Is There “Buyer’s Remorse” in Family Law?

Is There “Buyer’s Remorse” in Family Law?

We have all heard of – and most of us have experienced – that feeling known as “buyer’s remorse”. It’s that uneasy sense that a person feels, usually the day after making a long-considered and rationally-dubious purchase of some non-necessary item, that they paid too much. Or sometimes, that they should not have made the purchase at all. For example, it may involve the purchase of high-end racing bike – a splurge premised on an optimistic plan for future weekly rides in order to get fit. But after bringing the bike home, its steep price-tag may start to look exorbitant in the light of the next day or the next week, after the heady rush of excitement fades a little. (And often, these same high-priced items get relegated to the basement storage after a few months, where they sit as a painful reminder). Does this “buyer’s remorse” feeling happen in Family Law? Sure. It is common for the parties to a settlement negotiation to come away feeling vaguely dissatisfied, or outright taken advantage of, in the days or weeks following a settlement. . This is because an effective negotiation always involves some element of compromise and give-and-take: I’ve heard it said that a good settlement is not one where both sides are happy (which is likely impossible anyway), but one in which both sides are slightly unhappy. The act of settling a dispute feels very much like committing to buy something, at the price being offered. The problem is that the personal “value” of the settlement – in terms of what is being given and what is being gained, has a large subjective component to it. Where the “balance” falls is always a personal determination. So how to avoid “buyer’s remorse”? Make sure:

• You understand your rights. Hire a good lawyer to explain them to you.

• Your position is reasonable. Identify for yourself, privately with your lawyer in advance, those areas and topics that are non-negotiable and those in which you see some “give”.

• You are well-prepared. Improvident or uneasy settlements are most likely to occur when an issue or topic for negotiation takes you by surprise.

Bottom line: It is natural to have second thoughts. But these can be minimized by getting good information in advance of the settlement process, and by getting good legal advice that will help define your rights in the particular circumstances. By extension, this will influence whether you have reasonable expectations and a good feeling about the eventual outcome. At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at http://www.RussellAlexander.com.

Husband’s Bad Behaviour Prompts Order to Pay $1 Million in Wife’s Legal Costs

Husband’s Bad Behaviour Prompts Order to Pay $1 Million in Wife’s Legal Costs

Recently, I wrote about an Ontario Court of Appeal called Stevens v. Stevens that dealt with a number of issues, among them the question of whether the trial judge’s opinion of the husband had been tainted by the fact that the husband had had an extra-marital affair. Reference  “Did Fact of Extra-Marital Affair Taint Trial Judge Against Husband?”

One of the other interesting points that were addressed in the appeal was the question of whether the husband – who lost his appeal bid – should be saddled with paying almost $1 million in legal costs incurred by the wife. (And to his credit, the husband conceded that the wife was entitled to her costs; he just took issue with their amount.)

The case had involved numerous issues to be determined, including the validity of the marriage contract, the status of the matrimonial home and a cottage, and what amount of spousal support and arrears the husband owed. The wife had been successful on every one of them.

In deciding the costs question, the court began by pointing out that under the Family Law Rules, there is a presumption that as the successful party the wife was entitled to her costs in the case. There is also a rule that states that if a party has acted in bad faith, the court must decide costs on a “full recovery basis” and order him or her to pay those costs immediately.

The court reviewed the husband’s conduct throughout the course of the litigation, and decided he had acted unreasonably. Among other things the husband:

• Caused a one-year delay in having the matter brought to trial, despite repeated requests from the wife to set a trial date. (And the court noted this delay caused significant financial repercussions to the wife, since she had to draw on the capital in order to meet her living expenses and those of her children).

• Refused to admit to 30 specific facts up-front. In reality, these facts were uncontested and the wife was needlessly forced to incur the cost and time to marshal evidence to prove those facts at trial.

• Asked the court to enforce a marriage contract signed by the wife that he knew contained an important legal and factual mistake.

• Engaged in bad faith conduct which included not making full, complete and timely disclosure of certain information; other information validly requested by the wife was never provided at all.

• Was untruthful about what his income was.

• Came to court to ask to be relieved of child support payments that he was legally required to make.

• Wrote to the trial judge directly, to ask that his child support payments be reduced because he claimed he had no income. (And not only did the husband not copy the wife on this very ill-advised letter – which was returned by the court – but he was also represented by a lawyer at the time, making his direct request to the judge doubly inappropriate).

• Improperly used funds from a company in which he had shares to pay some of his legal fees.

In the course of categorizing the husband’s condemnable behaviour, the court wrote simply:

“It is hard to prioritize the bad conduct on the part of Joel during this whole process as there are so many egregious incidents of Joel taking advantage of Pamela.”

After applying the various established factors that must be considered in awarding costs (including the importance and complexity of the issues, and the unreasonableness of each spouse’s behavior in the case), and after considering additional factors including any possible financial hardship that might be endured by the husband, the court concluded that $950,000 in legal costs incurred by the wife should be paid by the him, plus pre-judgment interest of another $55,000. (This trial court ruling was later upheld on appeal).

For the full text of the decisions, see:

Stevens v. Stevens, 2013 ONCA 267 (CanLII) http://canlii.ca/t/fx7g0

Stevens v. Stevens, 2012 ONSC 6881 (CanLII) http://canlii.ca/t/fv2c9

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Should Courts Be Allowed to Cut-and-Paste Their Reasons?

Should Courts Be Allowed to Cut-and-Paste Their Reasons?

Just this past week, the Supreme Court of Canada considered an interesting question: In writing their judgments after a trial or hearing, are judges allowed to do large-scale cutting-and-pasting of other people’s written argument?
The answer is – apparently – “yes”.

The factual background of the case involved a negligence action in which a baby suffered brain damage during birth, and developed cerebral palsy subsequently. The mother had delivered a first child C-section; the second baby was delivered via an induced vaginal birth. This decision put her into a high-risk category, and the legal issue was whether she had given informed consent.

At trial, three doctors were found liable in negligence, and the mother was awarded $4 million in damages.

However in written award to that effect, the trial judge’s reasons consisted largely of reproduced portions of the submissions of the mother’s lawyer. Of the 368 paragraphs of the written decision, 321 were cut-and-pasted, and only 47 were in the judge’s own words, including the final conclusions.

On appeal, the Court set aside the trial judge’s reasons because of the extensive copying, and ordered a new trial.  A later appeal went all the way to the Supreme Court of Canada.

The Supreme Court of Canada pointed out that it is not prohibited for judges to include the work of others in their reasons. Indeed, it concluded that judicial copying was a “longstanding and accepted practice”, and was becoming easier to do with the introduction of the computer and the use of electronic submissions by lawyers.

The Court pointed out that it was not the copying per se that makes the process of judgment-writing unfair: it is the impression that the judge failed to independently and comprehensively assess the issues and arguments raised. The court wrote:

In summary, courts in Canada and elsewhere have held that copying in reasons for judgment is not, in itself, grounds for setting the judge’s decision aside. However, if the incorporation of the material of others would lead a reasonable person apprised of all the relevant facts to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law, the presumption of judicial integrity is rebutted and the decision may be set aside.

After looking at all the elements of the negligence case before it, the Supreme Court of Canada ultimately held that despite the trial judge’s very extensive copying, the decision should not be set aside. There was nothing to suggest that the judge was not impartial or that judicial integrity was not maintained. The award was overturned for other unrelated reasons, however).

How would you feel if the judge’s decision in your Family Law was mainly a cut-and-paste job?

Should judges be prevented from doing this?

For the full text of the decision, see:

Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (CanLII)  http://canlii.ca/t/fxkwj

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Did Wife’s Unforeseen Post-Separation Illnesses Override a Separation Agreement?

Did Wife’s Unforeseen Post-Separation Illnesses Override a Separation Agreement?

In 2001, the parties separated after 15 years’ marriage. At that time, they entered into a separation agreement under which they agreed not to claim spousal support from each other. Almost 10 years after their separation, in 2010, the husband applied for what he likely envisioned would be an uncontested divorce.

However, there was a bit of a wrinkle: since separation the wife had experienced numerous health-related challenges, including a heart attack, a motor vehicle accident, anxiety and diabetes. She was currently on Ontario Works and had recently applied for a disability pension; the motor vehicle accident left her unable to work.

In answer to the husband’s divorce application, the wife continued to disclaim any right to monetary spousal support payments. Instead, she simply asked that the husband maintain extended health coverage (available to him through his work) for her benefit, which would effectively amount to a different kind of “support” for her.

The husband wanted the divorce but without this added imposition – he was engaged to someone else and wanted to be able to cover his new wife if necessary. Covering his soon-to-be-ex-wife for her medical coverage would prevent him from doing so. He pointed to the 2001 separation agreement in which they both agreed to forego spousal support; although that agreement expressly acknowledged there may be changes to their financial circumstances for a variety of reasons (including health-related ones), it did not envision either of them claiming either traditional monetary spousal support or the extended health coverage the wife was suggesting.

The question for the judge, therefore, was whether the separation agreement should be “opened up” in these circumstances, in light of the wife’s many post-separation health concerns.

The judge began by confirming that, in law, a court can stray from the terms of a pre-existing separation agreement reached by the parties, but it required a two-step process: 1) analyzing the agreement; and 2) considering the parties’ current circumstances.

In this case, the agreement was valid at the time it was entered into. It had been drafted by the wife’s lawyer (the husband was unrepresented at the time), and they had both reviewed the agreement line-by-line in the lawyer’s office. The wife understood the agreement’s terms and what she was giving up.

Nonetheless, in looking at the parties’ current circumstances, it was clear that at the time of the agreement neither of them the wife would suffer a heart attack, anxiety, a motor vehicle accident, and be diagnosed with diabetes – all within a short time-period. The judge was therefore prepared to open up the agreement, but only to the extent necessary to address the wife’s predicament. Moreover, the judge was still mindful that there had to be some finality to allow the parties to move on.
To this end, the divorce was ordered to be delayed for one year, and in the meantime the husband was to maintain for the wife’s benefit the medical, dental and drug coverage that was available through his employment. The benefits to the wife would cease when the divorce was issued.

Wilbur v. Laevens, 2012 ONSC 5858 (CanLII)  http://canlii.ca/t/ft94q

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

Lawyer-Less Father Misses Opportunities at Trial; Appeal Denied

 

Lawyer-Less Father Misses Opportunities at Trial;  Appeal Denied 

Recently we highlighted an Ontario decision  that illustrated how a litigant’s outcome in court can potentially be hampered by his or her decision not to have competent legal representation.  

Although there are many, many examples of this, another recent case, this time from the Ontario Court of Appeal, shows that unrepresented litigants – who are generally unfamiliar with legal procedure – can unwittingly deprive themselves of the opportunity to assert their rights or put forward helpful evidence at the appropriate procedural juncture.

As usual, the parties were former spouses, who had decided to separate and divorce.   They went to court to resolve the legal issues arising from that decision, chief among them the question of who was to get custody of the three-year-old child they had together.  

At trial, the mother was granted custody; the father, who was not represented by a lawyer, was given access that was to be supervised by the Salvation Army.  Moreover, the trial judge also imposed a five-year restraining order on him, blocking him from contacting or going near the mother, the child, and members of the mother’s extended family.

The trial judge had also refused to adjourn the proceedings to allow the father to properly prepare, produce documents, and obtain witnesses.   He was also not permitted to bring forth his treating psychiatrist to give evidence at trial.

The father – who was now represented by a lawyer – appealedall of these lower-court rulings to the Ontario Court of Appeal.  

His appeal was dismissed.  

The court found that the trial judge had carefully considered the parties’ respective submissions.   The father had a full 15 months prior to the trial date in order to prepare his materials and submissions.   He knew of the exact trial date two months before it took place.   Moreover, the matter concerned the best interests of the child, and it was important to keep the proceedings moving along.  The trial judge’s decision refusing to allow the father an adjournment in the circumstances was not in error.

With respect the treating psychiatrist’s evidence:  the father’s request to produce his doctor was made only after the trial had already begun, and he had not complied with the procedural requirements of the Family Law Rules that govern the calling of expert witnesses (including giving the mother a copy of the expert’s curriculum vitae, or a list of his or her qualifications).   Furthermore, the Appeal Court found that – even if the trial judge felt it appropriate to give the father some leeway in this regard – the doctor’s evidence would likely have made no difference in the orders that were ultimately imposed at trial.

As for the substantive ruling that gave the father supervised access only, with custody to the mother – the Court of Appeal found that the evidence in support of this outcome was “overwhelming” and that the trial judge’s decision on supervised access “was a wise one”.   The child had been in the mother’s custody since birth, had strong ties to her, and had virtually no emotional ties to the father at all.  Previous attempts at supervised access by the father had failed completely.  And while the court conceded that this might change in the future, it was the appropriate arrangement for the time being.  

Finally, the Appeal Court saw no error in the 5-year restraining order.  There was clear and convincing evidence that the father had been violent to the mother and her family in the past.  

The father’s appeal was ordered dismissed, with fixed costs of $10,000 being imposed on him.

For the full text of the decision, see:

French v. Riley-French, 2012 ONCA 702 (CanLII)  http://canlii.ca/t/ft9lq

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com.

 

 

Tying Up Land During Family Law Disputes

Tying Up Land During Family Law Disputes

In situations of divorce, the spouses strive after separation to unwind their financial (and emotional) affairs as quickly as possible. The process usually takes a while, and there are certain legal procedures and processes that facilitate the orderly resolution of issues as the matter progresses to trial. Some of these involve mechanisms to give the public notice of the imminent litigation, or to effect a temporary alteration or “suspension” of the rights of spouses or other individuals, pending the outcome.

A certificate of pending litigation (or lis pendens in Latin) is one of these mechanisms.

What is it? A certificate of pending litigation (or “CPL”) serves as a notice to the public that the interests pertaining to a certain piece of land (usually the matrimonial home) are currently subject to a court dispute. It is a temporary measure, is registered against the land, and is discharged once the litigation is resolved.

How is it obtained? Essentially, the party who wishes to have the benefit of a certificate of pending litigation (“CPL”) must show that he or she has a “reasonable claim to an interest in the land,” a fact that must be established on a balance of probabilities.

The party seeking the CPL must also satisfy certain legislated requirements (which are set out in the Courts of Justice Act and the Ontario Rules of Civil Procedure), as follows:

• to be effective, the CPL must be issued by a registrar of the court, pursuant to a court order;

• once the CPL has been obtained, it must be served on all parties against whom an interest in land is claimed in the proceeding; and

• it must be properly registered on title of the Ontario land in question, either under in Land Titles or Registry (as the case may be).

In addition to these requirements, the Courts of Justice Act also safeguards against the abuse of CPLs, by providing that any party who registers one without having the requisite reasonable legal claim to back it up will be liable for any damages that result. This is accomplished through the use of an “undertaking as to damages”: the person requesting the CPL must abide by any court-ordered damage award in the event that the registration of the CPL against the property unjustly caused damages to the party who owns the land, or to certain other persons.

Incidentally, there is no requirement that the person applying for the CPL has to give notice in advance of doing so (i.e. he or she may bring a “motion without notice” to the affected parties).
What does it do? Technically speaking, a registered certificate of pending litigation does not prevent the owner from dealing with or selling the land; however, most buyers will avoid transactions that are fettered in this manner.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com.

It is Thanksgiving weekend this weekend in Canada.

 

It is Thanksgiving weekend this weekend in Canada.

Russell will be taking in a CFL Argos football game and hosting family.

What are your plans for this Thanksgiving weekend?

Please read our responses or submit your own comments.
Become a Fan and join the discussion here: http://www.facebook.com/RussellAlexanderFamilyLawyers

 

 

So you want to be your own boss? Consider the Opening Your Law Practice 2012 Series

 

So you want to be your own boss? Consider the Opening Your Law Practice 2012 Series

Start by defining your practice with a sound operational and business plan. The Law Society of Upper Canada has online program materials and designed two interactive question and answer webcast sessions with experienced practitioners.

I am looking forward to presenting at these webcasts with Kerry Boniface, Brian Fingold, Anthony Gonsalves, Joel Kadish,  and Daniel Pinnington.

The program is on Friday, September 28, 2012 (12:00 PM – 1:30 PM)

You can view this webcast-only program from your home or office computer.

To learn more or register visit http://ecom.lsuc.on.ca/cpd/product.jsp?id=FINCLE12-0091000

Friday’s Profile: Our Newest Associate Aleksandra

Friday’s Profile: Our Newest Associate Aleksandra

 

Aleksandra graduated from the University of Ottawa in 2008 with highest distinction, receiving a Bachelor of Social Sciences, Honours, with a specialization in Criminology and minor in Psychology. In 2011, she received her Juris Doctor degree from the University of Ottawa, before beginning her Articles with the Department of Justice, Canada. After working with the Department of Justice for nearly a year, she was called to the Bar of Ontario in 2012 and joined Russell Alexander Family Lawyers.

During law school, Aleksandra completed an internship working in family law at a small Ottawa law firm. She also volunteered with Pro Bono Students Canada, where she worked under the supervision of a sole practitioner in family law, and Family Services Ottawa. Aleksandra is fluent in Polish, and enjoys spending her spare time with her family at the cottage, playing tennis, baking and jogging.

We are extremly excited that Aleksandra has joined our team at Russell Alexander, Family Lawyers.

Which Wineries Would You Recommend in Prince Edward County?

I am planning on stopping into some wineries in Prince Edward County this week.

Which ones would you recommend?

Read our responses or submit your own comments.

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