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Posts from the ‘Children’ Category

Russell Alexander Collaborative Family Lawyers’ First Annual Holiday Toy Drive

Poster for Russell Alexander Collaborative Family Lawyers' Toy Drive

 

Russell Alexander Collaborative Family Lawyers are pleased to announce the start of their First Annual Holiday Toy Drive. This year the drive will be supporting Bethesda House located in the Durham Region and A Place Called Home located in The City of Kawartha Lakes.

New, unwrapped gift donations can be made in the Brooklin office for the Bethesda House. They have informed us of the lack of gifts for children 13-17 years of age. Some gift suggestions for them include:

  • Sports equipment
  • Art supplies
  • Games
  • Movie passes and gift cards
  • Purses and backpacks
  • Make-up, lotion, perfume
  • Hats and scarves

The Lindsay office is accepting new, unwrapped gifts to be donated for A Place Called Home. There is no recommended age for donations for this organization.

If you wish to donate to the toy drive this year, it will be running from November 1, 2018 through to December 7, 2018. You may drop by with your donation in the Brooklin or Lindsay office any time between 9:00 a.m. and 5:00 p.m. on Monday to Friday. For further details, feel free to give our office a call at 905-655-6335.

Can a Parent’s Substance Addiction Justify His or Her Unemployment?

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Can a Parent’s Substance Addiction Justify His or Her Unemployment?

I have written several prior Blogs that showcase the court’s power under the Child Support Guidelines to “impute” income to a deliberately unemployed or under-employed parent, so that a proper calculation can be made as to the child support that he or she may owe to the other parent.  Recently, for example, we detailed a case where the court considered whether a support payor who was in jail could be considered intentionally unemployed or under-employed for these purposes.

The power to impute income to an economically under-achieving parent – in what the Guidelines state are an amount the court “considers appropriate in the circumstances” – stems from this principle:   Parents obliged to earn what they are capable of earning.  A parent who falls short of that will be deemed intentionally under-employed or unemployed.

The parent need not specifically intend to evade child support for this rule to apply; it merely requires that the parent has chosen to earn less than what he or she is capable of earning.  This can involve quitting a perfectly good job, or deliberately getting fired from one.  It can involve not looking for new work once a former job legitimately ends.  The court will then look at whether the parent’s actions are voluntary, and reasonable, and it is up to the parent to show that his or her decision is justified in a compelling way.

Needless to say, the given excuses that a parent may have for being under-employed or unemployed are numerous.  Courts must scrutinize these on a case-by-case basis.   After doing so, a court may find that the parent’s employment shortfall is justified after all, and that no income should be imputed to him or her after all.

On this last point, one of the more interesting scenarios relates to a support-paying parent with a substance addiction problem, as illustrated in a case called Lindsay v. Jeffrey.  There, the mother asked the court to impute income to the father at the $35,000-a-year level, which was what he was earning before he quit his job as a mechanic.

The father, in contrast, claimed his income was only $9,000 for the year in question.  He claimed that he was unemployed because of his drug addiction.

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In looking at the similar precedent cases, the court noted that they tend to go both ways:  Substance abuse has been held to justify a parent’s unemployment in some Canadian court decisions, but not in others.   For example, in an Ontario case called Hutchinson v. Gretzinger, the court rejected substance addiction as a justifiable excuse, reasoning as follows:

The trial judge accepted the affidavit of the legal assistant to counsel for the [father] as evidence that the [father] was addicted to drugs, including cocaine. In my view, it was an error to do so: better evidence was required. However, even if one were to accept that the [father] is a drug addict, his addiction is not a defence to a support claim. When one first consumes illicit drugs, one must be taken to know that addiction can result: addiction is a reasonably foreseeable consequence, as is the resultant loss of income or employment. To the extent that drug addiction is properly viewed as an involuntary illness, the initial drug use is voluntary and, therefore, it is intentional. It is wrong in law (and contrary to public policy) that a parent be exempted from his or her child support obligation because of drug addiction. …

Yet in a Saskatchewan decision called Kalanuk v. Michelson, the court accepted that the father had serious drug addiction issues that impaired his ability to work.  Although this did not absolve him of all responsibility for child support, the court saw fit in his particular circumstances to reduce the child support arrears he owed, because of it.

Returning to the present-day Lindsay v. Jeffrey decision, the court endorsed this second approach – but only with proper evidence.  As the court explained:

… The ravages of drug and alcohol addiction are observed weekly in this court in custody/access and child protection cases. Many parents who love their children very much and are very motivated to play an important role in their children’s lives have their roles in their lives profoundly reduced or even eliminated because they have a substance addiction over which they have little control. This court views substance addiction as a health issue. With proper evidence, this court is willing to consider that substance addiction is a reasonable health need of a parent that can justify underemployment or unemployment, pursuant to clause 19 (1) (a) of the Guidelines.

That said, the court found the required evidence was lacking in the present case.  The father had no corroborated evidence on the extent of his drug use, how it adversely affected his ability to work, and for what period of time (if any) it stopped him from working to his full capacity.  Nor, for that matter, whether it justified his quitting a good job in the first place.

The court said:

… It is not enough for a payor to come to court and state: “I am a drug addict and this is why I haven’t worked”.  The only corroborative evidence of the father’s addiction was a certificate that he completed a 60-day day treatment program (that was completed prior to the start date of this order). The court received no medical evidence about the father’s condition.  Cogent medical evidence in the form of detailed medical opinion should be provided by the payor in order to satisfy the court that his reasonable health needs justify his decision not to work.

As a final point, the court said it initially had “some sympathy” for the father over his drug issues, that sympathy had been “squandered”:  The court learned that “despite not paying any child support (and purportedly having nominal income) he purchased, in 2012, a truck for $6,000 and a 60-inch color television for $1,300. These are not the actions of a person with limited means.”

In view of the $34,000 per year that the father had earned at his mechanic’s job immediately before he quit, the court imputed income to him of $35,000 per year for child support calculation purposes.

For the full text of the decisions, see:

Lindsay v. Jeffrey

Hutchison v. Gretzinger

Kalanuk v. Michelson

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

Was Wife Entitled to $28,000 a Month?  Court Clarifies Purpose of Temporary Support

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Was Wife Entitled to $28,000 a Month?  Court Clarifies Purpose of Temporary Support

The goal of temporary support is not to “pay for the costs of imprudent purchases,” according to the Ontario court in a recent case named Angst v. Angst

The husband and wife had separated after 24 years of marriage.  The wife asked the court to order the husband to pay her temporary support – designed to tide her over until the trial of the broader issues in their divorce.  Despite showing actual expenses of $5,800 per month, and despite the husband’s existing $5,800 monthly payments, the wife requested a dramatic increase to the amount that he should pay.

She claimed the husband’s ability to pay support was far greater than the $107,000 per year income that he had shown on his latest tax return.  In fact, he had two corporations with retained earnings of $3 million overall, which had netted a combined after-tax net income of over $610,000 in the most recent tax year.

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The wife asked the court to deem the husband as having $718,000 in annual income, and to use the Spousal Support Advisory Guidelines (SSAGs) as a benchmark.  This would put her support entitlement in the $21,000 to $28,000 per month range.

The husband, meanwhile, conceded that he owed the wife temporary support, but felt that with the uncertainty around him dividend-based income and the corporations’ value, it was premature to set such a high figure.   The amount the wife was requesting was about four times the amount the couple had actually lived on, prior to their separation.

The court agreed that there was uncertainty around the husband’s income, including the fact that both parties admitted running some of their personal expenses through the corporation. The husband also owed some child support, which impacted the calculations.

Next, the court noted the SSAGs are not mandatory, but rather could be deviated from where the court feels it appropriate.  In this case, to award the SSAGs-dictated amount would allow the wife a far more opulent lifestyle than the one she’d actually enjoyed while married:

… [U]sing the SSAGs would result in a spousal support award that would give the applicant a radically different lifestyle than the one enjoyed by the parties during their cohabitation.  The [husband] deposes that the parties lived a modest lifestyle in order to save for retirement and to provide something to give to their children one day.  …

In addressing the wife’s actual needs as it pertained to the proper support amount, the court described the purpose behind temporary support orders this way:

The goal of a temporary support order is to maintain as much as possible the parties’ pre-separation lifestyle pending trial …

The court added that the wife had had incurred expenses that were not, strictly speaking, justifiable in the circumstances:

Since separation, the applicant has purchased a $455,000 waterfront home and spent $11,000 furnishing it.  By trading in her previous vehicle and with help from the [husband] she is driving a 2016 luxury car.  She even bought herself a $19,500 Donzi boat and trailer.  Thus, the applicant is now living roughly the same lifestyle that she had before separation.

The [wife] complains that she had to cash in RRSPs to purchase some of these things, but the goal of a temporary spousal support award is not to rebuild the recipient’s asset base.  Nor is it to pay for the costs of imprudent purchases.  The [wife] applicant also complains that she had to borrow funds for the purchase of her house at exorbitant interest rates that are costing her more monthly than they should.  But this is entirely the [wife’] fault.  She purchased the home while the parties were still attempting to negotiate a resolution of their family issues.  When that failed, she had to look to a mortgage broker to be able to close the deal.  In any event, the [wife’s] present needs of $5,800 per month include her mortgage payments.

The court ultimately concluded that to maintain her pre-separation lifestyle, the wife’s temporary support entitlement should be closer to the $5,800 she paid in actual monthly expenses.  Adjusting that figure upward to take into account the tax implications, it awarded her $8,500 a month.

For the full text of the decision, see:

Angst v. Angst

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 Clan Law Govern Family Dispute Between Indigenous Couple?  Appeal Court Hands Down Latest Ruling

 

Image result for indigenous lawDoes Clan Law Govern Family Dispute Between Indigenous Couple?  Appeal Court Hands Down Latest Ruling

The next chapter in the ongoing legal saga in the case of Beaver v. Hill has arrived – in the form of an Court of Appeal decision which potentially allows an important constitutional question on Indigenous self-governance to get a full hearing before an Ontario court in the future.

We have reviewed in the past about this case, which involves Ken Hill, who is a wealthy Indigenous co-owner of the largest cigarette company on the Six Nations reserve. He is resisting the claims by his former romantic partner, Brittany Beaver, for almost $86,000 a month in spousal support, and $33,000 a month in child support for a child they had together. Hill earns about $2.1 million per year, tax-free.

One of the key issues is whether this Indigenous former couple’s family dispute should be decided under the regular Ontario family laws, or else under the laws that govern their particular clan, which is the Haudenosaunee.  Essentially, Hill claimed that he had an Aboriginal and treaty-based right, protected by s. 35 of the Constitution Act, 1982, to have his family law disputes resolved pursuant to Haudenosaunee laws. He essentially claimed a constitutional exemption from having the Ontario court and family law processes to determine the dispute between him and Beaver.

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In a prior ruling on a motion, spanning more than 150 paragraphs, the judge dismissed Hill’s constitutional argument that Haudenosaunee laws should be applied to decide Beaver’s support claims.  She ordered those arguments be stricken from his pleadings, and directed that the matter proceed in the usual fashion, under the customary provincial family laws. The judge also addressed several procedural objections as to the adequacy of Hill’s pleadings on the constitutional issue, but refused to give him permission to amend them.

As we reviewed  back in April of this year, Hill had filed an appeal which asserted that the motion judge had been hasty in permanently closing the door to his constitutional challenge at such an early stage in the proceedings.

That appeal has now been heard and – from amidst numerous complex issues – Hill has at least been vindicated in his argument that the motion judge had been premature. The Appeal Court ruled that he should have been given permission to amend what were called his “woefully inadequate” pleadings, especially in light of the seriousness of the constitutional issue raised.   The court said:

The version of Mr. Hill’s amended answer considered by the motion judge was poorly pleaded and lacking in detail. Neither Mr. Hill’s pleading, nor the ramshackle way in which the constitutional claim was asserted and is being developed, does justice to the seriousness of the claim. … Nonetheless, as I will explain, it was premature to dispose of the constitutional claim at this early stage. It is difficult to evaluate Mr. Hill’s claim under s. 35 of the Constitution Act, 1982 at this early stage of the proceeding. It would be unwise to dismiss the claim summarily on such a scanty record.

In short:  Even in light of Hill’s shoddy pleadings, a summary motion to have them struck was not the proper way to deal with and dismiss his claims involving Aboriginal and treaty rights.

Instead, the court struck out Hill’s pleading on the constitutional issues, but granted an order allowing him to amend it with permission of another court. It also refused to have Beaver’s support claims halted until Hill’s constitutional challenge was fully resolved; instead, Beaver was allowed to obtain interim support for herself and the child.  This was the best way to balance her immediate financial needs while balancing Hill’s interest in having his constitutional claim determined.

For the full text of the latest decision, 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

Cheating Wife Busted When Husband Spots Her on Google Maps

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Cheating Wife Busted When Husband Spots Her on Google Maps

Many of my past Blogs have chronicled the use – or attempted use – of Facebook evidence in Canadian family law proceedings.  But here’s a little twist:  In a news item from Peru, a husband learned of his wife’s extramarital affair through an image he found on Google Maps, through the “Street View” feature.

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The photos shows his wife, sitting on an outdoor bench with a man reclined and leaning his head on her lap.  She is stroking his hair in what suggests there is an intimate connection between them.  Perhaps ironically, the image was taken near the Puente de los Suspiros (or “Bridge of Sighs”), which is a tourist attraction in Lima, Peru.

The husband uncovered the photos, which were taken by Google in 2013, while planning a trip to that area.  He was using Google Maps to look for directions.   After finding the image, he confronted his wife about the affair, which she admitted to.  They have since divorced.

Latin American news site La Cronica reported that the man posted about the incident on Facebook.

For further reports on this item, see:

https://www.newshub.co.nz/home/world/2018/10/divorce-after-cheating-wife-snapped-on-google-maps.html

https://www.travelandleisure.com/travel-tips/mobile-apps/man-discovers-affair-google-maps-divorce

https://imagesvc.timeincapp.com/v3/mm/image?url=https%3A%2F%2Fcdn-image.travelandleisure.com%2Fsites%2Fdefault%2Ffiles%2Fstyles%2F1600x1000%2Fpublic%2F1539363024%2Fbridge-of-sighs-lima-peru-WMNCAUGHT1018.jpg%3Fitok%3DTbSrmZwA&w=1000&q=85

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

$25 Online “Therapy Dog” Certificate Did Not Solve Former Couple’s Dog Ownership Dispute

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$25 Online “Therapy Dog” Certificate Did Not Solve Former Couple’s Dog Ownership Dispute

The recent decision in Murray v. Choudhary features an interesting twist on the usual dog-ownership dispute between formerly married couples.

The spouses had been married 10 years when they separated, and had numerous issues that they needed the court to resolve between them.  These included spousal support, a declaration in connection with the matrimonial home, listing the home for sale, and the return of the wife’s engagement and wedding rings, worth over $19,000.  Also it was alleged that the husband had moved to Germany under the pretext of doing is MBA abroad and setting up a business, when it seems he was really there to take up with another woman.  This sparked various issues around separation date and related matters.

Now that the couple sorting out their financial and other issues before the court, one of the points of contention was over their dog, named Bianca.

The wife claimed that the dog belonged to her, and the court tallied up the evidence in favour of that conclusion:

The [wife] provided evidence to the court that she paid $700 for Bianca in July of 2012, she reported her purchase to her family by email and photograph on July 19, 2012, she completed training with Bianca at “Dog Dayz” in February of 2014, she attended to all of Bianca’s veterinary appointments, she registered Bianca with the City of Ottawa as her dog, she cared for Bianca (but for one feeding in the evening and some walks), and she reported Bianca as having been stolen to German authorities when she feared Bianca would not be returned to her.

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The husband claimed otherwise;  he insisted that Bianca was a “form of therapy dog” that soothed and comforted him, and that he had insisted on taking the dog with him to Germany because she would “help him succeed in his studies.”

However, the wife gave evidence to easily explain away that contention:  She said they had simply purchased a $25 certificate over the internet to give the dog “therapy dog” status, with no verification whatsoever that the husband needed or would benefit from it.   This sham certificate paved the way for the husband to travel with the dog unfettered.   As the court explained:

The [wife] however, provided an explanation that she and the [husband] obtained a Certificate that Bianca was a “Therapy/Companion Dog” on the internet for $25 in 2015 to permit them to travel to the US to visit the [husband’s] family and to stay in hotels with Bianca. They later obtained a letter from a psychologist on-line, who had never seen the [husband], for $200 which permitted them to travel with Bianca to Europe in the spring of 2017. To demonstrate how easy it is to get a service dog certificate on-line, the [wife] again did so on February 22, 2018 for $200.

Still, the court pointed out no matter how easy it had been to buy a “therapy dog” certificate online, it did not help the court in determining who actually owned Bianca.  The court said:

All of which is to say, that any of the certifications provided by the [husband] or the [wife] either that Bianca is a “service” or “support” dog, or that she is permitted to travel with one or the other, do not assist the court in making the determination of who owns her. Most significantly, the [husband] has provided no evidence from any treating physician that he currently has that he requires a support or service animal. Based, therefore, on all of the evidence referred to above, I find that the [wife} is the rightful owner of Bianca.

Although the court had many other complex issues to contend with in the larger context of the parties’ litigation, it said that the issue of who owned Bianca in this scenario was straightforward:  It was the wife.

For the full text of the decision, see:

Murray v. Choudhary

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

Was Jailed Dad “Intentionally Unemployed” For Child Support Purposes?

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Was Jailed Dad “Intentionally Unemployed” For Child Support Purposes?

In a recent Ontario child support case, the court grappled with a narrow question: Should it ignore the fact that the support-paying husband landed himself in jail, and simply assume he was still earning the same income as before?  Was his incarceration tantamount to being “intentionally unemployed”?

In Sheridan v. Cupido the former couple had starting dating in 2013, but split four years later.  They never married.  They had two young children together, who currently lived with the mother.

After separation the father, apparently struggling to accept the end of the relationship, snuck into the bedroom of the mother’s home one night and assaulted her new romantic partner with a baseball bat.  He also threw both of them down the stairs. He was arrested and charged with numerous offences, but was denied bail.  He was currently awaiting the upcoming criminal hearing where it was expected that he would be convicted and sentenced to spend at least two years in jail.

In light of this development, the mother asked the court for an interim order confirming that the father owed child support, and that the amount was to be based on his pre-jail income levels.  She wanted the arrears to accumulate while he served time, so that at the upcoming trial she could get a final order confirming his obligation to pay the full amount.

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The father resisted.  While freely acknowledging his support obligations to his children, he pointed out that he had no income while in jail, and had no assets to draw from.

In deciding whether to make an interim order nonetheless, the court noted that the father’s child support obligations are governed by provisions in the Family Law Act and the Child Support Guidelines requiring it to consider “the most current information” – which in this case was that the father had no income.

However, the court had the power to impute income to the father, at whatever level it considered appropriate, if it found he was “intentionally unemployed.”  The principle is that the father could not avoid his child support obligations through a self-imposed reduction of income.

The question was whether to impute income in this case.  The court reflected on two previous court rulings where support-paying parents were found intentionally unemployed while being incarcerated, prompting the court to treat them as if they were still earning. It noted:

The rationale [in those cases]… was that intentional criminal actions led to the incarceration and resulting unemployment.  Incarceration was not considered to be a sufficient reason for the parent being unable to work. 

The court distinguished these prior decisions by noting that those other parents had been convicted of their crimes;  in this case the father was still awaiting his criminal trial.

The court’s discretion in these kinds of cases was always governed by notions of reasonableness.  A parent who was actually in jail might be viewed differently than one who was not behind bars, but whose criminal actions or drug use still diminished his or her earning capacity.   The jailed parent would have no current capacity to improve his or her earning potential and address related issues; the one who was not in jail could still do something to correct the failure to satisfy his or her support obligation.   As the court put it:

… [A]n incarcerated parent cannot modify his or her behaviour by finding suitable employment in response to an imputation order.  The order proposed by the [mother] here would simply create debt.  As argued, there is also an underlying element of punishment or penalty for the alleged criminal behaviour.

I am not convinced that there is an absolute rule that the court must always impute income where the payor was working prior to incarceration. …

Most importantly, the mother was asking for an interim support order here, in advance of a fuller Family Law trial to be held later.  Rather than guess at the duration of jail time the father might receive if convicted, and rather than burden him with a potentially large debt upon his release, it was more prudent to wait for trial, where the judge would have better evidence and more up-to-date information on what is reasonable after-the-fact.

In dismissing the mother’s request the court made a final, practical observation:

No order that I make will assist to get regular support flowing now. 

For the full text of the decision:

Sheridan v. Cupido

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

 

“Determining Value is Not a Dartboard” – Neither Spouse is Credible, Court Finds

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“Determining Value is Not a Dartboard” – Neither Spouse is Credible, Court Finds

In a recent case called Knight v. Knight, the court went back to first principles to conclude that neither spouse had given credible evidence in their matrimonial proceeding, and that the court had to draw its own conclusions as to their collective and individual assets, property holdings, incomes, contributions, and liabilities both during the marriage and after.  In short:  neither of them were to be believed.

The underlying matter related to the husband’s claim against the wife that he had a beneficial interest in the matrimonial home that was in her name alone, and that she owed him an equalization payment.  The wife denied that she owed the husband anything, and asked the court for an unequal division.

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The couple, who had both been married before, wed in 1989.  They separated a dozen years later. The wife owned and operated a hair salon; the husband owned a cleaning services business and also worked for a laminating company.  Evidently, the marriage did not get off to a good start:  The wife was cautious about remarrying, and since the pastor at her local church did not approve of her remarriage, they had to have the ceremony at a different place of worship. The wife paid for her own wedding ring.

The marriage itself did not flourish, either.  Before the court, the couple was particularly at odds about the level of contribution by the husband.  The court described the wife’s position this way:

The wife said that the husband had no savings when the [matrimonial home] was purchased.  She would buy cleaning supplies for his business.  He never earned enough to materially contribute to the household expenses.  He had no money.  The wife was embarrassed that the husband was not able to read properly and so she enrolled him in a school and sometimes attended with, and helped, him at the school.  She often helped him too with his cleaning business.

She also said that the husband spent extravagantly, and gambled.  Towards the end of the marriage, he began to spend greater periods of time in his native Jamaica, she said, and flew there only two days after suddenly announcing that he wanted a separation.

One of the key issues of concern to the court related to the parties’ overall credibility.   In examining the couple’s respective sources of income, employment history, business ventures, and various Jamaican investment properties, the court noted that it had made several prior orders directing each of them to exchange their financial information, but these were never fully complied with.  Neither of them had provided evidence to fully explain some of the inconsistencies in the materials that they did bother to produce. The court said:

Disclosure and Credibility

Each party complained that the other did not comply with their disclosure obligations whether as required by court Order or pursuant to the Family Law Rules and that, as a consequence, the other’s evidence should be discounted or disregarded entirely on financial issues.  Each party invited the court to draw adverse inferences about the other party’s credibility and to prefer their evidence instead.  Seemingly lost on the parties was the concept that a party cannot ask the court to make property and income findings favourable to them and contrary to the other party’s interests while at the same time not providing information relevant to the determination of those issues within their possession or ability to obtain.

The court added that various legal tests exist to guide the court in assessing a witness’ credibility.  The considerations are as follow:

  • Assessing credibility is a “holistic undertaking” incapable of precise formulation;
  • The trial judge need not believe or disbelieve a witness’s testimony in its entirety;
  • The trial judge may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence; and
  • The trial judge can assess credibility by considering different factors, including internal and external consistency of witness testimony with: 1) that of other witnesses; 2) documentary evidence; 3) motive; 4) self-interest, 5) clarity and logic of narrative; 6) witness presentation (distinguishing candour from evasive or strategic testimony) and 7) to a lesser degree, witness demeanour. (This is a partial list only).

Applying these tests, the court concluded that in this case “neither party was a credible witness about their financial worth, earning ability or income.”  The court did accept the wife’s narrative about important events dealing with their investment properties and how they covered their living expenses, but in the end, on the issue of overall credibility the court had little positive to say for either of them.  It concluded as follows:

Both parties tailored their evidence about their property and income to suit their claims in these proceedings.  Except for those assets and debts whose value can be documented or inferentially corroborated by third party sources, little weight will be given to either party’s estimates about value.  Determining value is not a dartboard.  The same observation applies to each party’s evidence about their income and, particularly in the husband’s case, their ability to support themselves.

Later in the judgment, the court added similar sentiments:

It is clear that when valuing their business interests, both parties failed to present a credible value either for the valuation date or, in the case of the wife, for the marriage date.  Each tailored their evidence to suit their financial interests.  In the absence of credible evidence, no marriage or valuation date values to each party’s business interests will be attributed to either party.

In the end, the court did grant the couple a divorce, but had to make its own assessments of all other aspects of the case, since their evidence was simply unworthy of the court’s belief.

For the full text of the decision, see:

Knight v. Knight

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