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Posts from the ‘Appeals’ Category

Vexatious Litigant Won’t Take “No” for An Answer

Vexatious Litigant Won’t Take “No” for An Answer

Sometimes you hear about Family litigants for whom their dispute against the former spouse has taken on a life of its own, and who will not stop until they have literally exhausted every possible legal and procedural avenue.   The case of Nassr v. Vermette seems to be a great illustration of this scenario.

The former couple had commenced their family litigation in 2009, after which time the husband brought numerous questionable and downright meritless applications and motions. In 2011, pursuant to an order of the court, he was declared a “vexatious litigant” – which means that he was prohibited from commencing or continuing any further proceedings.

About four years later the husband decided he wanted to have that “vexatious litigant” designation set aside. But the court flatly rejected his application, and made an order that declared the designation anew. For greater certainty, the wording made it abundantly clear that he was expressly prohibited from instituting any new legal proceedings, and was prevented from continuing any proceeding previously instituted by him, unless he obtained the court’s permission.

Yet the husband tried to launch another appeal, and duly asked the court for permission to proceed. Although the court granted him an audience, it found that he simply did not meet the test for being allowed to proceed, under s. 140 of the Ontario Courts of Justice Act, and found there was no merit to his appeal anyway. Section 140 deems the court’s decision to be final, so the husband was blocked from appealing the court’s refusal of his application for leave.

In other words, the husband’s road was formally at an end. Or so only it seemed.

The husband tried to appeal yet again, this time focusing on an earlier judgment that had been made dealing with custody, access, and child support. The wife brought a motion to have that appeal attempt dismissed, and she was successful.

In making its ruling, the court emphasized that since the husband had been declared a vexatious litigant, this meant he had no further right to appeal or take any other step. That designation had been validly made by an earlier court, and – under section 140 of the Courts of Justice Act – could not be appealed.

The court also rejected the husband’s last-ditch argument, to the effect that the Rules of Civil Procedure should be bent for him.   Under one of its provisions, the court was entitled at any time to decide that compliance with a rule could be dispensed with. The husband claimed he should be given the benefit of the doubt so that his appeal could go forward notwithstanding the prohibition in section 140 of the Act.

The court didn’t buy it. The provision the husband had in mind applied only to the Rules, not to the test for obtaining leave in section 140 of the Courts of Justice Act, which is entirely different legislation. The court went ahead and quashed the husband’s appeal.

Not to be deterred, the husband didn’t stop there: He applied for leave to appeal from that Appeal Court decision as well. That application was made to the Supreme Court of Canada, but it was dismissed with costs.

Game over.

For the full text of the decisions, see:

Vermette v. Nassr, 2016 ONCA 658 (CanLII)

Jason Donald Nassr v. Laurie Ann Vermette, 2017 CanLII 5363 (SCC)

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

Delays, Extensions, Adjournments and Excuses – How Not to Conduct Your Family Litigation

Delays, Extensions, Adjournments and Excuses – How Not to Conduct Your Family Litigation

A few weeks ago, I reported on a case called Schwilgin v. Szivy. I recounted the court’s stern response to a litigant – in this case, the husband – who had been obdurate in failing to comply with numerous prior court orders.

“Part 2” of this story reveals the court’s reaction to that same husband’s repeated delays in moving their divorce and custody issues along. Since the husband was self-represented, it all becomes a good lesson on “how not to conduct your own Family litigation”.

The couple had separated in 2002 and had two children.   Starting around 2010 they commenced what turned out to be rather lengthy legal process around custody and child support.

After a series of prior court decisions in the case, the husband wanted to appeal one particular order that related to (among other things) denying his requested variation of child support, and relieving him of the obligation to pay $75,000 he owed in child support arrears since 2006.

But what followed was a series of blunders and delays on the husband’s part. First, he filed his Notice of Appeal in the wrong court.   When the error was brought to his attention by opposing counsel, he went ahead anyway. But not only did the court refuse to hear him, it refused to transfer the matter to the proper court, and simply quashed the husband’s appeal outright.

By now, the husband was too late to file in the proper court venue.   He asked the court for an extension of the filing deadline claiming that, being a layperson, he simply made a procedural mistake in choosing the wrong court. The court didn’t buy it. The extension was turned down.

Having frittered away his right to appeal automatically, he now needed the court’s permission to take further steps toward an appeal.   But in yet another motion he failed to persuade the court that he had met the relevant test. More importantly, the court explained that the husband’s many poorly-justified delays in the past “weigh[ed] very heavily against” granting the time extension.

Which brings us to the latest ruling.

A full 13 months after the dismissal of his earlier motion for an extension, the husband brought yet another motion to have that order reviewed.

However, even though this was the 11th hour the husband was not cured of his shenanigans: After the hearing date was set, he contacted the court staff to ask for an adjournment. His reason? He was unable to find a lawyer, and unable “to defend himself due to illness” and a lack of funds.   This was contrary to earlier information stating that he had duty counsel lined up, which claim the court also found to be suspect.

The Appeal Court flatly turned down the husband’s latest request for an adjournment.   After reviewing his materials, it concluded that:

  • He had failed to provide current medical or other evidence in proper form to justify having the court grant the order;
  • He had not proven that he had legal aid lined up, as he claimed; and
  • There was no acceptable explanation for the husband’s 13-month delay in asking for a review.

Although he is quickly running out of legal options – and likely testing the courts’ collective patience – I suspect this will not be the husband’s “last kick at the can”.

For the full text of the decisions, see:

Schwilgin v. Szivy, 2017 ONCA 78 (CanLII)

The decision appealed from is:

Schwilgin v. Szivy, 2015 ONCA 816 (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

Deceased’s Estate Division Pits Sister and Ex-Wife Against Each Other

Deceased’s Estate Division Pits Sister and Ex-Wife Against Each Other

Here’s a slightly convoluted tale, but it’s an interesting one involving a dispute between the estranged wife and sister of a deceased man over his estate. Here is the cast of players:

1) Paul, who died in 2013.

2) His wife Pauline, from whom he separated in 2002.

3) Paul’s sister Rita, to whom he left half his estate, and who was also his Estate Trustee.

When Paul and Pauline separated, Paul agreed under their separation agreement to designate Pauline as beneficiary of a $150,000 insurance policy and keep up the premium payments. If Paul failed to maintain the insurance, it was agreed that Pauline would have “first dibs” against his estate for $150,000, in the role of a creditor.

In fact, Paul did not maintain the life insurance as agreed, and it lapsed before he died.

But there was a problem: Paul’s estate was too small to pay Pauline the $150,000 he owed, since his assets at death totaled only about $100,000.

Enter Paul’s sister Rita. As a beneficiary under his Will – and but for Pauline’s $150,000 claim – she stood to inherit 50% of Paul’s estate. In the role of Estate Trustee, she had obligations to all estate creditors, including Pauline. These duties These duties included ascertaining the debts and liabilities of Paul’s estate, and paying them. So Rita essentially wore “two hats”.

Pauline’s asserted first-dibs claim against Paul’s estate became a contentious issue, and the matter went to court for resolution. In an earlier application, the court rejected Rita’s argument that Pauline had missed the deadline for bringing her claim against Paul’s estate, which she did in 2015, more than two years after Paul’s death.

On appeal, the Court of Appeal confirmed that finding. The reason for Pauline’s delay was actually Rita’s own obfuscating conduct, and it would be unfair to hold her to that deadline in the circumstances.

As Estate Trustee, Rita had control over the information Pauline needed to ascertain whether Paul held any insurance policy for her benefit, as the separation agreement required. Pauline could not obtain the information from the insurer directly, so she was understandably beholden to Rita to provide it. Only Rita knew whether Pauline’s debt claim against the estate even existed; this put her in a unique and privileged position.

The problem was, Rita was not forthright with Pauline, and withheld the information she needed.

Initially, she had her lawyer advise (inaccurately) that Paul had maintained the life insurance, and later had the lawyer advise that the policy “may have lapsed”. Neither of these statements were true: Rita had known early on that Paul had let the life insurance lapse despite his obligations under the separation agreement, knew Pauline had a valid claim against his estate as a creditor. Yet she kept the information from Pauline and caused her to delay taking timely steps in pursuit of it.

From a legal standpoint the Appeal Court found that – wholly unrelated to their family connection – Rita and Pauline had a “special relationship”, and that Rita’s withholding of information made her guilty of fraudulent concealment, and made her conduct “unconscionable”.

The Appeal Court referred to and endorsed the findings of the application judge, who had written:

By withholding material facts, the estate trustee [the sister, Rita] concealed from [Pauline, the wife] that she had a legitimate debt against the estate as a creditor. In my view, given the special relationship between the estate trustee [Rita] and [Pauline], it was unconscionable for the estate trustee [Rita] to initially suggest that insurance was in place, then delay matters by promising to bring an application for directions, and then later take the position (a position which provided a direct material benefit to her as a beneficiary of the estate), that the time for claiming against the estate had expired.

The court accordingly found that the usual deadline for Pauline to claim for $150,000 against Paul’s estate did not expire in this case, and could proceed.

For the full text of the decision, see:

Roulston v. McKenny, 2017 ONCA 9 (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

Court to Delinquent Husband: If You Don’t Play By the Rules, You Don’t Get to Play

Court to Delinquent Husband: If You Don’t Play By the Rules, You Don’t Get to Play

A while ago I reported on one of several decisions in the ongoing litigation saga in Schwilgin v. Szivy, where the self-represented husband had made some procedural missteps in his divorce dispute with the wife. He had brought a series of appeals of judgments unfavourable to him, but was not always prompt in taking the necessary steps to do so.

At one point, he had missed the deadline for filing another appeal, and brought a motion to essentially ask the court for an extension.

The court had to consider whether, in light of the overall history of the matter and both parties’ conduct, the husband should be granted any leeway.

The main focus was on the fact that the man had not complied with numerous prior orders to pay costs: he owed the wife over $25,000 in connection with prior proceedings, yet he was coming before the court to ask for indulgences.

The court wrote:

Finally, I am not satisfied that the justice of the case supports granting the motion to extend. In quashing his appeal from the order of the motion judge, the Divisional Court ordered [the husband] to pay [the wife] costs of $10,000. He has not done so. In open court, [the husband] said he would not pay those costs because he contends he lacks the resources to pay them.

In her affidavit on the motion, [the wife] deposed that [the husband] owes her over $25,000 in costs from their matrimonial proceedings. In her letter of November 16, 2015 transmitting her responding materials to the court, [the wife] wrote:

I do not understand how [the husband] is permitted to constantly bring motions and appeals without paying the costs of previous court orders. It seems all the court does is order more costs, which I cannot collect. He gets stern words and a slap on the wrist (costs), and I get a bill from my lawyer. How is this fair?

That is a most legitimate question to ask. Courts usually talk in terms of prejudice which cannot be compensated for by costs. But, at some point, costs themselves become an inadequate form of compensation for prejudice, especially where the party on whom they are imposed refuses to pay them.

The Appeal Court also quoted from a prior order of the Divisional Court, where the court had said this about the husband:

The [husband] has used this appeal as a means of delaying paying the arrears in question and the costs ordered to the [wife]. Further, the [husband] has a history of using Court proceedings in this way. This has caused the [wife] considerable prejudice.

After noting the long history of the proceedings – plus the husband’s attempt to write to the court directly by letter, which was inappropriate – the Court of Appeal declined to grant him an extension, concluding that the “justice of the case” demanded it.

For the full text of the decision, see:

Schwilgin v. Szivy, 2015 ONCA 816 (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

Calling Someone a “Liar” Online: Is that Defamation, or Merely “Comment”?

Calling Someone a “Liar” Online: Is that Defamation, or Merely “Comment”?

In an interesting recent case heard by the Ontario Court of Appeal, the court was asked to consider whether calling someone a “liar” in an online blog was merely a comment, or whether it was tantamount to defamation. (And to make the issue more interesting, both the object of the slur, and the person making it, happened to be lawyers).

The plaintiff Awan was a law student at the time of the incidents, and has since gone on to practice law in Saskatchewan. The defendant, Levant, is an outspoken political commentator, journalist, and blogger who published various articles and blogs on his own website.

Awan sued Levant in damages for defamation in connection with nine blog posts Levant published on his blog between 2008 and 2010, each bearing a headline calling Awan a “liar”, and featuring further additional unflattering commentary in the body. Awan also asked the court to order the offending blog posts to be taken down.

To make a long back-story short: Levant’s published name-calling arose in what purported to be reports of a human rights tribunal hearing at which Awan testified.   That hearing was triggered by formal complaints by Awan and fellow students over a Maclean’s magazine cover story titled “The Future Belongs to Islam” which they alleged was Islamophobic in tone.  As part of the tribunal’s fact-finding, Awan gave evidence about a one-time meeting he and his fellow students attended with senior editorial staff at Maclean’s. Awan’s testimony at the hearing was what prompted Levant to use the term “liar” in his blogs, among other unflattering names.

After taking into account the overall circumstances, including the likelihood that Levant’s pejorative blog posts could be spread widely over the internet, the trial judge found that all nine of them were clearly defamatory of Awan, in that they conveyed to anyone reading that he:

  •      was a dishonest person and a liar;
  •      tried to “shake down” Maclean’s;
  •      was incompetent, unethical, and unfit to be a lawyer;
  •      was an anti-Semite;
  •      used the courts to bully his opponents; and
  •      had extreme, intolerant views.

As to the effect of the defamation, the trial judge wrote:

In this case, the impugned words include numerous meanings that would, in the ordinary course, be readily regarded as defamatory.  The defendant [Levant] has said, over and over again, that the plaintiff [Awan] is a liar.  This alone would tend to lower [Awan’s] reputation among ordinary right-thinking members of society.  It obviously bears the meaning that [Awan] is dishonest, and casts doubt on his integrity, the most important attribute of any lawyer. … Honesty and integrity are no less important for a law student who is about to embark on a career as a lawyer.

Moreover, the usual defences to defamation that might absolve Levant were negated by the fact he had posted maliciously.   Levant was ordered to pay Awan $50,000 in general damages and $30,000 in aggravated damages.

Levant appealed, unsuccessfully.

Among the rejected legal arguments was that – contrary to what the trial judge had found – Levant’s use of the term “liar” was merely a “comment” made as part of an online discourse, and was not tantamount to defamation of Awan in the ordinary sense.   While conceding that “calling someone a liar when discussing a matter of public interest or discourse would more likely be found to be a comment rather than a fact”, the Appeal Court nonetheless found that it was open to the trial judge to conclude otherwise in this case, based on the presumed perceptions of a reasonable reader. There was no legal basis on which the Appeal Court should interfere with that factual finding.

The Court of Appeal also confirmed that Levant’s defences to defamation were foreclosed due to his evident malice, stating:

I find that the defendant’s dominant motive in these blog posts was ill-will, and that his repeated failure to take even basic steps to check his facts showed a reckless disregard for the truth.

As for the nature and seriousness of the defamatory statements, they are extremely serious.  They go to the heart of both the plaintiff’s reputation as a lawyer and as a member of our society.

Levant’s appeal was accordingly dismissed.

For the full text of the decision, see:

Awan v. Levant, 2016 ONCA 970 (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

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

What Role for “Judicial Shaming” in Family Law?

cost-award

What Role for “Judicial Shaming” in Family Law?

Although it was a non-Family Law case, a line in a recent Ontario Court of Appeal decision caught my attention.

In Yim v Song the appeal judge was asked to rule in Chambers on certain procedural points, after various pre-trial motions had already been held in connection with the fulfilment of certain undertakings made by each former business partner to produce information, and relating to various refusals to do so. Clearly exasperated by the litigants appearing before him, the Appeal Judge wrote:

The ultimate dispute between these parties has not yet proceeded to trial. Nevertheless, the appellants have already attracted two substantial indemnity costs awards and their poor judgment and unreasonable conduct in this litigation has drawn sharp criticism from motions judges. No amount of judicial shaming seems to have had the least impact, however, and what is now unfolding in this court is more of the same.

Indeed, on one of those prior motions, the presiding judge began the ruling this way:

Very few things that we see in the context of civil litigation are as disheartening as the typical undertakings motion. This is one of those.

… The matter was argued before me in Owen Sound on November 27, 2015. I thought for sure that the hearing would end up being unnecessary in that the parties and counsel would have resolved the procedural wrangling. I was wrong. The wrangling is not done quite yet. A costs award may do the trick.

Clearly, both the lower-court and appeal judges in this case saw the need to impose pressure – including financial pressure in the form of costs sanctions if necessary – to encourage these particularly litigants to act reasonably and cooperatively if possible, and to expedite what would otherwise deteriorate quickly into a long, costly, and acrimonious dispute.

The question that arose in my mind is to what extent can (or should) similar judicial admonishments and sanctions be used in Family Law hearings. Because of all the courts that rule over matters in Ontario, Family Court Judges are arguably the most put-upon in terms of having to deal with a relentless parade of acrimony, poor judgment, steadfast unreasonableness, emotionality, confrontation, and strategic procedural wrangling. It’s the nature of the beast.

So the question arises: Should judges employ more pressure in the form of “shaming” to get family litigants to wise up?

What are your thoughts?

For the full text of the decisions, see:

Yim v Song, 2016 ONCA 642 (CanLII)

Yim et al. v Song et al., 2015 ONSC 7605 (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.

If You Decide to Appeal, Can You Stop Paying Support?

cheque

If You Decide to Appeal, Can You Stop Paying Support?

If you go through the Family Court system and get a ruling from a judge that requires you to pay spousal support, and then you decide to appeal, does that mean you can unilaterally stop paying that court-ordered support until the appeal is heard?

The short answer is: No. (At least not without a court’s permission).

This was illustrated recently in a case heard by the Ontario Court of Appeal. The parties had already had several prior hearings, at least one of which ordered the husband to pay the wife spousal support in specified amounts. The husband did not make the payments as ordered, and in fact he was in arrears for almost $250,000. He had also been ordered previously to post a letter of credit for $585,000 as security for future spousal support that he would owe, and to designate his wife as the beneficiary under his life insurance policy for that same amount. The husband did comply with those previous orders, either.

To the contrary, the husband decided to bring an appeal. The wife countered with a motion to essentially block it, asking the court to refuse to entertain the husband’s appeal in light of his refusal to comply with earlier spousal support orders.

In hearing the wife’s motion, the Court pointed out that spousal support orders are not automatically put on “pause” simply because the person ordered to pay decides to bring an appeal. (Rather, the Rules of Civil Procedure do allow for a person to bring a motion for a “stay pending appeal”, but it must be granted by a court; otherwise, the obligation to pay support is not automatically on-hold).

Moreover, the court can actually decide to refuse to hear the submissions of the person who is in default of his or her court-ordered obligations.

The court went on to clarify that there are certain other alternatives when faced with the situation where the party ordered to pay spousal or child support has not done so: The court can dismiss the appeal, or the court can adjourn the proceedings, pending compliance with the trial order. As the court explained:

In our view, where an appellant wishes to be relieved of his or her trial ordered obligations pending appeal, the proper approach is to bring a stay motion where the circumstances can be brought before the court. If that is not done, then although the court may still hear the appeal in circumstances the court feels require that approach, the court will normally not hear the appeal until the trial order has been complied with.

Applying those principles to the case at hand, the court concluded that: 1) the father’s support-payment obligations continued in full force pending any appeal he may bring; and 2) it would not hear the father’s appeal until he complied with those earlier support orders.

For the full text of the decision, see:

A.A. v. Z.G., 2016 ONCA 660 (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.

Appeal Court Rules on Privacy of Text Messages

iphone

Appeal Court Rules on Privacy of Text Messages

A just-released criminal case from the Ontario Court of Appeal has some interesting things to say about the privacy of text messages whether they are subject to constitutional protections – and it may have some trickle-down effect in the Family Law realm someday.

The accused was convicted of multiple firearms offences, which convictions hinged squarely on certain text messages between two other parties (one of whom was a co-accused) in which gun trafficking was discussed.

In considering whether there had been a breach of the Charter in connection with the admission of that text evidence, an application judge held that there was no expectation of privacy in connection with the text messages found on the co-accused’s iPhone. Specifically, that judge said:

… I accept that the sender of a text message has a reasonable expectation of privacy in its contents after it has been sent but before it reaches its intended destination. This would include text messages stored in a service provider’s data base. Once the message reaches its intended recipient, however, it is no longer under the control of the sender. It is under the complete control of the recipient to do with what he or she wants. In my view, there is no longer any reasonable expectation of privacy in the sender.

The Appeal Court was asked to rule on whether this conclusion by the application judge was correct. Two out of three judges on the panel agreed that it was:

There is, in my view, a lack of empirical evidence to support a conclusion that senders of text messages have a presumptively reasonable expectation, from an objective standpoint, that their text messages will remain private in the hands of the recipient. In fact, there are many examples of behaviour in text messaging (and in other forms of communication) that suggest that senders are alive to the fact that their communications may no longer be private once sent or made.

For example, the use of pseudonyms and coded language in text messaging (generally in the context of criminal activity) is often used to disguise who is speaking in a text message and the subject matter of the message.

Because many contextual factors can tip the balance in either direction, it must be that the objectively reasonable expectation of a text user in a particular case should be assessed on a case-by-case basis, not on a broad presumption about how text messaging is used in society…

Admittedly, this was a criminal case, and it was handed down by the court along with two other criminal cases, R. v. Jones and R. v. Smith, each of which had similar outcomes. How and whether these rulings affect other areas of the law, including Family Law, still remains to be seen.

For the full text of the decisions, see:

R. v. Marakah, 2016 ONCA 542 (CanLII)

R. v. Jones, 2016 ONCA 543 (CanLII)

R. v. Smith, 2016 ONCA 544 (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.

Testator’s Freedom to Make Even “Unsavoury or Distatesful” Bequests Upheld – In Some Cases

will

Testator’s Freedom to Make Even “Unsavoury or Distatesful” Bequests Upheld – In Some Cases

Although my law firm focuses primarily on Family Law, we also provide legal advice and services in relation to Wills and Estates, and it’s a topic that I don’t often write about.

But perhaps I should: There is an interesting recent case from the Ontario Court of Appeal, for example, that is certainly worth looking at.

Imagine this scenario: A 71-year old man name Eric had two daughters with his first wife, whom he later divorced. After their parents’ separation, one of the daughters went to live with her mother in England; the other, named Verolin, lived with her father in Canada.

But when Eric, who was black, learned that Verolin was pregnant and that the baby’s father was a white man, it caused a permanent rift in their relationship; eventually Eric cut Verolin off entirely and never met his grandson, who is now 13 years old.

After Eric died, his Will revealed that although he had included the other daughter and her children, he had specifically excluded Verolin, ostensibly because (according to the wording in the Will itself) she had shown “no interest in [him] as her father.” However, the extrinsic evidence from witnesses told a different story: Eric had actually excluded his daughter Verolin in order to show his disapproval of the fact that her son’s father was white.

Verolin applied to the court to have the Will declared set aside and declared invalid because it was against public policy on racial grounds. Verolin was initially successful in the lower courts.
On appeal, the court reflected on the basic question of whether it was entitled to scrutinize Eric’s Will – which was unambiguous on its face – merely because a potential beneficiary like Verolin was being excluded.

In this regard the Appeal Court pointed out that a “testator’s freedom to distribute her property as she chooses is a deeply entrenched common law principle”, and that this testamentary autonomy “should not be interfered with lightly, but only in so far as the law requires.” With that said, the court added that the testator’s right can still be constrained by public policy considerations in some circumstances.

But even applying those general principles here, the fact remained that the wording on the face of Eric’s Will was not, in and of itself, legally objectionable. It adverted only to cutting off Verolin for not communicating with him; any other racially-discriminatory motives on Eric’s part were hinted at only through external evidence. Plus, even though she was his daughter, under Ontario law Verolin was not entitled to demand a share of Eric’s estate. Nor was there anything in the Will that called for the trustees or beneficiaries to act in a way that was discriminatory, unlawful, or contrary to public policy, in order to give effect to Eric’s wishes.

In ultimately upholding Eric’s Will, the Court of Appeal concluded:

I conclude that to apply the public policy doctrine to void an unconditional and unequivocal testamentary bequest in cases where, as here, a disappointed potential heir has been disinherited absolutely in favour of a different, worthy heir, would effect a material and unwarranted expansion of the public policy doctrine in estates law. Absent valid legislative provision to the contrary, or legally offensive conditional terms in the will itself, the desire to guard against a testator’s unsavoury or distasteful testamentary dispositions cannot be allowed to overtake testamentary freedom.

Do you agree with the Court’s ruling?

For the full text of the decision, see:

Spence v. BMO Trust Company, 2016 ONCA 196

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