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Posts tagged ‘court cases’

What Should Lawyers Discuss About Cases Before the Courts, Including Cases that They Are Involved With?

Lawyers play an important role in educating the public and initiating debate and possible policy changes.

Should the lawyer’s role be limited in the discussion of cases that are currently before the court?

Certainly a lawyer has a duty to keep and maintain confidentiality of all his clients’ matters.

But should a general discussion be permitted since court cases are often matters of public record?

So what do you think?

Read our responses or submit your own comments.

Become a Fan and join the discussion here: http://www.facebook.com/RussellAlexanderFamilyLawyers

 

 

Whether a Parent Has a Right to Move with a Child – The Concept of “Mobility” in Family Law

Whether a Parent Has a Right to Move with a Child – The Concept of “Mobility” in Family Law

The moment that the parents of a child separate, everyone’s life circumstances change immediately:  there are usually new living arrangements and a custody and access schedule put in place.  But as time passes, there may be other developments as well; for example the parents may embark on new relationships with new partners, or may change jobs.   The potential impact on any court-ordered support, custody or specific access arrangement, and the effect on each parent’s rights must be assessed and weighed.

In cases where one parent’s new relationships or new jobs require a move to another city or province, the concern is even greater.  This is because such scenarios give rise the a legal issue of whether the circumstances and preferences of the parents should be allowed to dictate the child’s living circumstances, whether such moves should be allowed and by whom, and – if so – what happens to the custody and access arrangements that are in place.

In family law, this is known as a “mobility” issue.

In Canada, courts generally recognize that the well-being of a child is fundamentally interrelated with the well-being of the custodial parent; indeed, a 1996 Supreme Court of Canada ruling in a case called Gordon v. Goertz established conclusively that judges must apply the “best interests of the child” test in making decisions about whether a parent should be allowed to relocate with a child, which in turn requires an individual, fact-specific assessment.   As the court put it:

“The focus is on the best interests of the child, not the interests and rights of the parents.”

Courts are required to make a “full and sensitive” inquiry.  This means that they are obliged to take into consideration a vast array of factors, including:

• the existing custody arrangement and relationship between the child and the custodial parent;

• the existing access arrangement and the relationship between the child and the access parent;

• the desirability of maximizing contact between the child and both parents;

• the views of the child;

• the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

• the disruption to the child of a change in custody; and

• the disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

It is worth pointing out that in making this assessment, there is no presumption in favour of either parent (whether the custodial parent or otherwise).

Incidentally, the authority for a court to make such a determination on behalf of parents and children is set out in various provincial and federal family-legislation.  Under the federal Divorce Act, for example, provides that if a court gives one parent custody of a child, the court may also require that parent to give at least 30 days’ notice to the other parent of any planned change of residence of the child (although practically speaking, most orders specify a 60-day period).   The access parent, upon receiving such notice, can apply to the court to challenge the proposed change of residence, or seek a variation of the custody or access arrangements; this notice period also afford the parents the chance to negotiate acceptable relocation terms, before it happens.

When mobility issues arise, it is important to get experienced and competent legal advice, to ensure that the best interests of all parties – particularly the children of the relationship – are safeguarded.  Russell Alexander, Family Lawyers work exclusively on divorce law and family related matters, including custody, spousal support, child support, alimony and separation.  For more information or to book an appointment call 1.905.655.6335.

 

 

 

B.C. Court Rules on Constitutionality of Polygamy

B.C. Court Rules on Constitutionality of Polygamy

In a ruling released within the past week, the B.C. Supreme Court has ruled that the current ban in Canada against polygamy is indeed constitutional.

Among other things, the decision examines the federal Criminal Code provision which make polygamy a crime.   Specifically, by virtue of s. 293 of the Code – which imposes up to five years’ imprisonment upon conviction – polygamous marriages have been illegal in Canada since 1892.  Moreover, polygamy is illegal even though the participants may be consenting adults, and even though there is no dependence, abuse of authority, undue influence, or other power imbalance in the polygamous relationship.

The matter arose out of polygamy charges which had been laid against two Mormon leaders Bountiful, B.C.    The charges were stayed in 2009 and a constitutional issue was referred to the B.C. Supreme Court for its resolution by the provincial government.

After 42 days of legal argument, the court ruled upon the proper balance to be struck between constitutionally-entrenched religious freedom rights on the one hand, and the potential harm to those involved in the polygamous lifestyle – particularly women and children.

While conceding that the present law violates the religious freedom of certain groups (such as fundamentalist Mormons, who advocate marriage between a single husband and multiple wives), the harm against women and children who participate in polygamist lifestyles overrides those concerns.  The court had heard evidence that polygamy puts woman and children at risk, and that any encroachment on religious freedom, and freedom of association and expression, were justified.  It also heard evidence from individuals directly involved in polygamous relationships.

However, in the context of affirming the criminal nature of such relationships, the court carved out a specific exception for minors:  it ruled that those between the age of 12 and 17 who violate the law by participating in a polygamous relationship should not be prosecuted, because that prosecution – coupled with the possibility of the minor serving jail time — would create greater harm to the minor than the polygamy itself.  The court urged the federal Parliament to amend the legislation in order to address that concern.

The B.C. Supreme Court’s decision is certainly subject to further appeal.   As it stands, it probably affects directly only a relatively small number of Canadians.  Nonetheless, it is an important ruling in an interesting area of the law, and one that seeks to strike a balance between Charter-entrenched rights and other interests.

For the full text of the decision, see:

Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 (CanLII) http://canlii.ca/t/fnzqf

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 www.RussellAlexander.com

Even with Federal Guidelines, Spousal Support Amounts Are Never Certain

Even with Federal Guidelines, Spousal Support Amounts Are Never Certain

The obligation to pay spousal support can arise through several means, including negotiation between the parting spouses, or by way of a court order.   Either way, the amount and duration of support is dictated by a wide array of factors, and will vary from case to case.

As a means of bringing some consistency to the complex process of determining what support is appropriate, in Canada the federal Spousal Support Advisory Guidelines (the “Guidelines”) were formally issued in 2008.  These Guidelines were drafted by two respected Law Professors with the endorsement of the Department of Justice Canada, after consultation with stakeholders in the family law field.

However, it’s important to know that the Guidelines are not officially “law”.  Instead, they are merely informal guides that have only an advisory purpose; i.e. they provide suggestions as to the appropriate range of spousal support amounts and duration, taking into various criteria into consideration. The Executive Summary for the Guidelines articulates its objective:

“The Spousal Support Advisory Guidelines were developed to bring more certainty and predictability to the determination of spousal support under the federal Divorce Act. …The Guidelines are not legally binding and their adoption and use will be voluntary. They are intended as a practical tool to assist spouses, lawyers, mediators and judges in determining the amount and duration of spousal support in typical cases.”

To this end, the Guidelines impose a standardized set of rules and tables to assist in determining the appropriate level and duration of support in myriad scenarios.    The objective is to bring some much-needed certainty and consistency to the issue spousal support entitlements across Canada.

Nonetheless – and despite the Guideline’s existence and widespread use by those in the family law field – court-imposed spousal support orders can still be uneven across the country, sometimes defying traditional logic and the consistency that is supposed to form the underpinnings of the Guidelines in the first place.   This is sometimes the case even where a judge expressly refers to having used the Guidelines as a tool for making the proper support award.

Looking at Ontario, for example, there are instances in which courts have overtly purported to apply the Guidelines, but then have made awards that do not actually fit within them.   For example, in the Ontario Court of Appeal decision in Rioux v. Rioux, the parties had a 21-year marriage.   The husband earned about $100,000 a year, while the wife (who was 48 years old) earned only about $16,000.  At trial, the judge ordered the husband to pay the wife only about $900 per month.   The wife appealed, but asked for only $1,500, which was a modest amount in the circumstances and not in step with the Guidelines.  The appeal court found this amount to be “reasonable” and “well within the spousal support guidelines”; in reality, this was simply an inaccurate conclusion on the court’s part, no matter how the Guidelines formula was applied.  Moreover, the duration of the support awarded was equally puzzling:  the Guidelines dictated indefinite support from the husband in these circumstances, and yet the Court awarded the wife only five years’ worth (subject to a possible review), citing the fact that the wife was “relatively young” and was working on gaining self-sufficiency.

In another Court of Appeal decision called Catsoudas v. Catsoudas, the appeal court was asked to review the trial judge’s order – which was given without any articulated reasons – to the effect that the husband should pay $1,000 per month to the wife.  It was a 22-year traditional marriage, with the husband earning $110,000 and the wife earning $42,000.  The husband had appealed the trial award, on the basis that the $1,000 was “overly generous” in light of the other payments he had to make as part of the divorce, for equalization and child support (these amounted to $1,300, which was also less than he should have been paying under the circumstances).  The Court of Appeal upheld the original award, stating that it was not “outside the range of what would be appropriate, particularly taking account of the spousal support guidelines”.   In fact, even taking his other support obligations into account, the stipulated $1,000 was below the low end of the Guidelines’ range.   Rather, in these circumstances involving a long-term marriage – and in light of the Guidelines’ formula – the situation called for support in the mid-to-high-end range of closer to $2,000 per month.

Certainly, there are some out-of-the-ordinary cases and aberrant outcomes.   Even court-ordered spousal support awards can vary broadly across the country, since they still involve an element of subjective assessment and consideration of the fact that every family law case is unique.   Therefore – and even with the theoretical certainty of the Spousal Support Guidelines as a tool — separating and divorcing spouses should ensure they each get competent legal advice whenever spousal support becomes an issue.

For the full text of the decisions, see:

Rioux v. Rioux, 2009 ONCA 569

Catsoudas v. Catsoudas, 2009 ONCA 706

No Need to Disclose Affair When Negotiating Separation Agreements

No Need to Disclose Affair When Negotiating Separation Agreements

In D’Andrade v. Schrage, a recent decision of the Ontario Superior Court of Justice, the court tackled the question of how much personal disclosure is required whenever spouses negotiate their separation agreements, specifically whether they are obliged to disclose the existence of an extra-marital affair.

The husband and wife started living together in 1998, and got married in 2001.   At the time, the husband – who had been married twice before — was in his 60s, while the wife was in her 30s.  It was her first marriage.

Throughout their relationship, the husband had the wife sign a succession of domestic agreements, providing her with financial support but making it clear in a specific clause that any payments were gratuitous and were not to be considered as legal support or maintenance, and emphasizing that he was under no legal obligation to her whatsoever.  Essentially, this “husband’s discretion” clause gave the husband the power in the event of separation to use his judgment in giving the wife whatever financial assistance he considered was fair.  

The last of these agreements was entered into in 2007.   It provided that the wife released all her rights to spousal support, and to an equalization of net family property; it also set out her entitlements to various properties that they owned together.  

However, this 2007 agreement was different from all the prior ones in two respects:   for one thing, it inadvertently omitted the “husband’s discretion” clause that had appeared in every other prior version.  More importantly, the 2007 agreement had been negotiated and entered into at a time when – unbeknownst to the husband — the wife was having an affair, and was considering separating from the husband.  With the assistance of her lawyer, the wife negotiated with this potential prospect in mind.

The husband paid the wife almost everything she was entitled to under that 2007 agreement; however, he found out about the affair and did not go through with the obligation to buy her a home worth at least $250,000 as he had promised.

The wife came to court arguing that the 2007 agreement should be enforced, and that – because the “husband’s discretion” clause was missing – the issue of the amount of support she should get was now wide open. In opposition, the husband claimed that the 2007 agreement should be set aside; he argued that the wife had a duty to negotiate and execute the 2007 agreement in utmost good faith.   Specifically, he claimed that the 2007 agreement was invalid and should be set aside because when the wife signed it, she was having an affair and was contemplating separation.  

The court found for the wife, holding that the agreement should be enforced.

First of all, the court confirmed that in principle it had the power to set aside any domestic contract under the Family Law Act, in cases where one party had failed to disclose significant assets or debts, or failed to understand the nature or consequences of the domestic contract.

Next, respecting the omission of the “husband’s discretion” clause in the 2007 version of the agreement, the court found that there was no evidence that there was a fraudulent or innocent omission on the part of his lawyer who did the drafting.    The contract could not be set aside on that basis alone.

The court then considered – but ultimately rejected – the husband’s argument that the wife’s failure to disclose her affair and possible intention to leave was evidence of a lack of good faith and therefore fatal to the agreement’s validity.   To the contrary, it found that not only was there no concrete evidence to show that the wife had actually decided to separate from the husband when the 2007 agreement was signed, but also that it was unreasonable to expect that as part of the negotiating process either party must disclose their respective thoughts about the likelihood of separating, or their involvement in any extra-marital affairs.  On this point, the court wrote:

“To require spouses to disclose their thoughts about the likelihood of separation or their involvements in extra-marital sexual activity before signing a marriage contract could have serious implications for the survival of marital relationships. If the obligation to disclose is limited to thoughts of separation, the question becomes how serious those thoughts of separation were. Does there have to be evidence that the decision to separate has been actually made? If there does, the evidence in this case does not reach that threshold. Among other things, it was Mr. Schrage who actually made the decision that he and Ms. D’Andrade should separate. If this is not the threshold then what is? Is it any thought of separation or only serious thoughts of separation? If it is the latter, how “serious” is serious enough?”
(The court also found that the wife’s lawyer had no duty toward the husband, and therefore was under no obligation during negotiations to disclose the wife’s possible intentions, either.)

Finally, the court emphasized that domestic contracts are financial arrangements; they are not aimed at enforcing personal obligations, such as the duty to remain faithful.   As such, the only duty of fairness that arises on parties that is the one in connection with disclosing their individual financial situations.

As a result, the court upheld the 2007 agreement in this case.

For the full text of the decision, see: D’Andrade v. Schrage, 2011 ONSC 1174 http://canlii.ca/s/16sor

Facebook as a Source of Evidence In Family Law: Part 1

 Facebook as a Source of Evidence In Family Law: Part 1

Facebook, Twitter and other social networking sites are now a routine part of many people’s lives, and have become a convenient means of interacting with others. What some people do not realize, however, is that postings and activity on Facebook and similar sites can be used in family litigation – and usually in unexpected and unforeseen ways.

For example, in a very recent Ontario decision called Jesmer v. Delormier, the father applied to the court for access to his child, a boy named Wyatt. The mother opposed this, claiming that the father and his family should have no access to Wyatt whatsoever.

After a hearing, the court ordered that the father should be given access, but only on a supervised basis. Nonetheless, he never got a chance to fully exercise the access because the mother threw up obstacles to thwart it. The mother wrote the following Facebook message to the father’s sister:

Hi Meagan,

Okay so what I wanted to say. I lied to the judge and it was wrong. I’m hoping this isn’t going to backfire but I think that the best interest of Wyatt is with Alex and that she is right in some ways I think Craig should have supervised visits if anything but Craig is not capable of caring or looking after kids. He has a violent anger which is why I didn’t say the truth that day I was scared and which is why I left. Now there are numerous things I can bring to the judge about Craig and how he is unfit to have any kids without supervision. I do think Wyatt should know him but I wouldn’t trust Craig with any kids either. I did everything and he would leave at long times with me taking care of the kids he never changed Leiland’s diapers I was always the on[sic] to change them. He yelled at me and the kids many of times. I am willing to tell the judge this but I don’t want to be named. Not sure how this would happen though. All I would like out of this is 15,000. I could use the money not going to lie.

I hope you all have a merry xmas and a happy new year.

This Facebook message came to the court’s attention, and the hearing was re-opened to allow the court to consider this new evidence. When confronted, the mother claimed that the Facebook message was untrue; she said she had simply sent it in a fit of fury when, post-separation, she had called the father’s new house only to have an unknown woman answer the phone. She said she wrote the Facebook message to hurt the father.

The court found that the mother’s explanation with respect to the Facebook message simply did not ring true. And whether true or not, the fact that she even sent it displayed “a complete lack of judgment and a total disregard to [the child] Wyatt’s best interests”. The court also noted that she came up with the current explanation a full three months after she posted the Facebook message, and – conveniently – at a point when she and the father had apparently reconciled. Accordingly the court could not determine whether the mother had lied in court or had lied on the Facebook message. It therefore disregarded her evidence in its entirety.

Similarly, in a case called M.J.M. v. A.D., the court reviewed the father’s Facebook page as evidence of his character and his credibility. It observed:

48 With respect to the father’s complaint that the mother is attempting to fool the Court about him, I have heard the evidence and observed the demeanour of both parties while giving their evidence.

49 The mother’s demeanour was straightforward and direct. She answered the questions she was asked and did not try to present herself in a better light. This positively affected her credibility.

50 The father’s demeanour was at times overly self-confident. At times in his cross-examination he answered questions with questions and was evasive. At times he was contrary; at times he shrugged when answering questions so that he displayed and conveyed a challenging “so what” attitude. He gave the grandmother the “finger” during her evidence, which was remarked upon by the grandmother and which I observed. This was both disrespectful and displayed the kind of dismissive attitude he has to the mother’s family and the mother. He did not present himself in the best light at a time when the child’s best interests called for the same. All this negatively affected his credibility.

51 Where there is a difference between the evidence of the mother and the evidence of the father, I accept the evidence of the mother.

52 In addition to the conflict between the parties, the father has demonstrated and displayed publicly (at least to his some 95 “friends” on his Facebook page) his disregard and callous lack of consideration of the mother, and his demeaning and dismissive attitude to her. On his Facebook page is a link to another site entitled “[the father] has a crazy x!”. Additionally, the father has an obscene and crude reference to a “porno actor” on his earlier Facebook page. The father refers to his Facebook page as “fun” and a place to have “fun”. This is hardly funny in the unique circumstances of this case. I also note that one of his “friends” on his Facebook page is his common-law partner’s twelve-year-old daughter. This child has been exposed to the father’s rancour and attitude to the mother. At the same time, the father has posted pictures of the child on his Facebook page. He has thereby linked the child to his rancour to the mother and, despite her young age, also exposed her to adult-appropriate matters which the father thinks are fun. That the father would do this is surprising and speaks to the issue of the whether the father can protect the safety of the child absent a detailed Court order. This does not speak to an adult consideration of the child’s best interests. I ordered him to remove the child’s picture from this site and not to post the child’s picture on any other Internet sites. In my opinion, posting her picture like this both puts the child at risk and exposes her to risk.

Overall, there is no evidence that these parents can work together or communicate effectively. The father’s actions around his Facebook link is indicative of his lack of respect for the mother yet asks that decision-making be shared. I believe in such a situation that a shared decision-making arrangement would be destructive and chaotic for the child. The child is entitled to grow up in an atmosphere free of acrimony, rancour, disharmony and disrespect. The father has demonstrated he is unable to act as a principled decision-maker for the child and his attitude to the mother further demonstrates that he will continue to be dismissive of her and will attempt to enforce his will on her at every opportunity if he had any decision-making authority. This is not in the best interests of the child.

Finally, in Himes v. Himes, which was another Ontario case, the court had to consider whether an exchange between spouses on Facebook could be introduced as evidence. In that case, the wife had approached the husband to see whether he was willing to discuss an application for child access that he had launched. The wife was afraid to talk to the husband directly, because she found him controlling. However, she agreed to talk to him on Facebook, and they did so for a few days. The wife wanted to introduce this Facebook exchange as evidence, but the court characterized them as essentially being settlement discussions, which were privileged even if both parties consented to have them introduced as evidence of what each was proposing to the other. Accordingly the court disregarded the Facebook exchange entirely.

You can review the Court’s full decision in these cases at:

Jesmer v. Delormier, 2011 ONSC 1750 (S.C.J.) http://bit.ly/q5k1pH

M.J.M. v. A.D., 2008 ABPC 379 (Alta. Prov. Ct.)  http://bit.ly/pmYyLe

Himes v. Himes, [2009] O.J. No. 2787 (S.C.J.) http://bit.ly/npAPnp

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 www.RussellAlexander.com

You can also visit us on Facebook at http://www.facebook.com/RussellAlexanderFamilyLawyers

Financial Disclosure – A “Necessary Evil” in Family Litigation

Financial Disclosure – A “Necessary Evil” in Family Litigation

In last week’s blog ‘The importance of diclsoure in family law settlements’  http://bit.ly/qsQaQi , a case named Ward v.Ward was reviewed, where the Ontario Court of Appeal considered the validity of a separation agreement that had been negotiated by two spouses. Among other things, the wife had claimed that the agreement was not valid because the spouses had not exchanged sworn Financial Statements leading up to the negotiations, and she later felt there had been some inconsistencies and non-disclosure relating to the husband’s financial affairs.

Ultimately, the Court concluded that even though neither spouse had exchanged sworn Financial Statements (which were not strictly necessary because they had agreed to participate in the collaborative law process, which does not involve going to court), they nonetheless each had sufficient knowledge of the other’s financial situations. Accordingly, there was no reason to set aside the negotiated separation agreement on the sole basis that there had been non-disclosure.

The dispensing with financial statements in Ward v. Ward is certainly not typical. Indeed, the full disclosure and knowledge of the financial circumstances of the parties is a vital part of the family litigation process, a point that was expressly emphasized by the Court in Ward v. Ward. In Ontario, this generally involves the preparation of a sworn Financial Statement by each spouse, which is embodied in specified court forms (Form 13 for support claims; Form 13.1 for property and support claims; both under the Ontario Family Law Rules, O. Reg. 114/99). It requires the party filling it out to list income from all sources, detail his or her living expenses, and provide the value of property as well as the extent of debts and liabilities at various time-points. This includes bank accounts, registered savings plans, credit card debts, and pensions. The form is long, cumbersome and – unfortunately – mandatory under the provisions of the Family Law Rules. A family law matter may be filed with the court, without it.

However, even in cases where the spouses do not intend to proceed to court (i.e. where they hope to resolve their differences by way of mediation or arbitration), it may be prudent for each of them to complete a Financial Statement, nonetheless.

This is because (perhaps ironically), the full disclosure of assets, debts and liabilities by both parties will actually serve to protect each of them. For example, as was seen in Ward v. Ward, under the Family Law Act a court has the power to potentially set aside a negotiated separation agreement in cases where there has not been full disclosure by a spouse; a sworn Financial Statement from both parties therefore amounts to a relatively easy way to ensure that there has been full disclosure. Also, the exchange of Financial Statements long before a court date will allow the parties’ respective lawyers to provide accurate legal advice on matters such as the range of child or spousal support that may be owed from one spouse to another; this can reduce or even eliminate the time that a court would have to spend determining the issue. Finally, the good-faith full and early exchange of comprehensive financial information sets the right “tone” for any subsequent litigation: it avoids one spouse having to compel the other to provide disclosure, which would require the court’s intervention. Plus any reluctance on one party to provide information may lead the court to conclude that he or she has something to hide.

In addition to being experienced in all areas of family law, Russell Alexander, Family Lawyers can assist with the preparation of Financial Statements in preparation for family litigation. For more information, visit us at  www.RussellAlexander.com

Deal or No Deal – Reaching a Settlement in Family Law Matters

Deal or No Deal – Reaching a Settlement in Family Law Matters

In a late-2010 court decision called Swift v. Swift the only issue was whether the spouses had reached a full and binding agreement at their earlier Settlement Conference. The case illustrates the factors that go into determining whether negotiating parties in a family law matter have reached a deal or not.

The spouses, who had three children together, separated after 11 years of marriage. Since that time, there was a great deal of acrimony between them, and in March of 2010 they tried to resolve their issues and differences by attending a Settlement Conference before an Ontario family court judge.

At the end of that Settlement Conference, their respective lawyers advised the judge verbally that the spouses had reached a settlement, and that Minutes of Settlement would be filed with the court accordingly. The judge made a handwritten notation on the file, indicating that the matter “appears settled”.

Shortly afterward, the husband started paying support in accordance with the Settlement terms. His lawyer promptly prepared draft Minutes of Settlement which purported to reflect the spouses’ agreement, and forwarded it on to the wife and her lawyer.

This prompted some back-and-forth correspondence between them, requesting changes. Soon, it became clear that the spouses were not in agreement as to what the Minutes of Settlement were to contain.

In particular, the husband claimed that he couldn’t move forward with finalizing them unless three matters were dealt with, specifically: who would be responsible for certain outstanding assessment fees from a doctor; what would be done with their jointly-owned time share property; and how certain issues with the Canada Revenue Agency would be resolved in connection with the husband’s 2009 spousal support deduction. The husband said that there could be no final settlement without resolution of these essential items.

The matter came back before a judge to determine whether the spouses had reached a consensus at that March 2010 Settlement Conference respecting all the essential terms of the agreement. This included considering whether the husband’s three outstanding issues were essential, or only ancillary in nature.

The wife’s position was that she and the husband had indeed agreed to all of the essential terms, and that there had been a binding settlement agreement even if there was no formal written document confirming it. The three items raised by the husband were only ancillary and did not form part of the Settlement Agreement. She should be able to bring a motion for summary judgment at this stage.

In contrast, the husband pointed to the three specific unresolved items he raised. He also added that the matters of spousal and child support still required resolution at trial.

The court considered the law on how contracts are formed. First of all, the lack of a formal written document was not conclusive: as long as the parties verbally agree to all the essential provisions and terms, the fact that they agree to execute a formal written document in the future does not affect the underlying validity of the oral agreement between them. Next, the court has to look at whether there is a “meeting of the minds” between them during negotiations, and will look at the parties’ manifested intentions in determining whether there was a final settlement. This also involves looking at the spouses’ conduct, and whether a reasonable person in their situation would believe and understand that they had come to an agreement.

In short, the court has to embark on three lines of inquiry:

1) whether there was an evident “meeting of the minds”;

2) whether there was consensus on all the essential terms of the agreement (or whether there were still vague and imprecise parts); and

3) whether the parties made their agreement conditional upon executing a formal written contract.

In this case, the court concluded that at the March 2010 Settlement Conference both spouses had agreed to all the essential terms that were to form the basis of the final settlement between them. The three unresolved items raised by the husband were not of an essential character. Moreover, it was not a pre-condition that the agreement had to be reduced to a formal written contract before it would be binding. This was reinforced by the spouses’ subsequent conduct, and by the behaviour of their lawyers immediately after the Settlement Conference (including the preparation of draft Minutes of Settlement). Finally, the court found that the mere fact that the judge may have written that the matter “appears settled” was not conclusive, and did not preclude the current court from deciding whether the spouses had reached a settlement agreement or not.

In summary, a reasonable onlooker would have concluded that a settlement had been reached in this case. Accordingly there was no genuine issue remaining for trial and that the wife’s motion for summary judgment was granted.

Additional information on family law issues can be found on our web site  www.russellalexander.com

For the full text of the decision, see: Swift v. Swift (2010), 2010 ONSC 6049 (Ont. S.C.J.); additional reasons at (2010), 2010 CarswellOnt 8830, 2010 ONSC 6385 (Ont. S.C.J.) http://bit.ly/hAEkbd

Wife Awarded $110,000.00 Monthly Spousal Support

An Ontario Court has ordered a husband to pay his wife $110,000 per month for spousal support and also ordered the husband to pay his wife $140,000 retroactive month;y spousal support. The retroactive award totaled $1.68 million.

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