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Posts from the ‘Misc.’ Category

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

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

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

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

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

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

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

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

For the full text of the decision, see:

Hunks v. Hunks, 2017 ONCA 247 (CanLII)

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

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“Gender Expression” Now Protected for Kids by Law

“Gender Expression” Now Protected for Kids by Law

In what is perhaps a controversial move, the Ontario government has recently passed legislation to allow children to be removed from their parents who opposed the child’s expression of “gender identity” or “gender expression”.

The Supporting Children, Youth and Families Act of 2017 received Royal Assent on June 1, 2017. Once passed, it will change or repeal/replace existing legislation and implement new requirements directing service providers and other entities to support a child’s choice of gender identity or gender expression.

These amended provisions are aimed primarily at courts, social workers, and adoption services. It mandates that when providing services or considering the best interests and welfare of a child, these entities must consider “race, ancestry, place of origin, color, ethnic origin, citizenship, family diversity, disability, creed, sex, sexual orientation, gender identity, and gender expression.”

It also prevents parents from challenging a child’s same-sex orientation, or with identification not with the gender that he or she was born, but rather the opposite one.

This directive gives rise to a corollary assessment as well: Whether a child should be removed from a home where the parents oppose a child’s declaration of his or her homosexuality or choice of “gender”. The principle behind this part of the legislation is that a parent who refuses to recognize a child’s preference in this regard is actually perpetrating abuse; the child’s removal from the home environment and into child protection facilities would prevent further abuse from occurring.

The new law is not without its controversy. Objectors claim that it represents an unwarranted incursion into the rights of parents, particularly those relating to religion, and embodies an “anti-parent” agenda.

What are your thoughts on these new changes?

For the full text of the new legislation, see:

Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14.

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

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Not All Internet Evidence is Created Equally

Not All Internet Evidence is Created Equally

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

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

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

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

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

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

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

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

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

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

For the full text of the decisions, see:

El Sayed v. Canada (Citizenship and Immigration), 2017 FC 39 (CanLII)

ITV Technologies Inc. v. WIC Television Ltd., 2003 FC 1056 (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

Wife Gets Husband’s Cats and Dogs in the Divorce

Wife Gets Husband’s Cats and Dogs in the Divorce

Recently, an older case with an interesting issue came to my attention: Based on the underlying premise that family pets are property, can a court order pet custody to be transferred as part of a divorce?

In Grimalyuk v. Concelos, the couple lived together for three years, and then got married. About three months into the marriage, the husband started to get physically and emotionally abusive with the wife, and with her 18-year old son from another relationship. The husband assaulted the wife on several occasions, and at one point attempted to evict them both from the matrimonial home.

Eventually, the wife had the husband arrested and charged with death threats, and the police removed him bodily from the matrimonial home.   He entered into a Peace Bond agreeing to have no contact with the wife for a 12-month period, and agreeing to attend alcohol counselling.

Not surprisingly, at this point the wife decided the two-year marriage was over, and she successfully went to court to obtain a divorce.   (The court also agreed to extend the restraining order for another year, since the husband had been seen skulking around the wife’s property despite having been ordered not to).

Beyond that, there was only one property-related issue still to be dealt with in the divorce: It related to what should be done with the family pets.

As the court explained, wife’s request in this regard was straightforward:

Equalization of Property

The only property sought by [the wife] is legal ownership of two dogs and one cat that are legally owned by [the husband] but have been living with and cared for by [the wife] since the date of separation.

Without hesitation, the court ordered that the husband transfer legal ownership of the three pets to the wife immediately.

It goes to show you: While many people complaint that their divorces go very badly, this one “went to the dogs.”

For the full text of the decision, see:

Grimalyuk v. Concelos, 2007 CanLII 1325 (ON SC)

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

Facebook Steps in to Counteract “Revenge Porn”

Facebook Steps in to Counteract “Revenge Porn”

Recently I posted a few blogs that dealt with the criminal exposure and privacy interests that can be placed at stake when one former relationship partner decides to post salacious images of the other partner without his or her consent, in what has been colloquially referred to as “revenge porn”.

According to a recent announcement by Facebook’s Global Head of Safety, Antigone Davis, the company has deployed custom software tools in the form of photo-matching technology, to prevent users from uploading nude or sexual images of others on its social media platform.

These steps are in addition to exiting measures and policies forbidding users from posting revenge porn; if they are caught doing so (after being flagged by fellow users), their accounts are subject to being deleted. Now, according to company representatives, Facebook also intends to use computer software to identify revenge porn and to automatically match it so that images cannot be posted multiple times.

The move by Facebook may have been initiated in partial response to a Northern Ireland lawsuit by a 14-year old girl who accused the social medial giant of failing to take active steps to prevent a man from repeatedly posting nude images of her without her consent. She sued Facebook directly by way of a pending claim to be brought before the Northern Ireland court, for misuse of her private information, for negligence, and for breach of the U.K. Data Protection Act. That case is still pending.

This initiative by Facebook will also add teeth to existing legislative measures that aim to counteract the instances of revenge porn postings generally. Currently in Canada, the enactment of the Protecting Canadians from Online Crime Act (S.C. 2014, c. 31) already makes it illegal to engage in cyberbullying, including posting revenge porn, and allow police to obtain information about an internet user and obtain a warrant where they have “reasonable grounds for suspicion”.

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 Proceedings as Catharsis?

Family Proceedings as Catharsis?

The Family courts across the country must see their fair share of acrimony, shameful conduct, sad stories, and tears.

In a pair of cases from western Canada, the courts made insightful observations about the unspoken role that the Family justice system fulfills: to provide the participants with an opportunity to tell their side of the story, and have their “day in court”.

This perhaps-unintended purpose was acknowledged in an Alberta case, where the court wrote:

Often acrimonious contests over custody are a time of catharsis for the parents as each wishes to tell of the unsatisfactory or even reprehensible conduct of the other. To the extent that this satisfies the need to have one’s day in court it may be fulfilling to the parties. Perhaps it even assists a parent in accepting an adjudication he or she finds unsatisfactory.

In another decision, this time from B.C., the court said:

The parties in a family dispute will on occasion use the trial process to a cathartic effect as a means, perhaps, of purging the unhappiness accumulated as their marriage disintegrated.

In that case, the court went on to describe the context in which the need to purge unhappiness arose – perhaps quite understandably:

In this trial, the parties’ rancour had few if any bounds as the evidence particularly that led on Mr. Ruel’s behalf appeared aimed to disparage and demean his former partner. Described succinctly, the defence evidence sought to portray Ms. Ruel as a liar, a thief, a fraudster and a drunk, allegations denied strongly by Ms. Ruel who throughout the trial, while on the stand and while in the court, in spite of admonishments to desist, responded to the defendant’s [Mr. Ruel’s] allegations describing them as lies and Mr. Ruel to be a liar. Ms. Ruel’s anger followed her discovery that the defendant appeared to have entered a marital-like relationship with another woman in Tunisia where he was then employed, the actions he took against her after their breakup, and his subsequent failure to pay spousal support as ordered by this court.

Sounds like a lot of courtroom drama – and not the good kind.

For the full text of the decisions, see:

D.G.S. v S.L.S., 1990 CanLII 5528 (AB QB)

Ruel v Ruel, 2010 BCSC 1043 (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

 

 

“The Courthouse is Not a Restaurant,” Says Exasperated Judge

“The Courthouse is Not a Restaurant,” Says Exasperated Judge

The mother was as self-represented litigant who had “very aggressively” pursued multiple claims against the father, and had filed more than 430 documents since their litigation began almost 10 years earlier. Those documents were part of a long history of numerous motions, appeals and a litany of related procedures to contest virtually every aspect of untangling their former relationship, including settling out child custody and support of their two children.
In advance of one of those many motions, the mother had arbitrarily and on short notice absented herself from a half-day court hearing that had been scheduled for March 1, 2013. Less than a week before the motion she had faxed a letter to the court, indicating that she could not attend.

In the court’s e-mail reply, it advised the mother that an adjournment could not be granted without the father’s input, and that since the father’s lawyer would not consent in advance, she could make the request in person at the scheduled hearing date and take her chances.

Instead, the mother failed to show up at the hearing at all. Nor did she call in. She later claimed that she had mixed her calendar up.

The father asked the court for an order forcing the mother to pay for the legal costs he had wasted in preparing for a motion that she did not even bother to attend.

The court, after concluding that the mother’s excuse for missing the hearing date “stretches credulity past its breaking point”, entertained striking out the mother’s motion outright, but ultimately decided to strike it off the list and impose significant costs against her instead.

In its lengthy rebuke of the mother’s conduct, the court wrote:

In coming to my decision I had to deal with a matter of increasing judicial awareness in Canada, namely how to sanction or impose meaningful consequences on irresponsible and inappropriate behaviour by a litigant.


Adding to the difficulties of this case is the “customer-service” expectations that the mother brings to these proceedings. Unlike a retail environment, where the customer is king, the administration of justice cannot possibly proceed in any meaningful way if litigants adopt a customer-service mentality at the courthouse.

The courthouse is not a restaurant where reservations can be rescheduled at the last minute or simply cancelled on the whim of a litigant. Neither can a litigant pick and choose which procedural rules and time deadlines they wish to comply with. The court must impose sanctions on litigants who behave irresponsibly or recklessly.

The court continued:

The attitude and behaviour that the mother brings to this litigation is troubling as it only increases the intensity of the conflict and creates an environment in which any kind of settlement discussions are impossible.

It must be obvious to the mother, even as an unrepresented litigant, that the time deadlines imposed at the case management meetings for the filing of affidavits and briefs and concluding cross examinations are significant and cannot be casually disregarded on a whim. The mother must have known, or ought to have known, that the father would have already incurred significant legal costs in compliance with those deadlines when she attempted to cancel the March 1, 2013 Hearing on less than five business days notice.

Somehow the mother is also oblivious to the obvious fact that by running up the father’s legal bills she is also depriving her children of potential financial resources.

Moreover the mother somehow expects the court to ignore the fact that her last minute demand for an adjournment would not only have a significant financial impact on the father and the children but also on the court’s time and resources. A half day was reserved for the hearing that she demanded and that time slot was denied to other litigants and made an already backlogged list even longer.

The court has a duty to administer its scarce resources wisely and cannot allow litigants to run roughshod over its own process by ignoring deadlines, the rules of court and capriciously failing to show up at scheduled hearings.

After scrutinizing the costs thrown away, the court ultimately awarded the father $3,000, which it intended as:

… a strong message to the mother that her disregard for the rules of court and the meticulous timelines set out at the case management conferences and her unilateral decision to fail to appear at the March 1, 2013 Hearing are totally unacceptable. This kind of behaviour is simply intolerable and must be sanctioned by the court to protect the integrity of the court process and as a warning to the mother and other litigants that this kind of behaviour will have significant consequences.

What are your thoughts about the court’s admonishments? Do too many litigants approach the justice system with a “customer service” mentality, as the court in this case says?

For the full text of the decision, see:

Delichte v Rogers, [2013] M.J. No. 113, 2013 MBQB 93

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

All Parents Are Equal Act, 2016 Now In Force – Surrogacy Arrangements Impacted

All Parents Are Equal Act, 2016 Now In Force – Surrogacy Arrangements Impacted

Several months ago, I wrote a series of pieces including: Ontario Government Introduces Bill to Strengthen the Legal Status of All Parents, New Surrogacy and Parenting Declaration Laws Upcoming in Ontario, and New Proposed Law Clarifies Parentage, Surrogacy Rights, and Rights Arising from Assisted Reproduction about the All Parents Are Equal Act, 2016.

That Act is now in force, effective January 1, 2017 and (among several other things) amends the Ontario Children’s Law Reform Act to change the former practice around surrogacy arrangements. That former practice called for a court to make a declaration – on the parties’ consent – as to the child’s parentage after birth, and required the parties to file a formal court application to obtain it.

Since obtaining the court declaration was the more costly portion of the former multi-stage process for legally recognizing “parent” status in surrogacy arrangements, the elimination of this steps may come as a welcome change.

However, the Act’s more streamlined is not without its detractors. With the elimination of the need for a court declaration in some circumstances, the safeguards have been moved to the front end of the process, before the child is conceived and born. Now, up to four intended parents of a child born to a surrogate will be recognized without a court order if the following conditions are met:

  • The surrogate and the intended parent(s) received independent legal advice and entered into a written pre-conception surrogacy agreement.
  • The surrogate provided written consent to give up her parental status both before conception and seven days after the birth of the child.

(That seven days is a “cooling off” period, to ensure that the written consent by the surrogate is validly given).

Since in routine cases there will no longer be any court oversight of the process, it will be left to the parties themselves, with the help of their lawyers, to ensure that they meet the requirements of the Act, and that when the time comes, the surrogate gives her consent to relinquish the child.

What do you think of these new changes? Are they an improvement?

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

UK Tightens Immigration Rules for Foreign Spouses

UK Tightens Immigration Rules for Foreign Spouses

In a controversial decision the Supreme Court of the United Kingdom has recently upheld the legality of immigration rules that imposed requirements on its British citizens to have a certain level of income before they are able to bring their spouses into the country. These contentious “Minimum Income Rules”, which came into force in 2012, had been challenged by four couples who asserted that they breached their basic human right to have a family life.

The rules require that, before being allowed to bring a spouse to live with them from another country outside the European Economic Area, a British citizen (including a recognized refugee) must have a minimum annual income of at least £18,600 (around CDN$30,600). The couples who contested the rules had argued that the income threshold was set too high, particularly since it increased with each additional child that needed to be supported.

This addition of a set income requirement reflects a stark change from the previous rules, which prior to 2012 had required only that the spouses could establish an ability to support themselves without needing to avail themselves of welfare payments from the UK government.

Although the UK Supreme Court’s ruling confirms that the rules did not violate human rights legislation, it also recommends they be amended, since the current incarnation does not adequately account for the best interests of the children, and neglects to consider other sources of income that the spouses might have.

This UK development is in stark contrast to the immigration policy in Canada, where applicants must prove only that they have enough income to provide basic needs for the spouse or his or her dependent children. (Although those who want to sponsor parents or grandparents are subject to specific income-level requirements and a new process for applying starting in 2017).

And by announcement made December 15, 2016, the Canadian Government has indicated that the department of Immigration, Refugees and Citizenship Canada will be speeding up the processing for spousal sponsorship applicants, as part of its commitment to family reunification. Most applications will be processed within a year of a person applying.

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