Skip to content

Posts tagged ‘paternity disputes’

Naughty or Nice? The Live Issue of Harassment in the Legal Industry

Image result for workplace harassment

Naughty or Nice? The Live Issue of Harassment in the Legal Industry

The “naughty” list of high profile men alleged of sexual harassment continues to grow, and seemingly no one is immune. Beginning with the film mogul Harvey Weinstein, recent a-listers including Blake Farenthold (a Republican politician) and Gilbert Rozen (Canadian Founder of Just for Laughs) have joined ranks. Rather than being industry specific, allegations of harassment seem to hold one common denominator: power.

Since the inception of the legal industry, men have held positions of power. Sexual harassment in legal offices is not a new issue, but the question remains, is the recent spotlight on the vulnerability of women working in fields historically dominated by men reducing the issues faced by female lawyers?

Unfortunately, the power imbalance between female and male lawyers is still immense. Despite the fact that females are hired at the same rate as men at the associate level, the numbers of female equity partners are staggeringly low as compared to men. This means that as a young female associate, one is likely to find themselves surrounded by rooms full of silver-haired men welding decision making power. This power may simply pertain to a judicial opinion on a legal matter, or it may extend to whether or not a promotion or raise will be given.

The attitudes of high-ranking men in the legal field do not appear to have caught up with the growing public distaste for outdated misogynistic views and the growing list of alleged harassers. One Quebecois judge was recently under fire for making the comment “She’s a young girl, 17. Maybe she’s a little overweight but she has a pretty face, no?” in regards to a young woman who was sexually victimized by a taxi driver. He went on to state that the victim was “a bit flattered”.

A judge making comments about a young woman’s physical appearance such as these in open court is perpetuating an inappropriate view of women. A young female lawyer appearing before this judge to argue a case may likely feel that comments such as these must be permitted in order for them to stand a chance representing their client’s case.

It is not difficult to extrapolate that the attitudes of male judges mirror the behavior of male lawyers; after all, judges were once lawyers. Unfortunately, much the same as young actresses hoping to catch a break, young female associates may overlook the inexcusable behavior of their male colleagues in the hope that it will provide them with an opportunity for advancement.

What are your thoughts?

Do you think these attitudes exist in other industries?

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

 

 

 

 

Supreme Court of Canada Hands Down Landmark Ruling on Text Message Privacy

Image result for phone spying

Supreme Court of Canada Hands Down Landmark Ruling on Text Message Privacy

In a Supreme Court of Canada ruling in a criminal case called R. v. Marakah, which was handed down just this past week, the nation’s top Court framed the essential questions in the opening lines:

Can Canadians ever reasonably expect the text messages they send to remain private, even after the messages have reached their destination? Or is the state free, regardless of the circumstances, to access text messages from a recipient’s device without a warrant?

The accused, Nour Marakah, had been charged and convicted of trafficking in handguns.  Among the evidence used against him were certain incriminating text messages that he had sent to an accomplice’s iPhone.  The messages on his own phone (from where those messages to the accomplice were sent) had already been ruled inadmissible, since their use was found to have breached his Charter right to be protected against unreasonable search and seizure.

The Supreme Court of Canada ruled that the text messages that had been intercepted from the accomplice’s phone were private in the circumstances, and also inadmissible on the same Charter-based grounds.

The Court quickly added that outcome was not automatic: different facts may have led to a different result.  Among other things, the matter hinged on whether Marakah had a reasonable expectation that the texts would remain private.

From a general standpoint, the Court discussed the relevant legal analysis to be applied in these cases.  This involved evaluating the “totality of the circumstances” including the elements of whether the sender has control over the messages once they are sent.  Someone who sends texts messages has meaningful control over what they sent, and how and to whom they disclose the information.  For the purposes of the Charter’s s. 8 protections against unreasonable search and seizure, that control is not lost merely because another individual possesses or can access it.  In other words, even though the sender does not have exclusive control over his or her personal information – only shared control – that does not preclude him or her from reasonably expecting that the information will not be subject to state scrutiny.

Returning to Marakah’s specific case, he had an objectively reasonable expectation of privacy of the text messages on the iPhone of his accomplice. He fully expected their conversation to be private, and had repeatedly asked the accomplice to delete the incriminating messages from his iPhone. The “place” of the police search (i.e. the accomplice’s iPhone) was a private electronic space accessible the accomplice, so this factor also heightened Marakah’s legitimate privacy expectations.

In entertaining, but ultimately rejecting, the policy concerns around recognizing the privacy of text messages in some circumstances, the Court added:

There is nothing in the record to suggest that the justice system cannot adapt to the challenges of recognizing that some text message conversations may engage s. 8 of the Charter.

The Court found that there had been a breach of Marakah’s Charter rights in this case, and that admitting the text messages from the accomplice’s iPhone as evidence would bring the administration of justice into disrepute.  Without those texts, he would have been acquitted; to allow the conviction to stand would be a miscarriage of justice.

Although this Supreme Court ruling germinated from a criminal case with Charter implications, it may have eventual repercussions in the civil realm, including Family Law trials.

What are your thoughts on this ruling?  Should text messages be considered private at all times?

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

 

 

[1] 2017 SCC 59 (CanLII).

Ontario Courts Soon to Get Wi-Fi!

Image result for wifi finally

Ontario Courts Soon to Get Wi-Fi!

You read that right.  And – no – you’re not reading an old Blog from 10 years ago.  It may come as surprise, but the Ontario courts’ arguably archaic infrastructure has not had Wi-Fi … until now. (Or soon).

According to a November 2017 announcement from the provincial Attorney General, Ontario’s courthouses will all be newly-equipped with Wi-Fi by 2019.  Additional upgrades will see the current paper-based system for delivering Jury summons will be replaced by one allowing for delivery by e-mail or text, and some divorce-related documents will eligible for on-line filing.

In announcing this long-overdue development, which is being positioned as a measure to improve access-to-justice especially in the Family Law realm, Attorney General Yasir Naqvi said:

“Our system is still very much a bricks and mortar system … The most advancement we’ve seen is we’ve moved from typewriters to desktops or paper filings to faxes. That’s where we’re starting.”

Obviously, these are just baby-steps towards bringing the physical resources into the modern age, it is one of several planned additional steps to modernizing the courts and justice process in the province.

As far as Family Law-related upgrades go specifically:  In April 2018, couples going through a joint divorce will be eligible to file their divorce applications on-line.  This augments a recent improvement to the document filing system, which saw the province set up a service allowing parents to update their child support agreements online.

For more information on this announcement, see:

Ontario’s new attorney general wants to modernize justice system

http://www.cbc.ca/news/canada/toronto/wifi-ontario-courts-electronic-1.4425300

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: How Long Does Child Support Continue in Ontario?

Wednesday’s Video Clip: How Long Does Child Support Continue in Ontario?

In Ontario, child support must be paid as long as the child remains a dependent.

In this video, family lawyer Russell Alexander discusses how long child support continues and when a court, or parents, should consider stopping or terminating child support payments.

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 Joint Action Plan Announced for Improving Access to Family Law Services in Ontario

New Joint Action Plan Announced for Improving Access to Family Law Services in Ontario

The Law Society of Ontario has just announced its approval-in-principle of a joint action plan that is the culmination of a Family Legal Services Review commissioned last year in conjunction with the Ministry of the Attorney General.  The resulting Report makes 21 recommendations that are aimed at improving access to Family Law legal services, most notably by expanding the role of paralegals. Under the joint action plan being considered, the Law Society commits to the following:

  • To develop a license for licensed paralegals and others with appropriate training, to allow them to offer some Family Law legal services. The licence will support training on the topics of: legal process; completing Family Law forms, investigating certain financial information, Motions to Change, and uncontested divorces.  The Law Society indicates that training will be an intensive and rigorous process, of up to 14 months’ duration, along with testing.
  • To “engage in a robust evaluation of the success of the Family Law legal services license for service providers other than lawyers, and to make any adjustments that are in the public interest.”
  • To consider allowing lawyer candidates (e. articling students) to be given “experiential training” in the licensing process, including how they may support the delivery of Family Law legal services under appropriate supervision.
  • To review the Rules of Professional Conduct governing lawyers and paralegals, to see whether the current rules on the unauthorized practice of law are as clear as possible on the difference between legal information that is legal advice, versus legal information that might be provided by Court staff to unrepresented litigants. The intent is to effect a common-sense change to give Court staff more latitude to help self-represented litigants navigate the Family Law process.
  • To continue to support the expanded use of unbundled services and legal coaching, including offering Continuing Legal Education opportunities, as well as tools that address concerns over legal liability.

The Law Society indicates that it will also continue to assess what additional Family Law legal services (including advocacy in and out of the courtroom) should be made available by providers other than lawyers.   This again requires consideration of the public interest.

It should be noted as background to this newly-announced initiative, that the Law Society has also ramped up its lobbying efforts, in cooperation with the Bar, to encourage the Federal and Provincial governments to accelerate the implementation of Unified Family Courts to all jurisdiction in Ontario.  (Currently, there are only 17 Unified Family Courts are only available to litigants in the province, mostly in the greater Toronto region).

What are your thoughts on this new action plan?

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

 

Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

Image result for running away

Kid Applies to Court to Formally Withdraw from Parental Control – Do Parents Get to Participate?

In a recent case heard by the Ontario Court of Appeal, the issue was whether the parents of a 17-year old girl had any right whatsoever to participate in a court proceeding declaring that she had officially and legally withdrawn from their control as parents.

The girl had gone to court for a “declaration” (which is a formal court statement pronouncing on the existence of a legal state of affairs) that she had withdrawn from parental control.  This had followed a period of extreme acrimony between her and her father, with whom she lived full-time, over numerous matters.  The main precipitating event was the girl’s unilateral decision to finish high-school in Ontario a year early, in order to attend the University of Miami where she had obtained a full scholarship.

The father strongly opposed her plans, and wanted her to stay in Ontario to finish grade 12.  He even began court proceedings in Florida to force the university to disclose the contents of her application file, which impelled the university to ask the girl for proof that she was an independent minor.   Since her father had repeatedly said he would “do everything he can to stop” her from going to Miami, she needed the formal court declaration; without it he could demand that the university withdraw both her application and the scholarship.

The lower court had granted her application without hesitation, adding that “[t]he evidence indicates that [the girl] is a remarkable young woman.”  The court found the parents had no right to be included in or even have notice of the proceedings.

The father appealed, claiming that the mere fact that the court had not allowed or invited both parents to participate – including the full right to object, file evidence, and cross-examine – was grounds enough to overturn the declaration.

The Appeal Court disagreed, but conceded that the parents did indeed have a right to be part of the proceedings.  But there was still no reversible error here, since the required level of parental participation had been met, even though neither mother nor father were ever made official parties to the girl’s application.

The court’s reasoning was technical:  First, it pointed out that under the CLRA the girl had a unilateral stand-alone legal right to withdraw from parental control once she reached age 16.  The court added:

Once a child declares an intention to withdraw from parental control, her independence may – as it was here – be recognized by the police and the schools. There is no formal court process for a child to withdraw. … Unlike jurisdictions such as Quebec which have procedures for “emancipation”, Ontario law does not have a formal process for withdrawing from parental control. The child simply has to take control of the incidents of custody which include decision making regarding residence and education. No court process is required.

However, there was a narrow distinction between withdrawing from parental control, and obtaining a declaration from the court to that effect.  The former was a legal right that the girl could exercise unilaterally; the latter was a request to the court that it exercise its jurisdiction to make a declaration.  Here, the girl had appeared before the court for the second item, the declaration, which triggered consideration of the various legal interests of both the child and the parents.  In this matter, some of those interests were in conflict and called for a balanced inquiry.  Also, the CLRA expressly provides that the parents must be before the court in any application in respect of a child.

In short, and based on the legislation and basic legal principles, the court found that the parents must indeed be parties to their own daughter’s application to withdraw from parental control, but that the court has a broad discretion to direct the extent of that participation.  Here, although the father had not initially been named as a party by the lower court judge, he had been allowed a certain level of involvement nonetheless. He had been allowed to file material and make submissions.

The court also concluded that the merits of the girl’s application justified the order made. The prior judge had fully considered the extensive court record, which included more than a dozen affidavits providing information on which the best interests of the girl could be assessed.  The judge’s findings were supported by the evidence, and there was no procedural unfairness in granting the declaration.

As the Appeal Court stated: “The declaratory relief was not exercised in a vacuum. There was a clear reason for it.”

The father’s appeal was dismissed.

R.G. v. K.G.,

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 Is a Retainer Agreement?

Wednesday’s Video Clip: What Is a Retainer Agreement?

Ontario family lawyer Russell Alexander talks about retainer agreements between client and lawyer. These agreements set out the scope of services provided by your lawyer and defines the contractual relationship between you and your lawyer.

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

In Custody/Access Matters, Should the “Voice of the Child” Be in Brief, and in Writing?

Image result for voice of the child

In Custody/Access Matters, Should the “Voice of the Child” Be in Brief, and in Writing?

In even the most routine child custody, access and child protection determinations, courts are obliged to consider a vast array of factors that explore what arrangement will be in the best interests of the child.   Among the key considerations – particularly for an older child – are the child’s express wishes. For example, in the child custody context, the child’s own views will be explored on topics such as which of two separated or divorced parents he or she wishes to live with.

How Courts Currently Hear the “Voice of the Child”

In Ontario, and for all child-related proceedings and for any decision-maker under legislation impacting children, this purposive inquiry is legally-mandated under several statues, including the Katelynn’s Principle Act (Decisions Affecting Children). The fundamental principle is that “a child must always be seen, the child’s voice must be heard, and the child must be listened to and respected.”  This concept is also confirmed and echoed in Article 12 of the United Nations Convention on the Rights of the Child.

As a sort of shorthand in family law matters, this is commonly referred to as the “Voice of the Child”.

Presently, the formal method for identifying the Voice of the Child in child-related matters is through a detailed, labour-intensive, and legislatively-mandated report prepared by the Office of the Children’s Lawyer (OCL) in each case.  The report can be prepared only after the child, and everyone involved in his or her life, is exhaustively interviewed by qualified experts.  The report must also include recommendations on “all matters concerning custody of or access to the child and the child’s support and education” as a means of assisting judges to make a decision as to the child’s best interests.

What’s New?

While still relatively innovative, there is a more efficient option on the family law horizon in Canada.  Called the “Voice of the Child Report” (VCR), it is a briefer, non-OCL-evaluated report written by a social worker, lawyer, or mental health professional.  The VCR simply outlines the child’s wishes in a neutral way, with the sole focus being on the child’s views.

Using a VCR results in a more streamlined, efficient, and cost-effective way to keep the child involved, while still providing the court with a sufficiently fulsome, but non-binding, glimpse into the child’s wishes.  The weight and impact given to the VCR will depend on numerous factors, including the age and maturity of the child, the clarity of his or her wishes, and how long the particular preferences have been held.  Both parents must consent to using a VCR, and they are responsible for paying the cost of its preparation.

Why are VCR’s a Good Option?

A study by two Canadian professors of Law and Social Work, respectively, suggests that the use of VCRs should be widely endorsed by stakeholders in the family law system.   After a pilot project to use VCRs in a handful of Ontario court regions, their study involved interviewing parents, children, judges and lawyers on their experience with using VCRs.  Most parents and professionals found the shorter reports helpful in resolving disputes.  The children also reported that they enjoyed the opportunity to be heard on their custody and access-related wants and preferences.

The authors’ resulting report, titled the Views of the Child Report: The Ontario Pilot Project – Research Findings and Recommendations, suggests that the use of streamlined VCRs has many benefits:  It can avoid the intensive interview and recommendation process, keep costs and delay at a minimum, yet still uncover a child’s true wishes around custody and access.  Plus, separated parents who opt to use VCRs often find themselves encouraged to settle; the VCR’s straightforward statement of the child’s own, unfiltered sentiments can help parents re-focus on the true objectives behind the litigation in which they are often embroiled.

VCRs have not been formally adopted or mandated for use in Ontario family law matters. However, in conjunction with the provincial Attorney General’s office, there are plans afoot to explore whether they should be introduced into the court system, through an amendment to the current legislation.

What are your thoughts?  Are VCRs a good idea for child custody and access matters?

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

 

 

Is Husband’s Payment of 230 Gold Coins Under Islamic Marriage Contract Excluded from Wife’s Property?

Image result for islamic coins

Is Husband’s Payment of 230 Gold Coins Under Islamic Marriage Contract Excluded from Wife’s Property?

Under the law governing Islamic marriage, a “Maher” (sometimes written as “Mahr”) is a written marriage contract.  In the recent Ontario Court of Appeal decision in Bakhshi v. Hosseinzadeh, the narrow legal question was whether, under the Ontario Family Law regime, the property transferred under a Maher is excluded from the definition of Net Family Property (NFP), and by extension excluded from the equalization calculation of the parties’ respective NFPs upon divorce.

When they married in Iran in 1995, the couple had entered into the Maher in keeping with their religious and cultural beliefs.  The Maher contained a clause that required the husband to pay the wife 230 gold coins promptly upon her request.  The spouses later immigrated to Canada.

When in 2013 the wife began divorce proceedings and various related court applications, the issue arose as to how the notional transfer from the husband of those 230 gold coins under the Maher was to be treated in law.  At the initial trial, the judge concluded that the Maher obligation was valid and that the value of the gold coins – about $80,000 – was to be excluded from the wife’s NFP total.

The Court of Appeal was asked to entertain the husband’s appeal.  It began by confirming the ruling of prior courts to the effect that despite being religion-based, marriage contracts such as a Maher can be enforceable, provided they satisfy the elements of a valid domestic contract under Canadian law.  Once deemed valid, they are interpreted like any other civil contract, by looking at their wording and the objective intentions of the parties at the time the agreement is made.

Next, the Court observed that definition of NFP found in the provincial Family Law Act includes all property owned by a spouse on the valuation date.   The Maher in this case contained no express agreement that the payment of 230 gold coins was to be excluded from the wife’s NFP, nor was there any basis to infer that the spouses intended at the time to exclude it.  To the contrary, it was executed in Iran and contained other terms that suggested the couple envisioned continued life in that country, and were not contemplating their potential mutual obligations under the Ontario legislation.

The Appeal Court concluded that the Maher payment was to be treated under the Family Law Act like any other payment obligation between the spouses, meaning that it was to be included in the overall calculations.  That outcome was in keeping with the rest of the legislative regime, which envisions that spouses own property separately during marriage, and does not allow for transactions between spouses to be excluded from NFP calculations.

The Court re-calculated the NFP by including the value of the Maher payment, while clarifying that the husband still needed to actually (i.e. physically) transfer the 230 gold coins to the wife’s possession.  Even though its value was to be included in the overall equalization calculation, the Maher payment itself was considered a demand obligation with a paper value, which meant the wife was entitled to pursue debt collection remedies if the husband refused to pay.

For the full text of the decision, see:

Bakhshi v. Hosseinzadeh

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: Ontario Wills 101, Issues to consider Before Meeting your Lawyer

Wednesday’s Video Clip: Ontario Wills 101, Issues to consider Before Meeting your Lawyer

In Ontario, a Will is a written document that sets out the person’s wishes about how his or her estate should be taken care of and distributed after death. In this video, a senior law clerk with Russell Alexander Family Lawyers, describes what a will is, some of the early issues to consider for preparing a will, and what steps you should take once you have your will in place.

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