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Did Landlord Have Duty to Warn Woman of Fraudster Boyfriend?

Fraudster Boyfriend

Did Landlord Have Duty to Warn Woman of Fraudster Boyfriend?

In a decision called Larizza v. The Royal Bank of Canada, the court introduced the facts this way:

The [female] plaintiff … was the unfortunate victim of a [male] fraudster.  She met [the man] in February 2012, and married him in March 2013.  During the course of their relationship, [the man] persuaded [the woman] to sell her house, move in with him, and give him over two hundred thousand dollars. In the summer of 2013, she became aware that [the man] was not who he purported to be, and that she had lost the money she gave him.

When they had met online, the man told the woman he was a 56-year old wealthy Swiss-Canadian businessman, and heir to a fortune made from the Ovaltine beverage.   In fact, he was 69 years old, born in Egypt, and had been convicted of fraud on a number of past occasions.   When the woman finally confronted him about her money, he physically assaulted her, and was arrested. He was convicted of assault and fraud, and sentenced to 60 months in jail.

Their rental living arrangements while married became the focus of the woman’s subsequent legal claim against the landlord, Minto.

At the man’s urging, the woman had sold her house, quit her job, and moved in to the Penthouse of the Minto-owned building in which the man had previously rented a 9th floor unit.   That move came after the man single-handedly negotiated with Minto about the Penthouse rent and terms.  What the woman didn’t know, was that Minto had performed a credit check on the man, and finding there was “insufficient” credit information, had asked him to provide another name.  Without her knowledge, the man offered up the woman’s name and a credit check was done without her consent.  Based on her strong credit rating, Minto agreed to lease the Penthouse suite.

What the woman also wasn’t clear on at the time, was that she was listed as the tenant on the one-year lease calling for $10,225 in monthly rent.  She said she signed after being rushed into it by the man, and thought she was signing merely as an occupant.  In fact, the reverse was true.

She therefore sued the landlord Minto for damages, claiming it had a responsibility to take steps to: 1) protect her from the man’s fraud; and 2) alert her to the fact that she was actually the tenant on the hook for the hefty rent.  She argued that, based on Minto’s interactions with the man, and given his long history of fraudulent activities for which he had been previously convicted and imprisoned, Minto had a duty to protect her from the man’s fraud.

The court rejected the woman’s claim.  Even after seeing the man’s sketchy credit report, Minto did not have a duty to alert her about it in the time leading up to signing the lease.  Although Minto did have a duty of good faith and honesty in performing its end of the lease – by providing a habitable rental unit in exchange for rent – it also had no duty toward her in the time leading up to signing it.  Nor did it have any obligation to make it clear she was signing as the tenant, not the occupant.

Simply put:  Canadian law did not recognize a duty of care owed by landlords to tenants or potential tenants to protect them from third-party fraudulent schemes.  The court said:

There is no basis for a potential tenant entering into a lease to expect the landlord to protect him or her from the potential fraud of other people who will be occupants of the dwelling.  The reality is that it would be exceptionally intrusive for landlords to have an obligation to inquire into the legitimacy and wisdom of the decision of two people to live together.  This type of intervention bears no relation to the nature of the contractual relationship between the parties, and cannot give rise to an expectation that landlords would have such a duty.

The court added that even if landlords like Minto had such a duty, in this case any financial harm suffered by the woman was too remote. The court granted Minto’s motion for summary judgment, obviating the need to have the matter go forward to trial.

For the full text of the decision, see:

Larizza v. The Royal Bank of Canada, 2017

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

 

Family Judge Says:   “The Guidelines are Not a Price List”

Image result for legal costs

Family Judge Says: “The Guidelines are Not a Price List”

Many of or previous Blog posts have illustrated how the provincial Child Support Guidelines, and its federal counterpart, the federal Child Support Guidelines work in various factual contexts, to guide parents and judges in determining how much child support each separated or divorcing parent should pay.

In the past year alone, we have given examples of  how special expenses such as a child’s sports or extracurricular activities are dealt with; how self-employment income is accounted for in the calculations, and even how the Guidelines are to be used to calculate child support for adult children..

What should be abundantly clear from those many illustrations, is that when the matter of child support is placed before a judge, the Guidelines are merely a starting-point for what becomes a complex mathematical calculation that takes numerous factors into account.   This is why it’s often perplexing for separating parents to try to determine what support amounts are fair, when they don’t have the help of a lawyer to guide them.

The recent case called Vidal v. Dunn is an excellent example of the complexity and number of different that this exercise entails.  As we chronicled in prior Blogs on this case, the parents had a raft of child support-related disputes between them, including the question of whether their troubled teenaged daughter’s criminal defence bills – totalling over $10,000 – were considered “special or extraordinary expenses” to be shared by the parents, and whether their 20-year-old daughter was still considered to be a “child” for the purposes of being eligible for support.

In the context of making a ruling on this last issue, the court noted that both the federal Divorce Act and the Ontario Family Law Act apply the Guidelines, and both have comparable child support objectives.

But the court went on to make an interesting observation about the nature of the Guidelines themselves:  For one thing, they are more complex than a fixed-price menu, but also not amenable to “short cuts” even by a court.  As the court wrote:

The authority to order further child support is found in legislation. The Child Support Guidelines were intended to help separated families set child support in a fair and predictable way. The Guidelines are not a price list.  It can be very complicated, especially for adult children. Entitlement to child support is a prerequisite before determining quantum under the Child Support Guidelines. The statutory path is mapped out. The court cannot customize legislation with short cuts. 

In a very recent case called Henry v. Boyer, the court emphasized the point made in Vidal v. Dunn that the Guidelines are aimed specifically at helping “separated families” to set child support both fairly and predictably.  But there are many variables in that calculation, a point that newly-separated parents should keep in mind when trying to forge the path forward towards a divorce.  It’s always a good idea to seek the advice of an experienced Family lawyer.

For the full text of the decisions, see:

Vidal v. Dunn, 2018 

Henry v. Boyer, 2018

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

 

Untangling Financial Information – By Guesswork and Extrapolation

Untangling Financial Information – By Guesswork and Extrapolation

Although it’s a relatively short little ruling, the decision in Yahya v. Omar gives a glimpse of the type of judicial guesswork that goes into determining a separated couple’s income and earning capacity for the purposes of determining their respective spousal and child support obligations to each other.

The parents lived together common-law for over 15 years, and had three children together.  The judge who ruled on an earlier motion for interim financial relief had held that the father’s income was about $56,000, even though this was a higher figure than he reported on Line 150 of his income tax return.  The judge made a temporary order for the father to pay child and spousal support accordingly.

The parents appeared in succession before four more judges who made orders dealing with various issues, including how the proceeds of the sale of their condominium were to be dealt with, how payment of child support was to be made out of those proceeds, and various other orders. In each case the financial disclosure provided by the parties was less than fulsome.

The father then brought a new motion for an order that the initial child support order was improperly made, because it should be based on his actual income, rather than what the original judge had declared. He claimed that at the time of separation he operated a taxi cab business, and for the past few years his income had been in the range of about $40,000 gross, and under $15,000 net per year.  The father said that although that information had been available to the initial motion judge – and the judge acknowledged that the support might change depending on further disclosure – the judge had improperly relied on the income on his financial statement, which showed about $51,500.

Moreover, the father stated that he had actually been unwell and unable to work for a few months, and that he had surrendered his taxi and was now driving for UBER.   Based on pro rata extrapolation, the father said his income would about $30,000 per year.  He asked that his child support be reduced accordingly.

In contrast, the mother claimed that the father’s income should be set at least $43,000, but ideally it should be set at $90,000 based on both the lifestyle he was apparently living.

In addition to refuting the mother’s figures, the father claimed that she should be looking for work in order to contribute to her own support. But the mother refuted this, claiming that she had a health condition that prevented her from working.  Her only backing for this diagnosis was a one-line letter from a doctor.

The court considered these submissions by both parties.  Starting with the father’s income, it found that the family’s lifestyle certainly showed they were living well beyond the amounts shown in his recent income tax returns, but this did not mean his income should be set at $90,000.  In fact, the court noted the father was “living with various family members and friends”, although he gave no additional financial details around those arrangements.

With no further clarity as to his income, the court concluded that the initial temporary order would have to stand until trial, unless the father could provide further disclosure that warranted a change to it.

As for the mother’s claim to be unable to work:  The court firstly returned the doctor’s letter to the mother, because it had not been properly tendered in evidence, then added that she needed to provide proper disclosure if she wanted to support her claim and settle the outstanding financial issues.  Respecting the level of proof needed for her ostensible medical diagnosis, the court diplomatically added:

If it consists of a single sentence from a family doctor, it will not suffice in which case she should consider investigating employment.

To the extent that it could with the information available, the court made several orders to resolve some of the issues relating to the treatment of the proceeds of sale, and certain arrangements respecting the payment of support.  It added that the next step “must be an informed and productive settlement conference,” which the court emphasized would require each party to file financial statements, as well as net family property statements.

For the full text of the decision, see:

Yahya v. Omar

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