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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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).

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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.

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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.

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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.

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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.

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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).

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The case of Tipping v. McNutt is a cautionary note to parties who lengthen family law hearings by raising irrelevant concerns. The case is a November 2009 decision of Justice Zisman of the Ontario Court of Justice. Justice Zissman issued the supplementary decision dealing with costs after the release of Her September 2009 trial decision.

The case was a claim for custody by the maternal grandparents. They lost. The mother (their daughter) asked for her “full indemnity” costs of $34,000.00. The grandparents argued that they should be spared a costs order against them because they had exhausted their life savings pursuing the litigation.

Justice Zisman faulted the grandparents for “relentlessly” attacking the mother over a multitude of unproven or irrelevant concerns. The trial lasted 18 days!

In these types of cases it is not unusual to see parties engaged in a nasty, the ‘gloves come off” kind of fight. Justice Zisman reminds us that while custody disputes can be brutal, they are not wars of attrition. Parties should be be focused in their trial strategy, or suffer the costs of raising irrelevant matters that lengthen trial proceedings. Justice Zisman writes:

 

The matter was obviously very important to the parties. But the case was not particularly complex or difficult. It was solely as a result of the approach by the grandparents that this trial took 18 days to complete. Many of the concerns presented by the grandparents were unproven or irrelevant to this proceeding or to the relief they sought. Others were trivial. The “concerns” seemed relentless. Taken together, they unnecessarily extended the proceeding and added to the expense of the proceeding. Nothing about the mother’s childhood, educational pursuits, choice of boyfriends, employment history, personal medical history and lifestyle was left untouched. Nothing about Austin’s medical history, educational progress and counselling was left unexplored. Even when the school and medical records revealed no concerns, various teachers and medical professionals were called to present evidence. That is the choice the grandparents made in developing their trial strategy and in pursuing this litigation. Choices that are unreasonable or unnecessary and lengthen the proceeding for other parties should attract consequences. Not to impose consequences on such choices effectively encourages them. After being unsuccessful in this trial, the grandparents can now not assert that they have exhausted their life savings during this litigation and a cost order would further drain them financially, create a financial hardship and prevent them from directing funds for the benefit of Austin. These are the consequences that should have been considered before and during this protracted trial.


Costs awards should reflect “what the court views as a fair and reasonable amount that should be paid by the unsuccessful parties”
. In this case, because the mother failed to make an offer to settle, she failed to get full indemnity costs and instead was awarded $25,000.00. Both parties were represented by counsel, so one wonders to what extent the grandparents were responsible for the bad outcome.

On another interesting note, Justice Zisman cited the Court of Appeal’s decision in Serra as authority for the proposition that costs should be fair and reasonable. If you read below, you will see an entry about Serra from last February. The Serra case is important because it allowed an unequal division of property because of post-separation decline in the values of assets. In the case of Serra, the decline was caused by market forces.

A lot of lawyers thought that the decision would open the “flood gates” for claims for unequal property division (especially in these economic times), yet that hasn’t happened.

After almost a year, I’ve only come across two cases where Serra has been cited and relied on by lower courts. In both cases, Serra was cited on the costs issue alone. There has yet to be a case where Serra has been authority for an unequal property division. So much for flood gates.

 

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