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Posts from the ‘Damages’ Category

Changes to Divorce Act Recommended

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Changes to Divorce Act Recommended

The Canadian Bar Association (CBA), which is the largest professional, nation-wide association for lawyers in Canada, has recently recommended updates to the federal Divorce Act. Put forward by the CBA’s Family Law Section, these suggested changes are aimed at reflecting new realities related to modern-day parenting.
The proposed changes relate to three topics:

• Relocation – Although the test for a court ordering a child to be relocated hinges on the “best interests” of that child, courts are given little guidance on how to apply that test in specific cases. The proposed legislative changes would improve clarity and consistency.

• Child Support in shared parenting situations – The suggested amendments call for the legislation to include a formula for determining child support in shared parenting situations. Currently, the proper approach for courts to apply is complex.

• Updating Divorce Act terminology – The CBA’s proposed changes would see both the Federal Child Support Guidelines and the Divorce Act get updated so that terms such as “custody”, “access” and “best interests of the child” are modernized and replaced with more progressive terms. In particular, the clarity and meaning of the latter term would benefit from incorporating specified factors such as the impact of the child’s cultural, linguistic or spiritual upbringing, as well as the question of whether there is domestic violence in his or her home life.
If for no other reason, from a sheer temporal standpoint this kind of “freshening up” of the Divorce Act is long overdue, since it’s provisions have not been significantly amended for 30 years.

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 Only He’d Have Been Nice to Fluffy”

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“If Only He’d Have Been Nice to Fluffy”

Justice Pazaratz, known for the colourful writing in his family litigation rulings, begins his judgment in a particularly acrimonious custody case this way:

If only he’d been nice to Fluffy.

Sometimes in custody trials it’s the little things — literally — that help judges figure out what’s really going on.

Because believe it or not, judges realize that how people present themselves in affidavits and on the witness stand, is not necessarily how they behave when no one is looking.

Sometimes the little things can speak volumes.

In this case, among the “little things” that the judge referred to a stuffed animal that was dear to the child that the warring parents had together.

The back-story was this: The couple had met when they both worked as flight attendants.  When she unexpectedly became pregnant with his child, they agreed that she would move in with him, but she moved out about 6 weeks later because he was inflexible and domineering with her and with her two older twins from another relationship.  The acrimony continued – and indeed was heightened – in the time following separation, when the parents had numerous conflicts over sharing custody and their different approaches to caring for the child.  They now appeared before Justice Pazaratz to determine who should have sole custody of their 3.5-year-old child (and neither of them was willing to compromise with joint custody or parallel parenting).

Justice Pazaratz chronicled numerous incidents between the couple, with the pervasive theme being the intransigence of the father in his dealings with the mother and their child.  The judge wrote:

FLUFFY

But perhaps the most mind-boggling expression of the [father’s] hostility and defiance toward the [mother] relates to Fluffy: a small, white, stuffed animal [the daughter] became attached to when she was about seven months old. The [mother] testified at length about this — and the [father] didn’t deny any of her allegations.

The first incident occurred in March 2015:

  1. [The daughter] was experiencing separation anxiety when she went on visits with the [father].
  2. So the [mother] said she “negotiated” with [the daughter] that she could take Fluffy with her when she went on visits.
  3. When the [father] arrived at the front of her home to pick [the daughter] up for a visit he immediately pulled Fluffy from [the daughter’s] arm, pushed Fluffy into the [mother’s] face, and told her “I have my own stuffed animals.”
  4. The [mother] testified [the daughter] became hysterical, but the [father] simply left with the child. Fluffy stayed behind.

The second incident occurred in April 2015:

  1. The [wife] sent the [husband] an e-mail explaining that [daughter] was still experiencing separation anxiety and that the child would be bringing Fluffy with her because she found the stuffed animal emotionally reassuring.
  2. However, when the [father] attended at the front of her home to pick [the daughter] up, he again removed Fluffy from the child’s arms, this time throwing Fluffy onto the driveway.
  3. Once again [the daughter] became hysterical. The [father] took her for the visit. The [mother] retrieved Fluffy and went back in her house.

The [mother] testified that later in 2015 they went to court and negotiated a resolution of the Fluffy issue. (Pause for a moment to let that sink in: They went to court to negotiate a Fluffy resolution.) The [father] finally agreed that Fluffy could accompany [the daughter] during visits.

But it turned out to be a pyrrhic victory for common sense.

  1. The [father] developed a new routine:
  2. At the beginning of each visit, when he came to pick up [the daughter], she was allowed to bring Fluffy with her.
  3. But as soon as they got to his car, the [father] tossed Fluffy into his trunk and closed it. They then drove away.
  4. To the [mother’s] knowledge, Fluffy remained in the trunk during the entire visit.
  5. At the end of visits, the [father] retrieved Fluffy from his trunk, and handed the doll back to [the daughter].
  6. I suppose technically Fluffy got to come along for the ride.

But things got even worse for Fluffy.

  1. The [mother] testified that after a while, whenever Fluffy came out of the [father’s] trunk, the little stuffed animal smelled terrible. Fluffy gave off a noxious odor, as if dipped in Vicks VapoRub or camphor oil.
  2. The [mother] said on three occasions she had to wash Fluffy because [the daughter] couldn’t possibly play with a toy which had apparently been doused in an offensive and potentially dangerous substance.
  3. The [mother] e-mailed the [father] asking why he was damaging the child’s prized possession.
  4. The [father] accused her of fabricating a complaint.
  5. The [mother] said she finally gave up and stopped sending Fluffy.

 

I have no idea why the [father] allowed Fluffy to turn into such a major and unwinnable competition.

  1. He doesn’t like the [mother]. I get it.

  1. But Fluffy was just….Fluffy.
  2. Just a harmless little toy of no consequence to anyone….except a vulnerable two year old caught in the middle of a bitter custody dispute.
  3. Would it have killed him to just let the child hang on to her toy?
  4. Was it really necessary to make his daughter cry, just to flex his need for control?
  5. In Coe v. Tope, 2014 ONSC 4002 (Ont. S.C.J.) this court offered some very simple advice for situations like this: Stop acting like you hate your ex more than you love your child.

Despite finding that they were both good parents and both loved the child equally, Justice Pazaratz concluded as follows:

The bottom line: Despite unquestioning love, incredible passion, and impressive credentials — the [father] has given us every reason to worry that if he is granted decision making authority, he will not promote the [wife] in [the daughter’s] life. There is a real danger he will shut the mother out.

In contrast, the [mother] has provided overwhelming reassurance that she has always made good and fair decisions for [the daughter], and she will continue to co-parent with the [father].

Family Court Judges don’t have a crystal ball. We can only go on the basis of how parents have behaved so far.

After reviewing all the circumstances in detailed and lengthy reasons, Justice Pazaratz concluded that it was in child’s best interests that mother be granted sole custody.  And – true to form – he added the following admonishment to the father, at the end of the judgment:

POSTSCRIPT

If only he’d been nice to Fluffy.

If only he’d been nice to the [mother].

If only the [father] had remembered the two magic words of custody cases.

”Be nice.”

For the full text of the decision, see:

Chomos v Hamilton

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

If You are Divorced in a Foreign Country, Can a Canadian Court Make Orders Too?

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If You are Divorced in a Foreign Country, Can a Canadian Court Make Orders Too?

The facts in Cheng v. Liu are a little unusual, but the core question was this:

If a couple’s divorce is validly granted outside of Canada by a foreign court, does this preclude a Canadian court from later making any corollary orders – such as rulings on issues of support or custody – arising from that same divorce?

The husband, an engineer, was a Canadian citizen who lived in Canada.  The wife lived in China and had never been to Canada.  They got married in China in 2006 and had a daughter who lived with the wife in China her entire life.  They separated about a year after getting married, in around late 2007 or early 2008.

The wife then covered all the legal bases:  She applied in China for a divorce, and custody of their child.  She also applied in Canadian, under the federal Divorce Act, to ask for a divorce, as well as spousal support, child support, and custody.  Finally, also in Canada under the Ontario Family Law Act, she asked for equalization of net family property.

Meanwhile, the Chinese court granted the wife her divorce and awarded her sole custody of the child.  The wife’s other Ontario-based claims were still pending.

The husband, faced with all of these competing actions requiring his response, asked the Ontario court to suspend (or “stay”) the proceedings so that the entire matter could be determined in China.  This led to several rulings and some procedural wrangling, and ultimately a hearing before the Ontario Court of Appeal for its determination.

Against this complicated background the Ontario Court of Appeal had a simple question to consider:  In light of the Chinese divorce order, could a Canadian court make additional orders relating to child support, spousal support, and equalization of property?

The Court’s conclusion was mixed:  The divorce-related issues were closed for consideration, but the child support issues were still up for an Ontario Family court to rule on.

On the first point – and based on longstanding precedent that considered the provisions of the federal Divorce Act – the law states that once the foreign Chinese court had made a valid divorce order, this removes the authority of the Ontario court to hear and determine corollary matters.  So on the remaining divorce-related issues, the Ontario court had no authority.

However, the situation under the provincial Family Law Act was different:  the Ontario court could still rule on questions relating to child support, since the foreign court in China had not already done so in its divorce order.   The Family Law Act allowed child support claims to be made even after a divorce, and the foreign divorce order had no impact on that.  Indeed, the whole purpose for the Ontario legislation was to ensure that parents provide financial support for their dependent children.  Allowing the Ontario court to continuing to make orders under the Family Law Act even though the Divorce Act provisions had been trumped was actually a harmonious outcome to ensure child support would be covered.

For the full text of the decision, see:

Cheng v. Liu

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

 

Thinking of Doing Some Cyber-Sleuthing? Think Again

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Thinking of Doing Some Cyber-Sleuthing? Think Again

I wrote a recent Blog about the admissibility of surreptitiously-recorded telephone conversations in Family law proceedings.  I have also written several times on how courts approach the admission of Facebook evidence.

Particularly in nasty divorce and custody disputes, it is likely that courts will have to grapple with these kinds of issues regularly, given how easy its become for spouses to try to secretly gather evidence against each other, using a Smartphone, keystroke logger, spyware, etc.

But for the average embattled spouse locked in bitter litigation, how effective is this as an evidence-gathering mechanism for use in Family court?

The answer:  Not very.

Under Canadian law, secretly-gathered computer data, emails, internet history, video, audio and similar evidence is generally not admissible in routine Family law hearings, except in unusual circumstances and only after a court has held a separate mini-hearing, called a voir dire, on the specific issue.  Overall, the odds are not very good that such evidence will be admitted.

Case in point:  In a called T. (T.) v. J.(T.) the court considered a situation where the husband had hacked into his wife’s private email, using the password she had allowed him to have when the marriage was in happier times.   The emails disclosed what was, in the court’s words, “an arguably disturbing exchange between [the wife] and her lawyer, which could be interpreted as evidencing some potential risk or threat to his safety.”  Still, the court found the husband’s email hacking was not only unjustified, it was a clear violation of the wife’s privacy rights.  The court also concluded that the email evidence irrelevant and inadmissible.

Similarly, in a decision in U. (A.J.) v. U. (G.S.) the court considered whether to admit evidence that the husband had collected through the use of spyware he had illegally installed on his former wife’s laptop.  The evidence showed the wife’s activities on internet chat rooms, and established that she had engaged in extra-marital sex.  The court examined the issue in the context of the couple’s dispute over custody and access issues, ultimately concluding that the affair and the online activity was out-of-character for the wife, and was not reflective of her ability to parent the children of the marriage.  The court added that it would be “a rare case” that illegally-obtained evidence should be admitted, and only after the trial judge holds a hearing to determine its admissibility.  The burden was always on the party seeking to enter such evidence to establish “a compelling reason to do so.”

For the full text of the decisions, see:

(A.J.) v. U. (G.S.)

(T.) v. J. (T.)

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

Can You Sue a Cheater for Damages?

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Can You Sue a Cheater for Damages?

These days, not a week goes by without some sort of sexual scandal in the news. Recently, it has focused on allegations of sexual harassment by prominent figures and celebrities but this merely adds to usual crop adultery-scandal coverage that routinely graces the cover of magazines seen while waiting in the check-out line.

I was reminded of an older Family Law decision the other day, which considered the question of whether one person can sue another for cheating on them, or for falsely promising to marry them or have an exclusive relationship with them.

The decision in Lee v. Riley raised exactly this scenario.  The matter came before the court the initially to consider whether the lawsuit actually raised any valid legal claims.  (Under Canadian law, this process serves as a preliminary “screening mechanism” for weeding out those claims adjudged to be entirely without merit, so as not to waste the court’s time (and the taxpayers’ money) on frivolous or otherwise untenable lawsuits.   The prevailing test at the time was whether it is “plain and obvious” that the cause of action cannot succeed.)

In Lee v. Riley the woman had sued the man for what has a rather novel claim.  As the court put it:

The plaintiff [woman] alleges that the defendant [man] failed to advise her that he was involved with another women whom he later married while he was carrying on an intimate relationships with her within a context of an apparent ongoing developing relationship. When she discovered the truth, the [woman] claims that she became ill and has suffered damages. The [woman] asserts a number of causes of action arising out of these facts, including assault, intentional infliction of mental suffering, and fraudulent or negligent misrepresentation.

Although it appeared to have sympathy for the woman, the court dismissed her claim outright, having found no supportable, legal cause of action in her pleadings.  The court wrote:

The [man’s] conduct, as alleged, is morally reprehensible and disgraceful. Nevertheless, the law has never punished either criminally or in civil proceedings, the untruths, half-truths and other inducement which accompany seduction, absent a fraudulent relationship or the presence of a known serious transmittable disease. The [woman] knew who the [man] was and knew the [illegible text] sexual acts being undertaken. The law cannot protect every person against the kind of behaviour the [man[allegedly manifested. Relationships involve risk-taking. People should be honest but it is well known that frequently they are not.

What are your thoughts?  Are there circumstances where the law should recognized a claim in damage by the cheated-on partner?

For the full text of the decision, see:

Lee v. Riley, 2002 CarswellOnt 5558

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

 

Revenge Porn: Not Just a Bad Idea; It’s Also a Crime

Revenge Porn: Not Just a Bad Idea; It’s Also a Crime

A few weeks ago, I reported on the appeal-level decision in the case of “revenge porn” where a woman’s ex-boyfriend had posted explicit photos of her on a pornographic website and showed them to his friends, all without her consent. She sued him for civil damages to compensate for the resulting humiliation.

The existence of this type of case is not unexpected, but it’s not as prevalent as one might think. Despite the widespread use of social media, and the immediacy with which even ill-advised messages can be sent, there are surprisingly few court decisions that involve a person seeking civil damages for an internet-based invasion of privacy, whether through hacking, or by posting without the person’s consent.

Part of the reason might be the impact of the criminal law: In December 2014, the Canadian Criminal Code was amended to add s. 162.1(1). The provision makes it a crime if someone “knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person” knowing that he or she did not give their consent. The term “intimate image” is defined to include a visual recording, including a photographic, film or video recording, “in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity”. On conviction as an indictable offence, the penalty can be up to five years’ imprisonment.

So far, there are only a small number of reported cases in which anyone has been charged with an offence under s. 162.1.

  • In R v. P.S.D., a young man in a volatile, on-again/off-again relationship with a young woman was charged after he took partially-clad images of her without her consent. He also sent the pictures to two friends, with instructions that they should save them, all with the intent to cause her emotional harm. The blurry, poor-quality photos were taken with his cellphone, in a manner that clearly indicated she had not consented, and showed portions of the woman’s bare breasts. The man was given a suspended sentence, after being given 90 days’ enhanced credit for the 60 days he spent in pre-trial custody.
  • In v. Calpito, the male accused, in his early 20s, confessed to having posted seven nude photos of his former girlfriend on Instagram after their romantic relationship had ended.  The photos were viewed by the woman’s large circle of friends, and even by her employer. The woman described the devastating effect of his actions on her life and university studies. The man was sentenced to a conditional discharge with three years’ probation, together with restrictions on his internet use and a significant term of community service.

The enactment of this new criminal offence, with its potentially hefty sentence, has surely had a chilling effect on the need for civil remedies as well. It means that Canadian law is well-poised to thwart the impulses of spurned ex-lovers to wreak revenge on former partners by oversharing intimate images.

For the full text of the decisions, see:

R v. P.S.D., 2016 BCPC 400 (CanLII)

v. Calpito, 2017 ONCJ 129, 2017 CarswellOnt 340

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

Appeal Court Affirms No Claim for Emotional Harm Arising from Birth of Unwanted Child

Appeal Court Affirms No Claim for Emotional Harm Arising from Birth of Unwanted Child

An unusual case arising from a man’s lawsuit over a baby he didn’t want has now been heard by the Ontario Court of Appeal.

As I reported here, the facts involved a man and woman who had a brief romantic fling in 2014, lasting less than two months. After going on a few dates, they had unprotected sex on several occasions. Although it was not strictly proven before the court, the man recalled his understanding, from various things the woman said, that she was taking birth control pills and did not intend to conceive a child.

But a few weeks after their short relationship ended, the man, in his early 40s, found out that the woman, in her early 30s, was pregnant. She went on to give birth, at which time it was confirmed that the man was the father.

The man, who was a budding doctor, sued the woman in civil court for over $4 million, claiming her fraudulent misrepresentation had deprived him of the choice of when and with whom to share the responsibility of parenthood. The court framed his cause of action in these words:

Although it was not presented in this way, the claim can be viewed as a tort claim for involuntary parenthood made by one parent against the other. It is clear that the alleged damages do not relate to a physical or recognized psychiatric illness. In essence, the damages consist of the [man’s] emotional upset, broken dreams, possible disruption to his lifestyle and career, and a potential reduction in future earnings, all of which are said to flow from the birth of a child he did not want. Although the claim is not for the direct costs associated with raising the child, all of the damages claimed by the [man] are the result of consequences flowing from the unwanted birth of a child, albeit unwanted only by the father.

(And it’s important to note that the man was suing for emotional harm of the non-pathological variety only; he was not suing for physical harm or for monetary damages, such as for any undesired child support obligations he may have. On that latter point, a separate Family Law suit, disputing his obligation to pay child support based on the woman’s alleged fraud and deceit, was also underway and would be heard separately).

The lower court, in striking out the man’s claim, held that his allegations disclosed no reasonable, legally-recognized cause of action, because a claim for fraudulent misrepresentation – which is a tort in Canadian law – was aimed at compensating the man for any financial damages, not emotional ones. In other words, the man was trying to claim for the types of damages that were simply not actionable through a fraud claim.

In its recent decision, the Ontario Court of Appeal agreed, adding that the woman’s alleged lie as to her being on birth control – even if it was proved that she told it – was not enough to form the basis of the man’s claim for emotional injury. Plus, any harm the man suffered was not tantamount to a “personal injury” in the traditional legal sense.

Do you think the original decision – now affirmed on appeal – was correctly decided? What are your thoughts?

For the full text of the decision, see:

PP v DD, 2017 ONCA 180 (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

 

 

 

Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

Husband’s Hidden Bedroom Cam Nets Wife $15,000 in Damages for Privacy Invasion

I have written previously about a relatively new cause of action in Canada called “intrusion into seclusion.” It is essentially a privacy-based tort claim that a person can assert by establishing damages from an unauthorized intrusion into his or her private affairs by someone else.

Recently, this new type of tort has been successfully claimed in the Family Law context by a wife against her estranged husband, in a case called Patel v Sheth.

The couple had been married for about 3 years when they separated for the first time, with the wife moving out of the matrimonial home. Shortly after they made an effort to reconcile, but matters became increasingly acrimonious and they separated for a final time about 8 months later.

At one point during their reconciliation attempt, when the wife was taking steps to gradually move back into the home, the husband surreptitiously installed a video camera in the bedroom, hiding it in a BMW keychain placed on an armoire. The camera faced the bathroom.   Given its placement, the camera would have caught the wife in the act of getting undressed.

The wife found the camera in the bedroom after their final separation, when she was moving furniture around.

As part of their later divorce proceedings, the wife added a $50,000 claim in damages against the husband, for his having intruded on and breached her privacy by installing the hidden camera in such a highly personal area of the home.   She asserted that she was offended and embarrassed.

In explanation, the husband claimed he installed the camera ostensibly for his own protection, since at one point the wife had falsely accused him of assault. Claiming that he never downloaded any of the images it may have recorded, he asserted that the wife suffered no damages.

In considering this scenario, the court concluded that even though the cameras did not capture any explicit images, the potential to do so was real. The privacy intrusion took place in the context of a domestic relationship, and in the court’s view it was also an “extremely aggravating” factor that the husband had initially lied about the camera under oath during discovery, and even tried to blame the wife.  (He later admitted to that lie at trial).

Furthermore, the husband’s explanation for installing the camera made no sense: If he was concerned about further assault allegations being levelled at him, there were many other rooms in the house where physical violence could conceivably take place. Yet he did not bother to plant hidden cameras anywhere but the bedroom.

The court ultimately held that the wife was entitled to damages of $15,000, observing that although she was shocked and embarrassed, there was no medical evidence filed to support any significant effect on her health. The court also held that this was not a case for additional punitive damages to be awarded.

For the full text of the decision, see:

Patel v Sheth, 2016 ONSC 6964 (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