Bruni v. Bruni -- hatred has no legal remedy

A few years back I heard a commentary about criminal court and family court.  The saying went something like this: "criminal court is filled with bad people trying to look good, while family court is filled with good people looking bad."

The parties in Bruni v. Bruni behaved incredibly badly.   The wife alienated the children from the husband (actually seeking to have them adopted by her new boy friend 4 months after separation). The husband failed to report income and to pay adequate child support.  The husband made a frivolous claim to set aside a separation agreement.


Justice Quinn's decision was scathing of the parties.  The decision garnered national attention.

Aside from the delight of schadenfreude, can any insight to our family law system be gained from Quinn, J's critique?

Our court system is is obviously a flawed process for addressing people's emotional difficulties.  In Bruni, the parties and their children were in need of counselling but the court was unable to provide it.  Their anger towards each other came to nothing other than wasted resources and the ridicule of a jurist.

Custody Disputes and the UN Convention on the Rights of the Child -- A Child's Right to be Heard

Canada ratified the United Nations Convention on the Rights of the Child in 1991.  Recently, a lot of attention has been placed on the Convention's concept of "the voice of the child" and the right of a child to be heard in cases like custody disputes.

Article 12 of the Convention is of particular interest:

1. [countries].... shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. 

A lot of lawyers have taken the Convention to be consistent with the Children's Law Reform Act ("CLRA").  Section 24 of that Act requires the court, when assessing the best interests of a child in a custody dispute, to consider all the child's needs and circumstances, including "the child’s views and preferences, if they can reasonably be ascertained".

More recently, in the case of Bhajan v. Bhajan, the Court of Appeal has considered the issue of whether a court can give meaning to the right of the child to be heard by requiring the appointment of the Office of the Children's Lawyer ("OCL"), even when the OCL declines to act.  In that case, the Court of Appeal held that judge's should respect the OCL's legislative framework, which permits the OCL to decline to act.

In the recent case of G. (B.J.) v. G. (D.L.), Justice Martinson of the Yukon Territory Supreme Court considered whether judges interviewing children was an appropriate way of having a child's views heard.  Justice Martinson noted:

"More than just lip service must be paid to children's legal rights to be heard. Because of the importance of children's participation to the quality of the decision and to their short and long term best interests, the participation must be meaningful; children should:

1. be informed, at the beginning of the process, of their legal rights to be heard;

2. be given the opportunity to fully participate early and throughout the process, including being involved in judicial family case conferences, settlement conferences, and court hearings or trials;

3. have a say in the manner in which they participate so that they do so in a way that works effectively for them;

4. have their views considered in a substantive way; and

5. be informed of both the result reached and the way in which their views have been taken into account."

Will Ontario courts follow suit?

The shift towards allowing children greater participation in disputes impacting on them, such as custody disputes, has greatly evolved over the past decade.  The trend is towards making the child's right to be heard more meaningful, to the point where judges are considering the appropriateness of interviewing children -- a rarity in the past.

Certainly, if judges are to respect the OCL's power to decline involvement in a case (as directed by the Court of Appeal), conducting a judicial interview of a child may be the most appropriate method of hearing a child's views.

Expert's Opinions: the need for more than just a "bottom line"

The case of Ramlochan v. Ramlochan provides an interesting discussion about expert's opinions and the need for an expert to go beyond merely providing a conclusion.  The husband's income was at issue in the case -- the amount of his income would determine the amount of support to be paid.  The husband hired an expert, who was to provide an opinion of his income based on her investigation of his financial dealings with two privately held companies that he owned.  The expert filed a report, and without providing any explanation, gave the opinion that his income was $200,000.00 per year.
Corbett, J. refused to accept the expert's opinion.  He held:


The court will not accept an expert’s opinion solely on the basis of the expert’s “authoritative claim”.  That is, it is not sufficient for an expert to show that (a) she is an expert; (b) she has looked into a matter; (c) she has reached a conclusion; and (d) therefore the court should accept her conclusion.  Rather, the expert should explain her assumptions, describe the material evidence and observations upon which the expert relies, describe the analysis and reasoning the expert has used to reach her conclusion, set out her conclusion, including any limitations or qualifications to that conclusion.  The opinion is not just the “bottom-line” conclusion, but the entire intellectual exercise of assumptions, evidence, analysis, reasoning, conclusions and limitations and qualifications of that conclusion.  It is then possible for the court to understand and apply the expert’s opinion on the basis of the facts, as found by the court, and to weigh competing opinions on contested issues.

Corbett, J. concluded that the husband's income for the purpose of support was $557,000.00 per year.

Religious Marriages in Ontario -- Kanafani v. Abdalla

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Kanafani v. Abdalla is a decision of Justice Spies of the Superior Court.  In that case, Spies, J. found a sharia marriage performed in Ontario was not valid because it did not meet the requirements of the Marriage Act.

Ontario courts will recognize a foreign marriage if it is valid under the law of the place where it was performed.  Thus, a ceremony based on sharia law, if valid in the jurisdiction where it was performed, will be recognized by Ontario as valid.

However, an Ontario marriage must meet the requirements of the Marriage Act in order to be valid here.  A ceremony based on sharia law, if performed in Ontario, will not be recognized as valid unless it meets the requirements of the Marriage Act (such as a marriage licence and the registration of the marriage).

In Kanafani, the parties married in Toronto in an Islamic religious ceremony under sharia law.  Both knew that their marriage was purely religious.  They did not apply for a marriage licence from the Province.

Sometime after their sharia law marriage, the couple visited Abu-dhabi, where they went before a local judge and registered their sharia law marriage.  The marriage was recognized in Abu-dhabi as valid.

Justice Spies found that the parties' sharia marriage was not valid in Ontario.

Part I of the Family Law Act defines a "spouse" as:

“spouse” means either of two persons, who, (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of the person relying on this clause to assert any right.

  Section 4 of the Marriage Act provides:

“[n]o marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of bans.”  A “licence” is a marriage licence issued under the Marriage Act

Justice Spies found that the parties registration of the Toronto religious marriage in Abu-dhabi was irrelevant.  She found that Abu-dhabi's recognition of the parties' sharia marriage was irrelevant, as well.

In reviewing the case law authority, Justice Spies found that:

....."marriage” in the definition of spouse ....means.... a marriage under the Marriage Act and ....section 1(1)(a) refers to “persons who are married, which can only refer to persons who are considered married under the laws of Ontario” . 

With respect to section 1(1)(b), .... a “marriage that is void or voidable” refers to a statutory marriage under the Marriage Act which may, in particular circumstances, be void or voidable and that these words have no relevance to a religious ceremony that is not a statutory marriage.... 

Section 1(1)(b) also provides that the parties must have entered into a marriage that is void or voidable in good faith.  ...good faith refers to “an intention to comply with Ontario law” which means an intention to comply with the requirements of the Marriage Act.  The court also confirmed that “good faith” does not refer to the state of mind of a party regarding the legality of the marriage. (at para. 7)

After finding that the parties were not validly married, Justice Spies dismissed the wife's claim for an equalization of net family property.  The wife also lost her right to occupy the "matrimonial home" -- for which only married spouses can claim a right to occupy. 

The List of Cases Used by Family Law Judges

Family law is complex practice area. There are dozens of statutes and thousands of cases.

Nonetheless, Judges who hear family law cases in Southern Ontario have a list of the leading 63 case authorities dealing with:

1. parenting;
2. child support;
3. spousal support;
4. property;
5. marriage contracts;
6. separation agreements and disclosure obligations;
7. summary judgment;
8. interim costs and disbursements;
9. partition and sale;
10. occupation rent;
11. trust doctrines;
12. preservation orders;
13. prejudgment and post judgment interest;
14. costs; and
15. motions before case conferences.

8 Days of Trial for $1,800.00 result -- Bhamra v. Bhamra

Bhamra v. Bhamra is an example of a case that you don't see very often: one that seems to be a complete waste of time and money.

The case dealt with two issues -- property equalization and spousal support -- after a relatively short (6 year) marriage. If both parties had been willing, their dispute could have been resolved during an afternoon settlement meeting. Instead, they fought about many minor valuation and property issues, and a modest spousal support claim against a payor spouse who made no more than $20,000.00 per year.

The parties dispute took up 8 days of trial -- almost two weeks -- resulting in an order that the wife pay the husband an equalization payment of about $3,200.00 and that the husband pay the wife $5,000.00 in spousal support. A net gain to the wife of $1,800.00 (until one considers the costs of paying two lawyers for four years).

It seems obvious that there were "unresolved emotions" stemming from the parties' 2006 separation. At separation, the wife charged the husband with assault, and he was removed from the home. Then, the husband's parents kicked the wife out of the home, too. Four years later they were fighting over minor issues.

There is not a lot of law in this case. Just misery.

Spousal Support Advisory Guidelines

Cassidy v. McNeil is an interesting case from Ontario's Court of Appeal and deals with the Spousal Support Advisory Guidelines ("SSAG"). The case also deals with a trial judge's duty to provide adequate written reasons for his or her decisions.

The trial judge ordered the husband to pay the wife spousal support of $1,200.00 per month for five years.

The lawyers who argued the appeal were not the same as trial counsel. Unfortunately, trial counsel failed to file and mark as exhibits the SSAG calculations used at trial.

The absence of a trial record was compounded by the brevity of the trial judge's written reasons. The trial judge failed to deal with the issue of entitlement in his reasons, and simply noted that the wife had a need for support.

The Court of Appeal therefore used its own analysis of the SSAG and varied the trial judge's decision to lower the spousal support to $950.00 per month, but made the order indefinite (given the ages of the parties and the length of the marriage).

Appellate Court Upholds Highest Spousal Support Order

Ontario's Divisional Court upheld a temporary order requiring a husband to pay a wife spousal support of $110,000.00 per month. The spousal support award was reported in the news as the highest award in Canadian history.

The case is Elgner v. Elgner.

The focus of the appeal court is different from the motions court that made the award. In the appellate case, the focus was on whether there was an automatic right to an appeal in light of the provisions of the Divorce Act. The appellate court found there was no automatic right of appeal and that leave to appeal had to be granted.

The appellate court considered the test for granting leave to appeal an 'interlocutory' order under section 19 of the Courts of Justice Act: whether there was a conflicting decision in Ontario, or where there was good reason to doubt the correctness of the decision and the matter was of public importance.

The appellate court did not agree that there was a conflicting decision.

As for doubting the correctness of the decision, the appellate court held that temporary spousal support orders should be adjusted at trial rather than re-argued on appeal.

Re-Marriage and Reducing Existing Spousal Support Obligations

Slater v. Slater is a decision of Czutrin, J. of the Ontario Superior Court and highlights some of the issues that arise when a former spouse who is receiving spousal support re-marries.

In the Slater case, the husband and wife entered into a Separation Agreement after 20 years of marriage. The husband agreed to pay the wife "non-variable" spousal support of $10,000.00 per month. The parties agreed that spousal support could only be changed in the event of a "catastrophic" change in circumstances.

The wife remarried. The former husband then applied to terminate or reduce the spousal support.

In the normal circumstance, the extent to which the new husband contributed towards the wife's expenses would impact on her need for support. The first husband named the second husband as a responding party in his application. He claimed that the second husband had a duty to contribute towards the existing support.

The former husband asked for an order that the new husband, at a minimum, share the obligation to support the wife. He asked that the new husband "indemnify" him for all or part of the spousal support because the new husband had an obligation to support the wife as an incident of marriage.

The court held that the parties' Separation Agreement governed. The Separation Agreement required a "catastrophic change". As the wife had been cohabiting when the Agreement was entered into and it was reasonably foreseeable that she might re-marry. Therefore, her re-marriage was not an event that triggered a variation.

The court did not address whether re-marriage in itself relieved the payor in whole or part of his obligation to pay spousal support. Czutrin J. expressed concern about making new spouses parties to applications to terminate spousal support. To do so would certainly dampen if not jeopardize intact relationships, and increase litigation.

We'll see if the husband appeals.

Agressive litigation and the pitfalls of financial disclosure -- Stuyt v. Stuyt

Family law cases have as their hallmark complete financial disclosure. If litigants have enough information, they can settle their disputes.

That principle usually operates in sync with some other fundamental principles, including:

• Proceedings should be brought on notice;
• Decisions should be based on evidence.
  

Simple enough? Apparently not.

In the case of Stuyt v. Stuyt, a wife obtained a court order striking the husband's Answer (his defense) because she alleged that he defaulted in providing financial disclosure. The problem was that she obtained the order without notice to the husband, without disclosing all the facts to the motions judge, and without filing any evidence (such as a sworn affidavit) to support the relief. Clearly, the motions judge should not have made the order, but it took two years of wasted resources and wasted time (including an undefended trial) before the Court of Appeal corrected the error and sent everything back to the trial judge.

To what extent excessive and aggressive lawyering contributed to the two year court odyssey is unknown. At the end of the two years, the parties' were no closer to a resolution.

Family law cases, like other disputes, are often shaped because of one party's missteps and mistakes. One wonders to what extent the wife will wish to continue with her claims, or to what extent she will discount them in order to bring the Stuyt matter to a conclusion.

David and Goliath: How a Young Lawyer Took on Wells Fargo and Saved a Family Home from Foreclosure

28 year old California lawyer Wajahat Ali, fought an epic battle for a home loan modification against Wells Fargo and won...Eventually.

His story is a well-written and terrifying look into the financial crisis, the state of America's megabanks, and how homeowners in need seemingly stand no chance against the towering indifference, incompetence and confusion of those megabanks.

It is also a piece about how the passion and tenacity of a young lawyer (or any lawyer) can make all the difference in the lives of his or her clients -- to empower the powerless and not the powerful.

For lawyers, Ali's epic struggle to save his client's home is an inspiration.

Lawyers Feed the Hungry

The legal profession has a long tradition of charity and volunteerism.

I am happy to be a supporter of the Law Society of Upper Canada's Lawyers Feed the Hungry program. I have also volunteered my time at the program; preparing and serving meals, and cleaning up.

The Law Society has operated the program for the past 11 years. Four sit-down meals and three take-away meals are served each week, for a total of 1,600 meals weekly. The program operates out of the Law Society's Cafeteria at Osgoode Hall in at 130 Queen Street West, Toronto.

It is humbling to serve people in need, and I am honoured to be a supporter of this good work. The program costs about $6,000.00 each week, and although most of the support comes from lawyers and the Law Society, donations are welcome from all (plus, you'll get a tax receipt).