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Wednesday Video Clip: Law Video Bloopers

 

 

Wednesday Video Clip: Law Video Bloopers

Yes even the lawyers can get it wrong from time to time. But hey, we are trying!

In Court, Must a “Private” Facebook Page Stay Private?

FB data

In Court, Must a “Private” Facebook Page Stay Private?

In a recent Nova Scotia case called Conrod v. Caverley, the court considered an evidentiary question of modern-day importance: Can a court order a plaintiff to disclose his or her “private” Facebook page?

The plaintiff had sued the defendant in connection with a motor vehicle collision, claiming that the injuries she suffered had left her with severe neck, back, arm and leg pain. Since the accident she had been unable to return to work; she claimed a loss of enjoyment of life, including an inability to fully participate in social and recreational activities. She also complained of impaired concentration, which affected her ability to spend time surfing the internet.

In response to these claims, the defendant went to court to ask for an order requiring the plaintiff to produce a full, printed copy of her Facebook profile, including the information and photographs that – due to her privacy settings – were only visible to her “friends”. He also asked for a printed copy of her Facebook usage history, including her login/logout information. He claimed that this information was relevant to her damages claim relating to loss of enjoyment of life, as well as her complaint that she could not concentrate or participate socially to the extent she had done before the accident.
In making its decision, the court relied heavily on two prior Ontario cases in which the same issue was raised, also in connection with motor vehicle accidents.

In Leduc v. Roman, the defence had asked for an order allowing it to see the plaintiff’s entire Facebook profile, including the information and photographs that had been set as private. Ultimately, the court declined, finding that it was merely speculative that – given the nature of Facebook – the contents of a “typical” private Facebook profile would likely include material relevant to the litigation. Rather (and as with all types of evidence), the plaintiff could be cross-examined in the usual fashion on what potentially-relevant content might be contained there.

In making this ruling, the court in Leduc relied on the reasoning in an earlier similar decision, Murphy v. Perger, which also involved a request for access to the private portion of a plaintiff’s Facebook profile. In that case, the judge had outlined the following principles governing Facebook information sought to be used in accident litigation:

• It is reasonable for a court to infer that, given its social-networking nature, Facebook contains some content that is relevant to the issue of how the injured plaintiff has been able to lead his or her life since the accident.

• Where the party sets their entire profile to “private” (so that the public page consists only of name and possibly photo), then a court can infer – given the social networking purpose of Facebook – that users make personal information available and photos available to others.

• Where a party to litigation has both a “private” and “public” profile, it is also reasonable to infer that the content of both profiles will likely be similar. In the right circumstances, a court is therefore entitled to order that the private profile be produced.

Returning to the Nova Scotia case, the court applied those principles to the facts at hand: Looking specifically at the plaintiff’s public Facebook page, the court declined to jump to the conclusion that it necessarily contained information relevant to her litigation claim. Nor could it conclude based on that same publicly-accessible information that the contents of her private page would likely be relevant and should be ordered produced.

On the other hand, the court did order that the plaintiff’s log of internet usage with respect to her Facebook account be produced; that information was directly relevant to her claim that the accident injuries had affected her ability to concentrate, and was therefore relevant.

For the full text of the decision, see:

Conrod v. Caverley, 2014 NSSC 35 (CanLII)

Leduc v. Roman, [2009] O.J. No. 681; 2009 CanLII 6838 (S.C.J.)

Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

 

Laura Receives Client Service Award

CSA - Laura

Laura Receives Client Service Award

We are pleased to announce that Laura recently received our Client Service Award for her excellent commitment to helping our clients.

Laura helps clients in both our Brooklin and Lindsay offices. Her attention to detail and friendly prompt service makes her a valued member or our team. Congratulation Laura.

 

 

 

If You Give Something Twice, Was it Really a “Gift” in the First Place?

 house gift

If You Give Something Twice, Was it Really a “Gift” in the First Place?

In a recent Ontario property-division case called Nadendla v. Nadendla, the court grappled with whether to believe a husband’s testimony pertaining to an apartment in India allegedly he bought for his mother.

The couple married in 1993, had two children, and separated in 2011. As part of their subsequent divorce litigation, the husband testified that in 2007 after his father’s death he and his brother decided to purchase a $70,000 three-bedroom apartment in India for their mother. He claimed that at the time of purchase it was always intended by them to be the mother’s home upon completion, and provided details to the court about the alleged payment arrangements.

The wife, in contrast, claimed that it was not bought for the husband’s mother at all; rather, she understood it was merely bought as a real estate investment to be used when the couple went to India on family trips. (And this did take place on one occasion, and the husband’s mother was not there at the time). The wife said she was aware of family finances, and that the husband’s after-the-fact claim to the contrary was merely his attempt to keep the apartment out of the family property division process upon the couple’s subsequent separation and divorce.

The court looked at the evidence, and despite the husband’s assertions to the contrary found that he was actually the 100% owner of the apartment. The court noted certain evidentiary inconsistencies, such as the fact that: 1) on certain travel documents and a settlement deed the mother’s address was listed as the family home, not the apartment; and 2) there was no corroborating evidence that the husband’s brother invested any money as claimed. The court also noted that the husband had first claimed he gifted his share of the property to the mother in 2012, but this contradicted earlier testimony that he had given her a cash gift in 2008 and bought the apartment himself.

But most tellingly, the court pointed out that the husband’s claim to have transferred the apartment in 2012 (allegedly to placate certain people in India who had questioned his mother’s legal right to it) would not have been necessary if he had made an outright gift to her in 2008. In other words, if the husband bought his mother the apartment as a gift in 2008, then it was not his to give her a second time in 2012.

In short, the court rejected the husband’s evidence on the apartment in India, and concluded that the wife was a more credible and reliable witness. It accordingly made a factual finding that the couple’s funds were used to buy the apartment in India, in the name of husband, as a real estate investment. The apartment was therefore to be included in the Net Family Property division and equalization process in the normal course.

For the full text of the decision, see:

Nadendla v. Nadendla, 2014 ONSC 3796

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Ontario Custody and Access: Who’s Is Entitled To The Child? – Video


 

Wednesday’s Video Clip: Who’s Is Entitled To The Child?

There is a general misconception that when a couple separates, the children must automatically stay with their mother. But in Ontario, the mother and father are equally entitled to custody of the child.

In this video we examine who is entitled to custody of the child, defacto custody, and mistake parents, often fathers, make regarding custody and the establishment of a status quo. She also explains the difference between custody and access.

Did Kids’ Hockey Schedule Trump Father’s Access Rights?

 hockey bag 2

Did Kids’ Hockey Schedule Trump Father’s Access Rights?

In a recent case, two separated parents had agreed to certain custody and access arrangements pertaining to their two sons, now aged 13 and 11. Those arrangements had been formalized in a final court order. Because the father had been criminally harassing the mother to the point where she feared for her safety, the father was also ordered to be subject to a restraining order essentially preventing him from contacting her or going within 300 meters of her place of residence or employment.

The father claims that the mother misused the discretion that the court order had given her, by monopolizing the children’s time whenever possible. In particular, he claimed that she deliberately scheduled the children’s soccer and hockey activities during times when he was supposed to have access, and that various tournaments were scheduled during his time with the boys as well. This was complicated by the fact that the restraining order that was in place also prevented him from being at the same place as the mother.

In short, he claimed that the mother was engaging in tactics to prevent him from having meaningful access to the boys.

The mother conceded that the father’s access had been frustrated in some instances, but offered circumstance-specific justifications. She also pointed out that on several occasions the father himself had either asked to cancel access, or had consented to cancel it, sometimes making up the time on other dates. However, she did not deny that in some instances she had refused to allow the father to have access, but it was because co-operation between them had deteriorated.

The court elaborated on how the hockey issue had played out:

Another explanation for the deterioration in relations between [the mother] and [the father] is that [the mother] served as liaison for [the son’s] ockey team and joined the team in their locker room with the result that [the father], whose terms of probation prohibited him from being in the same room as [the mother], was prevented from accompanying [the son], like the other fathers, even if the practice or game fell on a night when he was to exercise access. [The mother’s] lawyer minimizes the importance of this encroachment on [the father’s] access, arguing that it interfered with his access for only a short time at the beginning of games, but I find that it would have been humiliating for [the father] to be centred out in this manner in front of the parents of [the son’s] team-mates.  It is not surprising, in these circumstances, that hockey assumed a greater importance to [the mother] than it had for [the father]. When there was a conflict between the boys’ hockey commitments, and especially those of [the one son], who served on a “Rep” hockey team in 2011 and 2012, [the mother] expected [the father] to accommodate [the son’s] hockey schedule, attending at the practices and games and departing from the boys when they joined their mother and their teammates in the locker room. [The mother] explains that the rules of [the son’s] “Rep” team required him to attend every game and practice, or be “benched” if he missed one. If he missed a game, [the mother] explains at para. 17 to 20 of her affidavit, he would not be allowed to play with his team the next season. …

 

[The mother] states in her affidavit that she did not know whether [the father] would take the boys to their hockey games or practices. Her preoccupation with ensuring that they attended, combined with her uncertainty as to whether [the father] would take them, caused her to refuse access, or support the boys in their resistance to accompany him, so that she could assume responsibility for them herself at these times.

Still, after scrutinizing the evidence of various incidents on a more individual basis, the court found that on at least some occasions, the mother did deliberately foil the father’s access to the children, and was therefore in breach of the court order. Those breaches affected the children’s best interests, and the court took this into account when re-evaluating and amending the father’s access entitlements are part of a larger variation order.

For the full text of the decision, see:

Durkin v. Cunningham, 2014 ONSC 4659 (CanLII)

 

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Does Failure to Disclose $20,000 in Savings Void a Marriage Contract?

 missing document

Does Failure to Disclose $20,000 in Savings Void a Marriage Contract?

The couple married in 1999 after what was largely a long-distance relationship. Apparently in response to a recent affair by the husband, the wife prepared a marriage contract, which she presented to him three weeks before the wedding. She told him she would not marry him unless he signed. The husband, who did not seek legal advice, signed the contact on their wedding day.

Nine years later, when the couple separated, the husband went to court to have the marriage contract set aside.

Among other things, he claimed that: 1) he did not understand what he was signing, 2) he was under duress; and 3) the wife had failed to disclose $20,000 in savings, and that had he known about this significant asset, he would not have signed at all.

The husband’s motion to have the marriage contract set aside was dismissed. The court made the following specific findings:

• The wife’s non-disclosure of $20,000 in savings was not of great significance in the grand scheme, and did not believe that the husband would have governed himself differently, had he known about it beforehand.

• While the husband’s first language may not have been English (he was Turkish), he was a highly intelligent and educated man who was on his way to earning his Ph. D. in English. He had worked in journalism in English before getting married, and had studied and taught at Ivy league schools in the U.S. All of this belied his claim that his language skills were inadequate and that he did not understand the agreement or what he was signing.

• Likewise, in light of his education and work/life experiences, his claim that he was under duress did not ring true. As the court put it: “He was no shrinking violet.”

About the husband’s additional claims that the contract was unconscionable and that he had not obtained independent legal advice prior to signing, the court said:

The fact that he chose not to seek legal advice was a decision that was his to make. While he may regret that choice now given how things have turned out, regret about a choice made is not the test for setting aside a contract. … Any party to any agreement runs the risk that they are making a poor bargain. As things turn out, any agreement can be revealed as foolhardy and regrettable. … This contract was a meeting of minds. It may not have turned out advantageously for both, but such a result does not equate to a finding of unconscionability. … In the final analysis I find that the results are within the range of what the parties freely intended. It must never be forgotten that the ability to contract is a pillar of a free society.

As a result, the marriage contract was held to be valid and enforceable.

For the full text of the decision, see:

Tunc v. Portugese, 2014 ONSC 3909 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

 

Does The Age of The Child Affect Child Support in Ontario? – video


 

Wednesday’s Video Clip: Does The Age of The Child Affect Child Support in Ontario?

Simply put, the age of a child does affect the amount of child support ordered.

In this video, we review how and when the age of the child could affect child support.  Income considerations, age of the child and needs of the child should be considered.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family-related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.

Does Large Age Gap Between Spouses Dictate an Unequal NFP Division?

 unequal

Does Large Age Gap Between Spouses Dictate an Unequal NFP Division?

The old-fashioned term for it is a “May-December” marriage, where one spouse is considerably younger than the other. Think Ashton Kutcher and Demi Moore (and we all know how that worked out!).

In a recent case called Dnistrianskyj v. Savard, the much-younger wife raised the argument that she should be awarded an unequal division of Net Family Property (NFP) because she had married very young to an older man, and that unless there was an adjustment she would not get sufficient financial support from him now that he was on the brink of retirement.

The woman worked as a babysitter for the husband and his first wife from the time she was approximately 12 years old. The woman and the first wife became friends, and she would sometimes accompany then on vacations to help with the care of the three children.

When the husband was 36 and the woman was 17, the first wife died suddenly from a heart-related issue. Only a few months later, the husband initiated a sexual relationship with woman; because the husband was an RCMP office and he was concerned about being found cohabiting with a minor, they hid the relationship for a time, especially from the children and the first wife’s parents. Nonetheless, they eventually moved in together “officially”, and were married in 1989. They separated about 20 years later.

The court chronicled the wife’s complaints in the period leading up to separation this way:

During that time, the relationship between the parties was experiencing difficulty. [The wife] indicated that there was a sense that [the husband] saw her role within the marriage as a “maid with benefits”, meaning that her job was to do the childcare, cooking and housekeeping, as well as to satisfy [the husband] in the bedroom. He insisted that she not be involved in family finances or in decisions regarding “his” family, notwithstanding that they were married and she was the primary caregiver for [the three children]. [The wife] said that she was young compared to him and vulnerable, as she was not working and was estranged from her family. If she argued with his authority, he would threaten divorce and, at times, would pack her suitcase and take her to a hotel. After staying a night she would need to beg him to be allowed to come back. He would, at times, take her car keys away from her. Letters written by [the husband] supported her view of the relationship during this time.

Against this background, and in addition to numerous other legal issues, the court considered the valuation of the wife’s share in connection with their respective NFP amounts. It noted that the court had the discretion to award a spouse an amount that is greater or less than the NFP in cases where to do otherwise would be “unconscionable”, having regard to various specific factors.

Noting that the test of unconscionability is exceptionally high, and that it covers scenarios that “shock the conscience of the court”, the court evaluated the wife’s claim that her overall circumstances were unfair considering her contributions to the husband’s family, the age difference, the need to be re-educated after separation, and especially the period of cohabitation before marriage when she was only 17 years old. She claimed that these considerations were not adequately addressed by whatever spousal support she might receive in the divorce settlement.

In response to this, the court said:

However, in her evidence [the wife] did not present herself as someone who was weak or oppressed, or wronged by what turned out to be her life. Without a doubt she was young and vulnerable when she started her relationship with [the husband]. But she was also headstrong and determined. Her parents tried to alter the path she was on, with no success. In her evidence, [the wife] said that she recognized her own responsibility in choosing her circumstances, and that she made those decisions as she loved [the husband] and she loved his children. With the hindsight of a 44 year old adult, she said that she did not regret much. She certainly grew and matured with time, dealing with some very difficult issues within the family with dignity and composure.

As a result, the court found that the requisite level of “unconscionabilty” was not met in this case, to the extent that an unequal division of NFP should be ordered. The court concluded:

[The woman] had a general sense of the unfairness of having married very young to an older man who was now seeking to withdraw from the workforce when she would benefit from his financial support. I accept that. However, I am unable to find that this rises to the level of unconscionability under [the Family Law Act] such that it shocks my conscience. I also find that the relief under [the Act] must be tied to the acquisition, disposition, preservation, maintenance or improvement of property, and that has not been made out in this case.

For the full text of the decision, see:

Dnistrianskyj v. Savard, 2014 ONSC 2152, 2014 CarswellOnt 4242

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

24-Year-Olds Twin Embark on Second Degree: Must Dad Still Pay Child Support?

con hall

24-Year-Olds Twin Embark on Second Degree: Must Dad Still Pay Child Support?

We have written in the past about how parents can no longer assume that they have done their duty once adult children have obtained one degree from an institute of higher education.

In a case called Holman v. Holman, one of the issues was whether the father, who had split from the mother, was still obliged to pay child support for his two twin daughters, who were now 24 years old. Under the terms of their settlement and subsequent divorce order, the father was obliged to pay $10,000 annual towards the children’s education as long as they were enrolled in a program of post-secondary education.

Both girls had obtained their first university degrees in 2011. One of them continued to take part-time classes in 2012; the other took a two-year diploma course that ended in 2013. Both girls earned about $24,000 at part-time jobs, and still lived rent-free with their mother. (And in the case of one of the girls, she had told the father that she did not wish to work full-time since it would reduce the amount of time that she spends at the gym.)

After their first degree, the father told them both in writing that he was only prepared to cover the cost of their first degree; both responded that they did not have an issue with their father’s position. The parents therefore went to court to have the father’s support contributions adjusted to accommodate for the facts.

The court examined the situation. In Ontario, the law is clear that parents cannot automatically assume that their child support obligations end once they have put their children through one college or university degree. Instead, whether or not the support obligation continues past an initial degree will depend on a number of factors, including the means, needs and circumstances of the children, as well as each parent’s ability to contribute to child support in light of the personal circumstances of their own.

More importantly, the father could not unilaterally decide that his educational support obligations to his daughters ended once they had completed their first degree. Instead, as the court put it, “an undergraduate degree in these increasingly competitive times may merely be the first step in the journey to become sufficiently educated for the workplace.”

The court examined each of the girls’ overall educational goals, together with their respective efforts in obtaining them. For example, one of the daughters had taken a 4-year degree and then entered a veterinarian technician program; the father pointed out that she didn’t need the degree and could have entered that same program right out of high school. In assessing the daughter’s educational path, the court wrote:

I disagree that [the second daughter’s] decision to pursue an undergraduate degree before enrolling in the Veterinarian Technician’s program disqualifies her from parental support in the post-May 11, 2011 period. [The mother] provided credible evidence that [the daughter] initially aspired to be a Veterinarian. Enrolment in the Bachelor of Science program was the prelude for her to achieve this goal. She subsequently realized that her academic goals were beyond her grasp. She then decided, upon graduation, to pursue a more realistic goal within the discipline that she had chosen for a career.
In my view, [the daughter] should not be punished by being deprived of parental support because of the professional goal she initially set for herself but settled for something else. Indeed, it is to her credit that she did not turn her back on her aspirations after completing her undergraduate degree but chose to pursue a diploma within her chosen field. [The father] should not be relieved of the responsibility to support her because of the educational choices which she reasonably made.

With that said, the court also pointed out that although the law does not require her to foot the bill on her own entirely, the daughter should have been asked to contribute part of her $24,000 in annual earnings to put herself through school. As a result, the father’s support obligations toward that daughter were reduced for the year.

The court made further adjustments in light of the parties various obligations, as well as their current and past contributions to the girls’ support and education.

For the full text of the decision, see:

Holman v. Holman, 2013 ONSC 6988

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family-related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.