Written on behalf of NULaw
Child custody and access are some of the most emotionally fraught issues following a divorce or separation. The emotional toll can last longer than the legal dispute itself, especially when a parent does not have as much time with their children as desired. In some serious cases, parents can become alienated from their children, causing lasting damage to the relationship. In these situations, the court may order family reconciliation therapy to help mend those wounds. In a recent decision, the Ontario Superior Court of Justice considered how to address a situation in which an older child refused to attend court-ordered therapy.
Mother and Daughter Estranged Since Parents’ Separation
The parents had two children, the youngest of which was about to turn 13 at the time of the parties’ separation in 2017. Since that time, she lived with her father and adult sister, who was an adult when the parents separated. The youngest child had not spent any time with the mother since November 2017.
Orders for parenting time were granted in 2017. While the father admitted he hadn’t complied with the orders, he denied responsibility for the child’s alienation from her mother.
Father Declines to Force Daughter’s Compliance with Therapy Order
An order for reconciliation therapy was granted in January 2017. The father told the court he complied with the order until the youngest daughter refused to continue. The mother argued the father not only failed to encourage the therapy but spoke negatively about it with the daughter.
The daughter, who is now 17 years old, was represented by the Office of the Children’s Lawyer (“OCL”). The OCL told the court it opposed the motion to require the daughter to attend therapy and stated the daughter should review and approve any orders. The mother opposed this position on the grounds that the child hadn’t followed prior orders and should not have a say in new orders.
Order Compelling Therapy Opposed by Social Worker and Therapist
The mother’s lawyer stated these issues aren’t about the views and preferences of the daughter, who clearly does not wish to have a relationship with the mother. Instead, it was pointed out, therapy aims to change the daughter’s views. The mother’s lawyer added that the orders presented to date had been detailed in a way to make the experience a positive one for the daughter.
A social worker engaged by the Office of the Children’s Lawyer said that at 17 years old, the daughter is “mature, thoughtful and well spoken”. The daughter said on many occasions she does not want any contact with her mother. She indicated she would oppose any contact not initiated by herself and would continue refusing participation, even if it was ordered. Additionally, the reconciliation therapist advised the court that her continued involvement wouldn’t be helpful and could be harmful for the daughter given the father’s refusal to support her reunification with the mother.
Mother asks for father to stop interfering
The mother requested the father recant his criticisms of the therapy order, and asked he “use his parental authority, influence and suasion with respect to the parties’ adult child to foster her support with the goals and intent and specific terms of the reconciliation therapy”.
Some of the mother’s requests related to asking the father to take back statements he made that were critical of the therapy order and conflict with the spirit of it. She also requested that the father “shall use his parental authority, influence and suasion with respect to the parties’ adult child to foster her support with the goals and intent and specific terms of the reintegration therapy.”
The court sympathized with the mother’s “pain and frustration,” but added her suggestions may not help. It found that while the daughter’s position might not be reasonable, her opposition was rooted in past experiences. The court also determined the father’s lack of participation in the therapy fell short of being classified as parental alienation, but agreed the father was at least partially responsible for failing to assist with therapy when the child was younger.
The court stated the daughter’s refusal to attend therapy didn’t mean it was not in her best interests to do so. Ultimately, the court found it would not be helpful to compel the daughter to participate in a therapy against her wishes. It held that even if the daughter’s perception was not reasonable, the court needs to promote and respect a child’s ability to gradually assume autonomy and independence.
NULaw Family Lawyers in Toronto Can Help You with Child Access Disputes
The family law lawyers at NULaw have provided dedicated and reliable advice to clients since 1953. We believe in upholding the principles established by our predecessors: combining big firm results with a small firm relationship, with the commitment to put our clients’ best interests first. Contact us online or at 416-481-5604 to book a consultation.
Not everybody likes surprises, and this can be especially true when it comes to matters related to money. In the world of estate law, surprises can sometimes lead to litigation. This usually occurs when a person or group of people assumed they would have been included in a will only to find out they were cut out. This can be especially surprising in the event that it’s someone’s child or children who have been cut out as beneficiaries in their parents’ estates. This was exactly what occurred to a family who recently found themselves before the Ontario Superior Court of Justice after two of the testator’s three children were left out of her will.
Mother relies on children to care for her as her health deteriorates
The family members involved in the dispute are a mother (“the testator”) as well as her three children “RDN”, “TDN” and “LDN.” RDN was the testator’s son, while TDN and LDN were her daughters. The testator’s husband predeceased her.
In the years leading up to her death, the testator experienced health issues. During this time, one of her daughters, TDN, served as her personal attorney for both personal care and property. While TDN had a legal responsibility for her mother, her brother RDN also helped take care of her when her health began to deteriorate around the summer of 2014. During this time, the third child, RDN, lived across the street from the family home in an apartment she shared with her boyfriend.
Testator looks to sell house
Once her health problems began, the mother began to explore the sale of the family home. She had originally planned to sell it to a developer, but those plans fell through after the closing date was pushed out a number of times. She ultimately hired a real estate agent to help her with the sale.
The testator’s neighbour eventually made an offer to buy the home. She hired a family friend who was a real estate agent to help her. The agent and the testator made a deal with the neighbour that would see him purchase the home while allowing the testator to live in it for $1 per year until her death.
The mother makes a new will
The real estate agent helped the testator in the preparation of an Agreement for Purchase and Sale and introduced her to a lawyer he had worked with in the past. The testator hired the lawyer to help with the sale of the home, and she also hired him to prepare a new will for her.
The lawyer testified that at the time he had no concerns about the testator’s health or ability to provide him with instructions. The instructions provided were that she wanted to leave all of her property to TDN, adding that she would know what to do and would look after the other two children. The lawyer said she seemed to understand the severity of such a decision.
The will was signed a few days later. The execution of the will was done at the testator’s home after the lawyer was told she was unable to travel to his office to sign it. Witnesses were arranged and the will was signed at her home. Once again, despite the testator’s physical health concerns, the lawyer said she seemed alert “as usual.” He also explained that he went over the details of the will with her once again and that she understood its contents.
Daughter challenges the validity of the will
Two of the testators previous three wills provided that all three children would share the estate equally. However, the last will made before the one in question removed LDN as a beneficiary. The testator explained that she had concerns with LDN’s substance issues. At one point, LDN had stolen money from the testator’s bank account. This was the last of a long series of incidents between the testator and LDN.
Despite this, LDN claimed that her mother was the victim of undue influence and lacked capacity to sign the will.
The court explained that the will was duly executed, and as such, LDN has the burden of showing that the will should not be enforced because of “suspicious circumstances.” Only once that is demonstrated does the burden shift to the estate trustee to show the suspicious circumstances are either untrue or should not call in question the validity of the will.
The court also explained that undue influence “arises where the testator’s agreement to the will was obtained by influence such that instead of representing what the testator wanted, the will is the product of coercion.”
In this case, the court was unable to find anything that indicated the testator was not aware of the contents of her will. This was enforced by the testimony of the lawyer. The court agreed that the testator’s decision to leave the estate to just one of her children might seem suspect at first, that suspicion does not amount to much once the context of the rest of the facts have been provided.
As a result, the court dismissed the application and allowed the will to be enforced and its instructions carried out.
Contact NuLaw for assistance with Will Disputes i
If you are experiencing conflict in dealing with an estate, contact the experienced estate litigation lawyers at NuLaw in Toronto. We regularly assist clients will disputes, will challenges, dependent relief claims, and estate administration. We can be reached online or by phone at 416-481-5604.
One of the most important things for people to understand when they go through the courts to resolve a matter is that when the court issues an order, it’s absolutely necessary to comply with it. A failure to follow a court order might result in a trip back to court and the responsibility to pay costs to the other party. This was demonstrated in a recent decision from the Ontario Superior Court of Justice, where the respondent’s failure to follow a court order led to them being on the hook for costs.
Questions arise about whether the deceased had a child
The parties arrived before the court following the death of the applicants’ son/brother. The respondent claimed to be the deceased’s common-law partner and claimed the deceased was the father of her child. The applicants did not believe this. Whether or not the respondent’s claims were true was important as it would determine what would happen to his estate, which included $62,841.54 that had been paid into the court. If the respondent’s child was the deceased’s, then the respondent and child would receive the estate. If not, the estate would be distributed to the applicants as his only surviving family members. The only way that the child’s parentage could be determined is through a DNA test, but the parties could not agree on what to test.
Different DNA tests available to determine if deceased was a father
In order to determine whether the respondent’s claims were true, the applicants sought an order requiring the respondent to submit material needed to perform a DNA test comparing the respondent’s child’s DNA to the deceased.
The judge issued the order, which required the parties to work together to schedule a test. However, conflict soon arose over the details of the testing. The key source of dispute was how DNA would be provided for the test. The parties could not agree over whether the DNA should come from a necklace belonging to the deceased or from a tissue sample.
Ultimately, the court provided a timetable for the DNA samples to be given and put a plan in place where both tests could be taken if necessary. At first, the lab was to take DNA from the necklace. If the testing of the necklace did not show that the deceased was the father of the respondent’s child, then the next step would be to send the deceased’s skin tissue for further testing. The respondent was ordered to pay for the cost of the second test if required.
However, as time went on, the respondent failed to provide DNA samples to the lab. Nevertheless, the respondent told the applicant she had indeed provided what was required. This was after the applicant provided the necklace. At the same time, the respondent said they were holding back because they wanted to iron out some details. The court noted that both of these stories could not be true.
Applicant looks to recover costs
Because of the respondent’s failure to follow the directions of the court, the applicants sought to recover over $13,000 in legal costs.
The respondent said she should not be liable for those costs, stating that she told the applicants more details needed to be sorted out before any DNA would be provided. The respondent’s lawyer confirmed that the respondent did not agree to release any DNA and was under the impression the applicant was also waiting until matters were resolved before providing the necklace.
The court agreed with the applicants and found that the respondent’s failure to comply with the order was not necessary and resulted in additional costs for the applicants. The court awarded the applicants slightly more than $10,000 in costs.
NULaw helps people in Toronto with their estate law needs
Contact the experienced estate litigation lawyer at NULaw in Toronto to learn how we can protect your interests and achieve the best possible resolution of your estate dispute. We help clients through a wide range of estate-related matters, including defending a will, and matters related to powers of attorney. Contact us online or at 416-481-5604 to book a consultation today.
Over the last decade, much work has been done to ease the stigma associated with mental health challenges. There’s no doubt that going through a separation or a divorce can have significant strains on people’s mental health. Issues related to a divorce, such as parenting time, can add to the difficulties people may experience. Occasionally, one parent might raise concerns about the mental health of the other parent and ask the courts to intervene on issues such as parenting time. A recent decision from the Ontario Superior Court of Justice shows how the courts might address such matters.
Father asks for more parenting time
The mother and father involved in the dispute were married for less than a year and separated when the mother was six weeks pregnant with their child, who is now four years old. Parenting time has been an issue the parents have been at odds over since they separated.
Prior to the trial, the father had access on Tuesday and Thursday for four hours each day as well as on weekends for up to eight hours. He had no overnight visits, and all parenting time had to be supervised by one of his parents.
The father approached the court to ask for expanded parenting time, including overnight on weekends. The mother objected, stating she was concerned that the father had mental health issues that prevented him from providing a safe environment for the child.
Mental health issues are raised
The mother’s claims about the father’s mental health stem from an incident on August 3, 2019, when she claimed she saw messages on his Facebook account that indicated he was suicidal. She called the police who brought him to the hospital for an assessment.
The father admitted he had been looking at websites related to self-harm and had been drinking in the lead up to his hospitalization. The hospital allowed the father to return home but noted he may be at risk. Following the hospitalization, the courts expanded the father’s parenting time (to what it was before the hearing), but did not allow for overnight visits, highlighting mental health concerns related to both parties.
In the months that followed, the father saw a registered psychologist who stated the father was working hard towards improving his mental health and was taking the matter seriously. In addition, the father’s family doctor provided the court with a letter stating the father does not have mental health issues and is not using medication.
Should the court allow unsupervised access?
The court explained that it was the mother’s onus to show that supervision is necessary. The father looked at the mother’s evidence and noted that many of her allegations came without any, including allegations of family violence. The court also considered the father’s hospitalization and his dropping his use of medications following it. He provided all of his OHIP claims since 2012 and both a psychotherapist and psychologist offered opinions that he is not suffering from a mental health issue, nor is he using alcohol or drugs.
As a result, the court agreed with the father that his parenting time should be expanded, including overnight visits with the child.
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. We 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.
For people who are high-income earners, a separation or divorce may come with significant spousal support or child support obligations. For those who own their own business, determining how much support needs to be paid can be difficult due to year-to-year changes in income. A recent decision from the Ontario Superior Court of Justice shows how courts approach such situations.
Spouse seeks spousal support of $82,551 per month
The parties were a mother and father who were married in 1989 and have two adult children. Once they had kids, the mother worked inside the home raising their children while the father worked first as a lawyer before starting his own company which ended up being extremely profitable. The family enjoyed a privileged lifestyle which saw the children attending private schools, and the family traveling first-class and staying in luxury hotels.
The father’s business was structured in such a way that the mother owned a number of the father’s companies in order to reduce tax liabilities as well as any potential liability due to his background as a lawyer. They funded their lifestyle through these corporations.
There was no dispute about whether or not the father should be responsible for paying spousal support. Instead, the issue was about the amount of money he makes and how much support he should pay.
What was the father’s income?
The mother and father each hired an expert to determine what the father’s income was over the prior four years. It shouldn’t be surprising that they arrived at different numbers. The mother’s expert found that the father’s four-year average income was $2.264 million, while the father’s expert came up with a four-year average of $1.80 million.
During the four-year period, the father’s income varied considerably, with swings of as much as $800,000 between some years. This was because the father’s business was related to mini-tenders. He got paid only when his clients were successful in the tender process. He said that it has been his practice to keep capital in the business due to the unpredictability of it as well as to leave a cushion for his family should he not earn income.
How cautious should the court be in setting income?
Since this was a motion for interim support (permanent support would be determined at a later trial) the court was not privy to all the information needed to determine spousal support. The court was sensitive to the father’s claim that he needed to keep some operating capital within his companies in order to get through low points in income. However, at the same time, it was clear that the husband was very successful in business, with some investments netting him at least $1 million. The court decided to take the father’s expert’s average income figure and set his salary at $1.8 million. While the mother technically owned the corporations, she clearly wasn’t in charge of them and the court stated she has no personal income.
The amount of spousal support payable on a monthly basis for an income of $1.8 million annually is $65,652, which should provide her with an after-tax income of $33,674 per month.
Contact the family lawyer at 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.
When parents are going through a divorce or separation, there can be significant negative feelings that they have towards each other, and they may be quite critical of how the other parents or behaves in the presence of their children. Mobile phone technology is such that most people walk around with cameras in their pockets, meaning conversations can be recorded easily and directly. A parent who is trying to catch the other in a moment of poor parenting may try to decide that doing so secretly with their phone might help in their attempt to convince the court that the other parent isn’t suitable. But as we see in a recent decision from the Ontario Superior Court of Justice, such evidence is not necessarily something the courts will allow.
Child consumes marijuana that belonged to the father
The parents began to live together in 2014 and were married in 2017. They had their son in the summer of 2017. They went through a separation in June 2019, and the father moved out of the home. At this time, the parents entered into a parenting arrangement where the child stayed with the mother for nine days and the father for five days during a two-week period. The father said he wanted to have equal parenting time, but agreed to a different schedule at the mother’s behest.
The parents tried to get back together in March 2021. The father said the mother then quit her job, and eventually physically assaulted him and would argue with him in front of the child.
The mother said that when the father returned home, he had changed. She said he became a regular user of marijuana and “magic mushrooms.” The parties separated again at the end of July 2021. Later that summer, the child consumed a small piece of a marijuana cookie that the father had left in his toiletry bag in the bathroom. The child was taken to the hospital and the mother took the child with her to her parents’ home.
The parties came to the court each looking to change their current parenting time schedule, and each one of them claimed the other had acted inappropriately when parenting. The court was left to determine whether it would hear the recordings they made.
The law around secret recordings
Each of the parents wanted the court to hear cellphone recordings they had made of the other parent. The court stated that the law around whether secret recordings should be admitted. Generally speaking, if the evidence is not hearsay, and it’s relevant, it can be admitted. However, the interests of the public and justice must also be taken into account. The court stated that in family law, the courts have been more reluctant to allow surreptitious recordings of spouses. A 2006 decision stated,
“Surreptitious recording of telephone calls by litigants in family law matters should be strongly discouraged. There is already enough conflict and mistrust in family law cases, without the parties’ worrying about whether the other is secretly taping them. In a constructive family law case, the professionals and the courts work with the family to rebuild trust so that the parties can learn to act together in the best interests of the child. Condoning the secret taping of the other would be destructive to this process.”
The court agreed in this case, stating that allowing surreptitious recordings leaves a wide scope for potential abuse, in part because the reliability of such evidence can be difficult to determine.
Stating that the best way to approach whether to allow such recordings is to determine whether the prejudicial effect of them outweighs their probative value. In this case, the court determine that the recordings, which were about who was responsible for the child consuming the cookie, were not important enough to admit.
At NULaw, our experienced family lawyer can guide you through the process of making post-separation and post-divorce amendments. Contact us online or at 416-481-5604 to book a consultation, discuss your options, and ensure that you and your children are protected in changing circumstances.
One of the more difficult decisions a couple has to make when going through a separation or divorce is usually what happens to the matrimonial home. In some cases, parents may decide to enter into cohabitation agreements, which would see them share possession of the matrimonial home. However, in many cases, the home remains in the exclusive possession of one of the parties or is sold. A recent decision from the Ontario Superior Court of Justice shows that when the party not living in the home wants to sell it on the basis of hardship, they must provide the court with sufficient evidence of said hardship.
Father asks court to sell home
The parties involved were married in 2011 and separated seven years later after having three children. Following the separation, they continued to reside separate and apart in their home. This arrangement lasted until March 20, 2021, when the police were called at the behest of the father regarding an incident between him and the mother from 15 years earlier. Charges are pending against the mother.
Following that incident, the mother gained exclusive possession of the home and is residing there with the parties’ three children.
Child support payments begin when father moves out
After the father moved out, he was required to pay child support. He had been working as a taxi driver prior to the COVID 19 pandemic and his income was imputed at $35,000 per year. Based on his income, his child support payments were set at $718 per month.
The father told the court that the pandemic has had a crippling impact on his employment. He stated that he had a second taxi prior to COVID-19, which he leased to another driver for $300 per month, but the driver has not been able to pay that amount in over a year. The father also returned all of his own taxi equipment to the taxi company, stating he cannot afford to pay them their share and has not worked since April 2021. During that time he has earned $1,800 per month through the Canada Recovery Benefit, of which $1,000 goes towards rent and $718 goes towards child support.
Father asks to sell the matrimonial home
In light of this, the father asked the court to order that the home be sold. He told the court that mortgage payments have not been made on the home since April 2020 and that he is worried the bank will foreclose on it. He also said that the housing market is in a favourable position for selling the home at this time.
The court asked the father about two properties he own in Sri Lanka, but the father claimed he owned them in trust for his own father, and that one of them is his father’s principal residence, and that his father is living off the proceeds of the sale of coconuts on the second property.
Court does not find the father provided enough evidence to warrant sale of home
The court stated it was not prepared to grant the father’s motion for the sale of the matrimonial home. The court cited case law from 1992 and 2020 which state that orders for the sale of the matrimonial home should not be made as a matter of course and that the impact of the sale on the children and the spouse should be taken into account.
The court found that the father had not provided a compelling enough argument to warrant the sale, noting that while he has returned his taxi equipment, he still owns his taxi license. The court was also not satisfied with the lack of evidence provided in relation to the Sri Lanka properties.
If you are contemplating a separation, or have already begun the process, contact NULaw in Toronto as soon as possible. Obtain experienced legal guidance and ensure that you receive a fair division of your property and assets. Contact us online or at 416-481-5604 to book a consultation with family lawyer Lex Arbesman.
One of the best reasons to make sure you have a valid and current will is that it is the best way to ensure that your estate is divided up in a way that you wish following your death. Throughout your life, there may be a number of times when updating your will is necessary. For example, you may want to update your will following marriage, a divorce, the birth of a child, or the death of a spouse. Failing to update your will when circumstances would otherwise warrant doing so can leave your estate divided in a way contrary to your wishes. In a recent decision from the Supreme Court of British Columbia, the family of a deceased woman claimed that a note left behind by her should have reflected a change in her will, which left a substantial gift to a charity.
Will leaves residue of estate to charity
The deceased (“EM”) died in 2017 at the age of 99. Her closest living family members at the time of her death included a niece and three nephews. EM drafted a will in 2013 that left the residue of her estate to the BC Society for the Prevention of Cruelty to Animals (“SPCA”). Some specific gifts were provided to family members.
The most valuable asset owned by EM was her home, which was estimated to be worth $1.4 million in 2013, and was worth about $1.9 million when she passed away. The family found a note written by EM which stated that rather than receiving the full residue of the estate, family members were to receive money from the estate, with the SPCA receiving $100,000.
Was the note enough to change the will?
The family members argued that the note was intended to be representative of the final wishes and intentions of EM. If the note did not hold up as an update to the will, the SPCA stood to receive well over $1 million from the estate.
The note listed the family members in the same order as in the will, and she told some family members that she had left them something in her will. The note was also left in a lockbox next to the will. It would seem that the deceased intended for the note to compliment the will, but can that be enough?
Unfortunately for the surviving family members, the court found a number of problems with the note. The note did not include a title or date. Furthermore, it was not signed by EM or a witness. It was also not notarized. Finally, the note did not specify how much money some beneficiaries were supposed to receive.
Despite there being some reasons to uphold the note, there were too many issues blocking it from being found to be valid. This means that the SPCA will receive about $1.4 million from the estate of the deceased. 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.
As the end of summer approaches the beginning of the school year is on the minds of many. Even without the stresses associated with COVID-19, the start of the school year can bring additional issues to light for separated or divorced parents. In a recent decision from the Ontario Superior Court of Justice, the court had to weigh in on whether a child should attend a French immersion school or a French school when her parents could not agree.
Parents speak different languages and want different schools
The parents were married in September 2006. They had one child together was almost 12 at the time of the trial and was about to start grade 7. The mother, who is bilingual, wanted the daughter to attend a French school, in which all instruction is in French. The father speaks only English, and wanted the child to attend an English language school that offered French immersion, in which instruction is provided in English and French.
Up to this year, the child had been attending a French school, though the family spoke English at home. The father said the parents had a deal in place that the daughter would attend French immersion once she reached grade 7, but whether or not such a deal is in place, it wasn’t something they agreed on.
What is in the best interests of the child?
Like all decisions involving children, the courts are bound by doing what is in the best interests of the child. The court reviewed a 2012 decision from the Ontario Court of Appeal in which the decision stated that the linguistic benefits from a French school are generally preferable when one parent speaks English and the other speaks French. The court agreed that in this case, the value of a French school was a benefit to the child.
Other factors to consider when choosing which school the child should attend
The court then turned to a number of other factors to consider, including the distance of each school to the parents’ homes, religious instruction, and school attributes. The two schools did not differ much in these areas, but there were some factors where one school was a clear benefit over the other. The child’s friends would be attending the French school, but she would not know anyone at the French immersion school. She also has a preference, which is to attend the French school. However, the father says that the French immersion school is the only one that will allow him to participate meaningfully in the child’s education.
In the end, the court was sympathetic to the father’s inability to participate as meaningfully as he wants with the French school, the benefits of the child’s attendance at that school were of greater value, and so the court ordered she attend the French school.
Separation, divorce, and other family disputes are generally stressful and emotional. If you are contemplating a separation or divorce, your best short-term plan is to contact an experienced family lawyer immediately to understand your options, and to formulate a strategy for moving forward. Contact the knowledgeable, effective, and compassionate family lawyer at NULaw online or at 416-481-5604 to book a consultation.
Although child support or spousal support payment amounts are often established soon after a separation or divorce, those amounts aren’t necessarily set in stone. If there is a “material change in circumstances,” the support payor or payee can apply to have support amounts changed. These changes can either increase or decrease the amount of support payable. One of the trickier issues to handle around support is a change in one of the parties’ incomes. A recent decision from the Court of Appeal for Ontario looks at how courts consider these situations.
Father applies to decrease child and spousal support
The matter originated when the father applied to have the amount of child and spousal support he is obligated to pay lowered after he lost his job in July 2017. The minutes of settlement was agreed to in April 2017 and put in place in August 2017. At the time there were agreed to, the father’s income was imputed at $257,312 while the mother’s was set at $48,000. By following the Federal Child Support Guidelines, the court set the amount of spousal support payable by the father at $4,292 per month.
The father’s income came from two sources. He was employed by a company but also had his own business. However, the father lost his job in July 2017 (right in between the agreement being made and being put into force) and he asked the court to adjust his support obligations accordingly.
At the original hearing, the motion judge found that the father had not demonstrated a material change in circumstances since the father actually lost his job before the support order was put in place. Despite losing his job he continued to make significant income from his business and had complete control over how much his business paid him. In fact, the motion judge ordered that his income be imputed at $401,502 annually.
Father appeals motion judge’s decision
The father appealed, stating that the motion judge made a number of errors, particularly that the motion judge should not have found that his change in financial circumstances did not constitute a material change.
The court referred to a recent decision from the Supreme Court of Canada, which established that a where a payor applies to retroactively decrease child support, the onus is on the payor to establish a past material change in circumstances. The court agreed that the father’s loss of income came after the minutes of settlement were agreed to, but despite this, he didn’t actually experience a decrease in income. It would seem that the court is not so much concerned about whether a job is lost, but whether that leads to a reduction in income or not. In this case, the father was able to keep paying himself from his business and at an amount higher than he had originally been making. As a result of this, the court held up the motion judge’s decision, and the father was ordered to pay retroactive support and costs of $14,000 to the mother.
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.