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Posts tagged ‘child and spousal support’

Court Lambastes Man’s “Blank Cheque” Litigation Strategy

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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

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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

 

 

Should Dad Be Forced to Cook Gluten-Free?

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Should Dad Be Forced to Cook Gluten-Free?

In the recent decision in Beaulieu v. Beaudoin, the court was asked to rule on several continuing disputes between now-divorced parents in relation to the custody, access and care of their four children, three of whom had special needs. Specifically, one child had been diagnosed with autism and ADHD, while two others had severe behavioral issues.

In the context of a hearing to resolve several ongoing and acrimonious issues, the mother asked the court for an order to force the father to follow children’s gluten-free diet when they are in his care.

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The court explained the mother’s position:

The [mother] says that she has invested significant time and energy into learning how to support the children’s needs and how to stabilize their symptoms through medication and diet. Her research has led her to believe that gluten free and casein free diets have been shown to have positive effects on children with autism and ADHD. She asks that the [father] be ordered to adhere to their dietary requirements.

The father resisted;  although he acknowledged that some of the children had special needs, he disputed the effect of gluten on their behaviour.  He had consulted the children’s doctors on his own about the role of gluten, and they advised that it was unlikely to have any impact.  The court added, “He goes on to list the [the mother’s] long list of dietary restrictions which he believes illustrates [her] own obsession with food and her need to correlate everything about the children’s behaviour on what they eat.”

The court considered evidence, in the form of a letter, from one of the children’s pediatricians.  While stopping short of prescribing a gluten-free lifestyle, it indicated “some evidence” that such a diet can be helpful for children on the autism spectrum, and that “Mom feels that she is doing much better.”

The court effectively discounted the pediatrician’s letter, noting:

He does not prescribe a gluten-free diet. Dr. James’ letter only reports what the [mother] has told him; this is double hearsay and has very little probative value. I am reluctant to make the [mother’s] dietary demands a term of any order without more persuasive evidence. To do so would expose the [father] to allegations of a breach of a court order. At the same time, the children are spending most of their time in their mother’s care and it is problematic if the [father] ignores her concerns altogether. This is a high conflict case. The parties do not need to be looking for new ways to antagonize each other.

In the end, the court resolved this narrow issue by ordering that the father must “respect the children’s dietary regime within reasonable limits.”  The court then went on to rule on a host of other contentious, equally-narrow issues between this warring former couple.  (These will be the subject of future Blogs.)

For the full text of the decision, see:

Beaulieu v. Beaudoin, 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

Wednesday’s Video Clip: Client Testimonial 

 

Wednesday’s Video Clip: Client Testimonial 

In this short video our client Wendy discusses the services, support and assistance she received at Russell Alexander, Family Lawyers.

Thank you for your support and kind recommendation Wendy. From the all our staff and lawyers we wish you the very best.

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

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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.

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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”

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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.

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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

Wednesday’s Video Clip: The Path to a Successful Divorce

Wednesday’s Video Clip: The Path to a Successful Divorce

While the breakdown of a marriage is never an easy or happy time, the process can go smoothly or it can be a roller coaster. On top of all the emotional turmoil, it is time-consuming, costly and very confusing. That’s why Russell Alexander has written a book outlining the path to a successful divorce, taking readers step-by-step through the process from finding a lawyer to handling post-litigation issues. In 300+ pages, Alexander’s new book, readers will find a solid grounding on the key questions about family law that they’ll face as they go through a divorce, including whether they’ll need a separation agreement first, how courts view adultery and why representing yourself is a bad idea.

At Russell Alexander Collaborative 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

Texas Wife ‘Blows Up’ Marriage Memorabilia to Celebrate Divorce Being Finalized 

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Texas Wife ‘Blows Up’ Marriage Memorabilia to Celebrate Divorce Being Finalized 

On the Saturday night of November 10th, Kimberly Santleben-Stiteler held a party consisting of about 40 guests in Medina County, Texas. This party was to celebrate the finalization of ending of her ‘miserable’ marriage of 14 years.

During the party, the wife compiled a garage full of items such as the wedding ring, photos during the marriage, and the wedding dress, which was then attached to 20 pounds of explosives. She then proceeded to shoot the garage with a rifle from 200 yards away, resulting in an explosion that could be seen from up to 15 miles away.

The Texan summarized the event as a “liberating and gave a feeling of closure”.

For more information on this story visit: https://www.star-telegram.com/news/state/texas/article221527670.html

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