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Posts tagged ‘Separation Agreements’

Couple Ask Court to Declare Their Marriage Void – So That They Can Marry Each Other a Second Time

Couple Asks Court to Declare Their Marriage Void – So That They Can Marry Each Other a Second Time

A few months ago, we reported on a decision that required the court to untangle the complicated love-life a thrice-married man.

In another recent case, a married couple named Elizabeth and Patrick mutually asked the court to declare them “un-married” by way of an annulment – but only so that they can get married to each other again.   Turns out they had recently received a surprise from Canadian immigration officials, advising them that Patrick was ineligible to sponsor Elizabeth to immigrate to Canada as his wife, because he was still married to someone else.

Patrick’s first wife was a woman named Yao, whom he had met and married in 2011.  They separated in 2012, and he started divorce proceedings a year later.  He had not year from her in several years, and both he and Elizabeth assumed that the marriage had been validly dissolved when they tied the knot in August of 2017.  Soon after, Patrick applied to sponsor Elizabeth as his spouse for immigration purposes.

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However – much to the newlyweds’ surprise – they received correspondence from Immigration, Refugees and Citizenship Canada that Patrick was not eligible to sponsor Elizabeth because his earlier marriage to Yao was still in-force.    It turns out the divorce had never been finalized because Patrick’s lawyer was having trouble locating Yao.  It was only two years after their wedding to Elizabeth, in 2019, that Patrick was able to get a Certificate of Divorce that formally ended his first marriage to Yao.

Elizabeth and Patrick therefore asked the court to declare their 2017 marriage a nullity, which ironically would allow them to get married again, and would allow Patrick to apply a second time to sponsor Elizabeth for immigration.

This request for an annulment prompted the court to review the provincial and federal legislation that allows a court the authority to annul a marriage, and that prohibits a person from contracting a new marriage until every prior one is dissolved by death, divorce or court order.  The court also noted that one ground for an annulment is that there is a prior marriage still in existence.

The court therefore granted Patrick and Elizabeth’s request, on consent.  It declared that their 2017 marriage was void, because at the time the ceremony took place he was still legally married to Yao. They were thus free to marry each other again, thereby satisfying immigration authorities in the process.

For the full text of the decision, see:

Arevalo v. McHenry, 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

Woman Loses Support Bid from Man with “Harem” of Others

Woman Loses Support Bid from Man with “Harem” of Others

In an Ontario case involving unmarried romantic partners, the court was asked to examine the contours of precisely when a dating relationship turns into something more – at least in the eyes of the law.  The court began its judgment this way:

 Can a romantic partner – even one in an apparently close and loving relationship for several years – make a claim for dependant relief without establishing that she actually lived together with the deceased for at least three years?  In my view the answer is that she cannot. 

The partners were a man named Jeffrey and a woman named Branislava.  Although they had been together romantically for seven years, the court concluded that they kept separate residences and never officially “lived together”.  Jeffrey died of an apparent heart attack on New Year’s Even in 2016, at age 63.   His Will, which was made a full three years after their relationship started, did not make any provision for Branislava.

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In this context, Branislava was asking for “dependant’s relief”, which is a right based in provincial Estates law.  Since Jeffrey had not adequately provided for her in his Will, Branislava might be entitled to financial support from his Estate if she could prove that she was his “dependent” in the years before he died.  That term is defined by statute to include a common-law spouse.

The court was left to examine the relationship history between the couple, and heard evidence of people who knew them.  One of them was a platonic female friend of Jeffrey’s, Ms. Wolfe, who offered insight as to how Jeffrey viewed the connection:

[The female friend] Ms. Wolfe first met Jeffrey in 2001 when she met him on a Jewish dating site.  While they did not ultimately become romantically involved, they did become close friends.  Jeffrey confided in her and shared intimate details of his life with her, including details of his relationship with what he sometimes jokingly described as his “harem” of women.  He certainly felt close enough to Ms. Wolfe to name her as his executrix.  Ms. Wolfe was in almost daily contact with him.  She invited him over for Sabbath dinners or for High Holiday celebrations. 

Ms. Wolfe described Jeffrey as being something of an eccentric.  This eccentricity manifested itself in a number of ways.  For example, he feared being bitten by mosquitos and often wore protective clothing.  He was wary of travelling in cars and he sometimes purchased new tires for his girlfriends to ensure they were safe.  He had established something of an on-line religion through a web site that he sought to leave in his will to, among others, Mark Zuckerberg (there is no evidence that the two were acquainted in any way).  He lived alone in a cluttered, ill-kept three bedroom apartment.  There is no visible sign of it having been occupied by anyone other than Jeffrey.

While eccentric, Jeffrey was also a very charming and even charismatic man.  He formed a number of close relationships with women, some of whom he met in on-line dating sites.  He maintained his on-line dating membership right up until the time of his death.  Not all of these were sexual relationships, but he described himself to Ms. Wolfe as promiscuous.  He was generous with his female friends and there were several of them.  On January 22, 2016, the deceased wrote a handwritten note for a file he kept in his apartment called “Branislava” naming some of them:  Alla, Olga, Charlie, Falicia, Chauntelle.

In looking even more closely at the nature of the relationship between the parties, the court took the following approach:

The real world of human relations more closely resembles a spectrum than a well-ordered world of binary certainties.  A myriad of close relationships exhibiting some elements of dependancy exist in the world of real people leading real lives.  The inquiry I must undertake cannot be reduced to a simple checklist.  While it is clear that the substance of the relationship needs to be examined, that examination must proceed in the light of the minimum requirements of the legislation. 

On the evidence, the court rejected Branislava’s suggestion that Jeffrey gave her up to $10,000 per month in financial support while they dated, or that he paid her rent.  He was certainly generous to her, using income he had inherited from his own father’s $40 million Estate. But he never took financial responsibility for her, nor encouraged her not to work and to be dependent on him.

Also – and especially in light of their separate living arrangements — Branislava also did not meet the definition of “spouse” so that she qualified as a dependant. The mere fact that they had a close and loving relationship, or that they were sexually intimate, was not sufficient to meet that threshold.

In the end, the court ruled that Branislava was not entitled to support from Jeffrey’s Estate.  (She later appealed unsuccessfully to the Ontario Court of Appeal, and her motion to extend the time to file leave to appeal with the Supreme Court of Canada was dismissed.)

For the full text of the decisions, see:

Stajduhar v. Wolfe, 2017 

Kerzner Estate, 2018 

Branislava Stajduhar, et al. v. Arlene Wolfe, executrix of the Estate of Jeffrey Kerzner, 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

 

 

Court Says: Being Abusive to Your Child’s Other Parent = Bad Parenting

mom holding baby looking out window

Court Says: Being Abusive to Your Child’s Other Parent = Bad Parenting

In a recent Ontario decision involving a child custody and access determination, the court made a rather sweeping – though likely not incorrect – conclusion:

“[A]busing the other parent of your child be it verbally or in writing, is bad parenting.”

The facts of the case were chronicled in a prior Blog. They featured a father who asked the court to rule on the appropriate level of access he should be given to his child, who was now 5 years old.

The complicating factor was the nature of the father’s relationship with the child’s mother: He had been persistently abusive to her both verbally and emotionally, and took every opportunity to act vindictively toward her. Especially in his email and text conversations, he called her names like “bitch and “idiot” and engaged in blaming and manipulative behaviour. The court summed up this collective correspondence as being “extremely offences and abusive” and “vile and abusive”.

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Now that he was before the court to ask for access rights, the father claimed to have reformed himself. But after looking at a detailed chronicling of the incidents between them, the court found otherwise. It stated:

The court finds that there is no evidence to demonstrate that the father’s attitude towards the mother has changed in any significant way. While he says he has changed and that there is little recent evidence of inappropriate behaviour by him towards the mother, it was readily apparent during his evidence that he sees himself as the victim and the mother as the villain and that this belief system informs his judgment and decision making process.

Importantly, the court reflected on how the father’s continued abusiveness impacted on his ability to parent his child, especially in a shared parenting model which would require cooperation and communication between him and the mother. The court explained:

The court finds the father’s conduct towards the mother to be highly concerning. As difficult as the situation is between the parties and acknowledging that conflict between separated parents can create a heated and emotional environment, [the law] mandates the court not to treat this level of vitriol as typical or acceptable. What must be acknowledged is that this is very poor parenting. The way in which the parents treat one another goes directly to the issue of parenting. The court must acknowledge that abusing the other parent of your child be it verbally or in writing, is bad parenting. If this is how the father communicates when he feels the need to assert himself with the mother, how will these parents function in a shared parenting arrangement that will most certainly require frequent contact?

Perhaps the court’s conclusions simply accord with common sense. But while many child custody / access cases end up tainted by acrimony, parents seem to overlook the simple correlation between mistreating the other parent, and demonstrating to the court that their own parenting skill and judgment leaves something to be desired.

The decision in V.P. v. D.M. helps to make that connection clear. Hopefully more separated and divorcing parents will hear that message well in advance of their child custody hearings.

For the full text of the decision, see:

V.P. v. D.M., 2019 ONCJ 289 (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

Tick, Tock: What’s the Legal Deadline for Trying to Set Aside a Separation Agreement?

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Tick, Tock: What’s the Legal Deadline for Trying to Set Aside a Separation Agreement?

In a recent case called F.K. v. E.A. the court was asked to rule on a novel question: If a spouse wants a court order setting aside his or her signed separation agreement as invalid, what is the deadline for applying? And when does it begin to run?

The couple began their relationship in 2000, and the husband proposed in 2004. The wedding itself was hastily-planned over a period of less then 30 days, and took place in June of 2005. Against that background, the couple entered into what they called a “Prenuptial Agreement” based on a template that the wife found on the internet. It was witnessed by a mutual friend. In it, the couple agreed that each of them:

1) Waived the right to claim spousal support from each other, and

2) Would remain separate as to property, and not be subject to an equalization of Net Family Property.

The Agreement also purported to confirm in writing two events that did NOT actually happen, namely:

1) That the parties had provided fair and reasonable financial disclosure to each other before signing, and

2) That both of them retained their own lawyer and received independent legal advice.

The wife later explained that they did not bother “going through the motions” to fulfil these two duties because the Agreement was wholly uncontentious: Both before and after the wedding they had conducted themselves with financial independence; the Agreement merely confirmed and documented that agreed status.

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Unfortunately, the spouses split in October of 2012, after 7 years of marriage. The wife gave the husband $1,600 to help with first and last months’ rent, but made it clear he could expect nothing further from her.

He then went to a lawyer to discuss his legal options, and explained the lack of legal advice and financial disclosure in particular. Although his lawyer advised that the Agreement was “not worth the paper it was written on”, the husband took no concrete steps at that time.

A full five years later, in 2017, he applied to the court to have the Agreement set aside. In addition to its other shortcomings impacting validity, he claimed it was signed after the wife issued an ultimatum; this left him feeling rushed and in a state of duress, he said.

The wife countered by stating the husband was simply out of time to have the Agreement set aside. She said this type of claim was subject to a two-year limitation period set by provincial legislation, and that the husband had failed to take any steps with the court within that deadline. She asked the court to grant her summary judgment.

The court addressed the various legal arguments. First, it concluded that husband’s bid to set the Agreement aside was indeed tantamount to a legal “claim”, and was theoretically subject to the general two-year deadline. The more pressing question, however, was precisely when the clock on that two-year period began to run.

In law, this “discoverability” threshold was the point at which the husband knew or ought to have known that:

1) He had suffered some loss, and

2) A legal proceeding was the appropriate method for trying to redress it.

In this case, that point was back in 2012, when the husband first attended his lawyer’s office post-separation.

At that point, he knew there was some potential legal issue with the validity of the Agreement and the circumstances in which it was signed, based on the advice from his lawyer. He also knew he could expect “nothing further” from the wife after separation, beyond the $1,600 in rent money, and that all other financial issues were off-the-table. So he knew in 2012 that he was facing a potential loss, and he knew that a legal claim would be the only way to potentially recover it.

Since it was now 7 years past that discoverability point, the husband was too late to bring his claim to set the Agreement aside.

As a last-ditch argument, the husband had also asked for special forbearance in the circumstances: The law should not be applied to him, since his case was the first time in all the Ontario jurisprudence where a claim to set aside a marriage contract was being foreclosed by the two-year deadline.

But the court rejected this argument too. The husband’s error or ignorance about the limitation period did not stop it from running, it said. All citizens are presumed to know the “law of the land”, and it applied equally to his situation even if the husband’s thwarted claim was the “test case”.

Since the husband was out of time to bring his claim, there was no genuine issue for trial. The court granted the wife’s application for summary judgment.

For the full text of the decision, see:

F.K. v. E.A., 2019 ONSC 3707 (CanLII),

How To: Make a Valid Separation Agreement

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

Tune in on Monday June 10th, 2019 for Episode 1 of Family Law Now

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Tune in on Monday June 10th, 2019 for Episode 1 of Family Law Now

The new podcast series is the culmination of a long-standing passion project of democratizing access to information concerning family law matters.

Family Law Now is hosted by Russell Alexander and a featured guest with whom he presents a meaningful review and analysis of family law issues. With over 20 years’ experience helping families resolve their legal issues, Russell has developed a remarkable understanding of family law issues and is eager to share his jewels of wisdom with the listening public.

Family Law Now is a new audio series that delivers useful commentary and insights into timeless and trending family law issues. The podcast is free of charge to registered users and provides a convenient, low-commitment resource by which busy individuals who don’t have time to read long-winded articles can get answers to their legal questions, on-the-go.​ Tune in to Family Law Now!

With special guest Michelle Mulchan,

Michelle Mulchan
Collaborative Family Lawyer

Collaborative Family Lawyer, our first episode will focus on the 10 Things You Should Know About Child Support.

To learn more about our podcast please visit us here.

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

Irish Referendum Results: Separation Period Shortened to Fast-Track Divorce

Irish Referendum Results: Separation Period Shortened to Fast-Track Divorce

According to a recent article in the Irish Times, the people of Ireland have voted overwhelmingly in favour of a proposal to shorten the period of separation between married spouses before being eligible to apply for divorce.

Previously, a married couple could apply to get a divorce only if they had been living apart for four out of the past five years.   The proposal calls for reforms to legislation, allowing the separation period to be reduced to two years.  It also enables foreign divorces to be recognized under Irish constitutional law.

In addition to fast-tracking the divorce process, the abbreviated separation period also has the side-benefit of reducing the harm that may affect children because of protracted divorce proceedings between the parents.  It may also reduce the individual living costs that separated spouses have to bear while waiting out the former long separation period, before being able to fully move on with their lives apart.

The overwhelming support for these reforms was evident in the outcome of a constitutional referendum on divorce, which passed with 82.07 per cent support.   The “yes” vote garnered 1,384,192 ballots in favour (and 302,319 against), a result of a turnout of more than 50% of the voting population across 31 constituencies.

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

Married Thrice; Divorced Only Once – Court Untangles Man’s Complex Love-Life

Married Thrice; Divorce Only Once – Court Untangles Man’s Complex Love-Life

In a recent case called Lowe v. A.A. the court was asked to legally untangle the love-life of a man named Errol Lowe who had been married three times … but divorced only once.  This left the much-married Errol was in an interesting legal predicament, because it invited the question of whether his second and third marriages were valid, whether they were now eligible to be the subject of a divorce order, or whether they were void from the outset.

The court set the stage against which these issues were to be determined:

  1. OVERVIEW

Errol D. Lowe has entered into three marriages in the province of Ontario. Two of these marriages were entered into while he had prior existing marriages. He has only been divorced once. He has appealed to the court for help in “undoing” his second and third marriages.

Mr. Lowe’s circumstances are unusual. His complex marital history requires the court to examine the evidence and first determine the appropriate legal nature of each of his three relationships in order to identify the appropriate mechanisms for ending them.

In order to legally end Mr. Lowe’s second and third marriages, the court must decide whether these marriages were valid in the first place. This determination will affect whether the marriages are to be ended by way of annulment or divorce. If either of Mr. Lowe’s marriages were invalid from the start because he lacked the capacity to marry, that marriage is void from the beginning and a decree of annulment may be issued. If either marriage was valid, then the proper mechanism is divorce.

With that said, the court noted that in a practical sense some of these issues were actually moot and no longer affected Errol and his many wives directly; it seems that Errol was unable to make a go of his subsequent marriages anyway.  The court said:

I should note that whether Mr. Lowe’s second and third marriages are to end in divorce or annulment has little practical implication, either for him or for his second and third wives. I say this because he has been separated from his second wife for many years and has had no contact with her since before his third marriage. He married his third wife in 2008 and has been separated from her since the spring of 2016.

Moreover, in an interesting aside it seems that none of Errol’s wives were particularly proud of having married him at all.  In the court’s words:

I should note that Mr. Lowe testified at the initial return of this matter on February 21, 2018. Mr. Lowe’s third wife, the Respondent A.A., also testified with respect to application FS-17-291. She asked to be referred to by her initials in my written reasons. I have referred to Ms. A.A. and to Mr. Lowe’s first and second wives by their initials out of respect for their privacy.

The court did add that while none of Errol’s former wives were currently seek support from him, a support claim could still be a possibility in the future, regardless of whether the marriages ended in divorce or annulment.

There’s the old saying: “always a bridesmaid, never a bride”.  In Errol’s case, perhaps it was “never a groomsman, always a groom.”  His intriguing case gives rise to multiple legal issues, and we will cover more of them in some upcoming Blog posts.

For the full text of the decision, see:

Lowe v. A.A., 2018 

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

Is Husband Only in Contempt of RRSP Non-Depletion Order if He Buys a Ferrari?

Is Husband Only in Contempt of RRSP Non-Depletion Order if He Buys a Ferrari?

The wife and husband separated after having four children during eight years of marriage together.  They were divorced in 2012, but there had been extensive litigation in the years since, mainly revolving around the husband’s annual income (initially estimated by the court at $500,000) and his efforts to have his support obligations reduced.

The couple reached agreement on a much lower income amount, and settled the husband’s spousal and child support obligations by way of two orders made on consent.  Both orders included an express non-depletion component:  it prohibited the husband from depleting his property and assets, as a means of thwarting his ability to pay the wife.

Meanwhile, after the husband was laid off from work, he started his own company, at which he claimed to earn only $13,000 a year.  He then let that company go dormant, and became an employee of his parents’ company where he earned $72,000 per year.

The wife then learned that the husband had recently withdrawn about $105,000 from his RRSP money.  He claimed to use the money to pay his legal fees, credit card bills, and living expenses, including “rent” to his parents totaling $12,000.  (Although the court was provided with evidence of a cheque in that amount being cashed, it declined to conclude that it was for the payment of rent).

The wife accused the husband of being in contempt of the two prior orders.  She noted that his timing was suspect:  He knew she was about to ask the court to award her $373,000 as a lump, to cover child and spousal support arrears as well as going-forward support.

The husband admitted that he knew he was not supposed to deplete his RRSP funds.   However, claimed to have a rather unique understanding of what a non-depletion order was, as the court explained:

The husband stated that he understood non-depletion to mean that he was not to pay anything that was not part of his normal day-to-day living expenses. He was not to “abscond with the money,” “be irresponsible,” “go to Cuba type of thing” or “you know, buy a Ferrari.” He stated that he believed he could pay legal bills, pay rent, and pay for living expenses. He said that [his lawyer] Mr. Kelly told him that “you gotta do what you gotta do.”

To this, the court started by saying that the legal advice the husband had received about the RRSP withdrawals was “less clear than it could have been about what constitutes depletion.”  It also found that – despite his protests to the contrary – the husband could meet his reasonable living expenses soley from the salary his parents were paying him.

As for the contempt elements, the law was clear there were three elements that had to be proven:

1) That the orders clearly and unequivocally stated what should/should not be done;

2) That the husband had actual knowledge of the orders; and

3) That the husband intentionally did the act(s) that breached the orders.

For these purposes, to “deplete” or “dissipate” means to reduce one’s assets in a manner that impairs or defeats a claim for support.  It did not require the actions be wasteful to foolish.

Here, all the elements were present.  The husband knew about both orders, which were clearly-worded and unequivocal.  He knew exactly what he was ordered not to deplete.  And yet he admitted to withdrawing RRSP funds on three occasions.

The court added:

  If [the husband] wished to withdraw funds to pay legal fees or other expenses, the appropriate course was for him to seek permission from the Court to do so, mot to repeatedly breach the orders.

The court did not hesitate to find the husband in contempt, but gave him the chance to purge that contempt finding by repaying almost $105,000 to the RRSP within a short deadline.  If he did not do so, then his pleadings in the matrimonial litigation with the wife would be struck out entirely.

For the full text of the decision, see:

Weber v. Merritt, 2018

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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