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Posts from the ‘Affairs – Adultery’ Category

Were Negotiations Contingent on the Husband Ending His Affair?

Were Negotiations Contingent on the Husband Ending His Affair?

In an case I had reported on a few weeks ago, the marriage contract between the husband and wife – drafted by the wife’s lawyer – had contained an inadvertent drafting error, giving the husband the full value of the matrimonial home, when the actual intent was to give him only half. The relationship irrevocably broke down shortly after the agreement was signed. In examining whether the flawed agreement should nonetheless be enforced, the court concluded that the proper solution was to overturn the part containing the error; all the more so because the husband was aware of the drafting mistake and was trying to take advantage of it. This conclusion was confirmed on appeal.

One of the many issues that had to be examined in the case, was the effect on the husband’s extramarital affair on the negotiation process. An earlier judge at trial had been accused of placing undue emphasis on the husband’s cheating, when deciding some of the other issues in the wife’s favour.

That same judge had addressed the impact of the wife’s insistence that if they were to reconcile, he would have to end the affair and get tested for sexually-transmitted diseases. It was against this background, over a brief 3-week period, that the defective marriage contract had been negotiated. As the trial judge explained:

[The wife] had three preconditions to reconciliation. The centrepiece of these conditions was that [the husband] stop his affair immediately and commit to the reconciliation process. [The husband] represented to [the wife] that he terminated his affair. He told her that he was in the wrong and that the most important thing to him was the survival of their marriage and family. On that representation, [the wife] went out of town to consider reconciling with [the husband].

The problem was, that the husband had not actually ended his contact with the woman, even though he told the wife otherwise. Even as one of the last drafts of the marriage contract was being exchanged between the lawyers, he had seen his affair partner only days earlier, while on a business trip to California.

The trial judge had to examine the effect of this revelation on the validity of the contract.

The husband’s promise that he would be committed to reconciliation, and his devoting to making the marriage work, imposed a heightened obligation of good faith on him, the judge found.   Marriage contracts, unlike separation agreements, are subject to an utmost duty of good faith and fair dealing between the spouses. The judge disagreed with prior rulings that suggested that an extramarital affair need not be disclosed because the Family Law Act and the Family Law Rules deal only with financial disclosure by spouses. Instead, the judge found that an affair could be relevant particularly if the couple was negotiating a marriage contract in circumstances of attempted reconciliation.

With that said, the trial judge applied the principles to these facts:

In this case, [the husband] told [the wife] that he had ended the affair and that his total dedication was to seeing the marriage work. This fact alone was a prerequisite for [the wife] to entertain the idea of entering into a process of reconciliation and, eventually, give this process priority over her involvement in the negotiation process of the Marriage Contract, which dealt with her most substantial assets.

I find that the perception created in [the wife’s] mind that [the husband] was committed to the marriage due to the termination of his affair renders evidence that he continued to see this woman during the negotiation process of the Marriage Contract relevant.

However, the trial judge went on to make an important distinction on these facts: The husband had admitted to continuing to see his affair partner in California, but he did not admit that he was actually continuing the affair with her. As he explained:

Having said that, I cannot find on the evidence in this case that [the husband] continued to have an affair with this other woman during the negotiation process. In this regard, I find the following:

(1) [The husband] admitted to [the wife] that he was having an affair and that he wanted out of the marriage at the end of March 2006.

(2) Although he stated in his evidence that he ended the affair when he committed to reconciliation, he admitted that he continued to see this same woman during the negotiation period. The woman with whom [the husband] was having an affair lived in California and he admitted to travelling through California in July 2006 in the midst of the Marriage Contract negotiations. Admitting to continuing to see her does not allow me to conclude that he was continuing the affair.

I do not find that [the husband’s] affair with this other woman impacted on the negotiation process. Although [the husband’s] resumption of his affair, at the time that his wife was in the extreme vulnerable state that she was, is reprehensible, such conduct cannot be connected to the issue of whether this Marriage Contract should be set aside.

The matter went on to later appeal, with the court focusing on other grounds. But it was an interesting, and rather thinly-sliced, legal issue and conclusion.

What are your thoughts on the trial judge’s reasoning?

For the full text of the decisions, see:

Stevens v. Stevens, 2012 ONSC 706 (CanLII)

Related Appeal and Costs decisions:

Stevens v. Stevens, 2013 ONCA 267 (CanLII)

Stevens v. Stevens, 2012 ONSC 6881 (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 RussellAlexander.com

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Wife’s Accusations About Husband’s Infidelities “A Waste of Time”

Wife’s Accusations About Husband’s Infidelities “A Waste of Time”

In a case I covered a few weeks ago, the spouses were divorcing and were in the process of untangling their disputes relating to support and division of assets. As part of that litigation, the wife asked the court’s permission to amend her pleadings to add allegations that the husband, while still married, had frittered away some of their money by spending it on a 10-year adulterous affair, on ordering male and female escort services, and for membership fees to an adult fetish website.

The wife claimed this was relevant to how their Net Family Property should be divided; she wanted the court to impose an unequal split in her favour, to account for the money the husband allegedly frittered away on these activities.

In this context, the Court of Appeal quickly corralled the wife’s use of these accusations to finance-related issues, not bigger-picture ones impugning the husband’s character or hinting at scandal. More importantly, the court found it was not even relevant as a ground for divorce anymore. It stated:

Legislation, jurisprudence and the practice of family law have evolved over the last decades in an attempt to eradicate allegations of marital misconduct unrelated to financial consequences. Fault grounds for divorce are rarely used, having been replaced, in practice, with separation grounds. This approach recognizes that family litigation has the potential to leave families worse at the end of the case than they were at the beginning. It recognizes that resolution is the preferred outcome. Inflammatory allegations impede resolution.

The statements about the husband’s conduct are inflammatory. They are – in my view – there to provide a springboard to question the husband about his extra-marital conduct, not about his net family property. As [Justice] Blair J.A. said in Serra v. Serra, … it is the financial consequence of the conduct that is relevant, not the conduct itself. Extended questioning of the husband’s conduct … that is unrelated to financial consequences would be inflammatory, a nuisance and a waste of time.

In other words, the trend in Ontario Family Law is to confine the relevance of marital misconduct allegations to finance-related matters only – not to find “fault” or penalize a spouse for his or her conduct during the marriage. And, as the Appeal Court in Frick v. Frick seems to suggest, it is certainly not to be used as part of one spouse’s campaign to embarrass or impugn the character of the other spouse after-the-fact.

Do you agree with this decision? Do you think marital misconduct, adultery and similar scandal should have a diminished importance in the non-financial aspects of the divorce process? What are your thoughts?

For the full text of the decision, see:

Frick v. Frick, 2016 ONCA 799 (CanLII)

Serra v. Serra, 2009 ONCA 105 (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 RussellAlexander.com

Fake Outbursts, and Adultery “Fines”, and “Bloody Minded” Calls for Jail Time – All in a Day’s Work for the Family Court

Fake Outbursts, and Adultery “Fines”, and “Bloody Minded” Calls for Jail Time – All in a Day’s Work for the Family Court

In an otherwise fairly-routine family matter in terms of legal issues, the court was exposed to a full panoply of theatrics and strategic scheming in a recent B.C. case. It’s an interesting little read.

The parents were married for 23 years and were later divorced in Taiwan, and were battling over the custody of their two youngest children. The wife claims spousal and child support, and a share of property interests that the husband in that country, and in B.C. and Saskatchewan as well.

But then the case took a bit of a turn: The husband resisted the wife’s claims, asserting (among other things) that only the Taiwanese courts had jurisdiction to decide some of the issues, and that they had already received a civil divorce in Taiwan, based on the wife’s adultery (which is apparently an offence in that country).

In response to this, the court wrote:

In that regard, neither party produced certified copies of the Taiwanese divorce pleadings or orders, each stating that to be the other’s responsibility. The only evidence of any financial implications of the Taiwanese proceedings is found in the “Criminal Judgment”, dated March 9, 1994, in which [the wife] seems to have been presented with the uneasy choice of serving three months in jail or paying a penalty of $30 per day.

That aside, I have difficulty accepting that an order requiring payment of a “fine” of $5,000 proves that the Taiwanese courts have “taken jurisdiction over the redistribution of assets pursuant to the divorce” (counsel’s words). Aside from the fact that the “fine” was imposed in separate “criminal” proceedings which were based on allegations of adultery, the roughly translated documents from the civil action do not indicate that the Taiwanese courts have dealt with property issues at all.

After thus dispensing with the husband’s jurisdictional objection, the court framed the tenor of the rest of the trial proceedings this way:

Although it is inherently difficult to assess the credibility of witnesses who are being examined and cross-examined through [Mandarin] interpreters, the [husband and wife] created strong impressions. Their pettiness and mutual disrespect seemed limitless, and much of their testimony must be treated as suspect.

In many obviously fake outbursts, marked by wailing and tearless crying, [the wife] demonstrated her considerable guile (of the five or six ways to translate that term, her interpreter might most charitably choose from “artfulness”, “shrewdness”, or “wiliness”). Her disloyalty to [the husband] also led to misuse of his eyeglasses inventory (it went to her brother), for which she later signed a “Statement of Repentence”, at [the husband’s] insistence.

For his part, [the husband’s] attitude was one of utter disdain towards his former wife ([the husband’s] interpreter might well choose “arrogance”, “contempt”, or “indifference”). He clearly believes that [the wife] deserves nothing from their marital estate.

Both parties also engaged in various legal shenanigans: the husband surreptitiously mortgaged their shared homes and transferred about $430,000 to a bank in Taiwan, claiming he owed someone else some money. He was found in contempt for not producing documents, and ordered into 10 days of custody (though that was stayed). He listed both family properties for sale, despite being clearly ordered by the court not to.

Not to be outdone, the wife asked for the husband to be incarcerated even after the trial had concluded – which prompted the husband to flee the country. The court explained:

The prospect of spending ten days in jail prompted [the husband’s] quick flight from Canada (he returned just before the trial began). Although what he said about failure to provide documents was fatuous, the notion of sharing available information may be entirely foreign to [the husband]. However, in spite of his steadfast resistance to the proceedings, now that the trial has ended I consider the renewed call [by the wife] for his incarceration to be somewhat bloody minded. The committal order … is vacated.

The court went on to assume jurisdiction, and to resolve numerous family property, custody and access issues. On the question of dividing the family assets, the court wrote:

Two things were obvious in [the husband’s] testimony.

First, he is so bound up in the fault which provided the grounds for the Taiwanese divorce (and, as well, in [the wife’s] loyalty to her younger brother and his rival spectacles business) that he seems unwilling to acknowledge [the wife’s] contributions to the acquisition of their Taiwanese estate.

Second, the notion that the economic consequences of the [couple’s] divorce have affected [the wife] more than himself seems to be difficult for [the husband] to grasp. Moreover, given [the husband’s] own willingness to look after the children when he brought them to Canada, it also seems hard for him to accept that, after bearing the child-care burden (which, of course, continues) for many years, [the wife] is somehow now economically disadvantaged.

In my view, [the wife] is entitled to an interest in assets which [the husband] acquired here. That interest must, of course, reflect the principles I have just alluded to.

The court added that the husband had spent over $30,000 in legal fees even before the trial began (and observed that yet “he carps about the cost of this litigation”). The wife had apparently spent twice that amount.

These twists-and-turns might make this case a little out of the ordinary – but they are not entirely unheard-of. In any event, the court certainly had its work cut out for it with this couple.

For the full text of the decision, see:

Chou v. Chou, 1996 CanLII 2021 (BC SC)

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 RussellAlexander.com

Appeal Court Confirms Unique “Philosophy” of the Ontario Family Law Rules

Appeal Court Confirms Unique “Philosophy” of the Ontario Family Law Rules

The Ontario Court of Appeal, in a recent case called Frick v. Frick, confirmed that the Ontario Family Law Rules are philosophically different from their civil counterpart, and reflect the unique nature of litigation involving families.

The initial facts in Frick v. Frick were unremarkable: The couple married in 1993 and had two children. They separated 20 year later, and the wife started divorce proceedings. In addition to custody and spousal/child support, she also asked for the usual equalization of Net Family Property (NFP).

But after filing her pleadings, the wife learned that the husband had spent money on extra-marital activities during the marriage, namely those incurred during what she claimed was a “10-year affair”, as well as the cost of male and female escort services and an adult fetish website membership.

In light of that spending, the wife claimed the husband had recklessly depleted his share of family funds during the marriage. Because of it, she asked for an unequal division of NFP in her favour, now that their relationship was over. She asked the court for permission to amend her claim accordingly.

But the court declined, and went one step further by expressly preventing the wife from asking for an unequal NFP division at trial. The wife appealed.

The Appeal Court ruled in her favour, finding that the motion judge had made several procedural errors. For one thing, he had innovated certain evidentiary requirements for the wife to meet, that were simply not contained anywhere in the Family Law Rules (FLR). He took issue with the wife’s failure to specify in her pleadings the precise FLR provisions on which she relied for unequal division, even though these were implicit. He took procedural liberties by essentially bringing his own motion to strike out the wife’s unequal division claim, and baring her from pursuing it at trial, even though the husband had not requested these remedies himself.

The motion judge had also applied an unjustly-high threshold for establishing the wife’s unequal division claim, and had deprived her of notice that it might be struck out permanently. As the Appeal Court put it:

Here, the wife knew that the motion was to strike portions of her document. She could not have known that her claim for an unequal division would be judged according to the summary judgment rules. Nor could she have known that her claim would be barred forever since she was denied leave to amend.

The key error, however, was the motion judge’s assessment that the FLR governed certain procedural aspects inadequately, and that he should look to the civil procedure rules for guidance instead. (Although Ontario judges are permitted to do this where warranted, the motion judge in this case showed over-reliance on the civil rules, and misunderstood when they could be invoked.).

In this context, the Court of Appeal made some important comments about the fundamental nature of the FLR:

The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.

The Appeal Court allowed the wife’s appeal, in part.

For the full text of the decision, see:

Frick v. Frick, 2016 ONCA 799 (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 RussellAlexander.com

Is a Marriage Contract Invalid if Signed During an Affair with Someone Else?

affair

Is a Marriage Contract Invalid if Signed During an Affair with Someone Else?

In this Ontario case dealing with the validity of a marriage contract between a husband and wife, the husband ask the court to strike it down for an unusual reason: At the time his wife signed it, she was cheating on him with another man and was possibly plotting to leave the marriage altogether.

In D’Andrade v. Schrage, a wealthy, twice-divorced 61-year old man married a 34-year old woman. He prepared a marriage contract to sign, in which he promised (among other things) that in the event they separated he would pay her a lump sum of $300,000, and buy her a home worth at least $250,000.

The wife did sign the contract; however unbeknownst to the husband, she was having an affair at the time and had already contacted lawyers to discuss her options and rights in the event that she decided to go through with a separation.

When the husband found out about the affair (from the wife’s sister, incidentally), he immediately left and began divorce proceedings. When the matter eventually came before the court, the man claimed that the agreement obliging him to pay the wife various amounts was invalidated by the wife’s “lack of good faith” in signing it, given that she was thinking of leaving him at the time.

The court considered the effect of this post-facto development on the legal validity of the marriage contract. Here, it was clear that the wife was considering separation, but there was no evidence that she had actually decided to do so. Still, the court struggled with the notion that spouses have a positive duty to disclose private thoughts of this nature:

To require spouses to disclose their thoughts about the likelihood of separation or their involvements in extra-marital sexual activity before signing a marriage contract could have serious implications for the survival of marital relationships. If the obligation to disclose is limited to thoughts of separation, the question becomes how serious those thoughts of separation were. Does there have to be evidence that the decision to separate has been actually made? … If this is not the threshold then what is? Is it any thought of separation or only serious thoughts of separation? If it is the latter, how “serious” is serious enough?

The court also reflected on the broader ramifications of acceding to the husband’s argument that in this context married spouses must disclose affairs or potential plans to separate:

In this case, the public policy implications of requiring married couples to disclose their thoughts of separation or their involvement in extra-marital relationships before executing a marriage contract are negative rather than positive. In recognition of the fact that marriages are complicated institutions, whose failure can rarely be attributed to one party or the other, the law has evolved in a fashion that by and large eliminates conduct from the analysis of financial entitlement. In essence, [the husband] is seeking to reintroduce conduct into the consideration of whether a marriage contract should be set aside. This is a road the law has been down before and, based on that experience, it is a road to be avoided unless justice demands it.

The court also made an important point: marriage contracts are not designed to enforce “personal” obligations (such as the duty to remain faithful or the commitment to stay in the relationship). Rather, they are aimed settling the financial obligations between couples who decide to separate (such as support entitlement and division of assets). By extension, any legal duty to disclose information relates only to matters relevant to the financial purposes of the contract, not the more personal ones.

In the end, the court rejected the husband’s argument as to the relevance of the wife’s affair and her contemplating separation and upheld the agreement, ordering the husband to pay the wife various amounts he had promised under it.

For the full text of the decision, see:

D’Andrade v. Schrage, 2011 ONSC 1174 (CanLII), http://canlii.ca/t/2fxkp

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 RussellAlexander.com

Can a “Misbehaving“ Spouse Lose Out on Support?

misbehave

Can a “Misbehaving“ Spouse Lose Out on Support?

In a recent Blog we commented on the decision in Boddington v. Boddington, which was effectively a case study on how not to ask a court for ongoing spousal support from your Ex, in situations where you have moved on to a relationship with a new person.
In reading the case, we were struck by an interesting little comment by the judge – and one that is probably wrong in law. It relates to the question of whether a former spouse’s “misconduct” – in this case an extramarital affair – essentially disentitles him or her to spousal support after-the-fact.

As readers will recall, the Boddington case involved a woman who was asking for ongoing spousal support from her former husband, despite the fact that she was now living with a new man. Even though she had had an affair with the man prior to marriage, she claimed that they were now “just friends” and had no sexual relationship – she was just living with him to help him out financially, she claimed. After rejecting the woman’s dishonest assertions as to the platonic, allegedly non-spousal relationship with the new partner, the court dismissing her claims for spousal support for other reasons.

In doing so, the court made a comment (at para. 11) of the judgment to the effect that the woman’s conduct was relevant to support because it amounted to an obvious and gross “repudiation of the relationship”. The judge’s exact words were these:

Of course, the law is clear that a payee is not disentitled to support merely because she has formed a new relationship. And the conduct of the parties is only relevant if it is so unconscionable as to constitute an obvious and gross repudiation of the relationship. While I would find the [wife’s] conduct in this case sufficient to meet that test, I do not have to go that far.

As it happens – and despites the judge’s hints to the contrary in Boddington – this is not the state of Family Law in Ontario.

In fact, courts will generally not characterize adulterous affairs, lying and similar dishonesty as an “obvious and gross repudiation of the relationship” to the point that a spouse becomes disentitled to support on that basis alone. Rather, spousal support entitlement generally arises as a consequence of the marriage and its breakdown, and (as I have discussed in many prior Blogs is calculated based on numerous factors, but misconduct is not one of them. In other words, an otherwise-deserving spouse does not become “disentitled” to financial support merely because they may have behaved immorally or unethically during the marriage.

For the full text of the decision, see:

Boddington v. Boddington, 2003 CarswellOnt 3914, [2003] O.J. No. 4008 (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

Does Wife Get Unequal Share Due to Husband’s Extra-Marital Affairs?

aff

Does Wife Get Unequal Share Due to Husband’s Extra-Marital Affairs?

An interesting question arose in a recent Ontario case: Should a wife get an unequal share in the division of family property upon divorce, based on the fact that the husband had extra-marital affairs?

The facts involved a couple who had been married 29 years. They had met when the wife was 15 years old and in high school, and he was 24. He worked full-time since their marriage, and the wife worked until the birth of the first of their two children.
They separated, and as part of their divorce proceedings the wife applied to have the family property divided under the Ontario Family Law Act (FLA). When it came time to equalize the couple’s Net Family Property under the provisions of the Family Law Act, the wife claimed that she was entitled to an unequal share on various grounds, including the fact that the husband had had repeatedly cheated on her during the marriage.

The court reviewed the FLA provision (namely, s. 5(6)) that allows for a spouse to get an unequal share where “unconscionability” arises in defined circumstances. That section contains eight factors a court is entitled to consider in assessing the unconscionability of what would otherwise be an equal division:

a) Lack of disclosure of debts/liabilities at marriage;

b) There are debts/liabilities claimed to reduce NFP which were incurred recklessly or in bad faith;

c) A spouse’s NFP consisted of gifts from the other spouse;

d) A spouse intentionally or recklessly depleted his or her NFP;

e) Where the couple lived together less than 5 years, the share received by a spouse would be disproportionately large;

f) One spouse incurred a disproportionately larger amount of debt/liability than the other, in order to support the family;

g) There is a written agreement between spouses that is not a domestic contract; or

h) Any other circumstance relating to acquiring, disposing, preserving, maintaining or improving property.

The court determined that – no matter how morally objectionable or emotionally hurtful the husband’s conduct may have been – the court was not entitled to compensate for it with a higher award to the wife in this case. On a straightforward reading of the eight factors, the husband’s affairs did not fall into any of the categories; most notably, the husband’s affairs did not have any significant effect on the couple’s debts, liabilities, or property. As the court wrote:

Husband’s affairs

[47] The wife seemed to think that the nature, extent, or duration of the extramarital affairs engaged in by the husband, his having left evidence of the affairs where the wife could and did find it, or his having allowed one or more women to discover where he was living, so that the wife had to speak to or otherwise deal with one or more of these women, came within the enumerated considerations in section 5(6).

[48] A somewhat similar argument was raised before me in Biant v Sagoo, [2001] OJ no 1685 (SCJ Fam Ct), where the wife sought compensation under section 5(6) for a sum of between $20,000 and $50,000 spent by the husband over a number of years on jewellery and travel for “the mistress”. In rejecting the wife’s claim, I said (at para 126),

It would be a novel proposition that a philandering spouse is responsible under subsection 5(6) for paying to the other spouse a sum equal to the cost of an affair, either direct costs (jewellery and such) or indirect costs (diminished profits from business). … There was no evidence that the husband’s expenditures materially affected the family in any way and certainly no evidence that the wife has been called on to shoulder any portion of them.

[49] However morally objectionable or emotionally harmful the husband’s conduct may have been in this case, it is only open to the court to respond to it under section 5(6) if it falls within one of the eight clauses of that provision. There was no evidence in this case that the husband’s affairs had any significant effect on the parties’ debts, liabilities, or property. There is accordingly no remedy under section 5(6) for the matrimonial misconduct of the husband. Indeed, section 5(6) was very tightly drawn specifically so as to exclude consideration of matrimonial misconduct such as this.

Having rejected this line of argument, the court went on to assess other legal aspects of the parties’ respective claims.

For the full text of the decision, see:

Cosentino v. Cosentino (2015), 2015 CarswellOnt 196, 2015 ONSC 271

 

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.

Ashley Madison: Hackers Release More Data

amm

Ashley Madison: Hackers Release More Data

As many of you will know, in mid-July of this year the infidelity website AshleyMadison.com, which enables married people to find partners with whom to conduct secret affairs, was the target of hackers who released certain user information to the public.
Earlier this week, the culprits struck again, releasing a second larger “dump” of data that reveals not only information on the users’ identity, but other sensitive information as well.

The group taking credit is known as “Impact Team”; it had initially targeted Ashley Madison’s Toronto-based parent company, Avid Life Media, claiming that it had ripped off customers by charging them a $19 fee to delete their data permanently, but then not actually deleting it. Alleging that the false “full delete” service had netted the company $1.7 million in 2014, Impact Team then threatened to release more data if the entire site was not disabled permanently.

The most recent data exposure releases information on approximately 32 million Ashley Madison users – the vast majority of whom are male – and includes their names, usernames, addresses, phone numbers, and dates of birth. It also includes users’ own descriptions of themselves in profiles they would have set up during registration (e.g. “Let’s start as friends….”) as well as sensitive credit card information, login details and passwords.
Apparently, the latest release also reveals certain emails linked to the website’s founder and chief executive of the parent company, Noel Biderman.

Needless to say, from a public-interest standpoint, the data breach and its fallout has been particularly “sexy” fodder for discussion (pun intended); it has raised sort of legal issues and water-cooler chat relating data integrity, privacy, and criminality, not to mention the more obvious social issues relating to infidelity, ethics and morality.

But even leaving aside the more salacious aspects of the divulged information, at the very least it shows the widespread prevalence of actual or potential cheaters, and hints at the question of whether society’s appetite and tolerance for infidelity has changed. Indeed, using the latest release of Ashley Madison user data some socially-curious minds have even “run the numbers” to generate a worldwide map that illustrates the distribution of assumed cheaters across the globe.

Interesting stuff.

What are your thoughts?

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

To learn more, we have written several blogs on adultery and affairs, including:

Adultery and Affairs

Man Gives Woman $130K: Was it a Post-Infidelity Symbol of Commitment? Or Was He Buying an Interest in Her Home?

In a Failed Romance, Can You Sue for Negligence?

Can You Sue Your Ex’s Affair Partner for Damages?

Was Wife the “Target of a Campaign of Terror” at the Hands of Husband’s Mistress?

Gambling, Drinking and Affairs – Should Spouses Have to Account for their Misdeeds?

Top Five Points About Adultery That You Probably Didn’t Know

Man Gives Woman $130K: Was it a Post-Infidelity Symbol of Commitment? Or Was He Buying an Interest in Her Home?

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Man Gives Woman $130K: Was it a Post-Infidelity Symbol of Commitment? Or Was He Buying an Interest in Her Home?

During the course of their 6-year relationship, the man moved into the woman’s home, which she had owned for 10 years. He gave her $130,000, and contributed to her expenses. When the relationship ended due to the man’s infidelity, a dispute arose as to what they each intended the $130,000 payment to represent. Had they agreed that the man was buying half the woman’s home, as he asserted? Or was the money simply a gift, as the woman claimed? This was the main question for the court to decide.

Essentially, this was a “he said/she said” exercise: In assessing the facts and credibility of the party’s evidence – a task the court found “neither simple nor scientific” – the court found that it made no sense that someone with the man’s credentials would ostensibly advance $130,000 to purchase a share in the legal title in the woman’s home and yet fail to document it properly.

The court recounted the man’s self-described achievements this way:

The [man] … describes himself as a highly educated and sophisticated businessman, a recognized pioneer of financial planning in Canada and an offshore private banker.

Wright has a Bachelor of Arts, a Master’s in Business Administration, certifications as a Registered Financial Planner, Certified Planner, and Certified Fraud Examiner and has received a Canadian Forces decoration medal for service in the Canadian Navy. He has authored a book entitled “Demons in the Financial World and How to Spot Them” and was a lecturer at both Seneca College and Centennial College. He states that he has been working on his Ph.D., but that he had to recently withdraw from the course due to what he describes as post-traumatic stress disorder suffered as a result of issues pertaining to this lawsuit.

Yet the man’s version of events was incredible, and the documentation he produced as being all that remained of a massive computer failure was “at times riddled with implausible error”, according to the court. Further, in his dealings with third parties (for example bank employees from whom he was applying for a mortgage), he had self-servingly called his interest in the home “contingent”; conversely he did not declare any interest in the woman’s home in a later application for subsidized housing. In other words, the nature of his professed legal interests in the woman’s home seemed to shift to suit his own needs at any given time.

Similarly, the court pointed out that it did not make sense that the woman, who owns a successful design-services business and had an 11-year old daughter to support, would not want to document the same transaction.

This lack of documentation not only supported the woman’s version of events, but made even more sense in light of the more personal side of her story: She claimed the $130,000 was a gift representing a symbol of the man’s commitment to the relationship, since he had recently proposed to her after being unfaithful. (The man denied any infidelity, but the court found that the evidence showed otherwise). The court elaborated:

I accept the evidence of [the woman] that she did not tell her family and friends because she was embarrassed; embarrassed by the infidelity in February 2007, embarrassed that she forgave [the man] for it and accepted his proposal, embarrassed that he paid her a large sum of money as an apology and a symbol of commitment. I also accept the submissions of [the woman’s] counsel that if [the woman] was going to make up a story that the $130,000 was a gift she would also have made up the details surrounding her receipt of the money.

The court found the man had effectively used the money and a marriage promise to “secure” the woman in a relationship that he felt would be financially beneficial to him: He knew the woman’s parents had given her financial gifts in the past, and he had concluded that they were wealthy.

The court accordingly declared that the woman remained the sole owner of the home, and accepted her evidence that the $130,000 was a gift. It also dismissed the man’s claim for expenses during the time they lived together, and in fact ordered him to pay the woman $3,000 for damage he had caused to the property.

For the full text of the decision, see:

Wright v. Holmstrom, 2015 ONSC 1906

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.

In a Failed Romance, Can You Sue for Negligence?

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In a Failed Romance, Can You Sue for Negligence?

In a case called Danovic v. Wagner, the Ontario court recently had to consider a rather novel argument: that one person in a failed romantic relationship might be “negligent” toward the other for their treatment (or mis-treatment, as the case may be), and therefore liable in damages.

As bad internet dates go, the facts of the case were quite noteworthy: The man, a university professor in his late 50s, had met the woman, who was unemployed and in her late 40s, on an internet dating site. They started communicating by email and phone; they met in person only four times over a 2- to 3-week period, and engaged in consensual sex each time. Despite the fact that the man made it clear he wanted a casual, non-committed, non-exclusive relationship, the woman was obviously expecting something more permanent and monogamous between them. Things became acrimonious, and when inevitably the man tried to break it off completely, the woman falsely claimed she was pregnant, embarked on a campaign of both direct and anonymous harassment and intimidation, and contacted the man’s girlfriend, relatives, friends, and employer with various complaints and allegations about him.

Ultimately, the woman (who had no lawyer and represented herself) sued the man in court for $100,000 in damages; among her various assertions was that he “lied and cheat on [her] to get someone for ‘his bedroom’”. She asked the court to “punish [the man] for his inhuman deeds” in order to teach him a lesson on “how to behave himself in the future.”

After trying to discern the legal basis for the claim, and after patiently examining the relevant correspondence between them along with other evidence, the court assessed the parties’ respective positions. In short, the court found that the woman’s many claims were ill-founded or lacked a legal basis.

However, it focused in particular on what appeared to be a claim for damages arising from the man’s alleged negligence in connection with their failed relationship. In considering what the court called this “apparently novel” claim, it ruled that the tort of negligence simply could not be extended to failed romantic relationships. Policy considerations precluded the court from finding the required duty of care between relationship partners, and legislatures have pointedly moved away from encouraging inquiries or finger-pointing on the issue of who may have been responsible for any relationship failure, with one key example being changes that established no-fault divorce laws in Canada. As the court put it:

In my view, having regard to such developments, the tort of negligence cannot be extended to failed intimate relationships, in the manner effectively suggested by the plaintiff, without significantly undermining such very deliberate and overt statements of modern legislative policy.

It is hard to imagine anything more counter-productive … than a tort deliberately aimed at providing former lovers, spouses and other intimate partners with a litigious forum in which to publicly air their emotional grievances; e.g., with a view to obtaining some kind of moral condemnation and vindication.

Nor does it seem likely that there would be any shortage of those interested in embracing such a litigious weapon, (bearing in mind that there would seem to be no logical reason for restricting its availability to those engaged in a short 2-3 week relationship, involving just four meetings in person).

Failed intimate relationships, with resulting emotional distress and suggestions of perceived reprehensible conduct leading to such failures, unfortunately have been with us from time immemorial.

Moreover, as Congreve noted more than three centuries ago, love may bring out the best in humanity, but its failure sadly also tends to bring out the worst. Had he been writing in more enlightened and gender-neutral times, his famous lines from The Mourning Bride no doubt would have been recast as an observation that “Heaven has no rage like love to hatred turned, Nor Hell a fury like a lover scorned”.

This case provides another lamentable example of that age-old phenomenon, playing itself out yet again.

This case demonstrates that no good and much harm would flow from recognizing a tort of negligence, expanded so as to apply to intimate relationships.

The man was successful in his motion to declare that the action was frivolous, vexatious or an abuse of process, and that it disclosed no reasonable cause of action against him. He also succeeded in establishing that it had been brought for the main (and improper) purpose of harassing him. The court said:

In short, everything before me indicates this litigation is simply the latest tool employed by the plaintiff in an effort to secure her principal goals of exacting vengeance and exerting coercion by destroying the defendant’s life, and making him miserable, because the parties’ 2-3 week relationship did not proceed or progress in the manner desired by the plaintiff, and because the defendant wants nothing more to do with her.

She openly threatened to use litigation in that deliberately abusive way, and she now has made good on that additional threat.

None of this can be condoned or permitted.

For the full text of the decision, see:

Danovic v. Wagner, 2014 ONSC 2664 (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.