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Enforcement of Child Support in Ontario

Wednesday’s Video Clip: Enforcement of Child Support in Ontario

In this we discuss enforcement in Ontario is done through a provincial government office called the Family Responsibility Office (FRO). The court automatically files all support orders made after July 1, 1987 with the FRO. Separation agreements can also be filed there if they have been filed with the court and then mailed to the FRO.

The parent who is to pay support is told to make all support payments to the FRO. When the FRO receives a payment, it sends a cheque to the parent with custody, or deposits the money directly into that parent’s bank account. It only does this after it has received the money from the paying parent.

If a payment is missed, the FRO takes action to enforce the order or agreement.

Is There “Buyer’s Remorse” in Family Law?

buers remorse

Is There “Buyer’s Remorse” in Family Law?

We have all heard of – and most of us have experienced – that feeling known as “buyer’s remorse”. It’s that uneasy sense that a person feels, usually the day after making a long-considered and rationally-dubious purchase of some non-necessary item, that they paid too much. Or sometimes, that they should not have made the purchase at all. For example, it may involve the purchase of high-end racing bike – a splurge premised on an optimistic plan for future weekly rides in order to get fit. But after bringing the bike home, its steep price-tag may start to look exorbitant in the light of the next day or the next week, after the heady rush of excitement fades a little. (And often, these same high-priced items get relegated to the basement storage after a few months, where they sit as a painful reminder). Does this “buyer’s remorse” feeling happen in Family Law? Sure. It is common for the parties to a settlement negotiation to come away feeling vaguely dissatisfied, or outright taken advantage of, in the days or weeks following a settlement. . This is because an effective negotiation always involves some element of compromise and give-and-take: I’ve heard it said that a good settlement is not one where both sides are happy (which is likely impossible anyway), but one in which both sides are slightly unhappy. The act of settling a dispute feels very much like committing to buy something, at the price being offered. The problem is that the personal “value” of the settlement – in terms of what is being given and what is being gained, has a large subjective component to it. Where the “balance” falls is always a personal determination. So how to avoid “buyer’s remorse”? Make sure:

• You understand your rights. Hire a good lawyer to explain them to you.

• Your position is reasonable. Identify for yourself, privately with your lawyer in advance, those areas and topics that are non-negotiable and those in which you see some “give”.

• You are well-prepared. Improvident or uneasy settlements are most likely to occur when an issue or topic for negotiation takes you by surprise.

Bottom line: It is natural to have second thoughts. But these can be minimized by getting good information in advance of the settlement process, and by getting good legal advice that will help define your rights in the particular circumstances. By extension, this will influence whether you have reasonable expectations and a good feeling about the eventual outcome. 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 http://www.RussellAlexander.com.

Can You Be “Living Together” But Not Under the Same Roof?

wAR

Can You Be “Living Together” But Not Under the Same Roof?

As I have written before , the Family Law Act provides support rights not only to separated married spouses, but to common law spouses as well. This second group consists of those partners who, while not formally married, have “cohabited continuously for a period of not less than three years”.

But in today’s society there exists a vast array of different and sometimes unique relationships and living scenarios, and this can raise questions about what it means to “cohabit”. Blended families are now commonplace, but in some rarer circumstances a partner may have had to move across the country or abroad to work for extended periods of time, or the partners may agree – for personal and relationship-related reasons of their own – that they will continue to present themselves to the world as a couple, but will each have their own, separate residences.

So can partners who deliberately live apart from each other be “cohabiting”? Maybe.

The Family Law Act itself says that “cohabit” means “to live together in a conjugal relationship, whether within or outside marriage.” A few Ontario court cases have examined and untangled how far this definition might go, for the purposes of determining whether a common law couple are cohabiting.

Primary among them is Molodowich v. Penttinen, [1980] O.J. No. 1904, where the court said the following factors were relevant in deciding whether a couple meets the definition:

(1) SHELTER:

(a) Did the parties live under the same roof?

(b) What were the sleeping arrangements?

(c) Did anyone else occupy or share the available accommodation?

(2) SEXUAL AND PERSONAL BEHAVIOUR:

(a) Did the parties have sexual relations? If not, why not?

(b) Did they maintain an attitude of fidelity to each other?

(c) What were their feelings toward each other?

(d) Did they communicate on a personal level?

(e) Did they eat their meals together?

(f) What, if anything, did they do to assist each other with problems or during illness?

(g) Did they buy gifts for each other on special occasions?

(3) SERVICES: What was the conduct and habit of the parties in relation to:

(a) Preparation of meals,

(b) Washing and mending clothes,

(c) Shopping,

(d) Household maintenance,

(e) Any other domestic services?

(4) SOCIAL:

(a) Did they participate together or separately in neighbourhood and community activities?

(b) What was the relationship and conduct of each of them towards members of their respective families and how did such families behave towards the parties?

(5) SOCIETAL: What was the attitude and conduct of the community towards each of them and as a couple?

(6) SUPPORT (ECONOMIC):

(a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)?

(b) What were the arrangements concerning the acquisition and ownership of property?

(c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship?

(7) CHILDREN: What was the attitude and conduct of the parties concerning children?

The court stressed that all of these factors must be considered on case-by-case basis, and that a couple need not meet all of these factors; they need only satisfy most of them on the whole.

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 http://www.RussellAlexander.com

Enforcement of Child Support


Wednesday’s Video Clip: Enforcement of Child Support in Ontario

In Ontario is done through a provincial government office called the Family Responsibility Office (FRO). The court automatically files all support orders made after July 1, 1987 with the FRO.

The parent who is to pay support is told to make all support payments to the FRO. When the FRO receives a payment, it sends a cheque to the parent with custody, or deposits the money directly into that parent’s bank account. It only does this after it has received the money from the paying parent.

If a payment is missed, the FRO takes action to enforce the order or agreement.

Top 10 Traits Lawyers Look For In A Law Clerk

law clerk

Top 10 Traits Lawyers Look For In A Law Clerk

I recently did a lecture for law clerks at a local College. I was asked to speak on what characteristics I look for when hiring a law clerk. Every lawyer and every law firm is different and has their own firm culture. When considering the atmosphere and service we try to promote at our firm I thought the following 10 characteristics were essential to be an effective law clerk. All clerks are different and possess different strengths and weaknesses. Here’s my list, let me know your thoughts and comments. Would there be anything you would add?

1. Disposition

Clerks should have a professional look and dress accordingly. Yes, that means no jeans and you need to wear shoes when at the office. There are days that are casual or when we dress down if we are taking files to storage or cleaning the office. But this is the exception, not the norm.

2. Service

Law clerks need to be service oriented to effective. This includes promptly returning client messages. You may not have an answer or have had an opportunity to speak with the responsible lawyer, but you can simply let the client know you have received and acknowledged the message. This will go a long way in alleviating client stress and angst know that their request is being processed. Law clerks also need to be responsive to the specific inquiry being asked of them.

3. Empathy

Clerks will be working on more than one file and more than one client. But clients want to feel like they are the “only” client and feel let down if they are not being responding to promptly or their concerns are not being addressed. Clerks need to be empathic to these needs and concerns even if they are not legal in nature.

4. Accuracy

Accuracy and correctness are a must for a successful law clerk. When a task or document is sent to lawyer for review the clerk should ensure that he or she gets it right the first time. If the lawyer needs to review the document multiple times it may prove easier for the lawyer to simply produce the document him/herself. If this occurs with some frequency the law clerk will likely be looking for a new job.

5. Anticipation

Effective law clerks need to anticipate what the lawyer will require to complete the task or provide instructions. Checking court dates or providing background information, memos or documents when the lawyer is presented with the information or message helps streamline the workflow and improve efficiencies.

6. Team Work

Law clerks will need to work with multiple type “A’ personalities including other clerks and supervising lawyers. To do this effectively clerks need to learn how to work as a team, accepted delegation and learn to say no if they are too busy or unable to complete assigned tasks.

7. Independence

Law clerks need to understand that it is not the lawyer’s and other clerk’s job to hold their hand. Lawyers are able to delegate task and are required to ensure their clerks are properly supervised and can handle the tasks being asked of them. Similarly law clerks need to work independently and learn to say no if the task is beyond their ability or if they cannot complete the task in a reasonable timeframe due to other work or responsibilities. To be effective clerks need to learn how to prioritize their workload.

8. Flexibility

Law clerks need to be flexible in the tasks they are asked to complete and hours they are required to work. Often times with deadlines or trial work clerks may be asked to stay late or work extra hours on a weekend. Clerks may also be asked to work remotely, at different offices or fill in for reception or other staff members who may be sick, on holidays or mat leave. Flexibility is an essential trait of an effective law clerk.

9. Timeliness

Clerks need to show up on time be reliable. A 9 am start doesn’t not mean showing up at the office at 9:05, having a bowl of cereal and not being ready to work until 9:20. Similarly when it comes to documents, court rules and client expectations require documents and tasks to completed when promised or required by the rules of the court.

10. Reliability

Effective clerks do not ‘stick their head in the sand’ and ignore problem files. Effective clerks meet the task head on, get the job done and ask for assistance when required. If you make a mistake own up to it and take responsibility. Do not blame others when something goes wrong. The lawyer will appreciate your honesty and give you the resources or assistance you need to get the task done right the first time and on time.

Top Five Dirty Tricks In Family Law

ticks

Top Five Dirty Tricks In Family Law

It’s no secret that divorces often go badly, and that acrimony and bad behavior amongst former spouses is commonplace. Needless to say, it is usually in the best interests of spouses to treat each other well even during the divorce process, and to behave in an amicable fashion if at all possible.

Yet this rarely happens. In fact, divorcing spouses often resorts to a whole bag of dirty tricks (and these are not limited to misleading their own lawyers, which I’ve written about before Top 5 Lies Clients Tell Their Lawyers.  Here are the top five bad behaviors:

1. Hiding assets.

Family law is quite clear-cut in Ontario; a divorcing couple’s property division and support entitlements to each other are easy to predict in advance. Yet a spouse who predicts a hefty child or spousal support obligation, or one who is unhappy with the anticipated split of property and assets, will sometimes try to hide assets from the other spouse. These creative-but-shady tricks can include dubious transfers to corporations or offshore accounts, or making notional “gifts” to extended family or friends – all designed to put assets out of easy reach. Unfortunately for such spouses, courts have an arsenal of remedies to counteract these tactics, including imputing income and imposing costs on the deceitful spouse.

2. Ceasing to pay the bills.

It is common for one of the separated spouses to move out of the family home but agree (or be ordered by the court) to continue making the mortgage payments, to keep paying the household expenses, and to pay support to the other spouse and children pending the formal divorce hearing. One nasty tactic is for that spouse to stop making those payments, or else be routinely late in making them. This technique is designed to “starve out” the other spouse who is relying on those funds or payments, to the point where he or she is so financially strapped or prejudiced that even an unfair settlement might start to look good.

3. Using delay tactics.

Family litigation is costly at the best of times. But some divorcing spouses manage to double, triple or quadruple their litigation costs – and inflict similar inflated costs on their future Exes – by bringing needless motions, changing lawyers frequently, and generally dragging out the process. This is often a tactical and stalling measure, motivated by a “win at all costs” mentality. Worse, it can be aimed at deliberately driving up costs for the other spouse – often to the point where they are either too financially squeezed, or else too worn down and frustrated to continue the litigation.

4. Going on a spending spree.

Even otherwise honest spouses may start acting out of character when they see divorce on the horizon. If it’s not hiding assets, then it may involve a shopping spree relating to out-of-ordinary and questionable expenses, often designed to arbitrarily inflate the lifestyle that the other spouse will (ideally) be required to pay support for after divorce. This can involve things like having the kids enroll in pricey lessons and camps, or buying new vehicles, furniture, services or sporting equipment. Or it may involve maxing out on joint credit cards to buy household items that will be needed to set up a new, post-divorce residence. This simply leaves both spouses with more debt than they can usually afford. And as before, courts have been well-equipped in law to see through and compensate for these kinds of tactics.

5. Ensuring sought-after lawyers have conflicts.

Especially in high net-worth cases, one divorcing spouse may do some strategic “shopping around” for the top family lawyers, with the objective of making sure that his or her Ex cannot hire the most prominent and well-regarded ones. They may schedule a series of appointments with these lawyers – none of whom they necessarily intend to retain – and divulge just enough about their marriage and divorce situation to each of them so as to preclude that lawyer from being hired by their Ex later on.

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 www.RussellAlexander.com.

Differences Between Separation and Divorce in Ontario


 

Wednesday’s Video Clip: Differences Between Separation and Divorce in Ontario

A separation occurs when one or both spouses decide to live apart with the intention of not living together again. Once you are separated, you may need to discuss custody, access and child support with your spouse. You may also need to work out issues dealing with spousal support and property.

To legally end your marriage, you need a divorce, which is an order signed by a judge under the federal law called the Divorce Act

This video reviews ome of the issues to consider.

How Much Should Parents Share on Facebook?

share

How Much Should Parents Share on Facebook?

Facebook may have started out as a networking site for teens, but these days many parents have their own Facebook account as well. Ostensibly, its purpose is to link them to family and adult friends with whom they want to stay in touch, or to share news, events and milestones.

But as I have written before , information on Facebook and other social media sites can be used / misused by parents in family litigation; for example one parent can gather incriminating or unflattering information about the other.

But even leaving aside this “Facebook-as-evidentiary-weapon” approach, separated and divorcing parents should be aware that the information they innocently post on such sites can be harmful to the children.

Indeed, in a B.C. custody case called Bain v. Bain, the court concluded that the father’s decision to post photos of his child on Facebook demonstrated that he had questionable judgment as a parent. In ordering the father to both remove the photos and refrain from posting comments about the children in the future, the court wrote:

[The father] has made available on the internet by way of Facebook, pictures of the children in their very early years. There is a danger of publishing such pictures in this day and age, which should be apparent to any parent, let alone the father of two small daughters.

But threats to a child’s safety, privacy, or emotional well-being can be indirect as well. For example, a teenaged child may be embarrassed to have a parent post pictures on Facebook of a recent Vegas holiday, or flaunting a new (post-divorce) romantic interest. A child may lose respect for a parent after finding inappropriate comments or posted photos of behavior that is questionable for an adult, let alone a parent – even if that conduct takes place during non-custodial time. The parent-child relationship can be adversely affected if the child learns about the parent’s social life or relationships not directly, but rather through status updates.

The key is to view the posted information from the child’s perspective: What may seem relatively innocent to share among adult friends can be mortifying to a child who is at a development stage where the opinions and attitudes of peers is paramount. For this reason, parents need to turn their mind to adjusting privacy settings on Facebook and other social media sites like Facebook, to protect their children if necessary.

What is the bottom line? All parents – whether separated, divorced, or otherwise – need to understand how the modern trend towards living life as an open book on the internet might affect their kids. Remember: “What Happens in Vegas… Ends Up on Facebook”.

For the full text of the cited decision, see:

Bain v. Bain, 2012 BCSC 1019 (CanLII)  http://canlii.ca/t/fs0sq

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 http://www.RussellAlexander.com.

Top Five Points About Adultery That You Probably Didn’t Know

adultery 2

Top Five Points About Adultery That You Probably Didn’t Know

As I have written before [RA add link], one of the grounds on which divorce can be granted to spouses in Canada is that of adultery. For the most part, the concept is quite straightforward: “Adultery” for these purposes is precisely what most people think it would be.

However, from a Canadian legal standpoint there are some finer points that are worth mentioning, largely derived from cases that have been decided over the years. Here are the top five lesser-known points to know:

1 • Adultery may occur if there is “[i]ntimate sexual activity outside of marriage may represent a violation of the marital bond and be devastating to the spouse and the marital bond regardless of the specific nature of the sexual act performed.” (From the case called P. (S.E.) v. P. (D.D.))

2 • A single act of sexual intercourse can amount to “adultery” for the purpose of divorce in Canada. (Henderson v. Henderson and Crellin)

3 • Adultery can occur with a same-sex partner. (P. (S.E.) v. P. (D.D.))

4 • An affidavit admitting to adultery with an unnamed party is sufficient for Divorce Act purposes. (d’Entremont v. d’Entremont)

5 • In the right circumstances, adultery can be condoned. For example, if out of love and a desire to make the marriage work one spouse takes back an adulterous cheating spouse, then he or she may not be able to ask for a divorce based on the earlier adultery. In this scenario, the innocent spouse may be considered to have condoned the adultery for divorce purposes. (Ingram v. Ingram)

For the full text of the cases, see:

d’Entremont v. d’Entremont (1992), 44 R.F.L. (3d) 224, 118 N.S.R. (2d) 51, 327 A.P.R. 51 (C.A.)

Henderson v. Henderson and Crellin, [1944] A.C. 49, [1944] 1 All E.R. 44

Ingram v. Ingram (1985), 1985 CarswellSask 768, 48 Sask. R. 157 (Sask. Q.B.)

P. (S.E.) v. P. (D.D.), 2005 CarswellBC 2137, 2005 BCSC 1290 (B.C. S.C.)

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 www.RussellAlexander.com

Child Support and Access In Ontario

 

 

Wednesday’s Video Clip: Child Support and Access In Ontario

In this video we discusses child support in relationship to access rights. A parent cannot cut off contact to a child simply because child support is not being paid.

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