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Posts from the ‘Disclosure & Financial Statements’ Category

Wednesday’s Video Clip: How to Fill out a Financial Statement


Wednesday’s Video Clip: How to Fill out a Financial Statement

In this law video, Darla review the steps required to fill out a financial statement for the family court or negotiating the terms of your divorce settlement.

When entering into a Separation Agreement or bringing an Application before the Court, parties must provide full financial disclosure.

Complete financial disclosure is a prerequisite to the settlement of any family law case. The Family Law Act and its interpretation by our Courts, leaves no uncertainty in this respect. Any agreement can be set aside if a party has failed to truthfully and accurately disclose his or her financial position.

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

Appeal Court Confirms Unique “Philosophy” of the Ontario Family Law Rules

Appeal Court Confirms Unique “Philosophy” of the Ontario Family Law Rules

The Ontario Court of Appeal, in a recent case called Frick v. Frick, confirmed that the Ontario Family Law Rules are philosophically different from their civil counterpart, and reflect the unique nature of litigation involving families.

The initial facts in Frick v. Frick were unremarkable: The couple married in 1993 and had two children. They separated 20 year later, and the wife started divorce proceedings. In addition to custody and spousal/child support, she also asked for the usual equalization of Net Family Property (NFP).

But after filing her pleadings, the wife learned that the husband had spent money on extra-marital activities during the marriage, namely those incurred during what she claimed was a “10-year affair”, as well as the cost of male and female escort services and an adult fetish website membership.

In light of that spending, the wife claimed the husband had recklessly depleted his share of family funds during the marriage. Because of it, she asked for an unequal division of NFP in her favour, now that their relationship was over. She asked the court for permission to amend her claim accordingly.

But the court declined, and went one step further by expressly preventing the wife from asking for an unequal NFP division at trial. The wife appealed.

The Appeal Court ruled in her favour, finding that the motion judge had made several procedural errors. For one thing, he had innovated certain evidentiary requirements for the wife to meet, that were simply not contained anywhere in the Family Law Rules (FLR). He took issue with the wife’s failure to specify in her pleadings the precise FLR provisions on which she relied for unequal division, even though these were implicit. He took procedural liberties by essentially bringing his own motion to strike out the wife’s unequal division claim, and baring her from pursuing it at trial, even though the husband had not requested these remedies himself.

The motion judge had also applied an unjustly-high threshold for establishing the wife’s unequal division claim, and had deprived her of notice that it might be struck out permanently. As the Appeal Court put it:

Here, the wife knew that the motion was to strike portions of her document. She could not have known that her claim for an unequal division would be judged according to the summary judgment rules. Nor could she have known that her claim would be barred forever since she was denied leave to amend.

The key error, however, was the motion judge’s assessment that the FLR governed certain procedural aspects inadequately, and that he should look to the civil procedure rules for guidance instead. (Although Ontario judges are permitted to do this where warranted, the motion judge in this case showed over-reliance on the civil rules, and misunderstood when they could be invoked.).

In this context, the Court of Appeal made some important comments about the fundamental nature of the FLR:

The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.

The Appeal Court allowed the wife’s appeal, in part.

For the full text of the decision, see:

Frick v. Frick, 2016 ONCA 799 (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 RussellAlexander.com

Wednesday’s Video Clip: How to Fill Out a Financial Statement


Wednesday’s Video Clip: How to Fill Out a Financial Statement

In this law video, we review the steps required to fill out a financial statement for the family court or negotiating the terms of your divorce settlement.

When entering into a Separation Agreement or bringing an Application before the Court, parties must provide full financial disclosure.

Complete financial disclosure is a prerequisite to the settlement of any family law case. The Family Law Act and its interpretation by our Courts, leaves no uncertainty in this respect. Any agreement can be set aside if a party has failed to truthfully and accurately disclose his or her financial position.

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.

Ten Years Later, Court Overturns Agreement Due to Husband’s Non-Disclosure

Hiding Money

Ten Years Later, Court Overturns Agreement Due to Husband’s Non-Disclosure

Although the recent Ontario Court of Appeal decision in Tadayon v. Mohtashami is not all that exceptional, it serves as an excellent illustration about how even many years later, one spouse’s past misdeeds can still come back to haunt him or her, in the context of the obligation to provide full disclosure in family law litigation.

The parents of three children had separated in 1999. They entered into a separation agreement as part of their divorce in 2005.

At that time, the husband had reported that he anticipated earning $80,000 that year, and the agreement was reached with that figure in mind. Its terms required the husband to pay relatively modest amount for combined spousal and child support, and allocated him certain levels of financial responsibility for the purchase of a home for the wife and children. All of these commitments and obligations were made on the strength of the husband’s reported income of $80,000 for 2005.

In reality, his income for the prior year was already much higher than that (at $147,000), and it turned out that for 2005 he actually earned an income of $344,000, comprised of income from his own general contracting company, together with undisclosed amounts he also earned from a home building venture. All of this information was kept from the wife at the time, and none of it was taken into account when the 2005 agreement was reached between them.

Fast-forward 10 years, when the wife discovered that the husband had concealed these income amounts from her. She applied to the court to have the 2005 agreement set aside, and to have both child and spousal supports for several sequential years recalculated with the correct figures in mind.

That application was allowed by the lower court, and the husband’s subsequent appeal was dismissed. Even viewed a full decade later, both courts confirmed that the husband’s then-failure to disclose these significant income amounts undermined the validity of the 2005 agreement. Had the wife known the correct financial information, she would never have signed it.

(Moreover, the court pointed out that the husband could not claim that he would be prejudiced by the wife’s late-breaking objection to the non-disclosure; they had jointly retained an expert income valuator, so it could have come as no surprise to him that the accuracy of his figures would soon become an issue).

The bottom line was that the husband had an obligation to make full and proper financial disclosure in 2005 when the agreement with the wife was made in the first place; the agreement was accordingly unconscionable and even despite the passage of time the court was justified in overturning it now.

For the full text of the decision, see:

Tadayon v. Mohtashami, 2015 ONCA 777

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 Your Marriage Contract Signed “Under Duress”?

duress

Was Your Marriage Contract Signed “Under Duress”?

About-to-be-married couples are wise to protect themselves by signing a marriage contract beforehand. But the key to having those agreements hold up is that they must be freely and voluntarily executed.

We’ve all heard stories of pre-nuptial contracts being signed by the happy couple on their wedding day, virtually on the altar. Or else cases where the couple are negotiating the agreement for months, against the backdrop of a year of planning and thousands of dollars in deposits laid down, and it’s finally signed at a time when pre-wedding stress is at an all-time high.

Are marriage contracts signed under these conditions worth the (embossed) paper they are written on?
In Ontario, the Family Law Act and the related jurisprudence says: “it depends”. First of all, the legislation lays out certain types of clauses that are never valid (such as a clause attempting to prohibit a spouse from remarrying after separation), and sets out various scenarios that can prompt the court set aside all or part of a marriage contract. Among those scenarios – by general reference to basic contract principles established in the cases – is the concept that a contract that was signed under duress will not be enforced in law.

“Duress” is colloquially regarded to mean those situations where one intended spouse has put some sort of pressure on the other spouse to sign what is usually alleged after-the-fact to be an unfavourable, unfair, or one-sided agreement.

Legally, the meaning is a bit more precise, even though the Family Law Act itself does not contain a definition for this term. However, in a case called Ludmer v. Ludmer, the court examined the nature of duress, stating:

Duress involves a coercion of the will or a situation in which one party has no realistic alternative but to submit to pressure. There can be no duress without evidence of an attempt by one party to dominate the will of the other at the time of the execution of the contract. To prove duress, the applicant must show that she was compelled to enter into the marriage contract out of fear of actual or threatened harm of some kind. There must be something more than stress associated with a potential breakdown in familial relations. There must be credible evidence demonstrating that the complaining party was subject to intimidation or illegitimate pressure to sign the agreement.

So what forms does “duress” take, in the real world? In the case we commented on last week, Shair v. Shair, the court considered whether the wife had been subject to duress in signing a marriage contract that she later complained had stripped her of certain support rights that she would otherwise have under the Family Law Act and Divorce Act.

However, the court rejected her claim that she signed the agreement out of duress, finding instead that she:

“…chose to sign it voluntarily as she wanted to be married and she trusted that the Applicant husband would treat her fairly independent of the clear language of the marriage contract. The option of not signing the marriage contract in the form as presented and returning to Romania, or extending her visa, were both open to her and she pursued neither.”

For the full text of the decisions, see

Ludmer v. Ludmer, 2013 ONSC 784, [2013] O.J. No. 699

Shair v. Shair, [2015] O.J. No. 4883, 2015 ONSC 5816

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

In Family Law, “Disclosure” Means “Full Disclosure”

disclosure

In Family Law, “Disclosure” Means “Full Disclosure”

In a recent case the court examined in detail the so-called “disclosure” that had been provided by the husband in a matrimonial dispute, and the effect any deficiencies might have on the legal validity of a negotiated marriage contract that relied on that information.

As background, the spouses had met almost 20 years ago in the now-47-year old wife’s native Romania where she worked as a cosmetician. She also owned her own condominium while studying social psychology. The husband, now aged 61, had sponsored her to come to Canada. After having a traditional marriage for 18 years, they decided to separate.

At the time of their union they had entered into a relatively straightforward marriage contract in which each of them waived spousal support from the other. The validity of this marriage contract became an issue requiring the court’s determination, since its purported effect was to foreclose the wife from pursuing the spousal support to which she would otherwise be eligible under Ontario law.

The wife complained that the marriage contract was unfair: It’s In the actual wording of the contract the husband had failed to disclose the full extent of his assets, liabilities and debts, and had been vague and incomplete in his job description, all of which might have affected the calculation of any spousal support entitlement she might have had under the contract.

The wife’s allegations of non-disclosure were important because section 56(4) of the Ontario Family Law Act specifically allows a marriage contract to be set aside if one of the spouses fails to disclose significant assets, debts or liabilities when the marriage contract was made.

The court considered the circumstances, and pointed out that in the context of negotiating a domestic contract, the duty to make full and honest disclosure is required to protect the integrity of the result of negotiations undertaken in the “uniquely vulnerable circumstances” inherent in marital disputes. In this case, the court observed:

It cannot be said that the Applicant husband provided complete, fair and frank disclosure of his relevant financial information. Clearly he did not. The marriage contract refers only to his job as a mechanic, not a business owner, and his ownership of a family residence, not a commercial building. It is not enough that he told the Applicant wife he owned his home and worked as a mechanic. It is further not enough if he told her he owned the Bloor Street property and his own mechanic business. The Applicant husband never disclosed the market value of his home, the market value of the Bloor Street property, or any mortgages thereunder. He never disclosed the value of his companies, or his belongings including his tools which he values at $25,000-$30,000. The Applicant husband did not tell the Respondent wife anything about his income and he did not produce his income tax returns or bank statements to her or [her lawyer]. I have concluded, therefore, that the Respondent wife has satisfied her onus of proving her circumstances fall within s. 56(4)(a) of the Family Law Act.

(The court was quick to add that the husband had no lied about this information; rather it found he “simply did not disclose his assets, debts and liabilities in a meaningful way”).

Still, the court made several factual findings that precluded a decision to set the marriage contract aside entirely, including the observation that even with full disclosure as to assets and incomes, the wife’s spousal support entitlement would not have changed (since the contract itself did not refer to the business, commercial building, property value, income, or the value of his various companies). The contract remained legally valid because the husband’s “shortcomings in disclosure did not impact significantly upon the final agreement reached between the parties”. More importantly, the wife had independent legal advice prior to signing it, and ample written opinions from lawyers advising against doing so, which advice she chose to ignore.

Still, the court set the contract aside because it left matters in an unconscionable state in light of the sacrifices the wife made to come to Canada from Romania almost 20 years ago: she was allowed to pursue a claim for spousal support pursuant to the provisions of the Family Law Act.

For the full text of the decision, see:

Shair v. Shair, [2015] O.J. No. 4883, 2015 ONSC 5816

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 www.RussellAlexander.com

An Absconding Husband, Secret Mortgages, and Swiss Bank Accounts – Court Sifts for Truth in Husband’s Story

swiss

An Absconding Husband, Secret Mortgages, and Swiss Bank Accounts – Court Sifts for Truth in Husband’s Story

The couple had two children. When they split up, the husband was apparently resolute in not paying support of any kind, and not providing her full financial disclosure, since at every turn he managed to evade furnishing her with information. After her persistent attempts, he finally admitted to earning about $27,000 per year, but claimed that he was unwell with various ailments (including diabetes, neck pain, back strain, headaches, occasional dizziness, anxiety and joint pain). Not only had he historically never voluntarily paid any child or spousal support since their 2009 separation, but he claimed that for the foreseeable future he had no financial wherewithal to do so in any case.

To that point, there is nothing was nothing particularly out-of-the-ordinary in the couple’s case.

The backstory, in contrast, had a few unusual twists, as illustrated in the court’s narrative which describes the events leading to that separation:

The wife testified that over the course of their 20 year marriage, the husband’s need to control all aspects of their finances became unendurable. He operated his various interests independently and she had little knowledge of their financial circumstances.

In August or September of 2007, she made the decision to cease depositing her paycheque to the joint account. Doing so considerably exacerbated the existing strains.

At the same time, the parties were involved in a rather savvy business opportunity: the purchase of an investment property. The husband took no steps to address the wife’s diversion of her earnings until the sale of the investment property closed in March of 2008. Upon closing, they benefitted from a significant profit which they used in part to pay off their mortgage.

What came next sets a dramatic stage for this proceeding.

The husband’s conduct towards the wife changed dramatically. He took an extensive vacation to India. Upon his return he was distant and aloof.

On Saturday June 21, 2008 around 2:00 in the afternoon the husband walked down the stairs of their Richmond Hill home with a suitcase. He came into the kitchen, announced to the wife and daughter that he was leaving and wished them well. He then walked to the front door, paused, turned around, and suggested that they “go to the Bank of Nova Scotia – there may be a mortgage waiting for you.”

Despite their shock, and the fact that it was a Saturday afternoon, wife and daughter raced to the Bank. They discovered that the previous month [the husband] had placed, and drawn down two lines of credit on their previously encumbrance free home: the first for $451,109.63 and the second for $300,739.56. A whopping interest payment was now due. And where was it to be paid from? The joint bank account had been emptied.

Even the children’s joint Education Savings account had been depleted. $20,000 gone.
And where was [the husband]? He had gone to Switzerland. He freely admits to having done so. And he really did put money into a Swiss Bank account.

The court continues the story:

On July 29, 2008, the wife obtained an order specifically preserving the Swiss Bank accounts. The monies were returned within weeks. Today [the husband] testifies that he had a change of heart in August of 2008, and voluntarily decided to return the monies to Canada. He was prepared to reconcile their marriage.

It is wife’s more credible view that the monies were returned when the husband realized that the preservation order could interfere with his use of the funds, and that it was in his best interests to avoid a finding of contempt. [The wife] spoke of the tremendous pressure on her to maintain the family and avoid the embarrassment of a divorce. She was particularly anxious about having enough money for [their son] to return to university.

Later, the husband tried to return the money and reconcile with the wife, but she refused. The story continues:

On December 24, 2008, the wife and daughter travelled to New York for an annual visit with the wife’s sister. When they returned on January 2, 2009, they were stunned to find the husband comfortably ensconced in the basement. He would not leave. Four months of escalating tensions and disturbances followed. It came to an end on May 22, 2009, when the York Region Police forcibly removed the husband from the home.

The couple negotiated the husband’s return of the money (and a part was set aside as an advance on the wife’s equalization payment). But that did not end the matter, as the court described in its continued narrative. Under the subheading titled “Meanwhile…. What was Really Going On” the court wrote:

In February of 2012, [the husband] was pressing for the sale of the matrimonial home. By pure inadvertence, [the wife] opened the mail one morning to find [the husband’s] personal T4A. It reported 2011 self-employment commissions of $521,604.96.

A new round of disclosure requests followed. As a result of those inquiries, it was ultimately discovered that [the husband] was the sole shareholder of 2153454 Ontario Ltd., a company which had never been disclosed. And there was more that had not been disclosed. Much more.

The court continued:

The primary issue for this trial is the determination of the husband’s income for support purposes. Throughout, he has maintained that he is unwell, has no financial means and is a hapless victim within a confusing, and out of control court proceeding.

In truth, the husband was the mastermind behind an insurance “scheme”, which the court described as “an alternative form of income that was improper, highly lucrative and perfectly suited to his extensive client base.” With this finding in place the court calculated the husband’s true income as ranging between $222,000 to $366,000 per year for each of 2008 through 2012. There was also at least $55,000 in unexplained deposits to his bank account in both 2013 and 2014, and another $250,000 in a bank account in India that he falsely claimed he could not get information on or access to.
After sifting through the husband’s untruths and attempts to conceal money from the wife, the court eventually determined that he owed arrears of child support amounting to almost $215,000. It deferred calculating the special expenses related mainly to the children’s education until a later hearing. (And the court added that, since the matrimonial home had increased significantly in value, the wife would succeed in acquiring most of the father’s one-half interest in the home through a set-off of his outstanding support obligations to her and the children).

For the full text of the decision, see:

Malik v. Malik, 2015 ONSC 2218

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 www.RussellAlexander.com

In Court, Must a “Private” Facebook Page Stay Private?

FB data

In Court, Must a “Private” Facebook Page Stay Private?

In a recent Nova Scotia case called Conrod v. Caverley, the court considered an evidentiary question of modern-day importance: Can a court order a plaintiff to disclose his or her “private” Facebook page?

The plaintiff had sued the defendant in connection with a motor vehicle collision, claiming that the injuries she suffered had left her with severe neck, back, arm and leg pain. Since the accident she had been unable to return to work; she claimed a loss of enjoyment of life, including an inability to fully participate in social and recreational activities. She also complained of impaired concentration, which affected her ability to spend time surfing the internet.

In response to these claims, the defendant went to court to ask for an order requiring the plaintiff to produce a full, printed copy of her Facebook profile, including the information and photographs that – due to her privacy settings – were only visible to her “friends”. He also asked for a printed copy of her Facebook usage history, including her login/logout information. He claimed that this information was relevant to her damages claim relating to loss of enjoyment of life, as well as her complaint that she could not concentrate or participate socially to the extent she had done before the accident.

In making its decision, the court relied heavily on two prior Ontario cases in which the same issue was raised, also in connection with motor vehicle accidents.

In Leduc v. Roman, the defence had asked for an order allowing it to see the plaintiff’s entire Facebook profile, including the information and photographs that had been set as private. Ultimately, the court declined, finding that it was merely speculative that – given the nature of Facebook – the contents of a “typical” private Facebook profile would likely include material relevant to the litigation. Rather (and as with all types of evidence), the plaintiff could be cross-examined in the usual fashion on what potentially-relevant content might be contained there.

In making this ruling, the court in Leduc relied on the reasoning in an earlier similar decision, Murphy v. Perger, which also involved a request for access to the private portion of a plaintiff’s Facebook profile. In that case, the judge had outlined the following principles governing Facebook information sought to be used in accident litigation:

• It is reasonable for a court to infer that, given its social-networking nature, Facebook contains some content that is relevant to the issue of how the injured plaintiff has been able to lead his or her life since the accident.

• Where the party sets their entire profile to “private” (so that the public page consists only of name and possibly photo), then a court can infer – given the social networking purpose of Facebook – that users make personal information available and photos available to others.

• Where a party to litigation has both a “private” and “public” profile, it is also reasonable to infer that the content of both profiles will likely be similar. In the right circumstances, a court is therefore entitled to order that the private profile be produced.

Returning to the Nova Scotia case, the court applied those principles to the facts at hand: Looking specifically at the plaintiff’s public Facebook page, the court declined to jump to the conclusion that it necessarily contained information relevant to her litigation claim. Nor could it conclude based on that same publicly-accessible information that the contents of her private page would likely be relevant and should be ordered produced.

On the other hand, the court did order that the plaintiff’s log of internet usage with respect to her Facebook account be produced; that information was directly relevant to her claim that the accident injuries had affected her ability to concentrate, and was therefore relevant.

For the full text of the decision, see:

Conrod v. Caverley, 2014 NSSC 35 (CanLII)

Leduc v. Roman, [2009] O.J. No. 681; 2009 CanLII 6838 (S.C.J.)

Murphy v. Perger, [2007] O.J. No. 5511 (S.C.J.)

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 www.RussellAlexander.com

 

If You Give Something Twice, Was it Really a “Gift” in the First Place?

 house gift

If You Give Something Twice, Was it Really a “Gift” in the First Place?

In a recent Ontario property-division case called Nadendla v. Nadendla, the court grappled with whether to believe a husband’s testimony pertaining to an apartment in India allegedly he bought for his mother.

The couple married in 1993, had two children, and separated in 2011. As part of their subsequent divorce litigation, the husband testified that in 2007 after his father’s death he and his brother decided to purchase a $70,000 three-bedroom apartment in India for their mother. He claimed that at the time of purchase it was always intended by them to be the mother’s home upon completion, and provided details to the court about the alleged payment arrangements.

The wife, in contrast, claimed that it was not bought for the husband’s mother at all; rather, she understood it was merely bought as a real estate investment to be used when the couple went to India on family trips. (And this did take place on one occasion, and the husband’s mother was not there at the time). The wife said she was aware of family finances, and that the husband’s after-the-fact claim to the contrary was merely his attempt to keep the apartment out of the family property division process upon the couple’s subsequent separation and divorce.

The court looked at the evidence, and despite the husband’s assertions to the contrary found that he was actually the 100% owner of the apartment. The court noted certain evidentiary inconsistencies, such as the fact that: 1) on certain travel documents and a settlement deed the mother’s address was listed as the family home, not the apartment; and 2) there was no corroborating evidence that the husband’s brother invested any money as claimed. The court also noted that the husband had first claimed he gifted his share of the property to the mother in 2012, but this contradicted earlier testimony that he had given her a cash gift in 2008 and bought the apartment himself.

But most tellingly, the court pointed out that the husband’s claim to have transferred the apartment in 2012 (allegedly to placate certain people in India who had questioned his mother’s legal right to it) would not have been necessary if he had made an outright gift to her in 2008. In other words, if the husband bought his mother the apartment as a gift in 2008, then it was not his to give her a second time in 2012.

In short, the court rejected the husband’s evidence on the apartment in India, and concluded that the wife was a more credible and reliable witness. It accordingly made a factual finding that the couple’s funds were used to buy the apartment in India, in the name of husband, as a real estate investment. The apartment was therefore to be included in the Net Family Property division and equalization process in the normal course.

For the full text of the decision, see:

Nadendla v. Nadendla, 2014 ONSC 3796

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 www.RussellAlexander.com.

Can A Lawyer Claim “work product” To Prevent Opposing Counsel From Obtaining A Digital Copy of the Submissions filed with the Court?

work product

Can A Lawyer Claim “work product” To Prevent Opposing Counsel From Obtaining A Digital Copy of the Submissions filed with the Court?

Recently, a hotly contested family case resulted in a several day trial at the Ontario Superior Court.

Both counsel produced hard copies (paper copies) of their case briefs and written submissions and arguments at the end of the trial. Counsel for the husband also produced a digital copy. Counsel for the wife requested that a digital copy of what was submitted to the court should also be produced to the wife.

Counsel for the husband indirectly stated that since he was an officer of the court that the wife would have to accept a hard copy only. Husband’s counsel also mentioned that the digital copy he submitted to the Court was his “work product” and was concerned his arguments may be reproduced and used against his clients in future cases.

Given the level of distrust between the litigants and that the wife required the digital copy to complete her file; wife’s counsel indicated that as a matter of good practice the information, submissions, cases and arguments submitted to the court by one party should be also produced to the opposing party in the same format as it was produced to the court.

Wife’s counsel filed a motion with the trial Judge seeking production of the digital information filed with the Court by the husband. The trial judge agreed with the wife and ordered:

“The court received both paper and electronic copies of the respondent’s closing and case briefs. No exhibits or evidence were received in electronic form. I see no reason why the electronic copy should not be available to the applicant, as was the paper copy. Order to go that the respondent provide to the applicant an electronic copy of his closing and case briefs within thirty days of release of this decision.”

Accordingly, counsel are required to produce to the opposing party information filed with the court in the same format as filed with the Court. There is no “work product” defence or argument that justifies withholding production.

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 our main site.