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Posts tagged ‘paternity disputes’

Deceased’s Estate Division Pits Sister and Ex-Wife Against Each Other

Deceased’s Estate Division Pits Sister and Ex-Wife Against Each Other

Here’s a slightly convoluted tale, but it’s an interesting one involving a dispute between the estranged wife and sister of a deceased man over his estate. Here is the cast of players:

1) Paul, who died in 2013.

2) His wife Pauline, from whom he separated in 2002.

3) Paul’s sister Rita, to whom he left half his estate, and who was also his Estate Trustee.

When Paul and Pauline separated, Paul agreed under their separation agreement to designate Pauline as beneficiary of a $150,000 insurance policy and keep up the premium payments. If Paul failed to maintain the insurance, it was agreed that Pauline would have “first dibs” against his estate for $150,000, in the role of a creditor.

In fact, Paul did not maintain the life insurance as agreed, and it lapsed before he died.

But there was a problem: Paul’s estate was too small to pay Pauline the $150,000 he owed, since his assets at death totaled only about $100,000.

Enter Paul’s sister Rita. As a beneficiary under his Will – and but for Pauline’s $150,000 claim – she stood to inherit 50% of Paul’s estate. In the role of Estate Trustee, she had obligations to all estate creditors, including Pauline. These duties These duties included ascertaining the debts and liabilities of Paul’s estate, and paying them. So Rita essentially wore “two hats”.

Pauline’s asserted first-dibs claim against Paul’s estate became a contentious issue, and the matter went to court for resolution. In an earlier application, the court rejected Rita’s argument that Pauline had missed the deadline for bringing her claim against Paul’s estate, which she did in 2015, more than two years after Paul’s death.

On appeal, the Court of Appeal confirmed that finding. The reason for Pauline’s delay was actually Rita’s own obfuscating conduct, and it would be unfair to hold her to that deadline in the circumstances.

As Estate Trustee, Rita had control over the information Pauline needed to ascertain whether Paul held any insurance policy for her benefit, as the separation agreement required. Pauline could not obtain the information from the insurer directly, so she was understandably beholden to Rita to provide it. Only Rita knew whether Pauline’s debt claim against the estate even existed; this put her in a unique and privileged position.

The problem was, Rita was not forthright with Pauline, and withheld the information she needed.

Initially, she had her lawyer advise (inaccurately) that Paul had maintained the life insurance, and later had the lawyer advise that the policy “may have lapsed”. Neither of these statements were true: Rita had known early on that Paul had let the life insurance lapse despite his obligations under the separation agreement, knew Pauline had a valid claim against his estate as a creditor. Yet she kept the information from Pauline and caused her to delay taking timely steps in pursuit of it.

From a legal standpoint the Appeal Court found that – wholly unrelated to their family connection – Rita and Pauline had a “special relationship”, and that Rita’s withholding of information made her guilty of fraudulent concealment, and made her conduct “unconscionable”.

The Appeal Court referred to and endorsed the findings of the application judge, who had written:

By withholding material facts, the estate trustee [the sister, Rita] concealed from [Pauline, the wife] that she had a legitimate debt against the estate as a creditor. In my view, given the special relationship between the estate trustee [Rita] and [Pauline], it was unconscionable for the estate trustee [Rita] to initially suggest that insurance was in place, then delay matters by promising to bring an application for directions, and then later take the position (a position which provided a direct material benefit to her as a beneficiary of the estate), that the time for claiming against the estate had expired.

The court accordingly found that the usual deadline for Pauline to claim for $150,000 against Paul’s estate did not expire in this case, and could proceed.

For the full text of the decision, see:

Roulston v. McKenny, 2017 ONCA 9 (CanLII)

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

Court to Delinquent Husband: If You Don’t Play By the Rules, You Don’t Get to Play

Court to Delinquent Husband: If You Don’t Play By the Rules, You Don’t Get to Play

A while ago I reported on one of several decisions in the ongoing litigation saga in Schwilgin v. Szivy, where the self-represented husband had made some procedural missteps in his divorce dispute with the wife. He had brought a series of appeals of judgments unfavourable to him, but was not always prompt in taking the necessary steps to do so.

At one point, he had missed the deadline for filing another appeal, and brought a motion to essentially ask the court for an extension.

The court had to consider whether, in light of the overall history of the matter and both parties’ conduct, the husband should be granted any leeway.

The main focus was on the fact that the man had not complied with numerous prior orders to pay costs: he owed the wife over $25,000 in connection with prior proceedings, yet he was coming before the court to ask for indulgences.

The court wrote:

Finally, I am not satisfied that the justice of the case supports granting the motion to extend. In quashing his appeal from the order of the motion judge, the Divisional Court ordered [the husband] to pay [the wife] costs of $10,000. He has not done so. In open court, [the husband] said he would not pay those costs because he contends he lacks the resources to pay them.

In her affidavit on the motion, [the wife] deposed that [the husband] owes her over $25,000 in costs from their matrimonial proceedings. In her letter of November 16, 2015 transmitting her responding materials to the court, [the wife] wrote:

I do not understand how [the husband] is permitted to constantly bring motions and appeals without paying the costs of previous court orders. It seems all the court does is order more costs, which I cannot collect. He gets stern words and a slap on the wrist (costs), and I get a bill from my lawyer. How is this fair?

That is a most legitimate question to ask. Courts usually talk in terms of prejudice which cannot be compensated for by costs. But, at some point, costs themselves become an inadequate form of compensation for prejudice, especially where the party on whom they are imposed refuses to pay them.

The Appeal Court also quoted from a prior order of the Divisional Court, where the court had said this about the husband:

The [husband] has used this appeal as a means of delaying paying the arrears in question and the costs ordered to the [wife]. Further, the [husband] has a history of using Court proceedings in this way. This has caused the [wife] considerable prejudice.

After noting the long history of the proceedings – plus the husband’s attempt to write to the court directly by letter, which was inappropriate – the Court of Appeal declined to grant him an extension, concluding that the “justice of the case” demanded it.

For the full text of the decision, see:

Schwilgin v. Szivy, 2015 ONCA 816 (CanLII)

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

Wednesday’s Video Clip: 10 Ways to Get Information About Family Law


Wednesday’s Video Clip: 10 Ways to Get Information About Family Law

In this video we discuss how there are many professional people, organizations and other sources that can help you or provide information about family law issues:

1. An information centre specializing in family justice

2. A parent education course for separating parents

3. Duty counsel at a legal aid office

4. A community legal clinic

5. A university law school with a student-run legal information service

6. A law society or bar association referral service for a lawyer

7. A divorce support or self-help group

8. Relevant library books and videos

9. The yellow pages, white pages or blue pages in your telephone book have listings for many of these resources, and

10. A librarian at your public library may also be able to help you.

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

Wife Dumps Husband Over Trump

Wife Dumps Husband Over Trump

Recently I wrote about a man who was so desperate to leave his wife of 31 years that he robbed a bank in order to get thrown in jail.

To add to the theme of “precipitous separations”, there was report in the U.S. recently of a 73-year-old woman, Gayle McCormick, who decided to end her 22-year marriage because her husband announced, during lunch with friends, that he was planning to vote for Donald Trump in the upcoming elections.

The retired California prison guard said that she was “in shock” over his revelation, and it was the “breaking point” and “catalyst” for calling it quits on the marriage.

She explained: “It really came down to the fact I needed to not be in a position where I had to argue my point of view 24/7. I didn’t want to spend the rest of my life doing that.”

Perhaps ironically, McCormick decided on a separation even though ultimately her husband changed his mind and did not actually end up voting for Trump (instead, he submitted a write-in vote for Newt Gingrich). She said the fact that her husband could agree with Trump on any of the issues “totally undid” her, and that she was tired and older and didn’t want to argue with him since she knew neither of them would change. Although she concludes that they are “too old” to go through a formal divorce, she and her husband are no longer living together.

It’s not a common scenario, but it’s not as unusual as it may seem: According to a Reuters/Ipsos poll taken between December 27, 2016 and January 18, 2017:

• 39 percent of respondents admit to arguing with family and friends over politics;

• 16 percent said they have stopped talking to a family member or friend because of the election 13 percent said they had ended a relationship with a family member or close friend over the election.

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

Can a Parent be in Contempt When Kid Disobeys a Court Order?

Can a Parent be in Contempt When Kid Disobeys a Court Order?

In many of the child custody and access cases I write about, the central dispute boils down to the fact that the parents of the child are at odds in terms of what custody arrangements they want and how much access they should each have to the children.

But even once a court order is in place, the disagreements can continue, because the parents may be at odds over precisely what the order means, and how it should be complied with. In a typical scenario, the custodial parent will have failed to abide by the terms of a court order setting out specific custody or access, perhaps by keeping the child longer than ordered, or else by failing to facilitate the access rights of the non-custodial parent.

But what if the lack of compliance is because it’s the child – not the parents – who won’t co-operate? What if the child outright refuses to spend time with the access parent?

In a recent set of Blogs I talked about the concept of “contempt of court”, in family law proceedings especially. This remedy can be imposed on a parent who refuses to comply with a court order, or otherwise hampers the course of justice.

What may be surprising is that under Canadian law, in some circumstances a parent can still be held accountable for contempt of court even if it’s the child who thwarts the fulfilment of the court order. This is because of the legal principle that if there is a court order in place, the parent is under a duty to do all that he or she reasonably can in order to ensure that it is complied with. And a finding of contempt of court may follow if the other parent can establish, beyond a reasonable doubt, that the other parent failed to take all of those reasonable steps.

In short: the parent cannot simply leave questions of custody and access up to the child; otherwise it amounts to an abdication of parental responsibility. In an older case called Geremia v. Harb, Justice Quinn put it well when he said:

Undoubtedly, there are many tasks that a child, when asked, may find unpleasant to perform. But ask we must and perform they must. A child who refuses to go on an access visit should be treated by the custodial parent the same as a child who refuses to go to school or otherwise misbehaves. The job of a parent is to parent.

With that said, the contempt remedy is not imposed every time a parent is unsuccessful at coercing a child – particularly an older one – to comply with an order. Rather, the outcome on whether to make a contempt finding will be viewed by the court with its broader duty in mind: which is to balance the need to enforce court orders and to encourage a child’s contact with both parents versus respecting a child’s own wishes and safeguarding his or her needs, safety and well-being.

For the full text of the decision, see:

Geremia v. Harb, 2007 CanLII 1893 (ON SC)

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

Wednesday’s Video Clip: Confidentiality


Wednesday’s Video Clip: Confidentiality

In this video we discuss how all information you provide to your lawyer is completely private and confidential. All the details of your case will be handled with the utmost confidentiality and respect for your privacy.

The privilege of confidentiality between solicitor and client is, in law, a protection which belongs to the client. Therefore, it is up to the client, only, whether or not that confidentiality is to be waived.

Please remember this when your family members or friends request information directly from your lawyer. Lawyers are frequently contacted by new partners, or other family members who want to discuss your case.

You have to give your lawyer specific instructions to permit that discussion to take place. Also, as the time spent by your lawyer will be time spent on your file, you will be billed for any time spent discussing your case with anyone at your request, or in the context of your file.

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

Can a Judge Go “Off the Map” When Making a Ruling?

Can a Judge Go “Off the Map” When Making a Ruling?

In an interesting recent Court of Appeal case named Gomez v. McHale, a question arose as to whether a motion judge, asked to award an amount for equalization of net family property, was constrained to award only the exact dollar amount proposed by the spouse who succeeds on the motion, or whether the judge was entitled to craft a different monetary award that made sense in the circumstances.

The couple’s relationship had lasted about five years. Under s. 5(6) of the Ontario Family Law Act, a court can award un unequal amount for equalization of net family property in cases where awarding an equal amount would be “unconscionable”, in light of various factors including the length of time the couple had lived together.

They both brought summary judgment motions against each other, with the wife asking for one of two things:

• A straightforward equalization of net family property, which would result in her receiving $268,000 (which we will call “Option 1”); or

• An unequal division, to the tune of four-fifths of that amount, which was $214,000 (“Option 2”).
The husband, in contrast, wanted the either of the wife’s claims – whether under Option 1 or Option 2 – to be dismissed outright by the court.

Ultimately, a court granted the wife a third Option – but one that neither of them had asked for. For various reasons related to the specific facts, the court ordered the wife to receive an equalization payment of $60,000.

The wife appealed, claiming that the motion judge had strayed from the available choices presented at the motion hearing. In particular, the wife contended that the judge’s only available choices were to pick either Option 1 or 2, or possibly to grant her partial judgment in some amount, and direct that the rest of the issues be sent on to be resolved at a full trial.

The Court of Appeal disagreed. As that Court wrote:

Put bluntly, this is not the way motions for summary judgment, especially duelling motions, work. The motion judge was entitled to consider all the evidence and then apply the relevant statutory provision, s. 5(6) of the FLA, and determine both whether an unequal division was appropriate and, if so, the quantum of the unequal division. He was not limited to choosing one of the two amounts proposed by the appellant and, if he was inclined to reject them, referring the question of quantum on to a trial. … He was not limited to choosing only one of the appellant’s alternative positions.

The wife also claimed that the judge had made an error by not following a mathematical formula for calculating the unequal division of net family property (using the actual period of cohabitation as a percentage of the five-year period specified in s. 5(6) of the Family Law Act). The court disagreed: While a mathematical approach might help the court in some cases, it did not have to be applied in every single one.

In the end, the Appeal Court concluded that the motion judge’s final amount of equalization, set at $60,000, was fair and reasonable in view of all the circumstances, which included the fact that the wife had not made any significant contributions to the home during the period of cohabitation and marriage.

For the full text of the decision, see:

Gomez v. McHale, 2016 ONCA 318 (CanLII)

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

“Revenge Porn” Case Goes Back to the Drawing Board

“Revenge Porn” Case Goes Back to the Drawing Board

A year ago I reported on a case in which a young woman had been awarded over $100,000 in damages from her former boyfriend, who had engaged in “revenge porn” after their break-up. Without her consent, he had posted explicit images of her online, and shared them with members of their mutual social circle, much to her extreme humiliation.

Because he had declined to participate in the lawsuit by filing any sort of defence, the woman was able to obtain a default court judgment in his absence, in which the ex-boyfriend was found liable under the civil law for the torts of breach of confidence, intentional infliction of mental distress, and invasion of privacy. He was held responsible to pay for her damages as assessed, with the breakdown being $50,000 for general damages, $25,000 for aggravated damages, and $25,000 for punitive damages, plus costs.

However, as a result of a recent decision by the Ontario Divisional Court, her lawsuit – which was launched four years ago – has now been put back to square one, and the now 24-year-old woman is awaiting a statement of defense from the man, so that a full trial can proceed with his participation.

The reversal is essentially based on procedure, not merit, so time will tell whether she is vindicated in the end.
In terms of the legal process, the matter has gone forward-then-back because the original order, by Justice Stinson, was later struck out by a second judge, Justice Dow, in order to give the man a chance to participate.

The woman asked unsuccessfully for permission to appeal that ruling, claiming that Justice Dow had noted that the ex-boyfriend was deliberately ignoring the lawsuit, but then went on to improperly consider other factors and give him a second chance anyway. Permission to appeal was denied in the most recent decision by Justice Kitely in January 2017, since she found no legal error in Justice Dow’s reasoning.

So, three judges’ rulings later, the matter has been sent back to essentially “start over” before a new judge.

But the significance of the case still lingers, because the original decision by Justice Stinson from a year ago was very legally noteworthy at the time, not only for implicit recognition of the invasion-of-privacy claim from this sort of on-line behaviour, but also due to the hefty damages liability imposed on the ex-boyfriend.

What are your thoughts on this case?

For the full text of the decision, see:

Jane Doe 464533 v N.D., 2017 ONSC 127 (CanLII)

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

Wednesday’s Video Clip: When Can A Parent Apply For Child Support

Wednesday’s Video Clip: When Can A Parent Apply For Child Support

In this video we discuss how parents who have their children living with them after separation can apply for child support at any time. Usually they apply right after they separate or as part of their divorce application. They often apply for custody and child support at the same time. It is usually best to deal with these matters as early as possible.

Sometimes parents with custody do not want or need child support at first, but later their situation changes. They can apply for child support when the need occurs, even after a divorce and all other matters arising from the separation have been settled.

But if a step-parent is asked to pay support, the more time that has passed since the step-parent had an ongoing relationship with the child, the less likely it is that the court will order support payments. This is especially true if the step-parent’s social and emotional relationship with the child has ended.

A parent can apply for custody and support even while living separately under the same roof after their relationship with the other parent is over. But usually the court will not make any order for custody and support until one parent has actually moved out.

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

Do Judges Need to Actually Give Reasons?

Do Judges Need to Actually Give Reasons?

For those of you “armchair lawyers” who like to follow real-life trials, watch TV crime shows, or even just read books by John Grisham, here’s an interesting question for you:

In law, can a litigant appeal a judicial ruling simply because the judge’s reasons were brief?

The answer is: Maybe.

The sparseness of the reasons given by the trial judge was among the grounds for appeal in the recent Ontario Court of Appeal decision in Filanovsky v. Filanovsky. A 45-year old woman had sued her parents for alleged physical and emotional abuse when she was a child, including violent blows to the face that left her with traumatic brain injuries.

After a 10-day trial in which the court considered evidence from the woman, her brother, various experts, and the parents themselves, the woman’s claims were dismissed.

She appealed and requested a new trial, with one of the grounds being that the judge failed to give adequate reasons to explain the reason her claim was dismissed.

The appeal court rejected this particular argument.

To begin with, the court conceded that prior decisions have established that a judge must give reasons:

1) to justify and explain the result;

2) to explain to the losing party why she lost;

3) to provide public accountability and to satisfy the public that justice has been done; and

4) to permit review by an appeal court.

However, the Appeal Court relied on another recent decision of its own called Dovbush v. Mouzitchka, where it had a chance to examine those requirements in detail, saying:

Trial judges are called upon to make difficult decisions, often in difficult circumstances. They preside as the particular dynamics of the trial unfold. Inadequate reasons therefore pose a particular challenge for appellate review.

On the one hand, as [Supreme Court of Canada justice] Rothstein J. noted in F.H. v. McDougall, … “an appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor, is the failure to give adequate reasons a free-standing basis for appeal.”

However, the Appeal Court in Dovbush had pointed that in determining the issue of the reasons’ sufficiency,

…[I]t turns on the overarching principle of whether the reasons permit meaningful and effective appellate review. Appellate courts will take a contextual and functional approach to addressing whether reasons meet this standard. The exercise has been variously described as one of determining whether the reasons demonstrate: “the path taken by the trial judge through confused or conflicting evidence” … or that “the trial judge came to grips with the issues and explained sufficiently his … conclusions and the reasons and basis for them” … or, the “what” and the “why” of the result.

Returning to the Filanovsky case, the judge who dismissed the woman’s abuse claim against her parents had actually given lengthy reasons, in which she assessed credibility, analyzed all the witness’ evidence, and pointed out inconsistencies. The reasons as rendered by the judge did allow for a meaningful appellate review.

The woman had raised other grounds of appeal, and these were dismissed as well.

For the full text of the decisions, see:

Filanovsky v. Filanovsky, 2017 ONCA 28 (CanLII)

Dovbush v. Mouzitchka, 2016 ONCA 381 (CanLII)

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