Libel and Slander

Libel and Slander
Date: 21 Oct, 2021

It is more often than not that ugly allegations of misconduct are thrown between divorcing parties. Courts are used to these mudslinging matches which are generally given little weight unless particularly on point. Also, the usual place to launch such verbal attacks is within the four corners of the lawsuit. While a judge may penalize the more morally outrageous and unsubstantiated allegations so long as they are within the four corners of the lawsuit they are privileged and not capable of being the foundation of a libel and slander action.

However, when one steps outside the courtroom and into the minefield of social media, by repeating those allegations the dart thrower may be subject of a civil lawsuit of defamation.

Also complicating the court’s job are the provisions of Section 137.1 of the Courts of Justice Act, commonly referred to as anti-SLAPP provisions, which is an acronym that stands for strategic lawsuit against public participation. That section of the Act allows the defendant in a defamation lawsuit to have it dismissed on the basis that it will unduly eliminate or limit legitimate criticism about a matter of public interest. The concept is to encourage individuals to express themselves on matters of public interest and to discourage the use of litigation as a means of unduly limiting expression on matters of public interest.

In the recent June 11, 2021 decision of Justice Gomery in Smith v. Nagy, a divorce had descended into some very nasty and salacious allegations between the parties.

Husband and wife before they separated letter led a very sexual relationship, including performing in adult films and the production of avant-garde art work. After the separation, the wife posted via Facebook allegations that the husband had caused her to suffer post-traumatic stress disorder and that he had subjected her to sexual, psychological and emotional abuse. The post on Facebook was widely distributed and the husband outside of the family law lawsuit, countered by commencing a civil action for defamation. The wife moved to dismiss the husband’s civil lawsuit relying on both the SLAPP provisions and further claimed that her statements were true and constituted fair comment or are protected by a qualified privilege. Such a civil suit may very well be tried together with the divorce action. Justice Gomery dismissed the wife’s motion and permitted the defamation action to continue. The issues at point the court felt were particularly important. There appeared to be little doubt from reading the evidence provided by the husband in the motion that he had truly suffered significant financial and personal loss as a result of the wife’s Facebook posting.

Words of warning, 1. Stay within the court playground and 2. Once again social media is a two-edged sword and from this writer’s perspective, the benefit of its entire existence has yet to be established.

A COMMERCIAL APPROACH TO THEIR DOMESTIC ARRANGEMENTS PART 2

dale
Date: 20 Aug, 2021

The Presumption of Resulting Trust

Part 2 of 2

MY OBJECTION IS BASED ON A NUMBER OF GROUNDS

Clearly there is a moral to this story, which is if you do not want to find yourself swimming in shark infested waters, do your very best to ensure that there is something in writing and indeed as much as possible in writing to confirm who gets what in the event of a separation.  Everyone enters into a domestic arrangement based upon an expectation of permanence.  But no one is blind to the fact that this is almost as likely not to occur as succeeding.  At the very least, the lawyer acting for the two gentlemen when they bought their home should have made sure that the real estate lawyers reporting letter to them confirmed what was the intention between the two of them should they go their separate ways.  In an ideal world, a formal domestic contract should have been prepared.  It is this writers’ experience this rarely occurs at the start of a first relationship unless a parent insists upon one before they will hand over any money.  At the very least, if one is facing such a situation, speak to a lawyer who has knowledge of these matters for some guidance.  This decision is relevant both in Family Law, and Wills and Estates. In this case, we had the two men able to give their own evidence as to what their intentions and expectations were.   Imagine the dramatic increase of difficulty in proving intention when one of the parties is dead and their estate and executors are attempting to prove the presence or absence of the intention to gift.

What the court is doing is permitting the parties to be lazy and not attend to obvious difficulties at the outset of their relationship.  They should have been alerted simply by virtue of the fact that they were contributing wildly different amounts towards the price of the home.  Surely the psychiatrist, a highly educated individual should have thought as he poured over the years a half a million dollars into a property that there should have been some contract that protected him in the event that he and his partner separated. The court by permitting an after-the-fact rule of equities, such as the presumption, simply encourages litigation, uncertainty and societal difficulty.  We are referring to a 33 year relationship.  If the Court of Appeal asks that one considers the intention of the psychiatrist when he advanced the money, it is not fair to just ask is this a gift or is this a loan?  The question might very well have put to him should be….”If this relationship lasts less than 3 years is this a gift or a loan?”    What if the question is “What is your intention if this relationship lasts 33 years?”   From that perspective, the length of the relationship in this author’s humble opinion was indeed a relevant question, which was answered by the trial judge. The situation is very different if the parties were of unequal bargaining positions.  However, in this case, the party with more money and potentially more education and a greater degree of sophistication was the party who is now alleging the loss. Sorry but the courts are simply enablers of people who are not looking after their affairs.

A COMMERCIAL APPROACH TO THEIR DOMESTIC ARRANGEMENTS PART 1

dale
Date: 20 Aug, 2021

The Presumption of Resulting Trust

Part 1 of 2

There are laws floating out there that are the equivalent of silent sharks ready to devour reasonable expectations.  One of those laws is the presumption of resulting trust.  In the recent Ontario Court of Appeal decision in MacIntyre v. Winter, the court permitted the shark to devour what a 33 year common law relationship had created.  The legal concept of the presumption of resulting trust has been discussed in other blog articles and I recommend them to the reader.  This law was not made by any legislature or parliament.  It was never debated publicly before a committee.  No political party ever campaigned on its existence.  It is entirely a judge made law stretching back many years.  However, this law is alive and well in Ontario.  The law was given a blood transfusion by the 2007 Supreme Court decision in Pecor v. Pecor.  Boiled down to its simplest meaning, the presumption of resulting trust holds the following.  Equity presumes bargains, not gifts.  In other words, the starting point is you get nothing for free even if you have been in a relationship for 33 years unless you can prove that it was a gift.

In the MacIntyre case, we have two men co-habiting for 33 years.  Both had some mental health issues although one was a high functioning psychiatrist.  The psychiatrist of course had greater financial means including financial assistance from his family.  The parties bought a succession of two houses, which were registered in both of their names as joint tenants. The concept of joint tenancy produces a right of survivorship upon the death of the first.  In other words, if your co-owner dies first, the house is all yours.  The psychiatrist contributed over the course of their relationship almost $500,000.00 more than his partner towards the purchase of these two homes.  Despite the fact that there was not a drop of evidence confirming either of the opposing positions of this common law couple, the Court of Appeal reversed the trial judge’s decision and found that the presumption of resulting trust did apply.  In essence, the court held that it was necessary for the trial judge to investigate the intention of the psychiatrist when he contributed more money towards the purchase of the two homes.  Did the psychiatrist intend to make a gift of that money to his then partner by registering the property in both names?  The court held that there was no evidence, nothing in writing, nothing independent to corroborate the position taken by either of the two men and then held that the shark would be allowed to bite.  In essence, the presumption of resulting trust was found to apply.  The court held that it should begin from a starting point that this was not a gift and that it was money that should be repaid to the psychiatrist in the event of a breakdown of the relationship.  This was despite the fact that indeed it was the intention of the psychiatrist that should he die first, that his partner would become the sole owner of the entire home.  The court held that there was no difficulty in splitting these two different intents.  Intending to grant a right of survivorship was deemed to be a separate intention from what would have occurred if the parties separated.

I am certain that other commentators will not have the same adverse reaction to the applicability of the presumption to a 33-year common law relationship.  The law would be very different had these people ever formally married.  There has been much conjecture that the law in Ontario will eventually change to erase the different property of common law and formally married partners.   The title of this blog article comes from a direct quote in the decision.  The very senior Justice Nordeimer writing for the Court of Appeal held the following;  “Our courts are strewn with cases where people in a relationship wound up in litigation because they did not take a commercial approach to their domestic arrangements from the outset”.  I find that statement heavy with irony and lacking in recognition of human emotion.  What could the psychiatrist have been thinking when he injected the majority of the money towards the purchase of two homes yet registered title in both names equally.

The court citing another decision of the Ontario Court of Appeal, MacName, held that it was the responsibility of the psychiatrist’s partner to prove that it was a gift, and to do so he needed to satisfy three conditions, which are:

  1. An intention to make a gift on the part of the donor with no consideration or expectation of renumeration.
  1. An acceptance of a gift by the donee.
  1. A sufficient act for delivery or transfer of the property to complete the transaction.

The court held, that there was no evidence either way, so the presumption applies.  The psychiatrist’s partner was ordered to re-pay the psychiatrist out  the sale proceeds of the home almost $500,000.00.   See part 2 of this blog for a further analysis.

The Common Law Reconciliation Rule – An Ancient Relic?

The Common Law Reconciliation Rule – An Ancient Relic?
Date: 06 Aug, 2021

By: Rebecca Rosenberg

An established common law principle (law made by judges) dictates that a separation agreement (a legal contract outlining how a couple will settle issues around their separation) becomes void if the parties reconcile. The idea behind this rule is that it doesn’t make sense to enforce an agreement if the very basis of it – a couple separating from each other – is no longer true.

At issue in Krebs v. Cote, 2021 ONCA 467 is whether this rule should be applied to cohabitation agreements – agreements between couples that allow them to share rights in each other’s property. The parties in Krebs started an on-again, off-again relationship in 2006. In late 2012 or early 2013, the two entered into a cohabitation agreement, subsequently marrying in 2014. The pair finally broke off their relationship in 2019 at which time the respondent sought to invalidate the agreement on the grounds that their 2014 reconciliation broke their contract.

The Ontario Court of Appeal (ONCA) decided that the common law rule does not apply to cohabitation agreements, meaning a reconciliation does not automatically disturb a legal contract.

In her reasoning, the Hon. Gladys I. Pardu wrote about the outdated beliefs that form the foundation of the common law principle. Pardu described the rule as “ancient” and reminiscent of times when living together while unmarried was considered a sin. Since modern marriage contracts are more complicated, Pardu emphasized that people should be encouraged to create agreements that outline their rights and obligations to their significant others.

However, the court did not go so far as to say that judges should always back a cohabitation agreement. Instead, courts must look to the parties’ intentions at the time they agreed to the contract, noting the surrounding circumstances of that particular partnership.

So, when deciding to share your property with someone else, remember to be clear about the terms you are agreeing to. Expressly stating your intentions in these types of familial contracts can help you avoid going to court in the future.

PLAY FAIR OR PAY THE PRICE

PLAY FAIR OR PAY THE PRICE
Date: 20 May, 2021

Our firm takes great pride in the accomplishments of a former partner, now the Honourable Justice Mr. Marvin Kurz of the Ontario Superior Court of Justice.

Marvin as he will be eternally known to us rendered a decision in the Dowdall case in November 2020.

The fact situation was one in which the wife after separation made a formal offer to settle the issue of her support in the amount of $3,800.00 per month for an eight-year period. The amount would not be subject to change regardless of any changes in the parties’ circumstances.

However, Ms. Dowdall had made her offer based upon the husband’s representation of his income.

Mr. Dowdall told his wife that his salary had been reduced by virtue of COVID-19 reductions at work to $150,000.00 per year. What he failed to tell his wife was that actually he had been offered a new position and that his income had increased in all likelihood to in excess of $300,000.00 per year. Mr. Dowdall took advantage of the outstanding offer to settle by the wife and accepted it. However, when he attempted to formalize this settlement acceptance, the wife objected.

She had not been told of the actual increase of Mr. Dowdall’s income in contrast to his representation to her that his income had been reduced. In essence, Mr. Dowdall was earning in all likelihood double that which he had told his wife.

Justice Kurz was not impressed and felt that the non-disclosure by Mr. Dowdall of his true income deprived her of the opportunity to withdraw her offer.

Pursuant to the spousal support advisory guidelines, Mr. Dowdall’s true income would have suggested support of double the amount that Mrs. Dowdall offered to settle her claim for.

Mr. Dowdall was not content to live by Justice Kurz’s decision and appealed to the Ontario Court of Appeal.

The Court of Appeal was not impressed and dismissed Mr. Dowdall’s application despite the fact that he was represented by prominent family law counsel.

The Court agreed that enforcing the settlement would be unfair and unreasonable and that Mr. Dowdall’s failure to disclose his true income sabotaged his motion. Courts are not inclined to interfere with settlements reached between parties so long as there has been full and frank disclosure and the opportunity to obtain independent legal advice. However in contrast, if there has been intentional and material non-disclosure, the Court is more than ready, willing and able to jump in and set aside the results of such disclosure.

Justice Kurz’s trial decision on the motion was vindicated by the Ontario Court of Appeal as it very well should have been.

Sad but true, the spouse whom no doubt you described as “my best friend and soul mate” at your wedding now has no monetary value to you.

Clearly the moral is disclosure is mandatory if you want the Court to help you even in the face of a lack of a corresponding effort.

Now my Machiavellian theory for a motion and appeal that seemed like a loser from day one. This is complete conjecture.

If the husband had been successful either at the motion or appeal he would potentially have saved himself 8 years of alimony at $7,600.00 per month vs. $3,800.00. The after tax spread roughly speaking might have been $182,000.00. He gambled and lost a guess of $75,000.00 in legal fees and costs.

Not certain those odds and the potential gain made sense. On the other hand, if after the offer had been accepted and the deal reached, and then for the first time the husband earned a significant salary increase, he would have been in the clear.

Disclosure in Family Law

Date: 25 Feb, 2021

It is a capital mistake to theorize before one has data. Insensibly, one begins to twist facts to suit theories, instead of theories to suit facts”. Sherlock Holmes

While spoken by the famous detective, one finds that proving the validity of claims in family law is no different. Whether you are alleging the misuse of funds, additional income of your spouse, or deficiencies in the ability to parent, evidence to support your claims is always required. Those who have started the family law process will have already been introduced to the all-encompassing term of disclosure, which in the most general of explanations amounts to supporting documents.

In family law, courts have held that fact finding or the exchange and discussion of disclosure should not be a battle. The reason is a practical one. Both sides need to provide full information about the issues before an informed decision can be made regarding a settlement, or before a judge can make a reasoned decision on the merits of the case.

In fact, the exchange of information should be marked by an orderly prompt request for disclosure with an organized and speedy reply. To be frank, exchanging information should not be a drawn-out game of hide and seek. It is expected that requests for information may narrow in scope or give rise to further requests as information is exchanged. Parties should be aware that failure to provide disclosure or supporting documents to support their own claims could have dire consequences on their own case as well as their ability to participate in the proceedings overall.

If parties do not submit to the initial request and obligation to be forthcoming regarding their documents and relevant information, a procedural Order for disclosure may be made. That is an issued Order from the court compelling the production of documents or information required to move the matter forward. Once an Order is made, parties may find themselves in breach if they continue to withhold documents and information.

Rule 1(8) of the Family Rules provides:

If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

  1. an order for costs;
  2. an order dismissing a claim;
  3. an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party;
  4. an order that all or part of a document that was required to be provided but was not, may not be used in the case;
  5. if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise;
  6. an order postponing the trial or any other step in the case; and
  7. on motion, a contempt order. O. Reg. 322/13, s. 1.

Some of the most common consequences for failure to disclose or respond to a request for disclosure include:

  • having adverse inferences drawn against you; or in the worst case,
  • having your pleadings or other court documents struck from the record.

This means that the court can draw an inference in favour of the person making the request if you fail to provide information that could prove otherwise. This could also result in an imputing of income or in the dismissal of claim, depending on the issues at bar. The later relief of striking pleadings or documents is generally reserved for extreme cases. However, parties should be aware that the court is extremely critical of refusal to provide disclosure. Justice Myers has opened a very intriguing discourse by asking just how many orders does a party get to breach on top of ignoring the primary objective that requires early, voluntary and compete disclosure without an order even being made? She went on to state in Roberts v. Roberts 2015 ONCA 450, that,

“It is not the remedy that should be exceptional. Rather, it is the continued existence of cases with parties who ignore their disclosure obligations that ought to be exceptional. The remedy will become exceptional when the Rules are followed and enforced as written and as interpreted, that is once cases with non-disclosure issues are exceptional, then the need to consider striking pleadings for non-disclosure will be exceptional.”

All in all, it is best practice to review requests made for disclosure, assess the significance to the claims and the ability of each party to gather same, and provide it as soon as possible lest one loses the ability to argue your case at all by having your pleading struck from the record.

In family law, standard requests include Notices of Assessments, Income Tax returns, and bank statements that support the figures outlined in your sworn financial statement. Depending on the complexity of your matter, your personal circumstances, and the issues arising from the breakdown of your relationship, there is likely a lot more disclosure that needs to be provided in order to allow both sides to present their cases in a fair manner.

To find out what disclosure is necessary and relevant to your matter, speak with a family law lawyer regarding your case.

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.