Sep 30
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What’s Happening With Family Law Reform?
In my last Blog post New Family / Criminal Court in Ontario — Still in Its Early Days, http://bit.ly/pEwKxf I mentioned the implementation of a new pilot project involving the implementation of a hybrid form of family / criminal court in Toronto, called the Integrated Domestic Violence Court. Although it is still in its early stages, the theory is that this new court may be a more efficient means for hearing certain domestic violence cases in Ontario.
But not all such law reform measures – no matter how worthwhile – actually see the light of day as quickly as they might. Exactly a year ago, the Law Commission of Ontario (LCO) released a Report on the Family Law Justice System, titled “Voices from a Broken Family Justice System: Sharing Consultations Results.”
This 83-page report, which was based on in-depth interviews with social workers, lawyers, judges, counsellors and individuals involved with the family law system, focused on the “entry points” in to the family law justice system in the province. In particular, it aimed to examine the early stages of problem-solving in a family problem or conflict, focusing on where people go when faced with such challenges. These include schools, workplaces community-based organizations, mental health services, and legal and police services. The LCO conducted 49 individual or group consultations meetings, in person or by telephone, and also received written submissions by e-mail, mail and on-line survey.
Those who provided input recommend the reform in connection with the delivery of family services, including:
• the level of confidentiality and type of expertise necessary to solve family challenges and problems;
• whether services should be voluntary or mandatory;
• how legal culture influences the relationship between lawyers and users, between lawyers and other professionals, and between judges, users and other professionals;
• the need for assistance in navigating the family justice system; and
• a better response to children and youth in the family justice system.
The consultations revealed that both service users and workers had differing experiences at various family justice entry points, especially in various provincial regions. These involved linguistic, cultural, gender and economic components, and demonstrated that there was a lack of services and a lack of awareness of available services beyond entry point level.
To quote from the LCO Report:
“In short, the LCO public consultations indicate that prevention and early intervention, through the development and better management of entry point services, can help resolve family challenges and problems in a more effective way and prevent solvable problems from becoming unsolvable. Consultation participants repeatedly said that “they wished they had known this and that earlier” and “they wished they had been directed to the right service earlier”.
Even though the Consultation Paper is now a year old, the unfortunately reality is that the Ontario family law system as a whole has not improved very much in the time since. Certainly, there have been some improvements: some regions in Ontario have implemented sliding-scale family services, or have employed technology to reduce the cost of such services. These measures have incrementally increased the accessibility of the services to users.
Also, as I mentioned in another prior post New Process Mandatory for Divorcing Spouses in Ontario, http://bit.ly/q7VuCt Ontario has introduced a pilot project in some municipalities that requires parties in contested family matters to attend a Family Information Session, to obtain information about the effects of separation and divorce, options relating to dispute resolution, legal issues, court process and the various avenues for support that are available in the community. Whether or not this will benefit the parties to a family dispute still remains to be seen.
However, for the most part, change to the system has come slowly: family-related government services are still not as widely promoted as they could be. More importantly, the basic perception amongst the parties to even the most routine family dispute is that courts are backlogged, procedure is labyrinthine, and that the litigation process is prohibitively costly.
Hopefully this will change sooner than later.
For a copy of the Law Reform Commission of Ontario Consultation Paper, reference: http://bit.ly/pdedDv
For more information on the Ontario Mandatory Information Program (Family Information Sessions), reference: http://bit.ly/omyz4l
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Sep 27
New Family / Criminal Court in Ontario — Still in Its Early Days
In a ground-breaking move for the Canadian justice system, effective June 10, 2011 an Ontario pilot project has merged the hearing of Family Court cases and criminal domestic cases. The Integrated Domestic Violence (IDV) Court meshes the functions of the criminal court at Old City Hall in downtown Toronto with the Family Court located at 311 Jarvis.
The concept is that the hybrid court will be more efficient, in that it hears both family and criminal matters involving the same parties and stemming from the same family relationships. Although the two types of cases are treated distinctly in terms of procedure, in the IDV Court both kinds of cases are heard by the same judge, in a single courtroom. The philosophy behind this innovative structure is that it will result in fewer court attendances, an avoidance of contradictory court orders, and overall a more efficient procedure.
The IDV Court hears only those family cases that involve domestic violence and give rise to issues relating to custody, access, child support, spousal support, and the granting of restraining orders. It does not hear issues relating to divorce, division family property, or child protection. The criminal matters under its potential ambit are restricted to those that would otherwise have fallen under the Old City Hall courthouse’s jurisdiction. The IDV Court also has a dedicated Crown counsel, staff dedicated to victim and witness protection services, and its own Community Resource Worker, who is responsible for directing parties to various available services such as anger management and addiction programs.
So far, the IDV Court has been slow to take off: since its official launch in the summer, scheduled hearing dates have been few and far between. This may be because the threshold for a particular party’s/litigants’ eligibility to have their matter heard in the court is quite strict, and includes geographical limitations which will rule out the large majority of those litigants who would otherwise be interested. Also, both parties to a dispute must consent to having their matter heard in IDV Court. Finally, the slow start may also be a result of lawyers and litigants being reluctant to avail themselves of this new and novel form of hybrid judicial body.
Still, it is hoped that (if successful), the IDV Court will be the model for similar courts across Ontario and perhaps across the country.
For more information, see the Ontario Courts’ webpage at: http://www.ontariocourts.on.ca/ocj/en/idvc/
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Who Gets to Keep Fluffy?
The details surrounding separation and divorce are always difficult: there must be decisions made on who gets the custody of any children, how any treasured family mementos must be divided, and how everyday items should be split evenly and fairly between the separating partners.
In addition to these more routine issues, the question of who gets to keep the dogs, cats and other family pets can also arise and – depending on the bond between owner and pet – can be as emotional and difficult as a child custody dispute.
So how does the law view pet custody? And how do courts deal with disputes about it?
Traditionally, from an Ontario family law perspective pets are simply viewed as possessions. As such, they are divided by the court in the usual course, after a determination of all the factors relevant to the equal sharing of assets between the parties. And – as with the task of splitting any kind of joint property – this means that the dispute can quickly become contentious. One of the earlier Ontario decisions to illustrate this was from 1983: In Torok v. Torok, the court described the case in these terms:
“The issue involved essentially revolves around two cats, otherwise known as ‘Bogey’ and ‘J.R.’, and from a short review of the voluminous file, it obviously appears that the spouses herein, not having had any children, are behaving in a most vindictive way each to the other regarding the custody and access of these feline substitutes. Presently, I believe a motion is immediately pending, varying a judge’s order of custody to the wife, the husband moving against the wife for custody of the cats as I understand it.”
Although there is no record of the court making a final decision on cat custody, the reported case involved the wife’s application for an order requiring a witness, who was a psychologist, to answer certain questions relating the husband’s state of mind. Apparently the husband considered the cats to be his “surrogate children”, and the custody dispute, together with the possibility that the cats would not be living with him, had apparently led the husband into a state of emotional upset.
More recently, in Grimalyuk v. Concelos the Ontario court dealt only briefly with the question of custody of the couple’s pets, as a routine matter as part of its consideration of the equalization of property. The court simply said:
“The only property sought by Ms. Grimalyuk is legal ownership of two dogs and one cat that are legally owned by Mr. Concelos but have been living with and cared for by Ms. Grimalyuk since the date of separation. I order that Mr. Concelos transfer legal ownership of these three pets to Ms. Grimalyuk forthwith”
On the other hand, some courts are not quite so amenable to hearing pet custody disputes, concluding that they are a waste of the court’s precious time and resources. In the Ontario Court of Appeal decision in Warnica v. Gering, for example, the Family Court Judge who had presided over the case conference had declined make an order for shared joint custody of a pet dog named “Tuxedo”. Officially, the reason was that under the Family Law Rules he lacked jurisdiction to decide the matter because the parties were found only to have been “dating”, not living together. (The Family Court only has jurisdiction if the claim involving cohabiting spouses.) On appeal, the Ontario Court of Appeal agreed with the Family Court judge, but added:
“In his reasons, the judge alluded to … the Family Rules, which allows the Family Court to dismiss or suspend a case because “the case is a waste of time, a nuisance or an abuse of the court’s process.” While he did not rely on that rule, his reasons make clear that he regarded the case as a waste of the Family Court’s time.
We agree and on the basis of the trial judge’s findings we would dismiss the claim …”
On the other hand, in that same year a more patient and didactic court in Newfoundland took an entirely different approach. In the 2005 decision in Simmonds v. Simmonds, the court considered the custody of a dog, and said:
“The dog caused me more of a problem and I was driven back to ancient sources, as will appear shortly, in analyzing the issue. The phrase “matrimonial assets” is defined in paragraph 18(1)(c) of the Family Law Act as including “… all real and personal property acquired by either or both spouses during the marriage, with the exception of …” None of the exceptions are relevant to this discussion”.
Personal property includes all property other than land, an interest in land or anything attached to it. Black’s Law Dictionary (6th Edition) divides personal property into (1) corporeal personal property, which includes movable and tangible things, such as animals, furniture, merchandise, etc.; and, (2) incorporeal personal property, which consists of such things as rights in personal annuities, stocks, shares, patents, and copyrights. (Underlining mine).
Halsbury’s Laws of England (3rd Edition) says that domestic animals, like other personal and movable chattels, are the subject of absolute property. The owner could maintain trover [an ancient remedy to recover the value of personal chattels wrongfully converted by another to his own use] for them, and retained his property in them if they strayed or were lost. Curiously enough a dog, though a domestic animal, was not the subject of larceny [theft] at common law. This was thought so because of the baseness of a dog’s nature but was more likely because the ancient punishment for felony [a crime of a grave or serious nature]6 was often quite extreme. The misperception of man’s “best friend” was not rectified by statute7 in England until 1916 but the harsh opinion about dogs had disappeared from popular thinking long before the legislature acted8.
The dog in this case is a Labrador retriever that the Applicant bought in 1999 for $50. The dog lived with the parties while they were together and moved to Canning’s Cove with the Applicant after they separated and then to Sunnyside when he moved there to the house that he shares with his new partner now. The Applicant has been responsible for the dog in the interim and has paid the costs of its maintenance and care. I am sure that both parties and their children have become quite attached to the animal but the issue has been put and it must be resolved.
The dog is a matrimonial asset but it is, without being facetious, indivisible. The Applicant has had that dog continuously since separation and may retain it. The Applicant shall pay an amount up to $50, which I am told was the cost of the present dog, for another dog of the same or another breed satisfactory to the Respondent, if she requires it.”
Notwithstanding the fact that courts are sometimes willing to resolve pet custody disputes, it is probably best for separating couples to spare the cost and aggravation by coming to terms on their own, with the help of their lawyers. 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
For the full text of the decisions, see:
Torok v. Torok (1983), 44 O.R. (2d) 118 (S.C.J. (Master))
Grimalyuk v. Concelos, [2007] O.J. No. 214 (S.C.J.) http://bit.ly/oDnsXS
Warnica v. Gering, [2005] O.J. No. 3655 (C.A.) http://bit.ly/rfXJTD
Simmonds v. Simmonds, [2005] N.J. No. 144
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Sep 14
Serving Documents via CyberSpace
The Canadian legal system isn’t exactly known for being “cutting edge” on the technology front. When it comes to service key litigation documents such as Statements of Claim, the Ontario Family Courts – and even Small Claims Courts, where the procedure is relatively relaxed – the traditional, formal methods such as personal service and registered mail still govern. Other less pivotal documents, such as those that are being served by a court clerk to the parties in an existing action, can be served by fax or mail.
But service by e-mail has never taken off in Ontario. At one time, the prospect of allowing court staff to use service via e-mail for certain documents was toyed with, but it was eventually eliminated from the Court Rules by amendments which took effect on July 1, 2006.
Having said that, the Family Law Rules still contain some exceptions: For example, an Order removing a lawyer from a case can be served on the client by e-mail sent to the client’s last known address. Also, certain Notices can be served by e-mail, specifically:
• a notice of filing or refiling a support order with the Director of he Family Responsibility Office (Rule 26(11));
• a notice of transfer of enforcement (Rule 26(14));
• a statement of income sent by an income source to a recipient (Rule 27(7)); and
• a notice to stop garnishment (Rule 29(31)).
Nonetheless, the more traditional approach has been loosened in some unique cases, both in Canada and elsewhere.
In Alberta, a 2009 Order by a Master in the unreported case of Knott v. Sutherland held that the plaintiffs in an Estates action could use substituted service in connection with numerous defendants by – among other things – sending notice of the action to the Facebook profile of one of them.
This same type of approach has been seen previously in Australia, where a couple who defaulted on their mortgage were legally served court documents through Facebook. In that case, the couple were very elusive, did not appear to live at their listed residence, and no longer worked at their last known place of employment. Facebook seemed to be the only place to find them, and in light of the fact that their Facebook profiles listed their names, dates of birth, e-mail addresses and friends lists (which also showed that the couple were Facebook “friends” with each other), the court held that this was sufficient identification. However, it stipulated that the court documents be designated as “private” so that other Facebook visitors to the couples’ sites could not read them.
And several years ago, a U.K. High Court ordered that notice of an injunction be served by way of Twitter. In that case, an unknown Twitter user had been posting to a particular site using the name “Donal Blaney”, which was the same name as a right-wing political blogger (and lawyer) who had his own blog at a site called “Blaney’s Blarney”. The Order was served via Twitter against the anonymous user, demanding that the user reveal his or her identity, and cease impersonating and breaching the copyright of Donal Blaney. It also contained a link to the original court Order. This kind of document service has now become known in U.K. legal circles as the “Blaney’s Blarney Order”.
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
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