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New Family Law Rules on Expert Evidence

New Family Law Rules on Expert Evidence

As recently as last week a new set of family law rules relating to evidence have come into force, namely the use of expert reports in cases. More often than not in cases evidence is submitted to the court from an individual claiming to be an “expert”, when in reality these reports are more casual.

The Courts of Justice Act now requires that claims under the Divorce Act or Children’s Law Reform be accompanied by joint litigation experts that may be subject to preliminary review. The rules also list the following requirements for expert reports:

1) Expert’s name;

2) Their area of expertise;

3) The expert’s education and employment history;

4) The nature of the opinion being sought and its relevance to the case at hand;

5) The instructions they were provided; and

6)The expert’s reasoning for their conclusions

The rules in turn are said to provide a much less biased use of experts because parties may not always be permitted to retain another expert of their own if they are displeased with the current one’s opinion. From a monetary perspective, bringing in expert witnesses can be expensive and it may be wise for the parties and counsel to settle the matter themselves. Yet, some cases can be settled much sooner with their participation, thus making their inclusion relevant on a case-by-case basis.

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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

Supreme Court of Canada Decides Which Country Children Should Reside In

Supreme Court of Canada Decides Which Country Children Should Reside In

In a recent case of Ludwig v Ludwig, in which a separating couple disagreed on the future residency of their children, the Supreme Court has since ruled in favour of Canadian residency. The facts of the case concerned the father, who is of German citizenship, wishing to take the children back to Germany where they had been raised. The mother, a Canadian citizen, conversely wished to have the children remain with her in Ottawa, Ontario.

In determining their decision, the Supreme Court adopted what is known as a ‘hybrid-model’ wherein it relies on both the parental intention and circumstances surrounding the children’s daily lives; thus providing a new opportunity to approach the existing concept of ‘habitual residence’. Determining habitual residence under the Convention on the Civil Aspects of Child Abduction – aka the Hague Convention – was the starting point for the court to determine if the children belonged in Germany or Canada.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox, Sign up here or listen to our Podcast Family Law Now.]

The facts indicated the couple lived in Germany since their marriage in 2001 up until their move to Canada in 2017 with the intention to run a business in Ottawa. Despite the children adapting to Canadian life through school enrollments and friendships made, the parents were unsure how long their residency in Canada was to last.

After the separation, the father applied under the Hague Convention to take the children back to Germany, of which Superior Court Justice Denise Korpan refused. The father appealed and the Appeal Court uphold Justice Korpan’s application of the hybrid-model under Balev in accordance with the children’s circumstances in Canada at this time. The Court stated:

A child’s views and preferences may be relevant to the concerns that animate the hybrid approach. As Balev teaches, at para. 43, the focus of the hybrid approach is the child’s links to and circumstances in the two countries and the circumstances of the move between those two countries. A child’s views and preferences may shed light on their links to a particular country or their circumstances in that country. For instance, if a child wishes to remain in country A because the child has made friends and social connections in country A, the child’s preference to remain in that country provides evidence of the strength of the child’s friendships and social connections, a relevant link to country A. [63]

In other words, the judgement states that although the children had spent longer portions of their life in Germany, the circumstances they have undertaken in Canada are much more immediate and important.

For full text of the decisions see:

Office of the Children’s Lawyer v. Balev, [2018] 1 SCR 398, [2018] SCC 16

Ludwig v. Ludwig, [2019] ONCA 680

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

A Divorce That Is Out Of This World

A  Divorce That Is Out Of This World

American NASA astronaut Anne McClain has recently been in the midst of claims of identity theft that is said to have begun in the difficult divorce between her and her spouse Summer Worden. Worden claims that her bank account was accessed by a NASA computer network without her permission, thus leading to a complaint against the Federal Trade Commission.

McClain’s lawyer describes that prior to the separation McClain had aided with the raising of Worden’s son and provided financial support and accessed the bank account of such support without the knowledge that Worden no longer wishes she do so.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox, Sign up here or listen to our Podcast Family Law Now.]

The martial breakdown had historically been subject to further claims of abuse and disagreements over child custody. With the divorce ongoing, and the finances not yet separated, the confusion of the claim has exited the atmosphere.

McClain was set to participate in an upcoming spacewalk that was to be the first all-female spacewalk in history, but has unfortunately had to be reassigned albeit by a decision on her behalf due to unrelated matters.

Case ongoing.

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

This Year’s Scholarship Winner

High school graduate, Lauren Kay received a $2,000 scholarship award towards her academic career courtesy of the Russell Alexander Scholarship Fund. She will be attending a law program in her first year of University. We would like to thank all the students with an interest in law who have submitted an application. The decision to choose Lauren for the scholarship was unanimous. We wish all the students and their parents a wonderful year and smooth transition going back to school.

Would you like to be next year’s winner? 

Russell Alexander is now accepting scholarship applications for the following academic year. Students going into grade 12 this year with an interest in studying or joining the legal profession can apply now.

Learn more about eligibility and the application process here.

Wednesday’s Video Clip: Finding a Lawyer

Wednesday’s Video Clip: Finding a Lawyer

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

Carolyn Warner joins Russell Alexander

We’re proud to welcome Carolyn Warner to the Russell Alexander team

Joining the Russell Alexander team is our new associate lawyer, Carolyn Warner. She has practiced family law exclusively for over eight years since her call to the bar in 2011.  She is committed to providing her clients with empathy and sound advice and prides herself on approaching all cases with an analytical and tenacious mind-set.

Fun facts about Carolyn:

  • Graduated from York University in the top 5% of her graduating class
  • She earned an award for outstanding ability in oral advocacy from the University of Windsor Law School
  • Carolyn loves crime drama television series; in particular, she enjoys watching the Wire and Luther
  • Her  favorite movie is Mean Girls
  • In 2018, Carolyn travelled to Los Angeles to watch the NBA All-Star Game
  • One of her bucket list items is to hike up to Machu Picchu, a UNESCO World Heritage Site in Peru

Welcome to the team, Carolyn!

Family Law Now | Episode 2: Top 10 Things You Should Know About Collaborative Practice

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On this episode, hosted by Russell Alexander with special guest Jason Isenberg, two collaborative family lawyers discuss the process, resources, and the various benefits for clients who choose collaborative.

Read more

Wednesday’s Video Clip: Enforceable Marriage Contracts

 

What makes a marriage contract enforceable?

• Ensure the contract is in accordance with the prevailing law,

• Financial disclosure from both parties,

• Disclosure of all assets,

• Disclosure of all debts,

• The contract should be a product of full and fair negotiation.

 

Answer provided by family lawyer, Lori Dubin.

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

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