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.

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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.

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Generally speaking a successful party is entitled to his or her costs.  Usually, those costs will be awarded on a partial indemnity basis.  A party can obtain higher costs on a “substantial indemnity” basis by making an offer to settle and doing as well or better than the offer.  A successful party can be awarded even higher costs, on a full indemnity basis, if it can be shown that the other party has acted in bad faith.  Bad faith has been defined to mean acting with an ulterior motive intended to harm the other party.

Regrettably, it is not uncommon in family law cases to see people acting with ulterior motives to harm the other party — usually a spouse!

An award of costs on a “substantial indemnity” is usually made when a party makes an offer to settle and the outcome of the hearing is as good or better than the party’s offer.  However, in the recent case of Murphy v. Murphy, Justice Spies of the Ontario Superior Court found that an offer to settle must also contain an “element of compromise” before the court will award a higher level of costs.

In the Murphy case, one party offered to settle on the basis that the moving party would withdraw his motion and there would be no costs.  However, in order to do so, the offer required the moving party to accept the offer within 27 hours.  The offer provided that even if the motion was withdrawn after that time, the responding party would be entitled to her costs as “fixed by the court” (whatever that meant).

Ultimately the husband withdrew his motion, but only after the start of argument.

Justice Spies denied the successful party a higher costs award because there was no element of compromise in that party’s offer.  By giving the moving party only 27 hours to consider the offer, and then taking the position that costs would be payable thereafter, the offer contained no real element of compromise according to Justice Spies.

What was the element of compromise worth?  The wife claimed that her “full  indemnity costs” were $79,000.00.  Justice Spies awarded the wife $27,000.00.

This case is interesting because the Family Law Rules make no mention of the need for an element of compromise in offers to settle.  The court relied on case law authority from  a 2000 decision of Supreme Court of Canada in finding that such an element was required.

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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.

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A Muslim bride of Pakistan origin signing the ...Image via Wikipedia

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 Abudhabi, where they went before a local judge and registered their sharia law marriage.  The marriage was recognized in Abudhabi 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 Abudhabi was irrelevant.  She found that Abudhabi’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.

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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.
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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.

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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.

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