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Posts from the ‘Questioning’ Category

Accountant Was the “Last Man Standing” – Court Orders Questioning of Non-Party

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Accountant Was the “Last Man Standing” – Court Orders Questioning of Non-Party

Judges hearing family law matters are granted very wide-reaching powers by legislation, in order to ensure that justice can be done for the litigants. Among those is the power to order that non-parties – meaning individuals who are not directly involved in the litigation as either plaintiff or defendant – can be questioned or forced to disclose information or documents that might be relevant to the trial or proceeding.

In Ontario, this power is specifically granted by the Family Law Rules, but it is not unfettered: Judges must still consider the circumstances and weigh certain factors, including potential delay, any unfairness to the party requesting it, and whether the information is easily available elsewhere. The court can then exercise its discretion in determining whether to make an order which essentially drags a third-party into the family litigation.

This was precisely the court’s task in a case called Elgner v. Elgner. There, the couple separated after a traditional marriage lasting 33 years. The husband was 63, and the wife was 62. The couple were wealthy and there were multiple family law proceedings; at one point the court had temporarily ordered the husband to pay the wife $110,000 per month in support.

A key issue in the litigation was the husband’s attempt to exclude $86 million from his net family property. He claimed that they were corporate rather than personal funds that had been generated as part of a corporate buy-out and estate freeze that took place back in 1993, involving a company with which he had virtually no involvement.

This meant that determining the nature and source of that disputed $86 million was of chief concern to the parties. Unfortunately – and aside from the husband and wife themselves – the only person who was still alive and available to give evidence on that point was the accountant who had been involved in the transaction. (The lawyer who acted on the estate freeze, for example, had died and the wife was in the process of bringing a court motion to obtain access his computer hard drive). Even though the accountant was not part of the proceedings between the couple, the wife wanted to question him.

She therefore asked the court for an order compelling him to submit to questioning. The court agreed with her request.

Even though the accountant would be giving evidence based on his recollection from 20 years ago, the proposed exclusion of the $86 million was the single most contentious and largest financial issue in the case. He was an important factual witness and, under the circumstances, it would be unfair to force the wife to proceed with the family litigation without allowing her to question him.

For the full text of the decision, see:

Elgner v. Elgner, 2010 ONSC 5238 http://canlii.ca/t/fn2q4

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.

Ontario Judge Allows Family Law Litigant to be Cross-Examined via Skype

Ontario Judge Allows Family Law Litigant to be Cross-Examined via Skype

In an Ontario Court of Justice decision from just over a month ago, the court allowed the mother in a custody and access dispute to be cross-examined by way of Skype (a free software application that allows users to make voice and video calls over the Internet), because she had moved to another country and was financially unable to return to Canada to attend the trial.

The case involved a family law dispute with custody issues, in which the court had made various orders relation to the children, including one placing them in the custody of the mother. The father was not awarded custody or access but eventually – after he successfully completed treatment for substance abuse – he applied to vary the initial order to obtain access to the children and develop a relationship with them.

The father took the needed steps to try to find the mother to serve her with his application to vary. However, he was unable to find her, and she did not respond to any of the court documents that were part of his making the application. After following due procedure, the father obtained an order in the mother’s absence.

The mother eventually learned of the order, which she opposed (and in fact, she still resisted giving the father any access to the children whatsoever). It turned out that she had moved to Denmark with her new husband. Accordingly, she brought a motion for an order allowing and her new husband cross-examined by way of Skype. She claimed that she was financially unable to travel back to Toronto from Denmark for the trial (the costs of airfare was about $2,000), and that either she or her new spouse had to remain in Denmark in order to care for their children (which included his daughter from another relationship).

The father objected, claiming that the use of Skype would hamper the “ebb and flow of cross-examination”, and that it would be impossible for a judge to assess the mother’s demeanor and credibility from the answers obtained using this technology.
The court examined in detail the financial circumstances of the couple, including the new husband’s income in Denmark, his role as sole financial support for the mother and the three children of their blended union. The mother had not been able to find work in Denmark since moving there.

It also considered the operation of Skype, which the mother described as “a free computer program that allows people to make video conferencing calls over the internet in real-time for free. To make a video conferencing call, both parties only need a computer that is connected to the internet, a microphone, and a web camera (which many computers have built-in)….the connection between computers can remain open for hours without any charge. … Skype is well-known for its clear quality. … Skype video conference calling can now take place in high definition.”

From a legal standpoint, the court assessed the nature and features of Skype against the existing Rules of Civil Procedure relating to video conferencing, which it considered analogous. It also assessed the suggestion to use Skype against the requirements and objectives of the Family Law Rules, which included the desire to be fair to all parties, and to save time and expense.

In the end, the court had no concerns about the ability to assess credibility during a Skype session with the mother and her new husband, accepted their evidence relating to their constrained financial circumstances, and found that the overall balance of convenience – including the lack of prejudice to the father – favoured allowing the cross-examination via Skype to proceed.

For the full text of the decision, see:

Paiva v. Corpening, 2012 ONCJ 88   http://canlii.ca/t/fq6h9

Russell Alexander Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation. For further information, or to schedule an appointment, call 1.905.655.6335.

 

 

Limits on Questioning in Family Law Cases; Unrepresented Parties Take Note

Limits on Questioning in Family Law Cases; Unrepresented Parties Take Note

The Ontario Superior Court of Justice has recently released a decision outlining limits on Orders under the Family Law Rules allowing the questioning of one party by the other. The decision is particularly noteworthy because it serves as a cautionary tale for those parties to a family law dispute who are self-represented.

In Durbin v. Medina, the 56-year old husband and the 33-year old wife had two children, and had separated in September of 2010.   As part of their divorce proceedings the husband – who happens to be a family law lawyer – brought a motion to be allowed to question the wife, mainly in connection with her proposed parenting plan relating to the children.

Under the Family Law Rules, the court can make such an Order to allow a person (whether a party to the litigation or not) to be questioned by a party in certain circumstances, namely where:

1) it would be unfair to the party making the request to have to carry on with the case without it;

2) the information is not easily available by any other method;

3) the questioning will not cause an unacceptable delay or undue expense.

However, in this case the court found that none of the criteria had been met by the husband; in fact, it concluded that the husband’s motives for bringing the motion for questioning were “not plausible” and “call[ed] into question his litigation goals.”
In particular, the court found that there was no issue for which questioning the wife would advance the case, and that none of the husband’s potential topics for exploration – which the court called “minor irritants” – were necessary to ascertain the children’s best interests.

The court pointed out that under the Family Law Rules neither the parties nor their lawyers could obtain an Order to question the opposing side merely to “diminish, intimidate or attempt to embarrass a former spouse,” especially in cases where they hoped to parent the children in a co-operative manner.

As if to underline the point, the court also ordered that the husband pay $16,000 in court costs.

This ruling highlights an important distinction between the Civil Rules of Procedure and the Family Law Rules:  the Civil Rules establish a presumption that the parties can question each other whereas – as this decision illustrates – the Family Law Rules do not.   This distinction may come as a surprise, especially to unrepresented family law litigants who may assume that such an automatic right exists.

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

For the full text of the decision, see

Durbin v. Medina, 2012 ONSC 640  http://canlii.ca/t/fps1n