A fresh perspective on divorce, spousal support, child support, parenting after separation and everything family law

Custody Appeal: when can I introduce new evidence?

As noted in the Vancouver Sun in an article by Neal Hall last Friday, April 13, 2012, on April 5, 2012, the British Columbia Court of Appeal issued reasons for judgment in the case of Stav v. Stav.

What Happened in this Case?

In the case of Stav v. Stav, Mr. Stav was appealing an order made by the British Columbia Supreme Court in August 2011 allowing his former wife, Ms. Stav, permission to move to Israel with the three children of the marriage.

As summarized by Neal Hall:

A Vancouver man [Mr. Stav] has won his appeal in a child custody case, resulting in the court-ordered return of his three children from Israel, where they have been living with their mother…

A three-judge panel of the B.C. Court of Appeal ruled in a recent judgment that the trial judge “misapprehended the economic circumstances of the parties.”  The trial judge had assumed the mother would earn about $7,000 a month in Israel, which would have enabled her to support the children even without her former husband’s assistance.  “New evidence disclosed that the income Ms. Stav earned in Israel was substantially less than contained in the offers of employment she testified to at trial and which the trial judge accepted,” the appeal court noted.

It was ordered that the children be returned to Vancouver to live with their father.

New Evidence vs. Fresh Evidence – why is this important?

Mr. Stav sought to adduce both new and fresh evidence (that had not been raised at trial) in support of his appeal. 

This case is interesting because it reviews the test for admissibility of evidence on appeal, that has not been raised at trial, and it also highlights the differnce between “new” evidence and “fresh” evidence:

  • “fresh evidence is evidence that existed at the time of the trial, but for various reasons could not be put before the court” (for example, a document  existed at the time of trial but the opposing party was hiding it and it could not be discovered through dilligent efforts); whereas,
  • new evidence is evidence that has become available since trial (for example, a new event has happened after the date of trial, which is relevant to the matter decided at trial).

It is important to note the difference between these types of evidence because the test for having them admitted before the cout of appeal is different!

  • The test for admission of fresh evidence, requires the applicant to demonstrate that the evidence was not discoverable by reasonable diligence before the end of the trial; that the evidence is credible; that it would be practically conclusive of an issue before the court; and that, if believed, the evidence would have affected the result of the trial; whereas
  • New evidence is admissible in the interest of justice – and admissible in cases where the refusal to admit the new evidence would lead to a long term injustice – generally new evidence should not be admitted except in exceptional circumstances;

It is important to note that family law proceedings take a “slightly more elastic” approach to the admissibility of fresh evidence, in particular where the best interests of the child are concerned.

How does this impact my case?

Introducing new or fresh evidence at appeal can be difficult.  It is much easier to get all of your evidence before the court at trial.  Search dilligently for all relevant and material evidence that could help your case at trial and make sure that it is presented to the court in a format that is admissible.  A basic guide for preparing for trial in the Supreme Court of British Columbia can be found online.  

New evidence, by definition, does not exist at the time of the trial. 

When you are giving evidence at trial, it is important to keep in mind the concept of new evidence – trial is not the “end game”.

"Obviously I would make millions as a professional windsurfer even if I did not win the lottery!"

You should not give evidence, in a trial, of future circumstances that are totally unrealistic, to help your case.

By way of hypothetical example, if I want to move to Maui to become a professional windsurfer, with my children, and I plan to support the move by winning the lottery (a very slim chance of this really happening), it would be a very poor decision for me to give evidence at trial such as:  

“If I am allowed to move to Maui with the children, I am likely going to make millions of dollars next year, I have a plan for this to happen, and the children and I will want for nothing!”. 

If a move was permitted by the courts, my husband would likely make a subsequent court applicaiton to have the children returned (either on appeal or in a new hearing) giving evidence that I am actually not making millions of dollars and the move was not a financially responsible decision.

Does this make sense? Do not unrealistically overstate your case or future situation to try and “win” your mobility trial.

Parenting: Can we Travel to Disneyland?

An Alberta couple recently spent several months fighting about if the mother could take the child of the relationship to Disneyland.

How hard is it to get the the "happiest place on earth"?

In the case of Vervoorst v. Parker, Ms. Vervoorst requested, in October 2011, that Mr. Parker sign a travel consent so she could travel with the parties’ five year old child to Disneyland, in April 2012.  The parties had a number of disputes about the travel consent and, this led to a court application and a written decision of Justice Lee.   Justice Lee ordered that the mother could take the child to Disneyland and dispensed with the requirement for the father to sign a written consent.

Question: After separation, do I need the consent of the other parent to travel with my child outside of Canada?

I get asked this question quite often.  Generally, the answer is yes, you do need the consent of the other parent to travel outside of Canada with a minor child.

I know of some people who “take a chance” and cross international boarders without written travel consents of the other parent.  This is not a good idea.  The last thing you want, for example, is to be trying to drive across the US boarder on a long weekend and be stopped. 

Do you remember the episode of 90210 where Dylan and Brenda go to Baja and she gets stopped at the boarder?  The other parent is probably going  to be equally annoyed as Jim and Cindy Walsh if they have to come and bail you out at the boarder…skip to minute 7 of the video.

Question: What kind of consent do I need? What form should the consent take?

If you are travelling outside of Canada with minor children, it is best to have written consent in the form suggested by the Department of Foreign Affairs and International Trade Canada.

Travel consents are quite easy to prepare – you can likely prepare one yourself and then go to have your lawyer review it and provide you with any legal advice and recommendations necessary.  

You can find the link to an interactive consent form on the Foreign Affairs and International Trade Canada website.

The website also provides some general guidelines about travelling with a child:

Since every situation is unique, we recommend that you talk to a lawyer for advice on what your child will require, particularly if your parenting arrangement has special terms governing international travel.

Carrying a consent letter cannot guarantee entry, as permission to enter another country is entirely the decision of that country. A consent letter may be required by foreign authorities, in addition to other country-specific entry requirements. You should contact the representatives of the country or countries to be visited by the child to ensure that you have the most up-to-date information regarding specific entry requirements.

We strongly recommend that you have the consent letter certified, stamped or sealed by an official who has the authority to administer an oath or solemn declaration, e.g., a commissioner for oaths, notary public or lawyer, so that the validity of the letter will not be questioned. Note that regulations concerning the administration of oaths fall under provincial/territorial law and are not determined by Foreign Affairs and International Trade Canada. Furthermore, it is up to each official/individual who witnesses such a letter to decide what proof he/she needs to see to be able to witness/sign the letter. An official should only witness/sign a letter of consent if he/she is convinced that the individual requesting the letter is who he/she claims to be and that adequate proof has been provided.

We also recommend that you contact the transportation company (airline, train, bus, etc.) in order to observe any additional policies they might have in place.

There is also more information available about children and travel on the Foreign Affairs and International Trade Canada website.

Question: What are some tips for approaching the other parent to get consent?

Generally, the easiest and cheapest way to proceed is to make reasonable agreements between parents about international travel arrangements.  An example of this would be:

  1. Inform the other parent, in writing (for example a friendly e-mail) about your travel plans, including: the specific dates you are proposing to travel, where you are going, and who you are going with and how they will be able to contact the child while you are travelling – ideally this would be well before the proposed travel (ideally 6 months to allow for flexibility);
  2. Obtain the other parents agreement to your travel plans and make adjustments if necessary (for example, we have grandma’s 100 Birthday celebration that week – could you go on vacation the next week?).  Ideally you would get the other parent to consent to the travel itinerary before you book your trip;
  3. Once you have obtained agreement for your travel plans, discuss with your lawyer what consents and special arrangements are necessary (for example, a trip to China will have different requirement than one to Disneyland and the requirements if you have sole custody might be different than if you have joint custody);
  4. Send the other parent the required consents and request, politely, that they sign them and return the originally executed documents to you within a reasonable time (for example two weeks); and
  5. Once the travel consent is signed, provide a copy to the other parent for their records.

Generally, being reasonable, ensuring that you have proper lead time, and respecting the other parents requests for travel dates will help you stay out of court on the matter of travel consents.

Question: What if the other parent unreasonably refuses to consent?

In certain situations, the Court may make an order dispensing with the requirement for written consent to travel (either for one trip or for all travel outside of Canada), for example in one case, the court made an order for both parents to travel outside of Canada with notice to the other parent, but not specific written consent:

In addition, the plaintiff has raised the issue of Kevin’s passport. The plaintiff requested that the defendant sign Kevin’s passport but on the last day of trial he had not done so. While the defendant asserted at trial that he has done so and will remain in contact with the plaintiff so that he is available to sign for its renewal in the future, the defendant’s communication and cooperation with the plaintiff to date has been sporadic. As a result, I will also make an order that the plaintiff will be at liberty to apply for Kevin’s passport without the defendant’s consent for the purposes of s. 7(2) of the Canadian Passport Order, SI/ 81-86Slater v. Slater,2002 BCSC 552 (CanLII), 2002 BCSC 552.  The plaintiff is required to notify the defendant that she is making such an application. Furthermore, she does not require the defendant’s written consent to travel abroad with Kevin, however, the plaintiff is required to give the defendant 48 hours’ notice of any intended travel with Kevin.

With respect to the defendant, he may also travel with Kevin without the written consent of the plaintiff, however he must provide 30 days’ notice along with travel and contact information 48 hours in advance of departure and is required to return Kevin’s passport to the plaintiff forthwith upon their return.

 

Divorce: Mr. Smith v. Mrs. Smith… if that is your real name?

Should privacy be granted sparingly in court proceedings? Or should it be allowed if both parties consent?

A recent article by Ian Mulgrew of the Vancouver Sun comments on a judgment in which Justice Griffin of the Supreme Court of British Columbia criticized the practice of obscuring names in family law proceedings.  In the case of A.B. v. C.D. the husband brought an application to review the amount of spousal support he had to pay to his wife.  The husband was paying $11,500.00 per month based on the parties’ separation agreement signed in 2008 (his average income over the three years since 2008 was approximately $57,000.00 per month).

On the matter of privacy, and obscuring names, Justice Griffin stated:

Lastly, I observe that the parties entered into a consent order early on in the proceeding to camouflage their names in any court judgment by use of initials.  Counsel for the respondent was quite adamant that this remain in place. I am not convinced that such a consent court order is appropriate or that it can bind subsequent judges.  As held in M.E.H. v. Williams, 2012 ONCA 35 at para. 34:

“…the centrality of freedom of expression and the open court principle to both Canadian democracy and individual freedoms in Canada demands that a party seeking to limit freedom of expression and the openness of the courts carry a significant legal and evidentiary burden.”

The interest in open court proceedings is a public interest, not something that private parties can negotiate away.  Furthermore, the fact that parties have to put their names to their pleadings in litigation promotes honesty and reasonableness.  Where one party happens to be a lawyer, that status does not warrant special treatment as many vulnerable parties do not have the luxury of anonymity in litigation.  On occasion where some particular information could cause harm if released, such as information that could be the subject of identity theft, reasons for judgment can be crafted to simply not refer to the confidential particulars.

In the proceeding before me I did not see any information that would have justified hiding the litigants’ names.  Having said that, given that no party sought a change in this status and it was so strongly opposed by the Husband, and given that I have not heard submissions on it, I will for the time being not make any ruling changing the style of proceedings.

As an interesting note – in some cases, such as C.A.R. v. R.M.R., the decision of the court provides details that are so locally well known, it is not difficult to determine who the parties involved are.

Who could this be?" The respondent is a former Olympic athlete. He gained fame in his sport in the late 1990s...In 2009 or 2010 the respondent accepted a nomination to run as a candidate in a Federal election."

In the case referenced by Justice Griffin, M.E.H.Williams, the Ontario Court of Appeal lifted the publication ban on divorce proceedings between David Russell Williams and his wife Mary Elizabeth Harriman (“M.E.H.”).  The publication ban, originally granted by the Ontario Superior Court of Justice, prevented the  publication of her name, address, employer, income or medical information.

As in many high profile case, there were parties who wanted to know the details of the M.E.H.Williams divorce.  Media groups such as the Ottawa Citizen and the Canadian Broadcasting Corporation were granted intervener status in the motion and sought to have the non-publication and sealing order lifted.

As sumarized in an article on CBC:

The appeal court said in its decision that the personal concerns of public embarrassment are not enough by themselves to justify non-publication or sealing orders and said assessing emotional distress versus emotional harm is a matter of degree to be measured against the media’s right to report on court proceedings.

The law in regard to publication bans generally requires two step inquiry (as directed by the Supreme Court of Canada):

  • such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
  • the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

What do you think?

Should parties be able to agree to a publication ban in their divorce proceedings, or is it in the interest of the administration of justice to have names made public?

One option for separating spouses, if they do not want their divorces to be in the public eye, is to agree to a confidential dispute resolution process, such as mediation or arbitration.

While the parties (if married) would still have to file court documents to have a divorce granted, they could limit the information made public to the basics (their names, their date of marriage etc.).  If all you are seeking from the court is a divorce, and you have no children, the information you need to provide is quite limited.