Love is Always Sweeter the Second Time Around

Posted by Douglas J. Manning on May 11, 2012

Given that the sheer number of spouses who separate has increased cumulatively over the years, then the number of people who re-partner must also be increasing.  This results in an increase in the number of people who should protect themselves, and their net worth in the event of a separation from their second (or third or fourth) spouse, whether that is a married spouse or a common-law spouse.  However , I am sometimes surprised by the number of people I meet, not only in my professional world but also in my social circles who will tell me that they are in a new relationship and that things are great.  When I casually ask them if they took any steps to safeguard their assets from having to be shared with their new spouse in the event of a separation, I am often greeted with a surprised look or a blank stare.

Once the initial surprise wears off, they sometimes will ask for more information.  In general terms I will tell them that in most jurisdictions, married spouses are entitled to share in the growth of the other spouse’s net worth during the marriage.  In Ontario, in general terms, if a husband is worth $200,000 upon remarriage and he is worth $300,000 at the time of separation and his wife was worth $100,000 at the time of the marriage and is worth $120,000 at the time of separation, then the husband would owe the wife an “equalization payment” of $40,000.  The husband could have been able to avoid this eventually through the use of a marriage contract in which both spouses would have agreed not to share in the net financial growth of the other spouse at the time of separation.

Even greater inequities could result in the circumstances where one spouse brings a house into the marriage and that is the same house at the date of separation. In Ontario, the owning spouse could lose the ability to deduct the net equity in the house at the date of marriage and have to share the entire equity in the house at the date of separation with the other spouse.  Again, this “unfair” result could have been avoided through the use of a marriage contract.

Couples that cohabit in a common-law relationship could face even more challenges in the event of a separation.  There are no clearly defined legislative provision governing how common-law couples are to divide their property if they separate.  Depending on how long the couple are together, there could be very complicated negotiations as to whether one spouse is entitled to an interest in the other spouse’s property.  This could arise if one spouse has contributed to the mortgage payments, payments made for improvements to the property, or “sweat equity” being contributed to the upkeep of the property.  This analysis can become very detailed and time consuming.  Common-law spouses can minimize the possibilities for disputes by entering into a cohabitation agreement.

If you are considering a new relationship please consider taking some steps to protect what you are bringing into the relationship, or , “love may NOT be sweeter, the second time around”

How Does My Cancer Diagnosis Affect my Rights and Obligations? Child and Spousal Support

Posted by Lori Aylwin on May 04, 2012

A Colleague of ours just came through a rough year of cancer treatment.  We are extremely grateful that this partner in our firm is healthy and back to work.  This colleague recently asked me to provide my comments to him for a presentation he is giving at our local Gilda’s Club regarding legal considerations when you are faced with a cancer diagnosis.  Below are things to be considered if you have been diagnosed with cancer and you now want to seek spousal or child support; if you have an obligation to pay support; or if you are a support recipient. 

Support Entitlement

  • If you have separated and have not dealt with issues pertaining to support and property division before your cancer diagnosis, get legal advice and start this ball rolling as soon as possible to preserve your rights and entitlements. 
  • If you have not pursued spousal support previously because you were working and able to support yourself, you may now be entitled to support.   
  • If you have a child in your care and you have not pursued support in the past, you should pursue support for that child, as that support may become very crucial if/when your income will be reduced while you are off work and undergoing treatment. 
  • Get legal advice from a Family Law Lawyer. 

Support Payors

  • If there is an Order or an Agreement for support then that Order or Agreement stands until varied. 
  • As the payor, find out how the diagnosis will affect your income stream (e.g. will you continue to be paid?  Will you be on Employment Insurance?  Get short-term or long-term disability payments?)  You need to consider and estimate what your income will be while you are off.  Your Human Resources contact at your workplace can help you to determine what your income will look like while you are off work.
  • Just because your income may be reduced due to your illness, does not necessarily mean that your support obligations will be suspended or reduced.  You cannot just decide unilaterally to stop paying and if you do, the recipient may seek to enforce the payment of support through the Family Responsibility Office. 
  • The Family Responsibility Office (FRO) will not suspend or change your support obligation and will enforce the recipient’s entitlements to support unless there is an Agreement or Court Order.  In some cases FRO may agree to refrain from enforcing your support Order or Agreement pending the outcome of a Court action. 
  • In regard to Child Support, you can determine your reduced obligation by referencing the Child Support Guidelines.  Determine what your monthly income will be while you are off work and look at the CSG Chart for your province to determine the corresponding child support obligation.  
  • In regard to spousal support, your illness may be considered a material change in circumstance which gives rise to a variation of your support obligation (it also may not be a material change if the change in your income is such that your income is not materially affected).
  • In any event, if you believe that you need to reduce or suspend child or spousal support payments due to illness, you should notify the recipient in writing, advise him or her of why you are requesting the reduction or suspension, and give him or her as much information as you have available in regard to how this diagnosis will impact you in respect to income.  The more open you are with this information the more likely the recipient will be amenable to agreeing to a suspension or reduction in support. 
  • If you believe you are able to properly calculate reduced child support, make the calculation, provide the recipient with your calculation, and request that the recipient enter into a written agreement to reduce the support based on the change in your circumstances.
  • If you are unable to pay at all as you are off work without an income or your income is drastically reduced, request that support be suspended and that the recipient agree to this suspension in writing.
  • If you are varying a Court Order you may need to file a motion to change on consent to ensure that the Court Order in place reflects any tempoarary agreement you may have around the reduction or suspension of support.
  • If the support recipient does not voluntarily agree to suspend or reduce the support payments, you should seek to obtain a Court Order in this regard.  Get legal advice. 
  • If you are paying support directly to a recipient and the support is to continue, you may wish to register your Order or Agreement (and any amended agreements) with the FRO.  FRO not only enforces Support Orders and Agreements, FRO acts as an accounting agent to keep payments flowing through electronic funds tranfers and they maintain the record of payments made and  received; taking this burden away for the supporrt payor and/or their family or friends helping them while they are undergoing treatment.
  • Check your Order or Agreement and see if there is a provision that deals with your incapacitation or death and see how support is dealt with.  You may need to advise your Power of Attorney for property regarding your support obligations and ensure that they have your Agreement or Court Order.
  • Check as to whether you have met the Life Insurance obligations under your Agreement or Court Order as they relate to the recipient(s) of support, ensure that you have fulfilled those requirements and that the support is secured or continues to flow to the recipient.
  • Get legal advice from a Family Law Lawyer. 

Support Recipients

  • If you are the recipient of child support, with children solely in your care with only access to the other parent and the children are remaining in your care while you are uindergoing treatment, there in should be no change in child support coming to you while you are off work.  A reduction in your income does not affect the amount of child support you receive as that amount is determined by the support payor’s income.
  • There may be a reduction in the amount of add-on or extra-ordinary expenses you are required to contribute to, if your income is reduced.
  • If you are in a shared parenting arrangement and support is coming to you, you may be entitled to more support if your income is reduced. 
  • If you are receiving child support and the children must be temporarily cared for by the support payor, you should agree in writing to the suspension of child support payments while they are in the payor’s care. 
  • If you are receiving spousal support or you waived an entitlement to spousal support in an Order or Agreement, your diagnosis may be a material change in circumstances which would trigger a review and variation of spousal support entitlements.
  • If you are receiving support directly from a payor, I recommend that you register your Support Order or Agreement for enforcement with the Family Responsibility Office as they keep accounting records for you as to payment s received.  Registration with FRO ensures that payments continue to flow to you from the payor without you having to cash cheques or have someone pick-up cheques from the payor on your behalf.
  • If you are receiving support check your Order or Agreement to determine what happens with that support in the event of your death. 

Before you decide how you need to proceed...get legal advice!  At the very least, attend a single consultation with a Family Law Lawyer to ensure you understand your rights and obligations.  Most Court Houses in Ontario have a Family Law Information Centre (FLIC) with staff available and with access to written information about your rights and obligations and the Family Court process.  FLIC may also have free advice lawyers available for a consultation for those who meet a means test.  If you are pursuing support, legal assistance may be available through your local Legal Aid office if you qualify.  This may be something you will want to tackle before treatment starts, as you may not be able to deal with these issues effectively once you are undergoing treatment. 

For more information check out the following links:

http://www.barristonlaw.com/

http://www.attorneygeneral.jus.gov.on.ca/english/family/

http://www.mcss.gov.on.ca/en/mcss/programs/familyResponsibility/index.aspx

http://www.legalaid.on.ca/en/

From the Other Side of the Desk

Posted by Kim S. Kieller on April 27, 2012

For the past twenty six years I have been practicing law.  It definitely does not feel as though it has been that long, and I have enjoyed every minute of it.

To me, it has always been about helping people.  However as I get set in my ways I notice how habits develop without me even knowing  it.  I was not aware of some of these habits until I was on the other side of the desk, a client with my own lawyer!

What I have taken from this situation is helpful to both clients and counsel alike.

As counsel I have always tried to put myself “in my client’s shoes”.

What I mean by this is that I approach each client as if I were on the other side of the desk. What do I expect from my counsel?  Of course, I use the word and noun “counsel” on purpose.  The first thing I will expect is counsel from my lawyer.  This means counsel within the retainer, not counselling in the psychological sense.  Your lawyer is not a qualified therapist and, even if he or she is, their time is are a very expensive therapeutic option.  As a result, keep your communication in a factual manner. 

The second thing is that I always try to provide personal replies and answers to legal issues and questions, rather than delegating this to a clerk or a junior lawyer.  Answers ought to be dealt with as soon as possible.  I would expect as a client to receive emergency answers immediately – and if the issue is an emergency to me but not, in an objective manner, to my lawyer, for someone to let me know this and be comforted that the answer will be coming.

Thirdly, I  expect my counsel to listen to my needs.  Do I need every dime I can get out of the litigation, or is there a range of results?  What is the range, and most importantly what is the cost /benefit analysis at each stage?  If I have three children and my spouse argues that his personal business only earns $40,000 per year, and he lives otherwise, this may require more resources and time than someone who is arguing the difference between an income of $100,000 and $110,000. What are the costs in continuing?  Is the cost of continuing likely going to outweigh the result?  What are the emotional and psychological costs?  Can I afford the time to deal with a minor issue – is it worth that last court appearance if I am in a new job that I love – and the attendance might prejudice it?  I always look at the person across from me and wonder if I were in his or her position, what could I afford?  How far would I go?  Do I need this “win” (and by the way sometimes one needs a “win” to stop further litigation harassment).

Now that I am on the other side of the desk, I have also learned a few other things.  I cannot control what is happening and I leave that to the expertise of the lawyer I have researched and chosen.  But, I realize that the minor issues that even I sometimes forget about when I am counsel can be very frustrating and even undermine an efficient and reasonable settlement.  For example, facts not relevant to the action are sometimes incorrect in briefs.  While this usually makes no difference in the final result, it can be very frustrating to a client.  The client wonders if the lawyer cannot get a name of a child or a birthdate or other fact straight, is he or she really listening to me?  Do they really care, or am I just a file number?  This is important to a client.

Keep the client apprised of what is going on.  A very intelligent and caring clerk told me to always send everything to the client – keep them apprised about what is happening.  This gives your client confidence and with confidence, the ability to accept recommendations in an educated and objective manner.  Without this information and knowledge a client may be hesitant to accept recommendations. Keeping them up to date as the matter proceeds allows for fair and intuitive analysis and makes the job so much easier for everyone.

In the end a client ought to expect a caring devoted counsel, not a friend.  One should know all the pros and cons to the matter and the eventual results early on.  Is there a game plan? And are you part of the development of the plan?  Do you have a contact if the lawyer is not available?  Ask yourself before any communication, what do you need to learn? What information do you need?  If your lawyer asks you to do something (disclosure, productions, medical reports) they are doing it for a reason.  If there is trust and communication, this will expedite the process and provide a team approach.  Think of the lawyer and his or her staff and associates as your team and like in any good sports team, set up a game plan and try to stick to it.

_____________________________________________________________________________

Kim Kieller is  a partner at Barriston, practicing  in estate and matrimonial (support and property issues) matters, mediation and arbitration.  For the record, the litigation she is involved in has nothing to do with any of her areas of practice!

I WANT A DIVORCE! - Uncontested and Contested Divorces

Posted by Catherine Hyde on April 20, 2012

Catherine Hyde, Family Law Clerk

In the movies there always seems to be one spouse trying to get the other to sign the “divorce papers” so that they can get remarried. Think “Sweet Alabama”. In Canada, our procedures are somewhat different.

There are two streams for divorces. It is either an Uncontested Divorce in which case all of the outstanding issues (property, custody, access, support) have been resolved (by way of Separation Agreement, Minutes of Settlement or Court Order) and neither party opposes the divorce, or a Contested Divorce in which case you have yet to resolve those issues and one party does not agree to proceeding with the divorce. In a contested matter, there is the opportunity to sever the divorce from the corollary relief (property, custody, access, support), if both parties agree to it. 

Grounds

In order to obtain a divorce in Canada, there must be a marriage breakdown. Marriage breakdown may be: Separation – living apart for one year; Mental or Physical Cruelty; or Adultery. 

Can I do it myself?

In the case of a contested divorce you should seek legal advice as to your rights and what the steps are in your specific case. Even in an uncontested divorce it is best to obtain legal advice with respect to your rights and whether in fact  you have dealt with all the outstanding issues or if you first need to obtain a Separation Agreement dealing with all of your rights. Once that step has been taken and both parties agree, you can proceed with the uncontested divorce.

You can prepare the paperwork yourself, however, the Application or the Affidavit can be returned by the court staff where you file it if certain information is missing. This can cause a delay in the process.  If you do not know where your spouse resides, there may be other steps to take in order to complete service. If an amount other than table amount is being paid for child support there will be further explanations required in your materials. These are factors to be taken into consideration when determining if you wish to do it on your own.

Steps in an Uncontested Divorce

The Application must be completed and issued by the Court. Once issued, you must arrange for service (unless it was a Joint Application) either by mail with an Acknowledgment of Receipt card signed by your spouse, or by personal service. The spouse then has 30 days in which to respond. If there is no response, you can proceed to file your documents with the Court to request an uncontested divorce. This will include your Affidavit and draft Divorce Order. The Judge will review the documents and determine whether the divorce should be granted. The Court will then issue the Divorce Order and mail it to the parties or provide to counsel of record.  31 days after the Divorce Order has been granted, you may attend at the Court Office and obtain a Certificate of Divorce. At each stage there are filing fees to be paid to the Court.

ANNULMENT OF MARRIAGE IN ONTARIO

Posted by Catherine Hyde on April 13, 2012

Catherine Hyde, Family Law clerk

We are sometimes asked by clients whether or not they should seek a divorce or instead can they seek an annulment of the marriage, essentially declaring that the marriage is null and void, or the other spouse may be threatening to have the marriage annulled. 

Most often an annulment is sought for religious purposes; however, the annulment obtained through the Church is not recognized by the government or the Courts.  In the Application for Divorce, Form 8A, you can seek under “other claims” an annulment.  You must be able to prove that there is a valid reason why the marriage should be annulled.  Such reasons include that one party was already married unknown to the other party; there was not capacity to be married, or the marriage was not consummated due to certain factors.

Below are two articles addressing the issues of annulment, the first is by J. N. Mukongolo & Associates and the second by Ottawa Divorce

http://www.ontariodivorces.com/annulment.html

http://www.ottawadivorce.com/annulment.htm

You should seek legal advice in order to determine whether you have grounds for an annulment through the Court process or whether a divorce based on marriage breakdown is more appropriate for you.

The Charter of Rights and Freedoms and the Law

Posted by Barrie M. Hayes on April 09, 2012

30 years ago, on a blustery spring day in Ottawa, then Canadian Prime Minister, Pierre Elliott Trudeau and Queen Elizabeth executed a document proclaiming the patriation of the Constitution and the adoption of the Charter of Rights and Freedoms.

The patriation of the Constitution, as Trudeau said in his remarks that day, marked the arrival of our “complete national sovereignty, as is befitting of our Canadian way of accommodation and negotiation”.

Characteristic of our peaceable national character our sovereign independence was achieved by principled negotiation as compared to our American neighbours, who had achieved independence through military struggle.

Our Charter, as does the American Declaration of Independence, enshrines certain fundamental freedoms which form the very basis of our Canadian way of life namely freedom of religion, freedom of peaceful assembly, freedom of association. The Charter guarantees that every citizen of Canada has the right to vote in an election, to move and take up residence in any province. Every Canadian has the right to life, liberty and security of person and the right not to be deprived thereof, except as in accordance with the principles of fundamental justice.

Many of the freedoms enshrined in the Charter deal with criminal law issues (the right to be secure against unreasonable search and seizure / the right not to be arbitrarily denied or imprisoned / the right on arrest to be informed promptly of the reasons thereof and to retain and instruct counsel without delay).

Upon being charged with a criminal offence, the Charter requires that fundamental legal process be complied with, namely the right to be informed without reasonable delay of the specific offence, the right to be tried within a reasonable time, a person charged has the right not to be compelled to be a witness in a proceeding against that person, the right to be presumed innocent until proven guilty in a Court of law in a fair and public hearing by an independent and impartial tribunal and not to be denied reasonable bail without just cause, among others.

If convicted, the Charter guarantees that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

In the family law context, s. 15 of the Charter provides that every individual is equal before and under the law and has a right to equal protection and equal benefit of the law, without discrimination and, in particular, without discrimination based on race, national or ethnic origin,  colour, religion, sex, age or mental or physical disability.  Case law subsequent to passage of the Charter has dealt with equality issues such as the difference in treatment of common law spouses for family property equalization and the issue of gay marriage.  These cases have resulted in legal decisions which affect the very fabric of Canadian society.

With the continued development of juris prudence, the Charter has become a living, breathing document of utmost relevance to Canadian Society.

High Conflict Separation and Divorce

Posted by Thomas C. Dart on March 23, 2012

A relationship breakdown affects people in different ways. Some people know that they have grown apart, accept that fact and are able to move on with their lives rather quickly. These are the people who can come to a quick and rather painless resolution of their parenting and financial issues.  If they use lawyers, their legal fees are low and they always reach an agreement without very much fuss. Other people, (and I think these are the majority), are torn apart by the failure of their relationship.  Depression, anger, frustration, all very strong emotions, control their behavior making it impossible for them to think rationally. It takes these people much longer to go through the process. For varying periods of time, they can’t let go of the feelings of hurt and they can’ t move on - sometimes for many years.  However, with appropriate counselling and with an appropriate method of dispute resolution, such as mediation, or collaborative law, these people can find a peaceful resolution and they can eventually move on with their lives. Sometimes they need a trial as well to resolve legal issues which cannot be resolved by the other dispute resolution methods. Such a trial is what the justice system is  all about – facts and evidence are presented in a civil manner, with appropriate decorum, an experienced and knowledgeable judge makes the appropriate decision.  Sometimes an appeal is taken, but eventually, the litigants accept the result and move on. Often they become stronger individuals as  a result of their experience in resolving the conflict in such a humane and civil manner.

Then there are the people who have what psychologists and psychiatrists characterize as “ a personality disorder”.  Bill Eddy, a noted mediator and lawyer who has written extensively about high conflict families, notes in his book¹ that “personalities, not issues”, drive the conflict for the High Conflict Person whom he terms the “HCP”. Professionals involved in the legal justice system from lawyers to judges to mental health care professionals have little influence or experience in controlling this type of conflict. The HCP always go to court. They see this as the only way to resolve their conflict. They want to inflict as much damage on their partner as they can and they view the court system as a means to accomplishing this. They very often don’t even comprehend that it is there personality disorder which is driving the conflict and that they need mental health care more than they need the justice system.

It takes training and a high level of expertise to enable people with personality disorders to finally resolve conflict.  Professionals who try to assist such people often run out of patience. They often don’t get paid and their HCP clients frequently report them to their professional governing body because they never can live up to this type of  client’s expectation. Needless to say, many professionals have simply ‘dropped out’ of handling such cases and have dropped out of handling family law cases altogether. In Ontario, for example, many psychologists and other mental health care professionals who perform the very valuable service of providing guidance to Judges handling parenting disputes are retiring from this aspect of their profession. This is a great loss to our system.  The HCP often ends up representing him or herself in the family justice system and is then entirely out of  control. As we live in a society where everyone is entitled to his or her day in court, the system unfortunately has to accommodate this kind of individual.

High conflict personalities cost the justice system a great deal of money. They tie up the court system with their ongoing feud. Every order which  a judge makes is either disobeyed or challenged in some way. They change lawyers often, causing further delay. If things don’t go their way, the conflict only seems to increase, not dissipate.  Their “day in court” never ends – it just moves around the system from judge to judge and courtroom to courtroom.  Other legitimate users of the justice system have to wait while the HCP consumes so many resources which would otherwise be available for them.

If the HCP causes so many problems in the justice system, why then are they tolerated? More importantly, how can the system adjust to handle them? Fortunately, there are numerous organizations now researching this issue, providing wonderful insight and guidance. 

The High Conflict Institute LLC was founded by Bill Eddy and Megan Hunter in 2008. In Ontario, the High Conflict Forum takes place annually. It is organized by Jewish Family & Child and each year the forum brings attention to this topic by presenting a one or two day conference on this subject. Leading speakers include Professor Nicholas Bala, a Queen’s University Law Professor who has done extensive research on this topic. Bill Eddy has also presented at this forum. There are of course many others who have taken up the challenge, studying the issue, trying to understand its roots and most importantly, trying to come up with answers.²

All that is needed now is for the various government bodies to take a leadership role. Someone needs to take all this vast amount of research, create some recommendations and bring the resources to bear on an appropriate resolution. 

Perhaps, in time, people who need the services of the mental health profession will obtain that service instead of the services of the adversarial justice system which only provides a forum for their ongoing disastrous conflict. Maybe then, as well, the people who truly need the justice system to resolve legal disputes will have greater access to those services too.

¹ High Conflict People in legal disputes HCI Press, Nov, 2009.

² Web site of the High Conflict Institute is http://www.highconflictinstitute.com/  and the web site for the High Conflict Forum is http://www.jfandcs.com/client/jfcs/jfcs_2011_lp4w_lnd_webstation.nsf/page/High+Conflict+Forum!opendocument

Legal Expenses - Tax Treatment

Posted by Douglas J. Manning on March 16, 2012

By Douglas J. Manning, Partner, Certified Specialist in Family Law

In an earlier blog post written by Lori Aylwin in January 2011 she discussed the tax treatment for legal fees and accounting fees incurred for the purposes of establishing or collecting child and/or spousal support. Lori's article succinctly pointed out what needs to be established in order for a support recipient to claim his or her legal expenses as a tax deduction.

A recent judgment from the Tax Court of Canada in October 2011 clarified some of the additional circumstances and considerations that The Canada Revenue Agency should take into account in determining whether a taxpayer can claim certain legal expenses against their otherwise taxable income.

The case is cited as Mercier v the Queen 2011 T.C.C. 427 . 

The Court seemed to focus on the word  “establish” a child support amount in accordance with the child support guidelines. The court stated “that it is trite law that the legal costs incurred to obtain child support for the benefit of a child are deductible in computing taxable income”  and cited The Canada Revenue Agency Interpretation Bulletin IT-99R5 at paragraph 17 as support for this position.

Previous cases have stood for the principle that it is only the support recipient who is entitled to deduct his or her legal expenses.

However, in this case, both spouses claimed that they had custody of the children for part of the time and thus both claimed that they were entitled to child support from the other parent for a part of the time during the relevant tax years.  The Court recognized that this was somewhat of a unique case and that both parents had a claim to entitlement to custody and to child support and would have given both parties some deduction for their legal expenses in attempting to establish the child support amounts.

What was also interesting in this case, was that the Court carefully reviewed the actual court documentation in the custody and support legal proceeding and compared the documents prepared with the invoices for legal services submitted by the lawyer for the taxpayer to ensure that services provided actually dealt with establishing the support entitlement rather than other legal issues such as a divorce, non-removal of the children from the jurisdiction, etc.

Our Firm is often asked to provide a letter to be submitted by the taxpayer with their tax return to claim a deduction.  Be sure to ask your lawyer to provide a similar letter if you are in a position to claim a portion of your legal fees as a deduction for tax purposes.  Better still,  ask your lawyer, when preparing their invoices to you, to use the words “establishing” or “collecting” child or spousal support in their notations on the accounts.

For more information please consult your accountant, tax return preparer or the Canada Revenue Agency website at www.cra-arc.gc.ca

Be Careful Where You Snoop

Posted by Douglas J. Manning on March 06, 2012

By Douglas J. Manning, Partner, Certified Specialist in Family Law

A recent decision in Ontario has raised the profile of the tort of “invasion of privacy” in a case that may have an impact on family law cases.  This case involved a claim by Ms. Jones against Ms. Tsige for “invasion of privacy”.  The act of “invasion” was Ms. Tsige’s successful attempts to electronically access Ms. Jones’ private bank account information 174 times over the course of 4 years.

As it turns out, Ms. Jones and Ms. Tsige worked for the same bank but they did not know each other.  Ms. Tsige developed a relationship with Ms. Jones’ spouse after they had separated but during the time that Ms. Jones and her spouse were trying to resolve their matrimonial difficulties.  Apparently Ms. Tsige’s curiosity got the better of her and her desire to “help” her new partner overwhelmed her better judgment to the point where she continually accessed Ms. Jones’ account information.

The court went through a detailed analysis as to whether there is a cause of action in Ontario for “invasion of privacy” and if so, what are the necessary elements to satisfy the test for the cause of action and if proven, what financial penalty, in the form of a damages award, would be appropriate in the circumstances.

The court summarized the relevant tort in this case as a cause of action for “intrusion upon seclusion” and the factors that must be shown are:

  1. An unauthorized intrusion;
  2. That the intrusion was highly offensive to the reasonable person;
  3. The matter intruded upon was private; and,
  4. The intrusion caused anguish and suffering.

The court found in this case that all four were satisfied in this case.

In terms of an appropriate financial award, the court observed that Ms. Jones had not suffered any actual financial loss but reviewed the range of damages that had been awarded in other cases in Ontario and other jurisdictions for “symbolic” or “moral” damages.  The claims typically involved hurt feelings, embarrassment or mental distress.  The court took into account the frequency of the invasion of privacy; the relationship between the parties, the effect of the violation on the health, welfare, social or financial position of the person; and any distress, annoyance or embarrassment suffered by the person or her family as a result of violation of privacy.

The court felt that the appropriate range of damages was from a very modest amount at the low end to $20,000 at the upper end and in this case determined that $10,000 was an appropriate figure.

While this particular case involved non-spouses, the principles could apply to warring spouses in the family law context.  So think twice before stealing your spouse’s “password” and snooping in their bank accounts, investment accounts, Emails or other private documentation and information.

Electronic Evidence

Posted by Kim S. Kieller on March 02, 2012

Increasingly separated parties are relying on”Facebook”, email and text messages to prove certain parts of their case – and this can be very confusing.

Firstly, all electronic evidence will have to conform with respect to authenticity, originality and reliability.  This is sometimes difficult as sites may not be secure or cut and paste documents can be used.  For example if there is a series of text messages used to prove a point in the negotiation, mediation or court, one has to be confident that the document has not been edited.  In order to do so, one must ensure that there is notice early in the negotiations to the other side to preserve evidence.  If one wants to rely on a certain text message to either cross examine the other side or to prove a point, the deponent must prove that the evidence was properly preserved and in some cases obtain an expert in forensic or computer law to confirm the truth and integrity of the documents.  The expert can then report to the decision maker in the matter as to the authorship, original appearance, content, substance and internal pattern.  One can do the same to challenge a text, email or other document.

Consider this fact situation:  June is attempting to obtain custody of her son.  They live in Aurora.  June’s partner disputes custody and says she has a gambling addiction.  One day on June’s friend’s Facebook page there is a picture, apparently taken on a day that June has care of her son, with  a caption “WE WON BIG”.  June’s partner will want to use that picture to attack June’s credibility and to show that June was not with her son as she had said she was – the truth of the evidence.  Subject to verification and obtaining evidence from the third party, it would be prudent for June’s partner to immediately obtain an order (which can be done only if a court action is started) and obtain third party evidence and notify June’s friend not to destroy any data.

Will the court, if there is an action, or the arbitrator rely on the electronic evidence? – not absolutely, but it is clearly worth trying.

One Judge has said. “In recent years, the evidence in family law trials typically includes reams of text messages between the parties, helpfully laying bare their true characters.  Assessing credibility in not nearly as difficult as it was before the use of email and text messages became prolific.  Parties are not shy about splattering their spleens throughout cyberspace” ( Bruni v. Bruni 2010 ONSC 6569 at footnote 23).  Moral of this story – think twice before hitting the send button – what you might think of or say in the heat of the moment may be used against you.

However, make sure if you wish to rely on the evidence in the (usually, now) text message, make sure you are able to obtain permission to admit the information – as the BC Supreme Court indicated in not allowing evidence, “neither party tendered the electronic version of the email or any metadata relating to it . I am left with conflicting versions as to what [the parties] emailed each other.  Ordinarily such altercation can be detected by a forensic review or simply by viewing the metadata of the email.  Given the way in which emails are created and sent, I must exercise great caution in considering what they purport to contain” ( Hamilton v. Jackson 2009BCSC538 at para.17).  Moral of this story – if the evidence is important, introduce it properly.

Historically, “spleen venting” occurred in phone calls that could not really be introduced.  With the advent of text, email and online computer programs, the search for evidence to prove your case is ever expanding  - however, follow the rules of reliability, preservation and authentication early on to ensure the “big” piece of evidence that will “make your case” can be used in the manner you wish and intend it to be utilized.