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Posts tagged ‘Costs’

Busted! Court Relies on Sworn Financial Statements from First Divorce to Value Assets During Second One

Busted! Court Relies on Sworn Financial Statements from First Divorce to Value Assets During Second One

The husband was a 46-year-old, recently-separated businessman who met the 26-year-old wife when she was a junior at the law firm he used for his business matters and litigation. After they moved in together and he got a divorce from his first marriage, the wife left her job at the law firm to take care of the husband’s litigation and related corporate affairs.

They were married for 14 years before they separated, and had three children.

When they split up, the husband forwarded a newly-prepared separation agreement for the wife’s signature. She signed without obtaining independent legal representation.  She was comfortable doing so because she believed that the husband had provided full disclosure, and she trusted his assessment since he had considerable experience valuing businesses.

Using the business valuation information provided by the husband, the separation agreement would have called for the wife to pay the husband just under $1 million as an equalization payment; however, it also provided that the husband would agree to forgo her having to pay that amount.

Sounds like a good deal, right?

However, the wife slowly realized afterwards that the husband had misled her. Rather than her owe him money in equalization (which he waived), the proper calculation was entirely different because he had greatly overstated the value of the corporate assets that he brought into the relationship, most notably the value of his company at the date of marriage. This would inflate the amount she was adjudged to owe him way of an equalization.

She successfully applied to the court to set aside the separation agreement, on the basis that the husband had not given full financial disclosure.  The trial judge adjusted the calculation accordingly.

The husband appealed.  In support of his business valuation figures, he put forth the evidence of an expert, who attested to the fact that the value of the business on the marriage date was over $7 million.  However, the Appeal Court concluded that the expert was partial to the husband and lacked independence, and had given an inflated figure that could not be trusted.

Instead, the court relied on some “smoking gun” evidence:  the sworn financial statements the husband had filed in his first divorce, which showed that he had essentially brought no assets of value into this second marriage to the wife.  The trial judge had relied on this evidence as well in setting the separation agreement aside, and the Appeal Court confirmed that there was nothing improper about the trial judge having done so, even if it was to the husband’s detriment.

In the end, the husband was found to have intentionally misrepresented the value of his corporate assets, by claiming that they were worth $6 million more than their actual (court-determined) value.

The Appeal Court upheld the trial judge’s decision to set aside the separation agreement, and went on to calculate the proper equalization amounts using the true valuation of the husband’s assets.

For the full text of the decision, see:

       Virc v. Blair

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

How Not to Act in Family Litigation

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How Not to Act in Family Litigation

Court cases involving other people can be highly instructive: – they provide a good (and free) lesson on the kinds of behaviour and conduct that attracts the courts’ reproach.

Using some recent Ontario family cases as a guide, here are three tips on what not to do in the course of your own family dispute and litigation:

1) Take an unreasonable position or bring unnecessary proceedings. In a case called J.A.B. v. R.J.S., the court found that the husband had persisted in making unreasonable and false allegations against the wife and her new partner, and had brought a court motion that turned out to be completely unnecessary and a waste of all parties’ time and money. In pointing out that “family law litigants are responsible for an accountable for the positions they take in the litigation”, the court took an exceptional step and ordered substantial indemnity costs against the husband.

2) Concoct an elaborate scheme to avoid spousal support and equalization. In Radlo v. Radlo, the court concluded that the husband had devised a detailed, completely unbelievable story to try to explain why certain business dealings took place and complicated transactions were made. The court found that they were all part of a scheme to take funds out of the wife’s legitimate reach, and imposed hefty costs on the husband. The court wrote:

The test in a civil case is on the balance of probabilities. I find on the balance of probabilities, based on the email evidence presented, that Mr. Radlo presented a nefarious scheme to deceive Ms. Radlo and the court with respect to the $353,600.00 and the $80,000.00. Thre preposterous explanations given by Mr. Radlo are not believable.

3) Unilaterally cut back on your support payments. In McSkimming v. Schmuck, the husband decided to reduce the spousal support payments that he had been ordered by an arbitrator to pay. After a successful motion by the wife, at least one settlement offer, the setting of legal costs, and a subsequent appeal, the court held the husband liable for the wife’s full legal costs of almost $17,000. He had taken the law into his own hands, and had deliberately inflicted harm on the wife both emotionally and financially.

For the full text of the decisions, see:

J.A.B. v. R.J.S., 2013 ONSC 7258, [2013] O.J. No. 5332, Price J. (Ont. S.C.J.)

Radlo v. Radlo, (2013), 2013 ONSC 7329

McSkimming v. Schmuck (2014), 2014 CarswellOnt 8435, Moore J. (Ont. 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 www.RussellAlexander.com.

A Couple of Cases on Costs

A Couple of Cases on Costs

In todays’ Blog we briefly touch on two cases that concern costs awards in family law litigation.  As you may already know, costs orders are made by a court in accordance with its overall discretion; however, they are often – though not always – awarded to the successful party at trial or on a motion.  Essentially, they are a means for having the unsuccessful party pay for at least some of the litigation costs incurred by the party who emerged victorious in court.

With that said, here are a couple of interesting cost-related questions:  

1) Who gets costs if both parties disobey the court?

In Vickers v. Vickers, the court as part of a divorce action ordered the spouses to agree upon and retain: a) a “certified real estate valuator” to appraise their matrimonial home, and b) a real estate agent to sell it.  The court also ordered the house to be listed for sale by a certain date.  

However, the spouses deliberately did not comply with the court’s order: instead they mutually agreed to dispense with the services (and cost) of a “certified real estate valuator,” since they felt that they could obtain a valuation from the experienced real estate agent(s) they were planning to hire.  

Unfortunately, this plan to use real estate agents did not play out as intended; after obtaining several different assessments the parties were unable to agree on a single valuation figure.   Indeed, a full year after the court’s order, the house had still not been listed.   The matter came back before the court; after devising a formal plan to eliminate the valuation stalemate, the court addressed the costs question as follows:

Neither party complied diligently with the Order, with the result that the disposition of the home and its contents and, therefore, the resolution of the property issues in the proceeding, has been delayed.  …

d)  Costs

This motion was made necessary, in large part, by both parties’ non-compliance with the Order dated January 7, 2011.  In these circumstances, it is appropriate that each party bear his or her own costs of the motion.

2) Must a party make an offer that he or she knows will be rejected?

Next, a case called Mudronja v. Mudronja deals with an interesting question:   Is a party to family litigation obliged to make a formal offer to the other party, even if he or she knows that the offer will be turned down?  
The answer, apparently, is “yes”.  Moreover, in these kinds of circumstances the fact that a party made a sure-to-be-rejected offer is still a prime factor in awarding costs.  The court in this case wrote:

There were no Offers to Settle made in connection with these motions.  Eddy says he did not make an Offer because the relief sought by the Respondent was so clearly unreasonable that no Offer to Settle other than a consent to dismissal would have made any sense, and, in addition, would have been an Offer that would never have been accepted.

With all due respect, the fact that an Offer might not be accepted is no reason not to make an Offer.  A reasonable Offer to Settle is a major consideration when deciding whether costs are awarded and if so, the scale of a costs award.

For the full text of the decisions, see:

Vickers v. Vickers, 2012 ONSC 973 (amending 2012 ONSC 847)  http://canlii.ca/t/fpvhn

Mudronja v. Mudronja, 2012 ONSC 3592  http://canlii.ca/t/frr0z

Additional reasons to:

Mudronja v. Mudronja, 2012 ONSC 2655  http://canlii.ca/t/fr5qn

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 Who Needlessly Ran Up Litigation Costs Ordered to Pay His Own Way

Father Who Needlessly Ran Up Litigation Costs Ordered to Pay His Own Way

This is a case about legal costs – and how not to incur them unnecessarily in family litigation, or else you may not get reimbursed for them even if you are the successful party.

In Czegledy-Nagy v. Seirli, the couple – both highly-educated academics – had met in South Africa in 2002, married two years later, and had three children (triplets) together.   They separated in 2011, two years after they had moved back to Canada.  The separation was punctuated by the mother suddenly and secretly moving the children to a rental apartment, which the court called the mother’s “selfish action to remove the children from their home and their father.”    (Note:  The court later penalized the mother for it, by depriving her of two months’ spousal support.)

In response to that conduct – and to avoid allowing the mother to establish a status quo on which a later court-imposed custody order might be predicated – the father brought an emergency motion for temporary custody, in which he was successful.   This was followed by another formal court order that they share custody of the children on a weekly basis.

Normally, the rule in family litigation is that the “losing” party is obliged to pay the legal costs of the successful party.   The father accordingly asked the court to order the mother to pay his legal costs for the motion he had been forced to bring.

In this case, however, the father had spent a whopping $65,000 just to obtain the temporary order, by way of two motions that the court adjudged as being “not particularly complex or difficult”.

In assessing the situation, the court made the following general comments about these kinds of situations in which one party runs up legal costs, essentially at the expense of the other:

Although I have examined both lawyers’ Costs Outlines with great interest, I do not intend to analyze each in detail other than to make the following general observations:

a)         If a litigant commences an action in his/her own community, it ill behooves him/her to retain counsel in the largest metropolitan center in the Province (where fees are subsequently higher per hour), than where the litigation is situate, then to ask that the court impose those higher costs and travel expenses upon the opposite party should he/she lose the motion.

b)        While I recognize that modern legal practice has available to a client a team of legal staff, each contributing something to a motion, senior counsel need not make her own arrangements to have documents served, attend from Toronto to Kitchener to file those documents with the Court, nor should she need to prepare charts or document briefs at her hourly rate of almost $600 per hour and expect a losing party to reimburse her client for those efforts.

A losing litigant should also not be expected to pay for that senior counsel supervising a junior counsel’s work or for the duplication of various lawyers “reviewing & revising” work already prepared (and billed to the client) by other lawyers or senior law clerks.  For example, in this case three lawyers involved themselves in this rather simple motion (with many heads of relief, I grant) drafting, reviewing and revising each other’s work for a total of well over 40 hours plus over six hours for “research”.  The cost of all that attention to Prof. Czegledy-Nagy is almost $15,000.  On top of that counsel has charged Prof. Czegledy-Nagy over eight hours of preparation on the day before and day of the motion plus 10.3 hours, including travel, on the day of the motion.  That effort alone cost the Applicant almost $11,000.  Added to that cost is the cost of the law clerk that attended the motion (to drive and take notes at the motion I presume) at $175/hr for an additional expense of just over $1,800 for the day.

Professor Czegledy-Nagy may hire as many lawyers as he wishes to have on his team, from whichever city he wants them to come from.  That is his prerogative. … However, no litigant should expect to drive up the cost of litigation in that manner for his/her own satisfaction or his/her need for attention and then to have the court saddle the other litigant with that bill.

There are many very competent local counsel (some are even LSUC family law “specialists”) in this Region.  The need to import another from afar is unnecessarily and indulgent.

In any event, the Court need only consider as one factor the amount that a successful litigant has expended to achieve success.  Some litigants need more “hand-holding” than others and some counsel bill heavily for the slightest effort where others do not. …

With this in mind, the question for the court was whether the father was reasonable in running up $65,000 in legal costs for this temporary custody order, and whether the mother could “possibly anticipate an order for costs against her even approaching such a breathtaking quantum were she to lose those motions.”

It was true that the father “won” the more central issues and was technically the successful party on the litigation.   It was also true that the mother had persisted in presenting and pursuing scandalous allegations against the father in her pleadings, and essentially exacerbated an already traumatic separation in a most inappropriate manner.

Ultimately, however, the court concluded that the mother “could not possibly anticipate being held responsible for the gargantuan costs order as sought, especially when her counsel charged her only $15,000 for those same services.”    It accordingly declined to award the father the full $65,000 in costs, and instead ordered the mother to pay $9,500 of them.

Czegledy-Nagv. y Seirli (2012), 2012 ONSC 119 (S.C.J); additional reasons to (2011), 2011 ONSC 6488 (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  www.RussellAlexander.com

 

 

Wife’s Pleadings Struck in Light of Continuing Contempt of Court

Wife’s Pleadings Struck in Light of Continuing Contempt of Court

I a recent case heard by the Ontario Superior Court of Justice, the parties had been embroiled in ongoing divorce litigation.   The wife – who was a doctor – had failed to comply with court-ordered disclosure, in that she failed to produce certain information required and requested by the husband, such as corporate tax returns, notices of assessment, and lease agreements.  She had also failed to comply with several court orders to pay court costs, which totalled about $12,500.

The wife was found in contempt of court in August of 2011, but was given several opportunities to purge that contempt by making the ordered payments by a certain date.   She continued to neglect or resist paying, and asked for hearings on the matter to be rescheduled.   However, she failed to show up at those rescheduled hearings, claiming she was in a depressive state.  She produced a letter from her family physician, indicating that that she was under extreme mental stress and depressed, and advising that she should take time off from all legal issues.

The court ordered her to produce additional medical documentation by a stipulated date, which she also failed to do.  The court re-scheduled a few additional hearing dates, but she again failed to appear.

Eventually, the husband brought a motion to strike out the wife’s pleadings, on the basis that they should not be allowed to stand because she was in contempt, because she had failed to purge that contempt, and had failed to pay newer outstanding costs orders as well.

In response, the wife’s counsel submitted that while her compliance has “not been perfect”, this was not a case of deliberate non-compliance with the court’s orders.

The court found for the husband:  the wife’s pleadings were struck out.   Although the letter from the wife’s doctor explained her inability to attend the various hearings, the court found that it did not explain her unwillingness or inability to comply with the assorted orders to pay.  In the circumstances the court concluded:

“There comes a point at which the court cannot give any further indulgences, in the interests of fairness to the other side and the administration of justice.  … If [the wife] Dr. Nashid wishes to participate in the litigation, the onus must now be on her to take affirmative steps.”

Certainly, an order to strike the wife’s pleadings was an extreme remedy, but the court was left with no alternative in light of the wife’s continuing non-compliance, together with the lack of any evidence or indication that she ever intended to comply with the court orders in the near future.

Pleadings were accordingly struck, and husband had leave to proceed with undefended trial.  Also, additional costs orders were imposed on the wife, in order to compensate the husband for having to appear at “five attendances instead of one”, a situation that the court concluded was wholly attributable to the wife.  This was despite the wife’s claim that she was unable to pay; however, aside from one e-mail from her bank confirming that her line of credit was in arrears of about $9,000, she offered no other proof of impecuniosity.  Once again, the court found that the wife had failed to satisfy the onus on her to supply evidence in her favour in this regard.

For the full-text of the decision, see:

Nashid v. Michael, 2012 ONSC 675, additional reasons to 2011 ONSC 4713  http://canlii.ca/t/fpvks

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

 

 

A “Day in Court” Can be Costly for Persistent Family Litigants

A “Day in Court” Can be Costly for Persistent Family Litigants

In our last blog  No Need to Disclose Affair When Negotiating Separation Agreements  we talked about the decision in D’Andrade v. Schrage, where the court concluded that a spouse’s failure during negotiations to disclose the existence of an extra-marital affair did not automatically invalidate the resulting separation agreement reached with the other spouse.

The case is an interesting one, and settles an important legal point for all separating spouses in Ontario.     But whatever the legal merits may be, the fact remains that – as with all litigation – the individual spouses in the matter each expended a good deal of money getting the matter heard.  

Therefore, after rendering its decision on the merits of the case, the court also had to consider how to allocate responsibility for the court costs of the 8-day trial, specifically since the husband had insisted on proceeding to trial but was unsuccessful.  

The resulting costs decision in in D’Andrade v. Schrage is a good reminder that having a “day in court” can be very costly, especially for a persistent-but-unsuccessful party.

First of all, the court’s overriding assessment was that this was a matter that should not have proceeded to trial at all.  The husband had persistently and steadfastly refused to settle throughout, and in fact had continued to heap additional claims against the wife and had increased her exposure at trial.   In the end, after an 8-day trial which was the culmination of three years of litigation, the wife was awarded $250,000 as her support entitlement together with pre-judgment interest.    Also, as the unsuccessful party, the husband was also obliged to pay the wife’s legal costs, amounting to more than $100,000 plus disbursements and taxes that she had spent in bringing the matter to court.  

The husband resisted paying this $100,000 costs award, claiming that they were “excessive” and “unreasonable”.    However, the court reviewed the wife’s detailed bill of costs and found nothing reflected in them that suggested they were grossly excessive.  Instead, the wife had properly retained competent counsel, and the steps taken by him on her behalf were necessary in defending the wife against the husband’s numerous claims.

More importantly, the court also considered the fact that 1.5 years before trial, the wife had submitted an offer to settle for $225,000 that would amount to full satisfaction of her claim, and which remained valid until the day the trial commenced.    The wife’s offer was more favourable than the $250,000 plus interest that she ultimately received a year-and-a-half later.

This triggered a consideration of the Family Law Rules, which (among other things) are designed to encourage settlement.  Those Rules specifically set out the basic principle that if a party chooses to pursue litigation despite a reasonable offer to settle, they do so knowing that will have to pay their own lawyers, but also the lawyers of their spouses as well.   In particular, as was the case here, if one spouse makes an offer to settle that is more favourable to the losing party that the result that is obtained at trial is entitled to full recovery costs from the date of the offer.

The court found no reason to deviate from that Rule in this case.   The legal costs claimed by the wife’s lawyers were within the scope of what the husband should have expected to pay in light of his lack of success at trial.   Indeed, in awarding the full amount, the court found it was not enough for the husband to merely suggest that the costs were excessive – the court characterized that as being “no more than an attack in the air”.  

Furthermore, the court emphasized that the spouse who challenges a costs award should come to court with clean hands:  if he or she forced the other to proceed to trial and then – after an unsuccessful outcome – argues that the costs incurred by the successful spouse were excessive and unreasonable will not be accorded sympathy by the courts.   Indeed, the court observed that the husband in this case:

“had three lawyers representing him at the trial, an indicator that he was prepared to spare no expense to defeat [the wife’s] claims and to advance his own. It would be unreasonable for him to have expected [the wife] to do less.”

The wife was awarded her full legal costs of almost $120,000.

For the full-text of the costs decision, see: D’Andrade v. Schrage, 2011 ONSC 2144 (CanLII)) http://canlii.ca/s/6knav

Home / Life / Auto – Why Not “Divorce Insurance” Too?

Home / Life / Auto – Why Not “Divorce Insurance” Too?

People buy insurance to protect their investment in their homes and cottages, cars, valuable personal items, and even to provide for their dependents in the event of their untimely death.

So why shouldn’t someone be able to buy insurance to compensate them in the event of divorce? After all, almost 40 percent of Canadian marriages end in divorce, according to Statistics Canada.

Although not yet available in Canada, a U.S. company called SafeGuard Corp. offers the world’s first “divorce insurance” product. It is called “WedLock”, and insures against divorce and provides $1,250 in coverage in exchange for a monthly premium of $16.

As with all insurance, rules and conditions apply: the insured must have been married for at least four years (although that can be reduced to three years with premiums adjusted accordingly.) Once the insured has met that four-year threshold, WedLock automatically adds $250 in coverage for every additional year the insured stays married.

Upon proof of divorce, WedLock will pay out a lump-sum cheque for the amount of divorce insurance purchased. Coverage includes the cost of retaining a divorce lawyer, child care, counselling, moving, and furnishing/setting up a new home.

SafeGuard’s website provides “Divorce Probability” and “Divorce Costs” calculators, to allow potential insureds to determine how much WedLock coverage they need. As further incentive, the site also provides an eye-opening live divorce “counter” (“There have been 401,684 divorces in the U.S. so far this year.”), and helpfully compares other insurable risks to the likelihood of divorce in the U.S.:

“What are the odds of your house burning down for example? About 1 in 300 in any given year if you go by statistics of annual house fires versus the number of individual households here in the US. A little higher for flood damage over the life of your mortgage, that’s 1 in 60. And actuaries using standard mortality tables peg the odds of you dying over any 20 years in your lifetime at 8 out of 1000 (or 1 in 125). …

Now let’s look at the odds of divorce. The odds that you’ll divorce if you’re on your first marriage are about 1 out of 3 (32%). Compare that to the odds that you’ll be in a serious car accident in the next decade – 1 in 4 according to the US Census 2010 Statistical Abstract. And auto insurance is mandatory.

For people already on their second marriage? Their odds of marriage failure are 2 out of 3 (67%). Third marriages and beyond are almost 3 out of 4 (72% fail).”

While the statistics are different in Canada, the increasing propensity for marriages to end in divorce is a reality in this country as well. Although the WedLock product may project a bleak outlook on marriage, pre-nuptial agreements – which have been similarly criticized for being “unromantic” – now have widespread use and merely provide prudent foresight and financial protection for divorcing parties, if and when it’s needed. (And in fact, if divorce insurance becomes popular in Canada, it could conceivably be one of the covered by a domestic contract).

Divorce insurance is not yet available in Canada.  However, our lawyers and staff at Russell Alexander Family Lawyers can provide customized advice on the repercussions of divorce, including the potential costs.  Visit us at www.russellalexander.com

Stealing Grandmother’s Quilt: A Lesson in How Not to Behave Upon Separation

Stealing Grandmother’s Quilt: A Lesson in How Not to Behave Upon Separation

It’s probably not all that uncommon a scenario, but a recent decision from the Ontario court provides a handy illustration of how not to conduct yourself when you’ve decided to separate from your spouse.

In this case, the husband and wife separated in 2006 after more than 20 years of marriage. At that time – and despite having formerly held jobs in the computer field – both were unemployed at the time. They accordingly decided to continue living under the same roof for about a year until the husband moved out in August of 2007. At that point, their three children were aged 19, 18 and 12.

The husband chose to move out during the August 2007 long weekend, when the wife and children were away. Without giving the wife any advanced warning – and with the assistance of several friends he brought along for the purpose – he removed a significant amount of furniture and other items from the home they shared. These included a dining room set, the master bedroom set, two leather sofas, two coffee tables, a mirror over the fireplace, lamps, a mirror in a washroom, at least two television sets (including the large 40-inch one from the family room), the patio furniture, the snowblower, and various small kitchen appliances. He also removed the family videos and photographs, as well as certain keepsakes belonging to the wife, including a quilt that had been made by her mother who was now deceased. His explanation for removing this last item was that he “liked the quilt very much” and thought it would be “safer with him.”

The husband also broke into a locked closet in the master bedroom that the wife alone had been occupying since separation, and removed all of her financial documents, including bank account records, records relating to properties in Greece that belonged to her extended family.

The wife and children returned from their long weekend away to find their home half-empty. It was only after the court issued an initial emergency order that the father eventually returned some, but not all, of the family mementos. Among other things, he persisted in keeping certain school certificates, birth certificates, and some personal possessions belonging to the deceased grandmother.

The wife applied to the court to have these items returned, as part of a broader application for various relief which included an equalization payment, the division of the net proceeds of the sale of the home, determining who was responsible for paying certain alleged debts, and child support.

The court was decisive: it ordered the husband to immediately return all family videotapes, birth certificates, school records, photographs of the deceased grandmother. And of course the quilt, too.

And because the husband had the opportunity to remove the furniture items he wanted from the matrimonial home, and because the wife did not ask for them back, the court assumed he had whatever personal possessions and household items that were of importance to him, and made no further order in that regard. However, the court noted that the youngest daughter was particularly devastated by the father’s conduct in taking the family mementos, since she felt that her past had been stolen from her. It also observed that the husband had “paid dearly” for his behaviour: it had been the “last straw” for the children, who have steadfastly refused to have any contact with the father since that time.

Turning next to the determination of how child support would be allocated amongst the parents, the court was equally critical of the husband’s lacklustre attempts at finding employment. The court wrote:

“Mr. Clark provided minimal evidence of the efforts he is taking to obtain employment. He has registered with an employment office in Gatineau and has received five leads. When he has pursued these inquiries – all relating to positions in Quebec – he has been asked if he speaks French. He does not speak French well enough to work in the language, but says he is willing to learn the language. Considering his age and his child support obligations, I do not consider it reasonable for Mr. Clark to focus his employment search only in Gatineau in environments where French, quite understandably, would have to be spoken and it could take Mr. Clark years to become functionally bilingual. Mr. Clark provided no evidence as to why he is not exploring the Ottawa and Eastern Ontario job market. Mr. Clark appears content to collect employment insurance for the time being.”

The court pointed out that the husband was under a legal obligation to obtain suitable alternative employment so that he could contribute to the support of his children, and to keep the wife informed of his efforts in that regard. It was not the wife’s responsibility to constantly ask him if there have been any changes. After considering his education and prospects for employment, the court gave the husband a deadline: if by a specified date the husband’s income from all sources was less than $50,000, the court would nonetheless assume that he was earning that same amount, and would calculate child support accordingly. In other words, the husband would be liable to pay child support based on the assumption he was earning $50,000, even if he was earning less.

In a later proceeding, as part of a determination of liability for the costs for bringing the matter to court, the court found that the husband’s removal of the wife’s personal possessions should never have occurred, and that he should have returned them without her having to obtain a court order. It said:

“This case got off to a very bad start due in great measure to Mr. Clark’s unreasonable behaviour in (1) moving furniture out of the family home while Ms. Clark and the children were away for a weekend, (2) breaking into Ms. Clark’s locked closet and taking Ms. Clark’s financial records, and (3) taking some of Ms. Clark’s personal possessions which were of obvious sentimental value to her. Such behaviour must be discouraged.

Ms. Clark was forced to bring an emergency motion in order to get the return of her documents and possessions. Despite numerous interim orders, I was satisfied at trial that not all items had been returned to Ms. Clark as ordered.”

After taking all factors into account, including whether the parties were successful in other aspects of their respective applications, the court ordered the husband to pay $5,000 in costs to the wife.

For the full text of the decisions, see: Clark v. Clark, 2010 ONSC 3761 (S.C.J.) and Clark v. Clark, 2010 ONSC 4667 (S.C.J.) http://bit.ly/fz2BXT

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