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

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.

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.

Divorce: alienation of affection

I recently got a call from a wife who wanted to bring an alienation of affection lawsuit against her husband’s mistress.

Having done research on this topic a few years ago, I had to flip through my old files to refresh myself on the Canadian cases dealing with this cause of action (alienation of affection lawsuits do not come up very often).

What is alienation of affection?

Alienation of affection is, in non-legal terms, when someone ‘steals’ your partner away from you.

A situation that could give rise to such a claim, for example,  is when Brad Pitt and Angelina Jolie fell in love on the set of Mr. and Ms. Smith, while he was still married to Jennifer Aniston.

In legal terms, the tort of “alienation of affection” law “evolved from common law under which women were classed as property of their husbands.  As property, they were something that could be “stolen.”

Can you bring an alienation of affection lawsuit in Canada?

The Ontario Court of appeal considered the law of alienation of affection in 1960 in the case of Kungl v. Schiefer.  The case was subsequently appealed to the Supreme Court of Canada in 1962.  In that case, Canada’s highest court confirmed that there were no damages to be awarded for alienation of affection.

The Supreme Court of Canada reconsidered their decision in case of Frame v. Smith In that case, the Court upheld that there was no separate cause of action for alienation of affection and that such domestic matters lie outside of the scope of the law altogether.

What about in other places?

In some jurisdictions, you can successfully bring an alienation of affection lawsuit.  In North Carolina, for example, courts have awarded 5.8 million dollars in damages to a wife who sued her best friend (who also turned out to be her husband’s mistress).  

Divorce: google my divorce

Often when people are faced with a question the first place they go is google for a quick, easy and accurate answer.

For example…if I am looking for a great all you can eat sushi restaurant in Vancouver, a movie time, or a good month of year to travel to Hawaii…I would google it.

So can family law questions be answered as easily through google?

The answer is generally no… you should not google your divorce questions for answers – the information that comes up is often inaccurate, not relevant to your jurisdiction, and/or just not good advice!

For example, if I google “separation” one of the first results that comes up is a website about the procedure for getting a legal separation in Canada.  The problem is, the information this website gives is not correct – it does not explain the fact that there is no “legal separation” you can file for British Columbia/Canada.

Another example, if I googled “how do I win my divorce”, a number of advice websites come up.  One website, states:

Do not assume your husband will be fair, divorce is war and you must be prepared for battle…

This might not be the best mindset to get into when you are preparing for a divorce.

It is important to be fully informed, confident and empowered…the best way to do this, to prepare for battle (or an amicable parting of ways), is not to make assumptions about how [poorly] your spouse will act, it is to inform yourself about the law and become aware of your rights and what a reasonable outcome is.

Luckily, in British Columbia and Canada, there are lots of easy to use, accurate and free websites on the internet that can help you understand your family law matters.

Resources you can refer to for reliable information, include:

General Family Law Information:

Child Support Information:
Spousal Support Information:
Procedural Information:

Remember, consulting with a website is not a substitute for legal advice from a lawyer who practices in the area of family law – but it does give you an idea of what issues you should be looking for and what you can expect.

 

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.

Divorce: whose fault? who cares?

A recent court decision in the United Kingdom commented on the fault-based divorce regime currently  in place (there are calls to bring an end to the fault based divorce system in the United Kingdom).  As reported in the Daily Mail:

Senior judges yesterday renewed calls for no-fault divorces, as they attacked current laws as vastly outdated.

At present, couples can be legally parted within six months if one party is shown to be at fault.

The most common grounds are unreasonable behaviour, which can include committing adultery or devoting too much time to one’s career.

Leading family court judge Sir Nicholas Wall said: ‘I am a strong believer in marriage. But I see no good arguments against no-fault divorce.’

In the United Kingdom you can get a divorce if your marriage has broken down irretrievably.  As summarized in a blog by Family Law in Partnership LLP:

 In order to prove that the marrigae has broken down irretrievably you have to prove that one of the following facts is true:

  • adultery by your spouse
  • unreasonable behaviour by your spouse
  • desertion by your spouse for a period of at least two years
  • two years’ separation, if you both agree to the divorce
  • five years’ separation, if there is no agreement to the divorce

The fault based system in the United Kingdom does not usually extend to impact the division of property, calculation of support or determination of custody (NOTE – I welcome comments from UK lawyers for clarification of this law or greater detail!).

But what about in Canada?

In Canada we have a “no fault” divorce system.

Under Section 8 of the Divorce Act, there are three grounds upon which you can apply for a divorce:

  • Your spouse committed adultery;
  • Your spouse was cruel to you; or
  • You and your spouse have been living “separate and apart” for a year.

Although there are two fault based options in Canada (adultery and cruelty) all you have to do to get a divorce in Canada is live separate and apart from your spouse for one year (you can even live “separate and apart” in the same house!).  Neither of the spouses has to do anything “wrong” in Canada to have a divorce finalized.

Most divorces, from my experience, proceed on the grounds of living separate and apart for a year.  It is often inconvenient to have an affidavit of adultery sworn by the person who committed the adultery.  Without an affidavit sworn by the adulterous spouse, admitting to the adultery, “the standard of proof in divorce actions is the same as in other civil actions, that is, the court must be satisfied on that the adultery has been committed, based on a preponderance of probability…” as stated in Adolph v. Adolph (1964), 51 W.W.R. 42.

For example, finding your spouses’ underwear somewhere they should not be is generally not going to be sufficient evidence to satisfy the court that a divorce should be granted  (in British Columbia, Addison could probably not get a divorce granted on giving evidence of what she found in her husband’s pocket) – she would need more evidence than JUST the underwear:

The “no fault” system in Canada means,  not only that neither spouse has to be “at fault” to process the divorce, it also means that if a spouse behaved poorly (for example they had a Tiger Woods “esque” series of relationships) it is not to prejudice them in the rest of the divorce proceedings (for example in determining custody, access, support or property division).

Spousal misconduct is specifically addressed in the Divorce Act. For example, the provisions of the Divorce Act state in Section 15.2(5):

In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

The Supreme Court of Canada Decision Leskun v. Leskun considered the conduct (infidelity) of a husband and how it impacted a wife’s ability to become self sufficient.  While the court found that “misconduct, as such, is off the table as a relevant consideration”, it also acknoweldged that there is a fine line between misconduct and the resulting impact of the misconduct:

There is, of course, a distinction between the emotional consequences of misconduct and the misconduct itself.  The consequences are not rendered irrelevant because of their genesis in the other spouse’s misconduct.  If, for example, spousal abuse triggered a depression so serious as to make a claimant spouse unemployable, the consequences of the misconduct would be highly relevant (as here) to the factors which must be considered in determining the right to support, its duration and its amount.  The policy of the 1985 Act however, is to focus on the consequences of the spousal misconduct not the attribution of fault.

The matter of conduct is a slipery slope.  For example, while you generally cannot be blamed for having an affair, your poor conduct or failure to tell the truth could be viewed by the court as indicative of your overall credibility.