Court Allows Appeal Citing Trial Judge’s Incorrect Evidentiary Rulings and Failure to Assist In-Person Litigant

A high-conflict parenting situation led to a 10-day trial where despite the father’s primary care of their young daughter for over three years, custody was reversed and the father, who lived in Regina, was granted parenting time in Saskatoon three weekends a month and extended vacation parenting time. 

He applied for a stay of the custody order, which was granted, with the court citing the following factors: 

1. The trial judge based her decision on facts not in evidence;
2. The imposed parenting arrangement was unworkable as the appellant father lived and worked in Regina while the mother was unemployed;
3. The trial judge failed to consider the strength of the child’s relationship with each parent;
4. The trial judge failed to consider that the child had lived with her father for over 3 years;
5. The child had special needs, was enrolled in preschool in Regina, was not toilet-trained, is non-verbal and sees a speech therapist in Regina.

As a term of the stay, the appeal court ordered three nights and 4 days of parenting time for the child’s mother every week, with the father to provide transportation for the mother to travel from Saskatoon to Regina. JL v. TT 2023 SJ No. 12

The findings on the stay application were prescient as the recently released appeal decision reveals. JL v. TT 2024 SKCA 38.

On appeal, JL alleged that the trial judge was biased against him and made various material errors in deciding the parenting issues. The appeal court found that the judge failed to discharge her duty to assist JL as a self-represented litigant by providing him with information about the rules of evidence and the examination of witnesses that were legally inaccurate. She also improperly restricted JL’s cross-examination and permitted hearsay evidence for the truth of its contents. 

With respect to the level of assistance that should be provided to a lay litigant the court said:

 “…trial judges are not required to tilt the playing field…a trial judge cannot provide legal advice…become an advocate for them, guide the presentation of their case, bend the rules of evidence, or decline to apply the substantive law to compensate for their lack of legal knowledge (Dujardin v. Dujardin Estate, 2018 ONCA 597)

The appeal court cited examples of improper evidentiary rulings including when mother ‘s counsel objected to a question posed by JL to his mother. He asked “do you recall the weather on January 27^th?” The court agreed that the question was “leading” and overruled it. 

At another point, the trial judge advised JL that he could not ask “yes or no questions” because that would be “contrary to the rules.” She also told JL, more than once, that he could only cross-examine TT’s witnesses about things they had been asked in their examination in chief, a clear misunderstanding of the rules of evidence where the scope of cross-examination is necessarily broad, and in cross-examination a party is entitled to delve into new matters relevant to the cross-examining party’s own case. 

The appeal court cited Wigmore’s oft-quoted words that cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth”, cited in Sopinka, Lederman and Bryant’s “The Law of Evidence in Canada”, 6^th ed. (Toronto LexisNexis, 2022)

Further, the trial judge misapplied the rule in Browne v. Dunn advising JL that he was obligated to lead evidence about anything that he may later wish to put to TT or her witnesses in cross-examination, and that failure to do so, would mean the subject could not be canvassed. Citing R. v. Knox 2017 SKCA 8 the court said:

“The rule in Browne v. Dunn is a rule of fairness…This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given a chance to address the contradictory evidence while he or she is in the witness box.” 

An example of the trial judge’s error is clear in the following admonition she gave to JL:

THE COURT: “And we’re going to focus on her evidence and Browne v. Dunn. We’re not going to try to bring in new stuff. Okay?” 

With respect to hearsay, the appeal panel observed that the trial judge improperly limited the use of party admissions and admitted hearsay for the truth of the statements. The starkest example was when the trial judge permitted TT to introduce a significant amount of evidence that was pure hearsay. In her testimony her lawyer asked her to repeat things that other persons had told her about JL, clearly inadmissible hearsay as the out-of-court statements were made by people who did not testify. Nonetheless the trial judge did not recognize that this evidence was presumptively inadmissible. 

The appeal court also found that the record revealed a disparity in the way the rules of evidence were applied to each of the parties. TT benefitted from a relaxation of the rules of evidence, JL did not. However, while the appeal court described the legal errors as “pervasive” they did not accept JL’s argument that the trial judge showed bias, but did opine that the errors were so significant as to deprive JL of a fair opportunity to present his case. 

The appeal was allowed and a new trial was ordered. This decision is a treatise for lawyers on the evidentiary issues that arise in a family law trial and ought to be required reading for law students in Canada. 

**This article was first published in LAW360, a publication of LexisNexis Canada.

Family Violence Takes Centre Stage in Mother’s Successful Appeal

With the introduction of family violence provisions in British Columbia’s Family Law Act in 2013 and the recent amendments to the Divorce Act, domestic violence is no longer a taboo subject in family law proceedings, no longer swept under the rug and ignored in favor of a focus on financial issues. 

In 2022 the Supreme Court of Canada considered the issue of family violence in Barendregt v. Grebliunas 2022 SCC 22, finding  “untenable any suggestion…that domestic abuse or family violence has no impact on children and has nothing to do with the perpetrator’s parenting.” The court also recognized that a child may experience harm through “indirect exposure” to domestic conflict and “proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact…”

The British Columbia Court of Appeal recently heard an appeal from a final parenting order in KMN v. SZM 2024 BCCA 70 where the respondent father was awarded equal, unsupervised parenting time, to be gradually introduced, despite criminal charges levelled against him for alleged occurrences of domestic abuse against his wife, incidents which occurred six months before the parties separated in March 2020, and again in September 2020, an event which led to the parties’ separation. 

The parties, who lived in the Lower Mainland, married in 2015 and had a child in 2018, who was 2 years old at the date of separation. The mother was the child’s primary caregiver, but the father was actively engaged with the child.  

In March 2020 the parties argued, with the father becoming increasingly angry, calling his wife demeaning names, throwing objects at her and “headbutting” her while the child was standing beside her. The mother testified that she was not injured, and the father was charged criminally. 

A second incident took place in September 2020 when the father became angry while the mother was feeding the child and over the course of the altercation, he again headbutted his wife, leading her to leave the home with their child. She moved in with her parents in Nanaimo and the parties’ marriage was at an end. 

In December 2020 a Master issued an interim parenting order, by consent, granting the father one overnight visit with the child every week.  In January 2021 the visitation was increased to two overnights per week. The mother remained living in Nanaimo.

 In March 2021 there was a third hearing for parenting time where the court reviewed the evidence of the abuse that took place in September 2020, noting that the father’s behavior “was a serious and troubling incident of family violence”, while acknowledging that the father had shown regret and self-awareness around the incident, as he deposed in his affidavit, and as evidenced by a text message to his counsellor where he admitted his “poor choice for which he felt horrible.” 

The Master ordered the mother to return to the Lower Mainland in close proximity to the father, stating that her “temporary relocation to Nanaimo was justified to ensure her safety”, however, he found that allowing her to remain on Vancouver Island, which meant that the father’s parenting time was defined by ferry rides and car travel, was not in the child’s best interests. The court ordered parenting time for the father every weekend from Saturday morning to Sunday evening. A month later the parenting time was increased to two overnights per week. 

In May 2021 the father was again charged criminally when during an exchange of the child for his parenting time the father threw his phone at his wife, allegedly because she was acting aggressively. Because of this incident, his parenting time was reduced to one overnight. In August the order was amended to provide him parenting time on his non-workdays and in September a section 211 report was ordered, by consent. 

In October 2021 the child disclosed to her mother that her father had hit her on her head, a peace bond was secured, and the father’s parenting time was ordered to be supervised and reduced to four hours a week.  The Ministry of Children and Family Development investigated and in January 2022 the parties were advised that they had no child protection concerns. The peace bond was revoked by Crown counsel. 

An eight-day trial was held in October 2022 where the father had counsel and the mother was unrepresented. The father initially sought primary residence of the child, but in closing submissions he amended his claim to shared parenting. While the mother’s pleadings  included claims for joint guardianship and equal parenting time with conditions, including counselling, no drugs or alcohol, and supervision, she too resiled from her pleadings and requested sole guardianship and supervised parenting until he could show that he was no longer a threat to her safety. 

The appeal court summarized the father’s criminal charges  which included ten alleged offences between March 2020 and January 2023, leading to three counts of assault, one count of uttering threats, one count of criminal harassment, one count of mischief, and four counts of breaching his bail conditions. At the time of the appeal the charges had not been adjudicated. 

The trial judge determined that neither the father nor the mother were “particularly strong witnesses” but the father was “more reliable”. He found that the mother frequently reported misdeeds by the father as a weapon against him. The court declined to follow the recommendations in the section 211 report where the expert, Dr. Elterman, opined that supervised parenting continue and that joint counselling and therapy be undertaken, to be followed by a review of parenting, with the goal of having both parents involved in their daughter’s life. 

The mother brought a stay application with respect to the parenting order of the trial judge, which was denied. 

The appeal court allowed the mother’s appeal , finding that the trial judge failed to meaningfully analyze the mother’s allegations of family violence. They said that while the judge cited the provisions of the Family Law Act, the evidence of family violence was misinterpreted, diminished or summarily dismissed. 

The appeal court remarked that the trial judge’s reasons did not include incidents of family violence that occurred in March 2020 or May 2021. In addition, the trial judge misstated Dr. Elterman’s findings and failed to consider his opinion that if the allegations of abuse were true, there was a potential moderate risk of reoffending. 

The appeal panel also noted that the trial judge erroneously found that the Ministry had determined that the mother had coached her daughter. Further, both Dr. Elterman and the Ministry social workers referred to the subject of violence directed toward the child but failed to consider indirect exposure to the child of physical and psychological abuse against her mother. 

The father’s theory of the case was that the mother was setting him up, in order to deny him a full active role as a father, a theory that the trial judge accepted, leading the appeal panel to raise the issue of myths and stereotypes of mothers using the justice system to thwart their spouse’s role as a parent, although noting that this issue was not raised at trial or fully argued before them. Nonetheless, the appeal court found that the father framed his case in “perfect alignment with those stereotypes” and those unfounded assumptions contributed to the outcome of the trial. 

The appeal court ordered a new trial, rescinded the trial judge’s parenting order, and ordered that the father have 7 hours of supervised parenting time one day a week. With the backlog in the Supreme Court it is very likely that the new trial will not take place until late 2025 or 2026. 

**This article was first published by LAW360, a publication of LexisNexis Canada.

May-December Marriage Challenged By Adult Son

“Marriages between the very old and the very young raise eyebrows and turn heads. In popular culture, a ‘May-December’ marriage invariably provokes the ire of adult children who deem the younger spouse a “gold-digger” and plot to protect their inheritance.”

That is how Madam Justice Renu Mandhane began her judgment in Tanti v. Tanti et al 2020 ONSC 8063, a case where Mr. Paul Tanti’s son, Raymond became enraged when his elderly father married a much younger woman and took steps to interfere in their union, actions that culminated in what turned out to be an ex parte order giving Raymond guardianship of his father. 

The facts were simple: 

Paul was in his late eighties, Sharon’s age was not revealed. The parties met in 2014 when Paul connected with an organization that matched volunteers to do odd jobs for seniors. Sharon came to Paul’s home and did some exterior painting for him. They became friends and in 2017 referred to themselves as “companions”. Sharon was never a caregiver for Paul as she worked throughout their relationship. 

In early 2018 Paul asked Sharon to move in with him and she did. Paul’s son Raymond continued to drop in to see his father weekly, bringing groceries and exchanging laundry, but Raymond took an immediate dislike to Sharon and began encouraging his father to end the relationship. 

In February 2018 Raymond took his father to see a gerontologist who opined that he had a moderate degree of cognitive impairment. He did not share this diagnosis with Sharon. On Paul’s 89th birthday in January 2019 he asked Sharon to marry him. She was hesitant as she didn’t want to upset Raymond. In June of 2019 Paul again asked her to marry him and she agreed. They had a small wedding with five guests in late July 2019. None of Paul’s family was invited to the wedding.

A few days after the wedding Raymond was informed that Sharon and Paul had been bound in holy matrimony and he exploded, an incident that involved the local constabulary. The following day Paul and Sharon visited a lawyer where Paul granted Sharon his power of attorney.

Two weeks after the wedding Sharon travelled to her home country of Grenada for a 16-day holiday which had been planned well in advance of the wedding. While she was out of the country, Raymond got busy. He took his father for a capacity assessment and obtained a medical opinion that Paul could no longer manage his affairs. No assessment was done of his capacity to marry. The physician noted that father and son were arguing about Sharon during the assessment. The doctor’s notes revealed the following statement from Paul: 

 “Currently, Mr. Tanti states that Sharon is ‘absolutely out of the picture’ but this is really to appease his family and he would prefer not to lose her as a companion.”

While Sharon was still out of the country, Raymond filed a court action for the following orders: 

a)        a declaration that Paul is incapable of managing property and personal care;

b)        guardianship of Paul’s property and person;

c)        custody of Paul;

d)        an order permitting him to lease and eventually sell Paul’s home;

e)        an order freezing all bank accounts jointly held by Paul and Sharon; and

f)         an order suspending the power of attorney granted by Paul to Sharon.

Raymond’s evidence included this statement: “it appears likely that Paul has become subject to manipulation and perhaps loss and misappropriation of funds at the hands of a hired caregiver, Sharon Joseph.”

At the same time, Raymond moved Paul out of his home and into Raymond’s home, while he researched care homes for his father. Meanwhile, Sharon returned from Grenada to find the locks changed on the home and a letter from Raymond’s lawyer that Paul was now living with Raymond. A second doctor’s opinion confirmed the original diagnosis. Neither doctor opined on capacity to marry. 

Raymond’s application was heard in September 2019 and due to a mix-up Sharon and her lawyer were not present at the hearing, but the judge decided to make the orders in her absence. She was now faced with filing her own application to overturn the orders made. 

Judge Mandhane reviewed the relevant legal principles stating that the burden was on Raymond to prove that his father lacked capacity to marry Sharon in July 2019 and that in the absence of duress or fraud, Sharon’s motivations to marry Paul were irrelevant. Hunt v. Worrad 2017 ONSCC 7397 and Fernandez v. Fernandez 1983 Canlii 3644 Man. QB

The court remarked that the test for capacity to marry was not complex. The parties must understand the nature of the marriage contract, and the duties and responsibilities that flow from it, an understanding that did not require a high degree of intelligence. Simply put, the parties must agree to live together and love one another to the exclusion of all others.

Three doctors testified but none of them had examined Paul in 2019 so their retrospective opinions were not accepted. 

Raymond’s suggestion that Sharon was a “gold digger” was soundly rejected by the court, with the court dismissing Raymond’s characterization of her as a caregiver who misappropriated his father’s money. The court was not impressed with Raymond’s attempt to bolster his position by relying on stereotypes about Caribbean immigrant women looking for a free ride. 

Judge Mandane declared the marriage valid and awarded full indemnity costs to Sharon of $50,000, far less than her request for $150,000. 

But she still had more to say about Raymond’s conduct:

 “Despite knowing about the marriage, and while Paul’s wife was out of the county for just over two weeks, Raymond removed Paul from his home, changed the locks on the house and closed the couple’s joint bank account, all without court order. He then proceeded to file an application for guardianship based entirely on the unfounded allegation that Sharon was a hired caregiver, that she had stolen from Paul, and that she had deserted Paul.”

Raymond Tanti’s appeal of the decision was dismissed. (Tanti v. Tanti 2021 ONCA 717)

**This article was first published in LAW360, a publication of LexisNexis Canada.

PITHY LAW FIRM SLOGANS

1. Our Dress Code Does Not Include Stuffed Shirts

2. Talent Mandatory. Suit Optional

3. We Not Only Try Harder, We Try More Often

4. Your Success is Our Success

5. Minds Over Matter

6. We Can’t Protect Your Heart, But We Can Protect Your Rights

7. Winning At All Costs

8. All We Do Is Work

9. Lawyers You’ll Swear By. Not At.

10. Justice May Be Blind, But She Sees It Our Way 90% of the Time

CHATGTP FOILS COUNSEL’S APPLICATION, LEADING TO COSTS AND A LAW SOCIETY INVESTIGATION

In Zhang v. Chen 2024 BCSC 285 Ms. Zhang was successful in defending her husband Chen’s application for an order that the parties’ children, who lived with her in West Vancouver, be permitted to travel to China to spend time with their father. The court ruled that Chen’s application be revisited once a section 211 parenting report was completed and that in the meantime, parenting time in British Columbia be granted in accordance with Ms. Zhang’s proposal, and that video parenting time be afforded to Chen.

Following this order, Zhang’s counsel sought special costs against counsel for Chen for the reason that Chen’s Notice of Application contained two non-existent cases that counsel had referenced by accessing ChatGPT, an artificial intelligence program, touted as a research provider, capable of explaining complex legal topics, and providing citations for relevant articles, cases, and precedents, allegedly leading to increased efficiency and a reduction in legal fees for clients.

Unfortunately, for Chen’s counsel, the cases she cited did not exist and Zhang argued that needless time and effort was spent ascertaining the legitimacy of the authorities cited by Chen and that her use of ChatGPT constituted reprehensible conduct.

The facts revealed that Chen’s Notice of Application was delivered to Zhang on December 6, 2023. On December 13, 2023 Zhang wrote to Chen asking for copies of the two cases cited, explaining they could not locate them. Chen wrote back to Zhang apologizing and explained they were looking into the cases cited and advised Zhang of four new cases she would rely on. Zhang insisted that they provide the earlier cited cases and suggested that Chen could not rely on the new cases.  Zhang advised the court that they had retained a researcher to find the cases and learned they did not exist.

On the hearing date of December 19, 2023, Chen was represented by an agent on behalf of  his counsel and by that time, Chen’s counsel had apologized again and prepared a note for the court and for Zhang, which read, in part:

“I made a serious mistake when preparing a recent Notice of Application for my client, Mr. Wei Chen, by referring to two cases suggested by Chat GTP (an artificial intelligent tool) without verifying the source of information.  I had no idea that these two cases could be erroneous…I have taken this opportunity to review the relevant professional codes of conduct and reflected on my action.  I will not repeat the same mistake again. I had no intention to mislead the opposing counsel or the court and sincerely apologize for the mistake that I made… I alone made the mistake with respect to the erroneous citations and nobody else in my office was any part of it.”

Although Chen instructed her agent to provide the note to the court and to Zhang, that did not occur. No judge was available, and the matter was adjourned to January 15, 2024.

At the resumption of the hearing, the court determined that Zhang had been the successful party in respect of Chen’s motion, noting that Chen’s application had begun as a without notice, short leave application, with an unfounded assertion by Chen that he was unable to leave China due to immigration issues. Further, Chen was in arrears of child support when he brought his application. Costs were awarded to Zhang.

Next the court considered whether special costs should be ordered against Chen’s counsel personally. Citing Nuttal v. Krekovic 2018 BCCA 341, the court noted that special costs against a lawyer are only appropriate where there has been a serious abuse of the judicial system or dishonest or malicious conduct that is deliberate and that a mere mistake, error in judgment, or even negligence does not warrant such an order.

While counsel for Zhang seemed to suggest that Chen’s counsel’s “mea culpa” was disingenuous, despite her expressions of genuine remorse and embarrassment, the court found that the “fake” cases were withdrawn prior to the hearing and the circumstances were mitigated by “well-sourced” opposing counsel who had a litigation team of three lawyers and an articling student at the hearing, observing there was no chance the two cases would have slipped through. The court found no intent to deceive and accepted counsel’s sincere apology, declining to order special costs while acknowledging the seriousness of the situation.

However, pursuant to Rule 16-1 (30) (c) and (d), the court ordered counsel to be responsible for the extra expense resulting from the inclusion of two fake cases, to be determined by the Registrar of the Court for 2 full hearing days.  The section reads:

(30)      If the court considers that a party’s lawyer has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault, the court may do any one or more of the following:

(c)  order that the lawyer be personally liable for all or part of any costs that his or her client has been ordered to pay to another party;

(d)  make any other order that the court considers will further the object of these Supreme Court Family Rules.

Counsel was also ordered to review all her cases before the court to check whether artificial intelligence tools had been used for research purposes and to advise opposing parties and the court immediately, by filing a report within 30 days of the judgment.

The court concluded by observing that artificial intelligence is still no substitute for the professional expertise that is required of lawyers and that the integrity of justice requires no less.

British Columbia Law Society spokesperson, Christine Lam, confirmed to the media that conduct of counsel was being investigated by them. Of note, is that the Law Society in November 2023 released a new practice resource titled “Guidance on Professional Responsibility and Generative AI”, to help lawyers consider the use of AI tools in their legal practice.

This article was first published in LAW360, a publication of LexisNexis Canada

MED/ARB AWARD OVERTURNED TWICE

                          

The Eldridge’s met on an archeological dig, married in 1977, and as archeologists worked together in their consulting business, Millenia, for several years. Four children were born and Ms. Eldridge became their primary caregiver while her husband travelled to work sites. The parties separated in 2010 when Ms. Eldridge was 54 and her spouse 57, with one child with special needs remaining at home. They were divorced in 2016. 

After years of negotiation with the assistance of a mediator, a business valuator, and their respective accountants, an agreement was reached in September 2015, which saw Mr. Eldridge retain the business and Ms. Eldridge their family home. Detailed spousal support terms were included in their agreement which provided for a base amount of support of $5,000 and an additional amount to be paid on any income Mr. Eldridge earned in excess of $120,000 per annum. Ms. Eldridge received monthly amounts ranging from $5,000 to $11,000.  Her income was imputed at $24,000 annually. The agreement also called for a review when Mr. Eldridge attained the age of 65. 

In July 2018 when Mr. Eldridge was about to turn 65 he sought to review spousal support in order to plan his upcoming retirement and possible sale of his business. A med/arb agreement was signed, re-appointing their original mediator/arbitrator.

The med/arb process began in March 2019 and concluded 22 months later in December 2020. The arbitrator handed down his award in April 2021, finding that Mr. Eldridge’s obligation to pay spousal support should be gradually scaled down such that from May 2021 to June 2022 he should pay $7,500 a month; from July 2022 to June 2023 he should pay $5,500 a month, from July 2023 to June 2024 he should pay $3,750 a month; and from July 2024 to August 2025 he should pay the sum of $2,500, as his final payment. The arbitrator noted that by the termination date Ms. Eldridge would be almost 69 years old and her husband, 72 years old, and provided the following reasoning:

“MTE needs certainty so that he can make decisions regarding the potential sale or winding up of his business. The declining support schedule gives substance to the parties’ agreement that his work after the age of 65 should be voluntary. I anticipate that his income will decline over the next five years and then any choice he makes to continue to work should be his to make without concern to his implication to spousal support. My approach also dispenses with ongoing dispute resolution costs that have negatively impacted both parties’ finances.”

Ms. Eldridge appealed the spousal support award to the British Columbia Supreme Court, (AEE v. MTE 2022 BCSC 1534) raising the following issues:

1. Did the arbitrator err in respect of entitlement and quantum on a prospective basis? 

Ms. Eldridge argued that her former husband’s application to reduce support was premature as  their agreement provided that support would by paid until Mr. Eldridge turned 65. The Supreme Court chambers judge agreed that the arbitrator erred by making an award based on a speculated event, which had not yet occurred and set aside the termination date of August 2025, ordering support to continue in accordance with the parties’ agreement, pending further agreement or an order of the court.

• Did the arbitrator err in failing to award arrears of spousal support?

The court noted that the arbitrator failed to rule on the issue of arrears of support for the period between June 2018 and June 2021. Given the arbitrator’s error in gradually decreasing support, the court ordered Mr. Eldridge to pay to his former wife arrears for the aforementioned period. 

• Did the arbitrator err in declaring that the appellant was not entitled to any of the proceeds of sale of the business?

The appellant argued that the arbitrator’s declaration that she was not entitled to any of the proceeds of sale of Mr. Eldridge’s business was not sought by her, was gratuitous and unrelated to the issue of spousal support, amounting to an error in law. The court did not allow this ground of appeal, finding that the arbitrator was empowered to consider “all and any other issues that remained to be determined”; that the eventual sale of the business was an issue in the arbitration; and the arbitrator prudently clarified that all proceeds of sale belonged to Mr. Eldridge.

• Did the arbitrator err in failing to award costs to the appellant? 

The arbitrator determined that success had been mixed, identifying several factors, including that Mr. Eldridge succeeded in reducing the support payable on a sliding scale, albeit the amounts he proposed were much lower than the arbitrator’s award. He also used up precious time by calling an expert whose evidence was entirely discarded. In addition, two days were lost because Mr. Eldridge failed to provide sufficient notice of his intention to call further expert evidence. 

Ultimately, the arbitrator ordered the parties to equally share the costs of the arbitrator and be responsible for all other costs incurred by each of them. He further determined that because Mr. Eldridge overpaid support from July 2018 to date, Ms. Eldridge was effectively compensated for the time and expense thrown away in the arbitration process. 

The court identified several problems with the arbitrator’s decision, noting that the  written award failed to explain what overpayment the arbitrator was referring to. The court also found error in the arbitrator’s ruling in that he mixed his costs award with a support compensation award.  The court found that Ms. Eldridge was entitled to her costs for three days of the arbitration and her costs of the appeal. 

But that was not the end of the litigation for the Eldridge’s. Mr. Eldridge appealed the lower court order asserting that the chambers judge erred by intervening in the arbitration award and erred by ignoring the terms of the parties’ agreement with its reference to a “de novo” support review. (Eldridge v. Eldridge 2024 BCCA 21)

The appellate panel allowed the appeal, agreeing that the chambers judge’s finding that the parties’ agreement should govern his payment of spousal support was wrong in law. The appeal court launched into an examination of the fundamental principles of spousal support, canvassing the law on compensatory, non-compensatory, and contractual support, and citing leading cases including Chutter v. Chutter 2008 BCCA 507, Hodgkinson v. Hodgkinson 2006 BCCA 158, Oulette v. Oulette 2012 BCCA 145, Hathaway v. Hathaway 2014 BCCA 310, and  Smith v. Smith 2008 BCCA 245.

The appeal court agreed with the chambers judge, finding that based on basic principles of compensatory support, the arbitrator’s termination of Ms. Eldridge’s support was contrary to the law and also agreed that to vary the support based on speculation of what might occur in the future was contraindicated. They also found that the arbitrator gave undue weight to the concepts of finality and certainty to the detriment of Ms. Eldridge, and rather than a step-down support order and termination, more appropriate orders would have been a review or variation order. 

Finally, the appeal court found that the chambers judge erred by ordering support pursuant to the parties’ agreement without assessing whether the agreement formulas were in accordance with the Divorce Act provisions, the Spousal Support Guidelines, and whether the agreement required a fair determination of Mr. Eldridge’s income under the Child Support Guidelines. 

The appeal court held that where the chambers judge went wrong was in her misapprehension as to the scope of the review required.  In her reasons she stated:

“…According to the appellant, the formula in the agreement did not reflect his efforts in operating Millenia and the method of calculating support was flawed as it was based on 100% of pre-tax corporate income less amounts paid to his holding company, rather than his 

“true” income available for distribution. Nonetheless, he agreed to this clause. I do not find this to be relevant to the issues before me. Neither the arbitrator nor this court are reopening the previous final agreement only looking forward.”

The upshot is that ordering the parties to abide by their agreement was tantamount to having no review of support at all.  The appeal court upheld the order for retroactive spousal support and the costs award, finding that it was permissible to set off compensation against costs, citing Jamieson v. Loureiro 2010 BCCA 52. They  remitted  the matter of support commencing May 2021 to the arbitrator. 

While it seems sensible to bring a review application in anticipation of a shortly pending review date, the Court of Appeal has been clear that they do not support such a speculative event as the foundation for a review order. In Renwick v. Renwick  2007 BCCA 521 the court said that an order terminating support should only be made when the applicant’s “working life has clearly come to an end.”

**This article was first published by LAW360, a division of LexisNexis Canada.

Abuse Directed at Counsel is Grounds for Special Costs

 It happens in family law. Your client’s husband or wife, enraged at their spouse’s independence, usually marked by their retention of family law counsel, levels unwarranted, abusive attacks on their spouse’s lawyer. It can happen whether the attacking spouse is self-represented or has counsel. The goal is obvious: they want to undermine their spouse’s confidence in counsel and want to inflict as much turmoil and vengeance as they can.

Pyper v. Schuetze 2023 BCCA 334 is such a case. The union between John Pyper and his wife broke down in September 2018 after he brutally assaulted her, in front of their 6-year-old daughter, who dialed 911. He was arrested and Katy Schuetze was taken to the hospital. His bail terms restricted contact between him, his wife and his daughter. Pyper breached his bail conditions in February 2019 and contacted Schuetze, convincing her to reconcile with him and urging her to unwind the criminal charge and discontinue the action in battery she had filed. The reconciliation lasted about eight months.

Before the battery trial began, Pyper brought several applications to disqualify her lawyer from acting for Schuetze, alleging a conflict of interest relating to his earlier consultation with the lawyer in regard to an unrelated motor vehicle claim. He also reported her to the Law Society, who investigated and dismissed the allegation. The court dismissed his applications for her removal. After a hard-fought trial, the judge accepted Schuetze’s evidence of the assault and other instances of violence during the marriage and awarded Schuetze $795,029.68 in damages.

Schuetze sought special costs of the trial, citing her husband’s vitriolic comments about her counsel, which included “that he hoped (she) would get better advice than from Ms. X the firecracker with no ethics,” and that “Ms. X is pure evil and will say and do anything.” He also advised his wife’s lawyer to report herself to the Law Society, after learning that she had advanced funds to her client, revealed to be based on the advice of Law Society Practice counsel. On appeal, Pyper characterized the text messages as mere “schoolyard taunts,” unworthy of a special costs order.

However, the trial judge found that Mr. Pyper was “dishonest, calculating, and cleverly manipulative”, and that his reconciliation with Ms. Schuetz was designed to persuade her to fire her lawyer and retain a lawyer he recommended who would assist her to abandon her tort action. The court stated:

“… I have no difficulty concluding that [Mr. Pyper] was likely motivated by the goal of undermining [Ms. Schuetze] ability to pursue her claim. He would have perceived Ms. X as a threat to his ability to effectively deceive or manipulate [Ms. Schuetze] for a time, but also the Court. Once his efforts to persuade [Ms. Schuetze] to end the action and get rid of Ms. X and the reconciliation failed, he attacked, much as the respondent in C.S. did, Ms. X herself, in an attempt to undermine [Ms. Schuetze’s] confidence in her.

The court referenced C.S. v. C.B. 2021 BCSC 879, where special costs were ordered in similar circumstance, highlighting the following missive from C.B. to his wife about her choice of counsel:

“The lawyer you’ve chosen doesn’t give a rip about you. Nor about our kids. She’s a gold digger. Fine if our kids are unhappy and if we are both broke. I’ve talked to 5 people who know about her. She already convinced you to take a home away from your kids. That’s just her starting point. A couple days in. Imagine when we are at war and she’s smiling. Watch her smile. She won’t care if you can’t buy your condo and lose your deposit. You had better get uncle to give you 800K for your condo. Hopefully you’ve already covered that base.”

The Court of Appeal agreed with the trial judge that Pyper’s efforts to have his wife fire her lawyer were sustained and manipulative, and that his unfounded attacks on her professionalism were reprehensible and upheld the special costs award, apart from three interlocutory applications in which Schuetze was already awarded her costs.

Family law is not for the faint of heart, and abuse and insults make the job far more difficult than it needs to be. I especially take issue with counsel who are aware of their clients’ bad behaviour and do nothing to stop it, although I understand that these individuals are often beyond control. Special costs are the only remedy available and their endorsement by the Court of Appeal is welcomed.

**This article was first published by LAW360, a publication of LexisNexis Canada.

COSTS SUBMISSIONS INVITES JUDICIAL “OXYMORON OF THE YEAR” AWARD

On November 23, 2023, Justice Myers presided over a high-conflict estate case, Rai v. Rai 2023 ONSC 7182, where the applicant identified 23 heads of relief, against five parties, including the Public Trustee, and sought orders for the revocation of a power of attorney; an order for the appointment of a guardian for an elderly parent; an accounting of funds allegedly taken from the estate of the elderly parents; orders for a constructive and resulting trust; and a declaration that the family matriarch’s will was not valid.

As the case unfolded, many of the orders sought were abandoned, with the parties attempting to turn a one-day chambers hearing into a full-blown trial, despite the absence of examinations for discovery, no affidavits filed, no pre-trial conference, no trial management conference, no order for viva voce evidence despite counsel’s overtures, no trial had been ordered, and no defined causes of action or issues entitled the parties to the relief identified. The parties had previously obtained orders for the delivery of their respective affidavits, written argument to be exchanged, and pre-hearing cross-examinations to take place, but had failed to abide by pre-hearing orders, or had filed submissions on the eve of the hearing.

The court found that:

“What seems to have happened is that the applicant recognized that he needs more evidence.

He wants a trial and discovery. But there is no statement of claim. There is no live cause of action on which to build a case. One cannot just come to court to have a trial with no issues as a form of discovery to support later claims…. In my view, with no pleading setting out recognizable causes of action, there is nothing left to hear in this application. None of the relief sought by the applicant remains available to him as matters of law. The application is therefore dismissed.”

With that said, the court invited costs submissions on a tight schedule, restricting the submissions to no longer than three pages, double-spaced, with a minimum of a 12-point font. The court also requested a Costs Outline and copies of any offers to settle they wished to rely on.

On the appointed date, each of the two main respondents, the applicant’s sister, and mother, sent three pages of submissions to the court together with a Costs Outline and a bill of costs. Also on the scheduled date, the applicant submitted 10 pages of submissions, a new two- page affidavit, with 30 additional pages of certified transcriptions of audio recordings, and a 65-page Costs Outline. A third respondent provided a “svelte” Costs Outline of 32 pages, causing JusticeMyers to make a “tongue-in-cheek” award, “Oxymoron of the Year”, to applicant’s counsel and a runner-up “Honourable Mention” to counsel who submitted the 32-page Outline.

Each of the parties sought costs in a similar amount, approximately $147,000. Justice Myers noted that he was inclined to send the applicant’s material back to him, unread, in view of him ignoring the format directed, however, because each party identified nearly identical costs, he chose to make his decision, given that there were no surprises that might negatively affect access to justice. The only remaining issue was whether costs ought to follow the cause, whether anyone was entitled to costs on an enhanced basis, and whether any of the costs claimed were inadmissible or unreasonable.

The applicant’s sister asserted that her brother’s applications were abusive, that he was obsessed with his cause, and that he changed his position the evening before the hearing.

The applicant insisted that he was altruistically driven to protect his elderly parents from his sister and that he was forced to defend against his siblings’ claims that he had misappropriated a large sum of money. In his affidavit the applicant swore that he was “astounded” by the exorbitant costs bill of the opposing parties, while the court noted that his “surprise” was unfounded, as the parties all engaged in the same litigation and the applicant’s costs matched theirs.

While the applicant fought tooth and nail, the court found that the respondents also “gave as good as they got”, taking aggressive positions and pushing the applicant’s buttons. The applicant was ordered to pay the costs of his mother and sister, on a partial indemnity basis, each in the amount of $100,000.

**This article was first published in LAW360, a publication of LexisNexis Canada.

Anachronistic and Stereotypical Ontario Cases Rejected by BC Court

After five years together, the parties in McCann v. Barens 2023 BCSC 2000 separated on Sept. 15, 2015, and Shaune Barens obtained a protection order against his wife, Jennifer McCann, on Sept. 23, 2015. The protection order was renewed on Sept. 29, 2015, when McCann failed to attend the follow-up hearing.

However, the parties reconciled in early 2016 when McCann agreed to pursue treatment and attend marriage counselling. The protection order was cancelled on Feb. 9, 2016, and the parties continued in their marriage until May 2018, when Barens advised his wife that he wanted a divorce.

In September 2018, McCann sought orders for exclusive possession of the family home and a protection order. The court granted her possession of the home and made reciprocal no-contact orders against each of them. McCann’s evidence in support of the orders sought included allegations of sexual, emotional, and financial abuse, including a violent rape that led to her hospitalization. She also admitted that she had mental health and alcohol abuse issues that pre-dated her relationship with Barens that had intensified due to stress and the alleged abuse she suffered.

A year later, the parties agreed to attend mediation to resolve the issues arising from the end of their marriage and entered into an agreement that finalized the division of property and included McCann’s waiver of spousal support. The parties had no children.

The parties were divorced in January 2020 and their agreement was incorporated into a consent order that included the following term: “By consent: Any other claims by either party arising from their marriage or their cohabitation will be and are hereby dismissed as if there had been a trial on the merits (the “Release”).”

But that was not the end of litigation between the parties. In August 2022, McCann filed a notice of civil claim alleging that Barens had engaged in a pattern of violent, coercive, and controlling behaviour, including long-term physical, emotional, psychological, and financial abuse, commencing in about 2011. She also alleged multiple specific incidents of sexual abuse.

Barens responded with an application seeking to dismiss the tort action as an abuse of process. Alternatively, he sought an order dismissing her action as disclosing no genuine issue for trial. His arguments included that McCann was seeking to re-litigate issues that were raised in the family law action, invoking the doctrine of res judicata, and he also relied on the release clause in the consent order as a bar to her claims.

The chambers judge noted that Barens relied on three Ontario cases in support of his application, which the court identified as the “central dispute,” requiring the court’s analysis of whether the cases, albeit not binding on the court, remained “good law and ought to be followed” in British Columbia.

The court reviewed each of the cases, noting that there were parallels between each of the cases and the case before the court: Anderson v. Spence [2000] O.J. No. 481 (Ont. SC); Patterson v. Antonucci [1988] O.J. No. 1004 and Luton v. Luton 1995 55 ACWS (3d) 648 (CJ Gen.Div.).

In Anderson v. Spence, the parties settled their family law dispute pursuant to minutes of settlement. Later, the wife brought a claim in tort for family violence based on allegations she had previously raised in the family action. The husband argued that her tort claim was barred by the doctrine of res judicata. The court agreed, citing Henderson v. Henderson (1843) 67 ER 313 (Eng, V.C.):

…[W]here a given matter becomes the subject of litigation in, and of adjudication by a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forth as part of the subject of the contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence, might have brought forward at the time.

In Patterson v. Antonucci, the parties resolved their family law issues by way of minutes of settlement, following an earlier court appearance where the wife swore an affidavit alleging family violence. With the settlement in hand, the husband filed for an uncontested divorce, which was met by his wife’s counter-claim seeking damages for assault. The court struck her counter-claim, finding that to permit it to proceed was an abuse of process when she had made the same underlying factual allegations previously.

Finally, in Luton v. Luton, the wife commenced family law proceedings, which included an application for interim relief wherein she alleged physical abuse. The parties settled their case with a separation agreement which included a comprehensive release clause. Several years later, the wife commenced a tort action seeking damages for assault and battery. The court ruled that her claim was statute-barred. The court also held that the release clause in the agreement was sufficient to bar her claim and further, that a single cause of action cannot be split to make several causes of action, citing the allegations she had raised in her previous affidavits, and finding that the assault claim ought to have been dealt with in the family action.

McCann urged the court to reject the authorities relied on by her former spouse, arguing that each of the cases were dated and reflected antiquated reasoning and stereotypical attitudes towards sexual assault and domestic violence, including how victims of violence are supposed to behave.

The court also considered well-established principles emanating from the doctrine of res judicata, observing that claims that are res judicata are encompassed by the concept of abuse of process and may properly be struck pursuant to Rule 9-5(1) of the Supreme Court Civil Rules.

The court then reviewed the criteria for cause of action estoppel and issue estoppel, the two avenues available in a res judicata defence. In respect of cause of action estoppel the court noted that there must be a final decision of the court, the parties in the subsequent litigation must have been parties in the prior action, the new cause of action and the prior cause of action must not be separate and distinct, and the basis of the new cause of action and subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence.

The three preconditions to the operation of issue estoppel are whether the same question has been decided in earlier proceedings, whether the previous order was final and whether the parties were the same in both proceedings. Noting that res judicata is available in respect of a consent order, the court was not persuaded that McCann’s claim was barred by res judicata, finding that the tort issue raised by McCann was not pleaded in the family law proceeding and no final order was made in respect of it. The court acknowledged that McCann relied on allegations of family violence in her application for exclusive possession of the family home, but noted they were collateral issues to her interlocutory application.

The court also concluded that there was no evidence that the parties intended the agreement, the consent order, or the release clause to bar a separate tort claim, distinguishing the release clauses found in the agreements in the three Ontario cases and rejecting the Ontario line of reasoning.

Barens’ application was dismissed.

**This article was previously published by LAW360, a publication of LexisNexis Canada.

Lawdiva aka Georgialee Lang

Court Denies Application for Limited Transcripts for Family Law Appeal

In JP v. KS 2023 BCCA 408 the court considered whether the registrar of the court had erred by denying JP’s application to submit limited portions of the oral transcripts from the court below for his family law appeal. The main issue on appeal was whether the trial judge erred in law by adopting certain facts and credibility findings from a prior civil proceeding for tortious battery between the parties.

Pursuant to Rule 24(3) of the Court of Appeal Rules, a party must obtain transcripts of oral testimony if they are required to determine the issues raised on appeal. 

JP asserted that full transcripts were not required to determine the legal question he posed and that the cost of the transcripts was prohibitive. In Dhillon v. Dhillon 2005 BCCA 529 Madam Justice Southin remarked that the cost of filing a complete transcript in this Court is “…so far beyond the means of a litigant to make his or her right of appeal illusory.”  

The trial proceedings focused on parent and child relocation to Germany and related parenting issues. Trial judge, Madam Justice McNaughton, held that it would be an abuse of process to relitigate issues decided in the civil proceeding. As a result, she adopted key findings, including the details surrounding a violent incident and related abuse. She also relied on the civil trial findings that KS was a credible witness and JP was not. However, the adoption of the credibility findings from the civil trial were not the exclusive basis for Judge McNaughton’s credibility findings in the family trial, as she engaged in a new credibility analysis for each party and explicitly acknowledged that it would not be appropriate to rely exclusively on the findings in the civil trial, noting that it was, however, relevant to consider credibility findings of other judges, citing Gadhri v. 0760815 BC Ltd. 2019 BCSC 563.

The registrar considered JP’s submissions that only limited portions of the transcript were required for the appeal, and the registrar readily accepted that financial constraints are a valid ground for limiting transcripts where the appeal can still be determined in their absence. The registrar asked JP to outline the errors in law he was alleging and JP identified 20 separate grounds of appeal. After reviewing the grounds of appeal, the registrar determined that many of the alleged errors raised issues of mixed fact and law or discretionary matters which indicated that the entire trial transcript was required to properly assess the issues raised by him. 

The appeal court noted that a registrar’s decision is entitled to a high degree of deference, similar to the deference afforded a lower court. The test was whether the registrar erred in principle, misapprehended the evidence, or was clearly wrong. Salloum v. Smith 2023 BCCA 175. During oral argument, the presiding Justice invited JP to consider abandoning some of his 20 appeal issues, but he declined. The court dismissed JP’s application finding that the “matter has a complex litigation history and issues on appeal arise in a fact rich context”. Canlii records 8 previous court proceedings between the parties between 2021 and 2023. 

Lawdiva aka Georgialee Lang