Category: Family Law

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Family Law

Shared Parenting During COVID-19

Across the country, people are facing uncertainty relating to their jobs, the economy and even their daily activities. Parents are also dealing with kids being home from school or daycare, and balancing child care with working from home in many cases. However, the current “stay at home” protocol poses additional unique challenges to couples who are co-parenting children, due to the requirement to avoid close contact with anyone outside of one’s home. How are co-parenting arrangements supposed to adapt in cases where a child started the self-isolation process with one parent, yet is required to see the other?

A recent decision out of Ontario has addressed the issue, in refusing to allow an emergency motion to be heard in full. Although courts across the country are primarily shuttered, they are operating to address emergency hearings in criminal and family law matters. In this case, a mother filed an urgent motion seeking to temporarily suspend the father’s access to his child during this period of self-isolation. The judge refused to classify the matter as urgent and said that the existing co-parenting order should remain in place with special care taken to avoid infection of the parties involved.

Family Background and Existing Access Order

The parents share joint custody of a nine-year-old child, with the mother having primary custody. Under the current order, the father has access to his son on alternate weekends. The mother brought an urgent motion seeking to suspend the father’s access for the interim, out of concern he would not maintain social distancing guidelines for the child, potentially exposing is son to infection. The mother and her family were isolated at the mother’s home, and she did not want her son to leave the home for any reason until it was safe to do so.

Safety Must Be Balanced With a Child’s Best Interests

The judge in the case noted that there is a need to balance the best interests of the child, which would have formed the basis for the original shared parenting order, with the need to follow federal and provincial directives aimed at slowing the spread of COVID-19.

The judge found that, while much of our lives are currently being put on hold, we cannot put the important relationships in a child’s life on hold for an indefinite period. In the case at hand, there was no evidence that the child’s father would not follow social distancing guidelines, and so there was no need to set aside the existing access order.

However, the judge did set out situations in which it may be necessary to bypass an access order due to the pandemic. These circumstances include:

  • Cases where a parent is subject to quarantine or self-isolation due to illness, travel or exposure to illness;
  • Cases where a parent’s personal risk factors may put the child at risk; for example, if a parent’s place of employment puts them at a particularly high risk of exposure; and
  • Cases where a parent refuses to adhere to social distancing guidelines, creating an unnecessary risk for their child.

Here, the judge examined the materials provided by the mother and found no indication that the father would present any particular risk to the child. However, the court noted that it would be important for parents sharing custody to continue to observe all distancing requirements while picking up and dropping off a child.

Emergency Motion Protocol

The decision also set out a protocol for people seeking to raise an urgent motion during the pandemic while courts are closed to most matters. Parties should be cautious to follow the protocol set out below:

a.     The parent initiating an urgent motion on this topic will be required to provide specific evidence or examples of behavior or plans by the other parent which are inconsistent with COVID-19 protocols.  

b.   The parent responding to such an urgent motion will be required to provide specific and absolute reassurance that COVID-19 safety measures will be meticulously adhered to – including social distancing; use of disinfectants; compliance with public safety directives; etc.

c.     Both parents will be required to provide very specific and realistic time-sharing proposals which fully address all COVID-19 considerations, in a child-focused manner. 

d.   Judges will likely take judicial notice of the fact that social distancing is now becoming both commonplace and accepted, given the number of public facilities which have now been closed.  This is a very good time for both custodial and access parents to spend time with their child at home.

At Baker & Company, our family law lawyers are committed to minimizing as much stress as possible for clients involved in a high-conflict divorce or separation or other family law dispute. We will help you understand what you can expect, help you communicate with your ex-spouse, put agreements into place to prevent future disputes from arising, and, above all, represent your best interests. Call us at 416-777-0100 or contact us online for a consultation.

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Defamation And Social Media Family Law

“False Light” Privacy Tort Invoked in Canada for the First Time

A recent Ontario decision has invoked a little-known privacy law tort for the first time to award damages to a mother involved in a high-conflict divorce with her former spouse. Ultimately, the mother was awarded a total of $300,000, a serious condemnation of the father’s activities by the court.

High-Conflict Divorce & Social Media Posts

Just a few weeks ago, we blogged about considerations parties need to keep in mind when posting to social media through a family law dispute. This case is an excellent example of how seriously the courts take negative online behaviour, particularly when it affects minor children.

In the case at hand, the parties were married and had two children together. The father requested a divorce and a month later, the mother moved with the children to the UK out of fear for her safety. Soon, the father began a public campaign to smear the mother, which consisted of him posting videos to YouTube in which he provided personal commentary on the ongoing disputes with his former spouse. As part of these postings, he had included photos and videos depicting private family moments with his children and engaged in online bullying of them as well. One child has a neurological disorder, and in some videos the father could be seen mocking her, saying she seemed ‘drugged’ and ‘not normal’.

He had also publicly accused his former wife of a host of crimes, including kidnapping, drugging the children, theft, fraud and child abuse. He also sent emails and posted flyers directing people to his videos to increase the audience.

The mother brought an action seeking various orders including child support, spousal support, invasion of privacy, intentional infliction of mental suffering, and more.

Citing a four-tort invasion of privacy catalogue introduced by American scholar William L. Prosser and later adopted by the American Law Society in 2010, the judge considered the following four civil invasion of privacy claims:

1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs.

2. Public disclosure of embarrassing private facts about the plaintiff.

3. Publicity which places the plaintiff in a false light in the public eye.

4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

The ONCA first recognized the first in the list, intrusion upon seclusion, in a 2012 decision. This case also recognized that the fourth tort on the list, the appropriation of a plaintiff’s name or likeness, was already an actionable claim in Ontario.

The second tort on the list, the public disclosure of private facts, was also adopted in Ontario civil law via two decisions in 2016 and 2018, respectively.

The court in the case at hand then reviewed the elements of the American tort of ‘Publicity placing a person in a false light”, which are stated as follows in the Restatement (Second) of Torts (2010):

One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if

(a) the false light in which the other was placed would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

The court adopted this definition of the tort and further clarified that while claims falling with the tort would be likely to be defamatory, defamation is not a required element. It would be sufficient that the public misrepresentation would be highly offensive to a reasonable person.

Tort Could Have Broad Implications

This finding could have much broader implications than just family law disputes. This tort could affect businesses and individuals going forward for characterizations posted publicly that could be said to misrepresent an individual. Further, the court in this case noted that while there is a $20,000 cap on awards for intrusion upon seclusion, the same could not be said for this new action, leaving the landscape open to large awards for misrepresenting a person on a public scale.

At Baker & Company, our Toronto family law lawyers are highly experienced in high-conflict divorce matters and support litigation. We are committed to making the process of legally addressing a family matter as clear and approachable as possible. Call us at 416-777-0100 or contact us online for a consultation.

Categories
Family Law High Conflict Divorces

Social Media & Family Disputes

Family disputes, particularly high-conflict family matters, can drag on for a long time and cause pain to everyone involved. When one or both parties are difficult on purpose, this can cause even more delays, in addition to prejudicing that party in the eyes of the court. A relatively new consideration for divorcing couples to think about is their conduct on social media, and how that may impact what happens in the courtroom.

Negativity Online Can Only Hurt a Case

When parents are involved in a high-conflict dispute, it is difficult to keep emotions in check. However, parties are advised to keep their emotions offline if they don’t want to potentially damage their position in court. When one spouse takes to Facebook or Twitter to publically attack their former spouse, this creates a paper trail that can be easily documented and submitted in court. The same also applies to other forms of written communication, such as texts and emails.

If there are children involved, this can have a major impact on parenting plans as well. If one parent is seen to be trying to alienate their children from the other parent, in particular, this may limit the time they are allowed to spend with the child. Not to mention the harm this type of negativity can cause within the family. For the best interests of the child(ren) involved, it is always advisable to keep negativity at bay whenever possible.

Social Media Posts Can Serve as Conflicting Evidence

In some cases, the arguments advanced in court may be discredited by social media posts. Much like a person claiming to be too injured to work who then posts about running a marathon, a person attempting to hide income or other assets may be telling one store in court and a different story online.

As demonstrated in an Ontario case, a father claimed he was unable to pay child support because he was unemployed and receiving social assistance. However, his social media history painted a different picture. The father had initially been ordered to pay child support in the amount of $193 per month based on an imputed income in the amount of $22,800 per year. The father claimed he had no assets, however, and could not afford this modest amount. The mother claimed that he had worked while they were together, consistently earning twice the income that had been imputed to him. The father was trained in construction and forklift operations, and the mother claimed that he often worked for cash in order to manipulate his financial status and avoid creditors.

She further claimed that he would sometimes earn income using his father’s social insurance number in order to maintain his social assistance income and unemployment benefits. The father disputed this and claimed he had been unable to work for two years and was entirely supported by his parents and his girlfriend.

To corroborate her testimony, the mother provided evidence from the father’s Facebook account, which showed him on three separate vacations in a years’ time, as well as attending various sporting events, concerts and nights out with friends at nightclubs.

A Question of Credibility

When it came time for the court to make a decision, a key factor was the credibility of the two parties. While the court found that the mother was highly credible, the same could not be said for the father. If he was in fact unemployed, it appeared to be a deliberate circumstance, as he was capable of working. Further, his social media posts indicated that he had a much more comfortable lifestyle than the one he portrayed in court. He treated the obligation to make full financial disclosure in a cavalier manner and appeared to be dishonest in several respects.

As a result of the courts findings, the support award was doubled, as was the income imputed to the father. This case clearly demonstrates that social media posts do not exist in a vacuum. Posts that can damage a party’s credibility or posts that demonstrate aggression or negativity toward a former spouse can hurt a party when it comes to both support payments and parenting plans. For any party going through a divorce, it is prudent to exercise caution when posting online, or sending other electronic communications.

At Baker & Company, our Toronto family law lawyers are highly experienced in high-conflict divorce matters and support litigation. We are committed to making the process of legally addressing a family matter as clear and approachable as possible. Call us at 416-777-0100 or contact us online for a consultation.

Categories
Family Law High Conflict Divorces

Upcoming Changes to the Divorce Act in 2020

In July 2019, Bill C-78, otherwise knows as An Act to Amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act, received royal assent, allowing for amendments to Canada’s Divorce Act that will have a significant impact on a variety of family law issues starting in July of this year.

In particular, the changes will impact family law in the following areas:

  • Parent & child mobility
  • A stronger focus on the bests interests of the child
  • Using more child-focused language in family matters
  • Incorporating the potential for family violence into related family matters

Below, we will take a closer look at each of the factors listed above in order to provide an overview of the coming changes and how they will affect family decisions going forward.

Mobility

Under the current laws, parents seeking to relocate must obtain approval from the court if the other parent objects to the move. Under the changes, there will be a stronger onus on the relocating parent to provide sufficient notice to the other parent. The relocating parent will be required to provide written notice to the other parent at least 60 days in advance of the proposed move, even if the move is local. The notice must include the following information:

  • the proposed date of the move
  • the parent’s new contact information
  • a proposal for a new parenting arrangement, if necessary, including any changes to parenting time and decision-making in light of the relocation

Once the notice has been provided, the other parent may object, either by providing a standard objection in writing, in which case the other parent will be forced to either agree not to move, or to bring a mobility application in court. The objecting parent may also choose to bring an application, allowing the court to decide on the issue of mobility.

New Considerations in the Best Interests of the Child

In order to ensure that each child and family is treated respectfully, courts will bring new factors into consideration when examining the best interests of a child. Previously the focus has been on factors such as a child’s physical and emotional wellbeing, which will continue to be a focus. However, courts will also take the following into consideration when deciding on issues such as custody and access:

  • the nature and strength of the child’s relationships with parents, grandparents, and other important people in their life,
  • the child’s linguistic, cultural and spiritual heritage and upbringing, including Indigenous heritage, and
  • the child’s views and preferences.

This is an attempt to eliminate a “one size fits all” approach when it comes to parenting, guardianship and mobility matters, but also to better address the needs of Indigenous children in family decisions.

Family Violence Considerations

Before these amendments, the Divorce Act did not directly address the issue of family violence in any direct way, even though this issue can greatly impact the safety and wellbeing of both adults and children.

Going forward, courts will have to consider any instances of family violence when making orders around parenting, custody or access. Further, courts will be required to consider any criminal proceedings that may conflict with certain family orders. For example, access should not be granted to a parent who is subject to a protection order. For the purposes of these amendments, family violence is defined as any of the following conduct:

  • violent
  • threatening
  • a pattern of coercive and controlling behaviour
  • causes a family member to fear for their safety
  • directly or indirectly exposes a child to such conduct

Child-Focused Language

In an effort to move away from the concept of ‘winners’ and ‘losers’ when it comes to family matters involving children, courts will be moving away from wording such as “custody” and “access”. Instead, there will be a focus on “parenting arrangments” and “decision-making abilities”. This is being done in the hope of shifting the focus to parenting the child, and the associated responsibilities.

It remains to be seen what impact these changes will have when they come into effect later this year, but a greater focus on the safety and well-being of children is a step in the right direction. Anyone who would like further information on these changes and how they may impact an upcoming family matter is encouraged to contact an experienced family lawyer who will review the changes in light of your particular circumstances.

At Baker & Company, our lawyers are committed to minimizing as much stress as possible for clients involved in a high-conflict divorce. We will help you understand what you can expect, help you communicate with your ex-spouse, put agreements into place to prevent future disputes from arising, and, above all, represent your best interests and the best interests of your children, if applicable. Call us at 416-777-0100 or contact us online for a consultation.

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Family Law Second Marriage Issues Support Claims

The Rights & Obligations of Step-Parents in Ontario

When it comes to divorce and child access or support issues, one’s mind most commonly turns to the legal parents of the child. However, what about situations where a parent re-marries and their new spouse forms a close bond with the child(ren) of a previous relationship? In many step-parent/step-child relationships, serious bonds can form, and resemble that of parent and child. If that second marriage were to end in the future, does the step-parent have any claims on access to the child? For that matter, do they have any obligations to the child in terms of support? Below, we look at the current state of the law in Ontario with respect to the rights and obligations of step-parents after a divorce or separation.

Step-Parents and Child Support

Under Ontario law, it is possible that a step-parent will be found to be responsible for child support if they were married to or in a common-law relationship with one fo the child’s parents. The more the relationship resembles a parent/child relationship, the more likely this is to occur. In determining this, courts will examine a number of factors, including:

  • How does the child feel about their relationship with the step-parent?
  • Does the child take part in the extended family in the same way as a biological child?
  • Does the step-parent provide financially for the child to the best of their ability?
  • Does the step-parent discipline the child?
  • Does the step-parent talk about themselves as a responsible parent to the child, the family, and the larger community?
  • What relationship does the child have with their absent biological parent?

Even if one biological or adoptive parent to the child is already paying support from the previous relationship, it is still possible for the step=parent to be held responsible for additional support. However, unlike a parent, a step-parent’s obligation may not be determined by the federal Child Support Guidelines, which calculate support obligations based on income and other factors. A step-parent’s support may be supplementary, and therefore not quantified in the same way a parent’s support would be.

Step-Parents and Access Rights

Some people may not be aware that any individual with an interest in preserving access to a child can apply for it; it is not limited to parents. This includes grandparents, aunts, uncles and step-parents. As with any access application, the primary consideration will be the best interests of the child.

As demonstrated in a 2018 Ontario decision, even in a situation where both biological parents of a child have chosen to prohibit access by a step-parent, the court may intervene on the child’s behalf. In the case at hand, the child’s parents had divorced, and the father remarried. He was married to his second wife, the child’s step-mother, for seven years. During the course of that time, the step-mother and child bonded significantly. After the second marriage ended in divorce, both biological parents united in their desire to keep the step-mother from seeing their son.

After only being permitted to see her step-son four times in two years, the step-mother brought an application for access. The court considered the best interests of the child in light of the following:

  1. The child loved the stepmother and the stepmother loved the child.
  2. The child viewed the stepmother as a parent and the stepmother treated the child as her own child.
  3. The child had an important relationship with the stepmother that needed to be preserved and fostered.
  4. Access with the stepmother would ensure that the child could have important relationships with his sister, friends and extended family members.
  5. The court was satisfied that the stepmother would act responsibly in parenting the child.

The court granted the step-mother access of one weekend per month and stressed the importance that the child be allowed to enjoy relationships that were important to him.

As this case shows, even when both parents are opposed to contact between their child and a third party, the courts will intervene when the contact is in the child’s best interests. As stated above, the bond between step-parent and child can be powerful, and just like it would be harmful to keep a child from a loving parent, the same can be said about a loving step-parent.

At Baker & Company, our family law lawyers are committed to minimizing as much stress as possible for clients involved in a high-conflict divorce or separation or other family law dispute. We will help you understand what you can expect, help you communicate with your ex-spouse, put agreements into place to prevent future disputes from arising, and, above all, represent your best interests. Call us at 416-777-0100 or contact us online for a consultation.

Categories
Family Law High Conflict Divorces Support Claims

Daily Sanction Imposed on Husband for Failure to Disclose

In divorce matters, particularly in highly contentious situations, spouses may attempt to hide some of their assets in order to impact any support awards ordered by the court. While full financial disclosure is a cornerstone of determining a fair award, hidden assets are not uncommon. In one recent decision, the husband in a divorce proceeding had repeatedly failed to comply with court orders for disclosure, and so a unique tact was taken in order to compel his compliance.

Multiple Orders Ignored

In a proceeding that had dragged out for more than four years, the husband had failed to comply with four separate orders of the court to produce full financial disclosure to the wife. In response to the most recent order, the husband had proved more than 150 pages of documents to the wife, however it had turned out to be mostly comprised of duplicates of items that had already been submitted. There were several items the husband had been ordered to submit that remained unaccounted for.

In response, the wife brought an application to dismiss the husband’s pleadings in the matter due to his lack of disclosure. In the alternative, she sought a further order to produce, this time with a penalty attached for each day of non-compliance.

“Exceptional and Egregious” Circumstances

The court was unwilling to dismiss the husband’s pleadings, given that he had demonstrated at least a degree of willingness to cooperate with orders. However, the court did note that the husband’s actions had been “exceptional and egregious”, noting:

The wife states that another court order alone will not compel the husband to provide the documents. Five other orders have already been made, he has paid the associated costs and yet he has not complied with them. All of this shows that he believes he can disregard court orders.

The court found that the husband was not in violation of the orders as a result of a lack of understanding or ability. The husband was a savvy financial investor and he had willfully kept certain information from his wife in direct contravention of the court’s orders. Given his demonstrated unwillingness to comply, the court felt that the wife’s suggested daily penalty may be the only way to compel his full disclosure. As a result, the court set a new deadline or his full and complete disclosure and ordered that the husband face a penalty of $500 per day of non-disclosure after that date. The court expressed clear frustration with the husband’s explanations for non-disclosure, stating:

Most of the outstanding items are easy to obtain.  The husband simply has to write to financial institutions to request the information.  If it cannot be provided, the institution can provide this response.  The husband has to provide to the wife with copies of the requests and the responses.  This is basic family law practice… The husband knows how to prepare a financial statement.  Considering the passage of time, he should have been able to provide values for his assets and liabilities well before now.

This is the sixth court order requiring disclosure.  Given the husband’s litigation history, I agree with the wife that the prospect of compliance with this order is very poor unless stiff consequences are imposed.  These circumstances are exceptional and egregious.

It remains to be seen what effect the sanctions will have, but it may prove an effective option for spouses who refuse to comply with financial disclosure obligations in family disputes. Presumably, when all is said and done, the husband will also be required to cover any and all costs associated with the unnecessary delay of this matter.

For spouses who suspect that their former partner may be hiding or otherwise obfuscating assets in order to affect support findings, it is important to take action. There are practices that can be employed in order to locate assets such as the use of financial experts or forensic accountants. If you suspect that your former partner may be hiding assets, speak with an experienced family law lawyer right away to explore your options.

At Baker & Company, our Toronto family law lawyers are highly experienced in high-conflict divorce matters and support litigation. We are committed to making the process of legally addressing a family matter as clear and approachable as possible. Call us at 416-777-0100 or contact us online for a consultation.

Categories
Domestic Agreements Family Law Support Claims

Spousal Support Release Clauses: When Will They be Set Aside?

When a couple agrees to forego spousal support as part of a separation agreement, a court is generally reluctant to order a change. However, if a clause is deemed unfair in light of the circumstances, a court may step in to restore equity between the parties. This was the case in a recent decision of the Ontario Court of Appeal when the court had to consider whether to uphold a support release clause or set it aside.

Background Facts

The husband and wife had been married for 18 years and separated in 2008. The couple had two children. The following year, the couple executed a separation agreement which stated that the husband would be responsible for paying a disproportionate amount of the couple’s shared debts. As a result, the couple agreed that the husband would not be responsible to pay child support to the mother, who remained in the matrimonial home with the two children. The parties also released all rights to spousal support via a spousal support release clause.

The debts assigned to the husband exceeded his assets by over $500,000. The husband had become unemployed prior to executing the separation agreement. At one point, he stopped paying the debts and the wife took responsibility for them herself. At this point, she had assumed full financial responsibility for the couple’s children, the mortgage on the matrimonial home and over half of the couple’s shared debts.

The husband did not become re-employed, and three years after executing the agreement, the husband sought to challenge it, seeking an equalization payment, which he later amended to a lump-sum spousal support award. The trial judge did not see a reason to set aside the agreement in full, however using the reasoning from Miglin v. Miglin, found that the husband was entitled to a lump-sum payment of $143,933, as the spousal support waiver did not fully align with protections under the Divorce Act.

The Court of Appeal

Both parties appealed the lower court decision. The husband argued that the trial judge had erred in not setting aside the agreement in full, while the wife appealed the support award, arguing that the spousal support release clause should be honoured.

The Court of Appeal rejected the husband’s appeal and also upheld the support award. The trial judge had found that the release clause did not align with the objectives of the Divorce Act because, at the time of execution, it had been highly unlikely the husband would be able to support himself while assuming responsibility for over $600,000 in debt.

The trial judge had also correctly identified a material change in circumstances between the time that the agreement had been executed and the support award. The husband had been unable to secure new employment after being terminated from his previous job and was unable to become self-sufficient as a result.

Based on the husband’s need for support and the wife’s means to pay support, the trial judge had correctly set aside the support release clause and awarded the lump sum payment to the husband.

This case makes clear that while couples are entitled to enter into any agreement they wish upon separating, the clauses within cannot contravene statute-based protections for either party. If an agreement, or a portion of it, is deemed inequitable under the legislation, a court will set the agreement or clause aside. Seeking skilled input and guidance from a family law lawyer when drafting such an agreement will help to ensure that the agreement will be in compliance with all relevant legislation.

At Baker & Company, our Toronto family law lawyers are highly experienced in high-conflict divorce matters and support litigation. We are committed to making the process of legally addressing a family matter as clear and approachable as possible. Call us at 416-777-0100 or contact us online for a consultation.

Categories
Family Law High Conflict Divorces

ONCA Determines Habitual Residence Using SCC Model

When parents display separate intentions with respect to which country their children should live in, courts must often make a determination following an application under the Convention on the Civil Aspects of International Child Abduction, otherwise known as the “Hague Convention” (Convention). If both countries in question are parties to the Convention, the parent seeking to have their child returned from the other party country will make an application and a court in the country where the children are located will make a determination based on the child’s place of habitual residence.

Previously, the model used in Ontario to determine habitual residence was based solely on the intentions of the parents. In a decision last year called Office of the Children’s Lawyer v. Balev, the SCC adopted a hybrid approach to determining habitual residence. In that decision, the SCC rejected the traditional Ontario model and considered both parental intention along with the circumstances and preferences of the children.

A recent decision of the Ontario Court of Appeal (ONCA) is the first Ontario appellate decision to apply the new hybrid model.

Facts of the Case

The parents were married in 2001 and had four children, between 9 and 15 years of age. The father was a German citizen and the mother was Canadian. The family had resided in Germany almost exclusively for the duration of the marriage. The children were dual citizens of Germany and Canada but held only German passports.

In August of 2017, the couple relocated to Ontario with their children. Once here, they purchased a home, cars and invested in significant home renovations. They had also brought most of their belongings with them from Germany. The father did not have a work visa, and the children were issued visas for one year, expiring in September 2018. The parents had not settled on how long they planned to remain in Ontario, but the children quickly adapted, and successfully completed the 2017-2018 school year. They also developed close ties with their mother’s extended family in Ontario.

The couple separated in March of 2018, and the father made plans to return to Germany. In July, the mother filed for divorce in Ontario and sought to retain custody of the children. In August, the father filed a Hague Application for the return of his children to Germany.

The Trial Decision

The judge ordered the involvement of the Office of the Children’s Lawyer (OCL) to represent the children and provide the court with their views and preferences. The OCL counsel conducted extensive interviews with all four children and reported that the oldest three expressed a desire to remain in Ontario, while the youngest remained neutral and did not claim a preference.

When determining habitual residence, the trial judge considered both parental intention and the wishes of the children, as established by the SCC. She found that the parents had not moved to Ontario with a set intention to return to Germany. They had enrolled the children in school for the 2018-2019, spent considerable money on renovating a home, and sought health care coverage for the children. With respect to the children, while they had been in Germany much longer, their time in Ontario was extensive and also more immediate. They had adapted well and had become very close to their mother’s family. She also acknowledged that the three oldest children had expressed a desire to remain in Ontario. On the balance of both factors, the judge determined that their habitual residence was in Ontario, and dismissed the father’s application.

The Court of Appeal

In Balev, the SCC explained the reasoning behind the hybrid approach as one which allowed a court to consider the “focal point of the child’s life – the family and social environment in which its life has developed – immediately prior to the removal or retention”. To do this, the court found that they must examine the following three factors:

  1. The child’s links to and circumstances in country A;
  2. The circumstances of the child’s move from country A to country B; and,
  3. The child’s links to and circumstances in country B.

If a court finds that a child was habitually resident in the country in which the applicant is based, they generally must order that the child be returned. However, the Convention sets out five exceptions which the SCC summarized as follows:

  • The parent seeking return was not exercising custody or consented to the removal or retention;
  • There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation;
  • The child of sufficient age and maturity objects to being returned;
  • The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state; and
  • The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment.

In examining the trial judge’s decision, the ONCA found no errors of reasoning or fact. The judge had correctly set out and applied the framework from Belev, and she had clearly considered the children’s preferences in light of their circumstances and links to Ontario. The father’s appeal was dismissed.

In Belev, the SCC has set a new model for considering habitual residence when deciding on Hague Applications; one in which the preferences and circumstances of the child are taken into account, along with the intentions of the parents. it is likely that the older the child is, the more weight their opinions will be given. In this case, the three oldest children were all over the age of 10. It will be interesting to see how this model is interpreted in a case where the child is considerably younger.

At Baker & Company, our lawyers are committed to minimizing as much stress as possible for clients involved in a high-conflict divorce. We will help you understand what you can expect, help you communicate with your ex-spouse, put agreements into place to prevent future disputes from arising, and, above all, represent your best interests. Call us at 416-777-0100 or contact us online for a consultation.

Categories
Family Law High Conflict Divorces Support Claims

Does a Wife’s Failure to Work After Divorce Constitute a Material Change?

In a recent decision, the Ontario Court of Appeal (ONCA) was asked to consider whether a wife’s failure to seek employment for over 20 years post-divorce constituted a material change sufficient to vary her former husband’s spousal support obligations from $4,000 per month to $1 per month.

Background of the Case

The couple had married in 1968 and separated in 1985. At the time of their divorce, the husband was a successful dentist, earning between $250,000 and $300,000 per year. The wife did not work outside of the home, other than some bookkeeping work for her husband’s dental practice during the marriage. Prior to the separation, the wife had successfully undergone treatment for breast cancer.

In 1991, the parties entered into a settlement agreement which formed part of their Divorce Judgment. As part of the settlement, the parties agreed that the husband would pay the wife spousal support in the amount of $4,000 per month for her lifetime.

The Superior Court of Justice Decision

In 2017, the husband brought a motion seeking a number of orders, including a variation of his spousal support obligations. At over 70 years of age, the husband had retired from his dental practice, and his income had changed significantly. In retirement, he earned approximately $65,000 per year, plus some additional income from an open investment. The husband’s motion argued that his support obligations should be terminated based on the material change to his income, as well as the fact that his former wife had failed to seek other employment in the many years since their divorce.

The husband argued that the wife had received a staggering amount of support over the years, especially given that they had been divorced longer than they had been married. In turn, the wife pointed to the 1991 settlement, asserting that her husband had agreed to pay the support for her lifetime, perhaps taking a gamble on her health prospects given her medical history.

The judge found that there had been two material changes to the circumstances, warranting a variation in the husband’s support obligations. The first of which being the change to the husband’s income post-retirement, and the second being the wife’s failure to seek other employment following the divorce:

The case law is clear that there is no “duty” on the wife to become self-sufficient.  However, there is an obligation on her as a spousal support recipient to make reasonable efforts to contribute to her own support.

The judge ordered that the wife’s support entitlement be reduced from $4,000 per month to $1 per month.

The Ontario Court of Appeal

The wife appealed the decision, arguing that the original settlement agreement was not susceptible to amendment, as it had clearly stated the payments were to continue for her lifetime. The ONCA disagreed that the agreement could not be changed, but it did find that the original judge had erred in two ways:

  1. In considering what constituted a “material change” in circumstances, and
  2. In failing to give deference to the original agreement between the parties.

With respect to the material change argument, the ONCA did agree that the husband’s retirement and subsequent income reduction reflected a material change in circumstance. However, they disagreed that the same could be said about the wife’s failure to seek or secure employment in the intervening years since the divorce:

We disagree that the appellant’s failure to seek employment since 1991 constitutes a material change in circumstances. The clear wording of the divorce judgment was that spousal support would continue to death. The appellant was entitled to rely upon that judgment. The respondent waited far too long to raise the appellant’s decision not to seek gainful employment until an age when she was effectively precluded from correcting the situation.

What Does This Mean for Support Awards Going Forward?

This decision highlights the importance of contemplating long-range circumstances when designing and drafting a separation agreement. In the case at hand, the couple had not contemplated future changes in income, retirement, or any expectations that the wife to mitigate her own expenses. When entering into a separation agreement or divorce settlement, it is important to take all potential considerations into account in order to allow for future adjustments as circumstances may dictate. An experienced and skilled family law lawyer will be sure to point out relevant concerns in order to draft a document that allows for flexibility and reasonable amendments as needed in order to protect their client’s interests.

At Baker & Company, our Toronto family law lawyers are highly experienced in high-conflict divorce matters and support litigation. We are committed to making the process of legally addressing a family matter as clear and approachable as possible. Call us at 416-777-0100 or contact us online for a consultation.

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Estate Planning, Will Planning, Succession Planning & Inheritance Planning Family Law Second Marriage Issues Wills & Estates

Estate Planning Concerns for Later in Life Relationships

Most people understand the importance of putting a carefully considered estate plan into place in order to ensure that one’s wishes are carried out with respect to the distribution of their assets after death. Married and common law couples generally plan their estates so that their assets pass to their spouse after death, who will then in turn pass all of the couple’s assets onto the couple’s children, if they have them.

When a young couple marries or moves in together before having children or acquiring significant assets, estate planning is generally not a complicated prospect. When two people share children and build their wealth together from the start, each party usually has similar long-term goals with respect to their estates and beneficiaries. However, when couples marry or enter into a common law relationship later in life due to divorce or the death of their first spouse, estate matters can become considerably more complicated. Each person is more likely to have grown children, established assets and other interests that were built before the relationship began. This can drastically affect the estate planning process in multiple ways.

How Much to Leave to a Surviving Second Spouse

When an estate plan involves a second spouse or common law partner as well as grown children from a previous relationship, determining the best method for the distribution of assets is key. The risks of leaving everything to the surviving spouse with the intention that they will then leave assets to one’s children after their death are numerous. The surviving spouse may not respect the intention of the original plan, gifting funds during their lifetime to their own children, charitable organizations or elsewhere, leaving little or nothing to gift to the children of the deceased when they pass. The surviving spouse may also enter into a new relationship, one that may involve other children and different or shifting financial priorities.

Aside from the potential for one’s assets to be depleted by the surviving spouse, there is also an emotional component to consider. Grown children may feel hurt, angered or forgotten should a  spouse who is not their parent inherit the entire estate in favour of them, even if the intention exists that the spouse will, in turn, leave assets to the children upon their death. This option leaves a lot of room for uncertainty, which is often what a testator is most trying to avoid when making an estate plan.

Another factor to consider is the taxability of certain assets. Assets such as Registered Retirement Savings Plans (RRSPs), Registered Retirement Income Funds (RRIFs), and Tax-Free Savings Accounts (TFSAs), may or may not be subject to taxes, depending on the beneficiary. Each of these assets can be transferred tax-free upon death to a surviving spouse, however, if they are left to children of the deceased, all will face tax penalties. This may not be a reason to leave these to a spouse rather than to one’s children, but if making decisions on which assets to leave to whom, this should be taken under advisement.

Leaving too little to a second spouse or partner is also a concern, particularly when there is a significant disparity in the parties’ assets and income. Leaving too little may result in insufficient assets, and the surviving spouse may find themselves needing to postpone retirement or facing the need to significantly curb spending in their later years.

A qualified estate planning lawyer will review all aspects of your financial situation and advise on how to determine a happy medium to the benefit of all family members over the long term.

The Matrimonial Home

When a couple shares a home, traditionally they will both go on title as joint tenants, which means that upon the death of one spouse, full ownership will transfer by right to the surviving spouse. When a couple each have children from previous relationships, they may choose instead to own the home as tenants in common. This means that they can allocate the percentage of ownership between them (often a 50/50 split) and when one spouse dies, their share in the property will be distributed according to their will. However, this can result in an awkward ownership split between a surviving spouse and the deceased’s children. Depending on family dynamics, this option could be just fine, but it may cause problems if any tension exists between the surviving spouse and the deceased’s children.

Another option that couples sometimes choose, particularly in common law relationships where the home is solely owned by one party, is for the spouse who owns the home to designate a life estate in the home for their surviving spouse or partner in their will. This option guarantees the right of the surviving spouse to remain in the home for their lifetime (a right not inherent in common law relationships), with the property ownership transferring to the owner’s children upon their death (or sooner, if the surviving spouse enters into a new relationship and/or chooses to leave of their own volition).

Obtaining Independent Legal Advice

When planning an estate involving later in life spouses or common law partners and children from previous relationships, it is advisable that both parties retain their own independent legal counsel. This will ensure that each party receives advice designed to protect their individual interests and allow the design of a plan that adequately addresses each party’s stated intentions.

At Baker & Company, our Toronto estate planning lawyers can help you establish an estate plan tailored to your needs, no matter your current family status. We have extensive experience and expertise in providing you with estate planning advice and implementing your desired plan. Call us at 416-777-0100 or contact us online for a consultation.