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

Family Law: spouses behaving badly…and why you should behave (well)

Did this really happen?

 Mr. X purported to purchase a diamond ring of considerable size and value for his bride-to-be. He led her to believe it was an extremely expensive purchase when in fact it was a synthetic diamond that cost him $250.00. That ruse was continued through the marriage when some four years later he personally took the ring in to get cleaned and actually had it replaced with another synthetic stone as it appeared the first stone was showing signs of wear. He perpetuated a lie at the foundation of their relationship well into the marriage. This was discovered by Ms. X only after the separation and after she took the ring in for testing to a jeweller. While she may have had her doubts throughout the relationship she chose to believe the best of her fiancé and later her husband.

Yes, this did happen, in Alberta in 1999, as reported in an Alberta case from 2010.

"He told me he got it from Tiffany & Co..."

Not only does this decision provide a warning to those shopping for engagement rings (size matters… but lying about it matters more), it also provides a good reminder about the importance of honesty and integrity throughout your marriage (and divorce).  It is important to be honest and act in good faith because you have a moral obligation to your fellow human beings to do so, but also, if you are motivated by no other reason, note that your poor conduct can come back to haunt you at your divorce trial.

Mr. X’s conduct did not serve him well when he and Ms. X got (inevitably) divorced.

As the Honourable Justice D.K. Miller stated later on in the decision:

Credibility is absolutely crucial in a trial like this…Credibility or believability of a witness is not so much a science but an art.  Credibility has at least two aspects to it.  First, the truthfulness of the witness and secondly, the reliability of the witness. We must first answer the question: is the witness trying to tell the truth and not trying to be deceitful? After that question is answered, such that the witness is worthy of belief, is the factual content, in other words, are the actual words said by the witness trustworthy, accurate and reliable.

In assessing the evidence of the parties and keeping in mind the two step process I just described, I am then left with combining experience, logic, the demeanor of the witnesses, common sense and a whole host of other human characteristics. Things like the general integrity and intelligence of the witness, their power to observe, capacity to remember and their accuracy, as well as all other evidence tendered in the case.

It is true Ms. X may be a little vague or lacking in some details. She may not have recalled everything perfectly. This may be because she trusted completely and unequivocally the man with whom she expected to spend the rest of her life. Many of the details around 1999 and 2000 were not as important to her because she made certain assumptions. These were assumptions based on trust.

On the other hand Mr. X was strategic and somewhat cunning, if not deceitful and parsimonious, when he started this relationship. This continued throughout their engagement, on their wedding day, and throughout their marriage. It would stretch the bounds of common sense and all judicial reasoning in my view to accept Mr. X’s evidence over Ms. X’s. Without hesitation I accept the credibility of Ms. X over that of Mr. X. In any area where there is a conflict between the parties I will accept her evidence. I found her to be fair and balanced in her evidence and in describing Mr. X she was astonishingly even handed, a treatment that one would not expect from a woman who was personally insulted by a man who passed off a $250.00 synthetic stone for an extremely expensive diamond.

 There is nothing wrong with a man giving his fiancé a $250.00 synthetic diamond. However, when he leads his fiancé and the whole world to believe it is worth several thousand dollars, when he himself is a very successful businessman with a net worth of three million dollars, he does not start well.

Another example of  a spouse behaving badly (and later having it come back to haunt them at trial is the Daved v. Daved decision of the Honourable Justice Greckol of the Alberta Court of Queen’s Bench:

There is further evidence to support my assessment of the respective credibility of Mr. and Ms. Daved. After separation, Ms. Daved lived in subsidized housing provided by the Capital Region Housing Corporation. On June 26, 2008, Mr. Daved’s then counsel wrote to the Housing Corporation requesting a copy of Ms. Daved’s application in order to verify that she had provided accurate income information, indicating that “…be advised we have concerns as to Ms. Daved providing yourselves correct information.” The letter then set out the amount of spousal support received by Ms. Daved for 2006, 2007 and 2008. Ms. Daved was called in by the  Housing Corporation to give an account of herself and provide further information.

The actions of Mr. Daved’s representative caused her to endure the stress and uncertainty of whether she would have a roof over her head. In other words, Mr. Daved tried to have Ms. Daved and her son thrown out of their rented subsidized housing after the separation, well knowing that she left the marriage with nothing and was receiving minimal support from him, based on an inaccurately low deemed income.

In summary, I reject Mr. Daved’s evidence that Ms. Daved did little or nothing to support their family operation and I accept Ms. Daved’s evidence that she worked side by side with Mr. Daved in the joint enterprise that was their family life, including work in the business, in the home, on the farm with the animals, in the gardens, doing everything she could to contribute to and support the family.

In this two week trial, I got to sit as second counsel to Renee R. Cochard, Q.C. and represent Ms. Daved, which was a wonderful experience.

It is important to note that it is not only men in Alberta behaving badly and having it catch up with them later. In the widely reported case of Bruni v. Bruni both parties were called out by Justice J.W. Quinn for their poor conduct.

The point of this blog is not to make light of individual situations – it is to encourage people to act in good faith during their marriage (and divorce), if for no other reason then to improve their credibility before the court.

 * Note…Mr. X and Mrs. X are not the names used in the actual court decision.

Women: what to wear to court

Why have I written three blog posts this month about what to wear to court?  Does the court (or anyone for that matter) even notice what you are wearing to court?  The answer is yes!  It has even been noted in written judgments of the court:

On two dates when LD was being cross-examined, she attended Court in rather large, bright pink fuzzy bedroom slippers which was out of sync with her usual manner of attire, and certainly out of the norm for any reasonable person’s court attire.

Women should wear something to court that they feel comfortable in.  Something that fits well and can be described as “business casual” attire (something you would wear to an interview for an office job).

A good look for women (from top to bottom) is:

Wear a cardigan or blazer over any sleeveless top

  • A neutral coloured blouse, or dress shirt that is ironed, clean and properly fitted.  The shirt should not show too much cleavage (also consider that court may be stressful so wear a shirt that doesn’t show sweat);
  • A matching sweater, cardigan, or blazer;
  • An ironed skirt (no shorter than one or two inches above the top of your kneecap) or ironed dress pants;
  • My favorite thing to wear is a “suit dress” – they are very comfortable and you don’t have to iron a blouse (see above);
  • Tights (or nylons) if you are wearing a skirt or socks that match your shoes and pants; and
  • Conservative shoes (closed toe) that are easy for you to walk in.
Also consider, accessories:
  • A satchel, computer bag or briefcase to carry any documents (do not shove them all into your purse);

    Do not wear anything that indicates you disrespect the court

  • Jewelry (keep it simple, tasteful and modest);
  • Nylons (bring an extra pair in your purse).
Also consider, grooming:
  • Keep your makeup natural;
  • Do not apply makeup in the courtroom;
  • Keep your nails clean and neat;
  • Cover Tattoos;
  • Remove piercings (with the exception of an earring in each ear);
  • Keep your hair out of your face and neat looking.
When you are getting ready, focus on the idea: conservative, professional and trustworthy.   Outfits that invoke thoughts of summer, Lady Gaga, and fashion forward should certainly be worn with caution, and not without a second opinion.
It is important to note that different judges have different ideas about what is appropriate for court.  When I was in law school, a girl went to court in a suit with dress capri pants, and was told by a judge that they were not appropriate.
On the other hand, when  someone I know was working , she found out from a reliable source that not all judges felt it necessary to wear nylons in the summer (and we were all pleasantly surprised!).  In any event, I always err on the side of caution and wear nylons (subject to any last minute runs etc…see above).

Men: what to wear to court

There are lots of general guidelines online for men about what to wear to court, such as: what you would wear to church, an office job interview or “business casual”.  When preparing for family court, I advise men to wear something they feel comfortable in and that shows respect for the court.

However, these general descriptions can be interpreted in many different ways – something you feel comfortable in could be a bath robe, there are lots of different interpretations of “something that shows respect for the court”, and what you wear to church might not be what everyone wears to church.

I asked our resident fashion expert, Carey Davies, to help me create a head-to-toe list of what to wear to court.

A good look for men (from top to bottom) is:

  • A neutral colored dress shirt, ironed, that is clean and properly fitted (also consider that court may be stressful so wear a shirt that doesn’t show sweat);
  • A neutral colored suit jacket or sports coat as it may be cold in the courtroom (note: a “sports coat” is NOT an Adidas track jacket );
  • Ironed slacks (black, navy, grey, or khaki);
  • Dark dress shoes that match your pants; and
  • Dark socks that match your shoes.

Also consider, accessories:

  • A tie – if you wear a tie in your every day life, I would suggest wearing a tie to court.  If you don’t wear a tie in your every day life I would not suggest wearing a tie (it might get uncomfortable and look unnatural).  The tie issue is covered in more detail in this useful Wall Street Journal Article.
  • Cufflinks – again, if this is part of your normal day to day wear, you might want to include these.  If you are bringing an application and/or giving evidence to your difficult financial situation it is best to avoid wearing flashy accessories – no gold cufflinks or Breitlings.
  • A sweater – a dark v-neck sweater you can wear over your dress shirt might be a good idea if the weather is cold; or
  • A briefcase, laptop bag or satchel to keep your documents in (always best to be organized before you get to the court room).

Also consider, grooming (See Oprah’s top ten tips):

  • Remove piercings;
  • Cover tattoos;
  • Very light (or no) cologne;
  • Clean cut hair style; and
  • Tidy facial hair or no facial hair.

Getting dressed for court does not mean that you have to buy all new clothes.  There are probably things in your closet that will work well.  You can also consider borrowing something from a friend or relative.  If you feel more confident in a new shirt, there are usually some deals on men’s basics (going to court does not require a $300.00 shirt from Harry Rosen).  Finally, before leaving the house for court it may be a good idea to get a second opinion about what you are wearing – ask a friend who has good style and judgment, your lawyer, or your family (do not ask your soon to be ex-partner on the other side of your divorce).


Written Notice: what constitutes written notice of a breakup these days?

Guest Blogger Jane Marsden

By Guest Blogger: Jane Marsden, Articled Student, Hart Legal

Any true Sex and the City fan will know that one of the harshest ways to be broken up with is by a Post-it-Note.

When the “Post-it-Note Episode” aired, my friends and I were outraged (yes, we know it’s only a show…).  In this episode, Carrie Bradshaw’s boyfriend, Jack Berger, sneaks out in the middle of the night, leaving a post it note in his place which reads: “I’m sorry. I can’t. Don’t hate me.”

 However, maybe Berger’s breakup method wasn’t so callous after all…

"Perfect for the office romance?"

Although anything short of a face-to-face conversation seems like an incredibly rude and gutless way of breaking up with someone, these days a Post-it-Note almost seems like a personal, or, at the very least, private way of breaking it off.  

While the Post-it-Note Episode aired less than ten years ago, a lot has changed in that short amount of time.  Since then, Facebook, MySpace and Twitter have become, for many, primary means of communication; they have added a whole new dynamic for people trying to navigate relationships and love.

According to my Google search (“facebook breakups”), and stories from friends, it’s all too common.

Social networking sites raise a number of interesting legal issues, including, does a Facebook status change constitute written notice of a breakup?

For example, it is not uncommon for unmarried couples to enter into cohabitation agreements before they start living together, or before they get married.  Couples enter into these agreements for a variety of reasons, such as having children from a previous relationship, wanting to protect assets, or setting out each other’s expectations for the day-to-day workings of the relationship.

A common clause in the cohabitation agreement provides that the parties’ relationship will be deemed to have ended on the first of the following events to occur:

  1. the parties live separate and apart as a result of a breakdown in the relationship for a continuous period of more than 90 days;
  2. the date a court grants an order recognizing that the parties have no reasonable prospect of reconciliation with each other; or
  3. the date a party delivers a written notice to the other that the relationship is terminated.

So the question is: is it enough for your partner to change his or her Facebook status from “in a relationship” to “single” for this to constitute “written notice” that the relationship has come to an end?

Although Canadian courts have yet to explore this specific issue, we do know that social networking sites have come up in matrimonial cases; usually around evidentiary issues.  In one recent case, W.M.W. and K.C.M. v. J.W. and M.M., Judge T.S. Woods considers Facebook evidence to show the nature of  a relationship:

 I must acknowledge in this connection that there is evidence to show that Biological Mother JW is in a new, live-in relationship with the individual to whom I have referred as “Boyfriend JG”.  However, the evidence also shows that that relationship has had its volatile moments.  A printout of messages published on Biological Mother JW’s Facebook page reveals that as recently as October 30-31 of this year (shortly before the hearing), she considered that Boyfriend JG had unceremoniously “dumped” her. 

The Guardian cited a 2010 survey by the American Academy of Matrimonial Lawyers which states that four out of five lawyers have reported that increasingly, divorce cases have relied on evidence taken from social networking sites.

It seems to be only a matter of time then before the courts will be called upon to decide whether someone’s change of Facebook status change is enough to constitute written notice that the relationship is over.

Family Court: what not to wear

Clients ask me all the time: what should I wear to court?

"Do not wear - even if you are seeking a no contact order"

I advise clients to wear an outfit that they feel comfortable in, that conveys respect for the court, and that is something they consider appropriate to wear to an interview for an office job.   I wear a suit to court (black or dark grey usually), so I don’t have to put too much thought into what I am going to be wearing each day.

For people who don’t attend court regularly, I will be publishing two blogs later this month about what to wear to court (one for men and one for women).

This blog is about what not to wear to court.   I have actually seen people wearing all of the items listed below to court over the years.   If you are heading to a day in court, do not wear the following:

  • T-Shirts (especially with offensive language or drug references – sorry Allie, no hello Kitty T-Shirts either);
  • Exercise clothing (no lululemon);
  • Clothing showing lots of skin (sleeveless shirts, short shorts/skirts, low cut tops, stomach bearing tops, anything showing your underwear or tattoos);
  • Flip-flops and beachwear;
  • Hats, sunglasses, excessive jewellery;
  • Clothing that is too small or too large;
  • Political apparel (what if the judge does not share your enthusiasm for the Sea Shepherd Conservation Society and PETA?);
  • Stained, ripped and dirty clothing; and
  • Sports jerseys.

Some other ettiquite points to consider when attending court include:

  • Turn off your cell phone (if you absolutely cannot miss a call put it on vibrate);

    "No coffee in court"

  • Do not listen to music (no i-pod, no ear buds);
  • Arrange child care well in advance so you do not have to bring your children to court with you;
  • Avoid chewing gum;
  • Do not bring food or drinks (aside from water) into the court room;
  • Do not smoke; and
  • Be on time.