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Posts tagged ‘custody and access’

Can Husband Be Forced to Obtain a Separate Home Appraisal?

beautiful house at sunset

Can Husband Be Forced to Obtain a Separate Home Appraisal?

In a recent case called Kraemer v. Kraemer, the court confirmed two important procedural points relating to property valuation:

  • The divorcing spouse who “owns” or controls an asset has the primary obligation to obtain an accurate valuation of it; and
  • In the event of a dispute as to an asset’s value, each spouse may be obliged to get a separate expert appraisal.

The couple had been married for almost 15 years and had three children.   In the course of their divorce proceedings, they ended up asking the court to help with their disagreement over the proper value of the matrimonial home they previously shared.

The wife had had it formally appraised at $735,000.   In contrast, the husband claimed it was worth $800,000, but offered no evidence to support that figure.  He resisted getting an expert appraisal of his own.

To this last point, the court replied:

Mr. Kraemer takes the position that he cannot be required to value the home and, essentially, the value will be decided when the house is sold. In my view, he is wrong in that position.

Indeed, the husband’s (incorrect) position overlooked the core principles that in Family Law proceedings:

  • Each party just take disclosure “very seriously”, and is duty-bound to provide meaningful disclosure of asset values.
  • Each spouse has an obligation to provide credible, realistic values, including independent valuations – not a “guess” or a “fictional amount”.
  • A failure to provide credible evidence to support a value may result in a less-advantageous value being assigned by the court.

On the issue of which spouse is responsible for obtaining an accurate valuation:  The primary responsibility for establishing an asset’s accurate value on the valuation date lies with the spouse who “owns” or controls it.  This is particularly true if that spouse makes an assertion in his or her filed affidavit about the asset’s value.  The spouse then has the burden of proving the stated value is correct;  this may require the input of an expert.  If the other spouse does not agree to the value proposed, then he or she can respond with a valuation from a different expert entirely.

Having reasoned this way, the court found that the husband in this case was obliged by law to hire his own expert to provide a separate, accurate valuation of the matrimonial home.   The court also declined the husband’s requires to treat the latest valuation as a shared expense;  it noted that the wife had already paid for her own valuation, so the overall fees for both appraisals would effectively be split between them.

For the full text of the decision, see:

Kraemer v. Kraemer, 2019 

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

 

New Supreme Court of Canada Ruling on What Constitutes a “Reasonable Expectation of Privacy”

grey security cameras

New Supreme Court of Canada Ruling on What Constitutes a “Reasonable Expectation of Privacy”

A few years ago we reported on an important development in Ontario privacy law in a case called Jones v. Tsige, where the Ontario Court of Appeal recognized a new cause of action called “intrusion upon seclusion”.  We discussed how this can tie into former spouses’ desires to snoop on each other in a Family Law dispute context.

Recently, another important case – this time from the Supreme Court of Canada – expands on the nature and scope of the privacy rights to which all Canadian citizens are entitled.

In a criminal law case called R. v. Jarvis, the background facts involved a high school English teacher who surreptitiously recorded videos of female students using a camera hidden in a pen.  The recordings were of the students engaging in ordinary, school-related activities, in the common areas of the school.  Most of the videos focused on the students’ faces, upper bodies and breasts.  The students had not consented to being recorded, and were unaware they were being filmed.

In the context of confirming the teacher’s conviction for the criminal offence of voyeurism, the court considered the question of whether the students had a “reasonable expectation of privacy” in this scenario. This was relevant because the offence of voyeurism is defined to be one where a person surreptitiously observes or makes a visual recording of another person for a sexual purpose, when that other person is in circumstances that give rise to such a reasonable privacy expectation.

The Supreme Court in Jarvis noted that “privacy”, as it is ordinarily understood, is not an all-or-nothing concept. The question of whether this teacher’s surreptitious recordings were a breach of the students’ privacy required a review of the entire context in which they were made, and on a number of factors. These included the location, the students’ level of awareness, their relationship with the teacher, the manner in which the recordings were made, their subject-matter, the activity the students were engaged in when the footage was filmed, and any rules, regulations or policies that impacted the use of recordings.

The Court added that the crime of voyeurism was defined to include reference to the “circumstances” that gave rise to a reasonable expectation of privacy.  This suggested that elements of the offence are not governed solely by location, and it can be committed in public spaces, not just private ones.  This definition also allowed courts to take broader account an offender’s use of evolving recording technology, when deciding whether the crime has been committed.

Importantly, the Court stated that in examining privacy expectations, it could reflect on and incorporate the huge body of prior case law under s. 8 of t he Canadian Charter of Rights and Freedoms, which enshrines citizens’ rights against unreasonable search and seizure.  The Court in Jarvis concluded that it:

 … opened the door for the expansive history of s. 8 jurisprudence to inform privacy disputes in all areas of the law…

With that vast body of case law to draw from, the Court concluded that societal perceptions of when privacy can be expected are “informed by our fundamental shared ideals about privacy as well as our everyday experiences.”

Using this framework, the Court concluded that in all the circumstances the teenaged high school students would have had a reasonable expectation that they would not be recorded in the manner they were.  It upheld the teacher’s conviction for voyeurism.

Although Jarvis is a criminal law decision, it will no doubt inform issues around the law of privacy as they arise in other legal contexts, including Family Law disputes.

For the full text of the decisions, see:

Jones v. Tsige, 2012

R v. Jarvis, 2019 

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

Divorce Law 101:  Which Former Spouse Gets the Half-Billion Dollar Yacht?

yacht on water

Divorce Law 101:  Which Former Spouse Gets the Half-Billion Dollar Yacht?

Upon deciding to split up, many couples have to squabble over things like who gets to keep the high-end coffee maker or toaster they received as a wedding gift.  But as divorcing spouses go, it is rare to have to argue over which of them gets the family’s CDN$584 million mega-yacht.

This was the plight of Russian billionaire Farkad Akhmedov and his former wife Tatiana.  As part of their 2016 divorce settlement – which is one of the costliest in the world – Farkad had been ordered by a U.K. court to pay over about 40 percent of his vast fortune to his ex-wife. But the ownership of the 115-metre mega-yacht called “Luna” was still under contention; when Farkad failed to pay Tatiana the CDN$795 million as ordered, she obtained a freezing order from a U.K. court in 2018 that purported to apply to Dubai, where the yacht was docked.  A Dubai court affirmed that the U.K. judgment declaring Tatiana the owner could be enforced.  Local Dubai authorities went ahead and impounded the vessel.

But recently, a Dubai Court of Appeal ruled in Farkad’s favour;  it agreed with his position that the yacht was part of a matrimonial dispute, not a maritime dispute, and that Shariah law should govern the ownership issue. Since the 2016 U.K. order relating to the yacht was ill-founded, the Dubai seizure was also improper.  The Appeal Court added that the Dubai ruling, purporting to find that the U.K. judgment was enforceable in that jurisdiction, was also in error.

It is unlikely that this will be the end of the matter: It is reported that Tatiana intends to resume pursuing her various marriage- and property-related claims in the U.K. courts.  It is also expected that the case will also be forwarded to another Dubai court for a further hearing.

Meanwhile, the mega-yacht is currently still docked in Dubai pending resolution of which of these former spouses is the owner, and under which jurisdiction’s laws.  The yacht is described as having nine decks, two helicopter landing pads, an on-board swimming pool, a mini-submarine, and space for 50 crew.

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: Is looking at their financial documents spying?

Wednesday’s Video Clip: Is looking at their financial documents spying?

If you would normally be able to access their documents in your normal day-to-day routine, this may not constitute spying.

If your spouse has left financial documents around the house or home office, you are allowed to make copies of these statements (as long as these are areas you would normally visit during your day).

However, the court may find that you were spying if you have gone out of your way to find and/or copy your spouse’s documents – even if you believe that they are lying about their finances. Frowned upon actions could include going through your spouse’s purse or briefcase, and in situations like this, you could be liable for “intrusion of seclusion.”

This liability is discussed further in our video “Tempted to Snoop”.

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

Should Court Trust the Expert Opinion of Asset Valuators?

Should Court Trust the Expert Opinion of Asset Valuators?

In the course of making its various determinations in your divorce proceeding, including how to divide up your former home and assets, the judge will usually have to put a dollar-figure on those items.

Naturally, this will not involve the presiding judge actually examining and putting a value that awful antique vase you inherited from Aunt Millie; instead, the judge will receive the input from independent expert valuators.

But how truly “neutral” and “independent” are these valuators, really?

Some Ontario courts have commented on the ostensible – and perhaps questionable – impartiality of such expert valuators.  In Plese v. Herjavec, for example, the court was faced with vastly-different figures offered by each of the valuators hired in a case where the high-net-worth former couple had many assets to divide.  In the course of determining their respective Net Family Property values, the court heard expert evidence on the value of husband’s business interests on valuation day.

The wife’s expert valuator put a mid-point value on the business at $52.5 million, while the husband’s own expert pegged it with a value of just over $24 million, but then discounted that figure further, claiming that the true value was only 90% of that, because of what were called “phantom options”.   There was a similarly large gap in the values given by each expert in connection with the former couple’s matrimonial home.

About the glaring disparity in the figures and the apparent partiality of these valuators, the court said:

The valuators disagreed on both the values of both [the matrimonial home at] High Point Road and [the husband’s business].  In each case, each valuator, supposedly acting entirely independently, suggested values that benefitted the position of the party who had hired him.   Similarly, when it came to expert opinion on [the husband’s] income, [the husband’s] expert, in particular, seemed particularly aligned with [the husband’s] position.   Sadly, this is often the case.

As an aside, the court added that it might be better if the spouses agreed to jointly hire a single trusted expert to provide the court with one conclusive set of valuation amounts:

I have always been tempted to ask valuators whether their opinions would have been the same had the other party retained them.  I have never given in to that temptation, but merely make the observation.   It seems to me that in order to provide the court with truly independent, unbiased and reliable opinions, it would be preferable to require the parties to jointly retain a single expert, or, perhaps, to require the parties to fund an expert who would be retained by the court, at the parties’ expense. 

Indeed, courts will take active steps in this direction, by ordering that the spouses to jointly retain a valuator of their mutual choosing. However, this does not solve the problem of a spouse being unwilling to cooperate with the expert even if he or she helped to choose them.

This was illustrated in recent case called Rezai v. Gibbons, where the court expressly ordered the couple to hire a joint valuator, only to learn that the husband refused to cooperate.  In particular, he failed or refused to provide the valuator with nine key documents that were needed to assess the husband’s income, and in the court’s words this rendered the valuator’s resulting report “virtually useless”.

The court responded by re-apportioning responsibility for valuator’s fees, and requiring the husband to pay the wife’s full share of the $32,000 in fees that the valuator charged for the services.

For the full text of the decisions, see:

Plese v. Herjavec, 2018 

Rezai v. Gibbons, 2019 

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

Divorce Act Changes:  Cutting Out the “Winners” and “Losers”

Divorce Act Changes:  Cutting Out the “Winners” and “Losers”

In a recent Blog we talked about an Ontario Court of Appeal case called M. v. F.,  where Justice Benotto made some observations about the “win/lose” mentality of provincial child custody laws.  Specifically, she noted that:

“For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.”

That call-to-arms by Justice Benotto has finally been heeded by the federal government, in the form of upcoming changes to the Divorce Act. Those amendments, which are found in Bill C-78 but are not yet in force, have an unwieldy title:  “An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act”.

Although these Bill C-78 amendments implement a broad and ambitious range of changes to existing Family legislation, one of the more important ones is to replace the terms “custody” and “access” in the Divorce Act with more neutral terms like “parenting orders” and “contact orders”, respectively.  These newer concepts also give courts an embedded opportunity to give specific directions as to the care of children.

That revised Divorce Act wording also acknowledges the fact that family law academics – and judges like Justice Benotto in the M. v. F. case – have long encouraged this tweak to the terminology.  It eliminates the “winner/loser syndrome” she spoke of, as well as the unproductive mindset that the current custody regime fosters.  By allowing courts to grant orders for “parenting” and “contact” instead, the level of parental conflict will be reduced, and by extension the best interests of children will be promoted.

As yet, there is no specific date announced for the implementation of the Divorce Act changes, but they are expected to be rolled out at some point in 2019.

Is this a promising development in the legislation around custody? Will it work in helping to reduce parental conflict, as hoped?  What are your thoughts?

For a copy of the legislative amendments to the Divorce Act, see here.

M v. F., 2015 

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

“Winner/Loser Syndrome” and Child Custody

“Winner/Loser Syndrome” and Child Custody

It is no secret that the dispute resolution component of the Family Law process can foster a certain competitiveness among its participants.  Sometimes parents and former spouses lose sight of the larger objectives, to focus instead on a “win-at-all-costs” approach to their litigation.

This was the undercurrent in a case called Spry v. Estevez.  The mother wanted sole custody to remain with her, but the father wanted any order except for that one – joint custody, shared parenting, or anything but the one the mother was asking for. As the court put it:

He seeks any arrangement other than one in which Ms. Spry will have sole custody. He asks: “Why is custody, as requested by Ms. Spry, necessary in these circumstances?

The father pointed to comments by the Ontario Court of Appeal in an earlier decision called M. v. F., where Justice Benotto of that Court observed that provincial Family legislation did not require a trial judge to make an order for custody as part of any proceeding;  rather, a judge may grant custody if he or she saw fit.   This permissive, non-mandatory power was a good thing, since it allowed sparring parents to get away from the win/lose mentality and instead focus on the best interests of their children.  As Justice Benotto put it:

For over twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access.” These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

It was therefore open to the trial judge to adopt the “parenting plan” proposed by the assessor without awarding “custody.” It was also in keeping with the well-recognized view that the word “custody” denotes “winner” so consequently the other parent is the “loser” and this syndrome is not in the best interests of the child.

After reflecting on this passage from the M. v. F. case, the court in Spry v. Estevez agreed that the legislation did not require a judge to make a custody order in every situation.   But it took a more pragmatic approach to the question of whether a “winner”/ “loser” mentality could really be avoided in Family Law cases:

I agree with [Judge] Benotto’s comments; however, the use of terms is for the parties to overcome if they proceed to trial. Lawyers, mediators, conference judges and all others in the family law system should make every effort to avoid custody litigation. By the time it comes to a trial, however, on the basis of positions taken and decisions made, there will be winners and losers. Given the narrow issues that I am asked to answer, if [the father] is successful on his view of the issues, he will be the “winner”, at least for the purposes of costs at the end of the trial.

If the “winner” gloats and attempts to abuse the other in some fashion based on the trial judge’s decision, there will, of course, continue to be losers – and likely more litigation. If the “loser” fails to accept the determination of the trial judge and fails to makes the best of the new terms in the best interests of the children, there will continue to be losers. That is for the parties to determine. It seems to me that a trial judge can only hope that his or her decision is correct and is presented to the litigants in a fashion that is understandable and acceptable the extent that it can be. It is not for the trial judge to do something other than to apply the law to the facts as found simply because someone may take it badly.

Should the embedded notions of “winning” and “losing” be actively removed from the Family Law regime?  Would this make the process better?

What are your thoughts?

Spry v Esteves, 2016

M v. F., 2015 

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: What if my child does not want to visit their other parent? Do I have to force them?

Wednesday’s Video Clip: What if my child does not want to visit their other parent? Do I have to force them?

It is difficult to feel as though you are forcing your child to visit their parent if they do not want to. However, if your partner has court ordered access rights, you are responsible to ensure that they attend their visit. The court looks poorly on parents who do not facilitate a relationship between a child and their parent. Your responsibility to foster this relationship applies even if your child has special plans or is sick during a scheduled access time.

Stopping access between your child and their parent is only permitted in very limited circumstances; such as if you fear your partner is harming your child. In these situations, you may have the obligation to report this harm to the Children’s Aid Society. In order to stop access altogether, you will need to go to court to change the access arrangements. If you are concerned about access between your child and their parent, it is always advisable to speak to a family lawyer to learn more about your rights as a parent.

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