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Posts from the ‘evidence’ Category

Should Pacemaker Evidence Be Used to Catch Cheaters?

Should Pacemaker Evidence Be Used to Catch Cheaters?

I have written several times before about some of the more novel uses of the information that can be gleaned from social media, for example the use in Family Law of evidence taken from Facebook. Some of our previous posts include: Facebook as a Source of Evidence In Family Law: Part 1Facebook as a Source of Evidence in Family Law: Part 2; and  Facebook as a Source of Evidence in Family Law: Part 3.

The legal issue behind this kind of information-gathering, is whether collecting information in this manner is unduly intrusive into a person’s privacy.

A U.S. case reported by the American Bar Association that caught my attention recently takes the privacy question it even further: It involved the use of evidence taken from a man’s pacemaker, used to support a charge of criminal fraud and arson against him. It seems the data from his heartbeat-regulating device – which was collected from him by way of a search warrant – did not support his claim that his house had burned down. Evidently the man’s heart-rate on the night in question did not correspond with his description of events, including his scramble to collect his personal belongings and get out of the home. He was ultimately charged with arson and insurance fraud.

As the American Bar Association article pointed out, this Ohio decision is contentious because it can be seen as having “eroded” the privacy rights that an individual has in his or her health information. In Canada, the government’s ability to collect and use private information is strictly governed by the Personal Information Protection and Electronic Documents Act (PIPEDA), and this includes the right and duties in relation to collecting information for the prosecution of crime.

Although the U.S. decision has no sway in Canada, it occurred to me that if it did, the information from personal health devices like a pacemaker might eventually be exploited in Family Law cases as well.  I started to think about the limits of this kind of information, and how it might apply to divorce cases.

For example, it could be called up in support of the adultery-based grounds for divorce under the federal Divorce Act, by bolstering other evidence that a spouse who claimed to have been “working late” on a given evening was – judging by an unusually elevated heartbeat – actually engaged in an extra-marital affair. (Although I guess it might depend on how truly exciting the person’s work is!)

For now, this is the stuff of science fiction; it’s probably a long way off, before these kinds of biometrics are used as evidence in litigation generally, much less in Family Law cases. And they give rise to many privacy concerns that are assiduously safeguarded by Canadian public policy in the form of legislation.

What are your thoughts on whether evidence of this nature should be used?

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

Pass the Buck – or Pass the ‘67 Buick?

67 buick

Pass the Buck – or Pass the ‘67 Buick?

In a case called Townshend v. Townshend, the court was asked to consider whether a ’67 Buick – that had been passed from father, to mother, to son, to brother, and then to the grandson – was part of the Net Family Property of a husband in his divorce.

Originally, the car was owned by the husband’s father. After he died, the husband’s mother drove it for a few years but then gave it to one of her sons, Paul, to encourage him to go back to school.

The husband claimed that during the marriage, his brother Paul “gave” him the car for $400, which was the equivalent to what Paul had recently paid for new tires on the vehicle. The husband then claimed that he gave the car to his own son just prior to separating from the wife, i.e. putting it back outside the umbrella of the husband’s Net Family Property (NFP) in the upcoming divorce. At the date of separation, the car was registered in the husband’s name; by the trial date it was registered to the son.

In the subsequent divorce proceedings, the court was asked to consider whether the car should be considered a gift from the brother – and thus its value would be exempt from the husband’s Net Family Property – or whether its value should be added to husband’s tally of assets for equalization purposes.

At trial, the judge had said that “technically” the car was not a gift; rather the husband had purchased it from the brother for $400. The trial judge was also skeptical that the husband had gifted it to his own son prior to separation. The judge forced the husband to include the entire value of the ’67 Buick – about $5,750 – in the husband’s NFP.

The matter went to the Court of Appeal, which concluded that the trial judge had been wrong: While the judge was entitled to reject the husband’s claim to have given his own son the car prior to separation, he had clearly accepted that part of the husband’s story that had him buying the car from his brother Paul. As the Appeal Court explained:

It is implicit in the trial judge’s reasons that he accepted the husband’s evidence that he acquired the car from his brother by effectively reimbursing his brother for the cost of new tires the brother put on the car.

In these circumstances, in my view, it was unreasonable to conclude that the husband had not acquired the car by way of gift.

In other words, this arrangement fell short of a true purchase/sale: rather, the husband had been given the car by his brother except for having to reimburse the cost of the new tires.

As such, the proper approach was to consider the $5,750 value of the car – minus the $400 for new tires – to be a gift that was excluded from the husband’s NFP; only the $400 should have been added into the NFP calculation.

This case shows that especially in family situations, it can be difficult to identify the distinction between a gift between family members, as opposed to a sale or some other transaction (particularly if involves a price below market value). It’s always a good idea to get legal advice in these situations.

For the full text of the decision, see:

Townshend v. Townshend, 2012 ONCA 868 (CanLII),

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

Appeal Court Confirms: Dishonest Husband Required to Show “Scrupulous Care” for Wife’s Interests

care

Appeal Court Confirms: Dishonest Husband Required to Show “Scrupulous Care” for Wife’s Interests

Consider this scenario: Two spouses divorce after 20 years of marriage and three children. They enter into a separation agreement to establish the combined child and spousal support the husband should pay, and agree that a home they purchase after separation would be taken in the wife’s name alone.

However, in 2005 they decide to enter into an Amending Agreement: Among other things, it adjusts the support amount to reflect the husband’s declared income of $80,000 per year, and changes the split on the home’s ownership to 50-50 for each of them (with the title documents amended accordingly).

Years later, the wife later finds out that the husband’s income was not $80.000 as he claimed, but rather closer to $345,000. The vast majority of that income came from various contracting / home building businesses that the husband owned, which generated significant unreported income about which the Canada Revenue Agency was unaware.

The wife then asks the court to set aside the Amending Agreement as unconscionable, and to declare her the sole owner of the property. This is based mainly on the husband’s untruthfulness about his true income. In response, the husband complains that the wife should have raised her objections sooner in their proceedings, and that she should be barred from raising them now.

The questions for the court was this: Should the Amending Agreement be aside in these circumstances?
Not surprisingly, two different courts’ answer was a resounding “yes”. But what was interesting is that both courts concluded that the husband had a duty to act with “scrupulous care for [the wife’s] welfare and interests” in the circumstances.

The matter first came before an applications judge who found that the wife would not have signed the second agreement had she known of the husband’s true income. That judge set aside the agreement and declared her to be the sole owner of the home.

In doing so, the judge found there had been inequality between the parties and that the husband was preying on the wife, especially in light of her economic vulnerability. As such, he had a duty to act with her best interests in mind, and – as the later Appeal Court confirmed – his “failure to disclose that his income was roughly four times that which he represented it to be was a serious breach of that duty.”

There was no doubt on the evidence that the husband misrepresented his income as being $80,000, when in fact he had significant additional undeclared income. The wife did not find out about it until long after she began the court proceedings, so it did not lie in the father’s mouth to she should have raised it earlier in the proceedings.

Also, the Court of Appeal found no fault in the prior judge’s assessment that the Amending Agreement was unconscionable in law, based on both the husband’s non-disclosure of significant income, as well as the manner in which the parties purported to deal with their real estate. Although the concept of “unconscionability” in the context of domestic contracts is not the same as for regular contracts, one principle remains the same: where there are circumstances of oppression, pressure, or other vulnerabilities, and where there is evidence that one party exploits those vulnerabilities during the negotiation process to the point that the domestic contract deviates substantially from what the relevant family legislation would otherwise dictate, the contract need not be enforced.
The Amending Agreement was therefore set aside and the wife was declared the sole owner of the property.

For the full text of the decision, see:

Tadayon v. Mohtashami, 2015 ONCA 777 (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 www.RussellAlexander.com.

Evidence 101: The Fine Line Between “Evidence” and “Submissions” in Family Law

submissions

Evidence 101: The Fine Line Between “Evidence” and “Submissions” in Family Law

A recent decision in Mwanri v. Mwanri raised a narrow – but important – legal point: When lawyers make submissions in family court, these are simply that: submissions, assertions, or stated positions on behalf of one of the parties. They are not tantamount to “evidence” that a court can consider in making its decision, and it is an error for a court to apprehend them that way.

In Mwanri v. Mwanri the parents were involved in a custody dispute over their two children. By way of a court order the father had been granted sole custody of an older son, while the mother had been granted sole custody of their daughter. But despite that earlier order, in 2014 the daughter decided to go live with the father. Seeking to formalize that new arrangement, the father brought a court motion to vary the original custody order as well as his related child support obligations.

At the motion hearing the evidence included the results of interviews with the daughter conducted by the Office of the Children’s Lawyer (OCL), which had become involved in order to monitor the existing parenting and access schedule. Based on those OCL interviews, together with some evidence from the mother, the motion judge rejected the father’s motion, ruling that he had actually influenced the daughter to move out of the mother’s home and to move in with him instead. That adverse finding was exacerbated by the motion judge’s conclusion, in connection with certain prior directives, that the father’s conduct “amount[ed] to a failure to comply fully with the existing court orders, if not outright contempt of them”.

By way of an appeal launched by the father, the Ontario Court of Appeal was asked to review the motion judge’s conclusions for errors.

First of all, the Appeal Court pointed out that the mother had given sworn evidence that supported the motion judge’s finding that the father had influenced the daughter’s decision to change her place of residence. So the motion judge’s reliance on that evidence was warranted.

However, the Appeal Court added, “The motions judge’s reference to the OCL’s interviews with the daughter is a different matter.”

The motion judge had never been given an actual report or other evidence from the OCL, so were no formal documents tendered. Rather, the motion judge had merely drawn conclusions based on the oral submissions by the OCL’s lawyer to the effect that the OCL interviews showed the father’s attempts to influence the daughter to move and disobey the existing orders. This, the Court of Appeal found, was a mistake on the motion judge’s part. As the Appeal Court put it:

Submissions by counsel are not evidence. They are simply submissions and nothing more.

(Still, nothing ultimately turned on that particular finding of error, since there was also credible and sufficient evidence from the mother – which the motion judge had believed – that the father had influenced the daughter).

The Appeal Court also rejected the father’s notion that he had technically been accused by the motion judge of being in contempt, even while it confirmed that he had indeed failed to comply with certain aspects of the earlier order, including the directive to pay legal costs.

Those two aspects of the father’s appeal were accordingly dismissed (although he succeeded on some of the other numerous grounds of appeal that he had raised in connection with support, custody and other related issues arising from the initial order).

For the full text of the decision, see:

Mwanri v. Mwanri, 2015 CarswellOnt 18511, 2015 ONCA 843

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

To Get Retroactive Support, Does a Kid Have to be Eligible at Now … or Only Back Then?

SCC

To Get Retroactive Support, Does a Kid Have to be Eligible at Now … or Only Back Then?

A recent Ontario case highlights an interesting “timing” conundrum in Family Law: when a parent applies for retroactive child support, does it matter that the child over 18 when the application is made? Or does that make the child ineligible for support?

And what if it’s a motion to retroactively change existing support levels?

The law on this point was canvassed in the recent case of P.M.B. v. A.R.C.-A. The mother wanted support to cover a period when the child was 18 and attending school full-time. However, on the date of her application, the child was 19 and no longer attending school. She asked the court to order child support that was retroactive (i.e. effectively “back-dated”) to cover the child’s eligible period.

In considering that claim, the court resorted to the principles set out in a well-known Supreme Court of Canada decision in D.B.S. v. S.R.G., where the court set out the factors that family courts should take into account in detailing with such retroactive applications.

That higher Court had confirmed the general principle (known as the “D.B.S. rule”), that a claim for retroactive support cannot be made unless the child is eligible for support at the time the application is made. As the court in P.M.B. v. A.R.C.-A. put it: “Child support is for children of the marriage, not adults who used to have that status.”

(But this principle comes with a caveat, because the standards and thresholds for what makes a child eligible for support are slightly different under the provincial Family Law Act versus the federal Divorce Act. Also, other established factors that need to be examined, such as the reason for the parent’s delay in applying, the conduct of the paying parent, the circumstances of the child, and the hardship that such an award may entail. In short: Child support eligibility is a complicated legal issue).

However – as with all rules – there are some exceptions. The D.B.S. rule will usually be found not to apply in cases where:

• There is an existing order in place (and an established support obligation under either the Divorce Act or the Family Law Act) and a motion is being brought to change it retroactively;

• A party has engaged in blameworthy conduct (for example where the support recipients have been thwarted or blocked from pursuing a motion to vary support because of some misconduct by the paying parent); or

• The paying parent has failed to disclose income increases to the recipient parent, in a manner that the court considers blameworthy.

Ultimately, and after considering all of these principles, the court in P.M.B. v. A.R.C.-A. decided to stray from the usual D.B.S. rule, for various circumstantial reasons. These included: a) the existence of an oral agreement for child support; b) the fact that two of the three children were still under age and eligible for support when the retroactive support order was being made; and c) because the father had been fully aware of his support obligation – and the fact that he was not meeting it – all along.

For the full text of the decision, see:

P.M.B. v. A.R.C.-A., 2015 ONCJ 720 (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 www.RussellAlexander.com

Do Nude Pics of Your Ex Help the Judge Decide? Likely Not

picture
Do Nude Pics of Your Ex Help the Judge Decide? Likely Not

A parent who is battling for custody of a child may be tempted to resort to bad-mouthing the other parent, or painting him or her in a bad light, all as a means of swaying the judge to rule in their favour. But in a recent Ontario case the father went too far by including explicit text messages and nude photos of the mother in the evidence he filed. The opening lines of the judge’s ruling tells the story:

Do nude pictures of parents help judges decide who should get custody?

A silly question?

Why then, on this motion for temporary custody, has the Applicant father attached to his affidavit a series of sexually explicit “selfies” of the mother, retrieved from her discarded cell phone?

And why did he attach dozens of screen shots of the mother “sexting” with another man, describing her sexual preferences in graphic detail?

If the objective was to humiliate the mother, undoubtedly the father succeeded.
But how does humiliation help in family court?

How does irrelevant and scandalous information help a judge determine the best interests of the child?

More importantly — from the child’s perspective — what is the long-term impact of this needlessly hurtful approach to litigation?

Lamenting that privacy and discretion seem to be “a thing of the past” in this era of e-mail, Facebook, Twitter, texts and selfies, the judge commented that the father’s conduct actually gives rise to some evidentiary issues because of his unauthorized use of the mother’s discarded cell phone. Then the judge added:

But more to the point, the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet: The mother has a sex life.

Big deal.

The judge acknowledged that there was a back-story to the father’s ostensible justification for filing this sort of evidence: After living together for almost a decade, the mother had an affair and divulged that the youngest of their two children was likely not the father’s. Still, the court gave a clear message:

In a number of recent decisions, this court has urged parents to take a more adult and civilized and reasonable approach to resolving custody and access disputes. Simplistically, I have tried to convey the message:

Nasty doesn’t work.

The mean-spirited and malicious inclusion of humiliating and completely irrelevant nude pictures and texts in this case cries out for a stronger message:

Nasty won’t be tolerated.

The judge went on to provide a reasoned decision on the substantive issues relating to temporary custody of the children, after ordering the nude photos and salacious text excerpts to be removed from the court file. The judge also ordered the father to never show the nude photos and text to anyone else.

For the full text of the decision, see:

J.S. v M.M., 2016 ONSC 2179 (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

For Man “Tricked” into Unplanned Parenthood – Can He Sue for Damages?

condom

For Man “Tricked” into Unplanned Parenthood – Can He Sue for Damages?

A recent Ontario case gives rise to a unique legal question: Can one parent sue the other for unwittingly being forced into parenthood?

The man, a 42-year old medical doctor and the woman, a 37-year old medical practitioner, met through a mutual friend and started dating. After their second date they had sex in the woman’s apartment, but not before the man asked the woman if she had any condoms. She said she did not, but indicated that she was “on the pill”. Afterwards the man stayed the night and left the next morning.

What followed was a series of eight or nine subsequent dates, and they had sex each time. The subject of condoms came up again during one of those occasions, but the woman did not say or do anything to suggest that her prior statement of being “on the pill” was no longer true, or that it had never been true in the first place.

After about 10 dates they mutually agreed by phone to cease the sexual aspect of their connection and revert to a “just friends” platonic relationship.

Soon after, the man was shocked to receive a text from the woman, advising that she was 10 weeks pregnant with his baby. After she gave birth, the woman refused to allow the man to see the infant, despite his stated willingness to provide financial support and establish a relationship with the child.

Eventually, after they agreed to a child support arrangement, the man then took a legally-unusual step: He sued the woman for $4 million in damages “because he [had] been non-pathologically emotionally harmed by his unplanned fatherhood.”

In particular, the man claimed that he had been tricked into having recreational sex with the woman, had relied on her “on-the-pill” statement in deciding whether to engage in sexual activity, and had been emotionally harmed by being deprived of the choice to fall in love, marry, enjoy married life, and then — when he and his wife thought “the time was right” – to have a baby. Although he made it clear he was not trying to dodge his child support obligations, he claimed he had been harmed because he was just at the beginning of his medical career and was not at the stage where he wanted to have a baby with “some random woman”.

As the court explained the man’s position:

[The man] is not against being a father, but his passionate argument is that by [the woman’s] fraudulent misrepresentation, he has been denied the opportunity to be a father at the time of his and future beloved’s choosing and he suffered non-pathological emotional harm as a consequence.

However, in examining this novel claim, the court found that the man had framed his cause of action incorrectly, by relying on the tort of fraudulent misrepresentation. That tort was used to compensate for damages for economic loss, i.e. restore the injured party to the financial position he or she was in previously.

Admittedly, the man had likely established all the other necessary elements of fraudulent misrepresentation (i.e. a false statement, knowledge that the statement is false, an intent to deceive, and the statement inducing the man to act). But what he could not prove was that he suffered economic damages. Aside from having to pay child support (which the man was not resisting), he had no financial losses from the woman’s pregnancy or childbirth. He was not married to her, was not obliged to marry her, never lived with her, and never established any long-term relationship. He did not contract any STDs, and would not experience any disruption of his career as a doctor. The court pointed out that:

… compensation for fraudulent misrepresentation … is designed to restore the injured party to the financial position he or she would have been had the wrongdoing not occurred. [The man] obviously cannot be restored to the emotional state of non-fatherhood and so his claim for non-pathological emotional harm makes no sense for the conventional use of the tort of fraudulent misrepresentation.

In other words, the man was trying to use the tort of fraudulent misrepresentation – which usually compensates for financial damages – to further his asserted claim for emotional harm. The court concluded that this made his action “a novel one” because it would “expand the scope of fraudulent misrepresentation and take it into new territory.” The court ultimately concluded that this was both unnecessary and undesirable on legal policy grounds.

The court struck out the man’s lawsuit as disclosing no reasonable, legally-recognized cause of action, and refused to allow him permission to amend it to state the tort claims differently.

For the full text of the decision, see:

PP v DD, 2016 ONSC 258 (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 www.RussellAlexander.com

Did Son Work for Free in Father’s Company for Almost a Decade?

business

Did Son Work for Free in Father’s Company for Almost a Decade?

A recent Ontario decision demonstrates the down-side of family businesses – as well as the risks involved in allowing assumptions to remain unspoken. More importantly, it shows what can happen when business-operating family members fail to document important agreements, expectations and obligations in written form.

A company was founded and was being run by the father Larry. Six of his adult children were now holding key management positions. One of his sons, Emmanuel, initially went off to pursue his own business interests, but eventually returned to the fold in 1999 to assist the company in various capacities, including tax consulting in connection with the company’s application for federal and provincial tax credits for the years 1999 through 2010. Emmanuel’s efforts resulted in the company securing approximately $2.6 million in scientific research and experimental development (SRED) tax credits for a 20-year period.

The court introduced the facts this way:

While the claims are framed as traditional commercial disputes, the substance of these actions is really a story about the tumultuous relationship between a father and son. Emmanuel assisted the family business (LTM) without an expectation of compensation, admittedly, in order to acknowledge the debt of gratitude he felt he owed to his father and out of a sense of obligation he felt for his family.

Evidently that changed, because once the father died unexpectedly Emmanuel requested that the company pay him almost $420,000 to cover 25% of the tax benefits it received on account of his tax consulting efforts. Management denied his requests, so Emmanuel sued under an implied contract for what he considered was his entitlement. He also asserted a claim based in quantum meruit (i.e. a promise to pay a reasonable amount for work performed).

Emmanuel brought these claims despite the lack of any written contract or document to evidence the alleged agreement to pay him. He also conceded that he never requested payment for his services at all for 8 years, until 2011 when he presented the company with his invoice. He explained to the court that he decided to withhold asking for compensation because he was dealing with family, and because he believed he would eventually become an owner of the company. He also claimed that he knew that the company had insufficient cash to pay him during those years, and was relying on his father’s prior promise to pay him.

In considering his legal position, the court assessed Emmanuel’s evidence “disfavouably”, finding that some of it contradicted other evidence, or else was downright incredible. For example, his claim that he refrained from asking for compensation during times when the company had cashflow problems did not hang together well with the fact that he did not ask for payment even during those periods that the company was flush.

In the end, the court concluded that Emmanuel was not entitled to payment for his historic services to the company from 1999 through 2010, and in any event he had was too late: the 2-year limitation period for bringing any claims had expired by the time he got around to suing.

For the full text of the decision, see:

1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2015 ONSC 2664 (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 Misbehaving Spouse Get Occupation Rent? Maybe.

Right Facing Red For Rent Real Estate Sign in Front of Beautiful House.

Can A Misbehaving Spouse Get Occupation Rent? Maybe.

As we wrote in an article back a few years ago in Ontario the concept of “occupation rent” arises in family law in situations where spouses who co-own a matrimonial home have decided to separate, and one of them physically moves out.

When it comes time to untangle their financial affairs leading up to or part of a divorce, the remaining (i.e. still-occupying) spouse may at the court’s discretion be obliged by law to pay and amount for “rent” to the other spouse starting on the separation date, and based on fair market value rent. This is by no means an automatic right in every case (and indeed, it is considered by courts to be an “exceptional remedy”). However, once established this rent obligation can theoretically continue as long as the occupying spouse remains living on the premises, pending sale of the property and a splitting of proceeds as part of the equalization.

In deciding whether to pay occupation rent, the court must take numerous established factors into account. One of them (from among more than a half-dozen) is the conduct of the non-occupying spouse.

This has been the focal point of several recent cases:

• In a decision we wrote about a few weeks ago, Malik v. Malik, the husband claimed occupation rent from the wife even though he had acted very badly: He had taken the equity out of the family home, had absconded the jurisdiction, and had made no voluntary child support payments at all, even though he could financially afford to. In disallowing his claim, the court said: “A non-occupying spouse ought never receive occupational rent for a period in which he or she has deliberately avoided the payment of child support.”

• Likewise, in Wimalaratnam v. Wimalaratnam, the husband’s claim for occupational rent was even more tenuous: not only did he fail to meet his support obligations to his wife and children, and stopped paying his share of the mortgage and other home expenses, but he was actually excluded from the home as a result of his own criminal conduct. He had been forcibly removed from the home after being charged with several criminal offences, and was later found guilty of one of them. This being the case, the husband was the author of his own misfortune in terms of being excluded from the home; in the circumstances it was not appropriate to award him occupation rent.

• Similarly in Wawzonek v. Page, the husband claimed occupation rent from the wife in connection with the jointly-owned home that she and the children continued to live in after the couple separated. The court refused to grant the request, pointing out that the husband had been removed from the home after being criminally charged by police after a physical altercation. He was largely, if not solely responsible for being ordered to stay away from the home, so he was not entitled to occupation rent in the circumstances.

Trying to predict whether occupation rent will be awarded can be a slippery exercise; as with so many legal determinations, the outcome will always depend on the specific facts.

For the full text of the decisions, see:

Malik v. Malik, 2015 ONSC 2218

Wimalaratnam v. Wimalaratnam, 2010 ONSC 4491

Wawzonek v. Page, 2015 ONSC 4374

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.

Hospitalized (and Self-Represented) Mother Misses Five Out of Seven Trial Days – Then Loses Appeal

 

 

hospitalized

Hospitalized (and Self-Represented) Mother Misses Five Out of Seven Trial Days – Then Loses Appeal

In a recent Ontario decision, the mother involved in child custody litigation was hospitalized for anxiety only two days into a 7-day trial – and yet the court proceeded in her absence and ruled against her. Perhaps more surprisingly, her subsequent appeal was dismissed.

The background facts were these: After 4.5 years of being unable to reach an agreement on the custody of their two children and related issues, the parents went to trial to get the court’s determination and ruling. Ultimately, the trial judge awarded sole custody to the father, with support to be paid by the mother, in light of what was later described as a “deeply acrimonious and dysfunctional relationship” between the parents.

That ruling followed a 7-day trial that intermittently spanned several months. In the reasons supporting the award of custody to the father (as well as other relief mainly in the father’s favour), the trial judge described the course of those proceedings this way:

The Trial started on May 28, 2014. The Father was represented by counsel. The Mother was self-represented for this portion of the trial.

After the Father had completed his evidence, the trial was adjourned to the next morning to commence the Mother’s case, which was to be solely her evidence. The Mother failed to attend the next day for the continuation of the trial. Considerable attempts were made to contact the Mother that morning. No messages were received by the courthouse advising of any issue encountered by the Mother. The trial was completed without any evidence from the Mother. The Father was to file written submissions the following week. The trial was over.

Or so the court thought:

The following week, the Mother advised that she had gone to the hospital the morning the trial was to have continued and had been too ill to appear. She apparently had an anxiety attack. The Mother decided to retain counsel to complete the trial. The Mother brought a motion to re-open the trial. The Father consented to re-opening the trial to permit the Mother to present her case. A significant adjournment was necessary. I granted the relief on certain terms …

Notwithstanding the adjournment and hiring of new counsel, the trial judge ruled against the mother. She later appealed that decision on several grounds. The Court of Appeal picked up the narrative this way:

After a seven day trial, the trial judge awarded sole custody to the respondent [father] with generous access to the appellant. The appellant [mother] appeals on several grounds.

First, the [mother] submits that the trial judge erred by hearing evidence in the absence of the self-represented mother. After the first two days of trial, the [mother] did not show up for the third day. She went to hospital but did not contact anyone at the court to explain her absence. The court made unsuccessful efforts to find her. In these circumstances, the trial judge allowed the trial to continue. The father’s final witness testified. The [mother] submits that the trial judge should have adjourned the hearing, at least for a day.

The Court of Appeal rejected this. It wrote:

We do not accept this submission. The appellant made no effort to contact the court for six days.

The Appeal Court also rejected the mother’s complaint that there was a reasonable prospect or apprehension that the original trial judge had been biased against her, since he had openly blamed the mother for her absence from trial, and had expressed skepticism over her reason for it. The Appeal Court found nothing in the judge’s comments that were troubling; moreover the ultimately custody and support ruling was not inappropriate or incorrect in light of all the factual circumstances.

For the full text of the decision, see:

Jackson v. Arthur, 2015 ONCA 902

Jackson v. Arthur, 2015 ONSC 1140

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