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

Without Prejudice: what does it mean?

What does “without prejudice” mean and why is it on the top of so many letters my lawyer gets from my husband’s lawyer?

A British Columbia Supreme Court decision released last week looked at the definition and meaning of without prejudice and applied it to the family law context.

There are lots of differently worded definitions of “without prejudice”.

I like to think of it generally as meaning:

What happens in settlement negotiations stays in settlement negotiations.  A settlement offer cannot be brought up in court, put in an affidavit or used as evidence in proceedings (unless both parties agree).

What makes something without prejudice?

The Honourable Mr. Justice Cole cited a previous decision of the court, setting out the requirements for correspondence to be without prejudice:

The words “without prejudice” are not necessary to invoke the privilege. The privilege is determined by the circumstances. There are only two requirements:

1) A litigious dispute exists or is contemplated; and

2) The purpose of the communication is to buy peace or effect settlement or respond to such a communication.

So how does without prejudice work? Can you provide an example?

Here is a hypothetical example – My husband are recently separated.  Our lawyers have organized a four-way meeting to see if we can resolve our disputes through negotiation.  At the four-way meeting we discuss two hotly contested issues: who keeps the family dog and who gets to stay in the Sunday running group.  I offer to give my husband the family dog  if he will agree to move to Fort McMurray (so I won’t  bump into him at the Running Room).

We cannot resolve our disputes and go to court.  My husband tries bring up my earlier offer to give up the dog in court.   Lucky for me, this offer is not admissible in the court proceeding because it is made in a settlement negotiation.  Further, my husband could not use my offer to give up the dog as evidence that I did not want the dog or that I was a bad dog owner.

Why do we have “without prejudice”?

We have the concept of without prejudice to encourage settlement and the early resolution of disputes outside of the court process.  If offers people made to try and settle matters could be brought up in court, far fewer offers would be made.

As a note, some feel that “without prejudice” is over used – and that if you make an offer it should be a reasonable one that you believe in.  My thought on this is that it is useful to have without prejudice discussions and offers, as it helps move things forward.  That being said, the phrase can be overused.

Are there limitations to something being “without prejudice”?

Yes, there are.  You cannot use “without prejudice” to get away with/hide from misleading the court or perjury.  As stated by Mr. Justice Burnyeat in the case of Berry v. Cypost:

While it generally the case that the public interest in encouraging settlements will not be served by making without prejudice statements or documents admissible, I am satisfied that the overriding public interest to discourage perjury will not be served by protecting potential evidence of perjury behind without prejudice settlement discussions. In the words of Tysoe, J.A. in Greenwood, the protection of without prejudice settlement discussions was “… never intended to give protection to this sort of thing” (at p. 268). As was stated by the authors of “The Law of Evidence in Canada”:

The privilege cannot be used as a means to deceive the courts as to the facts, by excluding evidence which would repel a charge of fraud made by a party or who is shown by the impugned communication to have effected a waiver or made an election (at p. 729).

Additionally, a party can make their offer “without prejudice” except to costs.  As JP Boyd summarizes (in his 2009 blog on the topic of “without prejudice”):

Proper “without prejudice” letters can’t even be put into evidence to argue costs after trial, unless the letter contains a statement saying that the author intends to reply on the letter for the purpose of arguing costs.

Some helpful tips:

  1. Do not rely on something being without prejudice – it is important to make your intention abundantly clear at the beginning of a discussion (preferably record in writing that your negotiations are without prejudice.  You do not want to later end up in a discussion/court hearing focused on if your communication was intended to be without prejudice (there are better ways to spend your time and money);
  2. Check with your lawyer before you shoot off an offer (your lawyer will have useful feedback on the offer you are making and if it is an appropriate time to make it);
  3. Do not use disrespectful/offensive language even if you think that you are using it in a “without prejudice” context (you never know where the correspondence will show up – being without prejudice does not mean people cannot read it;
  4. If you make a demand it may not be considered without prejudice; and
  5. If you are not sure if something is without prejudice, ask your lawyer.

Some additional reading:

  1. Without Prejudice vs. Solicitor Client Privilege (Christelle Vaval);
  2. What’s Without Prejudice and What’s Not (JP Boyd); and
  3. Sopinka, Lederman and Bryant, The Law of Evidence in Canada

Obviously I would never offer to give up the family dog!

Family Law: access for grandparents

Are grandparents able to get court orders for access to their grandchildren?

The answer is yes.  In British Columbia, third parties (for example grandparents) can get court ordered access to children.

Section 35 of the Family Relations Act provides that grandparents of a child  may apply to the court to exercise custody over a child or have access to a child.

Seciton 16 of the Divorce Act provides that the court can make an order recpecting custody or access if an application is made by a spouse, or any other person.

The new Family Law Act provides in Section 59 that the court may grant contact to any person who is not a guardian, including grandparents.

The British Columbia courts have set out some considerations  in case law, for example Chapman v. Chapman to guide an analysis of what is in a child’s best interest when assessing third party access claims:

  • The court should be reluctant to interfere with the custodial parent’s decision on access and should do so only if it is satisfied that it is in the child’s best interest to do so;
  • It is not in the child’s best interest to be exposed to a real conflict between a custodial parent and a third party (however the court should be aware of cases where parents may be arguing there is a conflict or potential conflict to beat an access application that has merit).

It is the onus of the party seeking access to a child to show that the access they are proposing is in the best interest of the child.  A court may also consider what the child thinks about access if they are old enough.

(Meet the Fockers – different grandparents = different parenting styles ~ NOTE: safe for work)

If you are a grandparent seeking acecss to your grandchild, there are some useful resources online that you can consult for free, including:

Interestingly, the summary of case law by the Department of Justice looks at how the courts have treated access claims by grandparents differently in circumstances where the families are “intact” and “not intact”.  The Department of Justice articles summarizes their review:

The case law above seems to suggest that the courts may use their jurisdiction to maintain existing relationships between grandparents and grandchildren when the acrimony between the parents and grandparents is not so strong as to place the children in an untenable position.  However, the courts are unlikely to create or establish relationships when none previously existed, against the wishes of a parent.

Contempt of Court: what is it and how to avoid it?

At the National Family Law Conference last month, the Honourable Madame Justice Elizabeth Jollimore of the Supreme Court of Nova Scotia  and Sharon Kravetsky  gave an excellent presentation entitled: “Contempt: Substantive Law and Strategic Considerations.”    This presentation got me thinking about contempt of court in a family law context – people have asked me if they can have their spouse (or former spouse) found in contempt of court – without knowing exactly what it involves.

What is civil contempt of court?

Black’s Law Dictionary defines civil contempt as: “The failure to obey a court order that was issued for another party’s benefit.  A civil contempt proceeding is coercive or remidial in nature.  The usual sancation is to confirm the contemner until he or she complies with the court order.”

The Saskatchewan family law case of Brown v. Bezanson explains what contempt of court is used for and what needs to be met to make a finding of contempt:

A proceeding for civil contempt is available to redress a private wrong by forcing compliance with an order for the benefit of the party in whose favor the order was made.  Sanctions for civil contempt are thus mainly coercive in nature.  Their aim is to force complaince with the order.  They may also be punative where the circumstances warrant it.

The burden of proof in contempt applicaitons is beyond a reasonable doubt and rests with a party alleging the contempt.

In civil contempt proceedings the following evidence must be proven beyond a reasonable doubt:

  1. The terms of the order must be clear and unambiguous;
  2. The contemner must have knowledge of the terms of the order;
  3. The breach of the terms of the order;
  4. The appropriate mens rea must be present.

JP Boyd’s BC Family Law Resource provides a description of the procedural process to make an application to seek a finding that someone is in contempt of court in a family law proceeding.

What are the penalties for being found in civil contempt?

In terms of penalties for contempt, Sharon Kravetsky states in her paper “Contempt: Compliance, Restoration and Punishment” at page 21:

Traditional responses to contempt are fines or imprisionment.  These responses may be the reason contempt is such an unsatisfactory remedy in family law.  Stretching already strained finances or incarcerating a care-giver or access parent does little to serve the best interest of a child.  In contempt cases which involve children, there is always concern about the best interests.  More imaginative responses may be necessary.

Penalties for contempt of court in family law cases have included (but are not limited to): incarceration, terms of incarceration, fines, court ordered costs, suspension of child support payments, make up access visits, change in primary care of a child, and changes in decision making authority for a child.

How can I avoid being found in contempt of court?

Generally being in contempt of court is something you bring upon yourself by account of your own behaviour (by doing or failing to do something).  Some common sense tips for not being found in contempt include:

1) Do not act like my Cousin Vinnie:

http://www.youtube.com/watch?v=pFOnB9ODRkA

2) Follow court orders;

3) If you are unclear about a court order, seek clarification as soon as possible;

4) If you are unable to comply with a court order, seek to have the court order changed by the court so you can comply with the terms of the order; and

5) Consult a lawyer with any quesitons you have about a court order.

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.

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).