Question 1

Yenovkian v Gulian, 2019 ONSC 7279 - What should you do if your spouse is posting false or misleading information about you online?"

Accepted Answer

In Yenovkian v Gulian, 2019 ONSC 7279, the father posted photos, videos and comments about his children, his former wife and her family on various internet sites and in social media without their consent. He posted personal, identifying information about the children, his ex-wife and her family, commented about one of the children’s learning disabilities and made false and misleading accusations about his ex-wife and her family, including that they abuse and drug children. Before the trial, the court ordered the father to remove his online posts, but he refused.   Shawn Richard represented the mother at trial. On behalf of the mother, Shawn asked the court for a restraining order, punitive damages, damages for intentional infliction of mental suffering and damages for two torts of invasion of privacy: 1. public disclosure of private facts and 2. publicity placing the plaintiff in a false light. The tort of invasion of privacy for publicity placing the plaintiff in a false light had never before been recognized in Canada. Shawn also asked the court to prohibit the father from seeing the children until he removed his online postings.   The court granted the orders sought. For the first time in Canada, the court recognized the tort of invasion of privacy for publicity placing the plaintiff in a false light, and ordered the father to pay $50,000 for intentional infliction of mental suffering, $100,000 for invasion of privacy, and $150,000 in punitive damages. In ordering punitive damages, the court stated:    Mr. Yenovkian’s conduct must not only be punished but it should be denounced, and it should be deterred. A significant award of punitive damages may serve to deter Mr. Yenovkian, since the court orders have had no effect in deterring his conduct. It will also serve to warn other litigants, both represented and self-represented, that cyberbullying another party online, in family law proceedings where the interests of children are in issue, will not be tolerated.   In addition to damages, the court granted the mother a permanent restraining order and ordered that there would be no access until he removed the online postings.   If your spouse is posting untrue or misleading posts online about you, your children, family or business contact Lenkinski, Carr & Richard LLP at info@lcrlaw.ca .   Read the Case   Past results are not necessarily indicative of future results and outcomes will vary according to the facts in individual cases.

Question 2

F.B.M. v. B.F., 2019 ONSC 708 - Can gifts be considered income for the purpose of calculating child or spousal support?"

Accepted Answer

It is common for individuals to accept gifts from family and friends to support their lifestyle, but be aware that ongoing gifts may be considered income for the purposes of calculating support. In FBM v BF, 2019 ONSC 708, the mother sought child support from the father on an ongoing and retroactive basis. At issue was the father’s income. The father had received generous gifts from the paternal grandfather throughout the parties’ cohabitation and marriage that allowed the family to enjoy a lifestyle beyond their means, including income splitting, cars, payment for a nanny to assist with childcare, shares of a private company, and the payment of capital gains taxes when those shares were sold. Following the separation, the gifts were continued for the father but not for the mother and children.  The father was unemployed at the time of trial and asserted that the gifts should not be included as income. He took the position that support should be calculated on his income of $100,000 in 2015, $125,000 in 2016 and $169,000 in 2017. Alexandra Carr represented the mother and argued that the gifts the father received from the paternal grandfather should be included as income for the purpose of calculating support. She proved that the father received gifts on a regular basis for the bulk of his adult life, the gifts provided more than a basic standard of living and allowed him to spend between $300,000 to $500,000 on personal expenses per year, and the father had some control over the gifts made to him. The court concluded that the gifts reflected the father’s past revenue and likely financial future, and his income for the purpose of calculating support was held to be $463,863, based on an average of his income, including the gifts, in the past three years. Accordingly, the father was ordered to pay monthly child support of $5,842.36 and his obligation to contribute to the two children’s educational programs and extracurricular activities, known as section 7 expenses, was calculated to be $5,000 per year. Given the high conflict between the parents, Alexandra requested and the court ordered that the father’s contribution toward child support be paid in a lump sum to minimise future conflicts.   If you have questions about how gifts received by either you or your spouse may affect the calculation of support, contact Lenkinski, Carr & Richard LLP at info@lcrlaw.ca . Read the case Past results are not necessarily indicative of future results and outcomes will vary according to the facts in individual cases.

Question 3

Yenovkian v Gulian, 2018 ONSC 5331 - In what circumstances will a court allow a parent to relocate with the children prior to trial?"

Accepted Answer

In Yenovkian v Gulian, 2018 ONSC 5331, the parties were living in Toronto when they separated and the mother took the two children to England.  In England, the father obtained an order from the English court under the Hague Convention on Child Abduction that the children should return to Ontario where the Ontario court would be responsible for determining custody, access and the children’s residence. The mother returned to Ontario with the children and sought an order from the Ontario court allowing her to reside in England with the children while the parties litigated the matrimonial issues in Toronto.  Esther Lenkinski represented the mother before the Ontario court and obtained an order permitting the mother to return to England with the children until the start of trial.   A parent who seeks to relocate to another jurisdiction with a child must prove to the court that relocation is in the child’s best interest. This is difficult to do prior to trial since courts do not like to create disruptions in the lives of children by making an order that, if later reversed, will result in further disruption. Esther was able to demonstrate that the mother’s plan of care met the individual needs of the two children in terms of their education, housing, family physician, financial support and extended family support. By contrast, the father’s plan of care did not consider the children’s needs, was unrealistic and would not provide the educational support that was available to the children in England. Esther made it clear that the children’s interests were best met with the mother in England.   If you seek to relocate to another jurisdiction with your children, or you are disputing your spouse’s relocation, contact Lenkinski, Carr & Richard LLP at info@lcrlaw.ca .   Read the case   Past results are not necessarily indicative of future results and outcomes will vary according to the facts in individual cases.

Question 4

MY v GB, 2019 ONSC 4907 - What is an appropriate parenting arrangement when one of the parents is abusive?"

Accepted Answer

In MY v GB, 2019 ONSC 4907, the Court addressed how a father can be effectively involved in his child’s life given the domestic violence perpetuated by the father during the relationship, the father’s continuing online campaign of vitriol against the mother and those who provided her support, and the father's anger issues demonstrated in a significant number of abusive materials posted online and filed in court.    Alex Carr represented the mother and sought final orders against the father on a summary judgment motion without requiring a trial.  While parenting decisions are often complex and require the decision maker to have the benefit of hearing from witnesses who are tested by cross-examinations, in this case, the decision was made based on written material filed by both parties.    Alex requested and the court ordered sole custody to the mother, supervised access to the father, and a permanent restraining order against the father.  The father was also ordered to engage in at least 12 hour-long psychiatric or psychological counseling sessions and to remove any public posts about the mother, her family members and her children before weekly video-chat access with the child could begin.   If you have been the victim of domestic violence and require court intervention in order to protect yourself and your children, contact Lenkinski, Carr & Richard LLP at info@lcrlaw.ca.   Read the case   Past results are not necessarily indicative of future results and outcomes will vary according to the facts in individual cases.

Question 5

Tierney-Hynes v Hynes, 2005 CarswellOnt 2632- Can a former spouse seek spousal support after it’s been terminated by court order?"

Accepted Answer

Spouses’ financial circumstances often change in the years following a divorce. In Tierney-Hynes v Hynes, 2005 Carswell Ont 2632, the Ontario Court of Appeal addressed the important question of whether a spouse can seek a variation of spousal support after a previous order terminated support.    In this case, the husband had obtained an order terminating spousal support in 1992 because his income decreased while he was training for a different specialty in his medical career. After completing his training, the husband’s income significantly increased while the wife developed health problems that left her unable to support herself. The wife applied for spousal support in 2002 but the court dismissed her claim, agreeing with the husband that a court order dismissing support cannot be varied.   Esther Lenkinski represented the wife and appealed the decision to the Court of Appeal of Ontario. The Court of Appeal ruled in favour of the wife and set aside the lower court’s dismissal of her claim for support.   Esther successfully argued that while the Divorce Act and the cases interpreting it previously emphasized the importance of finality and a clean break between spouses, Parliament had amended the Divorce Act and chose not to use language that limits the court’s ability to award support. In doing so, it recognized that the consequences of marriage and its breakdown could not always be ascertained at the time of divorce. The legal precedents the husband relied upon were no longer authoritative and the amended Divorce Act allows courts to vary an order for support when there has been a change in the conditions, means, needs or other circumstances of the parties.   The husband sought to appeal the decision but his request to appeal was denied by the Supreme Court of Canada.    Tierney-Hynes v Hynes marked a significant change in family law across Canada and provided the courts with flexibility to vary support orders.   If you have a potential spousal support claim or questions about a former support order, contact Lenkinski, Carr & Richard LLP at info@lcrlaw.ca.    Read the case   Past results are not necessarily indicative of future results and outcomes will vary according to the facts in individual cases.

Question 6

Sarafinchin v Sarafinchin - Can personal expenses paid by a corporation be included in income to calculate support?

Accepted Answer

Parents are required to pay child support according to the Child Support Guidelines, which calculate support payments based on the annual income of the payor parent and the number of children for whom support is payable. The Guidelines are designed to ensure consistent, predictable and fair treatment.  In Sarafinchin v Sarafinchin, the father was self-employed and organised his affairs such that his personal expenses were paid through his business corporation. While his personal income tax returns reflected an annual income of $60,000, he enjoyed a lifestyle that included a waterfront cottage in Muskoka, a ski chalet in Collingwood, nine boats and memberships at various sports clubs which were attributed to business expenses.Esther Lenkinski, who represented the mother, reviewed the father’s disclosure and argued that the expenses he claimed as business expenses including his sports club memberships, vacation properties and other miscellaneous expenses, should be added back to the father’s income available for paying child support. Esther further argued that the father’s income should be increased to reflect the fact that he paid much less in income taxes than he would have paid if he were a salaried employee paying these expenses with after tax income. The court agreed. Expenses that were not business-related were added back to the father’s income, and his income was “grossed-up” to reflect his tax savings from paying these expenses through the corporation. The court ultimately determined that the father’s income available for paying child support was $384,505. Since Esther argued Sarafinchin in 2000, it has become common practice among the courts to “gross-up” a payor parent’s income when he or she unreasonably deducts expenses and earns a portion of his or her income at a lower tax rate. If you are a self-employed and have questions about how this may affect your support obligations, or if you are a recipient of child support or spousal support and believe that the payor’s income is not properly reflected on their income tax returns, contact Lenkinski, Carr & Richard LLP at info@lcrlaw.ca . Read the case   Spouses’ financial circumstances often change in the years following a divorce. In Tierney-Hynes v Hynes, 2005 Carswell Ont 2632, the Ontario Court of Appeal addressed the important question of whether a spouse can seek a variation of spousal support after a previous order terminated support.    In this case, the husband had obtained an order terminating spousal support in 1992 because his income decreased while he was training for a different specialty in his medical career. After completing his training, the husband’s income significantly increased while the wife developed health problems that left her unable to support herself. The wife applied for spousal support in 2002 but the court dismissed her claim, agreeing with the husband that a court order dismissing support cannot be varied.   Esther Lenkinski represented the wife and appealed the decision to the Court of Appeal of Ontario. The Court of Appeal ruled in favour of the wife and set aside the lower court’s dismissal of her claim for support.   Esther successfully argued that while the Divorce Act and the cases interpreting it previously emphasized the importance of finality and a clean break between spouses, Parliament had amended the Divorce Act and chose not to use language that limits the court’s ability to award support. In doing so, it recognized that the consequences of marriage and its breakdown could not always be ascertained at the time of divorce. The legal precedents the husband relied upon were no longer authoritative and the amended Divorce Act allows courts to vary an order for support when there has been a change in the conditions, means, needs or other circumstances of the parties.   The husband sought to appeal the decision but his request to appeal was denied by the Supreme Court of Canada.    Tierney-Hynes v Hynes marked a significant change in family law across Canada and provided the courts with flexibility to vary support orders.   If you have a potential spousal support claim or questions about a former support order, contact Lenkinski, Carr & Richard LLP at info@lcrlaw.ca.    Read the case   Past results are not necessarily indicative of future results and outcomes will vary according to the facts in individual cases.

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