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.

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.

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

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

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.

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.

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

In 1985 the adoption laws in Ontario were changed so as to allow for the adoption of an adult by another adult.  This was done primarily to allow long-standing pseudo parent-child relationships to be recognized by the law as just as legitimate as “real” biological parent-child legal relationships and responsibilities.

It is sometimes the case that a family who has known the “child” and the child’s family for years is asked to step “into the shoes” of the parents and raise a child from a young age.  Sometimes these arrangements are intended to be for short periods of time, until the parents get “back on their feet” so that they can resume their parenting responsibilities but occasionally these arrangements turn into long term, permanent arrangements and the pseudo-parents end up raising the child through their childhood, teen years, and maintain a parent-like role throughout the “child’s” adulthood.  It is these types of situations that motivated the legislation to change to allow for these practical parent-child relationships to become legal parent-child relationships.

As far as I am aware, there has been no mischief created as a result of this legislative change.

However, a recent situation in Florida, reported in the Toronto Star February 3rd caught my eye.  Apparently a 48 year old millionaire decided to make his 42 year old girlfriend of two years his adopted daughter.  How surreal is that!

There is more here than meets the eye (apparently).  It seems that the “Father” had set up a trust fund for his 2 (real) children some time ago and the trust is worth about $200 million.  His children cannot access the trust funds until they are 35 years of age.

The “Father” is the defendant in a civil law suit where he is alleged to have killed a 23 year old in a motor vehicle accident while under the influence of alcohol.  If that lawsuit is successful then his personal assets might be available to satisfy the judgment.

By making his girlfriend his “child” then she would have access to one-third of the trust fund and possibly be able to shelter at least this amount of money from being accessed to satisfy the judgment in the civil suit.  It also provides a nice “nest egg” with which this guy and his girlfriend/daughter can live comfortably on if he loses a significant amount of his personal wealth.

Could someone take a shot at setting aside the “adoption”?  Maybe. but I ask myself – Who would have standing to make the application?  Perhaps his 2 other children (when they become adults) given that they may be upset at “losing” a portion of their trust fund.

This is an interesting case where the law has been used in a way for which it was clearly not intended and it leaves a very bad taste in my mouth.  What about you?

Catherine Hyde

Family Law Clerk

We often receive telephone calls from clients wondering whether we have a paralegal in our family department that can be retained as opposed to a lawyer, as a cheaper option of resolving their family disputes.

The Law Society of Upper Canada began regulating paralegals in May, 2007.  This means that all practicing paralegals (with some limited exceptions) must be licensed by the Law Society of Upper Canada.  They are subject to the Paralegal Rules of Conduct set down by the Law Society just as lawyers are subject to Rules of Professional Conduct established by the Law Society.  A Licensed Paralegal will have a P1 license.

There are only certain matters that are within the scope of a paralegal.  These include for example:

  1. Small Claims Court
  2. Provincial Offences Act offences
  3. Highway Traffic Act offences
  4. Tribunals

Family Law is an area in which paralegals are not licensed to practice unless they are under the supervision of a lawyer.  That is, a paralegal is not able to provide legal advice to an individual regarding a family law matter.  A paralegal can provide assistance so long as they are under the supervision of a lawyer.

The issue of whether a paralegal will be able to provide services in family law in the future is currently under review by the Law Society of Upper Canada. 

You should ensure at all times that if you are dealing with a paralegal in a family law matter that they are under the supervision of a lawyer as otherwise they will have no standing with the Court in your matter. 

It is an effective tool for a lawyer to utilize the services of a paralegal or experienced family law clerk to keep costs down and move resolution of the issues forward in a more expeditious fashion.  You can make inquiries when hiring a firm if they have this practice, particularly, where costs are a concern.

A Trial Management Conference is a procedural appearance which takes place after a Settlement Conference has been held and the Family Court Application remains unsettled.

The purposes of the Trial Management Conference include:

a)    Exploring the chances of settling the case;

b)    Arranging to receive evidence by written report and agreed statements of facts, by affidavit or by other method, if appropriate;

c)    Deciding how the Trial will proceed;

d)    Exploring the use of expert evidence or other reports at Trial, including the timing requirements for service and filing of experts reports;

e)    Ensuring that the parties know what witnesses will testify and what other evidence will be presented at Trial;

f)     Estimating the time needed for trial and setting the Trial date, if this has not already been done.

The Trial Management Conference can be combined with a Settlement Conference or Case Conference.

The Trial Management Conference, in essence, is held to organize issues and evidence in order that an accurate estimate of the Trial time required to hear the Application is determined.

The parties are required to file Trial Management Conference briefs prior to the Trial Management Conference. The Trial Management Conference briefs set out the issues outstanding that require Trial determination, an outline of the witnesses to be called at Trial, the topic about which the witness will testify and the estimate of time required for the witness to provide his or her evidence.

The brief is also to detail undisputed facts relevant to the Application and a detailing of disputed facts in relation to same.

Because the Trial Management Conference can also become a Settlement Conference, the parties are required to personally attend at the Trial Management Conference.

If the issues remain unresolved at the Trial Management Conference, the Judge will execute a Trial Management Endorsement, which sets out in considerable detail the timelines for filing various documents that are necessary for the conduct of the Trial (ie: filing trial record / affidavits of evidence / requests to admit / case law / written opening submissions).

The endorsement details the witnesses who are being called by both sides with time estimates for their evidence and addresses the requirement of expert evidence and reports.

About this time last year Jodi Armstrong, another family law lawyer at Barriston Law, wrote a blog entitled “What to Expect at a Case Conference”. Recent discussions with clients suggested to me that it might be helpful to follow Jodi’s lead to provide a series of blogs explaining in some detail what parties should expect at the different type of family court dates. In this blog I will focus on Motions.

A motion is a court appearance where one side asks the court to make a temporary order on a substantive issue, such as an order for temporary spousal support. Once a temporary order is granted, it is meant to last between the date the order is made and some future court date, such as a Trial, another Motion date, or ideally a final settlement.

A number of court documents must be prepared and served in advance of a motion. The documents usually consist of a Notice of Motion, an Affidavit setting out the facts supporting the Motion and Exhibits (documents referred to in the Affidavit). In addition, a Factum or Brief of Authorities may need to be filed. A Factum is a written statement that summarizes the facts and law being relied upon by a party in support of his or her position before the court. A Brief of Authorities is an indexed booklet of the most relevant legislation and case law in support of a party’s position.

The party bringing the motion is called the “Moving Party”. The party defending the motion is called the “Responding Party”. However, a Responding Party may bring a cross-motion against the Moving Party, returnable at the same motion, requesting the court to make orders they seek.

In Ontario Rule 4 of the Family Law Rules prevents motions from being served or heard before a case conference dealing with the substantive issue to be address by the motion, except in rare circumstances where the court is of the opinion that there is a situation of urgency or hardship. It should be pointed out that the Court’s definition of urgency or hardship is often quite different from a party’s personal definition. There are many Family Law matters that will feel very urgent to the family members involved, but do not in fact meet the legal threshold to be considered urgent. Recently Motions Judges have been requiring parties to contact the Trial Coordinator to determine if there are any conference dates available right-away before attempting to bring a motion based on urgency or hardship prior to a conference date.

The reason for the rule requiring a conference before a motion is that in the Family Law context motions often exacerbate animosity between parties. The goals for a motion differ from those for a conference. Conferences are structured to increase the likelihood of the parties settling matters between themselves, with some guidance from the court. For many reasons this is the preferred result. Whereas, the goal of a motion is to have a judge review the evidence and law, and for him or her to make the decision.

Some family courts in Ontario have open motion lists and others schedule their motion dates. An open motion list means that a party need only serve and file their materials in accordance with the Family Law Rules to have their matter heard on a motion date chosen on the Notice of Motion. Whereas if a court schedules their motions the trial coordinator will need to be contacted before choosing the motion date. There are pros and cons to both systems.

Regardless of whether the motion date is on an open list or a scheduled list it is likely that several parties’ matters will be scheduled for the same date and the same time. Often judges will ‘vet the list’ at the start of the day to determine the priority of the matters to be heard. This simply means that all parties on the motion list that day are asked to attend in the courtroom and the judge will ask for basic details regarding each matter and for time estimates for the motion. The judge will then determine what order to hear the motions. It is important to be punctual on a motions days to ensure your matter does not lose priority, or worse end up struck from the list that day.

While punctuality is required, be ready for a long day. Depending on the number of other matters on the list that day, the priority of your matter, and other factors, it is possible that you will be at the courthouse the entire day waiting to be heard. Bring a book and some snacks with you for the day (note you cannot eat, drink, chew gum, etc. in the courtroom itself). It is unfortunately a ‘hurry up and wait’ system at many Ontario courthouses.

The issue of ‘costs’ is often more relevant at a motion than at a conference. At the end of a motion, after the judge has made his or her decision, he or she has the power to order one party to pay all or part of the legal costs of the other party. Generally, the losing party will have to pay costs to the successful party. The quantum of costs ordered will be determined by the judge’s assessment of the reasonableness of each party’s position or behaviour and whether or not there had been offers to settle.

If a self-represented party is considering whether to bring a motion he or she should get a copy of the Ontario Family Law Rules and follow the Rules. They can be found on-line. Motion Judges generally follow the Rules more strictly than Case Conference Judges. Also, there are more severe consequences for not following the Rules at a motion, as Motion Judges are more likely to make cost awards than Conference Judges.  

Motions are expensive because of the preparation required and risks involved. Motions really should only be brought when necessary to move a matter forward or provide required relief to which the other party will not agree. However, if you do need to bring a motion, on the day of your motion, after all the preparation is complete, and you are sitting in a courtroom hallway waiting to be heard – try to relax. It will not be helpful to you to be too anxious or angry, or a myriad of other difficult emotions. If possible have a support person with you or available by phone, not to interfere with your legal instructions, but to simply provide emotional support. By this time you have decided that the decision in your matter is best made by a Family Court Judge who will listen to both sides and apply the law. While your situation may feel uniquely horrible, complicated, or maybe even ridiculous, know the Judge is very likely to have seen cases at least somewhat like yours before. If you have children, know that Family Court Judges are always considering their best interests.