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

Divorce: poetry not appreciated…what about other forms of correspondence?

Twas the night before Christmas, in the Matrimonial Part…

A lawyer has recently gotten in some hot water for writing correspondence to opposing counsel, in the form of a Christmas poem.

In an e-mail to another lawyer, in a seemingly never ending divorce case, Mr. A. Todd Merolla of Atlanta, Georgia, wrote a 15 stanza poem parodying “Twas the Night Before Christmas”.

By way of example, two of the stanzas read:

 The Honorable One now passed, who will take the torch?

To rule on pending motions, some two years on the porch.

Justice delayed is Justice denied,

Will Article 78 inspire someone’s pride?

 

Win, lose, or draw, it’s not for a judge to care,

Simply rule and move on, why is that such a dare?

This 2003 case be a 59 month marriage, 9 year divorce,

$1.5 MM “temporary” maintenance to date, can Plaintiff get more? Why, of course!

Despite the creativity of the piece, it did not go over well with the recipient.  As reported by Staci Zaretsky, of Above the Law:

Talk about good tidings for Christmas. But Merolla’s adversary, Kenneth Weinstein (who may or may not have had a heart that was two sizes too small), just wasn’t in the mood for a holiday-themed ribbing. Weinstein found the poem to be “outrageously offensive, utterly unprofessional [and] threatening.”

What is appropriate correspondence for legal counsel in British Columbia?

The Professional Conduct Handbook  sets out a lawyer’s responsibility to other lawyers including (but not limited to) the following provisions:

  • A lawyer’s conduct toward other lawyers should be characterized by courtesy and good faith.  Any ill feeling that may exist between clients or lawyers, particularly during litigation, should never be allowed to influence lawyers in their conduct and demeanour toward each other or the parties. Personal remarks or references between lawyers should be scrupulously avoided, as should quarrels between lawyers which cause delay and promote unseemly wrangling;
  • A lawyer must respond promptly to correspondence from other lawyers;
  • A lawyer should avoid all sharp practice and should take no paltry advantage when an opponent has made a slip or overlooked some technical matter. A lawyer should accede to reasonable requests which do not prejudice the rights of the client or the interests of justice;

In short, lawyers in British Columbia should not be sending, what I call “snot-o-grams”, to other lawyers, no matter how creatively drafted the correspondence is.

Instructing your lawyer to write a discourteous letter to your spouse/former spouse’s lawyer is asking them to act against their obligations set out in the Professional Conduct Handbook – and should be avoided.

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.

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.

Reddit My Divorce

RedditReddit.com is one of my favorite websites.  I go there almost every day to check news and important things on the internet.  This weekend I decided to search reddit for “divorce” -I should not have been surprised that there were about 5,400 results in 0.663 seconds (but I was).

There were funny threads and insightful threads.  Some of the threads  that I found most interesting (a mix of funny, serious and newsworthy) were:

There are so many different threads and posts on reddit.com that I had to stop reading (and get back to work).   While it is generally not possible to verify the identity of people posting on the internet, reading posts like these does provide useful insight into the perspective of others.

***Please note that some of the language used on the attached links is not safe for work (and the views expressed do not necessarily represent the views or opinions of Hart Legal…or Christine Murray).

Divorce: why don’t my papers look like Kobe Bryant’s?

Q: What are my divorce documents going to look like?  Why do they look nothing like the documents I see online or on TV?

A: Recently, copies of celebrity divorce documents have showed up on the internet for anyone to view. For example, Kobe Bryant’s wife filed for divorce and the papers were published on popular websites for the public to view.

The reason that the documents look different from that of Kobe Bryant or Arnold Shwarzenegger is because divorce documents look different in each jurisdiction.

Why didn't I get served with something that looks more like this???

In British Columbia, a claim for divorce (formally called a Notice of Family Claim) generally looks like this .  It will be filled out by either you or your lawyer and customized to meet your personal circumstances.

Q: Do I have to worry that everyone can see my divorce documents on TMZ.com…or CNN?

Generally, no.  In British Columbia only certain people can access divorce documents.  It is set out in the Supreme Court Family Rules (Rule 22-8) that only certain people can search a registry file in British Columbia unless the court orders otherwise – the parties, a person authorized by a party or party’s lawyer or a lawyer.

However, the fact that the court does not release your documents to the general public does not preclude your ex-spouse (or soon to be ex-spouse) from sharing them.   It is best to keep your court documents private and only disclose documents if your lawyer advises you to.

In certain jurisdictions, such as in Alberta, anyone can access a family law file if they make the appropriate request to the courts.  Again, it is important to note that things will be different in each province and country so what may be the case for you in British Columbia might not be the same for your sister in Alberta or your uncle in California.

Also, it is important to note court proceedings  are generally open to the public in British Columbia and court decisions are available online.