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Posts from the ‘Self Representation’ Category

Self-Represented Wife Asks for $18K in Legal Costs; Court Awards $30K Instead

Self-Represented Wife Asks for $18K in Legal Costs; Court Awards $30K Instead

In McMurter v McMurter, the wife represented herself in the family matter against her former husband, who had a lawyer acting for him in their 15-day trial.

The husband had asked the court to terminate his $2,500-per-month spousal support obligations, but he did not prevail. After hearing all the evidence, the court found there was no material change in either spouse’s financial circumstances to justify such a change.

Pointing out that she had been totally successful at trial, the wife then asked for a court order forcing the husband to pay her full legal fees, including: 1) the legal fees she had already paid a lawyer for representing her up but not including trial, and 2) the fees for the 263 hours she personally spent preparing for and representing herself at the trial, using a rate of $35 per hour. (She had run out of money and was unable to afford to continue paying the lawyer’s retainer). All told, she was requesting a costs order for just over $18,000.

For his part, the husband was willing to pay for, at most, the 263 hours the wife spent preparing herself, but only at a rate of $18.32 per hour, which was what she would otherwise have earned at her regular job. This proposed rate was to compensate for “opportunity cost”, meaning the money she did not earn because she was preparing for trial.

The court was asked to fix the proper amount of legal fees the to which the wife should be entitled.

It started by pointing out that the Family Law Rules contain a presumption that a successful party, like the wife, is entitled to the costs of a case. From that basic premise, a court can adjust the costs award based on various factors, including the importance, complexity or difficulty of the issues, and the time spent on the case. Other decisions have expanded on whether non-legally-trained litigants who ask for costs can automatically expect to be paid the same hourly rate as a lawyer doing the identical work. (Hint: They cannot).

Here, the wife was entirely successful in resisting the husband’s motion to change, and the case was complex. The outcome was of great importance to her, since there was a lot at stake. The court commented that she was exceptionally well-organized and presented her position well, and dealt with complex family legislation and legal issues. As the court put it, “She did the work of a lawyer in addition to the work expected of her as a litigant.”

While it was not appropriate to grant her the full lawyers’ rate, the court awarded the wife 263 hours at $100 per hour, rather than the requested $35 which was “woefully inadequate considering the nature and quality of the work” she did. That higher hourly fee was “reasonable and appropriate for a well prepared and self-represented litigant” who had done work comparable to a junior lawyer in some respects, and to an experienced law clerk in others.

The court also allowed an added 50 hours for legal preparation, for a total of 313 hours. After making some minor deductions, the court awarded a total of $30,000 in costs. It concluded the ruling by saying:

Litigants cannot and should not assume that if a party is self-represented that they will not bear the consequences of a significant cost award in the litigation in the appropriate circumstances if they are unsuccessful.

For the full text of the decision, see:

Costs award:

McMurter v McMurter, 2017 ONSC 725 (CanLII)

Main judgment:

McMurter v. McMurter 2016 ONSC 1225 (S.C.J.)

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

A Good Example of Bad Self-Representation

justice

A Good Example of Bad Self-Representation

With separations, divorces and custody battles being so common, a frequent topic of cocktail-party discussion is whether it’s ever wise to represent yourself in a family law matter.

As an Ontario judge explains in a recent decision in De Cruz-Lee v. Lee, it can be a very unwise choice.

In the opening lines of a lengthy, 860-paragraph ruling, Justice Skarica summarizes the hazards of embarking on self-representation as a “cost-saving” measure:

This case is a classic illustration of the difficulty of obtaining justice when a trial is conducted by a party or parties who are self-represented. [The wife] was self-represented and conducted the trial by herself. It is said that a person who represents himself has a fool for a client. That saying should add something about how self-representation is about the most expensive trial lawyer you can pay for.

After detailing how a trial, originally scheduled to take between one and four days, ended up taking 9 days, the Judge added:

The dispute was over an approximate $53,000 held in trust. Regrettably, the costs of this trial will consume most if not all of that amount.

Next, Justice Skarica expressed some frustration at the fact that proper procedure was not adhered to:

I note that Superior Court trials in Family Court are governed by a variety of rules. These rules are designed to ensure trials are expeditiously run at some cost efficient level. At this trial, those rules meant nothing. Virtually all of [the wife’s] exhibits were produced for the first time at trial without prior notice on the respondent. They were allowed to be filed in any event due to the fact that [the wife] was unrepresented. [The wife] struggled with legal procedures and rules of evidence, which were observed more in breach than in rigour. When I produced law for [the wife] to make submissions on, she instead engaged in character assassination on the respondent, based on allegations not found in any of the evidence.

A little later in the substantive portion of the decision, in the course of reciting the facts that underpinned the ultimate ruling, the Judge lamented:

The reader may notice that as I review the evidence the facts seem incongruous, unwieldy, inchoate and at times just plain difficult to follow. This is because it was. I want the reader of the judgment to understand just how difficult and unorganized the evidence (that was admissible) was when presented to this court as a direct result of the conduct of [the wife].

Finally, the Judge ended the ruling’s de facto prologue with the following:

In writing this judgment, I have cautioned myself, that in the end, Ms. De Cruz-Lee was poorly represented and I am going to have to make allowance for that fact in making my decision.

Despite pointing out these many trial-related shortcomings, the judge no doubt went on to make a fair and impartial ruling in the case. Justice will have been done. Still, it’s puzzling and regrettable that a litigant would choose to put herself at such an obvious disadvantage this way, in what are no doubt very important legal proceedings (at least to her).

For the full text of the decisions, see:

De Cruz-Lee v. Lee, 2015 ONSC 1900 (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

Ontario Courts Tell it Like it Is

A judge-cartoon

Ontario Courts Tell it Like it Is

While reviewing a few Ontario family decisions recently, I noticed that the judges introduced their written reasons with a subtle and judicially-uncharacteristic lament, and in some cases, outright incredulity.

Using phrases like “a family tragedy” or “unhappy story” the judges provide a glimpse of some of the empathy and quiet frustration underlying their otherwise-impartial decisions.

For example, in Zesta Engineering Ltd. v. Cloutier, the court introduced the case this way:

This lawsuit is a case study of the risks and consequences of intertwining business, family, and marital relationships. On its face, this proceeding involves claims for breach of fiduciary duty and misappropriation of corporate assets by departing employees, coupled with counterclaims for wrongful dismissal. Beneath the surface it is the unhappy story of the impact of a marriage breakdown on a successful business enterprise, and the decade of litigation that has ensued.

In a case called VanSickle (Elms) v. VanSickle the court began its judgment this way:

This is a family tragedy. The [father’s] relationship with his two children, … is now irreparably shattered. The parties have spent money they could ill afford on four days of trial wherein the [husband] has done his utmost to convince the court that his daughter, a university student, is no longer a dependent and not entitled to any support from him. ….

And from Justice Quinn (who can often be relied on for a little editorializing in his judgments, see my previous Blogs, there is the less-moderate introduction to the decision in Szakacs v. Clarke, where he pointedly tells it like it is:

Introduction

For best courtroom adaptation of a work of fiction, the award goes to the applicant, Clarissa Olenka Szakacs, who shamelessly feigned what she thought was necessary to convince the court to circumscribe access by the respondent to their almost-six-year-old daughter.

One could sit in Family Court for many years and not encounter such a callously conniving and mendaciously manipulative litigant. …

At several points throughout the trial, Ms. Szakacs emphasized that she was a Christian who practiced Christian values. There must be some key pages missing from her copy of the Bible.

Finally, in a judgment from only a few months ago called De Cruz-Lee v. Lee, the exasperated yet still-mindful judge said:

Overview

1 This case is a classic illustration of the difficulty of obtaining justice when a trial is conducted by a party or parties who are self-represented. Ms. Angela De Cruz-Lee (“Ms. De Cruz-Lee”) was self-represented and conducted the trial by herself. It is said that a person who represents himself has a fool for a client. That saying should add something about how self-representation is about the most expensive trial lawyer you can pay for. … [T]his trial originally was scheduled for one to four days and was set … to settle two issues. On November 17, 2014 a further pre-trial was held. The issues were down to ownership of the home estimated to be a one to two day trial. The trial in fact went on for nine days. The dispute was over an approximate $53,000 held in trust. Regrettably, the costs of this trial will consume most if not all of that amount. I note that Superior Court trials in Family Court are governed by a variety of rules. These rules are designed to ensure trials are expeditiously run at some cost efficient level. At this trial, those rules meant nothing. …

In writing this judgment, I have cautioned myself, that in the end, Ms. De Cruz-Lee was poorly represented and I am going to have to make allowance for that fact in making my decision.

Judges are only human. Such sentiments are no real surprise in light of the parade of difficult, doubtless heart-wrenching family disputes that come before them daily – some of which should never have been aired in a Canadian courtroom at all.

For the full text of the decisions, see:

Zesta Engineering Ltd. v. Cloutier, 2010 ONSC 5810

VanSickle (Elms) v. VanSickle, 2012 ONSC 7340

Szakacs v. Clarke, [2014] O.J. No. 6214

De Cruz-Lee v. Lee, 2015 ONSC 1900

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

Can Wife’s Stepfather, a Suspended Former Lawyer, Represent Her in Court?

court door

Can Wife’s Stepfather, a Suspended Former Lawyer, Represent Her in Court?

I have written recently about the upsurge in self-represented litigants in Family Law proceedings, and some of the inherent dangers involved in choosing to act on your own and forego being represented by an experienced lawyer.

In a recent Ontario case called Scarlett v. Farrell, the mother in a custodial dispute likely thought she had the next-best thing: she asked the court permission to have her step-father – who was a former lawyer with about 200 trials under his belt – represent her at the hearing.

Perhaps surprisingly, the court refused.

The background facts of the case were not remarkable: the mother had custody of the 7-year old child, and the father had seen the child only once in three years. Nonetheless, the father was now seeking full custody. The mother claimed she could not afford to hire a lawyer but had been denied Legal Aid; she wanted to have her step-father appear on her behalf in court.

Normally, courts will not intervene in allowing a family litigant to choose his or her own lawyer, nor will it lightly interfere with a litigant’s decision to represent him or herself. And one would think that a court would have little objection over allowing the mother to be represented in court by a former lawyer, and family member to boot.

But in this case, the court had concerns over the mother’s choice: not only was the mother’s step-father currently under suspension with the Law Society of Upper Canada for failure to pay administrative fees (and was therefore not permitted to practice law), but he also had a past disciplinary record with them – which included previous suspensions for professional misconduct.

Given that suspension – and despite having over 30 years’ experience in practice — the step-father was technically a non-lawyer at this stage, and the court had to consider him as such. The rules of court provided only limited circumstances in which a non-lawyer can appear, and another judge had already denied a similar request by the mother to have the step-father represent her.

But more to the point, the court was particularly concerned in this case that the step-father would not conduct himself with honesty, integrity, and forthrightness if he was allowed to represent the mother. (And it pointed out that the step-father had not disclosed his past disciplinary record to the court voluntarily; it came to light when the father brought it to the court’s attention, after discovering that the step-father was using a different name in court than he had used for Law Society records). Nor, for that matter, would the step-father be likely to maintain the required level of objectivity and “appropriate emotional distance” in the matter.

Although the circumstances were unusual, the court’s concern with the integrity of the justice system were uppermost. It would compromise the underlying values of that system to allow a suspended or disbarred lawyer to appear before the court.
In the end, the court refused the mother’s request (with which, incidentally, she was assisted by her own mother), but adjourned the trial to allow her a chance to appeal the Legal Aid rejection or find a way to come up with the money to hire a lawyer.

For the full text of the decision, see:

Scarlett v. Farrell, [2014] O.J. No. 1913, 2014 ONCJ 194

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 our main site.

Judges Speak Out About Self-Represented Litigants

loud

Judges Speak Out About Self-Represented Litigants

As family lawyers, we are well-aware of the common criticism by those involved in family disputes and litigation: that hiring a lawyer is expensive.

Although it may seem self-serving to point out the benefits of retaining experienced family law representation for your case, we can do one better: Here are some illustrations of the types of comments made by judges themselves about the difficulties of untangling the merits of a case when self-represented (or otherwise unrepresented) litigants – admirably as they may try – are unable to put forward their best case due to the lack of legal training.

For example, in a case called Leigh v. Milne, the Court of Appeal lamented the slow pace at which the family litigation had proceeded:

The Process

At the outset, let me address [the wife’s] concern about the process, culminating in the order under appeal. This proceeding on appeal is a graphic example of how difficult it is for a self-represented litigant to effectively navigate through the legal system. While the Courts struggle to adapt to the ever-increasing numbers of self-represented litigants, the legal system remains a process which works most effectively for litigants who are represented by lawyers. Judges expect that lawyers will police one another in order to keep a case moving forward at an acceptable pace and, when necessary, seek the assistance of the court to do so. Unfortunately, this leaves proceedings where one and, especially, where both of the litigants are unrepresented, susceptible to being unreasonably delayed by the party who does not want the matter to proceed. This is what occurred here.

In the recent Ontario decision called Szakacs v. Clarke, the court complained about the quality of court documents that had been filed in connection with a family case:

In self-represented litigation, the “pleadings” rarely reflect meaningful details of the issues to be tried. In this case, after reviewing the various orders in the trial record, I ventured further and read the notices of motion and the supporting affidavits leading to those orders for the purpose of learning the specifics of the dispute. This allowed me, when the parties were testifying, to raise certain matters that they had omitted or had wrongly concluded were unimportant. A trial judge should not be put in the position of having to find, present, argue and decide a case. Wearing that number of hats is unbecoming.

Finally, courts are mindful of the potential unfairness to the other side. While being willing to recognize that – out of a sense of judicial and procedural fairness – a self-represented litigant should perhaps be given a little more lee-way in connection with having to follow court rules and procedures to the letter, the court must still ensure that both sides of a family dispute get the fair hearing to which they are entitled. This was pointed out in a case called Baziuk v. Dunwoody, where the court said:

The problem of unrepresented parties, who may not be familiar with law and procedure, is one which is facing courts today with an ever increasing frequency. Courts are mindful of a degree of understanding and appreciation which should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to over ride the rights of a defendant party.

The point to take away from this, is that the decision to represent yourself in your family dispute may seem cheaper financially, but may have hidden costs in connection with the judge’s own perception and assessment of the merits. Make sure you make the right decision for your particular case.

For the full text of the decisions, see:

Leigh v. Milne, 2010 NSCA 36

Szakacs v. Clarke, 2014 ONSC 7487

Baziuk v. Dunwoody (1997), 13 C.P.C. (4th) 156; [1997] O.J. No. 2374 (QL) (Ont. C.J. (Gen. Div.)

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.

What Should Courts Do With Self-Represented Litigants?

sel rep

What Should Courts Do With Self-Represented Litigants?

While I never intend deliberately to harp on the perils involved with family law litigants representing themselves in court, there has been a recent spate of cases that really illustrate the risks involved – and not all of them come from the Family Law dockets.

In an April 2013 criminal judgment in a case called R. v. Duncan the judge put a downright humorous spin on the narrative relating to a routine highway traffic infraction by the accused. Among other things, the judge admonishes the defendant for his indiscriminate use of the Internet in preparation for his stint at representing himself at trial. The judge wrote:

It has been said that, given enough time, ten thousand monkeys with typewriters would probably eventually replicate the collected works of William Shakespeare. Sadly, when human beings are let loose with computers and internet access, their work product does not necessarily compare favourably to the aforementioned monkeys with typewriters.

Thus it was that the trial began with Mr. Duncan objecting to us proceeding on the basis that I had no jurisdiction over him. Mr. Duncan provided me with an “affidavit of truth”, a rather substantial volume that appeared to me to be the result of somebody doing a Google search for terms like “jurisdiction” and the like and then cobbling them together in such a way that it makes James Joyce’s Ulysses look like an easy read. This hodgepodge of irrelevancies relied upon by Mr. Duncan was one of the misbegotten fruits of the internet. Finding it was a waste of Mr. Duncan’s time; printing it was a waste of trees and my reading it was a waste of my time and public money.

..

Mr. Duncan did not strike me as a fool and individual acts seldom define people, but the red binder he offered to the officers and the “affidavit of truth” he offered to me in court were regrettable descents into foolishness and Mr. Duncan would be well-advised to be more discriminating on what parts of the internet he models himself upon in the future.

The judge in R. v. Duncan also refers to a case – now famous in legal circles at least – called Meads v. Meads which was rendered by an Alberta court last year. That case resulted in a 700-page court decision which dealt at length with what the judge defined as “Organized Pseudolegal Commercial Argument Litigants”, who are essentially vexatious litigants – usually self-represented – who “employ a collection of techniques and arguments promoted and sold by ‘gurus’ (as hereafter defined) to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals.”

Certainly the spectrum of self-represented litigants is quite large, and can vary greatly in terms of the litigants’ preparedness, familiarity with court processes, and individual objectives. (And in Family Law, the decision to try to avoid hiring a lawyer is usually cost-driven, rather than ideologically motivated.)

Still, it begs the question: Should courts have formalized processes in place for dealing with self-represented parties? What are your thoughts?

For the full text of the decisions, see:

R. v. Duncan, 2013 ONCJ 160 (CanLII)  http://canlii.ca/t/fwsm0

Meadsv. Meads, 2012 ABQB 571 (CanLII) http://canlii.ca/t/fsvjq

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.

Court Strikes Down Homemade “Kitchen Table” Separation Agreement

agreement

Court Strikes Down Homemade “Kitchen Table” Separation Agreement

This case is another cautionary tale of the perils that former partners face when attempting to hammer out their own separation agreements without the benefit of independent legal representation.

In Zheng v. Jiang, the couple had signed a document they called a “Divorce Agreement.” The document was not witnessed, and was prepared without legal advice and without the parties making any financial disclosure to each other. The husband apparently showed up at her residence, unannounced, with the fully prepared document ready for her to sign. It took less than 30 minutes for the two of them to agree on the details.

The document had been prepared at the instigation of the wife, who at one point had moved to a women’s shelter after the husband assaulted her. When she called the husband to set up a meeting, they had not been in contact since their separation.

However, the Divorce Agreement was predicated on the wife’s misconception that both she and the husband needed to consent to the divorce which, although not true under the laws of Canada, was based on the wife’s experiences in her native China. Based on this misconception, the wife agreed to the Divorce Agreement because the husband told her that unless she agreed to its terms, he would fight her on the divorce. The wife later explained that she knew it was unfair to her, but she felt it was the only way she could get the divorce she wanted.

The terms of the Divorce Agreement were rather one-sided in the husband’s favour: the wife could keep their car and a television set (that still had more than $4,000 in payments owing). The husband would keep the matrimonial home, and the remainder of their possessions. The husband also agreed to pay about $550 per month in support to the wife and their child.

When the matter came before the court, the husband asserted that the Divorce Agreement should be upheld, because it was fair at the time. Indeed, he claimed it was still fair now, because of the mortgage payments he had subsequently made.

The court disagreed. In these circumstances, the purported Divorce Agreement (which was really more of a “separation agreement” under Canadian law) was unenforceable. It was in clear breach of the Family Law Act which provides that a domestic contract is unenforceable unless “made in writing, signed by the parties and witnessed.” Moreover, the husband’s position was inconsistent: he had not even paid the child support that he promised under the Divorce Agreement, and had prevented the wife from taking delivery of the television set that she paid for. The agreement was also incomplete in several important respects, and did not deal with the equalization of their net family property.

As such, the court was possessed of the power to deal on its own accord with the ownership of the couple’s property on separation. And despite some unusual circumstances where past courts have enforced a separation agreement despite the fact that it was not witnessed, the court found that this was not one of the exceptional cases.

In striking down the Divorce Agreement as unenforceable the court summed it up this way:

It seems to me that this is the very type of homemade agreement entered into by spouses who are not properly informed as to the facts and law surrounding their circumstances that [the Family Law Act] was designed to deter. I agree with the statement in Sagl v. Sagl … that “the policy of the Act is to discourage ‘kitchen table’ agreements.”

For the full text of the decision, see:

Zheng v. Jiang, 2012 ONSC 6043 (CanLII)  http://canlii.ca/t/ftf2c

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.

Lawyer-Less Father Misses Opportunities at Trial; Appeal Denied

 

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Lawyer-Less Father Misses Opportunities at Trial;  Appeal Denied 

Recently we highlighted an Ontario decision  that illustrated how a litigant’s outcome in court can potentially be hampered by his or her decision not to have competent legal representation.  

Although there are many, many examples of this, another recent case, this time from the Ontario Court of Appeal, shows that unrepresented litigants – who are generally unfamiliar with legal procedure – can unwittingly deprive themselves of the opportunity to assert their rights or put forward helpful evidence at the appropriate procedural juncture.

As usual, the parties were former spouses, who had decided to separate and divorce.   They went to court to resolve the legal issues arising from that decision, chief among them the question of who was to get custody of the three-year-old child they had together.  

At trial, the mother was granted custody; the father, who was not represented by a lawyer, was given access that was to be supervised by the Salvation Army.  Moreover, the trial judge also imposed a five-year restraining order on him, blocking him from contacting or going near the mother, the child, and members of the mother’s extended family.

The trial judge had also refused to adjourn the proceedings to allow the father to properly prepare, produce documents, and obtain witnesses.   He was also not permitted to bring forth his treating psychiatrist to give evidence at trial.

The father – who was now represented by a lawyer – appealedall of these lower-court rulings to the Ontario Court of Appeal.  

His appeal was dismissed.  

The court found that the trial judge had carefully considered the parties’ respective submissions.   The father had a full 15 months prior to the trial date in order to prepare his materials and submissions.   He knew of the exact trial date two months before it took place.   Moreover, the matter concerned the best interests of the child, and it was important to keep the proceedings moving along.  The trial judge’s decision refusing to allow the father an adjournment in the circumstances was not in error.

With respect the treating psychiatrist’s evidence:  the father’s request to produce his doctor was made only after the trial had already begun, and he had not complied with the procedural requirements of the Family Law Rules that govern the calling of expert witnesses (including giving the mother a copy of the expert’s curriculum vitae, or a list of his or her qualifications).   Furthermore, the Appeal Court found that – even if the trial judge felt it appropriate to give the father some leeway in this regard – the doctor’s evidence would likely have made no difference in the orders that were ultimately imposed at trial.

As for the substantive ruling that gave the father supervised access only, with custody to the mother – the Court of Appeal found that the evidence in support of this outcome was “overwhelming” and that the trial judge’s decision on supervised access “was a wise one”.   The child had been in the mother’s custody since birth, had strong ties to her, and had virtually no emotional ties to the father at all.  Previous attempts at supervised access by the father had failed completely.  And while the court conceded that this might change in the future, it was the appropriate arrangement for the time being.  

Finally, the Appeal Court saw no error in the 5-year restraining order.  There was clear and convincing evidence that the father had been violent to the mother and her family in the past.  

The father’s appeal was ordered dismissed, with fixed costs of $10,000 being imposed on him.

For the full text of the decision, see:

French v. Riley-French, 2012 ONCA 702 (CanLII)  http://canlii.ca/t/ft9lq

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.

 

 

Saving Money by Going it Alone in Court? Think Again

witness

Saving Money by Going it Alone in Court? Think Again

As a family law lawyer, naturally my first recommendation to anyone who is involved in a family law dispute is that they retain a competent and experienced family law lawyer to represent them.

A called Davidson v. Davidson, offers cogent illustration of what can happen when the parties choose not to go that route, and opt instead to represent themselves. More to the point, it illustrates in virtually step-by-step format how the parties went wrong in terms of their litigation, and at what stages they could have benefitted from the assistance of lawyers hired to advance their individual causes.

The matter started out routinely enough: In 2001, after a hearing the father had been ordered to pay child support for his two children, of almost $450 per month.

The father had been properly served with notice of the proceedings and the fact that child support was being claimed by the children’s mother. However, he did not appear at the hearing and did not file any materials with the court. We will call this “Mistake No. 1.”

The $450 in monthly child support had been determined based on the court’s estimate of the father’s income as being about $30,000 per year.

Mistake No. 2: The father never made any payments as had been ordered. Over the years, he paid only a few dollars in support, and by 2009 the arrears totalled almost $45,000. He claimed – with relatively little corroboration – that this was due to the fact that he has been unemployed since 1998, and has suffered significant depression since that time.

In 2008, the father asked for an order to vary the initial order, specifically to reduce it and have any arrears rescinded. That request was dismissed.

Mistake No. 3: Neither the father nor the mother had legal representation at the motion to vary. However, the mother was at least in attendance, though she did not file any materials. She did, however, make certain unsworn statements of fact and some submissions.

Indeed, the only sworn evidence on the hearing was certain uncontradicted affidavit evidence from the father, indicating that:

• in 2001 the father had been convicted of fraud relating to the matrimonial home, and had been sentenced to prison for two-years-less-one-day.

• since 1998 he had twice been committed to a mental institution, he had problems with his driver’s license, and had spent time in jail.

• at the time of the hearing, the father’s only income was $1000 a month in disability payments.

Despite this evidence, the motions judge dismissed the father’s application to vary, writing as follows:

The respondent’s actions have been completely irresponsible and in keeping with the Axis 2 diagnosis presented by a psychiatrist in a letter dated April 28/08 he is not entitled to any relief with respect to arrears. I trust that FRO will continue to enforce them. I am not satisfied that his income has changed. Motion dismissed. …

The father appealed that ruling.

At the appeal hearing, the father had now availed himself of legal representation. (And the first thing the father’s counsel asked, was that the court permit him to bring forward some fresh evidence. And – even though strictly speaking it did not meet the test – the court allowed it, partly because the father had not been represented at the earlier hearing and did not appreciate the need for or the significance of the evidence he now sought to introduce.)

With this new evidence in hand, the specific issue for the Appeal Court was whether the order refusing to vary the earlier support order was wrong, in the face of the uncontradicted evidence that the father had no income other than the undisputed $1000 in disability payments since 1998. In other words, the only sworn evidence before the earlier court was the father’s – and it indicated that his income was $12,000 per year, and not the $30,000 that had been used to impose the original support amount on him. It was incumbent on the lower court to explain its refusal to vary and not forgive the arrears in light of that sworn evidence.

The Appeal Court found the lower court judge had erred, explaining as follows:

It appears to me that what happened here was that the learned Motions Judge accepted at face value the comments of the [wife] that the [husband] had in effect cheated the [wife] in connection with the house proceeds and her entitlement to an equalization payment. Accepting those facts, he felt it was not a case for variation, nor for rescission of the arrears.

This highlights the danger of judges simply accepting what unrepresented litigants say without insisting that their version of the facts be in an affidavit, leaving them open to cross-examination. …

No conclusion need be reached on the matter of the house proceeds. The point is that the Court, in a contested matter should proceed only on the basis of the evidence before it – not the untested or unchallengeable informal statements of fact made by a litigant.

The Appeal Court concluded that the only evidence that should have been considered – and that it could now consider – was the uncontradicted evidence brought before the court by the husband. It was not entitled to consider the wife’s unsworn statements.

This being the situation, it was a clear case for a variation of child support, both retroactively and going forward. The court accordingly reduced the monthly child support amounts from $450 to $161 per month, and reduced the arrears from almost $45,000 to $15,000.

So what did the decision to not hire a lawyer really save these parties, and the father in particular?

Turning my trained legal eye to the scenario, I see that the father prejudiced his legal position by opting not to have an experienced lawyer pinpoint various evidentiary and strategic points. Namely:

• the significance of the notice of the hearings, or what the ramifications might be, if the father did not attend.

• the importance of attending the hearing, and availing himself of the opportunity to file any materials.

• not appreciating the potential repercussions of a failure to pay support as ordered.

• not understanding the significance of his unemployed status and its effect on his child support obligations.

• not appreciating the legal distinction between informal statements and sworn testimony by way of affidavit, and the rules surrounding the admissibility of each.

• not understanding the evidentiary protocol which elevated his uncontradicted evidence to the status of the only evidence that could be heard by the court.

• not understanding that certain omitted evidence should have been brought forward at the variation hearing to bolster his claim.

• not being alert to the fact that the motions judge had been considering irrelevant factors, when making his order to dismiss the father’s motion to vary.

As a result, both parties had to endure the wasted time and expense of an initial hearing, a later motion to vary, and then an appeal. … All of that to save a buck or two in hiring a lawyer in the first place.

For the full text of the decision, see:

Davidson v. Davidson, 2010 ONSC 1325  http://canlii.ca/t/28sph

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.

Father Bumbles Child Support Litigation – A Lesson in What Not to Do

Father Bumbles Child Support Litigation – A Lesson in What Not to Do

A recent decision – though relatively uneventful from a legal standpoint – shows how it often doesn’t pay to try to manage your own family law litigation without the help of competent legal representation.
In O’Donnell v. Davis, the father and mother never lived together, but they had a child.  After they separated, the mother brought an application for child support but – despite being served with notice – the father didn’t bother to attend the hearing.  As such a default order was made, granting the child’s mother custody, with access to the father.  The father was also ordered to pay child support based on his estimated or imputed income.  

Faced with a court order to pay child support, the father suddenly took more interest in the litigation.   First, he brought a series of unsuccessful motions trying to have the matter restored to the court’s list for hearing.  Then he brought a motion asking to have the judge’s order set aside.  

The judge granted that order, and allowed the father to file his answer and defence together with some additional material.  Another hearing date was set, to determine whether the default order should be set aside.  

At that hearing the circumstances of the father’s failure to attend the initial hearing came to light:  At the outset, the father conceded that he had been personally served with certain documents relating to the mother’s court application, indicating that the hearing would occur at 1 p.m. on an August 2011 afternoon. However, he claimed that the first two pages were missing, but apparently he did not take the initiative or make any effort to get duplicates or ascertain what was on those missing sheets.

(It should be noted that Courthouse records showed that the father had been paged in the corridor three times at 1:25 p.m., and then again at 2:50.  Needless to say, he did not respond.  However, he did attend a Mandatory Information Program (MIP) on 3 p.m. that same afternoon.  Unfortunately, the father did see fit to provide the court with a certificate confirming his attendance at the MIP, which might have helped his position).

In light of these circumstances, the father – who was unrepresented at the hearing – asked the court to consider whether it should set aside the final order.  

In considering the father’s request, the court noted that according to the law, the relevant issues were whether:

• the father acted in a timely manner to bring his motion;

• his material disclosed a viable defence;

• a different outcome would likely have resulted, had the father’s material been before the court at the time the order was made;

• the father acted in good faith; and

• setting aside the order would be appropriate in the interests of justice.

Applying these factors to the case, the court made certain findings.  First of all, the father had taken 5-6 weeks before taking steps to try to have the order overturned.  This, the court found, did not amount to a significant delay.

Next, in terms of the substantive merits, the father did not actually dispute most of the facts and claims put forth by the mother. Moreover, although he was purporting to assert certain claims against the mother, the court found these “disclose[d] no factual basis whatsoever.”  Also, the material the husband filed did not show any basis for concluding the legal outcome would have been different.

But most troubling to the court was the father’s truthfulness in filing materials and giving evidence.   For one thing, he had made certain claims that the mother had a drinking problem and suffered from depression.  The court concluded these allegations were wholly unsubstantiated.

Even more egregious was the father’s lack of candour in connection with his employment status and income.  Specifically, in some documents he claimed that he had been unemployed since 2009.   In his financial statements filed with the court, he provided no tax returns, and claimed that he had no income, no expenses, no assets, and no debts.  Yet in another section of that same financial statement he claimed to be contributing $1,200 per month towards the support of his new wife and family (although he did not disclose the source of the income needed to do that).

Indeed, the wife gave evidence that he was actively working, was earning $24 per hour, and had occasionally needed to change child access plans because he “had to work late” or because he had been scheduled to work overtime.

(To compound matters, father also claimed he did not own a vehicle; yet the mother was able to produce copies of advertisements for cars for sale, which showed the father’s cell number as a contact.)

In short, the court found the father’s financial evidence to be contradictory at best.   It said:

“I conclude that either the respondent was lying to the applicant or to the court. In either case, he has an undisclosed source of funds.” 

With all this in mind, the court found that the father did not come to court “with clean hands” and more importantly had absolutely no defence to the mother’s valid claims for support.   Respecting the hearing that he missed, the court also pointed out that the father had plenty of opportunity to ascertain court dates, and obtain assistance from duty counsel or court staff at the Family Law Information Centre, in any case.

The father’s motion to set aside the default judgment was accordingly dismissed.  However, after reviewing the mother’s evidence as to her actual child care costs, the child support order was varied in order to more accurately reflect the mother’s reduced child care needs.

For the full text of the decision, see

O’Donnell v. Davis, 2012 ONCJ 36  http://canlii.ca/t/fps9n
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.