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Posts from the ‘Costs’ Category

A Day in the Life:  Court Uses “Ladder” Metaphor to Get Through to Firefighter Dad

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A Day in the Life:  Court Uses “Ladder” Metaphor to Get Through to Firefighter Dad

In an upcoming blog about an Ontario court decision in which the court was tasked with sorting out a particularly acrimonious, high-conflict separation and divorce between couple.  The result was a written court ruling that took up more than 1,200 paragraphs.

Obviously, the court had quite a lot to say.  And what was especially noteworthy was the court’s attempt to “get through to” the parents in a manner that they will understand.

The court prefaces that unusually-lengthy ruling with the following comments:

In addition, of course, to the monies spent by the parties, there has been an incredible expenditure of community resources in an attempt to address the conflict this family faces.

The financial cost is just one aspect of the damage done to this family.

The emotional cost to the parties, and in particular to the children, is something that cannot be quantified.

This court heard fourteen days of trial.

This court, at the risk of being accused of being delusional or blinded by eternal optimism, has crafted a decision pursuant to which the court is optimistic that the respondent father’s mentality can be changed from one of “war” as it has been described until now, to one in which the objective is changed from “winning” and “destroying” the other parent to one in which the objective is to have an environment pursuant to which the children can be free to love both parents and can freely move back and forth between them willingly, happily and without the need for the intervention of any of the resources earlier referred to.

This court is not naïve and does not expect that that will occur overnight but on the other hand, this court believes that if it did not try to create that situation it would have let these children down and simply “given up” on them. This court is not prepared to do that.

The court’s next step was to comment on the approach taken by each of the parents throughout the protracted litigation, first to castigate the father, and then to laud the mother. About the father, the court used a metaphor that it hoped would resonate with the father, writing:

As will be seen in this judgment, this court has found that the respondent father has engaged in a “war” as two witnesses have indicated he characterized it at the beginning. The respondent of course denies that he said this but his actions speak far louder than any words that he could have uttered.

The respondent is an acting District Fire Chief and therefore the court has found it appropriate to use a word picture involving a ladder, being a piece of equipment associated with firefighting.

This court finds that the respondent has climbed a ladder and reached the top almost realizing his perceived goal. That goal was to have control over the children and to be in a situation where the mother of those children, being a mother whom he chose for them, was totally marginalized. He almost achieved that goal in that the children at their current ages have each expressed that they do not wish at the current time to have any meaningful relationship with their mother, nor to spend time with her on a regular basis.

This court hopes that the respondent father will see, as this court sees so clearly, that the wall that his ladder should have been against, and the wall that hopefully he will climb after he climbs down from this current ladder is one in which at the top of the wall is a situation whereby the children have a healthy relationship with both parents and can freely love each of them without feeling any guilt towards the other. Love is not a finite quantity pursuant to which if you give love to one of your parents you must take it away from the other. In fact, the children can also love the respondent father’s girlfriend as a “stepmother” without having to feel that by doing so they need to thereby not love their biological mother.

In contrast was the mother’s conduct throughout, which the court found was praise-worthy overall:

This court would be remiss if, in its summary of this case, it did not comment on the applicant mother. This court finds, as with any parent, the applicant mother is far from perfect. In fact, some of her actions, likely taken out of fear of losing her children, exacerbated the situation. This court finds that her parenting style is far more structured than that of the respondent father which “played into” his desire to alienate the children from their mother.

Having said that, the applicant mother has been subjected to not only emotionally abusive treatment from the respondent father and those under his “control” but emotionally and even physically abusive behavior from the children. The court does not “blame” the children as, there is an obvious reason why they are behaving in the manner in which they are behaving.

Many, and in fact probably most, mothers even those who deeply love their children would have “thrown in the towel” by now, but the applicant mother did not. That, this court finds, is not only to her credit but will be something that this court anticipates in years to come will be greatly appreciated by her children.

With that preface to the subsequent 1,200 paragraph’s worth of specific rulings designed to resolve the couple’s dispute, the court added – perhaps optimistically – that:

… this court has crafted a decision that it believes is one that could result in a 180° change being made in their lives from one of adversarial conflict between their parents, the extended families, and unfortunately the children themselves and their mother, to one in which they are allowed once again to “be children” and not have to constantly be concerned about the conflict between their parents.

The court’s stated objective is a good one, and it applies with equal pertinence to anyone embroiled in family litigation involving custody and access issues.

For the full text of the decision, see:

M.M.B. (V.) v C.M.V.

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

 

 

 

Money is No Object for Divorcing U.K. Couple

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Money is No Object for Divorcing U.K. Couple

Over the years I have often posted about cases in which a Canadian court invites warring former spouses to reflect on the sheer amount of money they are spending on lawyers and court costs, in waging prolonged battles with each other. [Russ:  there are several of these but here’s just one. All too frequently, the costs of repeatedly going to court – often to dispute relatively trifling legal points – can quickly outstrip the monetary value of what’s being fought over, not to mention the benefit of the overall exercise.

This dubious litigation strategy is certainly not confined to Canadian family law litigants.  As reported in a recent article in the U.K. newspaper known as The Guardian, a separated wealthy British couple have already spent over £2 million (about CDN $3.5 million) slugging it out both in and out of court, all to fight over their £6.6m in family assets (about CDN$11.5 million). This despite the fact that they are only the pre-trial stage of the proceedings, with the trial yet to come.

According to one judge, the two have “completely lost touch with reality,” and noted that the trial itself will cost at least another £200,000 (or CDN$350,000) in lawyers’ fees.

The article reports that the former couple, who ran a company that supplies luxury towels and bathrobes to high-end hotels and spas, had been so single-minded embroiled in their conflict that they ran the risk that there would be no money left for either of them at the end.  At least one judge had admonished them along the way, advising that their litigation campaign was a “scandalous waste of court time.”

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

Was Unplanned Pregnancy Tantamount to “Theft of DNA”?

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Was Unplanned Pregnancy Tantamount to “Theft of DNA”?

An interesting recent case considered a novel legal argument by a 23-year-old man who unexpectedly found himself the father of a child he didn’t plan to have, after a brief relationship with a 38-year-old woman he met a music festival.

The father, an apprentice iron worker, was in an intimate relationship with the mother for several months.  After learning from the mother that she was pregnant, he decided that he did not want to be involved and they ended their relationship before the child was born.  The mother had sole custody, and the father essentially had chosen to have no contact with the child whatsoever.

Nonetheless, the mother brought an action against the father for child support.  He resisted, claiming that under the “strict terms of their sexual engagement,” he made had it clear to the mother that he did not want to become a parent.  Although they did not use condoms or other physical birth control, they engaged in the “withdrawal method” to prevent conception.  He also claims the mother told him she was “medically infertile.”

Essentially the father asked the court to recognize a new civil claim in tort, one that featured a “hostile sexual act” of the theft of the DNA contained in his ejaculate.  The court described the father’s stated position this way:

The father argues that he is not legally obligated to pay child support because the mother engaged in a “premeditated theft of the father’s DNA” during “a hostile sexual act of DNA theft” leading to the birth of the child. According to the father, he was a victim of the theft of his DNA by the mother “to satisfy the [mother’s] motive to bear a child prior to the [mother’s] biological reproductive expiration.”

The mother brought motion for summary judgment, asking for an immediate court order requiring the father to pay child support, and dismissing the father’s claim outright, on the basis that there was no genuine issue requiring a trial.

The court granted the mother’s motion, and ordered the father to pay.  There was simply no legal basis for the father’s attempt to create a new defence against the mother’s child support claim. Not only did the court not recognize the tort of a “hostile sexual act of DNA theft”, but even if it existed it did not relieve him of his legislated obligation under the Ontario Family Law Act to pay child support.  There was no dispute as to the child’s paternity.

The man and woman had engaged in consensual sex, and had not used birth control (except for the unreliable “withdrawal method”, which the court found was actually evidence that the father did not rely on the mother’s own birth control methods, or on her self-proclaimed infertility).  In short, with their decision to have unsafe sex came with inherent risk of unwanted pregnancy, and with it came child support obligations in law.

In assessing the amount of support the father had to pay, the court noted that the father’s income suddenly dropped significantly when the mother started her court application for child support.  He was currently unemployed, was not looking for work, and had provided the court with no persuasive medical or other evidence on why he was not working despite being capable. Under Ontario law, he had an obligation to earn at whatever level he capable of doing so. Based on the undisputed evidence, the father would be able to earn $35, 000 per year, and his support obligation and arrears were calculated accordingly.

For the full text of the decision, see:

M.-A.M. v. J.C.M.

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

 

Cousin Steals from Own Family Member – and Gets Slapped with $5,000 in Punitive Civil Damages

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Cousin Steals from Own Family Member – and Gets Slapped with $5,000 in Punitive Civil Damages

Although it still technically relates to “family” matters, a recent Ontario civil case was still interesting even though it falls outside the realm of the topics I normally cover.

The court set the stage:

On the morning of Wednesday, June 8, 2011, [the victim] left the house at 8:30 a.m. for his regular golf game. His wife … went to play tennis. Sometime between 9 a.m. and 11 a.m., someone entered the house, proceeded to [the victim’s] home office, used a key hidden in a briefcase to open a locked armoire, and removed jewelry, cash, and a Personal Video Recorder (PVR) which was part of a home security system and was hidden in a closet.  Nothing else in the house was disturbed.  The [victim] contacted the police the same day, and retained a private investigative agency two days later to attempt to locate the jewelry and find the perpetrators.

It turned out to be an “inside job” by the victim’s own first cousin, Esposito, and the victim’s housekeeper.  The court detailed how the victim had hired and occasionally loaned money to Esposito, who had no source of regular income and admitted to a gambling habit.

At the civil trial brought by the victims to have Esposito held liable for conversion and damages, the court had no trouble disbelieving Esposito’s evidence.  Among other things, he initially denied outright that he had any phone conversations with the housekeeper, until his phone records were produced at trial.  These showed 139 calls up to the date of the theft (including 7 on the morning of the theft alone), and only 2 calls afterward.  The phone records also showed lengthy conversations with her that Esposito claimed not to remember, or could not adequately explain.

The court also found that Esposito had first-hand knowledge of the cousin’s daily routine, knew the layout of his home, and had an obvious motive (in the form of the gambling habit).  Especially with his shoddy credibility, the court readily found Esposito to have been either the culprit, or else the mastermind behind the theft.

After finding him personally liable for damages for conversation and trespass, as well as breach of confidence, the court ordered him liable for the value of the jewelry and sums of cash in various currencies.

But what was especially interesting about the case, was he court’s decision to impose a hefty award of punitive damages against Esposito in these circumstances.  The court wrote:

I award punitive damages given the intrusion on the privacy and security of Esposito’s cousin and his family, the important sentimental value of the jewelry which was made known to Esposito within six days of the theft; and the betrayal of a cousin and misuse of family ties.  [The victim’s] evidence was that he trusted Esposito because he was a family member. Esposito’s conduct must be denounced. I award $5,000 in punitive damages.

What’s interesting about this case is that it’s a civil matter – not a criminal one – and is designed to restore the victim to where he was pre-theft, through the award of damages.  Although the court has the right to impose punitive damages in appropriate cases, it’s a bit unusual to have a court increase the awarded damages to account for the fact that the victim and perpetrator were both members of the same family.

What are your thoughts on that?

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 Grandparents be Sued for Child Support?

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Can Grandparents be Sued for Child Support?

As was reported in the news media recently, two Ontario grandparents have been sued for child support for their granddaughter.

Their upcoming court hearing will determine whether they are obliged to pay $760 a month to the mother of their 10-year-old granddaughter, as well as $47,000 that has accrued since 2013 when their son (who is the father of the girl), died in an accident.

The grandparents resist the mother’s claim for child support, pointing out that – while they may love and care for her as grandparents do – they have no legal obligation to financially support the young girl.

The case is unusual from a legal standpoint, because the grandparents in that case do not have custody of the child, nor do they even live with her. (They do enjoy access time with her every other weekend; the mother will be asking the court to suspend this access if they do not pay the support requested).

In the few previous Canadian cases where support obligations have been imposed on grandparents, there are extenuating circumstances that make the outcome much more understandable and arguably reasonable.

For example, in an Alberta case called Snow v. Snow, the grandparents had taken in their granddaughter when she was 6 years old, after their daughter moved to California and left the girl with them.  When the grandparents separated from each other a few years later, the girl remained with the grandmother who applied for child support from the grandfather.  She claimed he was “in loco parentis”, which is the legal terms that means “standing in the place of a parent”.  The grandfather, in turn, applied for support contributions from the biological parents.

The court ultimately found that the grandfather was indeed in loco parentis:  he had assumed a parental relationship with the child for over 10 years, and had acknowledged treating her like his own daughter.

He was ordered to pay retroactive support of almost $40,000, but was not obliged to pay ongoing child support.    (And for the record, the biological parents of the girl were also ordered to pay both ongoing and retroactive support, with all payments being made directly to the grandmother, who still had custody of the child).

In the Snow case, the grandparents’ obligation to pay child support was driven by the fact that the court found them to be legally standing in the shoes of the child’s parents.  Returning to the Ontario case that is about to be heard, the situation appears to be somewhat different: The child is in the custody of and is being cared for by her biological mother, who is essentially seeking to have the grandparents ordered to make a financial contribution to the cost of the child’s care.

I will be curious to see the outcome of the Ontario case. What are your thoughts?  Should grandparents be forced to pay child support in this kind of circumstance?

For the full text of the decision, see:

Snow v. Snow

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 Husband’s Payment of 230 Gold Coins Under Islamic Marriage Contract Excluded from Wife’s Property?

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Is Husband’s Payment of 230 Gold Coins Under Islamic Marriage Contract Excluded from Wife’s Property?

Under the law governing Islamic marriage, a “Maher” (sometimes written as “Mahr”) is a written marriage contract.  In the recent Ontario Court of Appeal decision in Bakhshi v. Hosseinzadeh, the narrow legal question was whether, under the Ontario Family Law regime, the property transferred under a Maher is excluded from the definition of Net Family Property (NFP), and by extension excluded from the equalization calculation of the parties’ respective NFPs upon divorce.

When they married in Iran in 1995, the couple had entered into the Maher in keeping with their religious and cultural beliefs.  The Maher contained a clause that required the husband to pay the wife 230 gold coins promptly upon her request.  The spouses later immigrated to Canada.

When in 2013 the wife began divorce proceedings and various related court applications, the issue arose as to how the notional transfer from the husband of those 230 gold coins under the Maher was to be treated in law.  At the initial trial, the judge concluded that the Maher obligation was valid and that the value of the gold coins – about $80,000 – was to be excluded from the wife’s NFP total.

The Court of Appeal was asked to entertain the husband’s appeal.  It began by confirming the ruling of prior courts to the effect that despite being religion-based, marriage contracts such as a Maher can be enforceable, provided they satisfy the elements of a valid domestic contract under Canadian law.  Once deemed valid, they are interpreted like any other civil contract, by looking at their wording and the objective intentions of the parties at the time the agreement is made.

Next, the Court observed that definition of NFP found in the provincial Family Law Act includes all property owned by a spouse on the valuation date.   The Maher in this case contained no express agreement that the payment of 230 gold coins was to be excluded from the wife’s NFP, nor was there any basis to infer that the spouses intended at the time to exclude it.  To the contrary, it was executed in Iran and contained other terms that suggested the couple envisioned continued life in that country, and were not contemplating their potential mutual obligations under the Ontario legislation.

The Appeal Court concluded that the Maher payment was to be treated under the Family Law Act like any other payment obligation between the spouses, meaning that it was to be included in the overall calculations.  That outcome was in keeping with the rest of the legislative regime, which envisions that spouses own property separately during marriage, and does not allow for transactions between spouses to be excluded from NFP calculations.

The Court re-calculated the NFP by including the value of the Maher payment, while clarifying that the husband still needed to actually (i.e. physically) transfer the 230 gold coins to the wife’s possession.  Even though its value was to be included in the overall equalization calculation, the Maher payment itself was considered a demand obligation with a paper value, which meant the wife was entitled to pursue debt collection remedies if the husband refused to pay.

For the full text of the decision, see:

Bakhshi v. Hosseinzadeh

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 Strikes Family Law Firm’s $72,500 “Premium” as Being a Contingency Fee

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Court Strikes Family Law Firm’s $72,500 “Premium” as Being a Contingency Fee

Most of you will be familiar with “contingency fees”, meaning the fees a client agrees to pay a lawyer only if the lawyer is successful in the litigation for which he or she is hired.   They are most often used in personal injury matters, with the lawyer’s fee being calculated as a percentage of the amount recovered for the client.

But what you may not know is that in Ontario Family Law matters, contingency fee arrangements are prohibited outright. And in a recent decision, the court “undid” an arguably creative approach by a Toronto-area Family Law firm, finding it was a prohibited contingency fee by another name.

In Jackson v. Stephen Durbin and Associates, the husband was involved in a contentious custody battle with his wife over their 6-year-old daughter.   Under the retainer he signed with the law firm chosen to represent him, the husband agreed to pay the lawyers an hourly rate for working on his case, but “with a daily counsel fee for court or tribunal appearances at ten-fold (solicitor’s) hourly rate and an increase in fees in the event of a positive result achieved (“results achieved fee”)”.

About two years into the litigation process, the husband had depleted the retainer funds and began to accrue arrears with the law firm.  After several accommodations and re-negotiations, the husband still owed the firm its fees totaling $132,500.

He challenged the law firm’s overall bill, especially the “results achieved fee” of almost $72,500, which had been rendered on a separate invoice.   He claimed this was tantamount to a contingency fee agreement in a Family Law matter, which is clearly prohibited by section 28.1(3) of the Solicitors Act.

After reviewing several prior cases on this point, the court agreed. The Act’s wording describes a contingency fee agreement as being one that provides that the remuneration paid to the lawyer for legal fees is contingent “in whole or in part” on the successful disposition or completion of the matter.  The retainer in question stipulated an increase in the event of a “positive result achieved”.  As the court put it:

The logical interpretation of that agreement is that the “results achieved fee” is only chargeable if a successful result is achieved.  I find that the language of the retainer agreement combined with the way the results achieved fee was charged (by way of a separate account), confirms the firm’s intention that the fee was contingent on the successful disposition or completion of the matter in respect of which services were provided.  As such, the results achieved fee charged by the respondent to the applicant is a contingency fee defined by the Solicitor Act and is a prohibited charge.

In short, the “results achieved fee” was merely a contingency fee arrangement in a creative wrapper.  The court accordingly ordered the law firm to refund the almost $72,5000 “premium” that the husband had been charged.

For the full text of the decision, see:

Jackson v. Stephen Durbin and Associates

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

Should Aboriginal Heritage Trump Child Protection Needs?

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Should Aboriginal Heritage Trump Child Protection Needs?

In a recent child protection case, the court summed up nature of the proceedings with a definite air of gravitas:

This case is also about the equality rights of Métis children and their families in the child protection context in Ontario, and whether the provincial government is respecting those rights. It is an important opportunity for this province to demonstrate its commitment to act upon the Calls to Action that the Truth and Reconciliation Commission of Canada issued in 2015.

The facts involved a child who had been apprehended at birth by the Children’s Aid Society (CAS), and was in foster care ever since.  He was now almost two years old.

The father claimed the child was of Métis heritage.  This claim was an important fact, because the definition of “Native child” contained in the Child and Family Services Act (CFSA) did not include Métis.   This meant that a Métis child would not gain the same advantages as one who had been designed a “Native child” under the CFSA; including the benefit of a legislative mandate to the court to the effect that any order made in relation to the child was to bear his or her cultural, religious, and regional differences in mind.

Against that background, the CAS had applied to have the child made a Crown ward, with no access to the parents at all.  This sparked a successful Charter of Rights challenge by the child’s father, who claimed that the differing treatment of Métis children was in violation of the guarantee of “equality before and under law, and equal protection and benefit of law”.  A prior court had temporarily addressed the father’s concern by ordering the child to be treated as if he were in the more beneficial “Native child” category for the purposes of the court application by the CAS to make him a Crown ward.

The court then turned to assessing the parties’ positions on that application.  It acknowledged that there were numerous factors involved in deciding a child protection application, and the child’s Aboriginal heritage was just one of them.  Here, the father had raised the issue at the eleventh hour, and had supplied only scarce evidence to show that maintaining the native heritage and culture was important to the family.  The court said:

What I have outlined above is the totality of the evidence this court was given relative to [the father’s] background. He did not give any testimony about his Aboriginal background or any connections that he had or has in that community other than his relatively brief contact with the Métis Ontario Healthy Babies Healthy Children Program.

The court quoted from a prior ruling in which the court had to deal with similar issues, then added its own comments:

Our compassion toward and recognition of the importance of native heritage and families remains unwavering.  But special status does not equate to a blanket exemption from legislation carefully crafted to protect vulnerable and often damaged children.

 I agree with all of the considerations that are set out by [the prior judge] in the above-quoted paragraph. In addition, I do not feel that the legislative scheme put in place to recognize the importance of Native heritage and culture for children who have been designated as Native can be meaningfully applied in the abstract. There must be evidence of the nature of the involvement of the child’s family in the Native community. The mere claim that someone is Native does not allow the court to consider the relevant factors within the legislative scheme, without some evidence of what is important to this family, this child, and the Aboriginal community the child is said to be a member of.

In this case, the required proof was absent. The father had also not shown that his prior inappropriate parenting skills had improved even though he had parenting services available to him for several years.  An attempt to find the child suitable placement with extended family-members had failed.  Meanwhile, the child had begun to thrive in his current care arrangement that did not feature any involvement by the parents.

Finally, the court observed that prior to bringing its application, the CAS had invited members of various Ontario-based Métis communities to participate in the litigation or provide the placement options for the child, without success.

Ultimately, the child was made a Crown ward, with no access to the parents.  However, the court also directed that the CAS should make every effort that any foster parent or adoptive placement would be willing to educate the child on his Aboriginal heritage and culture, and to expose the child to his culture on an age-appropriate basis.

For the full text of the decision, see:

CCAS v G.H. and T.V.

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

Wednesday’s Video Clip: Russell Alexander, Family Lawyers

Wednesday’s Video Clip: Russell Alexander, Family Lawyers

Our fees are based on the following elements:

(a) The time spent on your behalf, and the service which is performed;

(b) The complexities of the issues, and your potential emotional and monetary exposure;

(c) The results accomplished, and the extent to which the expertise of this firm contributed to a successful outcome;

(d) The degree and type of resistance encountered; and,

(e) The extent to which any work needs to be performed on an emergency basis.

None of these elements are capable of a precise arithmetic assessment, and no such assessment is attempted, except in a general way with respect to the time spent. A standard hourly rate, is applied to convert the time into a monetary figure. Any amount that exceeds the number of hours multiplied by the standard rates is the result of the weighing of the other elements mentioned.

We charge standard hourly rates for the work done by our law clerks and lawyers for the time spent on your case. Records are kept (in our computer time-keeping system) by us to the nearest one tenth of an hour, for all activity on your case, including conferences, telephone calls, e-mail, preparing correspondence and memoranda, drafting documents, research and travel time. Each hour billed to you is based on actual work done on your particular case.

Our absence from the office on your behalf is charged at the usual hourly rate. Travel time includes attending at court, settlement conferences, meetings, or consultations on your behalf. We will minimize travel expenses and courthouse time, if any, whenever possible. However, as you will be charged for our traveling time (in addition to the counsel fee), it may be worthwhile to consider whether a local lawyer is desirable for you if your litigation is taking place in another community.

If your appointment is for a consultation only, in order for you to receive advice on a limited number of issues, or, for example, for a second opinion, you will be billed a flat rate consultation fee, payable prior to the consultation. The consultation is not meant to deal with your whole legal problem. These rates are reduced rates, and apply only if the fee is paid at the time of the consultation. The rates are calculated on the basis of the average amount of time spent by our lawyers on consultations in the most recent year.

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

Financial Disclosure: If One Spouse is Dishonest, Must the Other Actively Investigate?

 Financial Disclosure: If One Spouse is Dishonest, Must the Other Actively Investigate?

In a case I reported on last week, called Virc v. Blair, the husband had deliberately and materially misrepresented the value of the corporations that he brought into the marriage, which eventually came to light upon the couples’ separation.

Although the matter resulted in the court re-calculating the parties’ equalization entitlements in accord with the more accurate corporate valuation, the case raised an interesting corollary legal question:

If one party deliberately misleads the other, does it become the other’s obligation to actively investigate into that dishonesty?

In Virc v. Blair, the parties had gone before a motion judge on a procedural matter relating to what turned out to be the husband’s incomplete and misleading financial disclosure.   Once the motion judge had assumed that the husband had made certain material misrepresentations, the judge shifted the burden and placed it on the wife to inquire as to the truthfulness of the husband’s financial disclosure.

The Court of Appeal later held this was an error.  It said:

In the face of a deliberate material misrepresentation, the onus is not appropriately placed on the recipient spouse.  Rather, the burden is on the party disclosing to establish actual knowledge of the falsehood by the recipient. 

In other words, and contrary to what the husband claimed, there was no law to the effect that a spouse who receives financial disclosure in a matrimonial case is under an obligation investigate or test the veracity of the information provided by the other spouse.   Rather, the effect of the deliberate material non-disclosure remains the focal point (unless the dishonest spouse can prove that the other spouse conclusively knew of the dishonesty).

As the court said a little later in the judgment:

The law does not entitle a liar to succeed just because the recipient of the falsehoods has not ferreted them out.

For the full text of the decision, see:

Virc v. Blair

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