REMOVAL OF THE JUDGE RECUSAL MOTION- REASONABLE APPREHENSION BIAS

Date: 14 Jan, 2020

On rare occasions, one can remove the presiding judge if one can show that the judge is displaying bias in the hearing before them or for some other reason is not objective. One should look at the decision of Justice Paull of the Ontario Court of Justice in CAS Oxford v. EMT, a 2019 decision. In that case, Justice Paull reviewed all of the law in this area, which begins with the Supreme Court of Canada decision in R v. S, a 1997 decision and the Committee for Justice of Liberty v. Canada, a 1976 Supreme Court of Canada decision. The courts had held “the apprehension of bias must be a reasonable one held by reasonable and right minded persons applying themselves to the question and obtaining thereon the required information. The test is what would an informed person viewing the matter realistically and practicality…. and having thought the matter through conclude. The presence or absence of an apprehension of bias is evaluated through the eyes of a reasonable, informed practical and realistic person.

The Ontario Court of Appeal also weighed in Bailey vs. Barbour in 2012. It requires a high threshold of evidence when a party seeks a recusal i.e. the disqualification of a judge. Allegations of judicial bias will have to overcome a strong presumption of judicial impartiality.

Rarely attempted and even more rarely accomplished.

SEVERING JOINT TENANCY

Date: 14 Jan, 2020

In an earlier blog, we canvassed the difference between joint tenancy and tenants in common. We concluded that blog with the question; what if the intention of one of the owners of the real estate changes their mind, and no longer wishes there to be an automatic right of survivorship.

How this is done is an area has been canvassed by many judges over many years in many jurisdictions. Justice Reid in 2019 in the decision of Marley vs. Salga reviewed the law on this issue. Quite frankly, the facts are so exotic and specific they do not justify repeating. (well I do anyone but very briefly below). However, the author does recommend the case as being an excellent summary of the law on this complex area.

The leading case in Ontario on severing a joint tenancy is Hansen² 2012 Ontario Court of Appeal. It reinforced the laws English roots arising from the famous 1864 decision of Williams vs. Hensman which sets out three methods by which a joint tenancy can be severed. One example is anyone of the persons operating upon his own share may cause a severance as to that share. Such an owner always has the right to sever their interest from the joint tenancy and end of course at the same time their own right of survivorship. Secondly, a joint tenancy may be severed by mutual agreement. The third alternative is there may be a severance by any course of dealing sufficiently clear that the interest of all were mutually treated as constituting a tenancy in common. There must be an express acts of severance, it is not suffice to rely on an intention or a declaration behind the backs of the other person’s interest. Chief Justice Winkler in the Hensman decision in essence reduced it down to the three rules:

  1. Unilaterally acting on one’s own share such as selling or encumbering it.
  2. A mutual agreement between the co-owners to sever the joint tenancy.
  3. Any course of dealing sufficient to prove that the interest of all were mutually treated as constituting a tenancy in common.

It is the last that is the most indefinite and gives rise to litigation. The normal method of severing a joint tenancy, which is definitive, is simply to convey one’s own interest to oneself. This does not require a consent of any other interested party and clearly meets rule number one set out above.

In the unique facts of the Marley vs. Salga decision, the deceased had made survivorship provisions in his Will, but that was not sufficient. More importantly, was a recorded conversation at the hospital of the parties involved in which the severance was discussed and in that unusual fact situation, the survivor appeared to agree with the abandonment of the right of survivorship.

There is great controversy over whether or not the decision is correct and nonetheless this was the decision. The case should be looked upon not so much as a precedent based upon its particular facts, but as a review once again of the important law of what it takes to sever a joint tenancy.

What is the risk if one fails to sever a joint tenancy upon separation? At times, a simple commencement of a court action has been determined to be a dealing which negates the joint tenancy. But any prudent lawyer would advise if one no longer wished the automatic right of survivorship to take place and they are willing to abandon their own potential benefit of the right of survivorship to take active steps and to sever the joint tenancy. As stated earlier, this can be done as simply as transferring one’s interest in the property onto themselves.

IT’S A GIFT IDIOT

Date: 12 Dec, 2019

The Ontario Court of Appeal recently opinioned in the decision of Rados² on parental gifts and loans. See our blog titled “Loans from Parents”.

One principle for all to recognize is that when your parents give you money that is not spent upon acquiring a matrimonial home or comingled with your now estranged spouse, simply treat the money as a gift and it is a 100% exclusion under the Family Law Act. You do not have to share it with your estranged spouse. Do not argue that it is a loan for reasons canvassed in another blog. If the money is transferred from parent to child and invested in the matrimonial home such as by reducing an outstanding mortgage, then the loan issue can be re-examined.

BIFURCATION, PLAIN ENGLISH? SETTING ASIDE A DOMESTIC CONTRACT

Date: 12 Dec, 2019

The Court of Appeal on a number of occasions as well as Trial Judges at most opportunities speak of the importance of plain language both in the written material presented before it and in their own decisions. However, human beings are loathed to waste the wealth of the English language in which magical words convey a meaning in a distinct and elegant fashion.

Exhibit A, the word “Bifurcation”. Bifurcation is a fancy term for a two-step process. It may appear esoteric, but it is a phrase and process that frequently arises in family law. One prime example is a disgruntled party trying to set aside the terms of an earlier signed Separation Agreement or Domestic Contract. The evidence and test for setting aside such an agreement is very different from the evidence and issues that need to be examined should setting aside be successful so that the court can largely start afresh. Starting afresh often infers looking anew at the financial evidence or other facts that need to be weighed before a new decision can be made. Often the party resisting an effort to set aside a previous agreement argues that bifurcation should apply as that will save the court a great deal of time and effort not to mention concealing private information that can remain private should the existing agreement stand. This has been discussed in a number of cases, including Cohen² a 2019 decision of Justice Oudete of the Ontario Superior Court, which examines Section 56 (4) of the Family Law Act which in turn harkens back to the LeVan² 2008 Ontario Court of Appeal decision.

LeVan stands for a number of propositions, including the importance of full financial disclosure and a lack of undue pressure.

That case dealt with a marriage contract and as this author has stated more than once, the greatest protector against setting aside an agreement is that it was fair in the first place. The court looks at a number of factors, including true independent legal advice; was the party seeking to set aside the agreement represented by an experience family law lawyer? One must also look to the importance of the Supreme Court of Canada decision in Hryniak v. Mauldin.

In Ontario it is Rule 12 (5) of the Family Law Rules that permits the court to bifurcate a case. That in turn takes us back to the Simioni² 2009 decision. For bifurcation to take place, the court is to examine the following issues.

  • Are the issues for the court relatively straight forward and the extent to which the issues proposed for the first trial are intertwined with those that will arise in the second?
  • Whether a decision from the first trial will likely put an end to the action or significantly narrow remaining issues or will significantly increase the likelihood of settlement?
  • Where resources have already been devoted to all issues.
  • Where bifurcation would cause any delay.
  • Advantages prejudiced if bifurcated.
  • Whether the severance is sought on consent or over the objections of one or more parties.

Justice Julie Oudete in Cohen² once again gives an exhausted review of the law when bifurcation is sought and the question of interim temporary spousal support is involved. An important decision whenever the question of bifurcation is on the horizon.

Arbitration – Pros and Cons

Date: 12 Dec, 2019

A helpful alternative to court may be mediation and/or arbitration.  We have canvassed mediation in another blog.  Arbitration requires the written agreement of the parties to have their matters decided by an independent third party chosen by the parties themselves.  Unlike judges in which one has no influence on their selection, the parties directly chose by mutual agreement who will decide their matter.  Also, arbitration can be faster, cheaper and if no appeal is ever launched, completely confidential.  Arbitrators in the family/estate litigation law field are generally highly experienced family/estate litigation law lawyers or retired judges, whom the parties’ lawyers have a great deal of faith in being able to grasp complex issues and deal with matters in a fair fashion. 

However, as in all choices in life, there are negatives that one must be aware of.  For arbitration to be binding, all the formalities under the Arbitration Act, including certificates of independent legal advice, must be fulfilled or arbitration cannot proceed. 

In arbitration, the arbitrators’ jurisdiction is completely limited within the four corners of the arbitration agreement.  The appeal process must be specifically laid out. 

A critical component of deciding a family/estate litigation law case is the necessity of complete financial disclosure.  Arbitrators do not have the ability to order third parties such as banks to release information unlike the authority granted to judges.  Another issue is the enforcement of an arbitration award.  The arbitrator has no ability to find a party in contempt and impose the penalties that such a finding makes available in the court system.  If there is an appeal, then all of the confidentially is lost. 

It is not uncommon to find separation agreements that simply indicate that in the event of a future dispute, such disputes must be resolved by way of arbitration.  These are actually not binding as for an arbitration to proceed, all the various formalities under the Arbitration Act must completed.  That includes the signing of a certificate of independent legal advice for each party.  As long as that is missing, the arbitration cannot proceed. 

It is an alternate solution, but one in which the pros and cons must be laid out before a decision to participate can be made. 

SUPPORT DEAD OR ALIVE

Date: 12 Dec, 2019

One’s entitlement to support from an estranged spouse or common law partner is governed either by the Divorce Act or the Family Law Act. After death, a dependent that has not been properly looked after by the deceased in their Will may bring an application for dependent relief under the Succession Law Reform Act. In most circumstances, if a party is a dependent of a deceased that failed to make such a provision, they may commence an action under the Succession Law Reform Act for dependency relief. One cannot contract out of that obligation unlike the right to receive spousal support under both the Divorce Act and the Family Law Act.

The courts have held on a number of occasions the purpose of a dependent support order under the Succession Law Reform Act is significantly different than the purpose of a spousal support order under the Divorce Act. One needs to start with the decision in Cummings² a 2004 decision of the Ontario Court of Appeal and the decision in Phillips- Renwick vs. Renwick Estate a 2003 trial decision of the Ontario Superior Court of Justice.

While support if bared under a valid agreement can be waived one cannot contract out of the entitlement to dependent relief under the Succession Law Reform Act.

WHAT TO DO IN THE FACE OF A DENIAL OF ACCESS #2

Date: 21 Nov, 2019

Another example of the incredible difficulty of the Court managing access in the face of one or both difficult parents is outlined in the case of Elliott vs. Filipova.  In this Superior Court decision by Justice Abrahams, the relationship between the parents of two children aged 8 and 10 had deteriorated into complete chaos.  The children lived with the mother and the father desperately tried to get access in the face of the mother’s open hostility, not only towards the father but any Orders made by the Court.  Irrespective of the Orders that had been made, the mother found some methodology by which to frustrate the father’s access.  Justice Abrahams notes exposure to conflict has been called the single most damaging factor for children in the face of divorce.  The mother’s behaviour became so bad that the father sought a change in custody based upon the mother’s inability to foster a positive relationship with both parents.  The mother’s lack of respect and the level of hostility that she showed to the father was such that the Court felt that it’s “visceral response would be to Order a change in custody based solely on the conduct of the mother”.  However, that is not the test but rather what is in the best interest of the children.  Justice Abrahams warned the mother repeatedly that he was close to making such a change and he adjourned the father’s motion seeking a change in temporary custody on very strict terms.  The Judge admonished the mother by warning her that failure to abide by any of the conditions he was now placing upon ongoing access and residence of the child on the part of the mother, may very well lead to such a temporary change in custody.  One of the children had their own mental health issues and a change in custody would have moved the children from Brockville to Ottawa.  Will the mother look at this as a warning bell to be heeded or will she continue to ignore yet another Order of the Court blinded by her hatred towards the father. Again, evidence of the difficulty in managing human contact by the judicial system

WHAT TO DO IN THE FACE OF A DENIAL OF ACCESS

Date: 21 Nov, 2019

This author has opined on numerous occasions about situations in which access is not being encouraged and facilitated between separated spouses.  More often than not it leads back to mental health difficulties on the part of at least one of the contestants.  In the decision of Justice Trimble, in Janowski vs. Zebrowski, the judge had clear evidence that the mother had repeatedly disobeyed Court Orders with respect to access.  She had put forward that it was detrimental to the child to see the father and had proffered evidence from a therapist.  The Court looked at the therapist’s evidence with considerable skepticism for various reasons. 

The Court reviewed the numerous recent decisions on the issue of contempt in the family law area.  These principles are set out Haywood², Stuyt², Geremia vs. Harb and Godard².  In the last decision, the Ontario Court of Appeal stated that a parent’s obligation is do what is reasonable and necessary and to actively require the child to comply with the Order for access by exhortation and the threat of execution of discipline.   Reasoning with a child is insufficient and is a breach of the access Order.  There is a positive obligation to ensure that a child complies with the Order.

However, what the Court giveth it taketh with the other hand.  The Court of Appeal in Ruffolo vs. David, a 2019 decision of the Ontario Court of Appeal, found that the Courts contempt powers are exceptional and are rarely to be applied.  Justice Trimble resorted to a common judicial tactic of giving the mother yet again one more firm warning and made a very detailed access Order.  Justice Trimble warned the mother that if the access Order was not followed, then in the absence of the mother’s cooperation, the matter could immediately be brought back before Justice Trimble.  Justice Trimble also sought further information from the Children’s Aid Society and the Police. 

This decision is another example of the almost impossible inability of the court to deal with humans unlike their money.  The Court is very good at moving money from one party to another, but controlling human behaviour is far more challenging and at times impossible. 

ACCESS DIFFICULTIES – WHEN THE CHILD REFUSES TO SEE A PARENT

Date: 21 Nov, 2019

In an earlier blog, we examined the important decision of the Ontario Court of Appeal in A.M. vs. C.H.  If our readers will recall, a mother ensured that her 14 year old son was alienated from and refused to have a relationship with his father.  Her behaviour was so outrageous that the Court removed the child from the mother, placed the child in the father’s custody in order that the child attend therapy.  However, as is evidenced of the limited ability of the judicial system to manage human behaviour rather than monetary affairs, the 14 year old child thumbed his nose at the Courts.  Since the order changing the child’s residence to the father all hell had broken loose.  Both parties filed fresh evidence before the court.  The mother breached the Court Orders and the Police had become involved.  The child assaulted his father, the child’s friend assaulted the father, the child ran away and the Police became heavily involved in the matter.  Finally, the child was arrested and as a condition of his bail he was required to have no contact with his father.  The child was then placed in a foster home that he refused to attend.  The child then became involved in a robbery in which he was assaulted and required surgery.  As the child was approaching his 15th birthday, the Court of Appeal felt that the more appropriate venue for dealing with this matter was a Trial Judge of the Superior Court.  An absolute horrendous mess and more than once this author has seen parents have been given no alternative but to abandon their relationship with their own flesh and blood in the hope that as time evolves, they will see the errors of their ways and once they become adults, will indeed wish to reestablish a relationship with the parent from whom they had been so alienated.  

The parent authoring the alienation rarely appreciates the consequences of their behaviour and selfishly takes pleasure in their hollow victory in punishing the other parent by weaponizing the child.  Again, evidence of mental health concerns being present in custodial fights. 

However in A.M. v. C.H., the critical dynamic may very well be the age of the son (14).  In our own office after a difficult fight we were successful in almost these very same circumstances (if anything even more horrific) in moving two children aged 5 and 10 from mother to father.   The children 5 years later are still with their father and are doing relatively well.   

ACCESS ORDERS – WHEN THE 16 YEAR OLD GIVES THE FINGER TO THE COURT

Date: 21 Nov, 2019

The Ontario Court of Appeal has been extremely busy in 2019 dealing with the problem of what to do with teenage children who do not want to abide by