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Motion to Change Final Child Support Order Made Pursuant to the Divorce Act Heard Provisionally by the Nova Scotia Supreme Court
The parties had an adult child living away from the custodial parents’ home attending post-secondary education. The parties were disputing the appropriate terms of child support, both basic child support and additional contributions toward the child’s post-secondary education costs. The father was forthcoming with income information. His position was that the payment of basic child support should be reduced during the months the child lived away from the home to attend post-secondary education. There were other options available to the child rather than living away from home. In addition, the father’s position was that the child’s contributions and the available grants, bursaries, scholarships, and the reasonableness of incurring certain expenses for the child to live away from the custodial parent’s home all must be considered before assessing the mother and father’s responsibility to contribute toward those expenses.
The original child support order was made pursuant to the Divorce Act. The mother, the child support recipient, lived in Nova Scotia. The father lived in London, Ontario. The child support order was being enforced through the Family Responsibility Office. A Provisional Order had been made in London, Ontario and the Confirmation Hearing was heard by the Nova Scotia Court. The mother opposed the father’s requests for relief from the court. The father had considerable success in the case and was ordered to pay basic child support at a reduced monthly amount and only a portion of the child’s post-secondary expenses.
Application to Superior Court of Justice to Equalize Litigants’ Net Family Properties
The parties had been married for 27 years. The parties had social standing in their community and had appeared in MacLean’s Magazine. The issues of custody and access were not extraneously contested. The husband alleged that he inherited farm property during the marriage, valued at approximately $600,000 on separation. He further alleged that the farm property was purchased from inherited monies. The financial disclosure of information was not forthcoming from the husband. The wife successfully defeated the husband’s assertion that the property was excluded from equalization. She was able to prove that the value of the farm must be equalized with her. The wife relied upon the fact that the parties and the husband’s mother entered into a private mortgage in order to purchase the farm and house and that the entire property was in fact purchased 3 years before the husband’s mother had passed away. The wife received significant settlement payment.
Cohabitation Agreement & Marriage Contract to Establish Separate as to Property Regime
The parties had contemplated marrying each other, and the husband solely owned the home which was to be the family residence or matrimonial home. The wife was approximately 63 years of age and the husband about 66 years of age. Each party had a pension plan from years of employment. Both parties had children from previous relationships. The parties desired to structure their personal lives independent from their respective legal rights and obligations which would otherwise arise on their marriage to each other. The domestic contract prepared for the parties specifically restricted the parties respective rights and obligations as to support and property in connection with any laws applicable in the province of Ontario. The domestic contract included a specific waiver as to equalization. The contract set out a separate as to property regime, and with respect of any joint property the parties were entitled to their respective proportions based on ownership of any such property.
Interim Mobility or Relocation of Children’s Residence & Application for Joint Custody
The mother and father were married for 6 years and upon separation, the mother wanted to relocate the children’s residence from London, Ontario to New Hampshire with her same-sex partner. She contended that the same-sex partner was a minister and supplied a substantial income and a high quality of life for the children. The mother had many reasons why she be permitted to move the children and the father seriously opposed her requests. The father’s position was that the children’s best interests would best be met through joint custody. The Court dismissed the mother’s interim motion to take the children with her pending a trial to determine proper custody of the children because New Hampshire would be a long distance and large change for the children prior to the trial. In the interim, the Court ruled that both parents are fit parents and that the parents should have interim joint custody pending the outcome of a custody trial. The parties subsequently reached a settlement with respect of all outstanding issues.
Joint Custody and Partition & Sale of Matrimonial Home and Equalization of Net Family Properties
The parties had been married for 18 years. The issues of custody and access were seriously contested and the parties were in stark opposition with each other as to the children’s best interests. The Office of the Children’s Lawyer was involved and made recommendations and shortly after those recommendations, the parties asked to negotiate a resolution of the parenting issues.
As to the property issues, the main asset in equalization was the matrimonial home situated on farm property. The parties had sold the farm property and discharged some debts and liabilities and there was not a surplus of sale proceeds. The husband alleged that the parties had an outstanding loan owing to the husband’s parents and that loan must be satisfied on the sale of the matrimonial home. On an interim motion, the wife was granted exclusive possession of the matrimonial home. The wife subsequently agreed to list and sell the matrimonial home. A portion of the sale proceeds from the home were to be held in trust for the benefit of the children, in satisfaction of the alleged loan outstanding with the husband’s parents.
Deduction of Date of Marriage Interest in Proceeds from Motor Vehicle Accident
The parties had been married for 5 years. The wife had owned the matrimonial home prior to the date of marriage. During the marriage, the wife had paid down the mortgage on the matrimonial home from the monetary damages she was awarded during the marriage. Had those damages been awarded to the wife after the date of marriage there would not have been any question that she could exclude those monies, but that was not the case. The husband was seeking to equalize one-half the value of the home.
Upon thorough discussions, it was determined that the wife’s award of monetary damages was from litigation in connection with motor vehicle accident which litigation proceedings were commenced months before the date of marriage. A copy of the statement of claim as to the court proceedings was used to determine the date on which the wife had an interest in those damage award monies. The damage award was permitted to be deducted because it was not paid into the matrimonial home until after the date of marriage and as such the wife’s interest in the damage award was separate and distinct from her interest in the matrimonial home on the date of marriage. The outcome was favourable for the wife.
Consequences of Spousal Support Release in Cohabitation Agreement
The parties never married and were in a relationship for 11 years. The wife was 60 years of age on separation and the husband was 75 years of age on separation. The wife claimed that the spousal support release and waiver in the Cohabitation Agreement should be set aside or not enforceable pursuant to Subsection 33(4) of the Family Law Act, because its enforcement would result in unconscionable circumstances and as such the wife argued that she was entitled to spousal support from the husband. The husband had arranged for a life insurance policy on his life to the benefit of the wife. There was incomplete or no financial disclosure at the time of signing and entering into the Cohabitation Agreement. The wife had two motor vehicle accidents and the second accident brought about a serious change to the parties arrangements and thereafter the husband did not follow the intentions of the Cohabitation Agreement but rather financially provided for the wife. An agreement which was fair and reasonable at the time it was signed may result in unconscionable circumstances at the time of the support application.
On separation, the husband had about $3 million of savings and assets and the wife had about $250,000. The husband was required to utilize his savings and assets in a manner which accrues interest on the principal. The parties negotiated a lump sum settlement providing the wife with a reasonable level of spousal support.
Termination of Spousal Support
The parties had been married for about 17 years. The parties were divorced about 5 years before the review and request to terminate spousal support. The Spousal Support Advisory Guidelines had indicated that the range for duration of paying spousal support was between 8 to 16 years. The husband had paid spousal support for 12 years at the time of the review to terminate spousal support. The husband successfully obtained a court order ending his spousal support obligations. The husband relied on the wife’s level of need for continued support, as she had been residing in a family member’s residence and that the parties never had children during their marriage. Rather than providing complete and proper financial disclosure, the wife settled out of court acknowledging that there should be an end to the spousal support payments.
Admissibility of Closed Mediation Report
The parties were married for 8 years and had 2 children from their marriage. Shortly after separation, the parties engaged in closed mediation under the terms that their discussions were confidential and not to be produced in any court proceedings. A memorandum of understanding was prepared by the mediator after the mediation sessions were completed. The mother wanted to relocate the children’s residence from London, Ontario to Hastings County and she was relying on the memorandum of understanding from the mediation. The father had changed his position to permit the children to relocate their residence and was asking for the children’s residence to remain in London, Ontario. The father’s position was that the children’s best interests would best be met through joint custody. The court held that the memorandum of understanding from the closed mediation is admissible on the basis that the confidentiality component to the closed mediation process does not extend to a document that purports to reflect an agreement of the parties. The father was granted joint custody of the children and the mother was permitted to relocate the children to Cobourg, Ontario.