had actively thwarted it and made “diligent efforts” to exclude the father from their lives.  For example, she made a unilateral decision to move elsewhere, away from the father’s convenient access. In justifying the custody switch, the Court observed that the father would be more likely to support the children’s relationship with their mother, while the converse was not true.  The mother was unable to consider the children’s best interests; even though they were more closely bonded with her, the custody switch to the father would ensure that they would enjoy maximum contact with both parents.

For the full text of the decisions, see:

Pryce v. Pryce, 2019 ONSC 3558 (CanLII)

Attia v. Garanna, 2010 ONSC 2033 (CanLII)

Rogerson v. Tessaro, 2006 CanLII 15126 (ON CA)

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

What Happens When Your Marriage Gets Voided? And How is it Different from Divorce?

What Happens When Your Marriage Gets Voided? And How is it Different from Divorce?

Divorce is a common solution for those who find themselves married to people that they are no longer in love with.   But in prior posts we covered a case in which the wife was asking the court to declare her marriage to the husband legally “void”.

You may be wondering what the difference between divorce and a void or voidable marriage is, and why a spouse may opt for the more uncommon remedy for being in a bad marital relationship.

This esoteric legal issue was covered comprehensively in a recent case called Lowe v. A.A. where the court traced the historic need for the distinction.  It noted that a “void” or “null” marriage is not a divorce by another name.   Rather, it is one that is regarded – for all purposes – as never having taken place.   The marriage never existed because it was flawed from the outset, and no legal consequences ever arose from it.

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A divorce, in contrast, presupposes that a previous marriage did exist; the divorce order serves to put that married status to a formal end.   A divorce can be granted where there was a valid existing legal marriage in the first place, but where some cause to end it arises afterwards.  The divorce does not impinge on the reality that the marriage did exist in the past.

Returning to flawed marriages:  They can be “void”, or “voidable.”   A marriage is legally void from the outset in certain defined circumstances, for example where:

  • One or both spouses was married to other people at the time of the marriage;
  • One or both of them did not consent to the marriage, or they lacked the mental capacity to consent;
  • The spouses are related to each other within prohibited degrees;
  • One or both of them is under the age of majority at the time of the marriage; or
  • The marriage ceremony was incomplete.

What may be surprising is that since a void marriage never existed in the first place, there is no legal need to formally annul it by way of a court declaration.  (Still, some spouses may want to go that extra step to avoid problems in the future, or for religious reasons.  Any court declaration they receive would merely confirm the existing state of affairs.)

A voidable marriage, on the other hand, is one that can be declared void by a court after-the-fact, in cases where:

  • The marriage was entered into for fraudulent purposes; or
  • Consummation of the marriage is impossible because: 1) one or both spouse lack the capacity; or 2) a spouse willfully refuses to consummate the marriage, for example due to repugnance.

In these situations, the marriage does exist and has full intended legal consequences under the law and otherwise, until it has been declared annulled by a court of competent jurisdiction.  In other words, it is a valid and subsisting marriage until it has been pronounced to be otherwise.

So how does this affect spousal support rights and entitlements?   Family law is generally geared toward protecting formally-married and common-law couples, so the fact that a marriage was actually void and never existed could theoretically impact the rights of the participants.  Fortunately, under the Ontario Family Law Act, the definition of “spouse” specifically includes individuals in a void or voidable marriage, provided one or both parties underwent the marriage in good faith.

For the full text of the decision, see:

Lowe v. A.A., 2018 ONSC 3509 (CanLII)

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

 

 

Did Husband’s Poor Character Justify Marriage Annulment Based on Fraud?

Did Husband’s Poor Character Justify Marriage Annulment Based on Fraud? 

In a case called Sahibalzubaidi v. Bahjat, the court grappled with whether to annul the marriage between a woman and a man based on an unusual ground, namely “fraud”.   The woman claimed that in order to induce her to marry him, the man and committed fraud against her and her father, by misrepresenting that he had good character when he did not.

The man and woman were merely passing acquaintances while attending the University of Malaysia at the same time.  As a devout Muslim, she could not date or have an in-depth conversation with him in that environment.   However, when she returned to Canada to join her family, they continued to exchange emails and over time this led a discussion of marriage.  To her, “the most important thing in a potential husband was and is that he be honest, kind, moral and upright character and share my religious values which involve respecting me as his wife”, as she later told the court.

The man proposed to the woman by e-mail.  She accepted – subject to her father giving his consent, especially since she was his only daughter.  The father interviewed the man and his parents, and they gave him their assurances that the man possessed the character and qualities of a suitable husband for the woman.

The father approved the marriage, which took place in the customary manner involving both a civil ritual and a religious one. During that ceremony, the man promised to keep the woman safe, respect her, and take care of all aspects of her life.   He also directly promised the woman’s father that he would keep her safe and respect her.   The imam, who performed the marriage ceremony, told the man that if he tried to hurt the woman, she would have the right to make the marriage fasid, which means to have it annulled.

The court described the woman’s evidence as to what happened soon after:

[The woman] deposes that upon his arrival in Canada, [the man’s] true character emerged and had she known this she would have never agreed to marry him. [The man] breached his promise to keep her safe and respect her. … [T]he woman states:

He began to assault her, once even dragging her onto the front lawn of her parents’ house where everyone could see, which was a particularly debasing and humiliating act against someone of the [woman’s] cultural and religious background. The [man] threatened her and had her call his parents in Iraq to ascertain that, indeed, he had shot his father and broken his mother’s arm. The [woman] confirmed these facts with members of the [man’s] family, other than his mother and his father. He also implied that should she ever disobey him, a similar fate would await the [woman]. He would repeat the same complaint or instruction to her, not simply ad nauseum, but literally a hundred times a day in a succession. He refuses to recognize that he has any kind of personality disorder and will not under any circumstances obtain professional help in order to deal with it.

In light of these developments, the woman asserted that both the man and his parents deceived her and her father.  She asked the court to concluded that these facts were tantamount to fraud, which could form the basis  for annulling the marriage entirely.

The court noted that fraud does not usually vitiate a marriage, unless it induces an “operative” mistake,  for example one relating to a party’s identity, or a mistake in understanding that the ceremony that is taking place is a legal marriage.

The mistaken identity factor that could justify an annulment might arise if, for example, party A is induced to marry B, believing that she is marrying C.  Here, there was no such deception as to the man’s identity per se; the misrepresentations as to his character or personality traits did not fall within the traditional category of fraud.

The court accordingly rejected the woman’s annulment argument on this ground (although it did agree annul the marriage on one of the other grounds she raised, namely non-consummation, and failure to comply with certain religious requirements).

For the full text of the decision, see:

Sahibalzubaidi v. Bahjat, 2011 ONSC 4075 (CanLII)

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

Challenging a Domestic Contract – Are its Terms Still Valid Pending Trial?

Challenging a Domestic Contract – Are its Terms Still Valid Pending Trial?

As readers of my Blog will know, “domestic contracts” (which include separation agreements and marriage contracts) are essentially signed, written legal contracts that embody the negotiated agreement between spouses in the event of their separation or divorce.  Among other things, they typically include provisions relating to how much post-split spousal support is to be paid, and by whom.

A well-drafted domestic contract will withstand a court’s scrutiny, and its terms may even be incorporated into an eventual divorce order made by the court.  But not all domestic contracts pass this test – one or both spouses may decide to challenge the validity of the agreement they negotiated, and may go to court for a temporary ruling on whether its provisions should be enforced pending a fuller trial, when all their issues relating to the separation or divorce can be finally addressed.

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These kinds of contract-challenge scenarios give rise to two interesting legal questions:

Question 1:  Do the support-related provisions of a domestic contract remain effective pending a court’s later determination of whether they are legally valid?

Yes.  In a case called Balsmeier v. Balsmeier, the court stated that there is a legal presumption that the marriage contract executed between a couple is valid.  So if one of them asks the court to set it aside, and requests interim support until the rest of their issues can be determined later at trial, then the court should normally order that support in keeping with what the parties agreed to in the contract.  In other words, the court should be reluctant to order interim relief that contradicts what the parties themselves agreed to in the signed contract.

Question 2:  Can a couple add a provision to domestic contract that effectively ousts a court’s authority to change or set aside other provisions that relate to support?

No. If a domestic contract includes a provision for support, or a waiver of a right to support, then the court can freely set it aside and make its own support determination – even though the contract itself contains an express provision trying to preclude the court’s power to do so under the Family Law Act (FLA). There are three situations in which a court can do this:

  • Where the provision for support, or the waiver of the support right, results in unconscionable circumstances,
  • The support provision is in favour of a dependent who qualifies for an allowance for support out of public money, or the waiver is by or on behalf of this kind of dependant, or
  • There is default in the payment of support under the contract at the time the application is made.

In an upcoming Blog, we will take a look at how this power can be wielded by a court, and applied practically in the face of rather onerous domestic provisions that are being challenged at an interim stage pending trial.

For the full text of the decision, see:

Balsmeier v. Balsmeier, 2014 ONSC 5305(CanLII)

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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