Skip to content

Posts from the ‘Court Procedure’ Category

Court Lambastes Man’s “Blank Cheque” Litigation Strategy

Image result for banking

Court Lambastes Man’s “Blank Cheque” Litigation Strategy

We have reported before about the seemingly-unending saga in the case of Beaver v. Hill, involving the support claims against a wealthy Indigenous man named Hill, by a woman named Beaver with whom he had a child.  The case is legally noteworthy for the constitutional questions around whether native-Canadian law should govern Family Law disputes between Indigenous former couples.

But on a recent motion presided over by Mr. Justice Pazaratz, it was evident that there are limits to the courts’ patience with litigants, even on the context of determining such important issues.

Justice Pazaratz had been appointed as the case management judge after the Ontario Court of Appeal, which was hearing the same case, expressed its frustration over the “procedural morass” that the litigation had become, at the behest of a “phalanx of lawyers” whose “tactics have led to a proliferation of materials, skirmishes and arguments”.

In that role, Justice Pazaratz was asked to rule on Hill’s latest motion which was to prevent the previous judge on the case, Justice Sloan, from hearing any further matters.  However, on the latest motion date Justice Sloan was not even scheduled to hear any upcoming matters, and for legal procedural reasons was likely not to be called upon again.   As Justice Pazaratz observed:

So the reality is that [Hill’s] motion seeks to recuse Justice Sloan from having any future involvement with this file – even though Justice Sloan isn’t going to have any future involvement with the file anyway. …

But [Hill’s] counsel insisted that even if it is clear that Justice Sloan will not be presiding over any future events, they still want to proceed with this motion – seeking a court order that he not do something he isn’t going to do anyway.

With that observation in place, Justice Pazaratz cut to the chase:

That’s not just overkill.

That’s not just acting out of an abundance of caution.

If it sounds like there’s some sort of hidden agenda here, it’s because there is a hidden agenda.

“Hidden” in the sense that it’s not spelled out in the Notice of Motion.

But during submissions counsel were fairly candid about what they’re really hoping to accomplish.

Justice Pazaratz went on to elaborate:

In that context, [Hill’s] ultimate goal is not just to recuse this one Superior Court Judge. The unconcealed objective is to eventually eliminate all Superior Court Judges from dealing with his case.  [Hill’s] sweeping criticism of the judiciary is evident in his motion documents …

Having observed that the recusal motion could be brought if-and-when Justice Sloan was actually assigned to sit, Justice Pazaratz’s was direct in his reproach:

The bottom line is that this court has an obligation to be sensible, even if the parties and lawyers aren’t.

Courts exist to resolve real disputes between parties.  Not to provide opinions in response to hypothetical or academic problems.  And certainly not to encourage or facilitate convoluted litigation strategies.

He ended his ruling by offering a scathing rebuke of Hill and his well-funded team of lawyers:

Some motions are merely misguided.  Anyone can make a mistake.

But this motion needs to be viewed in context.

As the Court of Appeal noted, [Hill] “can easily afford” this litigation.  The Applicant [Beaver] cannot.

When you give a team of very talented and expensive lawyers a blank cheque to dredge up every conceivable argument and motion you can think of, this is what happens.

It’s not just financially wasteful.

It’s gamesmanship which precludes honest settlement discussion.

Whether you call it oppression or a war of attrition – it’s basically one side trying to avoid the real issues, by creating as many legal hurdles as possible.

That’s the real perception [Hill] should worry about.

What are your thoughts on this ruling?

For the full text of the decisions, see:

Beaver v. Hill, 2018 ONSC 7138

Beaver v. Hill, 2018 ONCA 816 

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 Rebukes Wealthy Couple for Reaping Canadian Rewards While Avoiding Taxes

Image result for taxes

Court Rebukes Wealthy Couple for Reaping Canadian Rewards While Avoiding Taxes

The wealthy couple – who owned assets around the world estimated to be worth $50 million – were in the midst of a very high conflict matrimonial proceeding. They were scheduled for an upcoming trial to decide their property division and child support issues.

Although the case is unremarkable in terms of the legal issues under dispute, the court made some pointed comments about the couple’s historic penchant for maximizing their tax avoidance opportunities, while simultaneously exploiting the numerous advantages offered by Canadian society.

The court explained that over the years the couple has amassed a large real estate portfolio including: a large West Vancouver home; a downtown Vancouver condominium; a ski chalet at Big White Ski Resort near Kelowna; a ranch in Merritt; condominiums in Toronto, Florida, and Malaysia, and five properties in Singapore.  But the court explained that  husband’s business had been structured to shield them almost completely from tax liability:

This family is very wealthy and they have a lavish lifestyle. The financial engine for that wealth is the [husband’s] Singapore medical practice, which by all accounts, has been very successful. … The income derived from the medical practice has been the sole support for the family since the [wife] stopped working some time ago.

The court then described the couple’s decision to install the wife and child in Canada, while keeping the husband’s business interests and income sources elsewhere:

In 2003, the family decided to relocate to Vancouver. They applied for permanent residency under the “Immigrant Investor Program”.  In June 2004, the family purchased a large home in West Vancouver. Despite initial intentions of moving to Vancouver, the [husband] determined that it was more practical and lucrative for him to continue his medical practice in Singapore while the [wife] and the children remained in BC. He never did immigrate to Canada but did visit from time to time, while supporting his family here with income earned and taxed in Singapore.

In the context of hearing the bitter matrimonial dispute – which among other things involved Mareva injunction applications and a restraining order to keep the husband away from the former family home – the court registered its disapproval in these terms:

I accept the [wife’s] evidence that the accounts which are used to fund the mortgage on their joint asset – the West Vancouver home – was purposefully put into her name so as to avoid any suggestion that the [husband[was financially active here and therefore, subject to Canadian and BC income tax. Accordingly, but for a small amount of income earned on investments in BC in the [wife’s] name, the vast majority of the family income has been earned elsewhere and presumably taxed elsewhere (if at all) – while the [wife] and [their child] have enjoyed the many benefits of Canadian society, including [the child’s] attendance at the local public high school. Needless to say, this family has also now taken advantage of and sourced another valuable benefit in our society – our legal system – which is funded by Canadian and BC taxpayers.

It’s an interesting comment by the court, of the type that is not often directed at litigants in family law disputes. Maybe it should be, and more often.

For the full text of the decision, see:

Devathasan v Devathasan, 2017

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

 

 

An Example of How Family Violence is Addressed in Family Law

Image result for family law

An Example of How Family Violence is Addressed in Family Law

There’s no doubt:  Family law disputes can get nasty.   Emotions run high, and intemperate conduct can quickly escalate.  A recent B.C. case addressed illustrated the type of misbehaviour that can result in one spouse getting a protection order against the other.

The wealthy couple – who owned assets around the world estimated to be worth $50 million – were in the midst of a very high-conflict matrimonial proceeding. They were scheduled for an upcoming trial to decide their property division matters, and their child support issues in relation to their 17-year old daughter.

The wife had earlier obtained a protection order against the husband, under the provincial Family Law Act.  To do so, she established to the court’s satisfaction that she was an “at-risk person” whose safety and security was likely at risk from family violence carried out by the husband. The court described the contents of that order:

The protection order included the following terms: it restrained the [husband] from attending at the family home in West Vancouver or [their daughter’s] school with a police assistance clause; it restrained the [husband] from possessing a weapon or firearms; it authorized the police to seize any such weapons and, for that purpose, the [husband] was required to provide the security code to the gun safe in the family home to the [wife’s] counsel; and, it restrained the [husband] from communicating with the [wife or daughter], save through counsel. The protection order was stated to expire after one year …

The protection order had been made necessary by the abusive conduct of the husband mainly toward the wife, but sometimes directed at their daughter as well. The court encapsulated that misconduct this way:

The vitriolic and abusive comments of the [husband] directed at the [wife] continued and continues to this day. The description of these communications by the [husband] by his counsel as “intemperate” hardly does justice to the word. He alleges, as of late May 2017, that the [wife] is “fat and laid back” and that she was a prostitute. These past and continuing comments are simply abusive, vile and hateful.

Nonetheless, about nine months after the order was granted, the husband applied to the court to have it set aside.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox. Sign up here.]

The court reviewed the provisions of the provincial Family legislation dealing with protection orders, noting that the criteria included consideration of whether family violence “is likely to occur” against an at-risk family member.  In making this assessment the court was entitled to consider several factors, including: any history of family violence; whether it is repetitive or escalating; whether there is a pattern of abuse or controlling behavior; and the couple’s recent separation.  The court noted that for these purposes, “family violence” was defined to include psychological or emotional abuse (including intimidation, harassment, coercion or threats) and unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy.

In terms of satisfying those criteria, the court described only some of the evidence put forward by the wife:

The evidence of the [wife] in her Affidavit … is replete with instances where the [husband] has directed both psychological and emotional abuse toward both her and [the daughter]. He has repeatedly threatened, intimidated and humiliated both of them. It appears that this controlling behavior on the part of the [husband] began at least as early as September 2015 and escalated to the time of the filing of the Notice of Family Claim.

There was a visit by the [husband] in late April 2016 which was strained to say the least. During that visit, the [husband] was screaming at [the daughter] such that the [wife] was concerned that he was going to hit their daughter. The [wife] tried to push the [husband] and the [husband] shoved her out of the way.

I had no hesitation in August 2016 in finding that the actions of the [husband] toward the [wife] and [the daughter] in the period leading to August 2016 constituted family violence.

Likewise, the court rejected the notion that the provisions dealing with firearms prohibition were overreaching in these circumstances.

In doing so, the court considered the husband’s argument that the initial protection order had been premature, since he was currently living in Singapore and there was no evidence that he planned to show up in Vancouver (where the wife and daughter lived) to harass them.

The court pointed out that – to the contrary – the husband had sent the wife an email asking for keys to their Vancouver condominium, and stating that he planned to go there within two months. The court added:

To accept the [husband]’s argument is to contend that the [wife] had to wait until he showed up on the doorstop of the West Vancouver family home before she could allege urgency. The evidence established that the [husband] came to Vancouver on a regular basis and, given the acrimony in their relationship, the [wife] could not have expected that she would be given sufficient notice of a visit to seek a protection order. There was also ample evidence to support that giving notice of an application seeking a protection order would have exposed the [wife] and [the daughter] to further abuse and threats and possible physical altercations. 

After stating that it was more than satisfied that the initial protection order had been well-supported by the evidence, the court dismissed the husband’s application to have it set aside.

(Note that although Devathasan v. Devathasan is a B.C. case, an analogous remedy is also available in Ontario, where in certain circumstance a spouse, partner, or someone with whom the person had a child, can apply to the Family Court for a restraining order. The person making the application must prove reasonable grounds for fearing for his or her safety or that of any child in the person’s custody.  This is established through affidavit or oral evidence presented to the court.)

These types of orders are aimed at protecting family members who are at risk.  Are they the right solution?  What are your thoughts?

For the full text of the decision, see:

Devathasan v. Devathasan, 2017

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 Declares Excuses “Ludicrous” and “Preposterous”

Related image

Court Declares Excuses “Ludicrous” and “Preposterous”

Family Court judges hear cases all day long, and it’s likely fair to say that they’ve “heard it all.”

More to the point, they’ve likely heard a wide array of what are (at best) improbable excuses from litigants, who are called to task for non-compliance with court orders, especially those relating to a failure to provide full and frank disclosure.

In a case called Q.X. v. J.R.L., the court dealt with the property and support disputes between a former couple who were born and raised in China, met online, and then married in Vegas a little over a year later when they learned the woman was pregnant. The marriage lasted 18 months.  The court was left to untangle a complex, often-contradictory narrative from the husband in particular, about his Canadian and foreign income, investments, family businesses, and other financial information that was relevant to determining the issues between the parties.  The court described some of his evidence this way:

[The husband] J.R.L. has provided no mortgage application for any of the properties he owns in British Columbia. He claims that he came to Canada when banks lent money fairly freely and it was not necessary for him to complete a mortgage application form. He has produced “loan” documents from his father, mother, and sister, but gave no evidence relating to the loan documents, and I question the validity of the documents. He provided some documents relating to his immigration to Canada, but they do not appear to be his application form, and of the documents he did disclose, it is not possible to tell if there was a declaration of income, because J.R.L. blacked out portions of the document.

J.R.L. has failed to disclose his President’s Choice Financial chequing account statements from December 2011 to April 2012. He has failed to disclose or produce any bank statements for his bank accounts in China. In particular, he has failed to disclose his Bank of China term deposit statements from April 2011 to April 2013; his Bank of China savings account statement from April 2011 to April 2013; and his China Merchant Bank statements. He makes the preposterous claim that the banks in China do not provide bank statements. He is not telling the truth because Q.X. provided her Bank of China bank statements, showing that banks in China are able to, and do provide bank statements.

Likewise, in a recent case called Farrukh v Farrukh Amin the court’s credibility assessment of the husband was short and to-the-point:  It gave no credence to his proffered excuses for failing to comply with previous court orders, specifically in connection with producing documents and paying Costs previously awarded to the wife.  The court started its brief ruling this way:

On the evidence before me it appears that the [husband] does not think court orders apply to him when it comes to the payment of costs and the production of documents.

First, the court took issue with the husband’s contention that he had indeed filed the financial documentation required by the Family Law Rules:  It noted that the materials were simply not in the court file as they otherwise would be.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox. Sign up here.]

Next, it outright disbelieved him on the reason for his failure to pay Costs under a prior order:

To submit to the court that he did not know where to pay the costs is simply a ludicrous answer to the question of why he did not pay them.

The court noted that the husband’s lack of cooperation and excuses put the wife at a disadvantage, and precluded both early settlement and the court’s full determination of the issues between them.

And, to add to the husband’s legal woes, the court hit him for an additional $16,000 in costs and disbursements, for the latest hearing that his past non-cooperation and non-compliance made necessary.

For the full text of the decisions, see:

Q.X. v. J.R.L., 2015 

Farrukh v Farrukh Amin, 2018

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

Taking the Kids to See Grandma This Holiday?  Read This First

Related image

Taking the Kids to See Grandma This Holiday?  Read This First

With the upcoming season of holiday travel almost upon us, a recent Ontario case provides a good reminder:  Separated and divorced parents must strictly abide by the terms of any agreement or order in place for travelling with their children.

In Shapiro v. Feintuch the court was asked to resolve a dispute between two parents – who divorced nine years ago – but who continued to have conflict over many issues, especially the travel arrangements for their now-14-year-old son.

Earlier in the year, by way of an urgent motion, the father obtained an order forcing the mother to provide him with the son’s passport, and allowing him to keep it as his house.  This was to facilitate the father taking the son to Florida.  Less than a month later, the mother needed the passport back, so that she could take him to New York to attend two family events including a Bar Mitzvah.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox. Sign up here.]

Initially, the mother did write to the father about taking the boy to New York, and asked for his consent.  But at first the father avoided answering directly, and raised other travel-related issues with her instead.  As the court noted:

This led to a long series of emails between the parties over the next five days that grew increasingly combative, vitriolic and lengthy.

The court continued the narrative:

It should be noted that in her original request on April 12, 2018, the [mother] had contemplated travelling on the afternoon of Monday, April 23 and returning on the morning of Wednesday, April 25, 2018. If the [father] had consented to this arrangement immediately in his initial response, rather than waiting five days and many emails to do so, this might well have resolved the matter. But after the extensive and often bitter emails that the parties had exchanged between April 12 and April 17, 2018, the [mother] was no longer willing to entertain a proposal she herself had contemplated in her original email. Instead, by this point the [mother] was determined that [the son] would travel to New York for both family events.

Since she could not get the boy’s passport in a timely manner, she decided to take matters into her own hands and arranged for him to be driven to New York by her parents. Border officials let them through even though the boy had only a birth certificate with him.

All of this was done without the father’s consent, although the mother advised of the boy’s whereabouts by email later that day.   During the span of the trip, the boy missed a total of five days of school, plus a regularly-scheduled access evening with the father.

This prompted the father to bring a motion, asking the court to declare the mother in breach of a prior order respecting their children’s travel arrangements.  The court granted the father’s motion and made the declaration.

The court noted that in 2015, after extensive litigation, the parents had agreed to the terms that governed any travel with their children.  Those terms had been embodied in three detailed paragraphs of a formal court order.  It stated that the father was to hold the son’s passport, and that the mother needed to get his consent before taking the boy somewhere like New York.

In defending her contravention of these requirements, the mother claimed that regardless of that prior order, her taking the boy to New York was actually in his best interests, and that the father’s consent should be dispensed with.

The court said it might have agreed with that argument, except for the fact the prior order contained the terms the parents had themselves agreed to.

Next, the mother argued that the father had withheld his consent to the trip unreasonably, and that she had no choice but to go anyway.  The court rejected this notion too, saying that it had no power to examine that issue; the parents had made it clear in their agreement – as reflected in the order – that they were giving each other the right to grant or withhold consent as they each saw fit.  As the court noted:

… the Order does not permit one parent to dispense with the other parent’s consent to travel, simply because the travelling parent regards the withholding of consent to be unreasonable.

Absent the father’s agreement, the mother had ignored a clear court order when she took the boy to New York anyway.  The whole point of the prior order, the court noted, was to avoid this kind of uncertainty and confusion over travel, which was not in the boy’s best interests.

However, in terms of the appropriate remedy, the court rejected the father’s request for $2,500 over and above his legal fees, noting this kind of penalty was reserved for contempt-of-court cases, not orders that declared a party in breach. The court added:

In coming to this determination, I have given careful consideration to the [father’s] submission that breach of court orders must have real consequences. These reasons should not in any way be interpreted as condoning parties in family law litigation from ignoring court orders. At the same time, I would observe that, in my judgment, these parties do take court orders very seriously. Having clarified the fact that the [mother] breached [the travel terms] paragraph … of the Order, I fully expect both parties to comply with it in the future. That said, the parties should understand that any future breaches of [those terms] will likely have much more significant consequences.

The court also admonished the parents that, going forward, they should,

…  be “brief and respectful in their emails, making no reference to either party or parties or their activities. Had this rule been followed in the present case, it is entirely possible that the conflict and disruption over this matter might well have been avoided.

For the full text of the decision, see:

Shapiro v. Feintuch, 2018

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

Cross-Border Abductions by Parents: Supreme Court Rules on Child’s “Habitual Residence” Under the Hague Convention

Image result for border crossing

Cross-Border Abductions by Parents: Supreme Court Rules on Child’s “Habitual Residence” Under the Hague Convention

A recent decision from the Supreme Court of Canada hones in on a narrow-but-important issue that arises in parental abduction across international borders – meaning situations where one parent removes a child to another country over the objection of the other, and in contravention of existing custody/access arrangements in force at the time.

In Office of the Children’s Lawyer v. Balev  the crux of the case was whether the Ontario court had jurisdiction to order the children returned to their father in Germany, even though they were happily living with the mother in Ontario.   The Supreme Court of Canada introduced the factual narrative of the case this way:

The story begins in Germany, where the family — a father, a mother, and two children, all citizens of Canada — were living. Because the children were struggling in school, the parents decided that the mother should take the children to Canada for 16 months to experience the Canadian school system. During that period, the father [suspecting the children would not be returned] purported to revoke his consent and brought an action under the Hague Convention for an order that the children be returned. While he pursued remedies in the German courts — unsuccessfully — the period of consent expired and the mother remained in Canada with the children. After the father resumed the application, a judge of the Ontario Superior Court of Justice ordered that the children be returned to Germany. The Divisional Court reversed this decision [on later appeal]. The Court of Appeal reinstated it. That decision was appealed to this Court.

From these facts, the legal issue arose as to whether the children in this scenario were “habitually resident” in Ontario for the purposes of the Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”).  If so, the Ontario court could grant an order in the father’s favour to have the children returned.  Unfortunately, the term “habitually resident” is not defined in the Convention itself, although it has been considered by the courts of other subscribing states around the world.

In considering the matter afresh after several levels of appeal, the Supreme Court first noted the two main goals of the Hague Convention, which are:

  • Enforcing parents’ custody rights; and
  • Ensuring the prompt return of children to their “habitual residence” where they have been wrongfully-removed to or wrongfully-retained elsewhere.

The Court added that a determination under the Convention is not a custody order, but merely a mechanism for restoring the status quo.

The concept of a “habitual residence” could be considered either from the perspective of the parents, or from that of the child, the Court found.  Historically in Canada, it has typically been the parents intention (rather than the child’s level of acclimatization and wishes) that governs the issue of where the child lives.    Nonetheless, the Court concluded that a “hybrid” approach was more appropriate, meaning one that focuses on relevant considerations that arise from the facts of the specific case. That hybrid approach requires a court to look at:

  • The child’s links to country A and overall circumstances;
  • The circumstances of the child’s move from country A to country B; and
  • The child’s links to and circumstances in country B.

Pertinent considerations include the duration, regularity, conditions, and reasons for the child’s stay in a member state and the child’s nationality. No single factor dominates the analysis.

With that said, the Hague Convention does include an exception to the general rule that a wrongfully-removed or retrained child must be returned to his or her country of habitual residence in cases where:

  1. The child has reached an appropriate age and degree of maturity at which his or her views can be taken into account, and
  2. the child objects to return.

The Court concluded that these factors call for a straightforward assessment by the court.

In the end, the described hybrid approach to the concept of “habitual residence” best adheres to the principles that inform the rulings from other countries on this point, not to mention the overall intentions and goals of the Hague Convention itself.  These goals all have a harmonizing purpose that has been agreed-to by its contracting member states.

Having looked at the background legal principles, the Court resumed its review of the facts even though the issue was moot. (In 2017 a German court had granted the mother custody and they had been returned to Ontario).  It vindicated the father nonetheless, finding that an earlier court was correct in declaring the children were “habitually resident” in Germany and should have been returned there.

For the full text of the decision, see:

Office of the Children’s Lawyer v. Balev, 2018 

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

 

Did Remorseful Husband Succeed in Ending Arranged Marriage?

Image result for marriage

Did Remorseful Husband Succeed in Ending Arranged Marriage?

A recent Ontario case casts light on what happens when cultural marriage traditions must be scrutinized under a Canadian legal microscope.  The court introduced the facts this way:

This application involves the fall-out from an arranged marriage that did not last. There were no children of this marriage.

In 2012, … [the wife] was a 22-year-old Pakistani woman who studied in the Master of Business Administration program at .. University. 

[The husband] was then a 28-year-old Canadian man whose parents had emigrated from Pakistan a generation earlier. [The husband] had graduated from secondary school in Toronto and was pursuing a career in the financial sector. [The husband’s]  mother set upon arranging for [the husband] to marry a woman from Pakistan.

[The husband’s] mother contacted [the wife’s] mother and they arranged for [the wife] to marry [the husband]. … The couple met for the first time in the days before the wedding and were married on July 6, 2012. …  After the wedding, [the wife] left her home to reside with [the husband] for about a week in a relative’s house. [The wife] testified that she and [the husband] consummated their marriage. [The husband] testified that they did not.

[The wife] recalled that she and her new husband happily celebrated with family members in the week after their wedding. [The husband] testified that he was immediately overcome with remorse. He had gone along with the arranged marriage to please his traditional parents, and to maintain cultural values, but was saddened to be married to someone he did not know and with whom he had little in common.

According to the reluctant husband’s evidence, and unbeknownst to the wife, he decided to divorce her by invoking a traditional religious divorce ceremony – which is recognized under Canadian law when validly performed.   The court continues the narrative:

[The husband] testified that late in the evening of May 28, 2013, he spoke with his mother and told her that he had decided that he could no longer remain married to [the wife]. He felt anxious and ill and wanted to terminate the relationship. [The husband] testified that he understood from his mother that as his marriage had not been consummated, it could be annulled if he convened a meeting with [the wife], her family, and a village elder, and spoke the word “Talaq” to [the wife] three times.

This conversation took place in Pakistan, where the husband, wife, and extended family members were all assembled to celebrate the wedding of another family member.  The husband testified to the court that he performed this religious ritual before the wife and other required parties the next day, on May 29, 2013.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox. Sign up here.]

However, the wife’s version of the day’s events diverged significantly:  She claimed they simply spent the day happily shopping and dining together.  As the court explained:

[The wife] testified that [the husband] is “totally lying”. She states that there simply was no such ceremony. [The wife] is adamant that [the husband] did not attempt to divorce her in 2013 and that he did not even tell her that he wanted out of the marriage.

 

Thus the question of whether the couple were divorced under both Pakistani and Canadian came down to a matter of credibility.  The husband bore the onus of determining that a religious divorce had taken place on that day in May, as he claimed.

The court looked at the overall evidence presented, and disbelieved the husband outright.

For one thing, the subsequent email correspondence between him and the wife (who had remained in Pakistan) consisted of “the usual dialogue between a couple planning to get together after a time apart.”   The husband had taken no steps with the civil authorities in Pakistan to legalize the alleged divorce, and did not attend the country’s central registry to change his marital status.  Nor did he consult with a local lawyer to ensure the ceremonial steps he took complied with Pakistani divorce requirements.

Even looking at matters from the wife’s side, her conduct after May 29, 2013 was not consistent with someone who had been told her husband was leaving the marriage. Instead, she continued to prepare to reunite with her new husband in Canada, and to establish a married life with him.

Having ruled that the husband had not achieved a religion-based divorce as claimed, the couple remained legal spouses at the time of the hearing.  In a 100-paragraph judgment, the court went on to deal with numerous issues relating to property division and support, pending their upcoming divorce under Canadian law.

For the full text of the decision, see:

A.S.1 v. A.A.S., 2018

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 Husband in Contempt for Not Achieving the Impossible?

Image result for not following rules

Was Husband in Contempt for Not Achieving the Impossible?

The facts in Malboeuf v. Hanna raised an interesting issue:   Should a spouse be held in contempt for failing to satisfy a court Order that was impossible to comply with in the first place?

At an earlier hearing to address issues arising from their separation, the court ordered the husband to designate the wife as the irrevocable beneficiary of his life insurance policy.  Under the wording of the Order he was required within 30 days to “make arrangements to change the existing beneficiary designations to ‘irrevocable’ beneficiary designations ‘in trust for the children’ (if allowed by the insurer).  The goal was to secure the husband’s child support obligations towards their children by making the wife the trustee of the funds.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox. Sign up here.]

The problem was that the insurer, RBC Insurance, did not allow such irrevocable designations on its policies.

This prompted the wife to claim that the husband was accordingly in breach of the strict wording of the Order, and should be found in contempt of court. At the least, he should have circumvented the obstacle raised by RBC’s policy by taking reasonable, good faith steps to try to achieve that required outcome through other means.  For example, he could have obtained a further Order requiring RBC to make the designation irrevocable, or could have purchased a new policy that did allow such designations to be made.

The husband countered that he had satisfied the technical wording of the Order by making the request to RBC; from there, it was out of his hands.  The “irrevocable” designation would be in place but for the fact that RBC did not allow it.

The court reviewed the law on civil contempt of court, noting that to prove the husband’s contempt the wife had to show all three of the following:

1)  that there was a clear and unequivocal Order stating what the husband should/should not do,

2) the husband actually knew the terms of the Order, and

3) he intentionally failed to do what was ordered of him.

The court added that even with all three elements established, it still had the power to override a contempt finding if it felt the husband had acted in good faith to take reasonable steps to try to comply.

In this scenario, the court concluded that the husband was not in breach. First of all, the Order did not clearly and unequivocally require him to irrevocably designate the wife, but rather contained built-in wording that contemplated a potential hurdle (i.e. “if allowed by the insurer”).  That alone absolved the husband from being held in contempt.

Nor was there anything in the wording of the Order that clearly and unequivocally required him to take other steps, such as getting a new policy or getting a court to force RBC to bend its policy.  Without such added obligations being clearly placed upon him, the husband could not be found in contempt in this situation.

For the full text of the decision, see:

Malboeuf v. Hanna, 2018

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