Ontario Family Law Blog : Barrie Lawyer & Attorney Brian Galbraith : Simcoe County, Canada Divorce, Separation, and Collaborative Law

Can you imagine receiving a $150,000 per month, tax free? Karen Sala certainly could and sued Keanu Reeves hoping he would be ordered to pay that tidy sum to her. She was not successful.

A recent article in The Star declares that the paternity case against Keanu Reeves by Sala was dismissed by the Ontario Courts. According to The Star, Justice Graham declared that the allegations against Reeves were "so incredible" that no reasonable judge would accept them.  The judge said having a trial would be a waste of limited judicial time.

Karen Sala was seeking $3 million a month in spousal support and $150,000 a month in retroactive child support. She alleged that Reeves was the father of her four adult children.

It is remarkable that she pushed the case this far. DNA tests had been done which indicated that Reeves was not likely the father of the children. DNA tests cannot say with full certainty if somneone is the father but they are accurate 99.9999% of the time. Usually, that's good enough for the judges to dismiss the case as happened in this case.

As Ms A.J. Jakubowska notes in her blog, child support payments in Ontario are not tax deductible for the payor and the recipient does not have to claim them as income. Sala would have been able to pocket $1.8 million dollars per year, tax free, had she won her case.

How is the amount of child support determined? 

Child support payments are set in accord with the Federal Child Support Guidelines. For Ms Sala to have received $150,000 per month, she would have had to prove that Reeves' income was about $8.5 million annually. I guess that's possible...

As Ms Jakubowska, a Newmarket family lawyer, notes in her blog, spousal support is tax deductible to the payor and must be claimed as income to the recipient. So, if Sala had been successful, Reeves would have been able to deduct the spousal support from his income but not the child support.

Certainly there is an incentive to sue for child support when the stakes can be this high but DNA tests constitute a mountain too high to overcome. You can't just allege someone is the father of your children these days expect to get away with it. If you are lying, science will prove you wrong. How DNA tests work is a sample of hair from the father, mother and child are analyzed in a lab. The DNA of the child is compared to the DNA of the "alleged" parents to determine if paternity is possible. Courts like the certainty of DNA tests.  They normally end the case one way or another.

Ms Sala was tenacious. She persisted in court. She lost. Case closed. Next? .....

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"Doctor Must Support Abusive Husband" is the headline in the Globe and Mail newspaper, on September 23, 2009. I am sure many people were outraged at the judge who made this decision.

In reality, I would be outraged if I was the female doctor whose husband was convicted of assaulting me and now I  had to pay him $6,000.00 per month in spousal support. But, it is the right decision.

Let's look more closely at the facts and the law.

According to The Globe, the wife has an income of over $400,000 per year while the husband's income is around $45,000. Certainly, it appears he will suffer economically as a result of the separation and that's one factor the court must consider.

Also, the wife had signed an agreement in which she agreed to pay her husband $6,000.00 per month as spousal support. That's something else to be considered too.

The doctor did not yet prove that the agreement was signed under duress or she did not understand what she was signing or that it was unconscionable. She may prove this at trial but at this point in the proceedings, the agreement appears to be enforceable.

At the trial, the judge may decide that it the assault was a repudiation of the relationship rending spousal support inappropriate, but, frankly, I doubt that will happen. The husband received a suspended sentence for the assault suggesting it was not a horrendous assault. I am sure it was horrendous for the doctor but not so in comparison to other assaults.

The courts don't get into an examination of who was the "good guy" and who was the "bad guy" in a relationship. The law is very clear: section 15.2(5) of the Divorce Act says judges are not to consider any "misconduct" during the marriage when considering whether there should be spousal support.

You may disagree with the law and believe that the court should look into the behaviour of the husband and wife before determining spousal support or, for that matter, any other issue. Maybe you feel that "misconduct" should be considered when equalizing the property. What about when determining custody and access?

Well okay... but I would not want our judiciary having to make moral judgments in family law cases. It can get pretty complicated. People would use the court to seek revenge, further escalating the pain and conflict inherent to divorce.

Judges apply the law, they don't make it. If you want to change the law, talk to your Member of Parliament but don't blame the judges. They are just doing their job.

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In the Ottawa Divorce Blog, the author is critical of the Supreme Court of Canada's decision in Leskun v. Leskun suggesting the Court is allowing "fault" to creep back into whether someone should get spousal support. In that case, the wife claimed she was still unable to work 8 years after the marriage because she was still suffering from the emotional damage inflicted when she learned her husband of 20 years wanted a divorce so he could marry another woman.

I don't think Jeff has it right in his blog. The Court is not suggesting that someone can receive spousal support simply because of the wrong-doing of their spouse. The Court is looking at the impact of the wrong-doing and concluded that, in fact, the wife was unable to become economically self-sufficient as a result of her present state of health. I don't think it would matter if the cause of her inability was hearing her husband had an affair, or she was run over by a truck.

It's the impact of the event that rendered her unable to become self-sufficient.

I certainly agree with Jeff's suggestion that everyone should do their best to recover from their divorce, but I don't feel he is being fair when he characterizes Ms Leskun's state as being "self-inflicted". Let's give her a break. If learning her husband had an affair hit her like a truck plowing down the road full speed, rendering Ms. Leskun unable to become self-sufficient, she is entitled to spousal support in my books (and according to the Supreme Court of Canada too). 

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