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Posts tagged ‘Supreme Court of Canada’

To Get Retroactive Support, Does a Kid Have to be Eligible at Now … or Only Back Then?


To Get Retroactive Support, Does a Kid Have to be Eligible at Now … or Only Back Then?

A recent Ontario case highlights an interesting “timing” conundrum in Family Law: when a parent applies for retroactive child support, does it matter that the child over 18 when the application is made? Or does that make the child ineligible for support?

And what if it’s a motion to retroactively change existing support levels?

The law on this point was canvassed in the recent case of P.M.B. v. A.R.C.-A. The mother wanted support to cover a period when the child was 18 and attending school full-time. However, on the date of her application, the child was 19 and no longer attending school. She asked the court to order child support that was retroactive (i.e. effectively “back-dated”) to cover the child’s eligible period.

In considering that claim, the court resorted to the principles set out in a well-known Supreme Court of Canada decision in D.B.S. v. S.R.G., where the court set out the factors that family courts should take into account in detailing with such retroactive applications.

That higher Court had confirmed the general principle (known as the “D.B.S. rule”), that a claim for retroactive support cannot be made unless the child is eligible for support at the time the application is made. As the court in P.M.B. v. A.R.C.-A. put it: “Child support is for children of the marriage, not adults who used to have that status.”

(But this principle comes with a caveat, because the standards and thresholds for what makes a child eligible for support are slightly different under the provincial Family Law Act versus the federal Divorce Act. Also, other established factors that need to be examined, such as the reason for the parent’s delay in applying, the conduct of the paying parent, the circumstances of the child, and the hardship that such an award may entail. In short: Child support eligibility is a complicated legal issue).

However – as with all rules – there are some exceptions. The D.B.S. rule will usually be found not to apply in cases where:

• There is an existing order in place (and an established support obligation under either the Divorce Act or the Family Law Act) and a motion is being brought to change it retroactively;

• A party has engaged in blameworthy conduct (for example where the support recipients have been thwarted or blocked from pursuing a motion to vary support because of some misconduct by the paying parent); or

• The paying parent has failed to disclose income increases to the recipient parent, in a manner that the court considers blameworthy.

Ultimately, and after considering all of these principles, the court in P.M.B. v. A.R.C.-A. decided to stray from the usual D.B.S. rule, for various circumstantial reasons. These included: a) the existence of an oral agreement for child support; b) the fact that two of the three children were still under age and eligible for support when the retroactive support order was being made; and c) because the father had been fully aware of his support obligation – and the fact that he was not meeting it – all along.

For the full text of the decision, see:

P.M.B. v. A.R.C.-A., 2015 ONCJ 720 (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

What Duties to Spouses Have Towards Each Other When Negotiating?


What Duties to Spouses Have Towards Each Other When Negotiating?

This was the question that the Supreme Court of Canada tackled in a case a few years ago called Rick v. Brandesma. The question arose in the context of a separation agreement, which the husband and wife had negotiated after almost 30 years of marriage and five children together.

The wife later went to court to have the agreement struck down, claiming that in the course of those negotiations the husband had either deliberately concealed or under-valued assets (which included a dairy farm and certain shares in a company), and had taken advantage of her emotional instability. (Indeed, the trial judge had described the wife has having a “long-standing psychiatric disorder”, and “an unhealthy condition of the mind.” )

The resulting separation agreement had left the wife with $650,000 less than she should legally have obtained. She was successful at trial in having the agreement overturned, but that had been reversed on appeal.

In reviewing the case, the Supreme Court started by making the observation that the dissolution of a marriage – especially a long-term one – is uniquely emotionally charged and results in the potential for one or the other spouse to be particularly vulnerable. This potentially affects the integrity of the bargaining process. Special care has to be taken to ensure that the marriage assets are distributed in a manner that is free from exploitation both in terms of the psychological state of the parties, and information that is exchanged.

The key points from the Supreme Court were:

• Spouses are free to decide what they are prepared to settle for, but they must do so after being given all the relevant information.

• Each spouse is under an obligation to provide full and frank disclosure to the other of all relevant financial information.

• If an agreement is negotiated without such disclosure, a court may set it aside in the right circumstances, on the basis of unconscionability.

• Whether a court will intervene depends on the circumstances, including the extent of the defective disclosure, the degree to which it has been deliberately orchestrated, and the extent to which the resulting negotiated agreement is at odds with the goals of the relevant legislation.

The Court summed it up this way:

“In other words, the best way to protect the finality of any negotiated agreement in family law is to ensure both its procedural and substantive integrity in accordance with the relevant legislative scheme.”

In the current case, the husband’s failure to make full and honest disclosure, his willingness to exploit the fact that negotiations were based on incomplete information, plus his awareness of his wife’s profound psychological instability, all dictated that the separation agreement was to be set aside.

For the full text of the decision, see:

Rick v. Brandesma, 2009 SCC 10, [2009] 1 SCR 295

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

Should Courts Be Allowed to Cut-and-Paste Their Reasons?

cut and paste

Should Courts Be Allowed to Cut-and-Paste Their Reasons?

Just this past week, the Supreme Court of Canada considered an interesting question: In writing their judgments after a trial or hearing, are judges allowed to do large-scale cutting-and-pasting of other people’s written argument?
The answer is – apparently – “yes”.

The factual background of the case involved a negligence action in which a baby suffered brain damage during birth, and developed cerebral palsy subsequently. The mother had delivered a first child C-section; the second baby was delivered via an induced vaginal birth. This decision put her into a high-risk category, and the legal issue was whether she had given informed consent.

At trial, three doctors were found liable in negligence, and the mother was awarded $4 million in damages.

However in written award to that effect, the trial judge’s reasons consisted largely of reproduced portions of the submissions of the mother’s lawyer. Of the 368 paragraphs of the written decision, 321 were cut-and-pasted, and only 47 were in the judge’s own words, including the final conclusions.

On appeal, the Court set aside the trial judge’s reasons because of the extensive copying, and ordered a new trial.  A later appeal went all the way to the Supreme Court of Canada.

The Supreme Court of Canada pointed out that it is not prohibited for judges to include the work of others in their reasons. Indeed, it concluded that judicial copying was a “longstanding and accepted practice”, and was becoming easier to do with the introduction of the computer and the use of electronic submissions by lawyers.

The Court pointed out that it was not the copying per se that makes the process of judgment-writing unfair: it is the impression that the judge failed to independently and comprehensively assess the issues and arguments raised. The court wrote:

In summary, courts in Canada and elsewhere have held that copying in reasons for judgment is not, in itself, grounds for setting the judge’s decision aside. However, if the incorporation of the material of others would lead a reasonable person apprised of all the relevant facts to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law, the presumption of judicial integrity is rebutted and the decision may be set aside.

After looking at all the elements of the negligence case before it, the Supreme Court of Canada ultimately held that despite the trial judge’s very extensive copying, the decision should not be set aside. There was nothing to suggest that the judge was not impartial or that judicial integrity was not maintained. The award was overturned for other unrelated reasons, however).

How would you feel if the judge’s decision in your Family Law was mainly a cut-and-paste job?

Should judges be prevented from doing this?

For the full text of the decision, see:

Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (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

Should Common-Law Couples Be Equivalent to Married Couples? One Step Closer… One Step Back


Should Common-Law Couples Be Equivalent to Married Couples? One Step Closer… One Step Back

In Ontario – and with some notable exceptions – common-law spouses have the same rights as those couples who are in a traditional marriage, and for legal purposes have many (though not all) of the same obligations towards each other. However, in a recent Ontario criminal case called R. v. Hall the court examined whether there should be different treatment applied to common-law spouses in connection with testifying against their partners in certain criminal matters.

As background, it must be noted that under the Criminal Evidence Act, the ability of married spouses to testify against each other in certain criminal matters is specifically curtailed. In law, the question is one of “competency” (meaning whether a person can lawfully be called to give evidence) and “compellability” (meaning whether a person may lawfully be forced to attend and testify, usually by way of subpoena). The Criminal Evidence Act therefore sets out certain rules relating to both competency and compellability that pertain to various prescribed scenarios. In short, in some scenarios married spouses are merely competent to testify; in others they are both competent AND compellable. And in other defined (and narrow) situations, spouses are entirely exempted from having to testify.

However, no such exemption applies to common-law spouses (defined by federal legislation as one who is “cohabiting with the individual in a conjugal relationship having so cohabited for a period of at least one year or having a child together, or entering into a cohabitation agreement”). The question in R. v. Hall, was whether they should and whether such an exemption should be “read in” to the Act.

The facts involved a man who had been charged with murder. Certain conversations between him and his common-law partner had been intercepted by police, and she later described for law enforcement authorities some of the many illicit activities in which the accused man had allegedly been involved. Since under the Act the man’s common-law partner was not subject to the exemption that was afforded to married spouses, the question arose as to whether the scenario gave rise to a fundamental unfairness.

The court considered various constitutional principles, and found that the protections for spouses found in the Canada Evidence Act should indeed be extended to common-law spouses, as this would harmonize the law in this area with the other legislation that essentially abolished the distinction between the two types of union.

So why is this case interesting from a Family Law perspective? From a theoretical / policy-based viewpoint, it perhaps stands in stark contrast to a decision of the Supreme Court of Canada a few weeks ago which ruled that under Quebec Family Law, it is not unconstitutional for common-law spouses to be given different rights from married couples in connection with certain specific rights arising from support upon separation. I will comment on that decision – called Quebec (Attorney General) v. A. – in a future Blog post.

For the full text of the decisions, see:

R. v. Hall, 2013 ONSC 834

Quebec (Attorney General) v. A., 2013 SCC 5

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

Are Canadian Judges Ready for to Face Lawyer Criticisms? (And is T.V-Style Courtroom Drama Next?)


Are Canadian Judges Ready for to Face Lawyer Criticisms? (And is T.V-Style Courtroom Drama Next?)

Many people form their impressions of how the Family Court system works from watching T.V. shows or movies, namely overwrought legal dramas or courtroom reality shows. The truth is that Family Law process is considerably more mundane; for example in Canadian law there are no “surprise” witnesses who emerge at the eleventh hour to derail the proceedings and save the day for the underdog plaintiff. Courtroom antics are frowned upon in favour of civility and decorum. And while tempers can certainly flare, volleys of insults and dramatic shouting-matches between opposing counsel are generally not tolerated. Moreover, judges have historically been immune to criticism by the lawyers who appear before them.

But should judges be? That was the question recently addressed by the Supreme Court of Canada.

The case called Doré v. Barreau du Québec involved the specific issue of whether lawyers should be at liberty to criticize judges. The case involved a Quebec lawyer named Gilles Doré, who in 2001 represented a client before a judge of the Quebec Superior Court. During the hearing, the judge rebuked Doré for some of his submissions on his client’s behalf, adding that “an insolent lawyer is rarely of use to his client.” He also stated that Doré’s style was full of “bombastic rhetoric and hyperbole,” and that some of his submissions were “ridiculous”.

In response, Doré wrote the judge a private letter, which read in part:

I have just left the court. Just a few minutes ago, as you hid behind your status like a coward, you made comments about me that were both unjust and unjustified, scattering them here and there in a decision, the good faith of which will most likely be argued before our Court of Appeal.

If no one has ever told you the following, then it is high time someone did…
Your deliberate expression of these character traits while exercising your judicial functions, however, and your having made them your trademark concern me a great deal, and I feel that it is appropriate to tell you.

Your legal knowledge, which appears to have earned the approval of a certain number of your colleagues, is far from sufficient to make you the person you could or should be professionally. Your determination to obliterate any humanity from your judicial position, your essentially non-existent listening skills, and your propensity to use your court — where you lack the courage to hear opinions contrary to your own — to launch ugly, vulgar, and mean personal attacks not only confirms that you are as loathsome as suspected, but also casts shame on you as a judge, that most extraordinarily important function that was entrusted to you.
I would have very much liked to say this to your face, but I highly doubt that, given your arrogance, you are able to face your detractors without hiding behind your judicial position. …
Worst of all, you possess the most appalling of all defects for a man in your position: You are fundamentally unjust. I doubt that that will ever change.

Doré also wrote to Quebec Chief Justice the next day, asking to be excused from having to appear before that same judge in the future, since he would be unable to fairly represent his clients before him. Doré also complained to the Canadian Judicial Council about the judge’s conduct (which Council ultimately found in Doré’s favour, incidentally; it ruled that the judge had made insulting and unjustifiably derogatory comments, and adding that the judge had displayed a propensity for making personal attacks on lawyers in other cases as well).
Still, Doré himself was found by a disciplinary council of his province’s Bar Association to have engaged in professional misconduct, based on the letter to the judge which was deemed “rude and insulting”. He was suspended from the practice of law for 21 days. That suspension was later heard by an Appeal Court and upheld.

The matter then came before the Supreme Court of Canada on further appeal. In a unanimous 7-0 ruling, the Court held that the Canadian judiciary should indeed be accountable and open to censure, and that “[l]awyers should not be expected to behave like verbal eunuchs.” In particular, under Charter principles there is a public benefit to allowing lawyers to express themselves in a constructive manner, not only about the justice system in general, but about individual judges in particular. Furthermore, disciplinary bodies were expected to tolerate “a degree of discordant criticism” by members of the Bar toward the judiciary.

With that said, the Supreme Court cautioned that lawyers are still expected by the public to display a certain reasonable level of professionalism and “dignified restraint”, and that they could certainly be subjected to professional discipline if their conduct exceeds that threshold.

In Doré’s specific case, however, the line of tolerance had been crossed; his conduct had gone beyond what the public would expect in terms of proper conduct by a lawyer. The Supreme Court added: “His displeasure with the judge was justifiable, but the extent of the response was not.”

Your thoughts?

For the full text of the decision, see:

Doré v. Barreau du Québec, 2012 SCC 12

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

Supreme Court of Canada Renders Controversial Decision in Spousal Abuse Case


Supreme Court of Canada Renders Controversial Decision in Spousal Abuse Case

One of the sad realities of Family Law practice is to realize that not only are some relationships dysfunctional or simply not viable, but some are downright abusive. Physical and emotional harassment and abuse is part of some failing relationships, unfortunately, and can prompt desperate behaviour on the part of the victim. This in turn gives rise to some complicated legal issues.

This was precisely the scenario with Nicole Ryan, a Nova Scotia teacher who this past week had her controversial case heard on appeal to the Supreme Court of Canada. After an R.C.M.P. sting operation Nicole had been arrested for hiring a hit-man to kill her abusive husband, Mark. He was a retired former soldier who had perpetrated various abusive acts against her, including throwing things at her, pushing her against a wall and squeezing her neck, repeatedly holding a gun to her

head, and threatening to kill her and their daughter by burning down the house around them. Once, he apparently drove them to a remote, forested area and told them he planned to bury their bodies there.

Nicole had been acquitted by several provincial courts on the basis that she had been motivated by the extreme duress she suffered in the circumstances.

On subsequent appeal to the Supreme Court of Canada, the court started by pointing out that “[t]he trial judge had no difficulty in concluding that Mr. Ryan was a manipulative, controlling and abusive husband who sought to control the actions of the respondent, be they social, familial or marital.”

However, the Court nonetheless overturned Nicole’s acquittal, ruling that the lower courts had applied the law incorrectly. Canadian law allows for a defence of “self-defence”, but does not recognize “duress” as a justification for criminal behaviour. (Nicole had not argued “self-defence” at her provincial court trials). But the Supreme Court of Canada also took an additional step – which it termed “exceptional” – and ordered a halt to all current and future proceedings against her, essentially allowing her to go free and build a future without being hampered by a criminal record of any sort. It also extinguished the possibility that Nicole would have to face a new trial, which the court found would be “unfair.”

With its controversial judgment, the Supreme Court put an end to five years of trials and appeal proceedings. It also remarked that it was “disquieting” that the police had quickly arrested Nicole after the sting, yet had repeatedly failed to come to her assistance on at least nine separate occasions when she complained to police of her husband’s year-long “reign of terror over her.” (She also called victim’s services 11 times, and dialled “911” on one occasion).

Your thoughts?

For the full text of the Supreme Court of Canada, see:

R. v. Ryan, 2013 SCC 3


How Far Back Should Retroactive Support Go?


How Far Back Should Retroactive Support Go?

In Giroux v. Mueller the main question was whether there should be a retroactive adjustment to the child support owed by the father, and if so, how far back it should go. In making this determination, the court confirmed the general tests and considerations that must be applied under Ontario law whenever retroactive support is being claimed.

As background: Originally, the father had been ordered to pay $520 per month in child support for the couple’s two daughters, based on the Child Support Guidelines. He was up-to-date in his payments.

However, since the initial order was made, one of the daughters had graduated from high school in 2007 and had gone on to college, but by law had ceased to be eligible for support in 2010. The other daughter had also graduated high school in 2011, and commenced university that same year.

In light of these changes, the mother brought a motion for an adjustment to the Guidelines support amount, making it retroactive to January 2006. The basis for her request was somewhat novel: she asserted that the father had an obligation to disclose any increases in his income, and that his failure to make such disclosure after the mother’s request in 2011 is “blameworthy conduct” which entitles her to back-dated support for the children.

The father opposed the mother’s motion, claiming that if support should be retroactive, it should go back only to 2009, which was three years back from the date on which the motion was brought in 2012.

The court considered the applicable law. The issue of retroactive of support was dealt with by the Supreme Court of Canada in a case called S. (D.B.) v. G. (S.R.), where the court confirmed that every parent has the obligation to support his or her child, and that retroactive support is not “exceptional”. Rather, both parents have the responsibility of ensuring that the child receives appropriate support and any obligation is enforceable only once the recipient parent applies for it.

Next, the test for whether retroactive support should be granted involves a court considering: 1) the reasons for delay, 2) any blameworthy conduct by the paying parent; 3) the circumstances of the children; and 4) any hardship experienced by the paying parent. And while it is the “blameworthy conduct” factor that often attracts the most attention, in law all four of these factors must be considered “holistically”, with no single factor being paramount to the others.

There are also two general rules that apply to such scenarios: 1) retroactive child support extends back three years from the date the paying spouse is given notice (for example by the fact that an application for an adjustment to support is launched with the court), unless there has been blameworthy conduct; and 2) the child must be a “child of the marriage” – and therefore eligible to receive support – at the time the application is made.

The court then applied these tests to the facts at hand. Here, it was clear that by imposing the “child of the marriage” criterion at the outset, one of the daughters no long qualified for support at the time the mother’s application was brought.

As for the reasons for the delay, the mother gave no palpable reason for her failure to pursue an adjustment to support until 2011. She knew the father’s whereabouts, had no fear of him retaliating, and did not lack the financial or emotional means to pursue the claim earlier.

The court also considered the other enunciated factors: in law, “blameworthy conduct” could include failure to pay child support (which was not the case here), but the refusal to disclose income had to be viewed against the fact that the mother did not request disclosure until 2011, which was almost 13 years after the initial child support order had been made. The “financial hardship” criterion related to the paying parent; it could not include consideration of sacrifices made by the parent in receipt of the support.

In the end – and because the effective notice to the father was given only in 2011 when the mother launched the motion to vary – retroactive support was to be limited to the three-years previous to that date, and was to relate to the second child only.

For the full text of the decisions, see:

Giroux v. Mueller, 2013 ONSC 246

S. (D.B.) v. G. (S.R.), 2006 SCC 37

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

How Far Should Computer Privacy Go?

How Far Should Computer Privacy Go?

Just a few weeks ago, the Supreme Court of Canada handed down its ruling on an important issue relating to an individual’s privacy expectations in connection with their use of a computer. Although the question arose not in the context of Family Law but rather in relation to a criminal charge arising from a workplace scenario, the Court’s discussion sheds light on how far privacy rights can potentially be extended in connection with individual computer use in Canada.

In R. v. Cole, a high-school teacher had been criminal charged with possession of child pornography and the unauthorized use of a laptop computer that had been provided to him by his employer. While performing routine maintenance, the schools’ computer technician had discovered that the laptop contained a hidden folder containing nude and partly-nude photos of an under-aged female student. The school principal seized the laptop, together a CD that the technician had made which contained copies of the files. The laptop and CD were given to police, who viewed their contents without having had a search warrant.

At trial, the judge excluded all of the computer material, finding that it had been illegally obtained in circumstances that had breached the teacher’s Charter rights. In particular, two of his Charter rights had been infringed by the seizure and warrantless search:

1) his right to protection from unreasonable search and seizure (under s. 8); and 2) his right to have evidence excluded if it brings the administration of justice in disrepute (under s. 24(2)). The Court of Appeal upheld that decision in part, finding that there was no Charter breach in connection with the CD containing the copied photos, but that the laptop was to be excluded. It also ordered a new trial.

The Supreme Court of Canada essentially found that the evidence should not have been excluded, and confirmed the order for a new trial.

In coming to this conclusion the Court made some very important observations about how computers and the information they contain are used and viewed by contemporary Canadian society: Specifically, it found that computers that are reasonably used for personal purposes – whether at work or at home – contain information that is meaningful, intimate, and which “touch[es] on the user’s biographical core”. This is because internet-connected devices reveal users’ likes, interests, thoughts, activities, ideas, and specific searches for information, and moreover keeps a record of them in the browsing history and cache files.

As such – and even where a computer has been provided by an employer for use at workplace – Canadians have a right to reasonably expect privacy in connection with the information contained on that computer if incidental personal use is allowed (or is reasonably expected). Moreover, the question of who owns the computer is relevant but is not determinative of privacy expectations; instead, there must be consideration of all the circumstances, including contextual and societal factors.

Applying those factors to this teacher’s case, and being mindful that this was a workplace computer, the Court concluded that the teacher may have had diminished expectation of privacy (at least compared to his home computer), but his reasonable expectations had not been eliminated altogether. Furthermore, this reasonable-but-diminished expectation of privacy is still a Charter-protected expectation of privacy under s. 8, and could only be justified in accord with the principles of constitutional law.
With those principles in mind, the Court went on to consider the circumstances of the seizure and search itself, including the beliefs and conduct of the police officer who executed it. Overall, it concluded that the evidence should not be excluded; however, it also affirmed the Court of Appeal’s order for a new trial.

So what does this mean for Family Law?

Again, this was a criminal case, and is not directly relevant to issues arising from the discovery process in Family Litigation. However, the underlying assumptions harken back to my prior Blog posts about the use of social media sites such as Facebook [Russell: Add link] and how personal information contained on those sites can potentially be used as evidence in litigation [Russell: Add link]. It also demonstrates a growing willingness by Canadian courts to acknowledge and incorporate reasonable societal expectations in relation to the use of technology.

In short: the Supreme Court of Canada’s decision in R. v. Cole shows that in these kinds of situations there is a pivotal question: what level of privacy do members of Canadian society reasonably expect in connection with their use of computers – even ones that they do not personally own?

Your thoughts?

For the full text of the decision, see:

R. v. Cole, 2012 SCC 53

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

Separation Agreement Rolled into a Court Order – “Material Change of Circumstances” Still Required

Separation Agreement Rolled into a Court Order – “Material Change of Circumstances” Still Required

The trend towards spouses resolving their family disputes through negotiation rather than litigation is an inspiring and positive one. However, there is a resulting and necessary interplay between dispute-resolution methods and court processes, and sometimes legal conundrums develop. The Supreme Court of Canada recently addressed the question of how to deal with an application to vary a court order that embodied the terms of a separation agreement that the spouses had themselves negotiated, and freely agreed to.

In L.M.P. v. L.S., the husband and wife had married in 1988, and the wife was diagnosed with multiple sclerosis shortly after. She never worked during the marriage; instead, she cared for the children and looked after the household while the husband pursued his career. When they separated in 2002, they reached a comprehensive agreement to settle their affairs, which obliged the husband to pay the wife $3,688 per month indefinitely (i.e. with no end date). In 2003, the terms of this agreement were incorporated into a formal court order by a judge.

Later, however, the husband brought an application under the Divorce Act to vary this order, claiming that the spousal support he paid to the wife should be reduced, and ultimately should end completely as of August 31, 2010. He claimed that despite the indefinite nature of the agreement and the resulting order, the wife was now capable of working and had an obligation to become self-sufficient. The court accepted the husband’s arguments as to the wife’s level of self-sufficiency, and changed the order accordingly. The wife appealed unsuccessfully to the Court of Appeal.

The matter then came before the Supreme Court of Canada, which was asked to address an important legal question: in cases where the support terms of an agreement have been incorporated into a court order, what is the proper approach by a court to an application to vary?

The court observed that section 17 of the Divorce Act allows a court to vary any spousal support order, provided it is satisfied there has been a “material change” in the “condition, means, needs, or other circumstances of either former spouse” since the original order (or last variation) was made. The section makes no reference to situations where the terms of the order are dictated by the parties’ own separation agreements. There is also a presumption that every court order – whether incorporating the separation agreement or not – is presumed to be in compliance with the Act and its various objectives.

When faced with an application to vary an order, the court should not ignore a mutually-accepted separation agreement such as the one reached by these spouses; however, it will be only one of several factors that goes into the threshold question of whether there has been a “material change” in circumstances since the initial order was made. An agreement that contains only general terms, including a blanket statement of finality as to the fact that matters were now settled between the parties, will provide little guidance to a court which is given the task of assessing the importance to the parties of various subsequent life changes they may experience, and how their respective support rights/obligations might be affected.

With this legislative framework in mind, the Supreme Court determined that the trial judge had been remiss in failing to apply the “material change in circumstances” test first, before assessing the wife’s ability to work. Similarly, the Court of Appeal had erred by making a finding that the wife was now able to work despite her multiple sclerosis, and that this amounted to the requisite material change in circumstances.

Instead, both lower courts appeared to disregard the fact that the situation between the parties had not changed at all since 2003 when the separation agreement and resulting court order were made: At that time, the wife was already suffering from multiple sclerosis, and was not expected to look for employment outside the home. The parties had reached a comprehensive agreement that they intended would reflect their final, non-time-limited settlement of outstanding issues between them. It was indexed to reflect inflation and contained no review mechanism.

In short: there was no material change as required by section 17 of the Divorce Act, so there was no legal basis on which a court could vary the order. The Supreme Court of Canada allowed the wif’es appeal, and restored the original 2003 order which reflected the terms of the parties’ own separation agreement, including the indefinite spousal support.

For the full-text of the decision, see:

L.M.P. v. L.S., 2011 SCC 64

Supreme Court of Canada Clarifies Disclosure Principles

Supreme Court of Canada Clarifies Disclosure Principles

Although it does not spring from family law directly, the Supreme Court of Canada has recently clarified the important governing principles relating to the disclosure of third-party information, and these may have repercussions in terms of government-disclosure and privacy principles in general.

In Merck Frosst Canada Ltd v Minister of Health, the backdrop was simple: the drug company Merck had duly tendered a new drug submission to Health Canada, in keeping with regulatory requirements.   Certain other parties had formally applied for Access-to-Information requests in connection with those drug submissions, under the provisions of the federal Access to Information Act.    Without notifying Merck, Health Canada disclosed the records it held on Merck’s new drug submission to the other parties; needless to say, when it learned of the disclosure Merck objected, claiming that the documents should not have been disclosed at all under certain exemption provisions in the Act, or that at the very least it should have received notice in advance.

In defence of its decision to disclose without notice, Health Canada conceded that the Act incorporated certain third-party exemptions (allowing a government institution such as Health Canada to refuse to disclose a third party’s trade secrets, its confidential financial, commercial, scientific or technical information, or any competitive information that would result in financial prejudice to the third party if it were to be disclosed).  However it claimed – among other things – that it was unable to determine whether non-disclosure was justified in this case.

In assessing each party’s position, the Supreme Court of Canada set out important disclosure and privacy principles that are to govern in such cases.   They are:

• There must be a balance between the duty to protect third-party information on the one hand, and the general principle there should be access to government records, on the other.

• There is no automatic right to notice of disclosure; however, there is a fairly low threshold for the requirement to give such notice.

• Disclosure without notice will be justified only in the clearest of cases.

• A government institution (such as Health Canada) should give notice even where is doubt as to whether the third-party exemption applies.

• The government institution must make a serious attempt to apply the exemption, by reviewing each individual record to determine which portion, if any, may be exempted.

• In keeping with common sense, the third party who requests access to the documents should be as helpful as possible in identifying precisely what information might fall within the exemption, and to identify why disclosure is not permitted.  (Such parties will often be in a better position than the government institution to make these identifications).

• The decision of whether or not to apply an exemption to disclosure under the Act will also be governed by the question of whether disclosure could reasonably expected to cause “probable harm” to a party like Merck.

The Supreme Court of Canada then went on to clarify certain specific aspects of the Act’s exemptions, (such as the meaning to be given to terms such as “trade secrets” and “confidential information”) and provided further insight on the burden of proof on a judicial review of a decision by a government institution such as Health Canada not to acquiesce to the Access-to-Information request.  Ultimately, it held that in this particular case, Merck did not establish that it fell within the third-party extension.

This decision provides important guidelines on the Court’s view the disclosure of confidential information; as it potentially relates to family law litigation, it may have tangential impact on disclosure obligations between parties (particularly where there is a corporate asset), or in connection with the disclosure of health records by medical facilities.

For the full text of the decision, see:

Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 (CanLII)

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