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Posts from the ‘Court Procedure’ Category

Can the Court Decide to Hear New Evidence After-the-Fact?

Can the Court Decide to Hear New Evidence After-the-Fact?

A recent Ontario decision raises the interesting procedural issue of whether a court has the authority to admit new evidence even after it has concluded hearing a Family Law matter.

The litigation involved competing motions by a father and a daughter. The daughter asked for the court to order the father to pay temporary child support, and the father resisted, asking the court for certain orders to be made in his favour instead. The court heard the motions, but reserved judgment on both.

Then, a week later, the father returned to court to try and provide new evidence that the company he controlled had been ordered into receivership – presumably to show that he could not afford to pay the daughter temporary support she sought. His evidence took the form of the copy of an order by another judge, in another court, simply declaring the father’s company was receivership; there was no other detail provided.

The court first had to consider the broader legal question whether it had the authority to allow the father to bring new evidence, even after the original motions had been heard. If so, then the court was still obliged to consider whether that authority should be exercised respecting the father’s new evidence in this particular case.

On that last point, the court summarized the task at hand:

The deeper issue that I am called upon to consider is whether [the father] has provided sufficient evidence to show that the motions should be reopened, and if so, on what terms?

After reviewing basic judicial principles, the court ultimately found that it did have the authority to re-open the argument, but that the father had not met the test to justify the court doing so in this case.

The court’s threshold determination was whether it had fulfilled its official function on the earlier motions; if so, the door was closed for any further evidence to be received. The legal term is “functus officio”, which is defined as “having discharged one’s duty” or as “a task performed.”

As it happened, in this case the judge had not yet issued a ruling, let alone granted any order that had formally been entered with the court. So the judge was not “functus officio” in this particular instance.

Next, the court also examined the Family Law Rules, to see whether it might prohibit the father’s evidence from being tendered at this relatively late stage. The purpose of the Rules, the court found, was to deal with cases in a just and fair manner; they included provisions specifically built-in allowing for flexibility and fairness. In the right circumstances, the Rules did allow further evidence to be filed even after the argument of the motion had been concluded.

With that said, the judge’s discretion was to be exercised “sparingly and with the greatest care”, although a “somewhat relaxed approach” could be applied in cases where the matter had been heard, but a decision had not yet been released. This was one of those cases.

Still, the admission of evidence was to be the exception, rather than the rule. Otherwise, it would be tantamount to inviting the parties to first hear argument and judicial comment on the evidence thus far, and then put together further evidence tailored to buttress their case.

In this case the father had not met the requisite test. As the court said:

While the test is more relaxed than it would be after a decision had been released the admission of that evidence is far from automatic. Here [the father] fails to meet even a relaxed test for admission.

The father had neither direct evidence nor any submissions to explain why the late-breaking receivership order, relating to a company that he held a 60% interest in, might affect either of the motions the court had already heard. He merely proffered a copy of a prior court order putting his company into receivership, but without explaining how it might affect his income.

The court said:

While the bar … is a low one, [the father’s] materials fail to clear even it.

The court declined to grant the order, and dismissed the father’s motion to introduce new evidence.

For the full text of the decision, see:

Glegg v. Glegg, 2017 ONCJ 102 (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

Wednesday’s Video Clip: How are Decisions Made About Custody in Ontario?


Wednesday’s Video Clip: How are Decisions Made About Custody in Ontario?

In this law video we talk about how decisions are made about custody of children.

Often, deciding on a parenting arrangement after a marriage is over is not easy. Under the Divorce Act one or both parents may have custody of the children.

If you cannot agree on a parenting arrangement, the divorce law sets out some basic principles that a judge must use when making decisions about children.

• The best interests of the children come first.
• Children should have as much contact as possible with both parents so long as this is in the children’s best interests.
• The past behaviour of a parent cannot be taken into consideration by the court unless that behaviour reflects on the person’s ability to act as a parent.
When deciding on the best interests of the child, the judge will take into account a number of factors including:
• Care arrangements before the separation. (Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extracurricular activities? Who dealt with the child’s school and teachers?)
• The parent-child relationship and bonding.
• Parenting abilities.
• The parents’ mental, physical and emotional health.
• The parents’ and the child’s schedules.
• Support systems (for example, help and involvement from grandparents and other close relatives).
• Sibling issues. Generally, brothers and sisters remain together, but under some circumstances it may be necessary to consider separating them.
• The child’s wishes. (There is no magic age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child’s wishes as the child matures. An older teenager’s wishes will often be decisive.)

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

Serving Family Documents via Facebook?

Serving Family Documents via Facebook?

An otherwise-unremarkable Ontario family law decision called Filion v. Ives has an interesting feature: The court allowed one of the parties to use Facebook to serve court documents on the other.

In that case, the husband had used the universally-known social media platform to serve court documents on the wife as part of their acrimonious divorce proceedings. He chose this method because she had proven very difficult to locate in the past, in connection with numerous motions and settlement conferences over the years. She was now claiming that she was out of funds to hire a lawyer and had failed to show up at a scheduled hearing and costs were ordered against her.

On a motion to get clarification on the $28,000 that she had been ordered to pay the husband, who happened to be a corporate/commercial, real estate, and estates lawyer, served the documents on the wife by Facebook message and also by e-mail to give her notice of an upcoming hearing. The court described the circumstances that gave rise to this necessity as follows:

Service of the motion documents was effected on the [wife] on December 17, 2014 by Facebook message and by email. This is irregular. [The husband’s lawyer] explained that the [wife] would not cooperate to reveal her location and employers and family members could not or would not give her location. A process server had tried to serve the [wife] at the last address that the court had on file for her, but was unable to. A neighbour said that she had not been seen in six to seven months. She was thought to be in Sturgeon Falls or North Bay. However, the process server knew someone who the [wife] had responded to the Facebook messages of, indicating that she lived in Toronto, but not saying exactly where. [The husband’s lawyer’s] office had used the same Facebook address to message the [wife]. Also, there had been no response to the email to say that it had not gone through. [The husband’s lawyer] expressed confidence that service had been effected in this way.

The court noted that in limited circumstances, the Ontario Rules of Civil Procedure do allow for alternatives to service in circumstances where more traditional methods were ineffective/impractical. Here, the court was satisfied that the husband’s motion documents had come to the wife’s attention – or that they would have come to her attention had she not deliberately and actively evaded service.   To cover off the legal bases, the court made an order specifically endorsing the service of the husband’s documents in this way.

Although cases like this are still relatively novel, they suggest that Ontario courts might become increasingly comfortable with allowing this type of technology-based work-around in limited instances. Incidentally, another civil Small Claims Court case in which this approach was approved of is Eastview Properties Inc. v Wayne Mohamed.

For the full text of these decisions, see:

Filion v. Ives, 2015 ONSC 270

Eastview Properties Inc. v Wayne Mohamed, 2014 CanLII 52397 (ON SCSM)

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

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Can a Kid’s Foster Parent Participate in Child Protection Proceedings?

Can a Kid’s Foster Parent Participate in Child Protection Proceedings?

The Ontario Court of Appeal has considered an interesting question relating to child protection proceedings: Whether a child’s foster parent is entitled to be granted status by the court, so that he or she can participate in the case.

In A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell the child was made a ward of children’s aid organization named Valoris pour enfants et adultes de Prescott-Russell (the “Society”) when he was two months old. At seven months of age, he was placed with a “foster-to-adopt” mother (the “F-A Mother”), who was assessed as a potential adoptee and with whom the child was placed with the ultimate goal of adoption.

Meanwhile, the Society filed an application asking that the child be made a Crown ward with the biological parents being stripped of their access rights.   The Crown supported the F-A Mother becoming the child’s adoptive parent. (Although the biological parents were given the chance to participate in a trial concerning wardship, they did not do so).

However, in 2016 an aunt and her partner expressed an intention to adopt the child, and the Society decided to support that plan instead. The aunt asked the court to be allowed to be added as parties, and to be granted a temporary order to care for the child.

The question arose as to whether the F-A Mother could be added as a party to those proceedings. A motion judge held that she could; the Divisional Court later overturned that decision. The matter was sent to be heard by a third court – the Ontario Court of Appeal – where the outcome was reversed again.

First of all, the Court confirmed that procedurally, the provincial Child and Family Services Act allows for non-parties, including foster parents, to be added to a child protection proceeding in the right circumstances. The legislatively-prescribed considerations which would favour not granting her such status, such as any procedural delay that might be added, were not of concern here.

Next, in allowing the F-A Mother’s participation, the Court explained that she was in the best position to inform the court on a Crown wardship hearing as to what the child’s needs and best interests involved. It was those best interests of the child, not the rights of the family or the foster parents, that is determinative. The F-A Mother also had a legal interest in the proceeding, especially since the Society had changed its mind about supporting her adoption bid in favour of backing up the child’s aunt. If the F-A Mother was not involved in the proceedings, her chance to adopt the child might be foreclosed.

Ultimately, the Appeal Court found that the Divisional Court in our view erred in interfering in the motion judge’s reasonable exercise of discretion, and it allowed the appeal, and granted the F-A mother status as a party to the child protection proceedings about the child.

For the full text of the decision, see:

A.M. v. Valoris Pour Enfants et Adultes de Prescott-Russell, 2017 ONCA 601 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

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Wednesday’s Video Clip: What Are The Child Support Guidelines?


Wednesday’s Video Clip: What Are The Child Support Guidelines?

In this law video we discuss the child support guidelines.

In 1997, the federal government brought in a set of new rules and tables for calculating the amount of support a parent who does not have custody of his or her child must pay to the parent who has custody.

These rules and tables were later adopted by the Ontario government and are set out in the Child Support Guidelines.

A link to the Federal Child Support Guidelines is provided in the More Information, Courts and Statutes section of our web site Russellalexander.com.

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

Personal Injury Structured Settlements: Are They “Property” or “Income” Upon Divorce?

Personal Injury Structured Settlements: Are They “Property” or “Income” Upon Divorce?

In a recent family case called Hunks v. Hunks, the court considered whether structured settlements – such as the type that are reached as part of a personal injury claim – are considered “property” or else “income” for the purposes of the property-division and equalization regime under the Ontario Family Law Act (the “FLA”).

In that case, Donna and Gary got married in 1995. A few months later, Donna suffered an injury at a supermarket that left her disabled.   She successfully sued the supermarket, and was awarded more than $500,000 in compensation. After using spending about $200,000 for family-related needs, she used the rest to purchase a structured settlement (which is a mechanism by which a personal injury victim such as Donna could receive her settlement funds on a fixed schedule, rather than all up-front).

That structured settlement was arranged so that she would receive $1,290 per month for the rest of her life, as well as a lump-sum payment of $15,000 every five years (to a maximum of four such payments). All of this was subject to a small annual increase.

Unfortunately, the marriage between Donna and Gary did not flourish, and they separated about 15 years after Donna’s accident. In the course of settling out their financial affairs through the customary equalization process mandated by the FLA, the issue arose as to how the structured settlement should be properly characterized.

A lower court found that conceptually, a structured settlement was similar to a “pension” and rather than be excluded it formed part of Donna’s matrimonial property that was subject to equalization.

However, the Court of Appeal later overturned that ruling.   That court found that the structured settlement was essentially a special type of annuity, and it was more analogous to disability benefits. Under Ontario law, such benefits are considered “income” for FLA purposes, and while not subject to the equalization process per se, they are considered in determining spousal support levels.

For the full text of the decision, see:

Hunks v. Hunks, 2017 ONCA 247 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

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Do Partnership Principles Apply to Deciding Who Gets the Dog in a Split?

Do Partnership Principles Apply to Deciding Who Gets the Dog in a Split?

The legal issue of who owns the beloved family pet after separation or divorce has been covered many times by the courts across the country.  As I reported previously on a case called Henderson v. Henderson, the Canadian position is clear: “a dog is a dog. At law it is property, a domesticated animal that is owned. At law it enjoys no familial rights.”

This established principle was applied recently in a B.C. case called Brown v. Larochelle – but with a unique spin: the court held that partnership principles could apply to guessing what the parties might have intended if they turned their mind to what would happen to Luna in the event they broke up.

The young couple lived together for a few years. After their relationship ended the woman brought a court proceeding to determine which of them should get to keep a 3-year-old Korean Jindo rescue dog named “Luna”.   Alternatively, she asked that Luna be shared on/week off basis, or else that the man repay her $475 representing her half of the $950 they had together paid to adopt her.   The man, in contrast, wanted to keep Luna himself.

The court described the lead-up to the dispute this way:

In September of 2015 the parties stopped living together with the [woman] moving to a new apartment that did not permit pets.  In June of 2016 the [woman] obtained permission from her landlady to have pets and contacted the [man] about sharing possession of Luna.

That has led to this litigation.  The [woman] says there was an agreement to share Luna when it became possible.

The [man] says he paid $2,500 to the [woman] when she moved out to adjust certain matters between them and he believed ownership of Luna was one of those matters.

Since September of 2015 the [man] has had virtually exclusive possession of Luna.  The [woman] did take her for some visits/walks some 5 or 6 times after moving out but has had no contact since some time before June of 2016.

After reviewing the Canadian law on the topic, the court confirmed that dogs are treated as property, and distilled the following additional principles from the jurisprudence:

What I extract from the collective wisdom of these cases and some others is as follows:

(a)  pets will not be treated in a manner such as children;

(b)  courts are unlikely to consider interim applications for pet possession;

(c)  Canadian Courts are unlikely to find that joint sharing or some form of constructive trust remedy is apt;

(d)  that pets are a variant of personal property;

The above being acknowledged it is also clear that in Canada there is a legal requirement that animals (and in particular dogs and cats) be treated “humanely” unlike any inanimate personal possession.

The court then considered the fact that the couple had acquired Luna together, in what was essentially a “partnership”:

In this case, Luna was acquired by the parties not individually by either one but rather as what legally might be characterized as a partnership or joint venture.

Basic partnership law provides for an equal division of assets on dissolution of the partnership.  Many partners make agreements as to how they will deal with assets if the partnership winds up.  Many, such as here, do not. …

Applying established partnership principles to the question of the responsibility for Luna post-split, the court added:

… Partnership law requires that partners deal with each other fairly and equitably.  One of the maxims of the law of equity is: “Equity presumes that to be done which ought to have been done”.  In the context of this case, and having seen and heard the parties, I can assume that if they had directed their minds at the time they acquired Luna or during their joint care of her to what would happen if they split-up they would have agreed that this decision would take into account the best interests of Luna and her humane treatment.

After noting some of the tendered evidence that the Jindo breed of dog requires “strong training, patience, and plenty of walks”, the court concluded that joint use of Luna would not be best for her, based on either her breed, or her individual characteristics.   Since it was evident that Luna had “cemented her bond” with the man since the couple’s split, the better decision was to leave her with him.

In the end – and having found no persuasive evidence that the $2,500 the man paid to the woman when they split up was intended to cover Luna in a sort of “property settlement” – the court found that the man was entitled to keep the dog but was required to pay the woman $475 plus minimal court costs.

For the full text of the decision, see:

Henderson v Henderson, 2016 SKQB 282 (CanLII)

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

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Not All Internet Evidence is Created Equally

Not All Internet Evidence is Created Equally

Recently, I have touched on the issue of whether evidence taken from the Internet is reliable enough for the purpose of Family Law trials.

But as anyone knows who has ever spent time surfing the Internet – which is all of us — there are websites, and then there are websites.  Just because something is on the internet, certainly doesn’t mean that it’s reliable, fully accurate, or even remotely true.

How do courts grapple with determining the reliability of website information, and giving it the proper weight for evidentiary purposes?

In a recent immigration case called El Sayed v. Canada (Citizenship and Immigration), the applicant had objected to the fact that the Immigration Officer had apparently searched the applicant’s LinkedIn profile, and had made certain judgments about him that reflected negatively on his immigration application.

The court turned its focused attention on the issue of internet evidence reliability, citing approvingly from an earlier case:

With regard to the reliability of the Internet, I accept that in general, official web sites, which are developed and maintained by the organization itself, will provide more reliable information than unofficial web sites, which contain information about the organization but which are maintained by private persons or businesses.

In my opinion, official web sites of well-known organisations can provide reliable information that would be admissible as evidence … For example, it is evident that the official web site of the Supreme Court of Canada will provide an accurate version of the decisions of the Court.

As for unofficial web sites, I accept … that the reliability of the information obtained from an unofficial web site will depend on various factors which include careful assessment of its sources, independent corroboration, consideration as to whether it might have been modified from what was originally available and assessment of the objectivity of the person placing the information on-line. When these factors cannot be ascertained, little or no weight should be given to the information obtained from an unofficial web site.

The court added that this approach was approved in some subsequent Canadian decision, but in others the court still demanded expert testimony as to the reliability of the website information, before it would accept it as evidence for the trial or hearing.

The bottom line, is that courts know that everything you see on the internet is not true.  (Although I’m confident that they would approve of the Blogs on my website).

For the full text of the decisions, see:

El Sayed v. Canada (Citizenship and Immigration) 

ITV Technologies Inc. v. WIC Television Ltd.

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

 

Busted! Court Relies on Sworn Financial Statements from First Divorce to Value Assets During Second One

Busted! Court Relies on Sworn Financial Statements from First Divorce to Value Assets During Second One

The husband was a 46-year-old, recently-separated businessman who met the 26-year-old wife when she was a junior at the law firm he used for his business matters and litigation. After they moved in together and he got a divorce from his first marriage, the wife left her job at the law firm to take care of the husband’s litigation and related corporate affairs.

They were married for 14 years before they separated, and had three children.

When they split up, the husband forwarded a newly-prepared separation agreement for the wife’s signature. She signed without obtaining independent legal representation.  She was comfortable doing so because she believed that the husband had provided full disclosure, and she trusted his assessment since he had considerable experience valuing businesses.

Using the business valuation information provided by the husband, the separation agreement would have called for the wife to pay the husband just under $1 million as an equalization payment; however, it also provided that the husband would agree to forgo her having to pay that amount.

Sounds like a good deal, right?

However, the wife slowly realized afterwards that the husband had misled her. Rather than her owe him money in equalization (which he waived), the proper calculation was entirely different because he had greatly overstated the value of the corporate assets that he brought into the relationship, most notably the value of his company at the date of marriage. This would inflate the amount she was adjudged to owe him way of an equalization.

She successfully applied to the court to set aside the separation agreement, on the basis that the husband had not given full financial disclosure.  The trial judge adjusted the calculation accordingly.

The husband appealed.  In support of his business valuation figures, he put forth the evidence of an expert, who attested to the fact that the value of the business on the marriage date was over $7 million.  However, the Appeal Court concluded that the expert was partial to the husband and lacked independence, and had given an inflated figure that could not be trusted.

Instead, the court relied on some “smoking gun” evidence:  the sworn financial statements the husband had filed in his first divorce, which showed that he had essentially brought no assets of value into this second marriage to the wife.  The trial judge had relied on this evidence as well in setting the separation agreement aside, and the Appeal Court confirmed that there was nothing improper about the trial judge having done so, even if it was to the husband’s detriment.

In the end, the husband was found to have intentionally misrepresented the value of his corporate assets, by claiming that they were worth $6 million more than their actual (court-determined) value.

The Appeal Court upheld the trial judge’s decision to set aside the separation agreement, and went on to calculate the proper equalization amounts using the true valuation of the husband’s assets.

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

For Amateur Lawyers, Part 2: Equalizing a House that Cost More to Build than it’s Worth

For Amateur Lawyers, Part 2: Equalizing a House that Cost More to Build than it’s Worth

As I reported last week, the case of Strobele v. Strobele involved a couple who in the two years leading up to their final split had invested all their life savings (and more) to build their “dream home”. Unfortunately, it turned out that not only was the construction project the “death-knell” to their relationship, but the home also ended up being worth far less than it cost them to build/renovate.

At the end of the day, the home cost about $1.8 million to build, but ended up being worth $1.2 million, with title solely in the husband’s name. The wife had contributed $240,000 of her own money to the construction project over the years they were together.

So how does a Family Court split a home that’s worth less than what the spouses invested in it? The answer: With some complex calculations, and after looking at all the circumstances.

An already-tricky scenario was made somewhat more complicated by the fact that the husband wanted to buy the wife out, so that he could stay in the home. This meant that one of the many issues for the court was how much the husband should have to pay her.

The court first ruled out doing a straightforward Net Family Property calculation using the home’s current low market value. That would result in allowing the husband to stay in the home, obtain the benefit of the surroundings, and have the wife make further payments towards the home’s cost. This, the court stated, would be unfair.

Instead, the court had to look at the economic consequences of the relationship and its breakdown. The couple had moved into the home before they got married, and the wife spent $240,000 of her own money on construction projects both prior to and after marriage. They had enjoyed a relatively equal economic partnership throughout their relationship.

The fair approach was thus to calculate – and to divide equally – the overall losses that the couple sustained in building their dream home, and to give the wife a 50 percent equitable interest in the home – whatever that might turn out to be – by way of resulting trust.

Using an as-built value of $1.8 million, and a market value of $1.2 million, the court focused on “consumption value”, which would lead to a determination of what the parties’ loss on investment was. In these circumstances, the parties had each lost one-third of their overall investment in the home.

When that discount ratio was applied to the $240,000 that the woman put in over the course of their relationship, this meant she had lost one-third of that, too. In other words, rather than have the wife emerge with nothing from her $240,000 investment, the fair solution was to gross-down that figure by one-third, to represent her losses.

So after the normal equalization calculation the husband was at liberty to purchase the wife’s interest in the home for $160,000 and also personally assume all the debt associated with the house. Or, if that transaction did not take place and he chose not to buy her out, then the house could be sold and the loss that results could be divided equally between the parties through the usual equalization process.

Was this the outcome you would have predicted? What are your thoughts?
For the full text of the decision, see:

Strobele v. Strobele, [2005]

At Russell Alexander Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

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