Written on behalf of NULaw

Husband Lays Out A Slew Of Material Changes In Circumstance, But Court Doesn’t Buy It

The obligation to pay spousal support can be a tough pill to swallow for some, and despite the legal requirements to pay it, some people take measures to avoid paying it. While there are valid reasons for spousal support to be reduced or terminated, trying to skirt the law is not a recommended tactic. Take for example the situation in a case recently heard by the Supreme Court of Nova Scotia.

A material change in circumstances?

The parties were married for 34 years before separating. The husband co-owned a pharmacy and a 2014 order required him to pay $5,000 per month in spousal support. However, he told the court that a number of events have led to a material change in circumstances. But whether the court agreed with him on any of those events is a different matter. Let’s look at them one-by-one.

CRA re-assessment

A 2017 CRA re-assessment of the husband left him with an income tax bill of $295,000. This was in addition to other debts of about $60,000 and a mortgage of $375,000 on the home he shared with his second wife. As a result of this he declared bankruptcy on May 1, 2017.

The husband’s bankruptcy documents said he would entitled to an automatic discharge on January 29, 2018. However, the husband said he didn’t know when he would be discharged, stating it would not be until he repaid all his money owing.
Additionally, the husband said he was paying his bankruptcy trustee $500 per month, when his bankruptcy documents say he was only obligated to pay $180 per month.

The court found that once his bankruptcy is discharged, he no longer has to pay back any money previously owed. As a result, it should not prevent him from paying spousal support. As a result, it was not found to be a material change in circumstances.

Retirement

The husband opened a pharmacy in 1984 with an ownership stake of 40%. He began receiving Canada Pension Plan payments in mid-2015 and sold his interest in the pharmacy later that year for $455,000.

He had kept the marital home following the divorce, and after the divorce he renovated it, replacing the flooring, windows, and roof. However, following his retirement, he tore down the home and used the money from the sale of the pharmacy to build two homes; one for his new family (his second wife and their three children) as well as his second wife’s parents.  

The court found that the husband could not have retired, lacking the means to do so. He saved none of the money from the sale of his business, and he took on additional responsibility by adopting the young children of his second wife. The court found no material change in circumstance here.

Separation from the second wife and financial obligations related to their three children

The husband also claimed that he could not pay spousal support due to the obligations he had for his second family. However, the court noted that he wasn’t with the second wife when he got divorced. Separating from the second wife is not a material change in circumstances, but rather a return to the previous situation.

The husband and the second wife have an agreement where neither has to pay spousal support, and they continue to share their home.

The court also found that there were no child support payments on the husbands tax documents, likely because he was paying it voluntarily. The court found that all of the husband’s money was deposited into the second wife’s bank account, an amount higher than he was obligated to provide.

Altogether, the court found that there was no material change in circumstances related to any of the husband’s claims. As a result, his obligations to pay $5,000 in spousal support remain unchanged.

Contact NULaw as soon as possible if you are contemplating a separation, or have already begun the process. We are dedicated to pursuing your interests and getting exceptional results. Let us focus on your rights and negotiate the best possible outcome for you while you focus on rebuilding and moving on. Contact us online or at 416-481-5604 to book a consultation.


Questions Arise Over Who Manages Inheritance For Minor Upon Father’s Death

Having a will is one of the most important things a person can do in order to prepare their estate in the event of their death. A valid will is the best way to ensure that your loved ones are taken care of, and that your estate is distributed with as little a likelihood of litigation as possible. A recent decision from the Ontario Superior Court of Justice highlights the importance of having a valid will after a father died intestate, or without a will, leaving questions about who would be responsible for funds to be paid to his child.

Property in two provinces

The deceased died intestate in July 2019, leaving behind a ten-year-old son and his wife. At the time of his death the family lived in Ontario. The wife and child are the only beneficiaries of the deceased’s estate.

Under Ontario’s Family Law Act, the wife was entitled to all of the deceased’s Ontario assets. However, he also owned a condo in Montreal. Upon its sale, the proceeds of the condo would be distributed to the wife and the child.

The Children’s Lawyer was appointed as a litigation guardian for the minor, which was required in order for the condo to be sold. The Children’s Lawyer argued that the wife should be appointed the guardian of property for the purpose of sale of the condo, but that the child’s portion of the sale proceeds be paid into the court. The wife wanted to manage the child’s property until he turned 18.

The positions of the parties

The wife provided the court with a plan about what she would do to manage the child’s inheritance, including placing it in GIC’s, and perhaps over time, in RESPs. She said she would be able to provide for the child without using his inheritance.

The Children’s Lawyer opposed the RESP idea because it could be seen as an asset of the wife’s in the event of family law of bankruptcy proceedings at a later date. It should be noted that the wife’s ability as a caregiver or a mother were not called into question.

The court’s analysis

The court reviewed case law and determined that there were inconsistencies in regards to how RESPs were treated in the event of bankruptcies. This left the court to determine that “for several reasons, there is a risk that a minor, upon reaching the age 18, will not receive monies invested in an RESP.”

As a result of this, the court determined that it would be in the child’s best interests that the Inheritance be paid into the courts until the child reached the age of 18.

Contact NULaw in Toronto to obtain effective legal guidance with all of your estate planning needs, including wills and powers of attorney. An experienced estate lawyer can help you achieve your long-term goals and objectives, and plan ahead to protect yourself and your loved ones. Contact us online or at 416-481-5604 to book a consultation today.


Mother Regains Possession Of Matrimonial Home During COVID-19

While Ontario begins to roll out its plan to re-open, the courts consider to hear only urgent items as it relates to family law. Unfortunately, urgent situations to continue to arise, and a recent decision from the Ontario Superior Court of Justice highlights what constitutes urgent as well as how COVID-19 impacts the way courts expect people to behave.

Assault charge and separation

The parties were married in early 1999 and remained so until early 2020, after 21 years of marriage. They had three children together during their marriage, two of who are in university and one of whom is 13-years-old. The mother alleges that the father was physically, emotionally, and financially abusive towards her throughout the marriage. At the time they separated, the father was criminally charged with assault and was ordered to stay out of the family home.

The home the couple lived in is owned by the father’s father (“BF”). Following the alleged assault, BF and the father returned to the home and asked the mother to take him back. When she refused, BF told her he was raising their rent to $2,200 from $1,250. She was not able to pay this because she said the father controlled their finances.

A second assault was alleged to have occurred in February. After fleeing the home during the assault, the mother has been unable to return and was living with a friend when she brought the motion to have exclusive possession of the matrimonial home (which the father can’t live in due to his bail conditions) as well as custody of their youngest child.

The father contends that a tenant who used to live in the basement of the home is now residing in the entire home, and that the mother’s decision to live with friends has not been something that can accommodate visits with the child during COVID-19.

The matrimonial home and custody of the youngest child

The court labeled the father and BF’s attempts to keep the mother out of the home as a “scheme” designed with the intent to put the mother “in a terrible predicament for (the father and BF’s) tactical advantage in the litigation.” The court was presented with no evidence to demonstrate that the tenant from the basement had moved into the rest of the home. There was also no evidence about what happened to the parties’ household possessions.

The mother was granted exclusive possession of the home.

The court also found that the mother and the child have a close and loving relationship and was worried that the father might be trying to alienate the child from the mother. The court also found that the father did not seem able to act responsibly as a parent to the youngest child or their older children, the later of whom he had involved in the dispute through the production of affidavits. The court determined that the mother would live primarily with the mother with scheduled visits to the father’s home.

For more than half a century, NULaw and its predecessors have been known for excellence in providing legal services, strong advocacy, and client-focused services. We represent business owners & entrepreneursbusinessesfamilies, and individuals who want a personalized and practical approach to their matter. Contact NULaw online or at 416-481-5604 to book a consultation today.


Written On A Napkin, A Will Leaves A Mess

Here at NuLaw we regularly help clients plan for their future through our estates and trusts practice. One of the key parts of planning for you and your family’s future is through the creation of a valid will that states how you want your state handled upon your death. Of course, not everyone gets around to creating a formal will. Holograph wills are those that are 100% handwritten and signed by the person writing it. In these cases, no witnesses are necessary. However, just because a holograph will can be accepted by a court does not necessarily mean it will be accepted by a court. A recent decision from Saskatchewan illustrates this.

Names on a napkin

The will was written on a very thin brown paper napkin that the deceased had in front of him while eating at a fast food restaurant. On it, he listed the names of his seven children followed by the phrase “split my property evenly.” He then signed the will. One of this children, who had predeceased the father, was left off the will. Another child named on the will died in the interim. All parties involved said they agreed the estates of the deceased children should receive a share of the estate.

Holographic wills

In Saskatchewan, much like in Ontario, a holograph will can be wholly written by the testator and signed by them without any other formality or witnessing. With that being the case, what was the issue here?

One of the children (“MG”) was shown the will after the testator died. Another sibling told her the father wrote it on a napkin at a fast food restaurant when he thought he may have been having a heart attack. He didn’t die that day, and went on to live another 10 years or so. MG is skeptical that the will is real, stating she has been unable to verify whether it is the father’s handwriting, having nothing to compare it to. She also pointed out that her name was spelled incorrectly on the will. She also said that the father told her in the year before his death that he would not leave a will because “he wanted us kids to fight like he had to.”

One of MG’s brothers, (“RL”) said he drove his father to the restaurant on the day he supposedly wrote the will, arranging someone else to drive him home. He said that someone with is father at that time was present when the will was written, though no evidence was put forward to support this.

Another sibling (“PL”) testified that his father gave the will to one of the siblings and said “This is my will and I want you to keep this in case something happens to me.”

Determining whether the will is valid

The court found that the deceased had the testamentary capacity to write a will, and that the evidence provided by the siblings in support of the will was enough to determine that it was valid and could be admitted for probate.

While the will in this case was accepted, it illustrates how difficult it can be to prove that a holograph will is valid. To avoid this kind of trouble, contact NULaw in Toronto to obtain effective legal guidance with all of your estate planning needs, including wills and powers of attorney. An experienced estate lawyer can help you achieve your long-term goals and objectives, and plan ahead to protect yourself and your loved ones. Contact us online or at 416-481-5604 to book a consultation today.


Decision Highlights Challenges Of Shared Custody During COVID-19

Parents looking to avoid some of the disruptions that comes with separation or divorce might turn to nesting arrangements, which see the children staying in a single home while the parents take turns living in it in accordance to a custody or access schedule. Precautions in light of the COVID-19 pandemic may have parents looking towards nesting arrangements when they haven’t before. A recent decision from the Ontario Superior Court of Justice addresses a mother’s request to enter into a nesting arrangement in order to limit the parties’ children’s risk in relation to COVID-19.

An urgent motion

The mother brought the motion on March 15, 2020 seeking exclusive possession of the matrimonial home, subject to the father’s parenting time. The proposal would see the mother and children living in the home for a 14-day period, after which the parents would take turns living in the home with the children.

At the time the motion was brought, the mother was living with the children in her parents’ home. However, they are older and she said her father “was beginning to experience respiratory issues” while both parents were experiencing other symptoms of COVID-19. She said she and the children have been “sequestered” in certain parts of her parents’ home, but that one of the children started to experience a severe cough.

The father was living in the matrimonial home by himself at the time the motion was brought. But the mother said he could live with his parents while she stayed in the home with the children.

The father’s position

The father objected to the mother’s request, arguing the mother and the children could continue to live comfortably at her parents’ house. He also said his own parents have health issues and he did not want to present unnecessary risk to them.  He stated he would like to have a case conference prior to a hearing of the motion, noting they can be scheduled during the pandemic. The court, however, was skeptical of the usefulness of a 30-minute case conference, finding the matter urgent enough to deal with.

Assessing the situation

The court agreed that it would not be appropriate to provide the mother with exclusive possession of the home for a 14-day period. However, the court did find it to be in the children’s best interest to live there. The court suggested the parties could work to live in the home together while keeping distance between each other. In the alternative, the court agreed that the father should not be made to live with his parents. If the mother wants to stop living with her parents but not under the same roof as the father, the court suggested she move into her own space with the children.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. Our lawyers provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.


Father’s Refusal To Discuss COVID-19 Parenting Leads To A Loss Of Access

The emergence of COVID-19 and the safety measures put in place to slow its spread has led to a huge change in the way people live their lives on a day-to-day basis. For parents who share access to their children, there may be a concern by one of the parents that the other is not following the safety protocols put in place as a result of COVID-19. A recent decision from the Ontario Superior Court of Justice looks at a situation where a mother was concerned the father of their child was failing to comply with such protocols.

The application

The parents have a child together who is currently three-years-old. At the time of the trial, they were involved in a high-conflict dispute involving several motions that were scheduled to be heard together as a long motion in April, though whether or not that happened is still unclear. In the meantime, the mother was worried that the father was not respecting COVID-19 safety protocols, and as a result, she wanted to prevent the father from having access to the child until a time to be determined in the future.

Leading up to the application

The parties’ parenting schedule was established by a court order issued in July 2019. It gave the mother primary access to the child, with the father entitled to access as set times. While the child was in the care of the father on March 11, 2020, the father sent the mother photographs of the child playing on a playground. She responded two days later expressing concern about COVID-19, asking the father to ensure he was being pro-active in safeguarding the child, mentioning that she had canceled a planned vacation. The mother noted that she was concerned because the father lived in a three-bedroom apartment with two others.

The father did not respond to the mother’s email, stating later that he didn’t think it was important to acknowledge what he already knew.

On March 14, the mother provided the father with a face mask for the child as well as hand sanitizer and disposable gloves. She said he showed little interest in the items, adding there was no public health rule or guideline pertaining to the use of face basks. She emailed him again on March 25, once again expressing concern about COVID-19, offering to work with him to develop an emergency action plan in the event the pandemic worsened and risked impacting his access to the child. Once again, he did not respond.

The mother sent another email on March 27, seeking reassurance that the father was respecting COVID-19 protocol. She mentioned she was self-isolating with other members of her family, and that if he continued to fail to respond to her messages, she would escalate the matter. He responded the next day, writing she had “mothering to teach (him) about COVID-19.”

The court’s analysis

Citing a recent decision, the court offered some context on how the courts are addressing issues like this during COVID-19, quoting,

“In most situations there should be a presumption that existing parenting arrangements and schedules should continue, subject to whatever modifications may be necessary to ensure that all COVID-19 precautions are adhered to – including strict social distancing. 

“In some cases, custodial or access parents may have to forego their times with a child, if the parent is subject to some specific personal restriction (for example, under self-isolation for a 14 day period as a result of recent travel; personal illness; or exposure to illness).”

In this case, the court found it was clear that rather than working with the mother to come to an understanding of how they would parent during COVID-19, he refused to engage with her, meaning the child’s safety was not the priority it should have been. The court said that while there is no doubt he loves the child, the mother was being reasonable in attempting to talk with him about parenting during COVID-19. As a result, the mother was granted sole custody of the child until a time yet to be determined.

For more than half a century, NULaw and its predecessors have been known for excellence in providing legal services, strong advocacy, and client-focused services. We represent business owners & entrepreneursbusinessesfamilies, and individuals who want a personalized and practical approach to their matter. Contact NULaw online or at 416-481-5604 to book a consultation today.


Unnecessary Litigation Met With Criticism By Court In A COVID-19 World

Vexatious litigation is not something that is well-received by the courts at the best of times. However, during these days of COVID-19, unnecessary or frivolous litigation may be met with even more resistance than normal. As we’ve discussed in recent blog entries, Ontario’s courts are only hearing urgent matters. A recent decision from the Ontario Superior Court of Justice shows those looking to have the courts address non-urgent matters will be out of luck.

An urgent request

The decision states that the father initially brought motions on March 24, 2020. The father’s request included what was described as an urgent access matter as well as financial and property issues. The triage judge allowed the access matter to proceed but determined the financial and property issues were not urgent and did not allow them to proceed.

The father ignored the court’s direction and brought another emergency motion on financial issues just three days later. The same judge addressed this motion, noting the history both parties had of abusing the court process and stated once more that the financial matters were not urgent. The triage judge instructed the father to not bring any further motions on the property or financial issues without leave of the court. The judge added that no such request may be submitted within 60 days of a denied request.

Both parties ignore the court’s direction

The access issue was heard by another judge on March 27, where the judge denied the father’s request due to a lack of sufficient evidence on his part.

Despite the triage judge’s decision, the mother now filed another motion three days later, this time on March 30, 2020. Once again, the request included both financial and access issues. The same triage judge issued a decision on these applications and did not have much patience for the father. Both matters were denied by the judge. The financial issue was denied because it was in direct contravention of the March 27, 2020 decision. The access issue was denied because, as the triage judge noted, the issue should be something the parents can sort out without the need of the courts.

The triage judge left the parents with a stern warning about the possibility of being labeled vexatious litigants, writing,  

“We are rapidly approaching the stage where one or both of these parties may come to be identified as vexatious litigants.  The consequences of such a determination would be quite harsh.  For the moment, both parties should be aware that if they keep bringing inappropriate urgent motions, we may simply have no choice but to ignore them.

“I would again urge both parties to use some commen sense and stop abusing extremely limited judicial resources.”

For more than half a century, NULaw and its predecessors have been known for excellence in providing legal services, strong advocacy, and client-focused services. We represent business owners & entrepreneursbusinessesfamilies, and individuals who want a personalized and practical approach to their matter. Contact NULaw online or at 416-481-5604 to book a consultation today.


Behaviour During COVID-19 Continues To Impact Family Court Decisions

Since the outbreak of COVID-19 we have used our blog to share news on how the courts are operating as well as cases that illustrate these changes. The decision we will discuss today is from the Ontario Superior Court of Justice and serves as a good example of how the courts are treating urgent matters within the context of COVID-19. Like last week’s blog, the court considers one of the parent’s actions within the context of COVID-19 in helping to reach a decision.

Urgent hearing…by telephone

The judgment starts off stating that the hearing was conducted over the telephone, something unusual during normal times but standard today as the courts are largely shuttered following government directives. The court had determined that the matter, which related to the alleged unlawful withholding of two children fit the “urgency requirement” the courts are working under.

Another interesting statement made by the court relating to the urgency of the matter is that the respondent father did not have the opportunity to deliver a written response to the mother’s allegations. Instead, the judge listened to “his side of the story” over the telephone.

The relationship

The parties were never married but began living together in April 2012. They had two children together before separating in July 2019. However, even after the separation, the father lived in a rental property owned by the mother. She said that during this time the father would closely monitor her both physically and through her phone, also alleging that he had extorted money from her before with the promise that he would move out of the apartment in exchange for money. The mother also said she has always been the primary caregiver for the couple’s children.

Since the couple separated, the children have resided with the mother with the father having interim access to them in the presence of their nanny. This was agreed to by the parents.

Taking the children without consent

The mother alleged that on the week of March 13, 2020, the father returned from a trip to Brazil and told the mother he was going to take the children to his rental property for the week of March 15, which would have been their second week of spring break.

The mother had told the court that the children had fallen ill while in the care of the father. He confirmed that the children did have a fever. Despite this and the outbreak of COVID-19, he continued to take the children to public places.

The court’s decision

The court started off by noting it was in the children’s best interests to maintain the status quo and shield them from the impact of family litigation. Until the father took the children, that status quo meant they lived with the mother. The parents’ original agreed via text message that they would split access 50/50, but never actually put such an arrangement in place. The father said the reason he had not followed through on that arrangement was that the rental property wasn’t ready yet and that he was mourning the loss of a family pet. The court noted that his answer “seemed to lack an air of reality…”

The court found that the children’s status quo was unilaterally altered by the father’s actions and ordered them returned to the mother.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. Lex Arbesman provides clients with clear, practical advice so that they can make informed decisions about their parental rights. Contact the firm online or at 416-481-5604 to book a consultation.


COVID-19 And Its Impact On Access

Over the last few weeks, we have been writing about how COVID-19 is impacting the judicial system in Ontario, including reduced operations with the exceptions of urgent matters. Today we’d like to take a look at a recently issued decision that serves to highlight how seriously the courts are taking COVID-19 and how it is impacting decisions related to custody.

Scrapping a nesting agreement in light of COVID-19

The decision was reported on by the Financial Post, which explained that the parties separated in August 2018 and entered into a “nesting” parenting arrangement in which the three children  (aged 11, 13, and 17) stayed in the family home and the parents took turns living there on a weekly rotation.

Once the COVID-19 crisis took root, the parties decided to both stay in the home and suspended their nesting arrangement.

Medical complications create concern

One of the factors that would come to impact the situation was health of the family. Two of the children suffer from asthma, while the mother is on long-term disability due to a myriad of issues, including lupus, Sjorgren’s syndrome, fibromyalgia, and asthma. As a result of these medical issues, she has a compromised immune system. The story reports that the mother was concerned that the father was not following the COVID-19 protocols recommended by health officials. She told the court he was not upfront with her about his whereabouts when he left the house and that he wasn’t honest about his handwashing.

The father said he was abiding by the protocols, even though he was spending time with his girlfriend, who he said was practicing social distancing.

The court weighs in

The mother brought a motion to have sole possession of the family home during the COVID-19 crisis. This would obviously have a significant impact on the parties’ parenting arrangement.

According to the story, the court agreed that the father’s behavior was problematic. The judge believed the mother’s statements about the father not taking physical distancing as seriously as he needed to, writing “this order is made due to the father not taking the increased risk to the mother and children seriously.”

The order is temporary in nature. The father will be able to bring the motion back before the court, but not until April 17 at the earliest.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. Our lawyers provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.


First Decisions Issued Following COVID-19 Court Closures

In last week’s blog, we discussed how Ontario’s courts have responded to the COVID-19 crisis, including family court only being open to hearing urgent matters. Decisions for some of these urgent matters are starting to be released, including the case we will be discussing today.

An urgent motion

The motion was brought by the father, who was seeking the immediate return of the parties’ son from the United States. The son, born in 2003, was attending school in Utah.

The parents share joint custody of the son as well as two other children pursuant to a separation agreement signed in 2004.

The motion was treated as urgent due to the unfolding of the COVID-19 crisis and concern that the Canada and United States border may be closed, preventing the son from returning to Canada at a later date.

Two stories

The father alleged that he and the mother worked out an arrangement the week before the trial, where the mother agreed to return the child to Canada subject to her being given sole decision-making authority on matters related to the child’s health and education. The father said he agreed “under protest and duress,” while the mother challenged it on the basis it was entered into without the benefit of independent legal advice. The court made note that even with the parents’ coming to an agreement, the child is 16-years-old and was entitled to participate in plans pertaining to his future.

A changing situation

The court noted that its analysis of the decision would be heavily impacted by the situation unfolding. In fact, in between the motion being filed and the case being heard, the closing of the border went from a possibility to a fact. Plans to close it were in pace.

The court turned, as we often see in these situations, to the best interests of the child. The court wrote,

“Given the current health concerns facing all of us, the imminent closure of the border between Canada and the United States and the recommendations of our health professionals and Government authorities regarding Canadian citizens out of the country, the relief requested by the applicant is granted in its entirety.”

In addition to granting the order sought by the father, the court also ordered the mother to return the child’s passport, which she had removed from his school. The court also ordered the child to self-quarantine for 14 days upon his return. During this time he was ordered to live with his father. The parents were ordered to work out an arrangement for his residential schedule following quarantine.

If you are contemplating a separation, or are already in the process, and there are children involved, your first step should be to consult with a family lawyer who has experience with custody and access matters. NULaw and its predecessors have been helping clients in Toronto since 1953. Our lawyers provide clear, practical advice so that clients can make informed decisions about their parental rights. Contact us online or at 416-481-5604 to book a consultation.