Traditionally, once an interim Order is made, say for support, it can not be changed until trial or unless there is a material change in circumstance.
The test for material change in circumstance is quite high as it appears case law supports policy that family law matters ought to move towards trial instead of languishing in Court with interim motion after interim motion. The notion is that interim motions should deal with the issue being litigated once until the trial court can hear all the evidence and make a final decision.
The case of Lepine v. Lepine (2007), 2007 CarswellOnt 6644 (S.C.J.) found at http://www.canlii.org/en/on/onsc/doc/2007/2007canlii43741/2007canlii43741.html
is a good example of how this notion can work to a party's advantage/disadvantage.
In Lepine, the husband failed to make appropriate financial disclosure pursuant to Rule 13 of the Family Law Rules, and the Court reinforced that in family law cases, early disclosure of all financial matters is important. Clearly, the presiding justice took this into account on the husband's argument that the Order for interim support he was subjected to should be changed.
Despite what appeared to be misleading on the wife's part regarding her 2006 income (it was 3 times as high as reported on her Financial Statement), and her counsel not candidly stating in open court that her new partner provided a hefty sum to their living, she was able to get an order for interim support and the judge did not budge from that amount.
What was more interesting to this writer is the presiding judge's comment that neither counsel brought up Rule 59.06 of the Rules of Civil Procedure. As most family law lawyers know that if the Family Law Rules do not cover a certain issue then we look to the Rules of Civil Procedure to fill in the gap mutatis mutandis.
I reproduce Rule 59.06 below:
AMENDING, SETTING ASIDE OR VARYING ORDER
Amending
59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding. R.R.O. 1990, Reg. 194, r. 59.06 (1).
Setting Aside or Varying
(2) A party who seeks to,
(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;
(b) suspend the operation of an order;
(c) carry an order into operation; or
(d) obtain other relief than that originally awarded,
may make a motion in the proceeding for the relief claimed. R.R.O. 1990, Reg. 194, r. 59.06 (2).
Perhaps if counsel in Lepine had put forth an argument on the Rule 59.06 basis, the husband could have got his variation.
Any stories from counsel who have successfully used Rule 59.06 would be vastly appreciated.
Sunday, October 28, 2007
RRSP gross-up or gross down?
I always wonder when in an equalization situation do you gross up or down the R.R.S.P by 25% because of taxes? We all know that when a person cashes the R.R.S.P. they get dinged with the withholding taxes.
I recently read a case called Baranowski v. Baranowski, 2007 CanLII 43897 (S.C.J.) reported at http://www.canlii.org/en/on/onsc/doc/2007/2007canlii43897/2007canlii43897.html
The case deals with parties aged 67 (husband) and 59 (wife) where upon equalization the Honourable Justice J.F. McCartney ordered a roll over on a tax free basis (the spousal roll over) the straight sum of $69,807.56 being owed to the wife from the husband.
Interesting that the case does not deal with what evidence the presiding justice heard with regard to whether the wife needed the money, because if she was going to cash the R.R.S.P. right away, she would be hit with the 25% tax and the roll over would in effect be less than the $69k being ordered; this is especially important when as in this case the wife was transferring the matrimonial home to the husband and presumably would be purchasing or possible renting other accommodations. If she was going to keep the money and roll it over into a RRIF at the appropriate age then it would be worth the straight transfer because the growth until the transfer age would hopefully outpace the tax loss and present value loss associated with the transfer.
In my experience, I have had the transferring party either top up the amount to take into consideration the tax consequences or in the alternative reduce the value being in transferred for the tax consequences.
Any comments on this point would be helpful since it appears to be an area not cut and dry one way or the other.
I recently read a case called Baranowski v. Baranowski, 2007 CanLII 43897 (S.C.J.) reported at http://www.canlii.org/en/on/onsc/doc/2007/2007canlii43897/2007canlii43897.html
The case deals with parties aged 67 (husband) and 59 (wife) where upon equalization the Honourable Justice J.F. McCartney ordered a roll over on a tax free basis (the spousal roll over) the straight sum of $69,807.56 being owed to the wife from the husband.
Interesting that the case does not deal with what evidence the presiding justice heard with regard to whether the wife needed the money, because if she was going to cash the R.R.S.P. right away, she would be hit with the 25% tax and the roll over would in effect be less than the $69k being ordered; this is especially important when as in this case the wife was transferring the matrimonial home to the husband and presumably would be purchasing or possible renting other accommodations. If she was going to keep the money and roll it over into a RRIF at the appropriate age then it would be worth the straight transfer because the growth until the transfer age would hopefully outpace the tax loss and present value loss associated with the transfer.
In my experience, I have had the transferring party either top up the amount to take into consideration the tax consequences or in the alternative reduce the value being in transferred for the tax consequences.
Any comments on this point would be helpful since it appears to be an area not cut and dry one way or the other.
Thursday, October 25, 2007
Questioning a.k.a. Examination for Discovery of a former lawyer
I recently read a very useful case that deals with Questioning under Rule 20 of the Family Law Rules. It pertains to questioning a.k.a. Examination for Discovery of third parties and focuses on a party's former family law lawyer.
The case is cited as Tsakiris v. Tsakiris, 2007 CanLII 44184 (S.C.J) at found at http://www.canlii.org/en/on/onsc/doc/2007/2007canlii44184/2007canlii44184.html
Rule 20(5) of the Family Law Rules provides as follows:
The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:
1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
2. The information is not easily available by any other method.
3. The questioning or disclosure will not cause unacceptable delay or undue expense.
Number 1 above is usually the place where argument between counsel is had and the Court at paragraphs 14 and 15 set out a rational methord at how to tackle this issue. I reproduce the paragraphs below:
[15] How should the court assess “unfairness”? At least in the context of a motion seeking leave to examine a non-party, I think the starting point must be a consideration of the materiality of the information sought to an issue or issues in the proceeding. If questioning were not permitted, would the party be deprived of the opportunity to secure material evidence relating to an issue in the proceeding or that could have a material effect on the determination of an issue in the proceeding, be it on a motion or at the trial? Put another way, without the information from the non-party would the party lack material evidence lying outside his or her control that would be required to establish an element of its claim, whether on a motion or at trial?
An issue related to whether a lawyer can be questioned is whether solicitor-client privelege is being broken . Well the Court set out the the notion of fairness has been invoked as a basis for waiver of solicitor-client privilege when a client denies that he gave instructions to his lawyer, for example to settle a debt: Sopinka, Lederman and Bryant, The Law of Evidence in Canada (2nd Edition), at §14.103. So, where a lawyer communicates an agreement to settle to the other side and his client subsequently denies giving instructions to his lawyer to settle, the party seeking to enforce the settlement may examine the lawyer as to whether he had received instructions to settle the matter: Bentley v. Stone (1998), 42 O.R. (3d) 149 (Gen. Div.). In Newman v. Nemes (1979), 8 C.P.C. 227 (Ont. H.C.J.), Southey J. expressed the view that (i) such instructions would not be privileged because the communication was not in respect of a confidential matter but, by its nature, was to be communicated to the other side and, in any event, (ii) the denial by the client would operate as a waiver of privilege.
In this case, it was held that whether the Respondent agreed to jointly retain a valuator for his businesses was crucial to the Applicant's motion, and the only place where the information could come from was the Respondent's former lawyer, since the Respondent was denying that he gave instructions to agree. The privelege was waived because it appeared from the Respondent's former solicitor's correspondence that the Respondent was agreeing to a joint retainer, but now denies it.
A good read for those looking to question third parties and need to broaden the scope for argument if it is contested and also a good read when it comes to having to question a lawyer previously on the file.
Comments?
The case is cited as Tsakiris v. Tsakiris, 2007 CanLII 44184 (S.C.J) at found at http://www.canlii.org/en/on/onsc/doc/2007/2007canlii44184/2007canlii44184.html
Rule 20(5) of the Family Law Rules provides as follows:
The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:
1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.
2. The information is not easily available by any other method.
3. The questioning or disclosure will not cause unacceptable delay or undue expense.
Number 1 above is usually the place where argument between counsel is had and the Court at paragraphs 14 and 15 set out a rational methord at how to tackle this issue. I reproduce the paragraphs below:
[14] Unlike Rule 31.10 of the Rules of Civil Procedure which talks about unfairness in the context of proceeding to trial without an examination of a non-party, Rule 20(5) speaks of “unfairness…to carry on with the case without it”. I see this as permitting questioning of non-parties in a potentially broader range of circumstances than obtaining their evidence for trial, including securing evidence for use on a motion.
[15] How should the court assess “unfairness”? At least in the context of a motion seeking leave to examine a non-party, I think the starting point must be a consideration of the materiality of the information sought to an issue or issues in the proceeding. If questioning were not permitted, would the party be deprived of the opportunity to secure material evidence relating to an issue in the proceeding or that could have a material effect on the determination of an issue in the proceeding, be it on a motion or at the trial? Put another way, without the information from the non-party would the party lack material evidence lying outside his or her control that would be required to establish an element of its claim, whether on a motion or at trial?
An issue related to whether a lawyer can be questioned is whether solicitor-client privelege is being broken . Well the Court set out the the notion of fairness has been invoked as a basis for waiver of solicitor-client privilege when a client denies that he gave instructions to his lawyer, for example to settle a debt: Sopinka, Lederman and Bryant, The Law of Evidence in Canada (2nd Edition), at §14.103. So, where a lawyer communicates an agreement to settle to the other side and his client subsequently denies giving instructions to his lawyer to settle, the party seeking to enforce the settlement may examine the lawyer as to whether he had received instructions to settle the matter: Bentley v. Stone (1998), 42 O.R. (3d) 149 (Gen. Div.). In Newman v. Nemes (1979), 8 C.P.C. 227 (Ont. H.C.J.), Southey J. expressed the view that (i) such instructions would not be privileged because the communication was not in respect of a confidential matter but, by its nature, was to be communicated to the other side and, in any event, (ii) the denial by the client would operate as a waiver of privilege.
In this case, it was held that whether the Respondent agreed to jointly retain a valuator for his businesses was crucial to the Applicant's motion, and the only place where the information could come from was the Respondent's former lawyer, since the Respondent was denying that he gave instructions to agree. The privelege was waived because it appeared from the Respondent's former solicitor's correspondence that the Respondent was agreeing to a joint retainer, but now denies it.
A good read for those looking to question third parties and need to broaden the scope for argument if it is contested and also a good read when it comes to having to question a lawyer previously on the file.
Comments?
Tuesday, October 23, 2007
To assses or not assess and the dreaded one-sided assessment
For those who practice family law the issue of custody and access are almost always contested. It is the norm that a parent believes that it is in their children's best interest to be with them either on a full time basis, shared basis or every other weekend.
There had been trends in the case law relating to whether a professional assessment of custody and access was key to a trial on custody and access. More recently, there in this writer's experience a wide variety of reasons to or to not get assessors involved have emerged.
See Linton v. Clarke (1994), CarswellOnt 361 (Div. Ct.) for a comprehensive review of whether an assessment should occur or not.
Note at paragraph 12 of Linton that “expert evidence should not routinely [be] required to establish the best interests of the child….Common sense requires us to acknowledge that the person involved in the day-to-day care may observe behaviour, mood, attitude….The custodial parent normally has the best vantage point from which to assess the interests of the child, and thus will provide the most reliable and complete source of information to the judge on the needs and interests of that child.”
What if we have an assessment done without the consent of a party and without the involvement of the opposing party ?
Common sense would suggest that it is one-sided. How should a Court decide that issue. Well there are two cases that this writer believes are on point. S. (C.E.) v. S. (J.W.) (1993), 1993 CarswellOnt 1825 (Gen. Div.) and Koning v. Montgomery (2003), 2003 CarswellOnt 2028 (S.C.J.)
In both cases, the presiding judges reviewed that the assessor (the same one in both cases actually) did not canvass the issues with both parties and follow a standard format for the assessment. In the end, the presiding judges gave no weight to the assessments.
It would appear that before counsel start throwing around one-sided assessments that they read these cases; or if confronted with such a case, make sure you have these cases in your tool kit so that the trier of fact knows what weight to give them.
Comments are always appreciated by others who have dealt with this issue
There had been trends in the case law relating to whether a professional assessment of custody and access was key to a trial on custody and access. More recently, there in this writer's experience a wide variety of reasons to or to not get assessors involved have emerged.
See Linton v. Clarke (1994), CarswellOnt 361 (Div. Ct.) for a comprehensive review of whether an assessment should occur or not.
Note at paragraph 12 of Linton that “expert evidence should not routinely [be] required to establish the best interests of the child….Common sense requires us to acknowledge that the person involved in the day-to-day care may observe behaviour, mood, attitude….The custodial parent normally has the best vantage point from which to assess the interests of the child, and thus will provide the most reliable and complete source of information to the judge on the needs and interests of that child.”
What if we have an assessment done without the consent of a party and without the involvement of the opposing party ?
Common sense would suggest that it is one-sided. How should a Court decide that issue. Well there are two cases that this writer believes are on point. S. (C.E.) v. S. (J.W.) (1993), 1993 CarswellOnt 1825 (Gen. Div.) and Koning v. Montgomery (2003), 2003 CarswellOnt 2028 (S.C.J.)
In both cases, the presiding judges reviewed that the assessor (the same one in both cases actually) did not canvass the issues with both parties and follow a standard format for the assessment. In the end, the presiding judges gave no weight to the assessments.
It would appear that before counsel start throwing around one-sided assessments that they read these cases; or if confronted with such a case, make sure you have these cases in your tool kit so that the trier of fact knows what weight to give them.
Comments are always appreciated by others who have dealt with this issue
Tuesday, October 9, 2007
Post Agreement changes to Child Support
Kudoba v. Kudoba (2007), CanLII 41273 (ON S.C.J) is a very recent Ontario Superior Court of Justice case found at http://www.canlii.org/en/on/onsc/doc/2007/2007canlii41273/2007canlii41273.html.
This case deals with a Court's analysis of whether child support should be ordered pursuant to the Child Support Guidelines, when there is a Separation Agreement in place.
The Honourable Mr. Justice D.J. Gordon spends a considerable amount of time analyzing the issue through the lens of the spousal support variation cases of the Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303, and Pelech v. Pelech, 1987 CanLII 57 (S.C.C.), [1987] 1 S.C.R. 801. He also referred to the last Supreme Court triliogy (although it was 4 cases) on child support in D.B.S. v. S.R.G., 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231.
Essentially the Court recognized that it is not bound by a Separation Agreement when looking at child support and that the contextual approach to the case is needed. A retrenchment of the view that contractual law does not apply in this context rules the day.
What the case really stands for in this writer's opinion is as follows:
1. Counsel that prepared the Separation Agreement should not be the trial counsel;
2. Language in an agreement is very important in defining the intention of the parties and the legal ramifications of adherence and interpretation down the road;
3. Trial counsel needs to properly quantify child support claims and section 7 extra ordinary expense claims;
4. Be prepared to prove the case at trial.
I had a professor at law school that aptly said if you are the plaintiff/applicant your primary job is "to prove or lose".
This case is all about the prove or lose theory as it seemed that the trial judge did not have enough evidence to make a finding that the Applicant was entitled to support contrary to the Agreement during the interim period.
An excellent case in this writer's opinion on the pitfalls to avoid. Commentary is always appreciated.
This case deals with a Court's analysis of whether child support should be ordered pursuant to the Child Support Guidelines, when there is a Separation Agreement in place.
The Honourable Mr. Justice D.J. Gordon spends a considerable amount of time analyzing the issue through the lens of the spousal support variation cases of the Supreme Court of Canada in Miglin v. Miglin, 2003 SCC 24 (CanLII), [2003] 1 S.C.R. 303, and Pelech v. Pelech, 1987 CanLII 57 (S.C.C.), [1987] 1 S.C.R. 801. He also referred to the last Supreme Court triliogy (although it was 4 cases) on child support in D.B.S. v. S.R.G., 2006 SCC 37 (CanLII), [2006] 2 S.C.R. 231.
Essentially the Court recognized that it is not bound by a Separation Agreement when looking at child support and that the contextual approach to the case is needed. A retrenchment of the view that contractual law does not apply in this context rules the day.
What the case really stands for in this writer's opinion is as follows:
1. Counsel that prepared the Separation Agreement should not be the trial counsel;
2. Language in an agreement is very important in defining the intention of the parties and the legal ramifications of adherence and interpretation down the road;
3. Trial counsel needs to properly quantify child support claims and section 7 extra ordinary expense claims;
4. Be prepared to prove the case at trial.
I had a professor at law school that aptly said if you are the plaintiff/applicant your primary job is "to prove or lose".
This case is all about the prove or lose theory as it seemed that the trial judge did not have enough evidence to make a finding that the Applicant was entitled to support contrary to the Agreement during the interim period.
An excellent case in this writer's opinion on the pitfalls to avoid. Commentary is always appreciated.
Thursday, October 4, 2007
Carson v. Carson
Carson v. Carson, 2007 CanLII 40859 (ON S.C.) is a recent Superior Court of Justice decision that sets out a good review of time sharing arrangements in shared parenting situations.
In this case the parties were both good parents, acknowledged that the child loved both the mother and father such that the only issue was how much time should the child spent with each parent.
The Honourable Justice Aitken found that the status quo arrangement for this 3 year old was working well and as the saying goes "if it ain't broken why fix it?"
Most importantly was Justice Aitken held that "in determining an appropriate time sharing regime for Bryce, I have to focus on what is in his best interest at this time. The task does not involve a consideration of parental rights or concepts of fairness or equality. Lucas was very clear in articulating his fear that, unless he has more time with Bryce, Bryce will not realize how much he loves him and how much he wants to be involved in his life. Lucas does not want to be perceived by Bryce or anyone else as a part-time dad. It is clear to me from the evidence of all witnesses at trial that Lucas could not be perceived as anything other than a devoted and committed parent, just as Laura is. I have no doubt that Lucas will continue to be so and that he and Bryce will develop a close and lasting relationship. As many parents have proven, one does not need equal time with a child to have that type of relationship."
The above factor is one that I think counsel need to take with the parent who is not the day-to-day parent as it can be a hard sell after a separation.
On the issue of spousal support Justice Aitken took a good look at the Spousal Support Advisory Guideline (SSAG) and relied upon them in coming the conclusion that spousal support would be payable on the lower range due to the 13 month co-habitation and 2 year marriage. It was also reviewable in 2 years. This is a good case for reiterating the court's current view with regard to reviewability after a short term marriage and cohabitation period.
All in all, it is a good case for counsel to use if your facts fit.
In this case the parties were both good parents, acknowledged that the child loved both the mother and father such that the only issue was how much time should the child spent with each parent.
The Honourable Justice Aitken found that the status quo arrangement for this 3 year old was working well and as the saying goes "if it ain't broken why fix it?"
Most importantly was Justice Aitken held that "in determining an appropriate time sharing regime for Bryce, I have to focus on what is in his best interest at this time. The task does not involve a consideration of parental rights or concepts of fairness or equality. Lucas was very clear in articulating his fear that, unless he has more time with Bryce, Bryce will not realize how much he loves him and how much he wants to be involved in his life. Lucas does not want to be perceived by Bryce or anyone else as a part-time dad. It is clear to me from the evidence of all witnesses at trial that Lucas could not be perceived as anything other than a devoted and committed parent, just as Laura is. I have no doubt that Lucas will continue to be so and that he and Bryce will develop a close and lasting relationship. As many parents have proven, one does not need equal time with a child to have that type of relationship."
The above factor is one that I think counsel need to take with the parent who is not the day-to-day parent as it can be a hard sell after a separation.
On the issue of spousal support Justice Aitken took a good look at the Spousal Support Advisory Guideline (SSAG) and relied upon them in coming the conclusion that spousal support would be payable on the lower range due to the 13 month co-habitation and 2 year marriage. It was also reviewable in 2 years. This is a good case for reiterating the court's current view with regard to reviewability after a short term marriage and cohabitation period.
All in all, it is a good case for counsel to use if your facts fit.
Monday, October 1, 2007
Special Provisions & Child Support
All too often we negotiate agreements that include a "special provision" term as it relates to child support. The reasoning behind such an arrangement varies from situation to situation but in the end, the usual term includes a payment of child support that is less than the Child Support Guideline amount for the payor parent.
The recent case of Quinn v. Keiper, 2007 CanLII 39759 (ON S.C.) found at
http://www.canlii.org/en/on/onsc/doc/2007/2007canlii39759/2007canlii39759.html
deals with whether a "special provision" is in fact that.
Section 15.1 (1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides that a court may order a spouse to pay child support. Such an order is to be done in accordance with the Child Support Guidelines (s. 15.1 (3)).
In particular, s. 15.1 (5) provides that a different amount may be ordered if the court is satisfied:
(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.
The all too important question is do you have a "special provision" that would stand up to scrutiny if tested in Court.
The Court in Quinn v. Keiper held that the following needs to be determined:
(1) A "special provision" is out of the ordinary or unusual
(2) It replaces the need for ongoing support;
(3) It must benefit the child;
(4) The parties’ intention is not relevant as what is critical is whether the provision objectively benefits the child;
(5) An important factor to consider is how the level of support in the agreement compares to the support that would otherwise be required under the Guidelines?
The Court relied on the decision of the Court of Appeal in Wright v. Zaver 2002 CanLII 41409 (ON C.A.), (2002), 59 O.R. (3d) 26 (C.A.) in order to synthesize its position on this important topic.
Quinn v. Keiper is well worth the read in this writer's opinion and does provide a modern approach to a topic which can confuse the new family lawyer dealing with this during negotiations and drafting.
Any opinions on the issue would be greatly appreciated.
The recent case of Quinn v. Keiper, 2007 CanLII 39759 (ON S.C.) found at
http://www.canlii.org/en/on/onsc/doc/2007/2007canlii39759/2007canlii39759.html
deals with whether a "special provision" is in fact that.
Section 15.1 (1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides that a court may order a spouse to pay child support. Such an order is to be done in accordance with the Child Support Guidelines (s. 15.1 (3)).
In particular, s. 15.1 (5) provides that a different amount may be ordered if the court is satisfied:
(a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
(b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.
The all too important question is do you have a "special provision" that would stand up to scrutiny if tested in Court.
The Court in Quinn v. Keiper held that the following needs to be determined:
(1) A "special provision" is out of the ordinary or unusual
(2) It replaces the need for ongoing support;
(3) It must benefit the child;
(4) The parties’ intention is not relevant as what is critical is whether the provision objectively benefits the child;
(5) An important factor to consider is how the level of support in the agreement compares to the support that would otherwise be required under the Guidelines?
The Court relied on the decision of the Court of Appeal in Wright v. Zaver 2002 CanLII 41409 (ON C.A.), (2002), 59 O.R. (3d) 26 (C.A.) in order to synthesize its position on this important topic.
Quinn v. Keiper is well worth the read in this writer's opinion and does provide a modern approach to a topic which can confuse the new family lawyer dealing with this during negotiations and drafting.
Any opinions on the issue would be greatly appreciated.
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