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Canadian father must pay twice his income in maintenance

A father in the Canadian provice of Ontario is required to pay twice his after-tax monthly income in spousal and child support, a newspaper reports.

The 51 year-old, from Oshawa, 60 miles east of Toronto, currently earns approximately CA $5,400 (£3,251) a month before taxes, as a consultant for a flooring company, according to the National Post. But since a family ruling in 2012, he has been required to pay his ex-wife $2,866 a month in child support, alongside no less than $4,000 in spousal support. The monthly total of $6,866 (£4,131) is, of course, around $1,400 (£842) more than his entire salary. After taxes his net income is just half the required support payment.

Remarkably, the paper reports, his former wife returned to work as a teacher two years ago and now earns much more than her former husband: around $100,000 (£60,195).

But the father of two is still struggling to persuade the courts to reduce the maintenace award. He is now hundreds of thousands of dollars in arrears, has had his passport seized and has also been threatened with the loss of his driver’s licence. His wages are ‘garnished’ (subject to automatic deductions) and he and his second wife have been forced to find approximately $650,000 (£391,495) in legal and related costs during years of litigation.

In order to try and pay the bills, the couple have been forced to sell his home, her cottage, their pensions and his 50 per cent share of the flooring business. They now rent rooms from his parents, raising extra cash through backyard and car boot sales.

At the original 2012 hearing, the judge decided the father’s sale of his share in the business meant he had deliberately decided to become “under-employed” and that he must “bear the consequences of this”. He had no legal representation at the hearing.

Since then he has twice tried to vary the order via a so-called ‘motion to change’. Both times his ex-wife has countered with an application for ‘summary judgement’ which, if successful, would have seen his motions thrown out of court. The second application for a motion to change was made at the invitation of a seemingly sympathetic family court judge who said the court would need stronger evidence his inability to pay.

But both summary judgement applications were dismissed – the second in November last year. There a judge concluded that the father was “currently suffering dire financial circumstances” and “appears to have been suffering financially for some time”.

His application should therefore go to full trial, the Judge said, but his former wife promptly appealed and the case remains pending.

His second wife, meanwhile, had, a decade previously, declined spousal support and pension sharing from her first husband. Now she finds herself on the side of the table, she told the National Post.

“[My second husband and I] are fighting a system we can’t get out of. The cogs of the wheel keep turning and we are the hockey cards jammed between the spokes.”

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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  1. D says:

    Similar situation ended in suicide?

    • Suresh says:

      It is very sad state & situation for MEN across the Globe. In India even worst situation. About 100,000 married men are committing suicide every year because of these biased laws

      1) Under maintenance law court passes order without even looking / considering husband salary / exparte – Order –

      2) Under Domestic Violence Law ; courts are not required or bound to consider husband & his family side arguments and can pass any amount for maintenance, amount for accommodation, her clothing & entertainment, right to resident in her in-laws house and what not. Husband’s entire family members are screwed including married/unmarried sister-in-law/brother-in-law

      3) And if an Indian disgruntled lady is not satisfied and want to extort money then she files dowry (498A) – most abused law in the world against entire family of husband which would put whole family behind the bar without any investigation. –

      And yes for all false cases presumption of guilt lies on husband – Never ever marry to Indian woman

  2. Todd says:

    Wow, with all that to fight, poor guy — one can only wonder if he has ANY will to live.

    If ever one needed any MORE evidence of the lop-sided nature of Family Court “Justice”, this should finish it.

    Utterly disgusting.

    • Cameron Paterson says:

      Just to be clear, we haven’t seen any suggestion that the father in question is suicidal. The Canadian case discussed by John Bolch last week concerned a different individual

  3. yvvie says:

    I am just wondering how this man can pay more out than he receives in. If he manages to do that he should bottle it and sell it. The situation seems to be his ex wife is earning more than he is, so why isn’t she paying spousal maintenance to him. Or does it not work like that. Who knows what goes on in anyone’s mind when embroiled in a situation such as this. Is he required to give notice of suicidal intent. Perhaps Cameron Paterson can advise?

    • Cameron Paterson says:

      I was just responding to the fact that the first two comments on this story mentioned it – and now you have too of course. I don’t really think it’s a topic we should be speculating on

  4. Andrew says:

    It’s a bit reminiscent of the American court which sentenced someone to several terms of life without parole – consecutively . . .

  5. spinner says:

    Who knows without looking into the details of the case but it could be that he is deliberately reducing his income although from the sounds of it this would be a very extreme example of people trying to do this. With a formula approach as they have in Canada it’s possible to determine from the length of the marriage how long and from the earning potential how much needs to be paid. I personally would be way happier with this approach rather than the life orders that may or may not be dismissed as we have commonly used here in the UK.
    (*Comment edited – please see our moderation policy here)

  6. Rob says:

    Hello to all our friends in the UK. I am a Canadian accountant and I offered to do a forensic accounting analysis of this situation so I am privy to what happened.

    This is a classic case of double-dipping. The man’s business was valued and split in a property assessment. He was a 50% owner in a flooring business and his 50% interest was valued at approximately C$600,000. Therefore he had to pay his ex-wife C$300,000. That forced him to sell his business thus depriving him of the ability to earn that type of income in the future. Opposing counsel quoted a case involving stock options to impute an income to him of C$284,000. Ironically even as a corporate owner, he only made that much in 2 of the prior 7 years. Stock options have nothing to do with selling a business. Are UK family law lawyers as stupid as our Canadian counterparts? If you need some stupid lawyers, we’ll deport some of ours to the UK.

    It is difficult to find a Canadian case where this has come up and the Judge actually made a correct decision but I found an American precedent as follows:

    “We agree with the defendant that the Supreme Court [the trial court in New York state] impermissibly engaged in the “double-counting” of income in valuing [the husband’s] business, which was equitably distributed as marital property, and in awarding maintenance to the [wife]. . . Here, the valuation of the [husband’s] business involved calculating the [husband’s] projected future excess earnings. Thus, in valuing and distributing the value of the [husband’s] business, the Supreme Court converted a certain amount of the [husband’s] projected future income stream into an asset. However, the Supreme Court also calculated the amount of maintenance to which the [wife] was entitled based on the [husband’s] total income, which must have included the excess earnings produced by his business. This was improper. ‘Once a court converts a specific stream of income to an asset, that income may no longer be calculated into the maintenance formula and payout.’”

    This means that he should have only been imputed income as an employee. He’s making C$65,000 as an employee.

    I have advised

    1. The 550,000 in arrears should be wiped out
    2. Ongoing he should pay no child or spousal support and an argument can be made that she should pay him (it depends what income he is imputed as an employee) and
    3. Opposing counsel should pay all his costs.

    The lawyer and Judge stole a million dollars from this guy.

    I am hopeful that we can get justice for this man. He is hanging on and is hopeful to get some justice. I just spoke with him a few days ago.

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