In a decision reminiscent of those written by Justice Pazaratz here in Ontario, Master Muir of the B.C. Supreme Court recently decried what should have been a straightforward matter that ended up being exceptionally prolonged.

What Happened?

The parties in question began living together in 2009 and were married in 2011. They had two children before separating in September 2016. Following the separation, they continued to live under the same roof for six weeks.

In October 2016, the mother left the home with the children without informing the father, following which the father did not see the children for several weeks. As a result, the father requested imputation of income and filed motions for interim child and spousal support and an order that the matrimonial home be listed for sale.

By the time the matter got to court, the mother was living in the matrimonial home and the parties had approximately equal parenting time.

Imputation of Income

The father asserted that various admissions, expenses, and evidence of cash receipts together pointed to a higher income than the mother declared to the CRA. He brought a huge amount of affidavit material to court to convince the Master that the mother earned or was earning substantial money through illegal means.

Conversely, the mother also brought a huge amount of evidence intended to bolster her credibility and convince the Master that she was not involved in any illegal activities.

Master Muir noted:

This application, which would normally be a relatively straight forward matter, required more than a day-and-a-half of court time over three separate hearings. That there is an unhealthy and abusive climate to this litigation is highlighted by the fact that the parties presented more than two boxes of materials containing perhaps 160 affidavits and that there have been 26 affidavits filed by the respondent and 15 by the claimant.

… This approach to family issues is counter to the fundamental basis of our present family system which encourages negotiation, not litigation. This is not supposed to be a war. It is supposed to be a civilized allocation of rights, responsibilities, and assets following a family break-up. This type of litigation is unnecessary, it is damaging to the parties and to the children, and it wastes family assets on litigation costs. I ask that counsel convey those sentiments to their clients in the hope that this can be reined in and the parties can refocus on resolving this in some other way.

The Master went on to note that most of the significant assets that the couple had divested themselves of following their separation (almost $700,000) had been used to fund the litigation.

In addition, with respect to the income earning potential of both parties, the Master stated:

The continued depletion of the parties’ capital is not in anyone’s best interests. The fact is that both parties are capable of working and experienced in fields that should allow decent opportunities for income-earning activities. The children will both be in school this year. The [father] appears to have a closely-knit family and community. I see no reason why he cannot arrange afterschool care for the children on his parenting time. There is no reason that both parties cannot be working full-time. It is obviously in the children’s best interests for their lives to be normalized and for them to be properly supported by parents who are working to that end and not depleting family assets for day-to-day support.

Income in the amount of $95,000 was imputed to the husband and $25,000 to the wife. Child support was ordered with a set-off to account for the equal parenting time shared by the parents, and the wife was awarded spousal support in the mid-range of the Guidelines. The application for the sale of the matrimonial home was dismissed.

For questions that only a family law lawyer can answer, contact Windsor family lawyer Jason P. Howie, at 519-800-1039 or contact us online.  Jason has been a fixture of the family law community of Windsor and Essex County for over 25 years, and, many prospective clients come to the firm through referrals.

A man in British Columbia who provided “misleading information about his income” when he separated from his wife has been ordered to pay more than $500,000 in retroactive child support.

What Happened?

The parties were married in 1994 and separated in 2001. They had two children together.

The wife signed the Separation Agreement in August 2003, after obtaining independent legal advice. The child support provision in the Agreement provided that the parties agreed that the husband’s income was just over $90,000 and that he would pay the wife $1,128 in monthly child support, plus an additional almost $500 for transportation costs. The wife is a teacher’s aide making approximately $28,000 annually.

The Agreement did not provide for any future exchange of financial information or for variation of child support. There had been no financial disclosure between the parties either before, during, or after the signing of the Agreement. The wife claims that she was never advised by her counsel that the Agreement should have included a term requiring the husband to disclose his income annually. It had been her misunderstanding that the amount of child support was settled and could not be changed.

The wife continued to receive the same amount of child support until February 2015, at which point the older of the two children turned 19 and the husband arbitrarily reduced the amount of child support to $800. The wife made numerous requests to return to the original amount of support, but the husband did not respond.

The wife claims that she retained new counsel in 2015 and learned, for the first time, that the husband had an obligation to disclose his financial circumstances annually, and to adjust the child support accordingly. She claims that she sent the husband emails and text messages explaining this, but received no response.

The wife sought a variation of child support in 2016. She learned that the husband had sold a business for $4 million in 2010, which netted him $1.25 million that year, followed by payments of $250,000 annually between 2011 and 2020. That same year, his reported income on his tax return was more than $770,000.

Retroactive Child Support

Under the Federal Child Support Guidelines, the payor parent has an ongoing obligation to provide financial disclosure. Any increase in income that would affect the amount payable by the payor parent is considered a material change in circumstances and must be reported.

The leading case on retroactive child support is the Supreme Court’s decision in D.B.S. v. S.R.G. In that case, the Supreme Court emphasized the crucial obligation that children are owed by their parents, the legal responsibility of parents to support their children in a way that is commensurate to their income, and the right of children to increased child support payments where parental income increases. The Supreme Court further noted that a parent will not have fulfilled their obligation to their children where they did not increase child support when their income increased significantly.

The test for determining whether awarding retroactive child support is appropriate takes into consideration:

  • whether there was a reasonable excuse for the recipient parent failing to make an earlier request for support;
  • the conduct of the payor parent;
  • the circumstances of the children; and
  • any hardship stemming from a retroactive award.

The Decision

In this case, Justice Young found that there was a reasonable excuse for the wife failing to make an earlier request for additional support as she was under the mistaken impression that the amount of child support was fixed and could not be varied. She had not been aware of the husband’s obligation to provide ongoing disclosure.

Furthermore, Justice Young found that the husband was:

…guilty of blameworthy conduct in the extreme. He provided misleading information about what his income was at the time the Separation Agreement was entered into in 2003 and he never corrected that misinformation. His income has always been dramatically higher than that which he disclosed in the Separation Agreement.

In addition, the children in this case had gone without support from the husband for many years, and the wife struggled to support them, even going into debt to do so. The family had to move in 2015 after the husband’s unilateral decrease in the support that was already too low.

Lastly, Justice Young found that the husband had been very successful financially and would not suffer financial hardship if he were ordered to pay retroactive child support dating back to 2002.

Justice Young found that the husband owed child support arrears from 2002 to 2017 totalling $522,408.24, and ordered him to pay that amount immediately. He further ordered ongoing payments of $1,041 per month for as long as the children continued to be in post-secondary education.

If you have questions about child support in Ontario, including retroactive child support, contact the offices of Jason P. Howie at 519-973-1500 or online. Many of our clients are referred to us by former and current clients, and also by lawyers, counsellors, and other professionals.

It may come to a surprise to clients involved in divorce proceedings that the records are generally publicly available. Divorce files are usually filed in the courthouse where the divorce proceedings took place. The record may include the petition for divorce, any affidavits, and the divorce order. In some cases, the record will also include transcripts of examinations, documents pertaining to child custody, and copies of marriage certificates. These can be publicly accessed.

Divorce matters are usually filed in the courthouse where the divorce proceedings took place. The record may include the petition for divorce, any affidavits, and the divorce order. In some cases, the record housed in that courthouse will also include transcripts of examinations, documents pertaining to child custody, and copies of marriage certificates. These can be publicly accessed.

High Profile Divorces and Privacy

In light of this, situations can arise in which individuals want to seal their records to prevent public access.

Recently, Governor General-designate Julie Payette made the news when she sought to keep the details of her U.S. divorce private after learning that a group of Canadian media organizations was intending to report on her family law matters.

Payette’s divorce involves two separate cases in a Maryland court – one filed by her ex-husband requesting a separation, which was later abandoned, and one filed by Payette for an absolute divorce (filed in 2013 and granted in 2015). Records of these proceedings had been publicly available since 2013, until they were recently ordered sealed.

Following the announcement of her appointment as Governor General on July 13, Payette filed emergency motions with Maryland’s Court of Special Appeals to keep the files sealed while she appealed a decision to make them public. Payette argued that she did not want her family to revisit the “difficult moments” they had gone through, and wanted to preserve their privacy:

As a mother, I need to be mindful of the impact on my family. Very few families are immune from difficult moments in life — mine included. Divorces are about fractured relationships and often, a sad parting of ways. This is particularly difficult when children are involved, thus the importance of protecting the ones we love and care about.

Last Friday, a Maryland judge granted Payette’s request to keep the files sealed until at least November, when the appeal hearing is scheduled.

Since then, Payette’s lawyers filed a further notice asking the court to dismiss the request for an appeal, and to unseal the documents. Payette has told CBC news that she changed her mind “for reasons of transparency and to leave no doubt.”

Divorce Proceedings

Payette’s divorce proceedings have lasted four years and played out in two jurisdictions. In May 2013, her ex-husband filed for legal separation in Maryland. In June of that year, Payette filed a separate case for an absolute divorce in the same Maryland court.

The Maryland court granted Payette an absolute divorce in April 2015, the case has continued. This past June, the court dismissed a motion from Payette for salary to be withheld for child support purposes.

Current Governor General David Johnston’s term expires in September, and Payette is expected to begin her role in early October.

If you have questions about family law matters, contact knowledgeable Windsor family lawyer Jason P. Howie at call 519-973-1500 or online. We have significant experience advising clients on separation, divorce, and related issues. Many of our clients are referred to us by former and current clients, as well as by lawyers, accountants and other professionals.

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.

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