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Posts from the ‘Court Cases’ Category

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

Can a Parent be in Contempt When Kid Disobeys a Court Order?

Can a Parent be in Contempt When Kid Disobeys a Court Order?

In many of the child custody and access cases I write about, the central dispute boils down to the fact that the parents of the child are at odds in terms of what custody arrangements they want and how much access they should each have to the children.

But even once a court order is in place, the disagreements can continue, because the parents may be at odds over precisely what the order means, and how it should be complied with. In a typical scenario, the custodial parent will have failed to abide by the terms of a court order setting out specific custody or access, perhaps by keeping the child longer than ordered, or else by failing to facilitate the access rights of the non-custodial parent.

But what if the lack of compliance is because it’s the child – not the parents – who won’t co-operate? What if the child outright refuses to spend time with the access parent?

In a recent set of Blogs I talked about the concept of “contempt of court”, in family law proceedings especially. This remedy can be imposed on a parent who refuses to comply with a court order, or otherwise hampers the course of justice.

What may be surprising is that under Canadian law, in some circumstances a parent can still be held accountable for contempt of court even if it’s the child who thwarts the fulfilment of the court order. This is because of the legal principle that if there is a court order in place, the parent is under a duty to do all that he or she reasonably can in order to ensure that it is complied with. And a finding of contempt of court may follow if the other parent can establish, beyond a reasonable doubt, that the other parent failed to take all of those reasonable steps.

In short: the parent cannot simply leave questions of custody and access up to the child; otherwise it amounts to an abdication of parental responsibility. In an older case called Geremia v. Harb, Justice Quinn put it well when he said:

Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

With that said, the contempt remedy is not imposed every time a parent is unsuccessful at coercing a child – particularly an older one – to comply with an order. Rather, the outcome on whether to make a contempt finding will be viewed by the court with its broader duty in mind: which is to balance the need to enforce court orders and to encourage a child’s contact with both parents versus respecting a child’s own wishes and safeguarding his or her needs, safety and well-being.

For the full text of the decision, see:

Geremia v. Harb, 2007 CanLII 1893 (ON 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

Can a Judge Go “Off the Map” When Making a Ruling?

Can a Judge Go “Off the Map” When Making a Ruling?

In an interesting recent Court of Appeal case named Gomez v. McHale, a question arose as to whether a motion judge, asked to award an amount for equalization of net family property, was constrained to award only the exact dollar amount proposed by the spouse who succeeds on the motion, or whether the judge was entitled to craft a different monetary award that made sense in the circumstances.

The couple’s relationship had lasted about five years. Under s. 5(6) of the Ontario Family Law Act, a court can award un unequal amount for equalization of net family property in cases where awarding an equal amount would be “unconscionable”, in light of various factors including the length of time the couple had lived together.

They both brought summary judgment motions against each other, with the wife asking for one of two things:

• A straightforward equalization of net family property, which would result in her receiving $268,000 (which we will call “Option 1”); or

• An unequal division, to the tune of four-fifths of that amount, which was $214,000 (“Option 2”).
The husband, in contrast, wanted the either of the wife’s claims – whether under Option 1 or Option 2 – to be dismissed outright by the court.

Ultimately, a court granted the wife a third Option – but one that neither of them had asked for. For various reasons related to the specific facts, the court ordered the wife to receive an equalization payment of $60,000.

The wife appealed, claiming that the motion judge had strayed from the available choices presented at the motion hearing. In particular, the wife contended that the judge’s only available choices were to pick either Option 1 or 2, or possibly to grant her partial judgment in some amount, and direct that the rest of the issues be sent on to be resolved at a full trial.

The Court of Appeal disagreed. As that Court wrote:

Put bluntly, this is not the way motions for summary judgment, especially duelling motions, work. The motion judge was entitled to consider all the evidence and then apply the relevant statutory provision, s. 5(6) of the FLA, and determine both whether an unequal division was appropriate and, if so, the quantum of the unequal division. He was not limited to choosing one of the two amounts proposed by the appellant and, if he was inclined to reject them, referring the question of quantum on to a trial. … He was not limited to choosing only one of the appellant’s alternative positions.

The wife also claimed that the judge had made an error by not following a mathematical formula for calculating the unequal division of net family property (using the actual period of cohabitation as a percentage of the five-year period specified in s. 5(6) of the Family Law Act). The court disagreed: While a mathematical approach might help the court in some cases, it did not have to be applied in every single one.

In the end, the Appeal Court concluded that the motion judge’s final amount of equalization, set at $60,000, was fair and reasonable in view of all the circumstances, which included the fact that the wife had not made any significant contributions to the home during the period of cohabitation and marriage.

For the full text of the decision, see:

Gomez v. McHale, 2016 ONCA 318 (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

“Revenge Porn” Case Goes Back to the Drawing Board

“Revenge Porn” Case Goes Back to the Drawing Board

A year ago I reported on a case in which a young woman had been awarded over $100,000 in damages from her former boyfriend, who had engaged in “revenge porn” after their break-up. Without her consent, he had posted explicit images of her online, and shared them with members of their mutual social circle, much to her extreme humiliation.

Because he had declined to participate in the lawsuit by filing any sort of defence, the woman was able to obtain a default court judgment in his absence, in which the ex-boyfriend was found liable under the civil law for the torts of breach of confidence, intentional infliction of mental distress, and invasion of privacy. He was held responsible to pay for her damages as assessed, with the breakdown being $50,000 for general damages, $25,000 for aggravated damages, and $25,000 for punitive damages, plus costs.

However, as a result of a recent decision by the Ontario Divisional Court, her lawsuit – which was launched four years ago – has now been put back to square one, and the now 24-year-old woman is awaiting a statement of defense from the man, so that a full trial can proceed with his participation.

The reversal is essentially based on procedure, not merit, so time will tell whether she is vindicated in the end.
In terms of the legal process, the matter has gone forward-then-back because the original order, by Justice Stinson, was later struck out by a second judge, Justice Dow, in order to give the man a chance to participate.

The woman asked unsuccessfully for permission to appeal that ruling, claiming that Justice Dow had noted that the ex-boyfriend was deliberately ignoring the lawsuit, but then went on to improperly consider other factors and give him a second chance anyway. Permission to appeal was denied in the most recent decision by Justice Kitely in January 2017, since she found no legal error in Justice Dow’s reasoning.

So, three judges’ rulings later, the matter has been sent back to essentially “start over” before a new judge.

But the significance of the case still lingers, because the original decision by Justice Stinson from a year ago was very legally noteworthy at the time, not only for implicit recognition of the invasion-of-privacy claim from this sort of on-line behaviour, but also due to the hefty damages liability imposed on the ex-boyfriend.

What are your thoughts on this case?

For the full text of the decision, see:

Jane Doe 464533 v N.D., 2017 ONSC 127 (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

Do Judges Need to Actually Give Reasons?

Do Judges Need to Actually Give Reasons?

For those of you “armchair lawyers” who like to follow real-life trials, watch TV crime shows, or even just read books by John Grisham, here’s an interesting question for you:

In law, can a litigant appeal a judicial ruling simply because the judge’s reasons were brief?

The answer is: Maybe.

The sparseness of the reasons given by the trial judge was among the grounds for appeal in the recent Ontario Court of Appeal decision in Filanovsky v. Filanovsky. A 45-year old woman had sued her parents for alleged physical and emotional abuse when she was a child, including violent blows to the face that left her with traumatic brain injuries.

After a 10-day trial in which the court considered evidence from the woman, her brother, various experts, and the parents themselves, the woman’s claims were dismissed.

She appealed and requested a new trial, with one of the grounds being that the judge failed to give adequate reasons to explain the reason her claim was dismissed.

The appeal court rejected this particular argument.

To begin with, the court conceded that prior decisions have established that a judge must give reasons:

1) to justify and explain the result;

2) to explain to the losing party why she lost;

3) to provide public accountability and to satisfy the public that justice has been done; and

4) to permit review by an appeal court.

However, the Appeal Court relied on another recent decision of its own called Dovbush v. Mouzitchka, where it had a chance to examine those requirements in detail, saying:

Trial judges are called upon to make difficult decisions, often in difficult circumstances. They preside as the particular dynamics of the trial unfold. Inadequate reasons therefore pose a particular challenge for appellate review.

On the one hand, as [Supreme Court of Canada justice] Rothstein J. noted in F.H. v. McDougall, … “an appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor, is the failure to give adequate reasons a free-standing basis for appeal.”

However, the Appeal Court in Dovbush had pointed that in determining the issue of the reasons’ sufficiency,

…[I]t turns on the overarching principle of whether the reasons permit meaningful and effective appellate review. Appellate courts will take a contextual and functional approach to addressing whether reasons meet this standard. The exercise has been variously described as one of determining whether the reasons demonstrate: “the path taken by the trial judge through confused or conflicting evidence” … or that “the trial judge came to grips with the issues and explained sufficiently his … conclusions and the reasons and basis for them” … or, the “what” and the “why” of the result.

Returning to the Filanovsky case, the judge who dismissed the woman’s abuse claim against her parents had actually given lengthy reasons, in which she assessed credibility, analyzed all the witness’ evidence, and pointed out inconsistencies. The reasons as rendered by the judge did allow for a meaningful appellate review.

The woman had raised other grounds of appeal, and these were dismissed as well.

For the full text of the decisions, see:

Filanovsky v. Filanovsky, 2017 ONCA 28 (CanLII)

Dovbush v. Mouzitchka, 2016 ONCA 381 (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 a Biological Parent is Paying Child Support, Does a Step-Parent Still Have to Pay?

If a Biological Parent is Paying Child Support, Does a Step-Parent Still Have to Pay?

In Stetler v. Stetler, the mother and had a child with a man (the biological father). The mother then married a second man (the step-father), and the relationship lasted eight years before they separated. During that entire time, the step-father treated the girl as his own, and supporter her financially as part of his role in the new family.

Meanwhile, the mother was still receiving child support from the girl’s biological father, even though he had never seen or even met his daughter.

When the mother and the step-father eventually separated, the step-father took the opportunity to deny having any obligation to support the girl, who was now 13 years old. He bolstered this position by pointing out that she no longer wanted to see him after he separated from the mother. (Apparently, however, this estrangement could have been remedied had the step-father apologized to the girl for a particular incident, which he stubbornly refused to do).

Despite the continued payment of child support from the biological father, the mother brought a court application claiming child support from the step-father as well. Among the legal issues was whether in these circumstances the step-father should still be obligated post-separation, particularly in light of his evident intention during the marriage to support her as a parent would.

The court concluded that he was. As the court put it:

The [step-father] seeks relief on support for [the child] because of what he calls “double dipping”, represented by the support currently being paid by the biological father. Gratuitously, he argues that [the child] chose not to see him and he shouldn’t have to pay support because of the biological father’s support. … With respect to [the child], I am guided by s.5 of the Child Support Guidelines.

Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these guidelines and any other parent’s legal duty to support the child.

The unseen biological father of [the child] has been fulfilling his obligation to the letter of the law the whole while. This does not give the [the step-father] a free ride. The [step-father] has an obligation to support this child and in my view, the appropriate order is set out in the Supreme Court of Canada case, Chartier v. Chartier, … which says this:

The contribution to be paid by the biological parent should be assessed independently of the obligations of the step-parent. The obligation to support a child arises as soon as that child is determined to be “a child of the marriage”. The obligation of parents for a child are all joint and several. The issue of contribution is one between all of the parents who have obligations toward the child, whether they are biological parents or step-parents; it should not affect a child.

In the end, the court ordered the step-father to pay one-third of the total child support owing for the girl, with the unseen biological father to continue paying the remaining two-thirds.

For the full text of the decision, see:

Stetler v. Stetler, 2012 ONSC 4466 (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

Father Punches His Own Dad in the Face at Christmas Gathering; Can Mother Deny Him Access to their Child?

Father Punches His Own Dad in the Face at Christmas Gathering; Can Mother Deny Him Access to their Child?

Here’s a good question: Is a mother entitled to unilaterally deprive the father of his access rights to their child, based on an incident – that she did not witness – in which the father punched the child’s grandfather in the face? Does it matter that she heard the news from the father’s recently-estranged ex-girlfriend?

Before you answer, here are the fuller facts:

The mother and father had a child together, and split up a few years later. The father, who had been dating and living with someone new for about a year, enjoyed unsupervised access to the now 6-year old boy, pursuant to a court order.

Things were going well with the arrangement until December of 2015. That’s when the father, the child, and his new girlfriend attended a Christmas family function hosted by father’s parents (i.e. the child’s grandparents).

The court, describing the recount of the incident given by the girlfriend in her court-filed affidavit, picks up the story:

She states that “the first time I witnessed [the father’s] rage was at his parent’s home”, about a week after Christmas. She states that they were about to sit down for breakfast when the [the father] became enraged because his mother did not prepare a vegan breakfast for him. She alleges he called his mother a “dustbag” and said “I hope you die”. He then went outside to have a cigarette. His brother … went out to calm him down and they started yelling at each other. [The girlfriend] went outside and saw the [father] swinging his fists at [his brother]. His father came out and intervened, and the [father] punched his father in the face.

Fast-forward two months. The father had recently broken up with his girlfriend (now ex-girlfriend), who took it upon herself to text the mother, complaining about the father’s behavior. In particular, the ex-girlfriend warned the mother about the incident at the Christmas family gathering that the mother did not attend.

The ex-girlfriend’s version of events was confirmed in an affidavit by the father’s brother; however the grandfather himself denied that the incident took place or that he was punched in the face.

Shortly after receiving the ex-girlfriend’s text the mother, apparently fearing for the child’s safety, decided of her own initiative that the father should no longer have access to the child, and refused to cooperate with his attempts. (She tried to get a court order without giving notice to the father, but it was rejected). In the following weeks, the father sent her three letters, putting her on notice that she was in breach of the court order. She continued to foil his access, until the father applied to the court to have the mother held in contempt.

The court considered all aspects of this rather unique scenario. By her own admission, the mother had disobeyed the court order, and persisted even after the father complained by letter. Her was motive clearly stemmed from concern over the child’s safety. But the key question was whether her disobedience was legally justified, due to the presence of serious risk of harm to the child.

After reviewing the evidence, the competing versions of the incident, and legal test for contempt, the court wrote:

In my view, the Christmas incident reported by [ex-girlfriend] falls short of demonstrating a serious risk of harm to the child. The child was not directly involved in the incident, and was apparently unaffected by it. It is noteworthy that, according to [the ex-girlfriend], this was “the first time” she was exposed to the [the father’s] “rage” even though they had been a couple since the preceding May. This suggests that this incident was an isolated one, and not part of a continuing course of conduct.

There is nothing about the December incident that gave rise to a situation of serious risk to the child that justified the unilateral action of the [the mother] in choosing to defy the access order. It is significant that the incident had occurred two months before she even became aware of it, and throughout that period she was of the view that access was going well.

In short, the mother’s decision was a gross overreaction to the information she received from the ex-girlfriend. The court found her in contempt.

For the full text of the decision, see:

Houben v Maxwell, 2016 ONSC 2846 (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

Can Putting Your Work Before Your Kids Cost You Access Rights? Yes!

Can Putting Your Work Before Your Kids Cost You Access Rights? Yes!

If your job responsibilities routinely prevent you from exercising your access rights on a regular basis, can a court make it even harder for you to see your kids?

Absolutely.

That’s what happened in an Ontario case called Stimpson v. Stimpson. There, the couple’s 3-year-old daughter had lived with the mother in Ottawa since their separation in 2014. The father’s access time was scheduled for alternating weekends and mid-week periods. However, his work duties with the Canadian military apparently prevented him from exercising his access rights fully, since he had an erratic work schedule and had recently been sent on several short military deployments. Also, except for work-related reasons he was not allowed to travel more than 90 minutes from Ottawa without a special exemption, although this was not a true impediment to exercising access since the mother’s home was only 18 minutes away.

In any case, all of this meant that in a 1.5-year period the father had taken advantage of only 50 percent of the access time allotted for him to see his daughter.

Meanwhile the mother applied to the court to be allowed to move with the daughter to Toronto to be with her new fiancé. The mother had few social ties in Ottawa and was lonely, and due to a lack of available caregivers had to juggle childcare obligations with her work commitments. In contrast, her family and close friends-with-kids all lived in Toronto, and she had an offer for a good, higher-paying job already lined up there.

In assessing the mother’s request, court confirmed that maximum contact with both parents was the theoretical ideal. However, in this case that was to be balanced with other best-interest factors: namely, that the child would benefit greatly from continuing to live with the mother as her primary caregiver, and from the overall improved financial and family situation that the relocation would provide. Since the child also had a very strong bond with the mother, it was in her best interests that the mother-daughter relationship should be fostered. Finally, the timing for a move was also right, since she was just about to enter kindergarten.

Very tellingly, the court also honed in on the fact that the father had missed or cancelled his scheduled access about half the time. This told the court quite clearly that he prioritized his work duties over seeing his daughter.
Over the father’s objections, and even though it meant that his time with the daughter would drop sharply, the court granted the mother’s legitimate request, and allowed her to move to Toronto with the young girl.

For the full text of the decision, see:

Stimpson v. Stimpson, [2016] O.J. No. 4283, 2016 ONSC 5066

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)

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