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Posts tagged ‘paternity disputes’

Boxer George Chuvalo at the Center of Legal Incapacity Issue Involving Marital Reconciliation

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Boxer George Chuvalo at the Center of Legal Incapacity Issue Involving Marital Reconciliation

The legacy of long-retired legendary Canadian boxer George Chuvalo did not end in the ring: it has spread to the legal realm as well, since his mental capacity for making his own decisions is at the center of a court battle between two of his adult children and his wife of 24 years.

The outcome is important, as it’s part of ongoing disputes being litigated between some of Chuvalo’s adult children and his wife – their stepmother – from whom he has been living separate and apart for several years.  The dispute had devolved into what is now a two-year legal battle, featuring allegations of kidnapping, extortion, and reckless spending, among other things. (And in separate legal proceedings, the adult children are also seeking to assert the power of attorney they were granted, over the objections of the wife, who disputed its validity and is seeking guardianship of Chuvalo).

Chuvalo, now 80 years old, suffers from what the court concluded was “significant cognitive impairment”.  It appointed the Public Guardian and Trustee as Chuvalo’s representative and litigation guardian.

Against this background, the specific legal question for the court was whether Chuvalo’s incapacity makes him unable to decide whether he wants to divorce his wife, or to reconcile with her.  Independent medical experts were at odds over his current level of decision-making capacity and whether he was legally “competent” for these purposes.  That designation involved assessing whether he 1) understood the context of his decisions, 2) was aware of his specific choices, and 3) appreciated the consequences of those choices.

Chuvalo’s wife claimed that in his present declining mental state, he simply lacked the legal capacity to instruct counsel, and to seek a divorce from her.

Despite evidence that Chuvalo wanted to live with and be with his wife, the court noted that statements to this effect were not necessarily reliable in legal sense, to the point it could conclude that Chuvalo actively wanted to reconcile.  As the court said:  “Expressing a desire to live with his wife is just that.”  Plus, there was no evidence that he understood whether there would be legal consequences (relating to the legal aspects of separation and divorce) that the desire to live with her would entail.  Since the evidence was clear that his mental health had declined significantly, and that he suffered cognitive and memory challenges, the court could not rely Chuvalo’s statements.

After reviewing the evidence overall, the court declared that Chuvalo “does not have the capacity to decide whether to reconcile.” While conceding that this implied there had been a separation at some point, the court said it was not deciding that issue conclusively for Family Law Act and Divorce Act purposes, and that it could be addressed in a future trial. Nor was the court deciding whether Chuvalo had the capacity to actually divorce.

In a more pro-active and hopeful vein, the court added:

The fundamental issue here is the conflict between [the wife] Joanne Chuvalo on the one hand and George Chuvalo’s children Mitchell and Vanessa on the other hand.  I have not heard evidence but I have formed an understanding that each is convinced that the other is out to manipulate and control George for personal financial gain. I make no findings. I do observe that it is time for those who are or have been close to George and important to his welfare to find a way to collaborate in his best interests. In her evidence, [the wife] Ms. Chuvalo observed that she has been devastated over the last few months when she has seen him at court attendances at the extent to which George has deteriorated. [The Public Guardian and Trustee’s] retainer is to address litigation issues.  However, once he gets up to speed, I would ask him to consider how the PGT might encourage the family members to find a way to bury the hatchet and co-operate to develop a plan that will work in the best interests of George in his remaining years while he continues to experience inevitable decline.

For the full text of the decision, see:

Chuvalo v. Chuvalo

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

Legal Aid Ontario Launches New “Racialized Communities Strategies”

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Legal Aid Ontario Launches New “Racialized Communities Strategies”

Many of you may be familiar with Legal Aid Ontario (LAO), which is a non-profit corporation tasked with administering the province’s legal aid program serving members of the public.  Although it is independent, it is publicly-funded and publicly-accountable.

LAO’s overarching mandate is to promote access to justice for low-income individuals throughout Ontario, which involves identifying their diverse legal needs.  To further this mandate, LAO reports that it is launching a Racialized Communities Strategy, which it hopes will allow it to “build upon [its] services and supports to better help with the legal needs of racialized communities.”

(LAO clarifies that the term “racialized communities” refers to “all people who do not consider themselves to be white;” it also specifies that the term does not encompass First Nation, Métis and Inuit people).

Noting that there has been an over-representation of racialized communities in the justice system, LAO will be asking clients in these communities a series of questions about what may not be working for them in terms of LAO’s rules and processes, and what gaps there may be in legal services.   LAO also intends to talk to broader categories of members, and the community agencies that serve them, including:

  • justice and social service partners
  • communities
  • lawyers
  • community service providers
  • legal clinics
  • professional associations
  • government agencies
  • LAO staff

Using the information gathered from these diverse sources, LAO will build upon its services and supports to better help with the legal needs of racialized communities, in order to:

  • better understand client needs
  • develop improved processes that reflect a better understanding of client experiences
  • provide more support to service providers
  • create a plan for better understanding of clients specifically by LAO staff

The first year of the Racialized Communities Strategies will be spent identifying ways in which LAO’s legal services can be enhanced to address the needs of this specific community.

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

Father’s “Under the Table” Income Gets Imputed to Him; Facebook Helps Convince Court

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Father’s “Under the Table” Income Gets Imputed to Him; Facebook Helps Convince Court

Beware:  Facebook sees all.

More and more these days, evidence from social media is being used by former couples against each other in court.  Embattled spouses will comb each other’s Facebook, Twitter, and Instagram to find evidence supporting their version of the story, often in support of their contradictory positions on matters such as what the other spouse earns.

This was the situation in Gonzalez v. Garcia.  The separated parents were before the court to sort out the extent of the 26-year-old father’s child support obligations toward the 3-year old child they had together.

The child lived with the 29-year-old mother, who was asking for child support.  She was currently in school and supporting herself and the child on Ontario Student Loans, together with small amounts the father had been paying.   She asked the court to impute income to the father at a $45,000-per-year level, and order him to pay support accordingly in keeping with the Child Support Guidelines.

For his part, the father claimed he could not afford to pay child support, since he was currently unemployed and on social assistance.  He claimed he was being supported by his parents and his new girlfriend.  However, as part of a prior hearing in which he declared to have earned about $23,000 for the year based on his tax returns, he did admit to earning $2,000 or $3,000 per year under-the-table.

The mother countered his claims, insisting that his undeclared income was much higher:  He actually earned between $40,000 and $45,000 per year working in construction while they lived together.  The court explained the nature of the mother’s testimony on this point:

The mother stated that the father was employed for most of the time they were together. She said that he would earn income under his social insurance number and would also earn income using his father’s social insurance number. The purpose of doing this, she said, was that both would be able to claim employment insurance. In addition, the mother said that the father earned significant cash income in this time period.

The mother testified that the father manipulated bank accounts in order to show he had no assets. This way, he could obtain benefits from social services and avoid creditors. She said that he bragged about his ability to do this. She testified that the father’s mother cashed his cheques from work and gave the cash to the father and to her.

The mother provided evidence from the father’s Facebook page to establish that he is living a comfortable lifestyle. This included evidence of two trips to New York and a trip to Ecuador in the past year; evidence of tickets to sports events and concerts and many pictures of the father partying at nightclubs.

The court accepted the mother’s evidence on this point, finding that she was a credible witness who provided considerable detail about the father’s work history and financial affairs.  In contrast, the father was vague in his testimony and lacked credibility.   He was also cavalier about fulfilling his obligation to provide full disclosure.  After describing a sort of “shell game” in which the father manipulated his bank accounts to avoid revealing his true assets creditors, the court noted:

The father acknowledged that the Facebook entries provided by the mother were authentic. He denied paying for any of his trips, sports or concert tickets, or the multiple alcoholic beverages appearing before him in the pictures. He claimed that these were all paid for by friends and family. He was not credible.

The court ordered the father to pay child support based on an imputed income of $42,500. It also ordered him to pay retroactive support, since it found the mother’s request “modest and reasonable.”

For the full text of the decision, see:

Gonzalez v. Garcia

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

 

 

Indigenous Father Appeals Ruling Giving Ontario Courts Jurisdiction Over Mother’s $117,000 Monthly Support Claim

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Indigenous Father Appeals Ruling Giving Ontario Courts Jurisdiction Over Mother’s $117,000 Monthly Support Claim

Late last year, I reported on an unusual Ontario family law decision called Beaver v. Hill, in which the issue was whether an Indigenous former couple’s family dispute should decided pursuant to the laws that govern their particular clan, rather than by the family laws of Ontario.

The man, Ken Hill, who is a wealthy Indigenous co-owner of the largest cigarette company on the Six Nations reserve, had resisted his former romantic partner Brittany Beaver’s claim for almost $86,000 a month in spousal support, and $33,000 a month in child support for the 8-year old child they had together.   Hill earns about $2.1 million per year, tax-free.

Among Hill’s arguments to the Ontario court was that his Indigenous Haudenosaunee laws should be applied to decide the support claims by Beaver against him.  That court dismissed his argument.

Now, Hill has filed an appeal which includes a Charter challenge to be heard by the Ontario Court of Appeal.

Hill intends to argue that the decision to allow the Ontario family courts to decide the dispute between him and Beaver would violate the constitutional rights of Indigenous peoples.  In Hill’s view, the family-related disputes of the Haudenosaunee people should be resolved according to their own laws and governance.

Hill’s appeal is slated to be heard by the Ontario Court of Appeal in June of 2018.

For the full-text of the lower court decision currently under appeal, see:

Beaver v. Hill

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 Rules Kids’ “Adaptability to Change” Is a Factor Letting Him Move with Mother to the U.S.

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Court Rules Kids’ “Adaptability to Change” Is a Factor Letting Him Move with Mother to the U.S.

In a recent Newfoundland decision, called Sexton v. Tipping, the court made what is arguably a sensible and realistic observation about children’s adaptability to change, especially at a young age, and how that can bolster a court’s decision-making on factors relating to custody and primary care.

In that case, the court wrote:

It is a reality of the times in which we live that many couples with children come together through partnership or marriage, separate or divorce after a period of time and then move on with their lives. … The crux of these scenarios is change – for the parents and for the children.

Change is a constant in all our lives. As a general principle, children are adaptable in their lives. They change communities. They change schools. They change friends. Many change families, not because of their actions but because of the actions of their parents. That has happened in this matter.

On the facts of that case, the court took comfort from that reality as part of its rationale for allowing a change to the custody arrangement. In light of the child’s best interests, he was placed in the joint custody of both parents, but would have primary residence with his mother, who was allowed to relocate to Arizona with the boy.

Arguably, for any child the move to an entirely new country is quite a drastic change. Yet the court seems to be saying that divorce, separation and changes to family dynamics are so commonplace in “the times in which we live” that the seriousness of its impact on children may have been diluted, especially for the younger ones.

Should the reality of widespread divorce and broken families in our society diminish court’s focus on the “best interests of the child,” which legislatively-mandated to be the paramount criterion in child custody and access matters?

What are your thoughts?

For the full text of the decision, see: Sexton v. Tipping

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

Self-Represented Litigants:  Doing the Math on “Counsel Fees” For Yourself

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Self-Represented Litigants:  Doing the Math on “Counsel Fees” For Yourself

More and more, Family litigants are opting to represent themselves in court, and in legal proceedings generally. As I have written before, this can raise the related issue of whether these litigants are entitled to fees – meaning the legal fees they would have paid to a lawyer to represent them, instead.

Courts have had to grapple with the issue on some occasions. Some years ago, in a case called Fong. v. Chan the Ontario Court of Appeal confirmed that self-represented litigants are indeed entitled to claim for fees in principle – but on a reduced scale.  And as I illustrated in a more recent blog the assessment is based on the court’s evaluation of the litigant’s “performance” in that self-represented role, which requires assessing his or her level of preparation, the attempt to make a coherent case, organize the materials, and marshal the evidence.

With those principles and factors established, the court must still go on to put a practical, dollar-value on the costs figure to which the litigant is entitled.  In a case from a last week called Roach v. Lashley, the court illuminates the mathematical part of the exercise.

There, the woman in a Family law case represented herself and in terms of the final outcome, was the successful party overall.  The court adjudged her as being entitled to her costs of trial.  The question was what her properly hourly rate should be – she had claimed $75 per hour (or $600 for an 8-hour day) for appearing in court and for out-of-court trial preparation. These were to cover her own costs as a self-represented party.

Unfortunately, there has never been a set rate established; a few years ago, in a case called Blustein v. Kronby the court set what it termed a “now-accepted rate of $60 per hour for self-represented litigants”.  Yet another case from around that same time, Jahn-Cartwright v. Cartwright, the court allowed a layperson litigant a fee of $200 an hour, but deducted the income that the person would have lost for attending in court anyway.

The court noted that the hourly rate of self-represented litigants must be set with reference to the skills and trial presentation by the self-represented person, especially in light of the complexity of the case.  It also noted that the Family Law Rules did allow courts to assess costs based on “lawyer’s rates” as well as the “time properly spent on the case”.

Returning to Roach v. Lashley, the court praised the woman as having “demonstrated a surprising degree of skill in preparing for and conducting her case at trial.”  This included preparing the financial documents the court needed to assess child support, organizing her documents, and providing a Net Family Property statement. She also conducted an effective cross-examination of her former partner, and managed to establish and prove the value of assets that he himself had not provided even as late as the eve of trial.  It was as complicated for her to do this as it would have been for any lawyer that she hired.

With all this in mind, the court found that the woman’s proposed $75 per hour as a so-called “counsel fee” was entirely reasonable, as was the 35 hours of trial-preparation time that she claimed.  However, the court did deduct an amount representing the loss of income for each day of trial, since she would have had to show up for it whether she had a lawyer or not.  The woman disclosed that this amount was $300 per day.

In the end, the court awarded her $300 per day for trial attendance, and $75 per hour for trial preparation.  She was also entitled to another $150 for preparing the Bill of Costs and her costs submissions.

For the full text of the cited decisions, see:

Roach v. Lashley

Fong v. Chan

Blustein v. Kronby

Jahn-Cartwright v. Cartwright

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 Family Run Businesses can Survive and Thrive after Divorce


Wednesday’s Video Clip: How Family Run Businesses can Survive and Thrive after Divorce

One of the common fears of clients who own family-run businesses is how a divorce will affect the business they have spent their life building. While business owners have control over the work they put into their business and the legacy they are building for their family, they may have little influence over a relationship breakdown. The worry in regards to the effects of this breakdown on a business can cause additional stress above and beyond the heartache associated with restructuring a family.

In many family law matters involving children, the spouses are able to agree to cooperate in order to address the best interests of the children. In many ways, a family business can be used as a similar incentive: spouses can agree to cooperate in order to address the best interests of the family business. While fueling conflict is an almost unavoidable side effect of the court system, a collaborative approach is a very effective method in reducing the impact of separation and divorce on family run businesses. This process seeks to ensure that the business remains viable for both spouses, as well as future generations.

As an alternative to a purely rights based approach, other options can be considered in the collaborative approach, including:

• Family trusts or holding companies as a method of sharing income from the family business

• Tax planning, avoiding the possibility of triggering a Canada Revenue Agency audit

• Considering the formation of a new family trust

• Employment of children in the family business • Estate, succession, and capacity planning

• Ensuring insurance is in place to cushion the effects of any risks

• Gifting shares or portions of the family business to children or other family members

• Maintaining the privacy of the family business

• Managing the continuation of income streams

• Splitting income among family members • Delaying equalization or sharing business payments (i.e: if and when the family business sells)

• Preserving the family legacy for generations

• Recognizing and predicting the ebb and flow of the market and business patterns

Unlike the court system, the collaborative process is unique in that it offers the additional benefit of involving neutral professionals.

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

Obstinate Father Pays the Ultimate (Litigation) Price

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Obstinate Father Pays the Ultimate (Litigation) Price

Even the most acrimonious of court disputes between former spouses hinges on a premise: That, having agreed to give the court power to settle their dispute once and for all, the spouses will each obey any orders the court eventually makes.  Otherwise, there is no real point in both parties showing up to participate.

In a very recent decision by the Ontario Court of Appeal in Del Vecchio v. Del Vecchio, the husband stubbornly refused to play by that simple rule – and the court had no choice but to eject him from the process.  The court set the stage:

This contentious family law litigation has been ongoing for much longer than it should primarily because of the [husband’s] refusal to obey orders of the court.

The court itemized some of those defalcations on the husband’s part:

  • He did not pay child and spousal support arrears as he had been ordered to do, nor did he ask for extra time to pay.
  • He was ordered to pay costs to the wife on numerous occasions, arising out of unsuccessful motions on his part. He never paid them.
  • He repeatedly failed to file materials in satisfaction of his financial disclosure obligations, by ignoring court orders to file financial statements, his tax returns, and to obtain an expert valuation of his businesses and investments.
  • Other materials that he did file, under compulsion, were late and incomplete.
  • He delivered a court-requested expert report long after the deadline, but it still had a good deal of information “unfinalized” and pending.
  • He did not follow proper procedure for appealing, missed the deadline to do so, and did not ask the court for a filing extension.

In short, throughout the proceedings the husband wholly failed to comply with court orders and – even giving him the benefit of the doubt – never asked for extensions so he could do so.  Nor did he bring any appeals of those orders, as he could have done if he took issue with their substance.

The court noted that the husband’s pleadings were struck once previously in the same litigation, two years earlier, but he was given another chance.   A year later he was on the brink of having his pleadings struck again, and was warned by the court that there would be no additional chances given unless he fulfilled certain obligations, including paying outstanding costs.  Yet again, the husband still failed to comply.

It was at this point that the wife successfully “pulled the trigger” on asking the court to strike his pleadings. Only in response to that motion did the husband finally take some concrete steps: He filed a few documents and said he paid the arrears, but claimed there was some “mix up” at the Court administrative so that his payments were not credited.  The court did not buy it:

The [husband] was given numerous chances to comply with and meet his obligations – he simply refused. Not until the very last minute did he take any steps to attempt to show he was not in arrears in respect of the support orders. He still had not complied with the obligations requiring financial production and unilaterally reduced his support payments. He remains in serious violation of a number of court orders.

The court added:

The only reasonable conclusion on all the evidence before this court is that the [husband] simply does not accept that he is in arrears of support. … He is mistaken. He remains in non-compliance to this date. He has had many, many chances to rectify his situation but refused to do so. If court orders are to have any meaning they must be respected.

The court upheld the prior ruling to strike the husband’s pleadings, and confirmed that the wife would be allowed the wife to go forward without his participation in the proceedings, in an uncontested trial.

Bottom line:  In Family Court, have to play by the rules.

For the full text of the decision, see:

Del Vecchio v. Del Vecchio

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

 

Being Self-Represented:  Is it an Excuse for Not Knowing Court Procedure?

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Being Self-Represented:  Is it an Excuse for Not Knowing Court Procedure?

If you have missed a court deadline, or if you were confused or unaware of proper legal procedures, is being self-represented a valid excuse? Will the court cut you some slack?

According to two fairly recent Ontario Court of Appeal decisions, the answer is a clear “NO.”

In the first case, called Carpenter v. Carpenter, the Court of Appeal had to consider whether to extend the lapsed deadline for the husband to appeal an earlier order in his family litigation.  The order he was trying to appeal from saw his court pleadings struck out entirely, for his failure to comply with an earlier court directive requiring him to pay $2,000 in costs within 10 days.

The husband was currently self-represented, but he had hired a lawyer during earlier stage of the litigation and was still receiving some limited advice from her along the way.   He missed the appeal deadline at a time when he was acting for himself.

In this scenario, the court said:

The fact that Mr. Carpenter was self-represented does not excuse his failure to comply with the necessary time limit or, once he was aware of the Final Order, to move promptly for an extension of time. Any participant in litigation, including a self-represented party, has a responsibility to familiarize himself or herself with the procedures relevant to the case. … As such, the fact that Mr. Carpenter took several months to seek out and then retain counsel to bring this motion is an answer but not a full and satisfactory explanation for his delay.

In making this declaration, the court drew from another recent Appeal Court decision in a civil case called McDowell v. Cavan-Millbrook – North Monaghan (Municipality), where in the process of rejecting the litigant’s excuse for his ignorance as to procedure, stated:

The appellant argues that being self-represented, he was unaware of certain procedural steps …. The court system often presents considerable challenges to people who are unrepresented by counsel. Participants in the justice system should not be denied relief on the basis of a minor deficiency. That said, a participant, including a self-represented party, has a responsibility to familiarize him or herself with the procedures relevant to the case. Here the delay was indeed inordinate and prejudicial, and resulted in a substantial risk that a fair trial would not be possible. The appellant’s conduct cannot be excused simply because he was self-represented. This would work an injustice to the respondent and to other participants in the system.

These Ontario Appeal Court rulings making it abundantly clear:  Representing yourself is not an excuse for being unaware of court procedures and deadlines.   Self-represented family litigants, take note!

For the full text of the decisions, see:

McDowell v. Cavan-Millbrook – North Monaghan (Municipality)

Carpenter v. Carpenter

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

 

 

 

Does Husband’s Bankruptcy Suspend His Obligation to Pay Costs Order in Wife’s Favour?

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Does Husband’s Bankruptcy Suspend His Obligation to Pay Costs Order in Wife’s Favor?

Here’s a legal scenario to consider:

  • The husband in a divorce proceeding is ordered by the court to pay $35,000 in legal costs to the wife. He fails to pay – or even to make any attempt to pay.
  • The wife succeeds in getting a court order to have the husband’s pleadings struck out entirely, for failure to pay the ordered costs. The court also orders that he be prevented from participating in the trial going-forward (e. he cannot testify, call or cross-examine witnesses, or make submissions).
  • However, given the drastic outcome, the court gives the husband a little extra time to pay the $35,000 before finalizing the part where his pleadings get struck out.
  • In the meantime, the husband makes an assignment in bankruptcy. He never does pay.

This was the situation in a case called Clark v. Moxley. The legal twist is that under Canadian federal bankruptcy legislation, all costs decisions against the husband were automatically stayed (i.e. suspended) the moment he declared bankruptcy.  After that point, creditors – including the wife with the $35,000 order in her favour – could no longer take individual steps to pursue payment from him, except via the trustee in bankruptcy.

So the legal question for the court was this:  If the wife was not in a position to enforce the costs order in her favour, did this still mean the husband’s pleadings could be struck out for non-payment?

Naturally, the husband was against this outcome:  He claimed that in light of his bankruptcy the order should not be given effect – especially since there were significant and serious custody / parenting issues outstanding, not to mention efforts on the wife’s part to exclude him from the child’s life.  If his pleadings were struck out, he would be alienated from the child.

Rather unsympathetically, the court noted that the husband was on the brink of a rather dire situation because of his own decision not to pay the ordered costs.  However, under federal bankruptcy law, that order was technically no longer enforceable once he assigned himself into bankruptcy.  That non-enforceability stripped the court of its legal justification to strike his pleadings.   Also, the husband’s bankruptcy had occurred before the motion to strike his pleadings was fully concluded.

The court therefore declined to strike the husband’s pleadings at this juncture.  It added the decision to strike pleadings is traditionally considered one of a last resort, to be used in a proportionate manner, and where there are no other remedies.

The court observed that the wife would still be eligible to fully participate in the husband’s bankruptcy proceedings, and to oppose his discharge from it.   If the costs survived the bankruptcy, then the court could still order the husband to pay them after-the-fact, or could ask for security for costs if the husband wanted to return to court to make a new application.

For the full text of the decision, see:

Clark v. Moxley

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