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Top 5 Excerpts from Nicolaides v. Nicolaides – A Family Judge Tells it Like He Sees It

Top 5 Excerpts from Nicolaides v. Nicolaides – A Family Judge Tells it Like He Sees It

A while ago I wrote a blog titled “15 Best Quips by Justice Quinn in Bruni v. Bruni” http://bit.ly/lhJ15r , in which I quoted from Justice Quinn’s written judgment in a family law decision.   The judgment was noteworthy because it contained particularly candid (and often quite amusing) remarks, particularly with respect to the judge’s assessment of the litigants and their honesty and character (or lack thereof).

Earlier this year, The Honourable Justice A. Duncan Grace displayed a similar straightforwardness in writing his judgment in the decision in Nicolaides v. Nicolaides, where he was required to rule on numerous issues in relation to the marital separation of Alkis and Louise, a husband and wife who had three children.  Over the years, Alkis’ parents had purportedly made various gifts to the couple; these included a $60,000 deposit towards the purchase of their matrimonial home, and an outright gift of a particular piece of real property on Eastmoor Avenue in Toronto.

In this context, Justice Grace had to assess the credibility and character of the parties, and that of some of the background “players” as well.  

So here we go, the top 5 quips by Justice Grace in Nicoladides v. Nicolaides:

1. Justice Grace begins the judgment by introducing the main parties as follows:

The applicant Louise Nicolaides (the “Louise”) and Alkis met in 1983 while still in high school. They dated for some time, broke up and as fate would have it, got together again.
Alkis lived with his parents Andreas and Zoe Nicolaides (respectively “Andreas” and “Zoe”) at their home at 3 Christina Crescent, Toronto (the “Christina property”). Andreas and Zoe were originally from Cyprus and had immigrated to Canada many years before.

In October, 1989 Louise joined Alkis and his family at the Christina property.

The arrangement was less than ideal. The residence was small and already fully occupied. Alkis and Louise were not models of maturity or responsibility. They were untidy. Some would say slothful.

2. Justice Grace continues by giving an overall assessment of some of the parties’ credibility:

Left with bits of information the picture is foggy. In short, with few exceptions it is unclear who paid what, when or in what circumstances. Credit was taken for payments made and blame placed for those not made. However, unless supported by documentation the chest thumping and blame throwing may have made the witnesses feel better but it did little else.

The oral evidence was no better. Louise, Alkis and Andreas gave evidence that seemed tailored to the position they were advocating. None of them left a favourable impression. Zoe essentially adopted but added nothing to the evidence of her husband.

Andreas gave testimony which was frequently shown to be inconsistent with evidence given earlier in the proceeding. His objective was clear: to leave no toehold for Louise and her argument that she has any ownership interest in Eastmoor.

3. Justice Grace then focuses on various minor aspects of evidence to establish Alkis’ overall untruthfulness:

Alkis testified that he had only one bank account. He was shown a receipt for an Xbox dated December 6, 2009. The $214.55 purchase had been made with a debit card. Alkis said the purchase had been charged to his RBC account. That amount was not debited from his account on that or any other date.

When confronted with that fact, Alkis indicated, after a long pause, that a friend had made the purchase on his behalf and he had paid his friend back. There were periodic cash withdrawals making such a statement theoretically possible but I did not believe him on that or very many other occasions.

Alkis was asked about the use of a cell phone. In an excruciating exchange he first denied having a cell phone. When it was pointed out to him that he was not shy about using a cell phone in the court house he reluctantly acknowledged having one. There was a sad dance about who owned the cell phone. In time he agreed it was owned by a “friend”. He did not want to name the friend but did so when instructed.

Eventually he acknowledged that Louise and the children call him at the number associated with the cell phone in his possession. Finally Alkis admitted that his girlfriend — or “woman friend” as he prefers – owns and pays for the cell phone Alkis uses.

Stumbles on questions relating to cell phone use and the purchase of an Xbox may not seem like much in the scheme of things. However, when combined with the sudden end of a consistent source of income, its timing, the lack of documentary support for the alleged expulsion from a company Alkis co-founded, web pages bearing copyright dates from years when Alkis testified his sole proprietorship was not active, unfavourable impressions form, rapidly expand and take firm hold. A pattern of deception emerged.

4. In assessing the husband Alkis’ proffered evidence that due to various alleged medical conditions he can no longer work and should pay a greatly reduced level of child support for his three children, Justice Grace has this to say:

I have summarized the most current medical information introduced at trial. The limits in time and content are obvious. They do not support the conclusion that Alkis cannot work. In fact, they support the opposite conclusion. He can. He should. As evidenced by the fact he has made no effort to obtain work since September, 2007, it appears he won’t. He may have discomfort, he may need to change positions, it may take him longer to perform work related tasks but nothing I saw or heard came close to convincing me that Alkis is incapable of earning a livelihood. (Footnote:  It is significant to me that Alkis continues to play in a band despite his various ailments.)

The taste left by Alkis is sour. Rather than minimize symptoms, he maximizes them. Instead of persevering he whimpers. As a result his children suffer.

5. Finally, about Alkis’ indifference to having custody of or even seeing his own children, Justice Grace observes:

Alkis offered no insight into the children’s personalities, strengths or weaknesses at all. His evidence revolved around his role in their lives. For many years he worked at home enabling Alkis to spend a great deal of time with the children.

Post-separation, Alkis described his relationship with the children as “excellent”. That was nice to hear but it was baseless. Access follows no schedule. Why? Because Alkis maintains an “open” schedule. According to Alkis the children are at liberty to call him whenever they want and he will make himself available.

He described that arrangement as stress free for the children and said that, in a pinch, they could call him.

Once again, I am left bewildered. A man who alleges he has nothing but time on his hands has decided it is the responsibility of the children to organize their time together. What message does that send? Can he not comprehend that he should be sending the message to his children loudly, clearly, unceasingly, that he wants to see them? Needs to see them.

It is hardly surprising that by the time of trial he had not seen any of the children in more than a month. He acknowledged that he did not see Olivia or Lucas much. He attributed that fact to their busy lives. He reported seeing Christina most of all but visits with her were clearly sporadic at best.

Very simply Alkis is an immature, insensitive, lazy, unlikable and untruthful man. Allow me to express a hope I fear may never be realized: that Alkis will realize he is a cad and make an immediate and unyielding effort to better himself for the sake of his children if not himself.

 

Well there you have it.  Perhaps not the zingers and entertainment value we are use to seeing from Justice Quinn.  But it is resfreshing to see Justice Grace calling it as he sees it.

For the full text of the decision, see:

Nicolaides v. Nicolaides, 2011 ONSC 1960 (CanLII) http://canlii.ca/t/fkv8v