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Our Associate lawyer, Ajit Roopnarine, has completed his Level II of the Collaborative Practice Training organized by the Ontario Collaborative Law Federation (OCLF). This training supplements the Level I training that all lawyers wishing to practice collaboratively must complete. The training focuses on further developing expertise in interest based negotiations, client assessment and suitability, managing client expectations, strengthening communications tools and managing a Collaborative Practice case.

Congratulations Ajit on getting one step closer to becoming a collaborative practice family lawyer.

To learn more about the OCLF, click here

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When a Kid Gets Arrested — Do Criminal Defence Costs Amount to a “Special Or Extraordinary” Expense?

Imagine this scenario:

Let’s say your troubled teenager daughter gets criminally charged with a couple of offence, namely driving under the influence, and possession of narcotics.

Your former spouse, who has custody, ends up paying over $10,000 in legal fees to help your teen defend her charges and pay the penalties.  This includes $9,160 legal fees, plus fines, 3 traffic tickets, $1,250 for a vehicle monitoring device, $198 to reinstate her driver’s license, and $634 for a remedial impaired drivers program.

You are never consulted with how much to pay, although you have no complaints about the quality of the lawyer your former spouse hired, the legal services provided, or how much they cost.  Your spouse describes the objective as being “to minimize the effects this mistake would have” on your teenager’s adult life.

The question is this:  Are the legal fees your former spouse paid to defend your teenager considered to be “special or extraordinary expenses” within the meaning of s. 7 of the Guidelines?  And should you be on-the-hook to pay for your share?

A number of recent Ontario court decisions have addressed this question, and – perhaps surprisingly – the answer is “no.”

The described facts are from a recent case called Vidal v. Dunn, where the mother had claimed from the father for half of the $10,000 in legal fees she had spent to hire the daughter’s lawyer.  The father resisted, stating that he had begged their teen daughter not to drink and drive, and that she now needed to learn from her mistakes.

From a legal standpoint, the mother’s claim was based on s. 7 of the Guidelines, which allows a court to order a parent to pay a proportionate share of a child’s non-routine expenses relating mainly to his or her child care, medical and educational needs.

The court declined the mother’s request.

Ontario courts have routinely found it too big a stretch to accept that the legal fees paid by a parent to defend a child against criminal charges fall within any of those categories. In another case called Children’s Aid Society of London and Middlesex v. B.(C.D.) the child had been charged with several criminal offences, including assault causing bodily harm to his mother, assault with a weapon, and attempted murder.   When the father tried to make a claim for the child’s legal fees from the mother, the court rejected it, stating:

I do not accept the submissions of counsel for [the father] that legal fees incurred for [the child’s] criminal defence are special expenses pursuant to s. 7 of the Child Support Guidelines. Counsel submits that these legal expenses relate to the child’s ability to attend school. He asserts that without a successful criminal defence, he would not have been able to attend school. While that might be true, it is too far remote to the intention of s. 7 in order to qualify as such an expense. 

Likewise, in S.(R.P.) v. S.(K.J.) the child was criminally charged with street racing.  The father asked the court to order the mother to contribute to the payment of the child’s fine, and towards the costs of the legal services that were needed to defend the charges.   The court rejected the claim under s. 7, concluding that these kinds of expenses were “a matter for the parties to resolve with [the child].”

What are your thoughts?  If a child gets in trouble with the law, should parents be equally responsible for the legal fees incurred in mounting a defence?

For the full text of the decisions, see:

Vidal v. Dunn, 2018

Children’s Aid Society of London and Middlesex v. B.(C.D.), 2013

S.(R.P.) v. S.(K.J.), 2014

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 RussellAlexander.com

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Court Lambastes Man’s “Blank Cheque” Litigation Strategy

We have reported before about the seemingly-unending saga in the case of Beaver v. Hill, involving the support claims against a wealthy Indigenous man named Hill, by a woman named Beaver with whom he had a child.  The case is legally noteworthy for the constitutional questions around whether native-Canadian law should govern Family Law disputes between Indigenous former couples.

But on a recent motion presided over by Mr. Justice Pazaratz, it was evident that there are limits to the courts’ patience with litigants, even on the context of determining such important issues.

Justice Pazaratz had been appointed as the case management judge after the Ontario Court of Appeal, which was hearing the same case, expressed its frustration over the “procedural morass” that the litigation had become, at the behest of a “phalanx of lawyers” whose “tactics have led to a proliferation of materials, skirmishes and arguments”.

In that role, Justice Pazaratz was asked to rule on Hill’s latest motion which was to prevent the previous judge on the case, Justice Sloan, from hearing any further matters.  However, on the latest motion date Justice Sloan was not even scheduled to hear any upcoming matters, and for legal procedural reasons was likely not to be called upon again.   As Justice Pazaratz observed:

So the reality is that [Hill’s] motion seeks to recuse Justice Sloan from having any future involvement with this file – even though Justice Sloan isn’t going to have any future involvement with the file anyway. …

But [Hill’s] counsel insisted that even if it is clear that Justice Sloan will not be presiding over any future events, they still want to proceed with this motion – seeking a court order that he not do something he isn’t going to do anyway.

With that observation in place, Justice Pazaratz cut to the chase:

That’s not just overkill.

That’s not just acting out of an abundance of caution.

If it sounds like there’s some sort of hidden agenda here, it’s because there is a hidden agenda.

“Hidden” in the sense that it’s not spelled out in the Notice of Motion.

But during submissions counsel were fairly candid about what they’re really hoping to accomplish.

Justice Pazaratz went on to elaborate:

In that context, [Hill’s] ultimate goal is not just to recuse this one Superior Court Judge. The unconcealed objective is to eventually eliminate all Superior Court Judges from dealing with his case.  [Hill’s] sweeping criticism of the judiciary is evident in his motion documents …

Having observed that the recusal motion could be brought if-and-when Justice Sloan was actually assigned to sit, Justice Pazaratz’s was direct in his reproach:

The bottom line is that this court has an obligation to be sensible, even if the parties and lawyers aren’t.

Courts exist to resolve real disputes between parties.  Not to provide opinions in response to hypothetical or academic problems.  And certainly not to encourage or facilitate convoluted litigation strategies.

He ended his ruling by offering a scathing rebuke of Hill and his well-funded team of lawyers:

Some motions are merely misguided.  Anyone can make a mistake.

But this motion needs to be viewed in context.

As the Court of Appeal noted, [Hill] “can easily afford” this litigation.  The Applicant [Beaver] cannot.

When you give a team of very talented and expensive lawyers a blank cheque to dredge up every conceivable argument and motion you can think of, this is what happens.

It’s not just financially wasteful.

It’s gamesmanship which precludes honest settlement discussion.

Whether you call it oppression or a war of attrition – it’s basically one side trying to avoid the real issues, by creating as many legal hurdles as possible.

That’s the real perception [Hill] should worry about.

What are your thoughts on this ruling?

For the full text of the decisions, see:

Beaver v. Hill, 2018 ONSC 7138

Beaver v. Hill, 2018 ONCA 816 

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 RussellAlexander.com

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What is the Resolution Evolution – the Path to Peace?

The Resolution Evolution – the Path to Peace is an OCLF/OAFM Conference and your opportunity to take advantage of world-class training close to home, to meet and network with other collaborative professionals, and to socialize with our professional colleagues.

The conference will run May 2, 3 & 4, 2019 at the Brookstreet Hotel, Ottawa, Ontario.

To register or learn more, click here.

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How To: Use Technology to Improve your Family Law Practice - YouTube

Wednesday’s Video Clip: How To Use Technology to Improve your Family Law Practice

Webinar: https://store.lso.ca/how-to-use-techn…

Video by: Daphne Brookes

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Court Rebukes Wealthy Couple for Reaping Canadian Rewards While Avoiding Taxes

The wealthy couple – who owned assets around the world estimated to be worth $50 million – were in the midst of a very high conflict matrimonial proceeding. They were scheduled for an upcoming trial to decide their property division and child support issues.

Although the case is unremarkable in terms of the legal issues under dispute, the court made some pointed comments about the couple’s historic penchant for maximizing their tax avoidance opportunities, while simultaneously exploiting the numerous advantages offered by Canadian society.

The court explained that over the years the couple has amassed a large real estate portfolio including: a large West Vancouver home; a downtown Vancouver condominium; a ski chalet at Big White Ski Resort near Kelowna; a ranch in Merritt; condominiums in Toronto, Florida, and Malaysia, and five properties in Singapore.  But the court explained that  husband’s business had been structured to shield them almost completely from tax liability:

This family is very wealthy and they have a lavish lifestyle. The financial engine for that wealth is the [husband’s] Singapore medical practice, which by all accounts, has been very successful. … The income derived from the medical practice has been the sole support for the family since the [wife] stopped working some time ago.

The court then described the couple’s decision to install the wife and child in Canada, while keeping the husband’s business interests and income sources elsewhere:

In 2003, the family decided to relocate to Vancouver. They applied for permanent residency under the “Immigrant Investor Program”.  In June 2004, the family purchased a large home in West Vancouver. Despite initial intentions of moving to Vancouver, the [husband] determined that it was more practical and lucrative for him to continue his medical practice in Singapore while the [wife] and the children remained in BC. He never did immigrate to Canada but did visit from time to time, while supporting his family here with income earned and taxed in Singapore.

In the context of hearing the bitter matrimonial dispute – which among other things involved Mareva injunction applications and a restraining order to keep the husband away from the former family home – the court registered its disapproval in these terms:

I accept the [wife’s] evidence that the accounts which are used to fund the mortgage on their joint asset – the West Vancouver home – was purposefully put into her name so as to avoid any suggestion that the [husband[was financially active here and therefore, subject to Canadian and BC income tax. Accordingly, but for a small amount of income earned on investments in BC in the [wife’s] name, the vast majority of the family income has been earned elsewhere and presumably taxed elsewhere (if at all) – while the [wife] and [their child] have enjoyed the many benefits of Canadian society, including [the child’s] attendance at the local public high school. Needless to say, this family has also now taken advantage of and sourced another valuable benefit in our society – our legal system – which is funded by Canadian and BC taxpayers.

It’s an interesting comment by the court, of the type that is not often directed at litigants in family law disputes. Maybe it should be, and more often.

For the full text of the decision, see:

Devathasan v Devathasan, 2017

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 RussellAlexander.com

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Should Dad Be Forced to Cook Gluten-Free?

In the recent decision in Beaulieu v. Beaudoin, the court was asked to rule on several continuing disputes between now-divorced parents in relation to the custody, access and care of their four children, three of whom had special needs. Specifically, one child had been diagnosed with autism and ADHD, while two others had severe behavioral issues.

In the context of a hearing to resolve several ongoing and acrimonious issues, the mother asked the court for an order to force the father to follow children’s gluten-free diet when they are in his care.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox. Sign up here.]

The court explained the mother’s position:

The [mother] says that she has invested significant time and energy into learning how to support the children’s needs and how to stabilize their symptoms through medication and diet. Her research has led her to believe that gluten free and casein free diets have been shown to have positive effects on children with autism and ADHD. She asks that the [father] be ordered to adhere to their dietary requirements.

The father resisted;  although he acknowledged that some of the children had special needs, he disputed the effect of gluten on their behaviour.  He had consulted the children’s doctors on his own about the role of gluten, and they advised that it was unlikely to have any impact.  The court added, “He goes on to list the [the mother’s] long list of dietary restrictions which he believes illustrates [her] own obsession with food and her need to correlate everything about the children’s behaviour on what they eat.”

The court considered evidence, in the form of a letter, from one of the children’s pediatricians.  While stopping short of prescribing a gluten-free lifestyle, it indicated “some evidence” that such a diet can be helpful for children on the autism spectrum, and that “Mom feels that she is doing much better.”

The court effectively discounted the pediatrician’s letter, noting:

He does not prescribe a gluten-free diet. Dr. James’ letter only reports what the [mother] has told him; this is double hearsay and has very little probative value. I am reluctant to make the [mother’s] dietary demands a term of any order without more persuasive evidence. To do so would expose the [father] to allegations of a breach of a court order. At the same time, the children are spending most of their time in their mother’s care and it is problematic if the [father] ignores her concerns altogether. This is a high conflict case. The parties do not need to be looking for new ways to antagonize each other.

In the end, the court resolved this narrow issue by ordering that the father must “respect the children’s dietary regime within reasonable limits.”  The court then went on to rule on a host of other contentious, equally-narrow issues between this warring former couple.  (These will be the subject of future Blogs.)

For the full text of the decision, see:

Beaulieu v. Beaudoin, 2018 

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 RussellAlexander.com

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An Example of How Family Violence is Addressed in Family Law

There’s no doubt:  Family law disputes can get nasty.   Emotions run high, and intemperate conduct can quickly escalate.  A recent B.C. case addressed illustrated the type of misbehaviour that can result in one spouse getting a protection order against the other.

The wealthy couple – who owned assets around the world estimated to be worth $50 million – were in the midst of a very high-conflict matrimonial proceeding. They were scheduled for an upcoming trial to decide their property division matters, and their child support issues in relation to their 17-year old daughter.

The wife had earlier obtained a protection order against the husband, under the provincial Family Law Act.  To do so, she established to the court’s satisfaction that she was an “at-risk person” whose safety and security was likely at risk from family violence carried out by the husband. The court described the contents of that order:

The protection order included the following terms: it restrained the [husband] from attending at the family home in West Vancouver or [their daughter’s] school with a police assistance clause; it restrained the [husband] from possessing a weapon or firearms; it authorized the police to seize any such weapons and, for that purpose, the [husband] was required to provide the security code to the gun safe in the family home to the [wife’s] counsel; and, it restrained the [husband] from communicating with the [wife or daughter], save through counsel. The protection order was stated to expire after one year …

The protection order had been made necessary by the abusive conduct of the husband mainly toward the wife, but sometimes directed at their daughter as well. The court encapsulated that misconduct this way:

The vitriolic and abusive comments of the [husband] directed at the [wife] continued and continues to this day. The description of these communications by the [husband] by his counsel as “intemperate” hardly does justice to the word. He alleges, as of late May 2017, that the [wife] is “fat and laid back” and that she was a prostitute. These past and continuing comments are simply abusive, vile and hateful.

Nonetheless, about nine months after the order was granted, the husband applied to the court to have it set aside.

[While we have you here, we wanted to remind you that you can get the latest articles delivered to your inbox. Sign up here.]

The court reviewed the provisions of the provincial Family legislation dealing with protection orders, noting that the criteria included consideration of whether family violence “is likely to occur” against an at-risk family member.  In making this assessment the court was entitled to consider several factors, including: any history of family violence; whether it is repetitive or escalating; whether there is a pattern of abuse or controlling behavior; and the couple’s recent separation.  The court noted that for these purposes, “family violence” was defined to include psychological or emotional abuse (including intimidation, harassment, coercion or threats) and unreasonable restrictions on, or prevention of, a family member’s financial or personal autonomy.

In terms of satisfying those criteria, the court described only some of the evidence put forward by the wife:

The evidence of the [wife] in her Affidavit … is replete with instances where the [husband] has directed both psychological and emotional abuse toward both her and [the daughter]. He has repeatedly threatened, intimidated and humiliated both of them. It appears that this controlling behavior on the part of the [husband] began at least as early as September 2015 and escalated to the time of the filing of the Notice of Family Claim.

There was a visit by the [husband] in late April 2016 which was strained to say the least. During that visit, the [husband] was screaming at [the daughter] such that the [wife] was concerned that he was going to hit their daughter. The [wife] tried to push the [husband] and the [husband] shoved her out of the way.

I had no hesitation in August 2016 in finding that the actions of the [husband] toward the [wife] and [the daughter] in the period leading to August 2016 constituted family violence.

Likewise, the court rejected the notion that the provisions dealing with firearms prohibition were overreaching in these circumstances.

In doing so, the court considered the husband’s argument that the initial protection order had been premature, since he was currently living in Singapore and there was no evidence that he planned to show up in Vancouver (where the wife and daughter lived) to harass them.

The court pointed out that – to the contrary – the husband had sent the wife an email asking for keys to their Vancouver condominium, and stating that he planned to go there within two months. The court added:

To accept the [husband]’s argument is to contend that the [wife] had to wait until he showed up on the doorstop of the West Vancouver family home before she could allege urgency. The evidence established that the [husband] came to Vancouver on a regular basis and, given the acrimony in their relationship, the [wife] could not have expected that she would be given sufficient notice of a visit to seek a protection order. There was also ample evidence to support that giving notice of an application seeking a protection order would have exposed the [wife] and [the daughter] to further abuse and threats and possible physical altercations. 

After stating that it was more than satisfied that the initial protection order had been well-supported by the evidence, the court dismissed the husband’s application to have it set aside.

(Note that although Devathasan v. Devathasan is a B.C. case, an analogous remedy is also available in Ontario, where in certain circumstance a spouse, partner, or someone with whom the person had a child, can apply to the Family Court for a restraining order. The person making the application must prove reasonable grounds for fearing for his or her safety or that of any child in the person’s custody.  This is established through affidavit or oral evidence presented to the court.)

These types of orders are aimed at protecting family members who are at risk.  Are they the right solution?  What are your thoughts?

For the full text of the decision, see:

Devathasan v. Devathasan, 2017

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 RussellAlexander.com

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Divorce Information Centre Update: Representing Yourself In An Ontario Family Law Matter

Check out the information we have recently posted regarding self-representation in Ontario, here

The Divorce Centre includes an easy to navigate guide regarding family law issues, as well as frequently asked questions and informative videos. More information will be added regularly, so be sure to check back for new topics.

The Divorce Centre can be explored further, here.

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