http://www.advocatedaily.com/jennifer-samara-shuber-legal-costs-available-for-self-reps-in-family-litigation.html

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The husband argued that wife did not contribute at all to the purchase or maintenance of the property.  He claimed that he had only put the property in joint names for estate planning purposes, so that the wife would get the property by right of survivorship if the husband pre-deceased her.  When their relationship broke down, the husband took the position that a resulting trust applied i.e. that the wife was holding her share of the property in trust for him, such that the entire property properly belonged to him.  The wife argued that the husband had made a gift of one half of the property to her.

It is the husband’s intention at the time of purchase that is relevant in this case.  The court held that the fact that the husband’s Will and estate plan at the time of purchase treated the property as a joint asset was significant and sufficient evidence to conclude that he had made a gift to the wife of one half of the property.

How could this fight have been avoided? Simple.  The parties should have entered into a cohabitation agreement to address with how the property would be treated in the event of relationship breakdown.  The contract would have determined how the property would be divided in the event of the parties’ separation or in the case of a death.  Instead of paying minimal legal fees up front for a contract, these parties paid significant legal fees in order to litigate the issue after the fact.

The post Title Trumps: The Effect of Placing a Property in Joint Tenancy appeared first on Toronto Family Law Blog Canada.

We opened our case yesterday.  The judge is hard to read, nodding and listening and taking careful notes, but poker faced throughout.  Not sure if that is better or worse than a judge whose face can be read like a book.  We have all been in front of those kinds of judges – the ones who huff and shake their heads and even glare.  Nothing like that here.  Inscrutable.

We took our financial expert on the value of the family business next.  He was taken out of turn (normally we would have called out client first) because yesterday was the only day he was available.  He is booked the rest of the week on other matters in other cities.  Popular guy.  I can see why.  His evidence was clear, understandable to the lay person and even somewhat entertaining – yes accounting evidence was entertaining.  I swear.  His evidence went in beautifully.  He even managed to score some points when cross-examined, raising obvious and incontrovertible errors in the other side’s calculations.  A good morning.

We came back after lunch for the examination in chief of our client.  She was a little nervous and had to be directed a little bit (all within what is allowed, of course). She wove the tale of her life: meeting her husband and falling in love, having and raising the kid, the heartbreak of her husband’s affair.   She told a compelling tale of financial hardship following separation, and her efforts to earn money for herself and the children.  And she did not use her “go to” expressions “well, the truth is….” even once.  Hurray and nice job.

We broke at 4:15 for the day.  Went back to the hotel to catch up with the office and other clients.  Had dinner at a local Italian eatery with a nice glass of red.  Back at the hotel to prep for today.  Checked in at home and spoke to my son.  Briefly.  Not a big phone talker, my 12 year old.

This morning our client will be cross-examined.  We have advised her of the areas we think will be covered.  She is ready, we hope.  She has been reminded that the other lawyer is not the enemy – he is just doing his job.  Don’t fight with him or try to get the last word.  Just answer his questions as succinctly as possible.  Less is more on cross-exam.  She is anxious about it, but I have no doubt she will do well.  It is easy to be questioned when you are telling the truth.

I was getting ready for bed last night around 10:30 when the front desk clerk buzzed.  The other side had delivered four volumes of materials for the trial and did I want her to bring them up?  Did I want her to bring them up? NO! But did I ask her to – yes.  And then spent the next hour and a half going through hundreds of pages of documents – some old and familiar and some brand new.  Tip to junior counsel: this is not the way to run a trial.  Our briefs were compiled and served last week, as they should be.  Trial by ambush should be a thing of the past.  We will deal with the late delivery and the new materials at the opening of the trial this morning.  Not cool.

I am off to dress in my silly get up of court vest, collar shirt with tabs and robe.  I like the civility of the ensemble, but it lacks comfort and, dare I say, breathability.  Good thing it is fall.

The post Family Law Trials Part II: Day Two appeared first on Toronto Family Law Blog Canada.

How do you get to trial? Prepare, prepare, prepare.

I am a week away from a family law trial. I am busy preparing: compiling briefs of all of the material that has to be served and filed, culling all of the documents I want to rely on, running arrears and support calculations, meeting with witnesses to prepare them to testify… It takes a lot of work to make it look effortless (hopefully) when I am finally on my feet before the judge. I am becoming somewhat of an expert on the value of commercial real estate as well as the valuation of rental properties. I am reviewing the rules of evidence and trial process.  I am working hard.  This is what I went to school for.

The trial is out of town, so I will be packing up my office and heading to the Best Western for the week. That adds a whole other layer of preparation for the trial: do I have a portable printer, can I log onto the legal research site from out of the office, do I have enough paper, pens, post-its and what is a continental breakfast?

While I am preparing for trial, I am also trying valiantly to settle the case. Family law trials are expensive and tough on the participants, as well as their children. Trials should be avoided at all costs. But sometimes, in cases like this one, the case must be litigated.  Sadly, there is one party who will not accept the writing on the wall. Someone who wants things their way or the highway. Someone who wants their day in court and will accept nothing short of a ruling from a judge. Settlement efforts have failed.  One hand clapping doesn’t work.  Although we are managing to narrow the trial issues and resolve some of the lesser disputes, this matter will be before a judge next week. And so I go on, and prepare as cost-effectively and efficiently as possible for my client.

Litigation is usually a win-lose proposition.  Both sides go into a trial thinking they will win.  But there is only one victor.  Oftentimes, that means both lose.  Or, as a senior lawyer once told me, if the parties are equally unhappy with the outcome, then it is the right outcome.  There will be a lot of money spent to address issues that the judge is no better able to resolve than counsel as there is a limited range of reasonable outcomes.  There will be court time wasted and time taken away from the family. Sadly, for these parties, this is how it must be.

Hopefully, we proceed Monday.  This case has been scheduled for trial twice before and put off both times.  More time and money wasted.  I hope for a quick trial and speedy decision for my client. The parties separated 8 years ago.  She just wants to get on with her life.  It is about time.

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