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Posts tagged ‘family law rules’

Thinking of Snooping on Spouse’s Email? Read This First

snooping

Thinking of Snooping on Spouse’s Email? Read This First

If you are involved in a divorce or separation, you may still have access to your spouse’s personal e-mails, and it may be tempting to read them. But that is precisely what got a husband in trouble with the court in a case called Golchoobian v. Vaghei.

The former couple, who were now involved in divorce proceedings, still owned a clinic together and both continued to work there pending full resolution of their legal issues. The husband was caught on the clinic’s security cameras using the reception-area computer to access his wife’s personal e-mail. He was also heard in an audio recording telling someone else certain information about the wife that he could only have known by looking at her e-mails.

At least one of those e-mails had been written by the wife to her lawyer, and this gave rise to a legal issue about whether by accessing them the husband had deliberately violated her solicitor-client privilege. In other words, the wife had justifiable concerns that the husband had gained access to sensitive and private information contained in hundreds of emails to and from her lawyer, which would reveal her litigation strategy in the divorce case against him.

As a threshold determination, the court held that the e-mail in question involved the wife asking for (and the lawyer giving) legal advice that was intended to be confidential. It was therefore subject to solicitor-client privilege, which is a fundamental aspect of the Canadian legal system designed to preserve the confidentiality of information passing between a client and his or her lawyer.

Next, the court did not hesitate to find that the husband deliberately accessed his wife’s personal e-mails and that his explanation to the contrary (that he had come across them while looking at business e-mails for the clinic) were simply not truthful. This was a deliberate breach of the wife’s solicitor-client privilege on the husband’s part, coupled with lies to try to cover up his conduct, and deserved significant court-imposed sanctions.

Although the court stopped short of imposing a hefty fine or striking out the husband’s court pleadings altogether, it ordered him to pay the wife’s full costs of the motion she was forced to bring because of his misconduct. The court also ordered the husband to provide an Affidavit confirming what documents he obtained and what he had done with them, and required him to give an undertaking to the court that he will not repeat the offensive behaviour.

Finally, the court also warned the husband that:

• He must be vigilant to observe the wife’s right to solicitor-client privilege;

• He must comply with the Family Law Rules, the Rules of Civil Procedure and any orders or judgments;

• He will be exposed to serious consequences should he be found to violate those Rules, judgments or orders;

• Future transgressions would attract more serious consequences, including striking his pleadings;

• The consequence of his conduct would “remain a stigma” throughout the remainder of the proceedings.

For the full text of the decision, see:

Golchoobian v. Vaghei, 2015 ONSC 1840 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

5 Things That Make the Matrimonial Home Unique – Part 2

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5 Things That Make the Matrimonial Home Unique – Part 2

I have written recently about how in Ontario it’s actually possible to have more than one matrimonial home. That followed on a more general post written some time ago about the matrimonial home’s unique nature under Ontario family law.

It’s never a bad time to revisit the specific elements that make the matrimonial home special, this time with a focus on the court’s right to make Orders in connection with it.

1) Special status. The matrimonial home has special “protected” status under Ontario law. As such, there are certain things that spouses can and cannot do. Most notably, one spouse is not allowed to unilaterally do any of the following, without the other spouse’s consent:

• Lock the other spouse out of the matrimonial home;

• Sell the home;

• Mortgage or re-mortgage the home.

2) Court can make Orders. Depending on the nature and objective of the family litigation, an Ontario court is entitled to make an Orders that can affect your spousal rights to the matrimonial home. The court’s powers in this regard arise under the authority granted to it pursuant to the Ontario Family Law Act, the Family Law Rules, and the Courts of Justice Act.

3) Scope and nature of court Orders. There are a variety of Orders that a family court can make in connection with the matrimonial home, including an Order that only one spouse is entitled to be in possession of (i.e. live in) it, and an Order that one spouse may sell, mortgage or encumber it.

The last type of Order may become necessary in a case where (for various reasons) it is prudent for the home to be sold, mortgaged or otherwise encumbered, or where it makes sense in all the circumstances that one spouse has possession, but where the spouses cannot agree. The court in such cases has the power to make the necessary Order.

4) Mandated considerations. Needless to say, courts don’t take their powers lightly; whenever a court is poised to make an Order that deprives one spouse of his or her rights or interest in the matrimonial home, the court will consider a broad array of well-established factors and considerations. For example, if a court is considering making an Order giving one spouse exclusive possession of the matrimonial home, the court is obliged under the Family Law Act to take into account the following:

• The best interests of the children who may be impacted by the order. Under this heading, the court must consider 1) the possible disruptive effects on the child of a move to other accommodation; and 2) the child’s views and preferences, if they can be reasonably ascertained.

• Any existing court Orders relating to family property, including existing Orders for support;

• The financial position of both spouses;

• Any written agreement between the parties;

• The availability of other suitable and affordable accommodation; and

• Any violence committed by a spouse against the other spouse or children.

5) Other rights not suspended. Finally, the fact that a family court might be entitled to make an Order in connection with the matrimonial home does not mean that other litigation has to cease; a third party (i.e. not either of the spouses) might have rights in connection with a matrimonial home that can be enforced as usual. To give the most common example, there may be a mortgage on the home, which the bank can realize upon if it goes into default.

Do you have questions about the court’s rights to make Orders affecting the matrimonial home? Feel free to contact our office.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit our main site.

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

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

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

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

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

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

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

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

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

For the full text of the decision, see:

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

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Breached Separation Agreement? – The Court May Not Always Be Able to Help

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Breached Separation Agreement? – The Court May Not Always Be Able to Help

For those former couples who have a separation agreement in place, a recent Ontario decision underlines an important point about the scope of the remedies that may be available if one party breaches his or her contractual obligations.

In Wylie v. Sheehan, the mother and father had two children together. In 2008, they entered into a separation agreement providing for a shared parenting arrangement, but with the father being responsible for child support. The agreement also incorporated a mechanism for varying support if there had been a change in circumstances (as defined by the Child Support Guidelines), and the parents did mutually implement certain minor changes on three occasions over the years.

This worked well until 2011, when the father unilaterally stopped paying support entirely. He claimed that in light of a new arrangement involving the children alternating weeks with each parent on a 50/50 basis, each of them should now pay for the children’s expenses equally.

When the father stopped paying support, the mother went to court for a remedy. In doing so she relied on a specific provision in the Family Law Rules allowing a court to entertain a “motion to change” any separation agreement that dealt with child support.

However, the court pointed out that what the mother was asking for was not a change to the separation agreement (and the father’s child support obligations under it); in reality she was simply asking to have the original separation agreement enforced. While the court conceded that it had the power to discharge, vary or suspend child support, under the Family Law Rules there had to be a triggering event. In particular, there had to be an important fact or circumstances that had changed since the parties reached their agreement. The Guidelines defined “change” as involving such matters as a change in circumstances that would result in a different order in the first place, or else a change in the condition, means, needs or circumstances of either parent.

Here, there had been some minor changes (involving the children living with each parent on alternating weeks), but certainly no evidence of any relevant change respecting either parent’s income or other relevant financial factors.

The court also pointed out that in their separation agreement the parents had agreed that they would try to resolve any interpretation difficulties or differences about the contract by negotiating personally, and that court proceedings would be a last resort once all other possibilities of resolution were exhausted. And much to their credit, the parents had successfully done so for several years.

In short, the mother’s bid to get a court-ordered change actually bordered on “enforcement” rather than “variation” of the separation agreement, and this was not what the Family Law Rules were designed to do. On the basis of that technical distinction, the court refused the mother’s request. (With that said, the court did order the father to pay certain retroactive support he owed, and – in light of his recent refusal to uphold his end of the separation agreement – ordered the Family Responsibility Office to get involved).

What’s the lesson to be learned here? If you have a separation agreement, you will have to abide by it, including provisions relating to how the agreement is to be varied and how any disputes are to be settled. Separation agreements – being binding contracts – should be carefully worded and should accurately reflect the intentions of those who enter into them.

For the full text of the decision, see:

Wylie v. Sheehan, 2013 ONSC 6341  http://canlii.ca/t/g0xsg

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.

 

Case Conference Judge Blindsides Unprepared Husband – Order Set Aside

blindsided

Case Conference Judge Blindsides Unprepared Husband – Order Set Aside

Should a final order made by a judge at a Case Conference hearing be binding, even though least one of the parties wasn’t prepared for the hearing, and made no submissions?

That was the question in a case called A.B. v. N.L.A., where the parents agreed to participate in a Case Conference hearing in order to resolve a dispute involving a temporary separation agreement that dealt with the custody of their child, child support, the right to travel with the child, and some other matters. The agreement had been prepared by the mother’s lawyer, but signed by both of them.

Although the parents each prepared Case Conference Briefs setting out their positions, when the father arrived at the Conference hearing he advised the judge he expected that it was merely an opportunity to negotiate. He did not come prepared to make submissions on any final order, and did not bring his lawyer with him. He twice asked the judge for an adjournment so that he could consult counsel, but his request was refused.

Instead, the judge at Case Conference hearing proceeded anyway, and made an 8-page final order. The order was not consented to by the parties, and in fact was made over the father’s objections.

The judge hearing the father’s later appeal admitted being “rather surprised” that the Case Conference judge had gone straight to considering the substantive issues between the parties, and had made a final binding order in these circumstances. For one thing, it was clear that neither of the parents expected a final order would be made at this stage. The contents of their respective Case Conference Briefs each revealed only the expectation that the judge would express his views and make recommendations at this stage.

But more importantly, the order ran afoul of legislated purpose of a Case Conference, which under the Family Law Rules expressly includes exploring the chances of settlement, finding ways to resolve the issues, and ideally making orders on consent. Such hearings are not meant to be adversarial in nature; rather they are intended to either get the parties to settle, or get them ready for trial. The judge’s refusal of the request for an adjournment was also troubling in light of the fact that the father was clearly not expecting the type of definitive hearing that was taking place.

It was true that, technically speaking, the Case Conference judge was entitled to make the final order he did However, in all the circumstances – and having regard to the principles of natural justice which include consideration of the availability of evidence, and the parties’ expectations, preparedness, and right to make submissions – the order had to be set aside. The matter was referred back to the Court for the next steps.

For the full text of the decision, see:

A.B. v. N.L.A., 2013 ONSC 2990 (CanLII)  URL: http://canlii.ca/t/fzclx

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Lawyer-Less Father Misses Opportunities at Trial; Appeal Denied

 

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Lawyer-Less Father Misses Opportunities at Trial;  Appeal Denied 

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

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

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

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

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

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

His appeal was dismissed.  

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

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

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

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

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

For the full text of the decision, see:

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

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com.

 

 

Wednesday’s Video Clip: The family courts and rules – The basics


 

Wednesday’s Video Clip: The family courts and rules – The basics

Most people will have no reason to become familiar with the workings of the Ontario Family Law system. Exposure to the justice system is usually a result of necessity, such as a separation or divorce, with its resulting property, support and child custody issues. As a result, most people do not know how the Family Court system works.

This video will provide a brief and basic review of the Ontario Family Courts, and the Rules that people are expected to follow.

First let’s start with the Family Law Courts:

In Ontario, and there are essentially three different courts that can hear Family Law matters:

• the Superior Court of Justice;

• the Ontario Court of Justice; and

• the Family Court branch of the Superior Court of Justice.

The court that will hear your particular Family Law dispute will depend on the location, and the nature of the dispute.

The Superior Court of Justice is the general court within the province; Family Law matters are just one of a broad array of legal topics that are heard before it. It decides disputes involving divorce, division of property, child and spousal support, and custody and access.

The Ontario Court of Justice hears disputes that fall under most provincial family-related legislation. These include disputes relating to custody, access, child and spousal support, adoption and child protection applications. This court does not hear divorce matters (which are federal) or matters relating to the division of property.

Finally, the Family Court branch of the Superior Court of Justice (sometimes referred to as the Unified Family Court) has been set up in 17 locations across the province of Ontario. Since Family Law in Ontario consists of matters governed by both federal and provincial laws, and since this branch of court is authorized to hear both, it is accordingly called a “unified” court. Accordingly, in regions where the Family Court branch exists, the court hears all family law matters, including divorce, division of property, child and spousal support, custody and access, adoption, and child protection applications.

Next let’s look at the Family Law Rules

All court proceedings – whether federal or provincial – are subject to specific court rules that govern the procedure before the court. All Family Law proceedings in Ontario are governed by a single set of Family Law Rules. the Family Law Rules set out the following:

• those specific Acts and Courts to which the Family Law Rules apply;

• the consequences of not following the Rules or obeying an Order;

• where (in what court and region) a case or application may be started

• how and when documents are to be served;

• which matters are subject to the Mandatory Information Program• the rules relating to Financial Statements;

• the procedure around Case Conferences and Offers to Settle;

• the obligations surrounding disclosure of documents, questioning witnesses, and admission of facts; and

• the rules relating to costs;

There are specific Forms in the Family Law Rules. These include the specific Forms to be used in an Application relating to a divorce, Financial Statements and a form to calculate Net Family Property.
The Mandatory Information Program is discussed by our associate lawyer Wendy in another one of our law videos.

We hope you have found this video helpful. If you require further information about the family court or the rules of the court please give us a call or visit our website at www.russellalexander.com

 

Family Law Disclosure and Confidentiality

Family Law Disclosure and Confidentiality

Last week we wrote about the general disclosure obligation that arise when parties decide to separate, and how the information plays into the determination of “income” for the purposes of the Child Support Guidelines.

As I mentioned in my last Blog, under Ontario family law the scope of the disclosure obligation imposed on separating spouses is very broad.     Specifically, pursuant to the Family Law Rules, a spouse involved in family law litigation is required, within 10 days of the other spouse’s request, to provide an Affidavit that lists every document that is:

• relevant to any issue in the case; and

• in the party’s control, or available to the party on request

In light of the broad wording of these legislatively-imposed obligations, various issues arise in connection with the precise scope and extent of these requirements.

Since the disclosure obligation imposed on separating spouses involves the production of documents that are “relevant to any issue”, the first question that can arise is how concerns over confidentiality are accommodated.   In particular, spouses may be concerned about “airing their dirty laundry” and disclosing private financial information through documents that generally become part of the public record.    The question then arises as to how to maintain the confidentiality of this information.

“Deemed Undertaking” Rule

As a starting-point, the Family Law Rules do include a “deemed undertaking” rule, which imposes an obligation on all concerned parties to maintain the confidentiality of all the information and documents which have been exchanged by way of Financial Statement, or obtained through the disclosure of documents or questioning.  Also – subject to the obligation being waived in some circumstances – information obtained from these processes can only be used for the case at hand, and not for any collateral purposes.

However, these measures do not necessarily keep private information derived from a Financial Statement or other litigation document away from the prying eyes of the public.

Confidentiality Agreement

Beyond the “deemed undertaking” rule, the options for maintaining privacy are rather restricted.  The easiest route is for both parties and their lawyers to sign a confidentiality agreement.  However, there can be difficulties with this approach:  there is likely way to compel the other side to sign it (by court order or otherwise), and it can give rise to certain issues relating to the relationship between the other side and his or her counsel.  Furthermore, if the confidentiality agreement purports to contain a provision requiring all documents to be returned once the dispute between the parties is resolved, this may hamper the ability in the future to obtain a variation of spousal support from a court, if both the court file and the parties’ files are empty.

Sealing Order

If no confidentiality agreement can be signed, then the more onerous and costly route is to apply for a sealing order from a court under the Courts of Justice Act.   These cannot be obtained on consent, so the matter must go before the court for its determination.   Unfortunately for the parties, the threshold test for obtaining a sealing order is relatively high, and in the family law context includes not only the usual considerations relating to freedom of expression, and desire to promote full public access to the process of the courts, but it also involves considerations relating to the best interests of the child.

Mediation/Arbitration

Finally, if the parties want to keep their matter out of the public record entirely, then they may want to avoid litigation and have the matter determined by private mediation or arbitration.  This keeps the dispute between them out of the court system, and maintains each party’s privacy.

Conclusion

Although the preparation of a Financial Statement and the production of related documents is a mandatory part of family law litigation, there may be unforeseen ramifications in connection with the privacy of the information that surfaces or is produced as part of that process.   For those who have concerns over public access to sensitive information, it is important to consult a lawyer for competent advice as to how to satisfy disclosure obligations yet still maintain the utmost confidentiality in the circumstances.

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

 

 

Spousal Support Advisory Guidelines and Disclosure Obligations

 

Spousal Support Advisory Guidelines and Disclosure Obligations

Whenever spouses separate, the often-long process of untangling their financial affairs begins.  Questions frequently arise as to the nature and scope of the financial disclosure that needs to be made as part of that process.   Although I have written previously about the scope and extent of this disclosure in Ontario, it’s important to put it into the context of how it relates to a court’s calculation of any spousal support obligations between the parties.

Spousal Support Advisory Guidelines

First, a little background:   Historically, the various Ontario courts’ approaches to calculating the spousal support that was owed from one party to the other had been a bit erratic, in that there was no uniform methodology of formula to be applied.   But several years ago, both the federal and provincial governments enacted Child Support

Guidelines, which established a formulaic approach to the calculation of child support, based on several factors including the paying parent’s income level.  After it was introduced, courts began using the income determined for the purposes of calculating child support as the baseline income for spousal support awards as well.   This was followed by the introduction of the Spousal Support Advisory Guidelines which – although not compulsory in nature – added some structure to the process, and added a focus on the income of the respective parties as a starting-point for the calculation of the precise amount of support that should flow from one to the other.

The Ontario Family Law Rules

Given that this income-based calculation remains the current state of the law in Ontario, the question of how each spouse’s respective bottom-line “income” is calculated remains a key factor in determining spousal support obligations.  It should be noted that the approach, guidelines and calculations used for the purposes of reporting income to the Canada Revenue Agency for income tax purposes is not that same as those used for determining support in Family Law.    While each spouse may provide providing his or her tax return, but this is just a starting-point for what must be disclosed.

Enter the Ontario Family Law Rules.  These Rules impose a general framework for the exchange of financial information between separating spouses, requires each spouse to provide the other with (among other things) a Financial Statement in a regulated form, and mandates that there be full and frank disclosure by each party of their respective information.

The Family Law Rules also encourage early disclosure, and mandate that all documents that are within a party’s control – or which are available to a party at his or her request – are to be listed and produced.  A court may also order that an outside party to the litigation be questioned.

There are sanctions for non-disclosure as well:  A breach of a court order for disclosure may result in the court imposing various penalties against the offending party, including certain costs sanctions or having his or her pleadings struck.  (However, if a party fails to comply with a disclosure order he or she is given an opportunity to show that they exercised due diligence in trying to comply with the order).

So What has to be Produced?

I have written more fully in previous blogs  about the kind of information that goes into the preparation of each party’s Financial Statement, and the types of information and documents that must be provided.   Is she be noted that the Family Law Rules define the term “documents” to include “information, sound or images recorded by any method.”   This means that electronic documents – including e-mail correspondence – are also potentially covered and are subject to the obligation imposed on each party to preserve information.  Indeed, the court has certain penalties – all the way up a finding of contempt of court – that it may impose in situations where a party has intentionally destroyed evidence that pertain to a family law proceeding.

The scope of disclosure is very broad; however, this does not mean that it is unlimited.  In particular, courts are on the lookout for situations where one party is conducting a “fishing expedition” in connection with the information held by the other party, usually as part of a litigation strategy.  Moreover, courts – by way of an overall mandate to deal with cases justly and proportionately to their importance and complexity – are also authorized to curb excessive disclosure on the parties’ part, since this can negatively affect the litigation by adding delay and increasing the costs of the proceedings.

Getting Assistance is Key

When taken together, the Spousal Support Advisory Guidelines provide a framework for calculating spousal support using each spouse’s income as a starting point, while the Family Law Rules provide a framework for putting forth the documentation used to calculate that income.  It is accordingly important for separating spouses to understand how these Guidelines and Rules work, and to get competent legal advice on what their obligations may be.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com

 

 

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

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

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

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

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

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

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

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

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

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

For the full text of the decision, see:

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

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