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

High Conflict Parenting: Must Read Case

Each weekend I like to review the recently reported decisions from British Columbia and Alberta. They are available online at the Supreme Court of British Columbia website and the Alberta Court of Queen’s Bench website (via CanLII).

This Saturday (while I was getting my hair done) I came across a “must-read” decision of the Honourable Madam Justice D. L. Pentelechuck from the Alberta Court of Queen’s Bench: A.J.U. and G.S.U. (2015 ABQB 6) (“AJU”) (NOTE/CAUTION: People do laugh at me when I come into the salon with a stack of recent court decisions and highlighters).

The AJU decision “offers an opportunity to consider the role that Court-appointed Parenting Experts play in the determination of the best interest of children, and the evidentiary standard to which the parties should be held in a custody dispute.” (paragraph 3).

In the AJU case, Justice Pentelechuck considers a situation where the father sought sole custody of the parties’ two daughters and the court appointed parenting specialist supported his claim in an assessment report which recommended that the father have sole custody of the children. At first blush this might seem like a strong case for the father – his position is supported by an expert.

From my perspective, this case is an illustration of the importance of critical and objective review of the evidence and allegations put forward in parenting disputes. In this case, while the father initially may appear to have a strong case (supported by an expert report), throughout the trial, counsel for the mother, Renee R. Cochard Q.C., illustrated – both by objective evidence and cross examination of the parenting expert and father – that the report was flawed and the criticisms of the father towards the mother’s parenting time were without merit. This written decision highlights the importance of (both counsel and the parties) carefully reviewing the evidence and allegations forwarded in parenting disputes. Ms. Cochard’s successful cross examination of the Parenting Expert diminished the persuasive value of the expert report that was before the court.

By way of example the father “takes issue with [the mother’s] purchase of a trampoline, and also objects to the girls’ participation in horseback riding, and tubing down the Pembina River with their mother.”
The Justice did not find validity to this concern and noted that “The Trampoline in question is an 18” high “Dora the Explorer” trampoline” (paragraph 55) and “None of these complains, individually or collectively, have merit” (paragraph 57).

Further, in regard to the report of the Parenting Expert, the court noted: “First, the basis for her recommendations were seriously undermined during cross-examination” (Paragraph 96). For example, the Parenting Expert noted in her report that the children appeared to be getting sunburnt during the time she observed them, however, during cross examination the parenting expert “admits she did not confirm whether or not the girls actually suffered sunburn on that particular day” (Paragraph 97). Another example of the erosion of the validity of the expert report at trial was that the expert alleged that the mother did not follow-through on educational matters. However, cross examination exposed that the expert “did not see the educational centre [the mother] had in the basement.”

This case is a good read if you are going through a high conflict parenting dispute and there are expert reports and/or evidentiary issues. The court provides a review of expert evidence (starting at paragraph 132), hearsay evidence (starting at paragraph 135), illegally obtained evidence (starting at paragraph 151), and lay opinion evidence (starting at paragraph 170). Counsel, self-represented litigants and parties to parenting disputes will benefit from reading this case.


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.

Family Law: book reviewed

LOTS has been written about divorcing, breaking up, recovering and moving on.

"But where does Liz Lemon go when she's out on the town? The Barnes and Noble bathroom!" ~ Liz Lemon

I often browse the divorce books in Chapters, with a Starbucks, after my Sunday run, and before I head into the office.  Not all that many (read: not any) people are browsing in the divorce/relationship section in Chapters on Sunday mornings so I usually have it to myself (I feel somewhat like Liz Lemon).

It all started a few years ago when I was living in Edmonton.  The Starbucks in Chapters on Whyte Ave. was my favorite place to stop on my way to work at McGlashan and Mackinnon.

One cold Sunday I stopped in Chapters on my walk to work to warm up (from what I remember it was -30 out…it was probably only -7 but it seemed VERY cold).  I was stalling and delaying getting back into the cold and I stopped to pick up the book Divorce Sucks by Mary Jo Eustace (who I remember from What’s for Dinner with Ken Kostick).  It was pretty funny – I read most of the book that Sunday.

More recently (I now go to the Douglas Street store in Victoria) I noticed a book worth mentioning: The Breakup Bible: The Smart Woman’s Guide to Healing from a Breakup or Divorce by Rachel A. Sussman.  A summary can be found in the February 2012 issue of Chatelaine.

I enjoyed the Breakup Bible – it had some good strategies for coping with the breakdown of a relationship and practical information.

One strategy the book mentions is journaling (at page 11):

Journaling is a useful tool following a breakup or a divorce and I strongly recommend it.  It allows you to track yourself and your relationship in a very meaningful way.  It will help create clarity and personal development.  It will improve your self-awareness and self-knowledge.  It will also reduce stress and obsessive thinking; the simple act of writing something down clears your head and reduces the tendency to fixate.

In regard to strategies for dealing with breakup and for moving on, it is important to think of the legal repercussions that some activities could have.

For example, a caution I have about journaling as a strategy for stress management is that if your journal entries are relevant and material to the matters in dispute in your family law proceeding (or any litigation for that matter), they could be used in court (and your former spouse could seek an order compelling you to produce your diary for use in court – even if you do not want to produce it).

In one case, the court considered entries in the diaries of both a husband and a wife.  When evaluating the content of the diaries for the purposes of the litigation, the court stated:

In my opinion diaries can be helpful tools if a person wishes to record the events of the day or week, and their feelings about those events, both positive and negative.  I accept that it can be therapeutic for a person to be recording their feelings about something for the purpose of sorting out those feelings and then putting them aside to move on, especially if these feelings are a source of frustration or anger or depression.

However, in my view, there is a fine line between using a diary to record feelings, both good and bad, for therapeutic reasons, and using a diary to record negative feelings as a method of dwelling on those feelings.  There is nothing therapeutic about using a diary to constantly lash out at your former spouse.

This is how I read the mother’s diary.  It contains an abundance of negative comments about her ex-husband.  It is completely unreliable as a record of current events and as a record of true statements that the children have made to her about their father.  It is not even chronological.  It appears to me that the mother probably sets aside a certain amount of time per day so that she can record in her diary all of the negative things that she can possibly say about her ex-husband, even if these negative comments are about incidents that happened months earlier.

Even where the diary may record actual comments of the children, I doubt if they are exact comments as opposed to the mother’s interpretation put on their comments.  Sometimes it is difficult to even tell if the children have made the comments or if they are the mother’s own comments of her attitude toward her ex-husband.

The diary indicates to me that the mother is obsessed with damning her ex-husband as much as possible, either because of the attitude she perceives he is showing towards her, or because this somehow makes her feel better about herself.

If you are going to journal, think about what you are writing and exercise some discretion before putting all of your thoughts to paper.

NOTE – the Breakup Bible focuses on women getting over relationships.  If you are looking for a book aimed at both women and men getting over breakups I would recommend Getting Past your Breakup by Susan J. Elliot.