Colman’s client recovers more than $60,000 in support
By Rob Lamberti, AdvocateDaily.com Contributor
Toronto family lawyer Gene C. Colman recovered almost C$63,000 for a U.S.-based client in a support settlement after a judge found his separated Canadian spouse wasn’t forthcoming about changes in her circumstances.
The woman sought to increase the amount that was set in a 2008 order for spousal and child support payments, arguing the income of her separated husband, who works in the U.S., had increased since then, he tells AdvocateDaily.com.
“But she didn’t immediately disclose until well into the motion that one son had gotten married, another works full-time, a third left university to go on a religious mission in Australia, and a fourth child remains in high school," says Colman, principal of Gene C. Colman Family Law Centre.
“The changes were disclosed during a settlement conference brief deep into the case,” he says. “Those revelations led the judge to order a refund in support payments, and the U.S. exchange rate — the currency the plaintiff paid — worked in the respondent’s favour.”
Colman says the judge vindicated his client “100 per cent” in her March 29, 2018, ruling, and that the man now “has a beacon at the end of the tunnel” for paying support.
In the end, the applicant owed the respondent C$62,901.38 after setting off the s. 7 expenses, the judge found. She also ordered spousal support payments, which had been opened-ended, to cease in 2020.
The lesson from this case is that the parties should be “scrupulously honest in the material the client presents,” Colman says. “If you know a child has or is about to lose their status as a child within the meaning of the Divorce Act, you must disclose it.
“It’s easier to be upfront about all the relevant facts. That’s how we got about C$63,000 back as well as C$73,450 in costs, and a definitive end to spousal support payments,” he adds.
The mother of four children filed a motion to change an existing 2008 agreement “asking for all sorts of things, including huge increases in spousal support,” Colman says.
“A significant point in the standoff between the two began when I argued that spousal support calculations aren’t always based on dollar-for-dollar income increases of one of the parties,” he says. “The applicant calculated increased payments through the spousal support advisory guidelines of about $250,000 over the period.
“In some circumstances, you get to share more, and in others, you don’t,” Colman says. “She wanted to go all the way back to 2008, and I said, ‘Be careful what you wish for.’”
The 2008 order was agreed to by all the parties, where Colman’s client would pay US$3,000 a month, he says, plus a US$5,000 retroactive payment, US$3,700 in costs and US$1,300 for cost-of-living adjustments.
Colman says the woman returned in 2016 seeking an adjustment because his income had increased.
“Her claim, however, was in Canadian dollars,” he says. “An interim order was placed in August 2016, increasing the respondent’s financial commitments, including $800 per child for child support and a $6,000 payment for home repairs.
“The exchange rate in some of the years under review became very favourable for my client,” Colman says. “We did the calculations according to his increased income, which showed he had, in fact, overpaid.
“They thought they were going to get $250,000 or something, but it was much more complicated than that, and our approach was accepted at the hearing of the full day long motion,” he says.
“We did far better for our client than we ever imagined,” he says. “Lawyers need to carefully listen to what their clients are saying because if they’re failing to disclose all the facts, it will come back to bite you and your client."