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Posts from the ‘Misc.’ Category

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

Recent Child Abduction Case – Just One of Many

Recent Child Abduction Case – Just One of Many

You may have read in the newspapers recently about latest development in a custody battle over a 9-year-old girl that has resulted in the mother being arrested and charged with her abduction. It seems that rather than return the girl to her father on December 1 as required, the mother opted to essentially “run and hide”, taking the girl with her in violation of a custody order. After an Amber Alert prompted tips from the public, police found the mother and daughter living in Hamilton.

The child’s father, Mohamed Abdel-Motaleb, is in Canada from Egypt on a visitor’s visa and is seeking custody here after not knowing the daughter’s whereabouts for over a year. He claimed that without his consent, the mother secreted the daughter from Egypt – travelling part of the route by camel – in order to make their way to Canada where her parents live.

The parents have a history of high conflict over the child, and through their lawyers have levelled accusations against each other. The mother’s family and friends have stood by her in support, believing that she was motived by a desire to protect her daughter and avoid a court battle with the father, whom she claimed to fear. The abduction for which she is formally charged took place only one day before a scheduled court date in their ongoing custody dispute.

Canadian courts universally frown on such self-help measures in child custody disputes, even where the abducting parent has the child’s best interests at heart. Sentences can also be stiff: In the most recent decision out of Alberta, a father who had plead guilty to abducting his 7-year-old son and removing him to Lebanon contrary to a custody order was sentenced to 12 months incarceration including 45 days spent in jail after being arrested.

In that case, the abduction had been premeditated, with the father having planned to sell his home and dispose of all his affairs in Canada in anticipation of moving to Lebanon with the boy. He even created a website explaining his reasons for abducting the child.

In response to the father’s unilateral actions, the mother had been forced to fly to Lebanon to try to find her son. This involved her leaving her home and job, spending her savings, max-ing out her credit cards, and withdrawing from her RRSP. While in Lebanon she visited more than 30 different schools to try to find him, and once she did, she was ordered by the court to post a US$50,000 bond in return for getting access.

In imposing sentence, the court considered an earlier B.C. decision in which the accused father spent a total of three years being incarcerated for abducting his own child, in that case through violent means and involving a car chase which endangered not only the child, but the public as well.

As with these Alberta and B.C. cases, the Ontario courts see many similar scenarios. And whle it’s admittedly vital that courts condemn such self-help solutions, and reinforce respect and compliance with legal process and custody orders, it’s not hard to feel compassion for the situation both parents themselves in.

What are your thoughts on child abduction cases like these? Are the penalties too stiff? Too lenient?

For the full text of the decision, see:

R. v. M.E., 2016 ABPC 250 (CanLII)
R. v. C.M.N, 2002 BCCA 76 (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

Deceased’s Estate Division Pits Sister and Ex-Wife Against Each Other

Deceased’s Estate Division Pits Sister and Ex-Wife Against Each Other

Here’s a slightly convoluted tale, but it’s an interesting one involving a dispute between the estranged wife and sister of a deceased man over his estate. Here is the cast of players:

1) Paul, who died in 2013.

2) His wife Pauline, from whom he separated in 2002.

3) Paul’s sister Rita, to whom he left half his estate, and who was also his Estate Trustee.

When Paul and Pauline separated, Paul agreed under their separation agreement to designate Pauline as beneficiary of a $150,000 insurance policy and keep up the premium payments. If Paul failed to maintain the insurance, it was agreed that Pauline would have “first dibs” against his estate for $150,000, in the role of a creditor.

In fact, Paul did not maintain the life insurance as agreed, and it lapsed before he died.

But there was a problem: Paul’s estate was too small to pay Pauline the $150,000 he owed, since his assets at death totaled only about $100,000.

Enter Paul’s sister Rita. As a beneficiary under his Will – and but for Pauline’s $150,000 claim – she stood to inherit 50% of Paul’s estate. In the role of Estate Trustee, she had obligations to all estate creditors, including Pauline. These duties These duties included ascertaining the debts and liabilities of Paul’s estate, and paying them. So Rita essentially wore “two hats”.

Pauline’s asserted first-dibs claim against Paul’s estate became a contentious issue, and the matter went to court for resolution. In an earlier application, the court rejected Rita’s argument that Pauline had missed the deadline for bringing her claim against Paul’s estate, which she did in 2015, more than two years after Paul’s death.

On appeal, the Court of Appeal confirmed that finding. The reason for Pauline’s delay was actually Rita’s own obfuscating conduct, and it would be unfair to hold her to that deadline in the circumstances.

As Estate Trustee, Rita had control over the information Pauline needed to ascertain whether Paul held any insurance policy for her benefit, as the separation agreement required. Pauline could not obtain the information from the insurer directly, so she was understandably beholden to Rita to provide it. Only Rita knew whether Pauline’s debt claim against the estate even existed; this put her in a unique and privileged position.

The problem was, Rita was not forthright with Pauline, and withheld the information she needed.

Initially, she had her lawyer advise (inaccurately) that Paul had maintained the life insurance, and later had the lawyer advise that the policy “may have lapsed”. Neither of these statements were true: Rita had known early on that Paul had let the life insurance lapse despite his obligations under the separation agreement, knew Pauline had a valid claim against his estate as a creditor. Yet she kept the information from Pauline and caused her to delay taking timely steps in pursuit of it.

From a legal standpoint the Appeal Court found that – wholly unrelated to their family connection – Rita and Pauline had a “special relationship”, and that Rita’s withholding of information made her guilty of fraudulent concealment, and made her conduct “unconscionable”.

The Appeal Court referred to and endorsed the findings of the application judge, who had written:

By withholding material facts, the estate trustee [the sister, Rita] concealed from [Pauline, the wife] that she had a legitimate debt against the estate as a creditor. In my view, given the special relationship between the estate trustee [Rita] and [Pauline], it was unconscionable for the estate trustee [Rita] to initially suggest that insurance was in place, then delay matters by promising to bring an application for directions, and then later take the position (a position which provided a direct material benefit to her as a beneficiary of the estate), that the time for claiming against the estate had expired.

The court accordingly found that the usual deadline for Pauline to claim for $150,000 against Paul’s estate did not expire in this case, and could proceed.

For the full text of the decision, see:

Roulston v. McKenny, 2017 ONCA 9 (CanLII)

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

Wednesday’s Video Clip: 10 Ways to Get Information About Family Law


Wednesday’s Video Clip: 10 Ways to Get Information About Family Law

In this video we discuss how there are many professional people, organizations and other sources that can help you or provide information about family law issues:

1. An information centre specializing in family justice

2. A parent education course for separating parents

3. Duty counsel at a legal aid office

4. A community legal clinic

5. A university law school with a student-run legal information service

6. A law society or bar association referral service for a lawyer

7. A divorce support or self-help group

8. Relevant library books and videos

9. The yellow pages, white pages or blue pages in your telephone book have listings for many of these resources, and

10. A librarian at your public library may also be able to help you.

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

Wife Dumps Husband Over Trump

Wife Dumps Husband Over Trump

Recently I wrote about a man who was so desperate to leave his wife of 31 years that he robbed a bank in order to get thrown in jail.

To add to the theme of “precipitous separations”, there was report in the U.S. recently of a 73-year-old woman, Gayle McCormick, who decided to end her 22-year marriage because her husband announced, during lunch with friends, that he was planning to vote for Donald Trump in the upcoming elections.

The retired California prison guard said that she was “in shock” over his revelation, and it was the “breaking point” and “catalyst” for calling it quits on the marriage.

She explained: “It really came down to the fact I needed to not be in a position where I had to argue my point of view 24/7. I didn’t want to spend the rest of my life doing that.”

Perhaps ironically, McCormick decided on a separation even though ultimately her husband changed his mind and did not actually end up voting for Trump (instead, he submitted a write-in vote for Newt Gingrich). She said the fact that her husband could agree with Trump on any of the issues “totally undid” her, and that she was tired and older and didn’t want to argue with him since she knew neither of them would change. Although she concludes that they are “too old” to go through a formal divorce, she and her husband are no longer living together.

It’s not a common scenario, but it’s not as unusual as it may seem: According to a Reuters/Ipsos poll taken between December 27, 2016 and January 18, 2017:

• 39 percent of respondents admit to arguing with family and friends over politics;

• 16 percent said they have stopped talking to a family member or friend because of the election 13 percent said they had ended a relationship with a family member or close friend over the election.

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

Calling Someone a “Liar” Online: Is that Defamation, or Merely “Comment”?

Calling Someone a “Liar” Online: Is that Defamation, or Merely “Comment”?

In an interesting recent case heard by the Ontario Court of Appeal, the court was asked to consider whether calling someone a “liar” in an online blog was merely a comment, or whether it was tantamount to defamation. (And to make the issue more interesting, both the object of the slur, and the person making it, happened to be lawyers).

The plaintiff Awan was a law student at the time of the incidents, and has since gone on to practice law in Saskatchewan. The defendant, Levant, is an outspoken political commentator, journalist, and blogger who published various articles and blogs on his own website.

Awan sued Levant in damages for defamation in connection with nine blog posts Levant published on his blog between 2008 and 2010, each bearing a headline calling Awan a “liar”, and featuring further additional unflattering commentary in the body. Awan also asked the court to order the offending blog posts to be taken down.

To make a long back-story short: Levant’s published name-calling arose in what purported to be reports of a human rights tribunal hearing at which Awan testified.   That hearing was triggered by formal complaints by Awan and fellow students over a Maclean’s magazine cover story titled “The Future Belongs to Islam” which they alleged was Islamophobic in tone.  As part of the tribunal’s fact-finding, Awan gave evidence about a one-time meeting he and his fellow students attended with senior editorial staff at Maclean’s. Awan’s testimony at the hearing was what prompted Levant to use the term “liar” in his blogs, among other unflattering names.

After taking into account the overall circumstances, including the likelihood that Levant’s pejorative blog posts could be spread widely over the internet, the trial judge found that all nine of them were clearly defamatory of Awan, in that they conveyed to anyone reading that he:

  •      was a dishonest person and a liar;
  •      tried to “shake down” Maclean’s;
  •      was incompetent, unethical, and unfit to be a lawyer;
  •      was an anti-Semite;
  •      used the courts to bully his opponents; and
  •      had extreme, intolerant views.

As to the effect of the defamation, the trial judge wrote:

In this case, the impugned words include numerous meanings that would, in the ordinary course, be readily regarded as defamatory.  The defendant [Levant] has said, over and over again, that the plaintiff [Awan] is a liar.  This alone would tend to lower [Awan’s] reputation among ordinary right-thinking members of society.  It obviously bears the meaning that [Awan] is dishonest, and casts doubt on his integrity, the most important attribute of any lawyer. … Honesty and integrity are no less important for a law student who is about to embark on a career as a lawyer.

Moreover, the usual defences to defamation that might absolve Levant were negated by the fact he had posted maliciously.   Levant was ordered to pay Awan $50,000 in general damages and $30,000 in aggravated damages.

Levant appealed, unsuccessfully.

Among the rejected legal arguments was that – contrary to what the trial judge had found – Levant’s use of the term “liar” was merely a “comment” made as part of an online discourse, and was not tantamount to defamation of Awan in the ordinary sense.   While conceding that “calling someone a liar when discussing a matter of public interest or discourse would more likely be found to be a comment rather than a fact”, the Appeal Court nonetheless found that it was open to the trial judge to conclude otherwise in this case, based on the presumed perceptions of a reasonable reader. There was no legal basis on which the Appeal Court should interfere with that factual finding.

The Court of Appeal also confirmed that Levant’s defences to defamation were foreclosed due to his evident malice, stating:

I find that the defendant’s dominant motive in these blog posts was ill-will, and that his repeated failure to take even basic steps to check his facts showed a reckless disregard for the truth.

As for the nature and seriousness of the defamatory statements, they are extremely serious.  They go to the heart of both the plaintiff’s reputation as a lawyer and as a member of our society.

Levant’s appeal was accordingly dismissed.

For the full text of the decision, see:

Awan v. Levant, 2016 ONCA 970 (CanLII)

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

Both Executor-Siblings Liable When One of Them Squanders Money Under Dad’s Will

Both Executor-Siblings Liable When One of Them Squanders Money Under Dad’s Will

A recent Ontario Court of Appeal case addresses a very straightforward issue: If there are two trustees appointed under a Will, can one co-trustee stand by and do nothing, while the other co-trustee squanders Estate money?

In Cahill v. Cahill the facts were also straightforward, and involved a deceased father and his adult children. When Thomas died in 2010, his Will appointed his daughter Sheila, and his son Kevin as executors and trustees of his Estate. They were directed to set aside $100,000 in a trust fund for the benefit of another brother, Patrick, and to pay him $500 per month from that trust money.

Instead, Kevin spent the $100,000 for his own benefit. Kevin was at liberty to do so because Sheila had informally abdicated her responsibilities as co-trustee, giving him sole discretion over the funds and their management. By her own admission, she had virtually no involvement in the administration of her father’s estate. Kevin assured her that he was handling everything properly, and she made no inquiries of him.

The court found that the obligations of a co-trustee such as Sheila were clear: he or she is not entitled to shrug off the wrongful actions of another co-trustee and claim ignorance.   Passive acquiescence was not a defence. Rather, each co-trustee is responsible for the trusteeship, and can be held both jointly and individually liable for everything that is done through the exercise of the trustee’s powers. Their duties arose from the express wishes of the testator under his or her Will, and bBy legislation, they were each entitled to payment out of the Estate for their efforts.

In short – and even though there was no evidence that she acted dishonesty — Sheila was not entitled to unilaterally devolve her responsibilities as co-trustee to Kevin, and therefore remained liable to the Estate unless she could bring herself within the narrow exceptions under the Trustee Act. That legislation allowed for the court-ordered relief from responsibility, provided that Sheila could show that she: 1) acted honestly, 2) acted reasonably, and 3) ought fairly to be excused, in the circumstances.

Typically, “honest” behavior involves active involvement in the affairs and decisions related to administering the trust. “Reasonable” is usually judged according to what an ordinary prudent business person would have done in the circumstances.

Here, Sheila’s conduct was not a mere technical breach but rather a wholesale delegation of her responsibilities to Kevin, without making any inquiries at all.   This was not reasonable in the case.

The lower court’s ruling, which held that Shelia had been negligent and that both she and Kevin and breached their fiduciary duties to Patrick and other beneficiaries of their father’s Estate, was confirmed by the Appeal Court. Sheila and Kevin were jointly and severally responsible for almost $81,000, which was the outstanding principal needed to fulfil their father’s testamentary wish to pay $500 per month to Patrick.

For the full text of the decision, see:

Cahill v. Cahill, 2016 ONCA 962

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

Top 5 New Year’s Resolutions for Divorced Parents

Top 5 New Year’s Resolutions for Divorced Parents

Many people aren’t fans of making New Year’s resolutions, since the artificially-imposed “fresh start” seems arbitrary and contrived. But no matter what time of year, I think it’s never a bad idea to reflect on our behavior, especially when it is likely to affect our children.

(And for separated and divorced parents, this kind of reflection can never be done too frequently, since the inherent acrimony of the divorce process makes it all-too-easy and tempting to engage in bad behavior often, and all throughout the year).

Here are my suggestions for the Top 5 New Year’s Resolutions.

For the Year 2017, I Resolve To:

1) Celebrate what’s good about my child’s other parent.

Once a relationship dissolves, so it seems do the parents’ respective memories of what drew them together in the first place. Children eventually grow up with their own perspectives on each parent’s character, flaws and attributes; it’s not the place of either parent to point out the flaws of the other, or to taint that process by bad-mouthing the other parent in front of the child. Although this is very common, it is highly damaging to the children. With only a few exceptions, children thrive when they have balanced relationships with both parents.

2) Keep argument and discord to a minimum.

Just as it’s easy to focus on the other parent’s shortcomings, it’s equally easy to get drawn into battle with him or her over every little thing.   Not every single disagreement has to become a full-blown war. It’s important to “pick your battles” if you can. And it bears repeating: Children who see their parents fight are very negatively impacted, particularly young children who may assume that they are somehow to blame.

3) Try to model good conduct and a healthy lifestyle.

New Year’s is often the time that people resolve to quit smoking, lose weight, and rid themselves of many other bad habits and lifestyle choices. This same desire to purge unwanted behaviour should extend to your family’s lifestyle too, since most children view their parents as role models. So, even when living with the practical after-effects of separation and divorce, it’s important to model things like healthy eating, getting adequate sleep, sticking to established routines, being respectful of others’ time and traditions. The list goes on.

4) Be flexible.

Nobody goes into a marriage thinking that it will end in divorce; nobody chooses to become a parent with the idea that will eventually end up having to deal with custody and access schedules, dealing with separate residences, and dividing up summers and holidays. The easiest way to thrive in an adjusted family is to maintain flexibility and (if possible) a good sense of humour.

5) To be happy.

Even when the separation or divorce is not your idea, it’s important for your children to see you living a personally-fulfilled, happy and well-adjusted life to the greatest extent possible. This includes not only spending time with them, but also making time to yourself to pursue your own passions, friendships, and rewarding work. Children will themselves be happiest when they live in a happy home.

Whatever happens to be on your list of New Year’s resolutions this year, from the staff of Russell Alexander, Family Law, we wish you a happy and prosperous 2017!

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

Family LLB Wins 2016 Clawbie Award

Family LLB Wins 2016 Clawbie Award

The 2016 Canadian Law Blog Awards are announced each New Years Eve, and Russell Alexander is pleased to share that Family LLB has been chosen as the recipient of the Clawbie Best Practitioner Award.

What is a Clawbie?

The Canadian Law Blog Awards, a.k.a. the Clawbies, are a project started back in 2006 with the goal of highlighting great blogs published by the Canadian legal industry… The Clawbies are intended to be a showcase of Canadian legal blogging, and to promote a sense of community.

Here’s what the judges had to say about Family LLB:

The consistently entertaining and informative blog of Russell Alexander, who operates several family law offices north and east of Toronto, remains one of Canada’s most widely read and consistently publishing bloggers.

We would like to recognize and congratulate all other Clawbie award recipients and finalists.

We would also like to thank those who provide valuable contributions to the blog, notably Rosemary Bocska and Amelia Rodin, as well as the entire team of associate lawyers and staff at Russell Alexander Family Lawyers.

Finally, we would like to extend gratitude to all our readers for nominating Family LLB, as well as for their continued support. Your comments, inquiries, and shares are much appreciated, and we thank you for another amazing year.

Naughty, or Nice? Which of Santa’s Lists were YOU On this Year?

Naughty, or Nice? Which of Santa’s Lists were YOU On this Year?

In the hundreds of posts I wrote for this Blog during the past year alone, I chronicled a long and dizzying list of poor behaviour by various Family Law litigants.

The more devoted readers among you will remember the ones who:

And, not surprisingly, such behaviour has prompted judges on more than one occasion to roundly chastise misbehaving parents for their conduct both in the courtroom and outside (see Court Conjures “Breaking Bad” Analogy for Warring Parents, and Judge Laments Financial “Tragedy” Parents’ Custody Battle), and in one instance, to “break up” with the squabbling couple.

Needless to say, my own stance as a Collaborative Family Lawyer is that the resolution of divorce and custody disputes, no matter how acrimonious and ugly, should always be achieved with as little discord as possible, and with zero naughtiness, underhandedness, and spite.

So my aim in writing about these topics is to educate and inform – not to give any of my readers ideas. I hope that in the past year you have gained some insight into the type of conduct to avoid in your own Family Litigation. Let’s hope that I won’t be writing about any of you in these Blogs in the coming year.

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