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

Divorce: Shouts & Murmers

 The last few weeks have been full of interesting news items about divorce.  Here are a couple to check out:

Nick Downes - Published in the New Yorker January 17, 2000

The New Yorker:

In a recent “Shouts & Murmers” Cora Frazier wrote about divorcing in exchange for working  from home and getting rid of the daily commute.  It is a hillarious read, especially on your daily commute to work (after a morning of bickering with your spouse):
5% of [Americans] surveyed said they would actually be willing to divorce their spouse if that meant they could stop commuting and work from home instead.

You see, this was the choice the survey offered me, as I understood it: I could continue to take a forty-seven-minute train ride (or a thirty-eight-minute ferry ride) and a twelve-minute subway ride to and from work every day while remaining your wife, or I could work from home and cease to be married to you. I have chosen the latter.

You probably have a few questions, as I did. For example, will this home be our home, where you also live? Given the fact that we will no longer be husband and wife, this is a complication. I asked the surveyor this question, but she had already moved on to “Would you give up manicures if it meant you didn’t have to commute?” (No.)


Perez Hilton always posts interesting tidbits about celebrity divorces.  Kim Kardashian’s divorce is proceeding with depositions, and Kris Humprhies is set to testify.  Winnie Cooper is getting a divorce (not from Kevin Arnold) and has given some reasons why.

 Supreme Court of British Columbia:

mentioned  earlier this month, the case of  Aquilini v. Aquilini is proceeding in the Supreme Court of British Columbia.  A decision was published yesterday, penned by the Honourable Madam Justice Stromberg-Stein, on the application of Francesco Aquilini to seal the  court file in his divorce proceedings including, but not limited to, reasons for judgment, court orders, affidavits, and transcripts.

Ms. Aquilini argued that the public interst in having open court proceedings should override the privacy interests of Mr. Aquilini and family.  A leading court decision in this regard is Edmonton Journal v. Alberta, which  states:

In summary, the public interest in open trials and in the ability of the press to provide complete reports of what takes place in the courtroom is rooted in the need (1) to maintain an effective evidentiary process; (2) to ensure a judiciary and juries that behave fairly and that are sensitive to the values espoused by the society; (3) to promote a shared sense that our courts operate with integrity and dispense justice; and (4) to provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them.

 In this case, an interim order was granted sealing the file, pending the outcome of a two day application for a permanent sealing order (to be heard in August 2012), to protect personal and financial information fo Mr. Aquilini, that he believes may otherwise be open to competitors and news outlets.

 Let me know if you run across any interesting divorce articles to share!


Divorce: how much are the Vancouver Canucks worth?

The answer is – we may never find out.

As reported by Neal Hall in the Vancouver Sun:

Vancouver Canucks owner Francesco Aquilini has filed an application in court to keep the team’s financial information private during his divorce case.

A little background…

Francesco Aquilini is involved in divorce proceedings with his wife, Taliah Aquilini, in a Supreme Court of British Columbia file opened on February 22, 2012.

The Aquilini family has substantial assets, including an ownership interest in the Vancouver Canucks.  The team was valued at $300 million dollars by Forbes (calculated in November 2011).

Of course a valuation in Forbes is not adequate information to rely upon in dividing family assets upon marital breakdown.

What documents and information can I get about family assets in my divorce proceedings?

In divorce proceedings, a spouse is entitled to substantial financial disclosure – far more financial information than an estimate of value from Forbes.

A spouse is entitled to a Financial Statement, in Form F8 – which is a sworn statement setting out the income, assets and liabilities of the the other spouse, along with supporting documentation (such as tax returns and property assessments).

A spouse can also employ the Supreme Court Family Rules to gain more in depth access to information regarding both family assets, and other assets of the spouse.

Some of the methods to get financial information in a divorce proceeding include (but are not limited to):

  • Examinations for discovery;
  • Demands for production of documents (including demanding documents directly from the corporation/ business in which the spouse has an interest);
  • Examination and inspection of documents;
  • Discovery by interrogatories;
  • Examination of witnesses; and
  • Expert reports on financial issues.
You wrote in a previous blog that divorce files are only accessible to specific people…why does Francesco Aquilini need a further court order?

Divorce files are generally only accessible by the spouses and their respective legal counsel.

However, court proceedings are usually opened to the public, and court decisions are also made public.

Pursuant to Rule 5-1 of the Supreme Court Family Rules, the Supreme Court of British Columbia can make an order sealing financial information, if:

 the court considers that public disclosure of any information filed under this rule would be a hardship on the person in respect of whom the information is filed

Court documents, filed in the above noted application, set out:

One very prominent business owned by the Aquilini family is the Vancouver Canucks. Serious harm would flow to that business if its financial information were made publicly available.

The application brought by Mr. Aquilini should be heard in the Supreme Court of British Columbia (Vancouver Registry) on Tuesday, June 12, 2012, according to NBC Sports.

NOTE – If you need to find a courtroom or hearing time, daily lists can be found on Court Services Online.

Disclosure: rehab and medical records

Can my spouse get access to my medical charts in a family law proceeding? What about a counselor’s file or records from rehab?

The answer is maybe.

In the recent court decision of K.A.P. v. K.A.M.P. Justice Tindale of the Supreme Court of British Columbia considered a husband’s application for production of the following documents relating to his wife:

  • records from the Paradise Valley Wellness Centre (which is the treatment centre the wife attended);
  • clinical records from the University Hospital of Northern British Columbia; and
  • disclosure of the Royal Canadian Mounted Police file involving the Wife and an incident where she was arrested for impaired driving, dangerous driving and driving over .08.

The wife consented to provide the police disclosure.

In regard to the disclosure of  medical and treatment records, the court considered the arguments of both the husband and wife.

In support of his argument for production of the documents, the husband relied on a previous court decision in which confidential records in the hands of a third party were ordered produced as they were clearly relevant on an issue between the parties and the court concluded that “the interest of the children and the interest of justice outweigh her interest in privacy”.

The wife argued that “the test for the production of documents is whether or not the documents can prove or disprove a material fact.”  The wife argued that as the husband had previously agreed to joint custody and joint guardianship (with knowledge of her “problems”) there was nothing to be gained by disclosure of confidential documents.

The court ruled in favor of the husband, and in favor of disclosing the documents, giving the following reasons:

  1. “In my view, given the long-standing difficulties that the respondent has had with depression and substance abuse and the fact the respondent wants to be relieved of the necessity of having a nanny living in her residence, it is clearly relevant, necessary and material to have as much information available to make this determination”; and
  2. “I also conclude that the interests of the children outweigh any privacy interest the respondent might have.”

Note to family law litigants: your medical history could be considered producible in court proceedings.

Court Services Online: the Real Housewives of Vancouver

"The Real Housewives"

I recently saw a commercial for an episode of the Real Housewives of Vancouver and one line caught my attention: Jody was going to serve Mary with legal papers?

I did not pay too much attention to when the episode was airing.  Instead, I was interested in who was suing who, and why.

I went to Court Services Online to see what, if any, lawsuits had been filed against Mary.

Court Services Online is a very useful tool.  It allows you to e-search parties by name to check if there are any lawsuits.

You can complete these searches for free!  In many cases, if you pay an additional charge (usually $6.00) you can view the court file.

So, I searched Mary Zilba, to see if there were any lawsuits filed by the cast of the Real Housewives of Vancouver.
The results came back, there were two lawsuits with Mary Zilba as a party:
  1. A family law proceeding from 2011 (note – you generally cannot get access to family law proceeding documents online); and
  2. A small claims proceeding from 1998.
There were no recent lawsuits, and no lawsuits filed by a cast member of the Real Housewives of Vancouver.
Out of interest, I searched the names of the rest of the “Real Housewives”.
Here are some of the results:

What are some more practical uses of Court Services Online?

"Use the "Search Civil" feature to search for civil lawsuits"

Example of situations where this may be useful:

  • Has your blind date from E-Harmony been involved in a messy lawsuit/lawsuits?
  • Who is the person claiming that your grandfather’s estate owes her money? Are they litigious? Would they likely sue the estate?
  •  Has your spouse’s business been involved in lawsuits that have not been disclosed to you?

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.

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.