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Bad Faith and the High Cost of Divorce

Earlier this summer, the Ontario Superior Court of Justice released on interim decision on a divorce proceeding. The actions of the father in that case demonstrate bad faith and the high cost of divorce. This is a story of what you can’t do when you initiate divorce proceedings. Nobody gets married and plans for divorce. At times, the highly emotional situation can lead to bad decisions that can turn costly.

 

First Steps to Initiate a Divorce Proceeding in Ontario

This Court decision is on the divorce of a mother and father who were married in 2018 and had one child together. The child was under 2 years old at the time of the separation. The father had two children from a previous marriage who he had access to. The mother was from Columbia and also had two children from a previous marriage. The mother moved to Canada in 2019 with her children. Both her and the child had medical issues.

The couple was living in a residence owned by the father’s family. At the time of separation in April 2020, the mother, father and three children were living in the home. The father’s children from his first marriage also stayed there every second weekend.

In April 2020, the father moved out of the matrimonial home and moved in with his parents. The mother continued to reside in the matrimonial home with the child from this marriage and her two children from a previous marriage.

On June 22, 2020, the father’s lawyer sent a letter to the mother which stated that the matrimonial home was rented and the lease was to be terminated. The mother was to vacate the home within three days.

This is an example of bad faith. The father was using his family to apply pressure to the mother to have her leave the matrimonial home. She had only lived in Canada for five months and had no income and no way to care for her children.

 

What is an Urgent Family Law Application in Ontario

This situation is exactly what an urgent family law application is for. The mother had just arrived in Canada and was completely dependent on the father for financial support. The mother had medical issues, including reduced immunity, which made her at risk during the ongoing pandemic in Ontario.

Typically motions are not heard until after a case conference, unless it is urgent. During emotional separations, it may seem like everything is urgent and needs to be resolved immediately. Urgent in this case means hardship if required to wait. Hardship would be to have no home and no income to care for three children.

The mother was successful in having her application heard prior to the case conference. She sought spousal support, and child support for the child of the marriage as well as child support for her children from her previous marriage.

 

Bad Faith and the High Cost of Divorce in Ontario

The father’s actions proved to be costly. In this instance his bad faith proved to be costly. The father reported his income as $92,000 per year. According to the online Canada Revenue Agency payroll calculator, his net income is approximately $5,500 per month. While the judgement is not clear, he would likely be paying $1,374 per month in child support for his two children from his previous marriage.

The mother sought child support for their child as well as her children from her previous marriage. The father argued against paying child support for these two children. The Judge found that since the children came to Canada to form a new family with the father, for the purposes of interim child support, they were children of the marriage. This decision could be looked at again with a full trial on the issue.

The father was ordered to pay child support for these three children, which according to the Federal Child Support Guidelines is approximately $1,795 per month. Just in child support alone, the father was ordered to pay more than 55% of his monthly salary.

The father was also ordered to pay the mother $343 in spousal support, in addition to this high level of child support. Further, as the mother still had nowhere to live, the Court ordered that she remain in the matrimonial home and the father was to pay all rent and utilities. While the father did not own the house, his family was represented in Court and were also subjected to the decision.

 

How to Initiate a Separation in Ontario

There is no information on this point in the decision, but if the father’s family expected to be paid rent each month, it would be very costly. Child support is approximately $3,169 per month and spousal support is $343 month. A very conservative estimate on market rent on the home would be approximately $1,500 per month and utilities would be an additional few hundred per month. These expenses are getting very close to the entirety of the father’s take home pay each month.

Whether or not to separate is always a difficult decision. Sometimes, living under the same roof, but separate and apart is an option. If you are at the point where you are going to leave the matrimonial home, ensure that each person has the financial resources to provide the necessities for the children.

It this situation, the father could have made a different decision. By ensuring the mother had financial resources to care for herself, there may have been a different outcome. Instead, the father is now paying almost his entire salary in support payments.

Contact Hearty Law if you are considering separation. Hearty Law provides legal services on spousal support, child support, retroactive support, hidden assets, concealed income, property distribution and other family law financial needs. Either complete the contact form here, or email toronto@heartylaw.ca or ottawa@heartylaw.ca.

Hearty Law serves Toronto, Ottawa and the surrounding communities.

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