Custody and Access: Parental Alienation

One problem that clients often come to me with is that they feel that the other parent is alienating them from their child.  This is a serious allegation and one that usually occurs during high conflict circumstances. Clients often describe this alienation as “she’s telling the kids that I hate them” or “he’s telling the kids all about our case and that I don’t care about them.”  Statements like these could potentially fall under the category of parental alienation (to learn more about custody and access and the differences between them, see our previous post on Custody and Access for more information).

Parental alienation has been legally described by Justice Zuker as follows:

[I]n some cases a custodial parent will make unfounded allegations and alienate the children from the other parent by inducing unfounded fears about the access parent in the child’s mind. This has been referred to by some mental health professionals and lawyers as “parental alienation syndrome” or “malicious mother syndrome,” though these are not clinical “diagnoses” that a mental health professional can make, but rather are a conclusion about a particular state of facts….[1]

 

It has also been described by Dr. Janet R. Johnston as a child that:

“expresses freely and persistently, unreasonable negative feelings and beliefs (such as anger, hatred, rejection and/or fear) toward a parent that are significantly disproportionate to the child’s actual experience with that parent. Entrenched alienated children are marked by unambivalent, strident rejection of the parent with no apparent guilt or conflict.”[2]

What we’re seeing here is that alienation is set out heavily in the facts of the case.  A set of core elements to determine parental alienation is described in L.R.H. v. A.K.H., 2003 BCSC 1201, [2003] B.C.J. No. 1820 at para 48 as follows:

  1. a campaign of denigration by the children where they continuously profess hatred of the alienated parent;
  2. the children give weak, absurd or frivolous rationalizations for the deprecation of the alienated parent;
  3. the children show no ambivalence about their parents: one is entirely “good” and the other only “bad”;
  4. the independent thinker phenomenon;
  5. the children offer reflexive and complete support of the “good” parent in the parental conflict;
  6. the children do not appear to feel guilty over cruelty to and/or exploitation of the alienated parent;
  7. the children’s descriptions of the alienated parent sound rehearsed, coached or borrowed; and
  8. the children’s animosity spreads to the friends or extended family of the alienated parent.

This case goes further to describe the alienation as an extreme where one parent essentially coaches the children to promote hatred against the other parent.

What these legal precedents show us that in order to prove this alienation, the parent will have to clearly demonstrate deliberate action on the part of one parent to turn the children away from the other.

If this can be proved, it is a very real consideration regarding custody and access decisions in court.  For example, take a look at s. 16(10) of the Divorce Act (“DA”):

 

Maximum contact

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

This means that BOTH parents are obligated to ensure that the child has a relationship with the other parent and to help facilitate access to that parent so long as it’s in the best interests of the child.  A general way of looking at this is that even if you don’t happen to get along with the other parent, so long as the child is safe with the other parent, you are basically required to ensure that your child sees them.  This will of course have to be determined in a case by case basis factoring in the best interests of the child under s. 24(2) of the Children’s Law Reform Act.

 

See the cases below for an idea of how custody and access could be arranged or changed due to parental alienation:

DeSilva v. DeSilva, [1997] O.J. No. 330 (Gen.Div.),

  • father had seriously hampered older daughter’s relationship with mother
  • court found that significant damage had already been done to the relationship
  • factoring in the child’s age and wishes, making a change in custody at that time was unrealistic and unworkable

Rogerson v. Tessaro, 2006 CanLII 15126, [2006] O.J. No. 1825 (C.A.),

  • custody was varied from mother to father
  • mother’s alienation of the children from the father was not in children’s best interests
  • mother’s conduct included:
    • not telling father about nor giving him medications prescribed for children
    • mother moved towns and uprooted the children, indicated to father she would move again if he moved to her new town
    • mother’s behaviour persisted even in the face of assessments and court orders
    • father had shown himself to be a caring and capable parent who understood the importance of the children’s relationship with the mother

Fiorito v. Wiggins, 2013 ONSC 4272, [2013] O.J. No. 3153,

  • custody was granted to father
  • three children had lived primarily with mother after separation
  • court order in 2008 provided detailed and generous access to father that mother was not following
  • mother found to be continually obstructing and undermining children’s access to the father
  • court also found that since separation, the children’s relationship with father transformed into one based on fear and an intense dislike which was found to be primarily caused by the mother
  • court ultimately found that the mother could no longer have custody of the children as she was inflicting harm and emotional abuse upon the children

This blog is intended for legal information purposes only and is not to be construed as legal advice.

[1] Dixon v. Hinsley, [2001] O.J. No. 3707, 22 R.F.L.(5th) 55

[2] Dr. Janet R. Johnston, “Children of Divorce who Reject a Parent and Refuse Visitation: Recent Research and Social Policy Implications for the Alienated Child”, Family Law Quarterly, Vol. 38, No. 4; Winter (2005) at 757-775

Occupation Rent: Exclusive Possession Continued

In my last blog post I discussed the concept of exclusive possession and how a spouse may be able to claim such a remedy.

S. 24(1)(b) of the Family Law Act (“FLA”) provides for the remedy of exclusive possession that applies to MARRIED SPOUSES. This section provides that:

Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

Once this order for exclusive possession has been granted by the court, the party who is not residing at the home may then be able to receive an order for Occupation rent.  See s. 24(1)(c):

(c)[The Court may] direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;

Now this is interesting.  If a married spouse is granted exclusive possession of the home, they may then be required to pay occupation rent to the other spouse!

The order of events is important here.  First there has to be the Order granting exclusive possession to one spouse, THEN there can be an Order requiring that person with possession to pay occupation rent to the other spouse.[1]

 

Factors for determining occupation rent

Occupation rent is what is known as an equitable remedy.  In order to determine if someone should be entitled to receiving occupation rent, the courts will want to evaluate if there is a justifiable reason to provide this remedy.  The court will do this by looking at some factors as discussed by Osborne A.C.J.O. in Griffiths v. Zambusco, 2001 CanLII 24097, 54 O.R.(3d) 397 (C.A.) at para 49.  Keep in mind that these factors can vary from case to case:

  • The timing of the claim for occupation rent;
  • The duration of the occupancy;
  • The inability of the non-resident spouse to realize on her equity in the property;
  • Any reasonable credits to be set off against occupation rent;
  • Any other competing claims in the litigation.

Justice Quinn in Higgins v. Higgins, at para 53 provides us with an even more detailed list for evaluation:

From the cases I have reviewed, I note the following may be relevant considerations when determining the appropriateness of an order for occupation rent:

(a)  the conduct of the non-occupying spouse, including the failure to pay support;

(b)  the conduct of the occupying spouse, including the failure to pay support;

(c)  delay in making the claim;

(d)  the extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;

(e)  whether the non-occupying spouse moved for the sale of the home and, if not, why not;

(f)  whether the occupying spouse paid the mortgage and other carrying charges of the home;

(g)  whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support;

(h)  whether the occupying spouse has increased the selling value of the property;

(i) ouster is not required, as once was thought in some early decisions.

 

Common law Spouses

In my exclusive possession blog post linked above, I discussed how Common Law spouses do not have the same protections that Married spouses do under the Family Law Act.  This same principal is true regarding occupation rent.

Common law spouses must rely on the common law in order to claim exclusive possession or occupation rent.  As stated above, married spouses first need an Order for exclusive possession before the other spouse can claim occupation rent.

There is no need to demonstrate co-tenancy for an ex-married spouse to claim exclusive possession or occupation rent; however, a common law spouse is required to demonstrate [co-tenancy][2]; i.e., that they are an owner of the property, OR that they have an equitable interest in the property.[3]

What this means is that the common law spouse has to show they have an ownership interest in the property, or that they put some value towards the property that would entitle them to an ownership interest.  Without this, the common law spouse is unlikely to have a claim for exclusive possession or occupation rent.

Also, in order to claim occupation rent, a common law spouse must show there was Ouster.  This principal essentially means that a spouse has to be ejected from the property to claim occupation rent.  See the following definition from Crawford v. Crawford, [1953] O.W.N. 781 as follows (at 784):

… In the case of joint tenants or tenants in common the claim [for occupation rent] is founded on ouster or ejectment, for they stand in no contractual or landlord-and-tenant relationship to each other …. The right to recover for use and occupation is by way of damages, upon the case for ejectment and trespass. I hold that in the case of joint tenants the right to recover for use and occupation is on the same basis.

 

How do we calculate occupation rent?

The general approach taken by courts is to begin by assessing the appraised rental value for the property at the time that an individual has exclusive possession of the property.[4]  The courts will then consider the responsibility of the parties towards the upkeep of the home,[5] which can include, taxes, utilitites and other carrying costs of the home.

This demonstrates that the occupation rent payable by one spouse to another can vary depending on the home, mortgage, and upkeep costs of the home itself.  This will have to be assessed on a case by case basis.

 

Occupation Rent Awarded

Rogers v. Rogers, 2018 ONSC 2381

  • couple married for seven years with two children
  • children remained in matrimonial home with mother after separation
  • children would live with father three days a week
  • mother was contributing to taxes and routine maintenance only
  • property value could attract rent of about $3-4 thousand
  • divide by two and taking into account father’s responsibility for half of upkeek, court order mother to pay father $1000 a month

Hollaway v. Devenish, 2009 CanLII 64833, [2009] O.J. No. 5008 (S.C.J.)

  • home purchased as joint tenants during common-law relationship
  • she moved from home while he continued to occupy
  • she agreed that he was entitled to reimbursement for expenses of home, but not utility expenses tenant would pay
  • generally as common law, have to show there was ouster
  • however, exception to that rule where requirement for ouster not needed for common law couple, where party who remains in possession claims for a reimbursement of expenses
  • person remaining in home not allowed to claim reimbursement for expenses, but then not pay occupation rent

 

Occupation Rent Denied

Busko v. Israel, 2018 ONSC 5842,

  • wife claimed occupation rent
  • however, no claim for exclusive possession was made, nor was there an order for it
  • wife voluntarily left home, title to home solely in name of husband
  • no constructive trust or resulting trust claimed by wife
  • no occupation rent awarded

Ombac v. George, 2015 ONSC 1938,

  • common law wife awarded 50% beneficial interest in home,
  • common law husband lived in home since separation
  • wife left home voluntarily, had a key to the residence, and didn’t seek occupation rent until 7 years after leaving the home
  • she was also violent towards the husband and made no financial contribution to the residence after leaving
  • no occupation rent awarded

 

Information provided is for legal information purposes only and is not to be construed as legal advice.

[1] Higgins v. Higgins, 2001 CanLII 28223, 19 R.F.L.(5th) 300 (Ont.S.C.J.); Wimalaratnam v. Wimalartnam, 2010 ONSC 4491; Chowdhury v. Chowdhury, 2010 ONSC 781.

[2] Jones v. Jones, 2000 CanLII 22524, 8 R.F.L.(5th) 107 (Ont.S.C.J.); Cerenzia v. Cerenzia, 2015 ONSC 7305 (at para. 79).

[3] Ricciuto v. Lecuyer, 2011 ONSC 6070 (Div.Ct.).

[4] Khan v. Khan, 2015 ONSC 6780, 2015 CarswellOnt 16622

[5] Rogers v. Rogers, 2018 ONSC 2381

Exclusive Possession of the Matrimonial Home

One of the more difficult choices to make when separating is deciding who will get to live in the matrimonial home, or what is otherwise known as exclusive possession.  Both parties have likely developed an attachment to the home, and uprooting your life to move somewhere else can be a daunting and stressful experience.

So what exactly is exclusive possession? Does this mean a spouse now has ownership, legally known as title, of the home?

No.

This is a common misconception regarding what exclusive possession actually is.  Exclusive possession is the right of a spouse to possession of the home.  In other words, the ability of a spouse to live in the home, while the other spouse has to live somewhere else.  This right of possession is as against the spouse and not the home itself.  This WILL NOT give you title or ownership of the home by itself.

It is important to note that Married spouses have a stronger claim than Common law spouses regarding exclusive possession of the home as a result of the provisions in the Family Law Act (“FLA”).  The relevant provisions are replicated below:

 

19.(1) Both spouses have an equal right to possession of a matrimonial home.

(2)  When only one of the spouses has an interest in a matrimonial home, the other spouse’s right of possession,

(a) is personal as against the first spouse; and

(b) ends when they cease to be spouses, unless a separation agreement or court order provides otherwise.

 

24.(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,

(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;

(2)  The court may, on motion, make a temporary or interim order under clause (1)(a), (b).

 

The court will of course have some considerations they will need to weigh when making the order for exclusive possession as per s. 24(1)(3) of the FLA:

(3)  In determining whether to make an order for exclusive possession, the court shall consider,

(a) the best interests of the children affected;

(b) any existing orders under Part I (Family Property) and any existing support orders;

(c) the financial position of both spouses;

(d) any written agreement between the parties;

(e) the availability of other suitable and affordable accommodation; and

(f) any violence committed by a spouse against the other spouse or the children.

 

(4) In determining the best interests of a child, the court shall consider,

(a) the possible disruptive effects on the child of a move to other accommodation; and

(b) the child’s views and preferences, if they can be reasonably ascertained.

 

What kind of spouses are entitled to exclusive possession?

The FLA is clear that if a person is looking for an Order in Family Court for exclusive possession, they must fall within the meaning of spouse in s. 1(1) of the Family Law Act.  Basically, you need to be married. See our post on Common Law vs. Marriage for more details.

This also means that you have to currently be a spouse of the other party to claim this remedy.  Divorced parties are not entitled to this remedy as they are no longer a spouse, but a former spouse.  So if you are separated, you can claim this remedy, but if you have a divorce certificate and you are legally divorced, you cannot claim this remedy. See our blog regarding Separation and Divorce for more info.

Common Law Spouses are similarly limited in their ability to utilize this remedy as they do not fall under the meaning of spouse in s. 1(1) of the FLA as described above.  However, this does not mean common law spouses cannot claim exclusive possession at all.  Common law spouses may be able to rely on the following:

  1. The common law spouse may have a trust claim towards the property that could result in an injunction, effectively allowing the spouse to remain in the home until the issue is resolved.[1]
  2. Under s. 34(1)(d) of the FLA, possession of the home could act as a form of support payment.
  3. Under a restraining order under s. 46(1) of the FLA or s. 35(1) of the Children’s law Reform Act. In which case, the possession of the home would be an effect of the Order, rather that the purpose of the Order.[2]

 

Proving the need for exclusive possession

Under these provisions, the person claiming exclusive possession needs to show that the evidence weighs heavily in their favour for the granting of the Order.[3] In Chrobok v. Chrobok, 2006 CanLII 27308, [2006] O.J. No. 3243 (S.C.J.), the wife claimed that she needed to remain in the home as it would be too traumatic for her children to move, and they were undergoing counselling at the time.  Ultimately, the wife failed to prove her argument for exclusive possession as she did not provide any supporting evidence from her children’s counsellor to support her position.

 

Occupation Rent

As a warning, if you are actually granted exclusive possession, you may then have to pay rent towards your former spouse who had to move out of the home!  Check back for future blog posts where I will discuss how this legal remedy works.

Information provided is for legal information purposes only and is not to be construed as legal advice.

[1] Perks v. Lazaris, 2016 ONSC 1356

[2] Perks v. Lazaris, 2016 ONSC 1356, para 27.

[3] Berdun v. Berdun, 2008 CanLII 23945, [2008] O.J. No. 2016 (S.C.J.); McEachern v. McEachern, [1994] O.J. No. 1544 (Gen.Div .); Tweed v. Tweed, [1990] O.J. No. 1440 (H.C.).

10 Year Anniversary Skating Party

Rabideau Law is excited to announce that we will be hosting a Family Skating Party on Saturday, March 23rd, 2019 in celebration of our 10 year anniversary! This event will be held at Lions Arena located at 20 Rittenhouse Rd, Kitchener, from 12 pm to 3 pm, and is open to all family, friends, affiliates, and clients of Rabideau Law, as thanks for ten years of support.

The past ten years have meant tremendous growth at Rabideau Law, with positions within the firm evolving and multiple new positions being created to further assist in our goal of making the legal end of real estate transactions as worry-free and convenient for our clients as possible.

This event also marks the bet settlement of our food drive in support of The FoodBank of Waterloo Region which occurs every November. Last November, our office was divided into two teams and competed to see which team could collect the most non-perishable food donations. Lawyer Roger MacIntosh and his team, having lost to my Souper Stars and being a good sport and accepting his fate, will be performing a skating routine at our skating party in support of The FoodBank. We do ask that all attendees consider bringing a non-perishable food item for the FoodBank.

We are excited to offer:

Light snacks and refreshments
Door prizes (attendance at the draw just before 3 pm required to win)
Full access to the ice rink
Face painting
Children’s entertainment by Erick Traplin
A full service photobooth

If you are wanting to attend, please keep in mind:

We are asking attendees to please bring a non-perishable for donation to The Food Bank of Waterloo Region
The rink will be cold! If you are wanting to skate, be sure to dress for it
Skates and Helmets can not be rented at the rink–please be sure to bring your own
If you have skate supports, please feel free to bring them

For any questions please contact Kayla at kkompter@rabideaulaw.ca

Can I secretly record my ex-spouse?

Can I Secretly Record My Ex-Spouse?

Seems like something you should be able to do right? If an ex-spouse is talking to the children, or anyone else, some parents try to record those conversations to use against the other spouse later on in legal proceedings.  What parents will need to be mindful of is that this may actually trigger parts of the Criminal Code (“CC”) regarding the invasion of privacy.

The part of the CC that is important here is s. 184(1) which states that:

184.(1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

This is further clarified by s. 184.5(1) which provides that s. 184(1) includes things such as cellphones:

184.5 (1) Every person who intercepts, by means of any electro-magnetic, acoustic, mechanical or other device, maliciously or for gain, a radio-based telephone communication (emphasis ours), if the originator of the communication or the person intended by the originator of the communication to receive it is in Canada, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

If the ex-spouse were to consent to the recording, then there would be no issue with the recording as per s. 184(2)(a) of the CC:

(2) Subsection (1) does not apply to

(a)  a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it.

Parents usually do not get the consent of the ex-spouse to actually record conversations their conversations, so they resort to recording them secretly in order to try and get some dirt on the other spouse.

 

How do courts handle secretly recorded evidence?

In general, courts do not appreciate it when parents secretly record each other, then try to use that evidence against the other spouse in court proceedings.

However, even though the courts do not like to see this kind of evidence, it does not mean that they would not use it if it was important enough.

Justice Spence in Scarlett v. Farrell  2014 ONCJ 517 at para 31 provides us with a metric to go by; it will have to be determined if “the probative value [of the secretly recorded evidence] outweighs the policy considerations against such recordings, then the courts will admit them into evidence.” This means that if the courts find that the contents of the recording are important enough, the recording may actually be admitted into evidence for use against the spouse who was recorded, despite the fact that the recording was obtained illegally.

So how do we determine when a recording will be admitted into evidence? There must be a way for us to know that we can record the other spouse based on what they’re saying, especially when the safety of the child is at stake?

To use a tried and true legal expression: it depends.

The case law is split on this issue and again, this boils down to the specific facts of each case.  Ultimately, the judges have to use their discretion when weighing all the evidence to make a determination.

There is a three-pronged test that we can use to help determine whether the evidence will be admitted as described in Matthews v. Matthews, 2007 BCSC 1825, [2007] B.C.J. No. 2747 at para 70:

(i) There is a limited discretion to exclude relevant evidence, regardless of how it was obtained;

(ii) The judicial exercise of that discretion involves a balancing of competing interests; and

(iii) The court should consider whether the probative value of the evidence outweighs the prejudicial effect on the party opposite and/or the reputation of the administration of justice.

This provides a good starting point to understand how the law works on this issue.  For more context, refer to the caselaw below regarding the admissibility of secretly recorded information:

 

Secretly recorded tapes admitted into evidence:

A.F. v. J.W. sub nom. Fiorito v. Wiggins, 2015 ONCA 729, var’g 2013 ONSC 4272.

  • father secretly recorded conversations between himself and the mother during access exchanges
  • recordings showed that mother was contraveining court order’s when she claimed she wasn’t
  • court considered these recordings to go to the root of issue of whether or not the mother was continuing her emotional abuse of the children
  • Justice Harper at para 56 said:
    • “However, in far too many cases, like the matter before me, the goal of building of trust became masked by one party saying one thing in public and doing something very different when she thought the she was safe from scrutiny.”

D.M. v. C.W., 2017 ONSC 7070

  • mother wanted to move to Pennsylvania,
  • father made recordings during access exchanges
  • father could not “cherry-pick” what court heard, court had to play entirety of all recordings
  • court at para 38 found that:
    • “audio recordings met the test for admissibility in that they were relevant to whether it would be in the best interests of the child to move with C.W. to Pennsylvania, more specifically, whether that proposed move would frustrate the positive access between the child and D.M.; that the probative value (or benefit) of the evidence outweighed its prejudicial effect (or cost)”

Secretly recorded tapes are NOT admitted as evidence:

Turk v. Turk, 2015 ONSC 3165,

  • The wife’s conversations with the children were recorded without her knowledge, on phones that were provided to the children by the husband.
  • The children were 21 and 17 years of age and neither were in need of protection from the court.
  • Court found that the recordings were prejudicial to the wife and her ability to have a fair trial.

S.C. v. J.C., 2009 SKQB 87, [2009] S.J. No. 121,

  • Text messages accessed between mother and child
  • Father had copied the text messages from his daughter’s phone while she was asleep.
  • Court found that manner of obtaining relevant evidence does not affect whether it will be admissible or not.
  • Court had difficulty determining reliability of evidence as there was no way of knowing whether messages represented the entirety of the communication between mother and child, or if they were taken out of context.
  • Would be significant prejudice to administration of justice in family law proceedings if evidence of this kind was admitted regularly.
  • Mother regularly texted daughter, admitting this evidence would hamper mother’s ability to text daughter and reduce daughter’s trust in Father.
  • Court found that this result could be different if the daughter was at risk in some way.

 

Unequal Division of Net Family Property

Unequal Division of Net Family Property

When married spouses separate, s.5(1) of the Family Law Act (“FLA”) provides that there will be an equalization payment made from the spouse with the greater net family property to the spouse with the lesser net family property (see our blog post here for an introduction to how net family property and equalization work).

To briefly recap, the value of this equalization payment under s. 5(1) of the FLA is described as “one-half [the] difference between [the spouses]”.  Meaning the spouse with the greater net family property pays 50% of the difference to the spouse with the lesser net family property.

However, this equalization payment can be varied should the court find that the payment would be unconscionableS. 5(6) of the FLA provides us with the following criteria that could result in a varied equalization payment amount:

 

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable (emphasis ours), having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.  R.S.O. 1990, c. F.3, s. 5 (6).

 

The purpose for why this is allowed is described in s. 5(7) of the FLA:

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).  R.S.O. 1990, c. F.3, s. 5 (7).

What we can see in the language in s. 5(7) is that an unequal equalization payment is not something to be granted easily.  This will really only apply rarely and then only after carefully assessing the specific circumstances of each party to see if an unequal equalization payment would be appropriate.

Unconscionable

So what does unconscionable actually mean here? The court in Serra v Serra evaluated this term and provides us with the following guidance:

[T]he threshold of “unconscionability” under s. 5(6) is exceptionally high (emphasis ours). The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court[1] (emphasis ours).

Further caselaw helps to clarify the point by stating the following:

  1. “It is the financial result, the result of the usual NFP equalization, that must be unconscionable, after taking into account only the eight enumerated considerations, nothing else”[2]
  2. “The term “shocking” indicates a situation or circumstances such as to shock the conscience where the party seeking relief has been put in a position so unfair as to cry out for redress. Accordingly, the word “unconscionable” must mean more than a mere consideration of “fairness” or “reasonableness”[3]
  3. “The conduct must relate to the accumulation of the net family property in some way. Even if the evidence established that the husband sexually assaulted the wife on the day before they separated, as alleged, the court could not impose a financial punishment on him by varying his share of the net family property, as that conduct was not related in any way to the property that the parties had on the date of separation”[4]

This helps us to understand the extreme level the financial circumstances of a spouse must reach before the unequal equalization payment will be considered by courts.  As stated in the third bullet point above, if the conduct of a spouse does not affect the financial situation of a spouse, that alone cannot affect a variation of an equalization payment.

If you are going through a separation right now, or are looking for information regarding separation, contact the professionals at Rabideau Law to see how we may be able to assist you.

This information was provided for information purposes only and is not to be construed as legal advice.

 

 

[1] Serra v. Serra, 2009 ONCA 105, 61 R.F.L.(6th) 1, var’g. 2007 CanLII 2809, 36 R.F.L.(6th) 66 (S.C.J.), Blair J.A. stated (at para. 47):

[2] Cosentino v. Cosentino, 2015 ONSC 271 (at para. 46)

[3] Heal v. Heal, 1998 CanLII 14896, 43 R.F.L.(4th) 88 (Ont.Gen.Div.).

[4] N.R.I.H. v. M.G.S.H. sub nom. Hamdy v. Hamdy, 2015 ONSC 3277 (at para. 291).

Child Support - Undue Hardship

Child Support: Undue Hardship

As discussed in the previous blog on child support, child support is generally seen as a non-negotiable support payment in the eyes of the court.  However, there are ways to alter child support payments.  This can be done through either a shared custody arrangement (see our blog post here), or by proving undue hardship.

S. 10(1) of the Federal Child Support Guidelines (the “FCSG”) provides an outline for how to approach an argument for undue hardship and also provides that either spouse may apply for it.  Just remember that whoever makes the claim has the onus of proving the claim (see caselaw Nishnik v. Smith (1998) 162 Sask.R. 200 (Q.B.)).

S. 10(2) of the FCSG provides the circumstances that courts will recognize as causing undue hardship:

(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

(b) the spouse has unusually high expenses in relation to exercising access to a child;

(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is

(i) under the age of majority, or

(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and

(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

As can be seen, the language here demonstrates that there must be a SIGNIFICANT type of burden placed on the spouse advancing the argument for undue hardship.  Even if the court agrees that there is undue hardship, they must still factor that with s. 10(3) of the FCSG which provides that the application must be denied if the court is of the opinion that the household of the spouse claiming the undue hardship is of a higher standard of living than the household of the other spouse.  It is not just hardship that must be proved, but UNDUE hardship (see Wislesky v. Wislesky (1999), 47 R.F.L.(4th) 208 (Ont.Ct.Gen.Div.)).

This means that all persons who reside with the spouse would likely have to be involved in the investigation as to whether there is an undue hardship; meaning their financial information would likely have to be produced.

See below for examples from caselaw regarding undue hardship:

Undue Hardship established:

Trebilcock v. Trebilcock, 2012 ONCA 452

  • Father appealed an order for lump sum child support of $150,000 – this support was based on his income of $75,000 which the Father contested
  • Mother made a claim for undue hardship and was successful
    • Mother was disabled, raising the children, children were reaching post-secondary education age, and she was on social assistance
    • Mother also received no support from the father since 2001
    • Father had received a large inheritance and dissipated a portion of his assets

Schaan v. Schaan, [2000] B.C.J. No. 61 (S.C.),

  • split custody between the parents
  • mother made claim for undue hardship
    • she was unemployed, blind, and her expenses exceeded her income
    • additionally, it was expected that her rent would increase in the near future

Scharf v. Scharf (1998), 40 R.F.L.(4th) 422 (Ont.Gen.Div.),

  • father applied for variation of child support
  • each party had one child in their care
  • the Child Support Guidelines (“CSG”) indicated that the mother should receive $60 instead of the $200 she was receiving
  • mother claimed undue hardship for daughter who was living with her
  • father didn’t see daughter often, mother had to take unpaid time from work due to daughter’s health problems
  • court found that mother would suffer undue hardship if only paid the guideline amount as the standard of living in her household was lower than that of the father’s

 

Undue Hardship NOT established

Ignacy v. Ignacy, 2005 CanLII 44413, [2005] O.J. No. 5264 (S.C.J.)

  • mother had custody of both daughters
  • sought child support higher than CSG provided due to undue hardship or in alternative an order for spousal support
  • Her gross income was $66,640 and father’s was $127,286
  • Court rejected her claim arguing that CSG amounts were not to be lightly interfered with
  • No allegation that children were not properly clothed or fed, no physical or emotional problems requiring extra time and expense to mother
  • Disparity in household income existed, but it was not significant
  • Mother did receive spousal support

Block v. Baltimore (2000), 5 R.F.L.(5th) 18 (Man.Q.B.)

  • father applied to have child support varied on basis that bother children were no longer dependent
  • mother argued she would suffer undue hardship if order was varied
  • claimed she would have to sell home, her costs were increased due to father’s failure to exercise access and that children would suffer
  • court ruled that although there was hardship, it was not UNDUE hardship
  • ultimately the court reasoned that they would be awarding her spousal support instead of child support

Suain v. Suain (2002), 29 R.F.L.(5th) 234 (B.C.S.C)

  • Father sought a reduction in child support since he had just started on long-term disability benefits
  • Mother had no employment income
  • court ruled that since the CSG does not take into account the recipients income, that fact alone was not enough to create undue hardship
  • court found there were no circumstances that made the Mother’s situation exceptional in this case

 

Caselaw

  1. Nishnik v. Smith (1998) 162 Sask.R. 200 (Q.B.).
  2. Wislesky v. Wislesky (1999), 47 R.F.L.(4th) 208 (Ont.Ct.Gen.Div.)
  3. Trebilcock v. Trebilcock, 2012 ONCA 452
  4. Schaan v. Schaan, [2000] B.C.J. No. 61 (S.C.),
  5. Scharf v. Scharf (1998), 40 R.F.L.(4th) 422 (Ont.Gen.Div.),
  6. Ignacy v. Ignacy, 2005 CanLII 44413, [2005] O.J. No. 5264 (S.C.J.)
  7. Block v. Baltimore (2000), 5 R.F.L.(5th) 18 (Man.Q.B.)
  8. Suain v. Suain (2002), 29 R.F.L.(5th) 234 (B.C.S.C)

This post is provided for the purposes of legal information only and is not to be construed as legal advice.

Breakdown of Marriage: Physical and Mental Cruelty

Separation alone is difficult to deal with.  When the issues concerning adultery, physical and mental cruelty become involved, it can make a difficult situation that much worse.  If these concerns are a part of the separation between two spouses, courts here in Canada will implement a “no fault” regime.  This means that when a person’s rights are being determined in regards to: the children, child or spousal support, and property division, the fault of one party causing the breakdown of the marriage is usually not taken into consideration.

Courts will approach divorce in an objective manner; this generally means they do not look at the reasons for separation, and they won’t punish a spouse for their role in the breakdown of the marriage.

There are three reasons why a divorce can be granted:

  1. Separation;
  2. Adultery; and
  3. Physical and Mental Cruelty.

This blog post will focus on the third ground for divorce: physical and mental cruelty.  See our previous blog post for more information on the first ground of separation.

One thing to note here is that when seeking a divorce under the ground of separation, you have to wait at least one year.  An advantage of claiming a divorce under physical and mental cruelty is that you do not have to wait one year post separation in order to get your divorce.

Physical or Mental cruelty

If a party is claiming one of these grounds for divorce, they will have the onus of proving it on a balance of probabilities.  Trying to prove domestic violence in this regard can be difficult, costly, time consuming, and can be very emotionally draining.

Catherine Christopher in The Law of Domestic Conflict in Canada, identifies 4 different types of domestic violence:

  1. Physical
    1. Might be most readily identifiable – bruise patterns, fractured bones;
    2. Might be defined as including any kind of unwanted application of force, the use of which is intended to harm, threaten, or intimidate by one partner against another partner in an intimate relationship;
    3. Acts can include:
      1. pushing, pinching, slapping, hitting, punching, hair pulling, twisting limbs, restraint of movement and choking – this list is not exhaustive.
  2. Emotional
    1. Understood to be an act of unkindness or cruelty by one person calculated to threaten, intimidate, diminish or belittle another person in an intimate relationship;
    2. Can include:
      1. name-calling, yelling, screaming, belittlement of one’s body and ability, threats to harm partner, children, friends, family members or pets; physical abuse of pets; destruction of property including items of clothing or precious gifts; threats of suicide; acts of attempted suicide, particularly in the presence of children or a partner.
  3. Sexual
    1. Criminal code defines sexual assault and related offences in fairly specific terms;
    2. Possible to define certain acts as sexual abuse within confines of a relationship;
    3. Acts can include:
      1. enforcing a dress code, bringing unwanted pornography into home, forcing an unwilling partner to watch pornography, forcing unwanted sexual acts, forcing unwanted sexual acts with others, belittling sexual performance and body type, withdrawing sexual involvement or affection, and making unwanted overtures in public;
    4. Sexual abuse may also be said to be emotionally abusive conduct.
  4. Financial
    1. Can be defined as unwanted aggression, control and/or domination committed by one partner against another involving money or financial resources;
    2. If one partner controls all of the financial resources to exclusion of other against their will, then abusive element emerges;
    3. Acts can include:
      1. failing to share money, purchasing all food and clothing, limiting or restricting entirely all access to financial resources or to information regarding financial resources, failing to provide essentials such as food, clothing and medical treatment.

In order for the physical and mental cruelty to be used as a reason for divorce, it must be “of such kind as to render intolerable the continued cohabitation of the spouses.”  See the language in s. 8(2)(b)(ii) of the Divorce Act.  This is a high bar to meet and will require diligent evidence production in order to satisfy the court that the abuse meets that bar.

Should the court find that the abuse does meet that high bar, the abuse does not impact the amount of money paid in spousal or child support.  However, this conduct by one spouse can affect custody and access arrangements as is discussed in our blog post here.

Sources:

  1. Catherine Christopher, The Law of Domestic Conflict in Canada, vol. 1 (Toronto: Thomson, Carswell, looseleaf – updated to 2016, Release 2) (at 1-12.1).

This post is provided for the purposes of legal information only and is not to be construed as legal advice.

LGBTQ Parents and Custody and Access

One fear that some parents may have is whether their LGBTQ status might affect their rights when it comes to Custody and Access.  Thankfully, this is not in and of itself a ground to refuse custody or access to a parent as the case law below will demonstrate.

Custody

As mentioned in our last post regarding conduct that can affect custody or access, what courts will want to see is whether the conduct of the parent impacts the best interest of the child.

What courts will do is consider a parent’s LGBTQ orientation among other factors to make a determination about a person’s ability to parent.  They will look at whether that orientation actually affects the healthy development of the child.  The Courts in Bezaire v Bezaire had the following to say at para 18 of the decision:

“In my view homosexuality, either as a tendency, a proclivity or a practised way of life is not in itself alone a ground for refusing custody to the parent with respect to whom such evidence is given. The question is and must always be what effect upon the welfare of the children that aspect of the parent’s make up and lifestyle has, and it will therefore be a question of evidence in that very case as to whether what has been shown to exist has or may tend to have effects adverse to the welfare of the children.”

In addition to this, the court in Re K states the following:

“There is, in short, no evidence that families with heterosexual parents are better able to meet the physical, psychological, emotional or intellectual needs of children than families with homosexual parents.”

What we can see from this is that courts are very clear in stating that sexual orientation alone is no ground in and of itself that negatively impacts on a person’s ability to parent their children, meaning that LGBTQ parents are recognized as equally capable as heterosexual parents when it comes to decisions regarding custody.

Access

The same principles apply when courts make decisions regarding access to children.  Again, the courts are going to make a determination on whether a parent’s LGBTQ orientation, as well as other facts, affects the child’s best interest.

For example, the courts in Templeman v Templeman found that an openly gay lifestyle was not a reason in and of itself to restrict access or require that it be supervised.  In Templeman, psychiatric evidence was produced that showed conclusively that the father had a strong loving bond with his children, and that his gay lifestyle posed no risks in harming his children.

Caselaw

  1. Bezaire Bezaire (1980), 20 R.F.L.(2d) 358 (Ont.C.A.);
  2. Re K (1995), 15 R.F.L. (4th) 129 (Prov.Div.):
  3. Templeman v. Templeman, [1986] W.D.F.L. 233, 2 A.C.W.S.(3d) 294 (B.C.S.C., Dec. 22, 1986).

This post is provided for the purposes of legal information only and is not to be construed as legal advice.

Bill C-45 and Real Estate Presentation

In response to Bill C-45 recently taking effect, Geoff Rabideau has taken some time to put together a presentation outlining what we do currently know about the laws surrounding Cannabis in Ontario, and what some of the potential changes may be that we will notice in respect to real estate.

To view/download the PDF, please click below:

Bill C-45 and Real Estate_brokers

Please keep in mind that this is being provided for informational purposes only and is not to be taken as legal advice, and that the specifics of the Cannabis Act will continue to evolve in the coming months and years in response to the outcome the law has on Canada and Ontario.