Skip to content

Posts from the ‘Spouse’ 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

Wednesday’s Video Clip: Child Support & Parents on Social Assistance in Ontario


Wednesday’s Video Clip: Child Support & Parents on Social Assistance in Ontario

Parents on social assistance who have custody of their children must make reasonable efforts to get support from the other parent. If they do not, they may receive less assistance, or none at all. If they do not already have a support agreement or order, they are expected to get one. They must give information about the other parent to a family support worker who can help them get a support agreement or order.

They should get legal advice before signing any agreement worked out on their behalf.

They may not have to try to get support if the other parent:

• has a history of violence towards them or their child

• cannot be found (but they must give their worker any information they have that might help find the other parent),

• or is not working and cannot afford to pay support (if he or she starts working again, then support can be re-ordered).

The amount of any child support they receive is deducted from their social assistance. So, their total income does not change because of the child support.

Usually, the payments go directly to them, and that same amount is deducted from their monthly social assistance cheque. But if there is a history of non-payment, the child support payments can be assigned to Ontario Works (OW) or the Ontario Disability Support Program (ODSP). Then they will get their whole social assistance cheque, even when the support payments are not paid.

Parents on social assistance who do not have custody are expected to pay child support to the extent that they can, as set out in the Child Support Guidelines. Currently, the Guidelines do not require support payments from parents whose income is less than about $6,700 a 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

What Kinds of Possessions Do Former Couples Squabble About?

beanie-couple

What Kinds of Possessions Do Former Couples Squabble About?

I had to chuckle when I came across an older photo from a U.S. divorce hearing in 1999. It shows the former couple on the floor of the courtroom dividing up their cherished Beanie Baby collection:

beanie-baby
Although evidently this collection meant a lot to this pair (and might be one of the things that actually drew them to each other), it made me wonder about some of the other things that end up becoming contentious items – whether immediately or even long after the marital split.

In a case called Kallies v. Kallies, the couple had separated a full seven years earlier, at which time the wife left the home without taking her books, records, clothing, her wedding dress, a sewing machine, her aunt’s knitting needle collection, and a painting by her sister. She had since requested numerous times that these items be returned, but the husband never complied. In its divorce order, the court expressly directed the husband to pack these specific items up and deliver them to the wife’s new address, and gave him a strict deadline to do so.

In Young v. Young, the couple split after 25 years of marriage, but then it took them another 19 years to get around to asking the court for a divorce order. During that period the wife had continued to live in the former matrimonial home, which still contained an on-display heirloom gramophone given to them during the marriage by the husband’s family. The court found that this gramophone was not a “matrimonial asset” subject to the division in the usual manner; rather it was to be returned outright to the husband in light of its family-based origins. Besides, the court added, the wife had had use and enjoyment of it for the 19 years since their separation, so it was proper that she hand it over even at this late stage.

Sometimes a single item can hold up the entire divorce process. In a case called Giannis v. Fotis, the couple’s issue was over the ownership of a particular piece of jewellery – and it kept them stymied from resolving their larger divorce-related matters. The court described the couple’s dispute this way:

Gold Neck Chain

The parties are equally adamant in their claims to the gold chain. In fact, the gold chain seems to have prevented the parties from settling all outstanding issues.

The chain was purchased by the husband before the marriage. He gave it to the wife shortly before marriage and she wore it continuously thereafter. This is borne out by the several photographs of the wife taken over the years of marriage, of which show her wearing the chain. The evidence of the husband does not indicate that any conditional or limiting words were used by him at the time of the gift. Nor is it an heirloom of the husband’s family. The wife says that it was an outright gift.

On the facts, the court ultimately awarded the gold chain to the wife, having found that it was an “item of personal jewellery” rather than a matrimonial asset that was subject to being divided. The court went on to resolve other outstanding items and then was able to finally declare the couple to be formally divorced.

(P.S. The custody of pets is often a hotly-contested issue in some divorces. Look forward to more on that in a future Blog.)

For the full text of the decisions, see:

Young v. Young, 1990 CanLII 688 (BC SC)

Kallies v. Kallies, 2010 SKQB 141 (CanLII)

Giannias v. Fotis, 1996 CanLII 5470 (NS 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

Man, Married 33 Years, Robs Bank Rather Than Spend Another Minute with Wife

jail2

Man, Married 33 Years, Robs Bank Rather Than Spend Another Minute with Wife

For many couples, the decision to separate and divorce is not an easy one. But once the “writing is on the wall”, most unhappy spouses summon up the courage and wherewithal to get up and leave the relationship.

But few would choose the route taken by a 70-year-old Kansas man named Lawrence John Ripple in early September of this year. Rather than have to spend any more time with his wife of 33 years, he decided to rob a bank and get himself thrown into jail.

The whole escapade stemmed from a fight he had with his wife over a broken dryer that she had asked him to fix. The dispute got heated, and then – according to police documents – Mr. Ripple finally exclaimed that he’d “rather be in jail than at home.”

In front of his wife, he prepared a handwritten note that said “I have a gun. Give me money.” He then jumped in the car, drove to the Brotherhood Bank and Trust in Kansas City, and handed the note to the bank teller. She gathered $3,000 and gave it to him.
But rather than try to escape like most bank robbers would, he calmly sat down on a chair in the bank’s lobby, and waited for the police to arrive to arrest him. (He didn’t have to wait long, because the Kansas City Police Department was located only a few doors down from the Bank, which one would guess was a deliberate choice on Mr. Ripple’s part). As he waited patiently for their arrival, he confirmed to the Bank’s security guard that “I’m the guy you’re looking for”, referring to the stolen money he was still holding.

After being taken into custody, Mr. Ripple explained his criminal conduct by saying that he “no longer wanted to be in that situation”, meaning his unhappy predicament at home with this wife. He was duly charged with robbing and bank and has been moved to a federal facility where he now awaits trial. If convicted, he faces up to 20 years in prison. (One has to wonder whether his wife will come visit him in jail, and if so whether they can keep those visits argument-free!)

Although few will refute that divorce can be hard, most would still choose the Family Law system over the Criminal Justice one.

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

Biological Father Responds to Court Documents by Scribbling “a Very Offensive Word” – Can His Consent to Adoption be Dispensed With?

offensive

Biological Father Responds to Court Documents by Scribbling “a Very Offensive Word” – Can His Consent to Adoption be Dispensed With?

Under what circumstances will a court trump a biological parent’s legal right to give consent to the adoption of his or her child by another person?

This was the issue raised in a recent Ontario decision. The step-father of the 10-year-old girl had married her mother (who had sole custody), after dating her for about five years and living with her for four. He had always treated the girl as his own, and had supported her financially, emotionally, and physically. He participated in her education, made medical decisions for her, and they shared a deep emotional connection. Plus, the girl had always viewed the stepfather as her parent and called him “dad” of her own accord.

In stark contrast, the girl’s biological father had absolutely no relationship with her: Not only had he not seen her for the past 8.5 years, he had never even asked to do so. Child support was something he paid only involuntarily. He had been verbally and physically abusive to the mother throughout their 5-year relationship, which started when she was just 17 years old.

After being advised repeatedly that the stepfather wanted to adopt the 10-year-old girl as his own, the biological father contacted the mother through Facebook to suggest that he would give his consent in exchange a $10,000 fee.

Instead of paying up, the stepfather simply applied to the court, asking for an order that the biological father’s consent to the proposed adoption could be dispensed with.

The court readily agreed.

For one thing, even at her current young age the girl herself had consented to the adoption, and was keen for it to proceed. She was very family-oriented, and – since the stepfather and the girl’s mother had a 3-year old together, and were expecting another child – it made her anxious and distressed that the rest of her family and siblings had a different last name. That last name was really her only tie to her biological father, since she had no recollection of him.

In light of the biological father’s obvious disinterest in the girl, and the stepfather’s unfailingly positive involvement, it was clearly in the girls’ best interests to grant the order, the court found.

Incidentally, the biological father did nothing to help his own case: despite being properly served with the stepfather’s court documents, he failed to even file a response and did not appear in court. Indeed, he returned the court documents in a less-than-mature and uncooperative manner, as the court explained:

He apparently opened the envelope, read the contents, scribbled randomly on one of the pages of an affidavit; wrote a very offensive word in bold letters on one of the pages, and then re-sealed and sent the envelope back to the [mother’s] counsel marked “Return to Sender”.

For the full text of the decision, see:

S.M.L.L. v. J.K.M., [2016] O.J. No. 2519, 2016 ONSC 3198

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

What Can We Learn from Brad and Angelina’s Divorce?

Angelina Jolie and Brad Pitt attend the "Cinema for Peace 2012" charity gala during the 62nd Berlinale film festival in Berlin

What Can We Learn from Brad and Angelina’s Divorce?

Although the lifestyles of celebrities are outside the realm of experience for the rest of us, that does not mean that we cannot relate to them in some respects.

Take the recent divorce announcement by Hollywood golden couple Brad Pitt and Angelina Jolie: Although their glamour-filled day-to-day lives are not something that most of us will ever experience, many “average” people will still have much in common with them when in light of the upcoming dissolution of their relationship. In other words, divorce can be equally challenging, sad, and frustrating for everyone, no matter how long or short the relationship, no matter the dollar-value of the marital property, and no matter how many kids are involved.

Here is some advice that is uniformly relevant to separating and divorcing spouses everywhere – whether famous or not:

1. Honesty is the Best Policy

The glare of the media spotlight, and the tenacity of the paparazzi, makes it hard for celebrities such as Brad and Angelina to hide the truth, to keep indiscretions covered up, and to maintain any real privacy at all. But maybe that’s not a bad thing, because it may prompt honesty at a time when truth-telling is most productive.

The divorce process is expedited by honesty, and the post-divorce period will especially thrive from the establishment of trust between former spouses during an otherwise-unpleasant process. The ability to be up-front is key to ensuring that the divorce goes as well as possible, and is certainly vital to working together in the future parenting any children of the marriage.

2. Cheating May Sell Magazines, But …

Once a celebrity couple has decided to split, the media often focus on allegations (real or unfounded) that one or both of the parties has had an extra-marital affair. While this kind of scandal may sell magazines at the checkout-counter, it’s not the focus of a court’s interest in the divorce proceedings of an average person.

So if an affair is part of the equation in a divorce – and as much as the innocent spouse’s ego and feelings may be bruised because of it – it’s rarely productive to make this a focus, or to ramp up the acrimony in “revenge”. It’s always better to concentrate on trying to have an amicable and co-operative split, and of course on making sure any children are well-provided for.

3. Keep New Partners Out of the Spotlight, for Now

In the case of Brad and Angelina, there is no doubt that one or both of them will be stepping out at a Hollywood event with new dates or romantic partners soon enough. As with allegations of infidelity, the paparazzi love to follow newly-split celebrities to see who they might be dating next, even despite their attempts to keep any new relationships under wraps.

The discreet approach may be equally wise for the average newly-separated person, since it’s the best way to make the divorce go as smoothly as possible. No one enjoys having the existence of an Ex’s new partner thrown in their face, and the intervention of a new partner into the litigation process can “stir the pot” and be highly detrimental.

4. Protecting the Kids is Key

Maintaining privacy is a routine concern for the stars. It should likewise be a primary concern for newly-separated and divorcing parents, because the best interests of their children is (or should be) paramount to any other goals or issues. Keeping the children insulated from unhealthy parental interactions (such as attempts to undermine or bad-mouth each other), minimizing disruption and other negative experiences, and avoiding putting them in the middle of the parents’ disputes are all important tasks for the parents to focus on.

5. There Might be a Silver Lining

Celebrities seem to move on to new relationships at breakneck speed. Although that particular approach is not always advisable in the long-run, the positive “spin” to take from it is this: The future is full of possibilities and new opportunities. Strange as it may seem, divorce can have some positives.

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.

Self-Reporting Your Income: How to Go Wrong

Canada Revenue Agency Warning Sign, A Canadian road warning sign with words Canada Revenue Agency with a sky background

Self-Reporting Your Income: How to Go Wrong

If you are a separated or divorced parent and also self-employed, then you likely know of your legal obligation to report your income so that any child support obligations (or entitlements) can be determined under the federal Child Support Guidelines (the “Guidelines”).

This can be more complicated than you may think. Because unlike those who receive a straight salary, if you earn your living through self-employment, or if you are paid through a corporation, then the calculation of your income can fluctuate greatly from year to year. It may also require some crystal ball-gazing, and be driven by numerous esoteric variables and discretionary business-decisions.

Not surprisingly, when family disputes involving one or more self-employed parents end up in court, the judge is authorized to closely scrutinize your self-reported income to fix the true amount. As part of this exercise, the Guidelines allow the judge to “add back” or impute income to your declared income in certain cases. These include situations where you:

• Are intentionally unemployed or under-employed;

• Divert income;

• Unreasonably under-use property that could be used to generate income;

• Fail to produce income information when legally required to do so;

• Deduct an unreasonably high amount of expenses from income (and this is not solely governed by whether the deduction is permitted under the Income Tax Act); and

• The beneficiary under a trust.
(The Guidelines also allow the court to impute income to you in certain defined tax scenarios).

Needless to say, there is a lot of gray-area in that list; for example, in a small corporation or single-person business you may have a lot of leeway in determining the amount of expenses that you deduct from income. Essentially, it is an “executive decision” in the colloquial sense, highly dependent on factors unique to your specific self-employment arrangement, and may vary from year to year as business needs and economic factors dictate.

In fact, the over-generous deduction of business expenses is the area where most self-employed parents trip up in reporting their total income for child support purposes. Here are just a few of the ways that you can go wrong in reporting income:

• By trying to deduct business expenses for what are actually recreational purposes. For example, in a case called Dunham v. Dunham the court added back 100 percent of the amount that the self-employed spouse had tried to claim for gasoline and oil expenses relating to a snowmobile and an airplane.

• By being over-generous in deducting expenses for items that have a dual purpose. For example, in A. (A.) v. A. (C.) the court disallowed certain capital cost allowance deduction in relation to a $60,000 truck and a computer, because they were used by the father (who was a private investigator) for both personal and business-related purposes).

• By hiding behind your accounting professional in justification of various decisions made in coming up with an income amount;

Note the following:

• Just because the deduction is allowed by the Canada Revenue Agency (CRA) does not mean it will be allowed for Guideline support and income-determination purposes.

• On the flip-side, if the deduction clearly disallowed by the CRA, then it will also be disallowed under the Guidelines when calculating income.

• The fact that a deduction may have survived a CRA audit does not mean that for child support purposes the deductions will not be added back by the court if warranted. Family courts have a great deal of discretion in this area.

For the full text of the decisions, see:

Dunham v. Dunham, 1998 CarswellOnt 4571 (Ont. Gen. Div.)

A. (A.) v. A. (C.), 2012 CarswellBC 3001 (B.C. S.C.)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offerig 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

Mother’s Childcare Budget Shows £10,555 a Year for Wine – Is That Too Extravagant?

wine

Mother’s Childcare Budget Shows £10,555 a Year for Wine – Is That Too Extravagant?

Many of us like to have a nice glass of wine once in a while. But is an annual wine budget of £10,555 too much to include as a line item on a childcare budget, in the context of a separation by parents?

This was one of the questions in a high-profile U.K. case involving a wealthy hedge fund manager and his common-law wife. The couple had a 7-year old child together, and the man – who had assets of around £660 million – had been paying the mother about £12,000 per month support, which was actually more than the £8,000 per month had been agreed under a 2009 separation agreement.

In this context, the mother had asked the court to declare that agreement invalid, in favour of forcing the man to pay the higher monthly support amounts for both her and the child, at least on an interim basis until there could be a final hearing. To this end, she submitted a suggested budget to show her childcare expenses, which included “Housekeeper’s funds” and “Petty case funds” that totaled £31,200, and four different categories of budget for clothes and toys for the child, which totaled about £20,000.

Reflecting on the last point, the court stated:

That seems to me to be a great deal of money for clothes and toys for the seven-year-old son even of a multimillionaire and, in my approach, I reduce it, although I still allow a significant sum.

The court scrutinized the mother’s proposed level of expenses in detail. On the £5,000 in the mother’s budget for swimming lessons – which was in addition to the £6,000 already contained in the budget for the child’s “Leisure/hobbies” – the court wrote:

Separately, there is an item of £5,000 for “Swimming lessons (cash).” This seems an excessive amount for a seven-year-old boy who can already, as I was told, swim. It seems to pertain partly to paying for some swimming instructor to attend some private swimming pool that the mother chooses to use. I reduce the amount allowable for swimming lessons.

Finally, the court considered a large figured that had been included in the mother’s annual budget for wine.:

There is a claim of £10,555 per annum for “Wine”. The child is aged seven and does not consume the wine. This appears to be a mixture of wine supplied by the mother to the parents of children when they visit her home, and some general entertaining. In her statement, she showed that she was allowing an average of £50 per bottle for the wine. It seems to me that in the context of a claim under Schedule 1 to the Children Act , which must be for the maintenance of the child, I should not allow as high a figure as £10,500 per annum for wine, although I do, in my approach, still allow a significant figure for wine.

The court went on to slash many other items in the mother’s budget, though still allowed her what many would consider a lavish amount for daily living. In the end, it arrived at a final figure of £8,000 per month owing from the father to the mother for interim support, with a final figure – and the validity of the 2009 agreement – to be determined at a later trial. However, the court expressed some disdain that the parties would go to court for what ended up being a relatively minor difference in funding levels. As the court explained:

Just pausing there, we have a difference, therefore, between these two parties at this hearing of £60,000 in a full year. To most people, £60,000 is a great deal of money. I do comment that to these parties, and to this father, £60,000 over a full year is little more than small change in his pocket. As this case will presumably be finally decided well within a year, the actual amount effectively in issue today has come down to somewhere considerably less than £60,000, and I have to say that I do not find it very edifying that people in this financial bracket should be taking up a day of court time over a sum which to them, though not to others, is objectively so small.

As the saying goes: “More money, more problems.”chris

For the full text of this U.K. decision, see:

Antonio v. Rokos, [2016] EWHC 520 (Fam); Case No. ZCI5P04051, February 15, 2016, High Court of Justice Family Division

 

Is the Our Definition of “Spouse” Evolving?

spouse

Is the Our Definition of “Spouse” Evolving?

In Ontario, the Family Law Act (FLA) is the key legislation governing the “the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the [marriage] partnership”, as the FLA’s preamble expressly states. For the purpose of that exercise, the term “spouse” is defined in section 1 to include two persons who are actually legally married, or who in good faith entered into a marriage that turned out to be void or voidable. (And note that the definition is not limited to male-and-female partnerships only; the definition expressly uses the gender-neutral “two persons”).

However, the FLA also broadens the definition of “spouse” for certain purposes, most notably for determining support obligations between ex-spouses and between former partners in common-law relationships. In section 29 of the FLA the term “spouse” is expanded to encompass two unmarried persons who a) have cohabited for no less than three years, or b) are “in a relationship of some permanence” and have a child together.

That last term – a “relationship of some permanence” – might be somewhat difficult to quantify, and courts sometimes struggle to put their collective judicial finger on where the line is to be drawn.

In an interesting recent decision from the British Columbia Court of Appeal called Weber v. Leclerc, the Court grappled with the meaning to be given to the analogous term – namely cohabiting in a “marriage-like relationship” – that is found in the equivalent family law legislation in the province. In particular, the Court considered the effect that societal norms may have on precisely where that fine line may be drawn.

The court had been asked to determine whether two unmarried former partners, who happened to keep respective finances separate throughout their now-ended union, nonetheless met the legislative criterion for a “marriage-like” relationship. In this context the B.C. Court of Appeal observed:

“Marriage-Like Relationship”

The parties have referred to three decisions of this Court that have addressed the scope of definitions of “spouse” similar to the one in the FLA … It is noteworthy that the cases span a considerable period of time – a significant factor in terms of an expression like “marriage-like relationship”. Social norms surrounding marriage have changed considerably over the years, and it should not be surprising that, along with those changes, evaluations of what relationships are “marriage-like” have also evolved.

Later in the judgment, the Court added:

[The woman] argues that approaches like that taken in [those prior Court decisions] are nothing more than “checklists”, and do not adequately analyse the nature of a relationship. While I agree that a checklist approach is not appropriate, it is my view that cases like [those] are helpful as indicators of the sorts of behaviour that society, at a given point in time, associates with a marital relationship.

With that said, the Appeal Court did acknowledge that the parties’ intentions – particularly the expectation of a long, indeterminate relationship – may also be important when assessing whether the “marriage-like” standard has been met in any given case. However, it also stressed that mere intentions are not enough; rather they must be coupled with objective evidence of the parties’ lifestyle and interacts.

Should family-legislation concepts and terms such as “a marriage-like relationship” or “a relationship of some permanence” be influenced by social norms and expectations? What are your thoughts?

For the full text of the decision, see:

Weber v. Leclerc, 2015 BCCA 492

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