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, which was okay as they could get new partners and met new people at chatempanada.com.

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.

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.

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I am reading a book called “The Black Swan” by Nassim Nicholas Taleb.  The book is about how we tend to rely on a simplified view of of the past.  We focus on facts that conform with our values.  To do so we create narratives/stories which in turn support a distorted view of our present and future. Rather than enhancing our understanding, they leave us vulnerable to facts that are not consistent with our values and therefore not considered. By our nature, the manner in which humans perceive reality tends to support our existing biases, thereby placing us at greater risk  for the unconsidered and unknown.

We interpret empirical evidence in a selective manner, focusing on facts that support our existing worldview while ignoring other facts  that do not.   We ignore facts that don’t support our hypothesis.

Taleb argues that we suffer from a delusion of perception and then fall victim to “black swans” — unexpected and consequential random events.  When such events take place, we explain them away so that they conform to our existing  model of reality.  He argues that  not only do we fail to predict such events, when they occur we explain them away by focusing on facts that support us while ignoring evidence that does not.  Taleb argues that we can only attempt to minimize our vulnerability to unforeseen and consequential events (i.e., market crashes) by enhancing our “robustness” and ability to withstand them..

In one of the chapters, Taleb discusses “the madman’s narrative”.  He describes it as the propensity of people suffering from paranoid delusions to take the most innocuous and minor events and construct them in support of a theory of conspiracy.  Ten people suffering from paranoid delusions will all come to the same conclusion of a conspiracy through constructing completely unrelated facts.

From a family law perspective, one continually encounters the madman’s narrative in practice.  The narrative of past events is constructed at a time of emotional distress for the client and the other party.  People in confused and vulnerable states often provide a narrative that focuses on  understanding what motivates the other party.  They want to “make sense” of what has happened.  In doing so, they impose a narrative on the set of facts that is consistent with his or her own theory of events.

will feed the false or biased narrative — believing in good conscience that their job is to advocate the client’s narrative, rather than advising the client more broadly, and focusing on the client’s interests.  Other lawyers will simply ignore the client’s view of his circumstances and impose their own biases, and using their experience as a justification for doing so.

Lawyers, too, come to the practice of family law with biases and often simple minded constructs through which to view the reality of their client’s cases.  Experience must be countered with a skepticism and an imagination  that not every case is the same. Experienced lawyers may be bring over 20 years of “experience” to their family law clients, but that may not be of much value if the client’s experience is ignored and replaced with an equally unrealistic model  of the lawyer’s making.

I advocate on behalf of a client while retaining a healthy skepticism for that client’s benefit.  That same lawyer should appreciate the limits of his or her own knowledge, while listening and observing with an open mind.   The same skepticism should be applied to any belief that the lawyer’s are necessarily right for the client.

At the end of the day, it is the client’s case and the client’s choice on how to prosecute it.  He or she is entitled to a lawyer’s experience, knowledge, skepticism and imagination.

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.

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.

The case of Boucher v. Boucher raises interesting issues about “without prejudice” temporary support orders, the Spousal Support Advisory Guidelines (SSAG) and the circumstances under which a court will change a temporary spousal support order.

Temporary spousal support orders are made to maintain litigants pending a trial. Orders such as these can be changed usually require a ‘material change in circumstances’. But what about a consent order made early in the litigation and clearly made “without prejudice” to either parties’ rights?

In Boucher, the parties marriage was 18 years. After separation, the parties entered into a temporary without prejudice support order of $2,000.00 per month in July 2009. Eight months later the wife returned to court requesting an increase. The wife had not anticipated large legal fees related to pending criminal charges.

At the March 2o10, an application of the SSAG placed the husband’s monthly support obligation (based on a conservative view of his income) from between $10,000.00 and $12,000.00 per month. However, Justice Hennessy resisted applying the SSAG to changing the temporary order because the wife knew the husband’s income when she entered into the July 2009 consent. Justice Hennessy made a moderate change to the temporary order by increasing the spousal support to $4,000.00 per month.

One can see the balancing of interests here — the desire to make a less intrusive order meant to maintain the parties to trial, while applying the appropriate level of support (where clearly, the wife had made an improvident agreement in July 2009). The “without prejudice” element of the July 2009 order was clearly taken by Justice Hennessy to apply to the trial proceedings and not further temporary motions. At the end of the day, and given the high likelihood that a trial judge may make a retroactive spousal support order adjusted for the appropriate amount under the SSAG, the husband’s victory at the motion may be short lived.

Had the motion to change been about child support rather than spousal support the outcome would have been much different. A motions court judge would have been required to order order full guideline child support based on the husband’s income.