BACKGROUND

The parties were in a common law relationship for seven years, which ended in 2009. They have children, aged 8 and 5.
Pursuant to a consent order made in August 2010, the mother had custody of the children with reasonable access to the father on reasonable notice. The order further stipulated that the father would pay child support to the mother in the amount of $320 per month, based on his 2009 income of $20,988.76. The mother is a student, with student loans as her sole source of income.

In November 2010, the father received a settlement of $175,000 USD on account of his claim against a production company for copyright infringement.

In June 2011, the mother brought a motion to change child support. Specifically, she sought an increase in child support to reflect the additional money received by the father under his settlement.

ANALYSIS

At the outset of its analysis, the court reviewed the objectives of the Child Support Guidelines and the definition, determination and calculation of income as stated thereunder.

Pursuant to section 16 of the Guidelines, the court explained that the starting point for calculating a party’s income is their T1 General income tax return for the applicable year. However, in this case, the father did not include the settlement funds in his income for 2010.

In determining how the settlement funds should then be treated, the court turned to a review of the Supreme Court of Canada’s decision in Tsiaprailis v. R. In that case, the court identified the following questions as determinative in deciding whether income received by a payor of child support should be treated as income for the purpose of calculating the child support obligation:

• What was the payment intended to replace?
• Would the replaced amount have been taxable in the recipient’s hands?

In this case, the court accepted the mother’s argument that the payment resembles royalties or profits that would have been paid to the father notwithstanding the copyright infringement. As these royalties or profits would otherwise have been taxable to the father for the publication, performance or licensing of the father’s original work, the court held that the settlement must be included in the calculation of the father’s 2010 income under the Child Support Guidelines.

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BACKGROUND

The Applicant husband was 56 years old and working for the Ministry of Transportation, where he earned approximately $100,000 per year. He resigned from this position and began collecting a pension in March 2012, attributing his decision to retire to his poor health.

Thereafter, he sought an order varying a divorce order which provided that he was to pay spousal support of $2,200 per month to the Respondent wife, aged 62, for an indeterminate period. More particularly, the Applicant sought a reduction of his spousal support obligation and to set a termination date for when his payments would conclude.

At the time of trial, the Respondent was unemployed and had not worked since she was laid off almost seven years earlier. She claimed to be unable to work due to her obligation to care for her elderly parents.

ANALYSIS

At the outset of its analysis, the court reviewed the law on voluntary retirement, emphasizing that the inquiry in each case must be fact-driven.

The Applicant testified that he did not intend to retire before age 55 or any later than age 65, but was required to do so due to his health problems. However, he did not put forth any medical evidence to support this assertion.

Absent such evidence, the court was not satisfied that the Applicant’s decision to retire was not just a voluntary one as opposed to one that was medically necessary and recommended.

Moreover, the court reasoned that as the Applicant knew that his unilateral retirement would significantly impact the Respondent, he had a duty to provide evidence that his decision was made in good faith and on appropriate grounds.

Having regard to the foregoing, the court dismissed the Applicant’s case.

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BACKGROUND

The parties were married in 2003 and separated in 2008. The father was Peruvian and the mother was Canadian. They had one child, a daughter aged 6.

Both prior to and post-separation, the mother alleged violence by the father, which was witnessed by the child on two occasions.

Upon separation, the parties commenced litigation in Peru relating to custody and access to the child. Thereafter, the mother brought the child to Ontario under an order permitting her to travel to Canada for a visit. The order required the mother to return to Peru.

Once in Canada, the mother refused to return to Peru. The father brought an application under the Hague Convention seeking the child’s return.

At trial, the mother argued that the child should not be required to return to Peru since there was a grave risk that her return would expose the child to harm under Article 13(b) of the Hague Convention. The father denied the mother’s claims in this regard.

The trial judge dismissed the father’s application for the child’s return to Peru on the grounds that the mother had made a case for grave harm under Article 13(b) of the Convention. The court ordered that the mother could proceed in Ontario with her claim for custody and access.

The father appealed this decision.

ANALYSIS

The Court of Appeal began its analysis by setting out the purpose of the Hague Convention, of which Canada and Peru are both signatories. Specifically, the court explained that the underlying purpose of the Convention is to protect children from the harmful effects of their wrongful removal and to create procedures to facilitate their safe and speedy return to the place where they are habitually resident.

Once a child has been deemed to have been wrongfully removed under the terms of the Convention, Article 12 requires that the child be returned “forthwith”.

However, there are some exceptions to this requirement, including Article 13(b), which prevents the return of a child to a situation where they may be exposed to a grave risk of harm.

In reviewing the trial judge’s findings, the court found that the evidence in the case easily supported the findings of fact made by the judge, as well as his conclusion that the child’s return would pose a grave risk of harm to her, or place her in an intolerable situation.

Specifically, the court found compelling that the father and his family had threatened the mother with death and violence, that the father had used physical force against the mother as reported in a legal medical certificate, and that a court psychologist found that the child had been affected by the violence in the family unit.

As a result, the court found no reason to interfere with the trial judge’s findings and dismissed the father’s appeal.

BACKGROUND

The parties were married on September 29, 1990 and separated on May 15, 2009. There were two children of the marriage, aged 12 and 19.

In August 2009, the wife commenced an Application. In September 2010, the parties consented to an order referring all issues to mediation/arbitration. The Mediation/Arbitration Agreement signed by the parties provided that if the matter should proceed to arbitration, the Arbitrator would determine the procedure in consultation with the parties’ counsel.

Thereafter, the parties attended several mediation sessions which resolved the issue of parenting. However, they were unable to come to an agreement with respect to child support, spousal support and equalization of net family property.

The arbitrator proposed, and the parties agreed, to proceed by way of arbitration through final offer selection. Under this process, each party submits an offer and the decision maker selects one of the offers.

The parties delivered their respective offers in the fall of 2011. In November 2011, the Arbitrator invited the parties to consider a modified form of final offer selection by allowing him to choose different aspects of each party’s offer to fashion a result that would be different from each of their offers. They declined the Arbitrator’s proposal, and the Arbitrator ultimately chose the wife’s offer.

The husband appealed this decision.

ANALYSIS

In large part, the husband’s appeal rested on a challenge to the use of final offer selection as a method of dispute resolution in family matters.

In its dismissal of the husband’s appeal, the court disagreed and upheld the arbitrator’s actions. Specifically, the court stated that family law arbitrations are not required to mirror the court process, and that the arbitration process was specifically chosen by the parties for its efficiency and cost.

In addition, the court reasoned that there was no evidence of unfairness, inequality of bargaining power or duress, as each party was represented by legal counsel.

Finally, the court held that the reasons provided by the arbitrator following the final selection offer process were sufficient, as the Arbitrator provided an explanation as to why he reached his decision.

Having regard to the foregoing, the court could not find that the arbitration process employed was contrary to law or that the Arbitrator committed an error of law.

The court dismissed the husband’s appeal.

The motion, W. (K.S.) v. W. (S.), was about whether the youngest of two children could have private counsel appointed.

The motion was brought by the father who wanted a change in custody, access and the residential arrangements for the children ages 18, 15 and 12. This motion was also brought due to the mother’s intentions to move to Los Angeles.

The Office of the Children’s Lawyer refused to become involved due to timing issues. The mother sought an order to appoint a private lawyer for the children. The mother’s motion was persistently opposed by the father.

Analysis

The court began its analysis by first considering section 64 of the Children’s Law Reform Act which states that where possible the court shall take into consideration the views and preferences of the child.

Furthermore, Rule 4(7) of the Family Law Rules states that a court may authorize a lawyer to represent a child. As such, the court had jurisdiction to make an order to appoint a lawyer to the children, and in the end a lawyer was appointed to each of the younger two children.

The court was of the opinion that the issue was really about allowing the children to express their views with regard to the move. It was held that:

“because of the narrow focus of the role of lawyers in this case, I note by way of instructions to the lawyers that I am not expecting them to evaluate the capacity of Daniel and Hannah to retain and instruct counsel because that is not what either child is doing. Appointed counsel is not expected to advocate as particular outcome based on instructions from the child. Appointed counsel is expected to advise the court as to the child’s views and preferences in accordance with s. 64 of the Children’s Law Reform Act. A formal evaluation of capacity is not required.”

It is interesting that the court decided to appoint a lawyer for each child instead of appointing a psychologist or therapist to act in the capacity of the Office of the Children’s Lawyer, as the role of a lawyer in this position is somewhat confusing. The acumen of a therapist or psychologist is probably more appropriate.

In Chaudry, the Superior Court conducted a thorough review of the conflicting interests at play, where one party requests the interim sale of the home. This case also focused on setting aside an administrative order for dismissal, however, this analysis focused on the sale of the home, as that is a common issue that arises in divorce and separation.

Background

The parties were divorced in June 2008, and were eight years apart on what they believed to be the date of separation.

In June 2011, the Respondent husband brought a motion requesting the court to order the interim sale of the former matrimonial home, which both parties were registered owners of. The outstanding issues were equalization, the date of separation and support.

The Applicant wife was residing in the home with the parties’ 33-year-old son, who was diagnosed with schizophrenia-undifferentiated. The Applicant contested the Respondent’s motion, asserting that due to their son’s condition, it was best that she remain in the home with him. The Applicant’s position was that the issue should be dealt with at trial, as her claims for retroactive support, and an equalization payment, would off-set the Respondent’s entitlement to any proceeds from the sale of the home.

The Respondent, 68 years of age at the time of the motion, asserted that he required the interim sale of the home as the proceeds would assist him in making retirement related arrangements.

Analysis

The court looked to relevant case law, which outlines that prior to trial, the court has the jurisdiction to order the sale of the home. The court must however, consider whether the resisting party (often the party still residing in the home), has any competing interests which fall within the scope of the Family Law Act. Case law makes clear that the absence of such a competing interest results in granting the order for the interim sale.

The court will also look to the availability of a trial within a short period of time. This requirement establishes that even without reviewing the basis for the claimant’s request for the sale, the court acknowledges the claimant’s interest in having the matter heard and dealt with in a timely manner.

Relevant case law also stipulates that an order for the sale of jointly owned property, shall not be made in advance of trial, where there is a substantial right to be tried that is connected to the property.

A noteworthy issue in Chaudry is the Applicant’s failure to provide disclosure. Notwithstanding this fact, the Respondent conceded that an equalization payment would be payable by him, regardless of the correct date of separation. The issue of equalization was therefore restricted to the amount of the equalization payment, rather than entitlement to same.  Based on this fact, the court made clear that for the Applicant to obtain an order to receive the Respondent’s interest in the home, she would have to show that the amount of equalization owing to her was equal to or greater than the Respondent’s equity in the home.

In Chaudry, the court recognized that the Applicant had to establish a prima facie basis that dealing with the sale at trial would allow her to seek a legal remedy connected to the property. Based on her asserted claims, she would essentially have to show how the delay of the sale until trial, was necessary to determine the amount of equalization owing and support arrears she claimed to be owing.

In addressing the Applicant’s claims as outlined above, the court took into consideration that the Respondent had paid approximately $2,200.00 to $2,500.00 per month towards household expenses without any tax deductions. The court also acknowledged that the parties’ disabled son was in receipt of ODSP, which would minimize any support requirements. Furthermore, the Applicant had not established that she would be entitled to all of the Respondent’s equity in the home, and even more so how she could compensate the Respondent, if need be, once the equalization payment is determined. She also failed to show how she could carry all the household expenses and the mortgage, if the Respondent’s interest in the home was transferred to her.

An important point made by the court was such that joint owners do not have a right to purchase a property from the other owner. Therefore the Applicant was held to a prima facie proof of her claims to justify the matter being postponed to trial.

Based on the foregoing the court ordered the interim sale of the home, as there was no prima facie case that the Applicant had a legal remedy to be dealt with at trial, which was determinative on the property.

Conclusion

This case provides an incredible insight into the difficult analysis involved, when looking at competing interests as they relate to the interim sale of the home.  This case shows that an interim sale is anything but a matter of right, but nonetheless will be called for where there are insufficient grounds to postpone the issue to trial.

This case canvasses the issue of non-lawyer representation for litigants in family law matters.

BACKGROUND

The parties were divorced in 2011, via a comprehensive court Order that also addressed custody and access, child support, spousal support and property division.

In 2012, the Applicant Mother brought an application to change the support obligations under the said Order. In particular, the Applicant Mother alleged non-disclosure by the Respondent Father of his income information prior to and after the making of the Order, as well as alleged failure by the Respondent Father to contribute to the children’s special or extraordinary expenses.

Since making her Application, the Applicant Mother has brought other motions for documentary disclosure, wherein she repeatedly asked the court for permission for her boyfriend, Mr. Taylor, to represent her in relation to her family law dispute pursuant to Rule 4(1)(c) of the Family Law Rules.

Among several objections to the representation request made by the Applicant Mother, the Respondent Father cited the following:

• The Applicant Mother had previously been represented by lawyers in her legal disputes with the Respondent Father;
• The Applicant Mother had ample financial means to retain counsel;
• The Applicant Mother was well educated and able to represent herself if necessary;
• Mr. Taylor was the Applicant Mother’s live-in boyfriend;
• Mr. Taylor’s relationship with the Applicant Mother dated back to the time of the parties’ divorce proceedings, making him a potential witness with evidence relating to the matter;
• Mr. Taylor had no experience or training to conduct a case in court;
• Mr. Taylor had a history of open hostility toward the Respondent.

ANALYSIS

At the outset of its analysis, the court examined Rule 4(1)(c) of the Family Law Rules, which states:

“A party may be represented by a person who is not a lawyer, but only if the court gives permission in advance”.

In canvassing the relevant case law on the issue of non-lawyer representation the court articulated a number of general principles that should be considered by courts in decided whether to grant permission to a litigant in this regard.

Specifically, the court underscored that its discretion to permit non-lawyers to represent parties is very limited, and would constitute an exemption to s. 50(1) of the Law Society Act, which prohibits non-lawyers from appearing in court to represent parties.

Moreover, the court explained that the Rule must be interpreted narrowly, such that it should only be implemented in limited circumstances.

Under what circumstances, if any, does a spouse “own” on the date of marriage an entitlement to a severance payment that he or she later receives?

BACKGROUND

The parties were married in 1998 and separated in 2007. Prior to separation, the husband was terminated from his employment and was paid 18 months’ salary in lieu of notice and eight weeks of severance pay under the Employment Standards Act. It is the treatment by the court of this latter payment that forms the basis of the appeal.

Specifically, the trial judge held that since the severance payment had fully accrued before the date of marriage, it was a property interest held by the husband as of that date for the purposes of calculating his Net Family Property.

The wife appealed the trial judge’s decision.

ANALYSIS

To determine the treatment of the severance payment under family law, the Court of Appeal set out to answer three fundamental questions:

1. What is property?
2. What property is subject to deferred sharing?
3. On which date is property to be valued?

In formulating its answers, the court canvassed case law and scholarly work on these issues, articulating a number of principles along the way. For example, the court stipulated that the meaning of property under the Family Law Act must be guided by general property principles.

On this point, the court took special pains to emphasize that while property evades easy characterization, it is useful to think of it as a right over something that is enforceable against others. This said, the court clarified that property under the Family Law Act should not be read as including every interest, particularly those bearing no relation to the marriage.

Having reasoned in this manner, the court examined jurisprudence specific to the treatment of severance payments, and held that courts in Ontario have consistently held that entitlement to severance pay is only property once it has crystallized.

Moreover, the court stated that in order for a severance package to be considered property at the date of separation or date of separation, there must be a right or entitlement to it at that date.

Having regard to the particular facts of the case, the court reasoned that until the husband was terminated, he had no right or entitlement to severance. As such, the trial judge erred in concluding that the husband’s accumulated severance under the Employment Standards Act as of the date of marriage was property owned by him at that time.

Finally, the court explained that to permit the retroactive reclassification of property would inject uncertainty into court proceedings and potentially increase the consumption of time, money and energy involved in the resolution of family law disputes.

On this basis, the appeal was allowed in part.

Michael Shannon is living many parents’ worst nightmare. For 12, years Shannon has been separated from his two sons, one of whom he has sole custody of and the other which could not be removed from the state of Maryland without his consent. The children were abducted by their mother, Nermeen Khalifa, Shannon’s ex-wife who is an Egyptian citizen.

Many parents presume that they are protected from the other parent crossing the border with minor children, without their consent or court Order. Generally speaking, this should be the case. This matter, however, provides an insight into the extra precautions that should be taken by the custodial parent, as there are loopholes in the system which Shannon had to discover the hard way.

Background

As reported by CNN, 12 years ago, Khalifa asked Shannon if she could take the children to New York, from Maryland, to visit some of her family. Shannon reluctantly agreed. He was prudent enough to retain the children’s passports in his possession.

Sunday evening, the time at which Khalifa was to return with the children, came and went. Phone calls to the New York residence at which the parties’ were to be visiting, went unanswered and unreturned. Frantically, Shannon drove to New York, only to find the house empty of people and belongings.

As it turns out, Khalifa had fled to Egypt in what was alleged to be a well thought out plan.

At that time, one parent was able to apply for a new passport, regardless of custody, which Khalifa did, assumingly knowing that Shannon would not relinquish their passports or allow her to travel out of country.

For the past 12 years, Egypt has refused to Order the return of the children, and the US has no jurisdiction to enter the country and physically remove them, or demand their return.

The Law

The Hague Convention is an international treaty which provides protection to ensure that children are returned from where they were wrongfully removed. The issue with international law, however, is that countries elect to be bound by the treaties—or not.

As it so happens, Egypt is not a member of the Hague Convention, and thus Shannon cannot rely on the convention’s protection to return his sons.

As the only law that could bind the countries is non-applicable, it is essentially Egypt’s view against the US. And since Egypt actually has the children in its jurisdiction, for the time being, their view trumps.

Conclusion

Although this is an American case, it has important implications and warning signs for parents worldwide. Parents need to be aware of the potential risks when the other parent has the desire and potential, for whatever reason, to flee to another country.

Parents should take care to retain passports, as in Canada both parent’s consent is required to obtain or re-new a passport, unless there is a court Order specifically stating the contrary.

Furthermore, if another parent is a citizen of another country or has family in another country, it may be prudent to research whether that country is party to the Hague Convention, and determine what protection, if any, will be afforded should something go wrong.

Regardless of custody, and unless there is a court Order denying access, an access parent has certain interests that would be prejudiced by the other parent taking a child out of country. Access may go from being easily exercised, to almost impossible to exercise. Therefore, non-custodial parents should be advised that they still have a say in the matter, in so far as their ability to have meaningful access is concerned.

This is a scary, but important topic to keep in mind. Parents can protect themselves by being proactive, and in certain circumstances, considering worst possible scenarios, so that appropriate terms can be incorporated into court Orders to ensure they have proper protection and relief in the event of breach.

In the case Hazelwood v. Hazelwood, the mother appealed to the Superior Court of Justice from an order made in the Ontario Court of Justice where she was ordered to return the children of the marriage to Timmins, Ontario, or else turn them over to the care of their father.

Background

The parties married in December 2005 and had two sons, the first born in April 2005 and the other in January 2007. In October 2007, the parties moved from Toronto to Timmins. The parties eventually separated in July 2011.

In October of 2011, the mother initiated proceedings seeking among other things: sole custody, child and spousal support, and interestingly enough, an Order that the father “not remove the children out of the District of Cochrane, Ontario” without her written consent.

In March 2012, the Mother brought a motion (which eventually did not go forward) allowing her to relocate to Toronto with the children.  Prior to any Motion taking place, the mother left Timmins with the children and moved them to Toronto.

Shortly thereafter, the father brought his own motion seeking the return of the boys to the District of Cochrane, and temporary care and custody of the children.

The judge, who heard both parties’ motions simultaneously, ordered that the children be returned to the Timmins area on or before June 1, 2012. The mother then appealed.

Appeal

During the appeal, J. Gauthier reviewed the principles of case law including the principles illustrated by J. Marshman in Plumley v. Plumley stating:

1. A court will be more reluctant to upset the status quo on an interim basis and permit the move when there is a genuine issue for trial.
2. There can be compelling circumstance that might dictate that a judge ought to allow the move. For example, the move may result in a financial benefit to the family unit, which will be lost if the matter awaits a trial or the best interests of children might dictate that they commence school at a new location.
3. Although there may be a genuine issue for trial, the move may be permitted on an interim basis if there is a strong probability that the custodial parent’s position will prevail at trial.

J. Gauthier also quoted J.Nelson in Serafin v. Serafin:

Thus, although it is open to the court to permit the move on a temporary basis, there needs to be cogent evidence to establish that the move is in the child’s best interest; that the determination of the issue cannot wait for trial; and that Ms. Serafin would likely be successful at trial.

The mother in the case at hand tried to argue that the children had already established a new routine in Toronto and therefore they should not be disturbed by having to return to Timmins. However, neither the motions court judge nor the appeal judge were swayed by this argument.

Although the outcome of this case is not unexpected, it is an imperative reminder that the courts will almost always order a return of the children to their home pending trial when there is a real and substantial issue to be tried.

Furthermore, this type of self-help that the mother chose to participate in, will only be detrimental to her at trial, as this type of behaviour illustrates that she is not concerned with the best interests of the children.