A fresh perspective on divorce, spousal support, child support, parenting after separation and everything family law

Incomes over $350,000.00: Spousal Support Advisory Guidelines

I receive a weekly e-mail from Supreme Court Advocacy (a boutique law firm in Ottawa focusing on Supreme Court of Canada advocacy and agency).

The newsletter from Supreme Court Advocacy is a great resource and provides an up to date summary of activity at the Supreme Court of Canada.

Earlier in March, this newsletter provided a very good summary of the case of Hathaway v. Hathaway (2014 BCCA 310).

In this case, Mr. Hathaway (a high income earner) had been ordered, by the British Columbia Supreme Court, to pay child support of $12,814.00 per month and spousal support of $24,124.00 per month. At the trial level Mr. Hathaway’s income was determined to be one million dollars a year by the Honourable Mr. Justice Abrioux.

Mr. Hathaway appealed this decision and the British Columbia Court of Appeal denied his appeal.

Mr. Hathaway, at the Court of Appeal, contended that the trial judge erred in three respects (failing to consider Section 11 (which sets a ceiling for incomes over $350,000.00 per annum) and Section 12 (relating to property division) of the Spousal Support Advisory Guidelines, failing to consider the provisions of the Federal Child Support Guidelines regarding incomes over $150,000.00 (Section 4), and the principles relating to reapportioning family assets). Mr. Hathaway’s appeal was dismissed by the Court of Appeal and leave to the Supreme Court of Canada was also dismissed.

The case of Hathaway highlights the importance of considering/arguing Section 4 of the Federal Child Support Guidelines and Section 11 of the Spousal Support Advisory Guidelines at a trial level. A failure to do so will limit the ability to make such arguments or considerations at an appeal level (as per paragraph 34 of the Court of Appeal Decision).

The upshot of this case, from my perspective, is:

  • Reading the Child Support Guidelines and the Spousal Support Advisory Guidelines is a free and useful exercise if support issues are at play in your family law matter (regardless of your income);
  • If you are dealing with a case where incomes are over $150,000.00 per annum pay special attention to Section 4 of the Child Support Guidelines;
  • If you are dealing with a case where incomes are over $350,000.00 per annum pay special attention to Section 11 of the Spousal Support Advisory Guidelines;
  • It is helpful to get advice from an accountant in a case where you are working to determine an appropriate guideline income for support purposes (I encourage my clients to consult with an accountant regarding determination of income for support purposes regardless if they are paying or receiving support – it is very helpful); and
  • This is a first world problem to have…
    Guideline income

  • High Conflict Parenting: Must Read Case

    Each weekend I like to review the recently reported decisions from British Columbia and Alberta. They are available online at the Supreme Court of British Columbia website and the Alberta Court of Queen’s Bench website (via CanLII).

    This Saturday (while I was getting my hair done) I came across a “must-read” decision of the Honourable Madam Justice D. L. Pentelechuck from the Alberta Court of Queen’s Bench: A.J.U. and G.S.U. (2015 ABQB 6) (“AJU”) (NOTE/CAUTION: People do laugh at me when I come into the salon with a stack of recent court decisions and highlighters).

    The AJU decision “offers an opportunity to consider the role that Court-appointed Parenting Experts play in the determination of the best interest of children, and the evidentiary standard to which the parties should be held in a custody dispute.” (paragraph 3).

    In the AJU case, Justice Pentelechuck considers a situation where the father sought sole custody of the parties’ two daughters and the court appointed parenting specialist supported his claim in an assessment report which recommended that the father have sole custody of the children. At first blush this might seem like a strong case for the father – his position is supported by an expert.

    From my perspective, this case is an illustration of the importance of critical and objective review of the evidence and allegations put forward in parenting disputes. In this case, while the father initially may appear to have a strong case (supported by an expert report), throughout the trial, counsel for the mother, Renee R. Cochard Q.C., illustrated – both by objective evidence and cross examination of the parenting expert and father – that the report was flawed and the criticisms of the father towards the mother’s parenting time were without merit. This written decision highlights the importance of (both counsel and the parties) carefully reviewing the evidence and allegations forwarded in parenting disputes. Ms. Cochard’s successful cross examination of the Parenting Expert diminished the persuasive value of the expert report that was before the court.

    By way of example the father “takes issue with [the mother’s] purchase of a trampoline, and also objects to the girls’ participation in horseback riding, and tubing down the Pembina River with their mother.”
    The Justice did not find validity to this concern and noted that “The Trampoline in question is an 18” high “Dora the Explorer” trampoline” (paragraph 55) and “None of these complains, individually or collectively, have merit” (paragraph 57).

    Further, in regard to the report of the Parenting Expert, the court noted: “First, the basis for her recommendations were seriously undermined during cross-examination” (Paragraph 96). For example, the Parenting Expert noted in her report that the children appeared to be getting sunburnt during the time she observed them, however, during cross examination the parenting expert “admits she did not confirm whether or not the girls actually suffered sunburn on that particular day” (Paragraph 97). Another example of the erosion of the validity of the expert report at trial was that the expert alleged that the mother did not follow-through on educational matters. However, cross examination exposed that the expert “did not see the educational centre [the mother] had in the basement.”

    This case is a good read if you are going through a high conflict parenting dispute and there are expert reports and/or evidentiary issues. The court provides a review of expert evidence (starting at paragraph 132), hearsay evidence (starting at paragraph 135), illegally obtained evidence (starting at paragraph 151), and lay opinion evidence (starting at paragraph 170). Counsel, self-represented litigants and parties to parenting disputes will benefit from reading this case.

    Dogs

    “D” is for Divorce

    I was watching my favorite video on the internet right now when I came across this video about an episode of Sesame Street called “D” is for Divorce:

    As described by the Daily Mail:

    Sesame Street has aired an episode which deals with the sensitive issue of divorce for the first time.

    A scene on the issue had been originally written for the show in 1992 – but was a disaster when tested before an audience of pre-schoolers who misunderstood and became upset.

    The idea was shelved until this year – when writers came up with a slot featuring a fairy called Abby Cadabby whose parents have been divorced for a while. The 13-minute segment will be aired online today. 

    Check out the online article and the above video describing the making of the episode.  You can also find a summary of the 1992 episode, that was never aired, on Wikipedia.

    Divorce: how long does it take?

    Kim Kardashian separated from Kris Humphries after 72 days of marriage, but 365 days later, the divorce proceedings are still inching towards trial.

    As reported in the Vancouver Sun:

    Superior Court Judge Stephen Moloney told attorneys for Kardashian and NBA player Kris Humphries to return to court in mid-February to set a trial date to either dissolve or annul the couple’s 72-day marriage. He didn’t set a deadline for depositions and other pre-trial investigation to be completed, but indicated a trial could be held early next year if it is ready by Feb. 15.

     So how long does it take to get a divorce?

    Legal time requirements for divorce are different in different countries.  In Canada, the Divorce Act sets out that a court can grant a divorce if there has been a breakdown of the marriage.    A breakdown of a marriage is described in Section 8 of the Divorce Act as:

    8(2) Breakdown of a marriage is established only if

    • (a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
    • (b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
      • (i) committed adultery, or
      • (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

    So, in Canada, you have to have lived separate and apart from your estranged spouse for one year prior to a divorce being granted unless there has been adultery or cruelty (as a note, if you are proceeding on adultery or cruelty there are specific evidentiary requirements that must be met).  After the year of separation, the process of getting the actual divorce usually between a couple of weeks and a couple of months if it is uncontested.  A breakdown of the timeline and steps can be found on JP Boyd’s family law resource.

    Also, the Divorce Act sets out that a court in a province may only grant a divorce if one of the spouses has been ordinarily residence in that province for one year immediately preceding the commencement of divorce proceedings.

    If a divorce can be finalized after one year of separation, why are my divorce proceedings entering year three?

    The answer is, quite simply, if you agree on everything, and you file all of the right paper work, correctly filled out, at the  correct time and in the correct place, your divorce will move along quickly.

    As summarized by the Ministry of Justice:

    A divorce is relatively easy to get if your reason for the divorce is that you have been separated for a year or more and:

    • you both agree that you want a divorce, and you are not asking the court to settle any other issues, such as custodyaccess or support (this is usually called an “uncontested” divorce), or
    • you both agree that you want a divorce and agree on all other details, such as custody and support (this is called a “joint divorce action”), or
    • you alone are asking for a divorce and for the court to settle other issues, such as custody and support, and your spouse does not dispute the divorce or any of the issues.

    A divorce is more complicated to get if your reason for the divorce is cruelty or adultery or your spouse decides to dispute the divorce or any other issues. This is often called a “defended” divorce.

    It is when there are issues of disagreement that a divorce can span out longer periods of time.  For example, in the 2008 British Columbia Court of Appeal decision, Laxton v. Coglon, deals with a case in which divorce proceedings had been ongoing since 2001.

    New Yorker Cartoon by Tom Cheney

     

    Each family is different.  The length of time it takes to resolve the issues involved in your divorce will vary from others you know.

    Family Law: Debt or Loan?

    At the National Family Law Conference Stacie R. Glazman, LL.M., C.S., CBV, presented a paper entitled “Thanks for the Money, Mom and Dad.  Do I have to Pay You Back?”

    Ms. Glazman is an excellent speaker (and author) so the topics stuck with me.  Her paper, and presentation, addressed an issue that can become contentious: if a parent advances money to their married child:

    • is the money a gift?
    • is the money a loan?
    • is the money a gift to only their child (and not the spouse)?
    • is the money a loan to only their child (and not the spouse)?

    Often becasue these gifts/loans are given in the context of family relationships, they are not documented and recorded with the same level of detail that business transactions are.  When parties separate, and money has to be separated, and disputes often arise as to who gets the benefit of the money from mom and dad, or who has to pay the money back to mom and dad.

    In 2007 the Supreme Court of Canada released a decision dealing with the loan vs. gift issue, in an estate context.  In the Pecore v. Pecore decision, the court found that the presupmtion of advancement is not applicable to transfers between parents and adult independent children.  Previously, the presumption of advancement had applied to property transfers between parents and independent adult children where no consideration was given.  The presumption of advancement meaning: a presumption that the transfer was intended as a gift.  Baesd on the Pecore decision, the presumption is that of a resulting trust (i.e. a “loan”).

    Ms. Glazman summarizes the test as follows at page 8 of her paper:

    1. Determine if the presumption of resulting trust applies because the transfer is gratuitous and the recipient is obliged to return it;
    2. The onus is on the person claiming “gift” to show that a gift was intended;
    3. Look to the evidence as to the transferor’s actual intention to see if it is sufficient to rebut the presumption on a balance of probabilities.
    How does this apply to family law?

    Many courts across Canada have found that the law in Pecore has been applied to family law cases where there are “gift vs. loan” disputes.  For example, the recent case of T.S. v. M.S. and J.P provides a useful summary of the application of the Pecore decision to family law in British Columbia at paragraph 35, citing the case of Hawley v. Paradis:

    29        … The recent cases of Ng2008 BCSC 172 (CanLII), [2008 BCSC 172 ] and Krupa v. Krupa, 2008 BCSC 414 (CanLII), 2008 BCSC 414 [Krupa], have both considered the principles in Pecore within the context of transfers of money or property made by a parent to a child within a dispute over the division of marital property. Ng and Krupa are instructive in this case. In Ng at para. 37, Garson J. held that, according to Pecore, “a presumption of advancement as between parents and children will only arise in cases where the child is a minor”. She further stated that the presumption of a resulting trust had been rebutted in that case. In my view, Mr. Paradis’ contention that Garson J. thought other conclusions could be reached regarding the presumption of advancement is untenable. Rather, it appears clear to me that she was indicating that she was bound to follow the law as set out by the majority in Pecore, as am I. In Krupa, Madam Justice Ross concluded that the presumption of advancement with respect to gratuitous transfers from a parent to a child is limited to transfers involving minor children. She also stated at para. 78, “There is a presumption of resulting trust with respect to gratuitous transfers from a parent to an adult child.” Ross J. further considered D.L.M.2008 NBCA 2 (CanLII), [2008 NBCA 2, 289 D.L.R. (4th) 37] and held that the factors in Locke continue to be relevant to ascertaining intent when considering whether a transfer made by a parent to an adult child is a loan or a gift.

    30        Based on the case law presented to me, I conclude:

    1. that the presumption of advancement no longer applies between adult children and their parents;
    2. that as between adult children and their parents, the presumption is a resulting trust when the parents make gratuitous transfers to children;
    3. that the court must consider all of the evidence in determining whether the parent intended the transfer as a gift or a loan;
    4. that the factors considered in Wiens and Locke will assist the court in determining whether the advance was a loan or a gift.

    What evidence and factors will the court consider?

    The court may consider a number of factors in making the determination if a transfer was a gift or a loan.

    The factors set out in the Locke case, are:

    • Whether there are any documents showing that the transfer was a loan;
    • If a manner of repayment is specified;
    • If security is held for the loan;
    • If there are advances to one child and not to others (i.e. if this is a pattern of giving);
    • If there was a demand for payment prior to separation;
    • If there has been some form of repayment; and
    • If there is a likelihood or expectation of repayment.

    The evidence in each case will have an important impact on determining if the transfer was a gift or loan.

    Divorce: how do I pop the question?

    Have you seen Issac’s lip-dub marriage proposal?

    To date, over 13 million people have seen this choreographed lip-dub marriage proposal.

    In response, the people at Second City have come up with the first ever live lip-dub divorce proposal.

    What do you think of the lip-dub divorce proposal?

    Generally, you should not broach the topic of divorce through a lip-dub divorce proposal (unless your spouse has a really, really, really great sense of humor).

    So how do you broach the topic of divorce (if you do not think the YouTube musical theater approach is appropriate)?

    In Harriet Lerner, Ph.D’s book “The Dance of Connection: How to Talk to Someone When You’re Mad, Hurt, Scared, Frustrated, Insulted, Betrayed, or Desperate” she provides some guidance:

    To say, “If these things don’t change, I’m not sure I can stay in this relationship, ” is to voice the ultimate bottom line. People threaten to divorce or break up in the heat of anger, which isn’t helpful or fair. Nor should you bring up divorce as an attempt to punish, scare, shape up, or shake up the other person. And surely you shouldn’t feel compelled to mention divorce simply because it passes through your head now and then. Many married folks entertain fantasies about divorce yet are far from acting on it.

    That said, talking about divorce is important if you’re thinking seriously about it — even ambivalently. If you’re going back and forth about it in your mind, you need to consider sharing your struggle with your partner. If you do eventually terminate the marriage, a partner will be better able to handle a loss that can be anticipated and planned for. Everyone has the right to know just how high the stakes are if they choose to continue to behave as usual. You owe your partner honesty about a matter that so deeply affects both of you.

    The book gives some food for thought about how to deal with difficult conversations, and also a few important caveats:

    Obviously , we should never mention divorce (or anything else for that matter) if there is any possibility that a partner will become violent or out of control. In such a case, we first need to seek appropriate help and ensure our physical safety. Nor is it wise to begin a serious talk about divorce if we suspect that a partner might do something sneaky with money that would jeopardize a fair and equitable financial settlement. In such a case, it’s wise to first consult an attorney. Finally, if you’ve already made up your mind to leave, it’s not fair to involve your partner in conversations that imply you’re still willing to work on the marriage.

    In terms of serving a partner with a Notice of Family Claim (a.k.a. divorce papers) the same goes – it is generally best to broach the subject of the court action prior to serving your spouse with the documents (unless the above caveats apply).