We all have deep-seated fears.  Spiders (my wife).   Heights (me).   Eating meat (my vegan daughter).

There is one deep-seated fear in all newly separated fathers: he will not be an important part of the lives of his children.

I can’t tell you how many times I have heard this worry.  Sometimes it is the very first thing that a client tells me.  Even some of the best and most involved fathers have openly raised this issue as their greatest fear.

So, I am sending out this post not to reassure fathers.  That is like trying to convince someone who is afraid of flying that air travel is statistically safe.  The fear is real, whether realistic or not.

I am sending out this post to the mothers who may be dealing with their first separated Father’s Day.  I have some tips:

  •  Try to find the time to craft a handmade Father’s Day card.  I still keep mine, including the paper necktie!   Your former spouse will know that the kids did not come up with this on their own.  You are sending a very important message that you value his involvement in the life of the children;
  • This may be the first Father’s Day with you in a new relationship.  But the father of your children is worried about being replaced.  A short card or note from you reassuring your former spouse that he will always be their  father will create long-lasting goodwill;
  • If, by any chance, the kids are waking up with their father in a different residence, then have the children face time their father.  The earlier in the morning, the better.
  •   That being said, there is no reason why Father’s Day should not be spent between the children and their father.

These are a couple of tips that I think will help.  But I wasn’t born in La-La Land.   Some of these things may be hard to do, especially if Mother’s Day was not respected.  But we have been told time and time again that nothing is more damaging to children than a less than respectful relationship between mom and dad.  So, bite your tongue, and it may bleed.  But take the step.

If you have questions about child custody and access, or about managing family dynamics following a separation or divorce, call 519-973-1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.

 

In his standard blunt fashion, Justice Pazaratz recently pointed out the shortcomings of the Canadian justice system when it comes to family law disputes involving parents who live in separate provinces.

The Justice made a ruling about a motion that a father had previously brought in Nova Scotia to amend the terms of his child support obligations, a motion which had subsequently come before Justice Pazaratz for confirmation in Ontario. Justice Pazaratz ultimately rejected the Nova Scotia judge’s order, noting that:

There’s an old saying: “Two Heads Are Better Than One”. But not when it comes to trial judges [Justice Pazaratz].

The Facts

The parties were married in August 1979 in Hamilton, Ontario and separated in February 1985. They had two sons, born June 1980 and February 1982. An order granted in March 1985 gave the mother custody of the sons, with the father to pay $600 monthly, per child, with an additional $1400 annually, per child, for tuition.

The father eventually moved to Nova Scotia where, in 1989, he filed a motion to change the custody and support order. The court in that province granted several of the requested changes, including reducing the amount the father was to pay in monthly support and annual tuition during any time that he was unemployed, but increasing the amount during any time he was employed. For any month in which the father wished to pay the lesser amount, he had to submit proof of unemployment. Arrears were fixed at just over $11,000.

In 2013, the father filed for another variation which requested that the child support arrears be fixed at the previous amount based on the fact that both children had ceased to be a “child of the marriage” when they had turned 19 (in 1999 and 2001, respectively). The court granted the variation, relieving the father of almost $125,000 in arrears that had accumulated.

The Nova Scotia order fixing the arrears was only provisional in nature, and had to be brought to an Ontario court for confirmation, rejection, or variation by an Ontario judge. Justice Pazaratz was that Ontario judge.

Interjurisdictional Divorce and Family Disputes

Justice Pazaratz acknowledged the challenges with interjurisdictional disputes in family law, stating:

The Applicant lives in Nova Scotia, so he told his side of the story to a judge in that province. The Respondent lives in Ontario, so now she’s told me her side of the story here in Hamilton. Two judges.  Each hearing different parts of the case.  On different dates, many months apart.  Having to make decisions on the same case. It may sound good on paper. It may even seem like the only practical way to deal with motions to change support, where parties live in different parts of the country and neither can afford to travel. But except in the simplest of cases, it creates an almost impossible task for judges who are: a.   Accustomed to hearing both sides of the story at the same time.  b.  Unaccustomed to wading into the realm of advocacy, by leading or cross-examining the evidence.

The father’s motion sought to change a support order that was made under the Divorce Act. Sections 18 and 19 of that Act permits a bifurcated process in which former spouses that reside in different provinces can file applications for variation of existing orders within the province in which they live. The court in the other relevant province must then confirm, reject, or vary that order.

This two-step process is “intended to relieve the unfairness to a spouse of being deprived of access to a variation because the other spouse is residing in another province”.  However, as noted by Justice Pazaratz, neither of the courts in question hear from both parties at the same time, and:

the court hearing from one party may not know whether there might be evidence contradicting that party’s position. And with no one present to formally cross-examine or challenge evidence at either hearing, the respective judges involved in the process are each placed in the difficult and conflicted position of not only weighing the evidence but also eliciting and testing it.

Attempts to overcome these challenges have been used, such as the use of teleconferences to discuss and clarify additional evidence,  but Justice Pazaratz noted the potential problems with this approach as well, stating that “where significant factual and credibility determinations need to be made, the limitations of the separate-judge/separate-hearing process cannot be overcome by last minute phone calls giving the Applicant an opportunity to shore up his or her case.”

Justice Pazaratz further noted that, despite creating this two-step process, the Act does not provide any guidance on how the court that is supposed to review the first court’s order should reconcile the evidence from two separate hearings.

This two-step process makes credibility determinations difficult, especially since the second judge only has the benefit of potentially interacting with one of the two parties (both parties are not required to be present).  To additionally complicate matters, the second judge has the option of referring the matter back to the first judge to obtain more evidence, which can result in delay and additional impediments.

The Decision

Justice Pazaratz accepted the mother’ evidence that the moratorium on the collection of child support arrears past 1989 had no factual or legal basis. He noted that the Nova Scotia court had not had the advantage of hearing the mother’s evidence, which he had found thorough and credible. He felt that is was unnecessary and inappropriate to refer the matter back to Nova Scotia for further information from the father that would “otherwise shore up his very unconvincing case.”

Justice Pazaratz stated that the bifurcated system had already worked to the father’s advantage, allowing him to ignore his support obligations “for most of the children’s lives”.

He concluded by stating:

The order of [the Nova Scotia judge] dated May 28, 2014 is confirmed only to the extent that the [father’s] obligation to pay child support pursuant to the order of March 23, 1989 terminates in relation to both children effective April 1, 1999.  Prior to that date, for any period that the [father] did not provide proof of unemployment, his support payments shall be in the sum of $700.00 per month. 

The moratorium was lifted, and the arrears were enforceable, with no reduction of arrears prior to April 1999 and no restrictions on enforcement.

Read our other blogs about Justice Pazaratz’s infinitely quotable decisions:

If you have questions about separation, divorce, or any other family law issue, please contact Windsor family lawyer Jason P. Howie, online or at 519-973-1500.

We have previously blogged about costs in family law proceedings. More recently, an Ontario court recently awarded costs of a 15-day trial to a self-represented wife whose husband had legal counsel throughout the proceedings.

What Happened?

The 15-day trial was a result of a dismissal of the husband’s motion to terminate spousal support.  The husband had wanted to stop payment of spousal support to the wife ($2500 per month). She opposed the motion, arguing there had not been a material change in circumstances in the husband’s financial situation and that his net worth had actually improved, not worsened. The husband’s motion was dismissed.

Relying on the fact that she had been successful at trial, the wife sought costs for her full legal fees, including an award of costs that she had previously pay to a lawyer who had previously represented her, as well as costs that she had incurred herself through preparing for and representing herself in the trial. Overall, the total of what she was seeking was just over $18,000.

The husband was willing to pay for some of the costs, but argued that they should, at most, be limited to the 263 the wife claimed for preparation and conduct of the trial at a rate of $18.62 (which is what she would have been making had she remained at her job). The husband objected to paying for the wife’s former counsel.

Costs Principles in Family Law

As we have noted before, costs in family law proceedings are governed, in part, by Rule 24 of the Family Law Rules, which states in Rule 24.1(1), that there is a presumption that a successful party is entitled to the costs of a case.

Rule 24(11) outlines the factors that a court will consider when making a costs award:

 (11) In setting the amount of costs, the court shall consider,

(a)   the importance, complexity or difficulty of the issues;

(b)   the reasonableness or unreasonableness of each party’s behaviour in the case;

(c)   the lawyer’s rates;

(d)   the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;

(e)   expenses properly paid or payable; and

(f)   any other relevant matter.

There is no specific Rule that outlines costs principles in cases involving self-represented parties, such as the wife in this case, but courts have previously provided some guiding principles, most recently in a Superior Court of Justice decision that confirmed that courts will look at factors including:

  • Courts have ordered costs to successful self-represented parties who have not “foregone” work or otherwise making money to do what they would otherwise pay a lawyer to do on their case;
  • The notion that without the option of awarding meaningful costs to self-represented parties, the court’s ability to encourage settlements and discourage “inappropriate behavior” would suffer;
  • Requiring proof of lost income would disqualify certain litigants, such as parents who stay home with children, students, the unemployed, from being able to obtain costs;
  • Most courts base their costs award at least, in part, on the “time spend doing legal work”; however, self-represented litigants do not keep dockets so this calculation can be challenging;
  • Some courts have used the hourly rate of the lawyer for the unsuccessful party as a “measuring stick” to determine appropriate compensation for a self-represented party;
  • Court have considered the quality of the work performed by the self-represented party as a factor in their ultimate decision.

The Court’s Decision

In this case, the court considered several factors in making its costs determination.

Firstly, the court noted that this case was very important to the wife. If the husband had been successful, he would have stopped paying her spousal support after a long-term marriage, which would have had a severe impact on the wife’s income.

Secondly, this was a complex and difficult case for a number of reasons. It involved complicated reviews of financial materials and other facts stemming back years. The husband, who was represented by legal counsel throughout the proceedings, failed to produce relevant information in an organized or timely fashion, which increased the trial time from an original estimate of 3-5 days, to what was ultimately 15 days. In contrast, the self-represented wife did not delay the trial “to any degree of significance”. The case also involved an “extremely complex” interplay of aboriginal law and family law, and required interpretation of the Divorce Act, the Family Law Act, and the Indian Act.

The court recognized and commended the wife for conducting “an organized case and present[ing] it well”. She did her best to outline her position in a clear manner, and “the presentation of her case was very impressive for a non-legally trained self-represented litigant. She did the work of a lawyer in addition to the work expected of her as a litigant.”

The court did note that it would not be appropriate, in the circumstances to award the wife costs for her former legal counsel’s fees. However, the court further noted that it was “obvious” that the wife had spent a great deal of time preparing for this case, and “doing the work that a lawyer normally would do”, ultimately determining that she had spent 263 total hours preparing. This calculation of time included evening hours outside of court time preparing for the next day’s proceedings, time spent preparing during the gaps of time between days of hearing, and additional time spent preparing due to the disclosure issues caused by the husband.

The court concluded that the rate of $34.35 per hour claimed by the wife was “woefully inadequate” considering the nature and quality of the work she did in preparing, which was equivalent to the quality of work of junior counsel or an experienced law clerk. Instead, the court determined that a rate of $100.00 per hour was reasonable and appropriate.

The court additionally allowed the wife an extra 50 hours for legal preparation done before trial, for a total of 313 hours.

After taking into account some minor deductions, the court awarded the wife a total of $30,000.00 in costs, concluding:

Litigants cannot and should not assume that if a party is self-represented that they will not bear the consequences of a significant cost award in the litigation in the appropriate circumstances if they are unsuccessful.

If you have questions about cost consequences in family law cases, including the potential costs consequences to you if your spouse is self-represented at any stage during the proceedings, please contact Windsor family lawyer Jason P. Howieonline or at 519-973-1500.

As we’ve noted in several of our previous blog posts, Justice Pazaratz of the Ontario Superior Court of Justice in Hamilton is well-known amongst family law practitioners for his clear, blunt decisions that can be both critical about the parties that appear before him and send a strong message about how the family law system can be improved. In his recent decision in Abdulaali v. Salih, Justice Pazaratz took on the issue of what he viewed as abuse of the Legal Aid system by two former partners seeking a divorce.

What Happened?

In Justice Pazaratz’s always short and precise words, the couple in question: “…have no children. No jobs. No income. No property. Nothing to divide. It should be a simple case.” The matter was complicated somewhat as, in addition to the divorce, the wife sought a restraining order, which the husband opposed. Both parties were represented by Duty Counsel, provided by Legal Aid Ontario. The wife is 32 years old, arrived in Canada in 2012, has never worked in the country, and receives monthly assistance through ODSP. The husband is 43 years old, has been in Canada since 2010, has never worked in the country, and also receives monthly assistance through ODSP. They met after they both arrived in Canada, married in 2014, and separated five months later. Both parties had filed extensive paperwork in support of their respective positions. This was the second time both had gone through the legal system- the wife had previously filed for divorce and requested a restraining order, an application she subsequently abandoned before applying again in this instance.

“Common Sense has Gone Out the Window”

Justice Pazaratz acknowledged the seriousness of domestic violence in a family law dispute, but noted the significant number of resources that were used in adjudicating this dispute, stating “the next time anyone at Legal Aid Ontario tells you they’re short of money, don’t believe it. It can’t possibly be true. Not if they’re funding cases like this.” Justice Pazaratz went on to outline his frustration with the specific facts at hand pointing out that “common sense ha[s] gone out the window”. The judge was particularly frustrated with the husband’s apparent refusal to agree to any order in writing that would keep the parties away from one another. The wife had even indicated that “it didn’t have to be a formal restraining order. All she wanted was some sort of court order- equally binding on both of them- that they should stay away from one another. Just some protection, to be less afraid.” However, the husband continued to refuse to be cooperative. Justice Pazaratz then pondered whether “…a person who actually had to pay for a lawyer out of their own pocket ever fund this kind of dispute?” He noted “….when you pay no taxes and Legal Aid gives you a free lawyer, there’s no incentive to be sensible. Why worry about the cost when some unsuspecting taxpayer out there is footing the bill?” Ultimately, Justice Pazaratz suggested that the parties and their legal counsel have a discussion without him in order to reach a “sensible solution”, explaining that if they could not, he would contact the Area Director of Legal Aid Ontario to justify the “obscene expenditure of tax money” on what was a “simple case with such an obvious solution.” The parties ultimately came to a written agreement, barring each of them from direct or indirect contact with one another, and prohibiting them from coming within 500m of one another.

Lessons Learned

This matter is a helpful reminder that courts do not look kindly on cases that they view as a “wasteful” use of “scarce judicial resources”, particularly in family law matters. Parties who engage in behavior that prolongs the litigation process and drives up expenses for both sides of the dispute are generally not viewed favourably by courts- regardless of whether Legal Aid is utilized, or if the parties are covering expenses out of pocket. In some cases, extreme or unreasonable behavior by a party can lead to criminal charges. In other cases, prolonged and unnecessary litigation leads to exorbitant legal fees, and may also result in additional costs consequences. In this instance, both parties were new Canadians who may have been unfamiliar with the legal system. The very serious issue of domestic violence (one which Legal Aid tends to prioritize) was also a factor. At the end of the day, however, parties involved in family law disputes should remember that disputes that can be settled with the help of a family lawyer out of court, without using court resources, should be settled as such wherever feasible. If you have questions about separation, divorce, or any other family law issue, please contact Windsor family lawyer Jason P. Howie, online or at 519-973-1500. Read our blogs about Justice Pazaratz’s other decisions:

The Ontario Superior Court of Justice recently imputed a significant income, for support purposes, to a father who had claimed that his parents had been funding much of his expensive lifestyle.

The Facts

The parties were married for 23 years and have three children. They are both lawyers, lived in an expensive neighbourhood in Toronto, had a chalet in Collingwood, and all three children attended private school.

According to Justice Harvison Young:

there is no dispute that these parties lived “a million dollar lifestyle” during their lengthy marriage, however, the question that [must be determined] is whether the parties’ lifestyle was funded by the husband and whether he had the means, then or now, to support it.

The husband practiced law until 1997, after which he had a series of business ventures. In 2016 he returned to the practice of law, and started a new firm specializing in real estate.

In addition to employment income, he received rental income from a commercial property that he owned, in part, along with his parents and sister. The building was sold in 2015 for $8.9 million.

Further to these two income streams, the husband also received substantial support from his parents.

The parties sold their matrimonial home in April 2015 and divided the net proceeds. The wife entered into a one-year lease with the purchaser and continued to live in the home with the children. The husband agreed to pay half of the $11,500 monthly rent. He also leased a home for himself on the same street and was paying $12,000 in rent, monthly.

The Wife’s Position

The wife claimed that the husband had been the sole breadwinner during their relationship. She had not worked since 1999, when she began to have children and stayed home as their primary caregiver.  While the husband had gone through periods of unemployment, their lifestyle and spending never fluctuated.

She sought interim child and spousal support based on the husband’s reported 2015 income ($1,800,000).

In the alternative, she sought support based on income that could be imputed to him based on his budget, lifestyle, and continued support from his parents.

In the further alternative, she sought support based on the needs of herself and her children, which would infer an income of approximately $1,200,000.

She argued that the husband’s lavish lifestyle, both during their marriage, and after its breakdown demonstrates that he was either misrepresenting his income, or he was intentionally under-employed and living off gifts from his parents. Additionally, the money he was receiving from his parents are not “loans”, contrary to his assertion.

The Husband’s Position

The husband argued that calculating support based on his 2015 income would be unfair because his income that year had been exceptional as it included a one-time capital gain from the sale of the commercial property he co-owned with his family, and was, therefore, not a true reflection of his financial circumstances. Rather, the support calculation should be based on a yearly income of $275,000.

The husband claimed that during the marriage the family lived, and then continued to live, beyond its means. In addition, the family was only able to maintain its lifestyle due to a series of loans from his parents, but that his parents were no longer willing to continue to provide such loans. He was careful to classify the money received from his parents as loans not gifts, and also claimed that he therefore owed them a great deal of money.

Should the Parental Support be Considered as Part of the Husband’s Income?

Justice Harvison Young reviewed the law on whether gifts should be included in determining income. The Court of Appeal had laid out some factors to consider when making such a determination:

  • The regularity of the gifts;
  • How long the gifts had been received for;
  • Whether the gifts were part of a family’s income during cohabitation and created a certain lifestyle;
  • The circumstances of the gifts;
  • Whether the gifts do more than provide a basic standard of living;
  • The income generated by the gifts in relation to the payor’s entire income;
  • Whether the gifts are given to support an adult child through a period of disability or other crisis;
  • Whether the gifts are likely to continue; and
  • The true purpose/nature of the gifts.

In this case, Justice Harvison Young found that the flow of funds from the husband’s parents to the family had been regular and continued throughout their relationship. It had always included the entire tuition of the three children at their private school (approximately $80,000 total, annually). In addition to the significant amount to cover tuition, the amounts had been “very substantial” and done more than provide a basic standard of living. The gifts allowed the family to live in one of the most expensive neighbourhoods in Toronto in an expensive home, allowed both parents to drive new and expensive vehicles, to travel extensively, and for all three children to participate in competitive skiing. Overall,

Given that the advances continued throughout the marriage and, on [the husband’s] own evidence, continue to bridge the gap between his $682,000 in annual expenses and his $250,000 annual income, it is impossible to conclude that the amounts did not form a major, integral, and essential part of the family’s income and have continued to do so for [the husband].

The Judge did not accept the husband’s assertion that the money that had been advanced to him during and after the marriage were loans rather than gifts. Firstly, there was no documentary evidence suggesting the money had been loans not gifts.

It is the absence of documentation on [the husband’s] part (particularly in relation to the monies advanced by his family before and after separation as discussed above) that make such determinations difficult at this time. It would not be fair pursuant to the Guidelines to ignore a source of income for the family that has clearly contributed very materially to their lifestyle throughout their marriage.   

The Judge concluded that there had been no expectation that the money the husband’s parents had given him was intended to be repaid, or that the flow of the funds had stopped or changed in character.

Furthermore, the Judge noted the inconsistencies in the husband’s assertions. On one hand he had argued that his parents were no longer willing to provide him with money to support the family. On the other hand, he had argued that their funds had bridged the large gap between his annual expenses and his income. The Judge noted that:

I do not accept that an educated and sophisticated professional such as [the husband] would make the choices he is still making in terms of his lifestyle if his income for support purposes was as little as he claims, or  that every amount advanced from his parents had to be repaid.

The Judge ultimately concluded that the money that the husband had received from his parents could be considered in determining his income for support purposes.

The husband’s income was imputed at $1,200,000.

Based on that income, support obligations were calculated as follows:

  • Monthly interim child support in the amount of $17,731 for all three children;
  • Monthly interim spousal support in the amount of $9,376.

If you have questions about support obligations following a separation or divorce, speak with experienced Windsor family law lawyer, Jason P. Howie, at 519-973-1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.

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