In Whidden and Ellwood, the parties’ nine year old daughter Taylor was the subject of a bitter custody dispute.  The matter was an “actively litigated” file.  Each parent blamed and considered the other parent a threat.  Justice Pazaratz makes his views on the subject absolutely clear: the most pervasive threat to Taylor’s well-being was “the extreme and unbridled conflict” between the parties, not the relative shortcomings of one or the other of her parents. “It’s a problem because parents delude themselves into thinking they’re doing this “for the sake of their daughter.  In reality Taylor doesn’t care who’s right or wrong. She doesn’t want to think of either of her parents as bad. She just wants them to stop fighting.”

Justice Pazaratz states that, when the parties separated, they could have and should have tried to work together, followed professional recommendations, obeyed court orders, and “tried to make this as painless as possible for their daughter. But instead they took a scorched earth approach.  They became consumed not just with winning, but with making sure the other party lost.”

Justice Pazaratz ponders: “Perhaps we are so intent on protecting parents’ rights, that we lose sight of children’s rights: the right of children to have somebody step in and make their parents stop fighting — once and for all.”

“High conflict parents exude negativity and tension.   If we in the courtroom can’t stand listening to these people act up – presumably while they’re on their best behaviour – can you imagine what it’s like for a child trapped living with that sort of hostility and resentment, 24 hours a day?  Angry parents always pretend they hide their feelings from their children. But I don’t believe it for a second. Judges regularly receive reports from professionals about how severely children are impacted by ongoing parental strife. And in this case, the cell phone videos flaunted by both parties clearly demonstrated that no effort is being made to shield Taylor from the hatefulness.  Family breakdown is tough on everyone. The pain is real. It takes time to recover.  But healing can’t occur while you’re still waging war in court.  That’s why – for the sake of the children – we need to find ways to reduce family tension, rather than fuel it.”

“When parents come to court genuinely seeking solutions, we should work tirelessly to help them. As long and as often as it takes. But we have a concurrent obligation — to taxpayers, and more importantly to the children of relentless litigators – to prevent embittered parents from abusing scarce judicial resources: We need to identify those parents who just come here to fight. And then do everything we can think of to deprive them of future opportunities to fight.

We need to anticipate – perhaps even presume – misconduct and non-compliance.

And then craft orders which leave parents with as few opportunities to misbehave as possible.”

“In short, sometimes we need to treat parents like children.”

Thank you Justice Pazaratz.  Truer words have never been spoken.

The post Judge Says Treat High Conflict Parents Like Children appeared first on Toronto Family Law Blog Canada.

These videos make me cringe.  My heart goes out to the child being filmed.  How must that feel? What message does it send? What can that parent be thinking? Well, it appears I am not alone in my concern.

In the November 2016 Whidden v Ellwood decision, Justice Pazaratz of the Ontario Superior Court of Justice takes cellphone videoing parents to task.  The case is worth a read, but the following are some of His Honour’s more pointed (and poignant) statements:

“They [parents who video] should stop pretending they’re assisting the court by assembling important evidence.”

“The obvious reality is that taking videos is a strategic act of aggression and escalation. The situation never improves when people pull out cameras. Usually it gets worse. Indeed, often that appears to be the intention.”

“Access exchanges in high conflict files are already tough enough for children. Pointing a camera – or multiple cameras – at the interaction merely heightens the child’s unease and worry that something bad is expected to happen. That someone they love is about to misbehave. That one parent is trying to get the other parent in trouble.”

“Videos recklessly and maliciously transform an ideally brief, benign transition into a horribly unhappy and frightening experience for the helpless child. The unpleasant confrontation may last only minutes. But the emotional devastation for the child can extend for hours, both before and after the exchange.”

“How do we stop this epidemic of smartphone nonsense in Family Court?

1. Presumably parents only take these videos because they think it will help them win their case. They think it will make the other parent look bad.
2. We need to make it clear to parents that taking videos is not likely to help you win your case. It’s more likely to backfire. To cause the judge to worry about your parental judgment.
3. Because taking videos raises doubts about how a loving and caring parent could be so insensitive as to place an innocent child in the middle of a needlessly inflamed and volatile situation.
4. What message is the videographer conveying to the child? “Look how bad your father is!” “I’m going to record this so everyone will see what a horrible mother you have!” “Be careful, the parent you love can’t be trusted!”
5. Perhaps the more cynical and prophetical message: “Showtime!”
6. Do children really need to receive such hurtful and destructive messages, at an already tragic time in their lives?
7. When parents routinely pull out their cameras, ready to “click” at the slightest false move — like gunslingers squaring off at the O.K. Corral – are they doing it out of love for a child? Or hate?
8. No matter what image they hope to record, it can’t be as harmful to the child as the fear and apprehension automatically instilled as soon as one parent points a camera at the other.”

And finally, the quotable Pazaratz:

“Perhaps we can borrow from social media to coin a term which suitably describes judicial disdain for this type of behaviour:

1. We’ve all heard of the “SELFIE”: A self-portrait, usually intended to make the subject look good.
2. How about a “SELFISHIE”: A parent taking a disturbing video to try win in court, oblivious to the emotional trauma they are inflicting on their child.”

In the case, not only did Justice Pazaratz refused to rely on any of the videos presented by the parties but the final order included a prohibition against the parties taking videos of each other in the future.  Well said and well done, Your Honour.

The post Stopping Cellphone Videoing in Custody Cases appeared first on Toronto Family Law Blog Canada.

Considering Canada’s aging population, the issue of retirement and its impact on spousal support is becoming of great interest to baby boomers.  Ms Fleishman suggests that recent developments in the law in the area of spousal support may throw a wrench into the retirement plans of many support payors. It used to be the case that, more often than not, payors who paid support for a number of years and were eligible for retirement qualified for a corresponding reduction in their support payments. That is no longer the case.

In two recent Divisional Court decisions, payors who had paid spousal support for number of years applied to have their payments reduced based upon retirement, which each argued was a “material change in circumstances”.  The Courts disagreed.  No reduction in support was granted since, in each particular case, retirement was not considered to be a material change in circumstances.

In Cossette, the Divisional Court reiterated that: “A support payor cannot choose to be voluntarily under-employed whether by retirement or otherwise and thereby avoid his or her spousal payment spousal support payment obligations.”  Cossette was the first Ontario appellate decision state that a payor with a support obligation to a spouse cannot just retire because s/he wants to retire. That is, the payor cannot just unilaterally decide to leave the workforce and, thereby, avoid his or her spousal support obligations.

The subsequent Divisional Court decision in Hickey v Princ extended the principle to consider not only the reasons for the retirement, but also the payor’s means and ability to continue to work, including his capacity to be employed at another job.

The main points emerging from the above cases, and those that have followed, can be summarized as follows:

1. Parties cannot avoid spousal support by unilaterally deciding to leave the workforce, whether by retirement or otherwise.
2. There is no reason why a support order cannot continue past the date of retirement.
3. Evidence that a payor voluntarily retired in order to frustrate a support order is clearly an important fact militating against a finding of a material change. In such a case, the court may impute income to the payor up to the amount he would have earned had he not retired or withdrawn from the workforce.
4. The court should consider the motivation for retirement and whether it is reasonable in light of the ongoing spousal support obligations.
5. Even if there is evidence that the payor did not choose to retire in order to avoid paying spousal support, that does not end the matter i.e. there is not an automatic right to vary support. Instead, one must look at whether the decision to retire was voluntary (not compelled by a mandatory retirement policy or health limitations) and whether the payor retired at such a time when the payor still had the capacity to continue working either in the current employment or in some other employment.
6. The issue is whether the payor’s ability to pay has been compromised. Ability to pay is not restricted to pension income alone, but may include capacity to earn income either from the job the payor has chosen to leave or from other employment following retirement.
7. Where a payor retires earlier than expected and the recipient spouse has good reason to rely upon support being provided for several more years, the payor may be expected to seek new employment opportunities.
8. Whether the pay or consider the financial circumstances in impact on the recipient spouse is one of the factors the court will consider on application to vary support
9. The court must satisfy itself that there has been a change in the “means, needs and other circumstances” of one of the former spouses before a change in the support will be ordered. “Means” includes both actual income and income earning capacity as well as other pecuniary resources, capital assets and evidence of overall wealth.

What can be done? Make sure settlement documents are drafted carefully. That is, if a Separation Agreement is being prepared, ensure that the language of that Agreement sets out the parties’ clear intentions. The more specific the parties can be, for example, about whether or not the payor’s retirement is a material change in circumstances, the less likely they will have to argue the issue at a later date when the payor retires.  The Agreement should be specifically worded not only to include whether retirement will be a material change, but should also include a notice period to be provided to the support recipient of the payor’s voluntary or involuntary retirement. The more specific the parties can be in their Separation Agreement regarding whether they intend the payor’s retirement to be a material change, the better. The terms of the Agreement can also include the intended retirement age, the circumstances surrounding the retirement, how the variation or termination of spousal support will be dealt with, how the new support amount will be calculated and whether or not support will include pension income. This will give the parties much more clarity in the future and would result in less litigation.

The post Does Retirement End Spousal Support Payments? appeared first on Toronto Family Law Blog Canada.

Things got off on a good note when the judge agreed husband’s lawyer was trying to impeach our client’s credibility without having put the evidence to our client.  Clear contravention of … say it with me … the Rule in Brown v Dunne.  Twice in one trial.  Unbelievable.  Then another objection, this time based on the parol evidence rule (the husband tried to go behind the property settlement we had made to claim the numbers were actually something other than what was on the written page). Won that one too.  Our evidence professors should be very proud.

Cross-examination of the husband went better than we expected.  Being argumentative, evasive and combative didn’t play well with the judge.  He fought with the cross-examiner, answered questions that weren’t asked and lectured the court on material totally irrelevant to the case.  When faced with documents that countered his position, he refused to acknowledge them.  That and the 12 trips all over the world that he has taken since separation while our client struggled to find money to buy food meant that he was a great witness for us in cross.

We did damage to their expert by objecting to the admission of his material (a series of schedules and calculations), since he did not file a report.  A technical point, but valid all the same.  Their expert’s schedules were not allowed into evidence, and that meant that the only evidence of current value before the court was ours.  Brilliant.  We put evidence and propositions to their expert that were incontrovertible.  Financial statements documenting years of losses to support the claim that husband was mismanaging the business to the wife’s detriment.  He had to agree.  It was a perfect way to close the evidence: their expert confirming our theory of the case was the last thing the judge heard.  But you never know…  As well as we think the evidence went in, things can still go sideways.  We won’t know until we know and the decision is released.  And even then it might not be over, if someone decides to appeal…

That was Friday afternoon.  We did not have time for closing arguments, so we have agreed to do written closings.  We may get the opportunity for some oral argument in late December if another matter the judge is scheduled to hear settles.  If not, then the closing will be entirely in writing.

Drove home with eight boxes of documents, a printer, my gown bag and my computer filling the back seats.  Stopped at the liquor store for a bottle of Megalomaniac Merlot. Our waitress from Thursday night told us Megalomaniac is supposedly one of Niagara’s finest (our having been in wine country, after all).  Unfortunately, the LCBO at Bathurst and Lawrence didn’t have it.  Wanting to stay with the theme, I ended up with a bottle of Wayne Gretzky Merlot the LCBO lady recommended, which wasn’t half bad.  Enjoyed a glass on the back patio in the sunshine which now, with all this snow and cold, seems a distant memory.

And that was the trial in a nutshell.  A great experience.  I realized I miss being in a courtroom.  It is an interesting and challenging part of the job. Now it is time to draft the closing.  And then the waiting begins…

The post Family Law Trials Part IV: The Last Two Days appeared first on Toronto Family Law Blog Canada.

Yesterday was a good day.  The other side didn’t seem to score any points in cross of our client.  She was quite good. Answering only the questions asked, most of which ended up helping our case in chief.  Morning break we realized that Welland Court might still have its gallows (yes that is true) but it has no coffee shop – just vending machines.  Ugh.  Need coffee.

We made a few objections on some of the other side’s questions that were, we thought, irrelevant or outside of the bounds of the pleadings and we won some and lost some.  But we did win on an objection stating the other side had … wait for it…violated the Rule in Brown and Dunne (which I still don’t really understand but which sounds so good when contained in an objection!) For you non-lawyers, look it up. And if you understand it, please do call me.

We closed our case at lunchtime.  Went back to see our friendly neighbourhood waitress at the all day breakfast place across the street for lunch.

The other side opened his case in the afternoon.  Presented his theory of the case and the orders he is seeking.  Interesting to finally have his case so succinctly articulated – we have been getting it in dribs and drabs for the past year and a half and guessing at the case we would have to meet at trial.  The balance of the day was spent listening to the husband tell his story in chief.  Hearing a lot of information about not a great deal that is relevant.  But then, I may be biased.

Last night was work work work.  Research on caselaw.  Prepping the cross of the other side and of his expert with my co-counsel.  Finding a good chinese food place that delivers.  Feeling sick after eating said chinese food.  Using the awesome portable printer we would have been lost without.  Culling the correspondence and reams of disclosure to find nuggets for cross.  Thank goodness for computer searches or I would still be riffling through boxes and boxed of paper.  Hey – did I just thank technology? I must be tired.   All in all a busy and productive and hopefully valuable evening.  We will see the fruits of our labour today.  So here goes…

The post Family Law Trials Part III: Day Three appeared first on Toronto Family Law Blog Canada.