Sealing Order in Sherman Double Murder Set Aside

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The murders of billionaire couple Bernard and Honey Sherman of Toronto shocked Canadians across the country, who tend to believe that the very wealthy lead charmed lives. The case attracted huge attention, not only for the prominence of the Sherman’s and their political connections, but for the initial misstep, when the Toronto Police first pronounced their deaths a suicide. (Donovan v. Sherman Estate, 2019 ONCA 376)

The latest chapter in this story played out in a courtroom on April 29, 2019 when the Toronto Sun newspaper and reporter Kevin Donovan brought an appeal from a motions judge who ordered that the Sherman court files be sealed in order to protect the privacy and dignity of the victims of violence and their loved ones. The court also accepted the argument of the estate of the Sherman’s that without a sealing order, there was a reasonable apprehension of a risk to those who had in interest in the estate.

The Appeal Court confirmed that the lower court had applied the correct legal test which requires a party seeking a sealing order to show that the order is necessary to prevent a serious risk to an important public interest which cannot be protected by other reasonable alternative methods. Secondly, the party seeking an order must establish that the salutary effects of the order outweigh the negative effects on the right of freedom of expression and other public interests served by open, transparent courts.

However, the Appeal Court held that the focus on a risk of harm to the estate administrators and beneficiaries was not proven on the limited evidence before the motions judge. The Appeal Court allowed the appeal and set aside the sealing order finding that the lower court’s analysis was flawed:

“In our view, the motion judge’s analysis comes down to the proposition that because the Shermans were murdered by some unknown person or persons, for some unknown motive, individuals named as beneficiaries in their estates or as administrators of their estates are at risk of serious physical harm. With respect, the suggestion that the beneficiaries and trustees are somehow at risk because the Shermans were murdered is not an inference, but is speculation. It provides no basis for a sealing order.”

The Respondents requested the opportunity to present proposed “redactions” of the file but that too was denied.

The public can expect to learn more about this case when the sealed file is opened in 10 days.

Lawdiva aka Georgialee Lang

Access Contempt Findings Dismissed by Court of Appeal

GeorgiaLeeLang016A high conflict family dispute was the background for an Ontario judge to make contempt findings against a mother who allegedly failed to provide access/parenting time in accordance with a court order dated September 2015. (Ruffolo v. David, 2019 ONCA 385)

The child’s father presented 37 alleged breaches of ten separate access/parenting orders. The application judge found three instances of breaches that warranted contempt findings:

1. The appellant failed to provide the children’s summer activity schedule by May 1, from 2012 to 2015;

2. The appellant did not allow the respondent to have access to the children during the Easter weekend in 2015; and

3. The appellant denied the respondent access to his son, Michael, on his birthday in October 2015.

On appeal, the three contempt findings were dismissed but first, the Court of Appeal considered several principles of law germane to contempt cases.

The Court noted that an appeal of a contempt finding should not usually be heard until the sanction for the contempt has been made. In this case it had been close to three years since the contempt finding had been pronounced, but no sanctions hearing had yet occurred. The Court confirmed that until a chambers judge has disposed of the application, including the sanction, the appeal court will not know how serious the judge considered the contempt to be.

Nonetheless, because both parties, acting on their own, urged the court to hear the appeal, the Court did so.

In considering the merits of the appeal the Court pointed out the “extremely short” reasons and commented that the findings did not appear to be based on affidavit material, but on the appellant’s submissions during the hearing. The Court also addressed the lack of background information in the reasons and the application judge’s failure to include pertinent details, such as the respondent’s repeated failure to regularly exercise access saying:

“This is significant, as there would not have been strict compliance with the terms of the order for much of the period between 2011 and 2015.”

The Court’s dismissal of the contempt findings centred on the lack of an evidentiary foundation to support the allegations made. For example, the Court found there was insufficient evidence that the mother had prevented the father from exercising the access he was entitled to, either by not providing notice to the mother of his intention to see the child, or by the child refusing to see the father with no proof that the mother stood in the way of the scheduled access time.

Finally, the Court emphasized the discretionary nature of contempt proceedings and repeated the time-worn admonition that contempt proceedings are a last resort, particularly where the best interests of a child are paramount.

Far more satisfactory is to rely on the enforcement provisions of provincial legislation, widely expanded in British Columbia’s recent Family Law Act where appropriate punitive remedies can be fashioned without resorting to contempt.

Lawdiva aka Georgialee Lang

Mother Launches Constitutional Challenge to Child Support Provisions of Divorce Act and Family Law Act

BarristerA British Columbia mother has launched a constitutional challenge to the provisions of the Divorce Act, Family Law Act, and Child Support Guidelines dealing with child support.

Claimant M.K. brought forward the legal theory that children have a constitutional right to receive child support from both parents from the date of the child’s birth. She argued that legislation that permits parents to avoid this responsibility infringes a child’s right to support.

The substance of her claim arose from her unsuccessful efforts to obtain a court order for retroactive child support for her 18-year-old son. She had raised her son on her own. It was only in 2013 that her son connected with his father on social media, resulting in her first court application.

In 2015 M. K. obtained an order from the Provincial Court for retroactive child support for her son, from the date of his birth. The Respondent appealed that order to the British Columbia Supreme Court, who substantially reduced the period of retroactivity to the date her application was commenced.

M.K.’s appeal to the B.C. Court of Appeal failed, as did her leave application to the Supreme Court of Canada. The sum total of her efforts brought her only $11,000 in child support, with court costs awarded against her of $13,000.

In September 2017 she filed a Notice of Civil Claim against the Attorney General of B.C. challenging provisions of the Divorce Act, the Family Law Act, and the Child Support Guidelines, alleging that to the extent the law did not provide for child support commencing from a child’s birth, the provisions were contrary to sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

In February 2019 the Attorney General brought an application to strike her Notice of Civil Claim arguing that it constituted a collateral attack on the earlier Supreme Court order and was an abuse of process. The AG also argued that M.K. had neither private nor public standing to maintain her claim. The British Columbia Supreme Court agreed with the Attorney General, pointing out that the time to bring her Charter challenge was in the initial child support court action. M.K. v. British Columbia (Attorney General) 2019 BCSC 166

After filing an appeal, her next step was to apply to the B. C. Court of Appeal for an order that she not be required to pay court fees based on undue hardship. The Court considered her financial circumstances and agreed that her tight financial situation brought her within the test for a waiver of fees. Next the Court considered whether her appeal was of sufficient merit to warrant ordering a waiver of fees.

Mr. Justice Hunter remarked that her appeal would be challenging as she needed to overcome the standing issue and then face arguments that her claim was a collateral attack on previous decisions in the Court of Appeal and in the Supreme Court.

He stated:

“…. it seems to me highly unlikely that she will succeed in overcoming these hurdles. However, I am reluctant to conclude that the appeal is bound to fail. In my view, that concept, for purposes of an order waiving fees that would impose undue hardship on an appellant, must be considered in the context of access to the court that was explained by the Supreme Court of Canada in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59”

Accordingly, the Court granted her application and waived the applicable fees.
M.K. v. British Columbia (Attorney General) 2019 BCCA 161.

Lawdiva aka Georgialee Lang

Lengthy and Irrelevant Affidavits a Waste of Court’s Time, Says Judge

GeorgiaLeeLang025In a recent Ontario case, the Court considered an application for child support where the parents shared equal parenting of two children. (Carroll v. Carroll, 2019 ONSC 2505) Despite finding that the parties had not provided sufficient information for the Court to make a reasoned decision, the judge decided to make a “temporary temporary” order, which he described as an order that could be varied, with no need to adduce a material change in circumstances.

The interesting part of this decision is the chambers judge’s remarks regarding the content of the parties’ affidavits. In dealing with costs, the Court decried the lengthy and mainly irrelevant contents of their respective affidavits, commenting that the practice of having clients prepare their own affidavits with counsel “simply having those versions type-written and put into affidavit form” was to be discouraged.

The Court also observed that an affidavit in support of an application should focus on the orders sought by the applicant and that “throwing in the kitchen sink” was not helpful. In this case, the parties’ affidavits contained lengthy evidence regarding custody matters, which had already been agreed and resolved.

Ellies J. said:

“None of this evidence was helpful to the court with respect to the issue of support. Indeed, much of it proved to be a waste of the court’s time.”

Family Lawyer Ordered to Pay Special Costs for Inaccurate Drafting of Order

GeorgiaLeeLang100In an interesting case from the Alberta Court of Appeal, the Court awarded special costs personally against a family law lawyer, who failed to accurately draft a court order, causing confusion and prejudice to the father involved in the case. Svederus v. Engi, 2019 ABCA 155

The case began with a mediated settlement between the parents for equal shared parenting of their children. A year into this regime, the child’s mother appeared in chambers, with counsel, alleging urgency and requested an order for a change in custody to primary residence with her. The Court described the mother’s evidence as “raising the spectre of an unwholesome atmosphere” and suggested that an “interim, without prejudice, temporary order” be made, pending a short adjournment to August 10, to provide time for the unrepresented father to file affidavit material. The Court also ordered some weekend parenting time for the father. The father’s approval of the order was dispensed with.

When the matter came back to chambers, the mother’s counsel took the position that the initial chambers order awarded primary residence to his client and the judge was precluded from revisiting that issue.

At the hearing, mother’s counsel said:

“it is clear that what has been ordered is, in fact, primary care with my client. I do not know that there is any way around that.”

The second chambers judge did not have a transcript of the proceeding before the first chambers judge, but relying on the entered order and mother’s counsel, acceded to his claim that primary residence had already been established. He did order parenting time for the father.

On appeal, the Court emphasized counsel’s obligation to fairly and accurately draft orders that reflect what the Court has ordered. In this case, the entered order read: “The children shall remain in the Applicant’s primary care until further order of the court”. The Appeal Court confirmed that the order pronounced was not captured by the language used by mother’s counsel.

Notably, the Appeal Court remarked that at the appeal hearing mother’s counsel continued to argue that his order was accurate. He argued that “temporary” and “interim” were synonymous, a proposition rejected by the Appeal Court, who said that omitting the word “temporary” and the August 10 time limit was of significant consequence.

Allowing the appeal, the panel next considered the appellant’s request that special costs be paid by mother’s counsel. The Court agreed, and ordered counsel to pay costs of $2,000 to the father. Counsel’s insistence on appeal that his order was accurate was but one factor for the court to consider. More egregious was counsel’s position that despite reviewing the transcript he blamed the court clerk at the first hearing for his error.

Lawdiva aka Georgialee Lang

The Affidavit “Wars” Continue

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One of the banes of family law is the never-ending stream of affidavits that are submitted, inviting reply, counter-reply and rejoinder, sometimes well-meaning, but often an exercise in irrelevant excess.

That is what Madam Justice Choi was presented with in the case of Quigg v. Quigg 2019 BCSC 628, however, what made the Quigg case most unusual was a previous order of Judge Choi’s where she ruled that neither party could file additional affidavits.

Nonetheless, the Claimant, Ms. Quigg, sought to have three additional affidavits admitted, including one of her counsel’s legal assistant, with 113 pages; a second affidavit from the same legal assistant, with 295 pages; and the third, an affidavit of Ms. Quigg, numbering 31 pages.

The Court considered six cases presented by counsel but distinguished all of them. Clearly the fact that an order had been made specifically disallowing additional affidavits made it difficult to find a case on point. However, the Court mentioned a decision of Mr. Justice Barrow where he held that “the court should exercise its discretion to admit late-filed affidavits sparingly, and only in clearly meritorious cases, where to exclude the evidence would result in a “substantial injustice”.”

Proffering a three-part test, the Judge refused to admit the affidavits. She found that:

1. Admitting the affidavits would result in prejudice to Mr. Quigg, who acting in person, had completed his arguments over the a period of six days. The Court noted the delay that would inure were he to be obliged to respond to three additional affidavits. The Court also noted that 25 volumes of affidavits were already before the court.

2. The inadmissibility of the affidavits would not prevent the Court from making a reasoned determination on the merits.The Court endorsed Mr. Quigg’s position that certain of the affidavits were “boosters”, filed to shore up previous evidence, after hearing Mr. Quigg’s submissions. Judge Choi remarked that at some point the court must say “enough is enough”.

3. The interests of justice do not weigh in favour of admissibility. The Court held that given the previous order barring additional affidavits the threshold to admit further affidavits was very high, and that no injustice would occur by ruling them inadmissible.

Lawdiva aka Georgialee Lang

Ex-Wife’s “Secured” Support Provides Her With Entire Life Insurance Policy

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When couples separate and negotiate child or spousal support, it is not unusual to have a paragraph in a separation agreement or court order that the payment of support is “secured” by a life insurance policy on the life of the payor, in the event of his or her untimely death. The rationale, of course, is that there will be a fund of money to draw upon if the payor’s death occurs while he or she is still obligated to make support payments.

A recent case from the Ontario Superior Court considers whether a “secured” spouse is entitled to receive ongoing support from the policy or whether the entire life insurance policy is payable to the former spouse.

In Birnie v. Birnie, 2019 ONSC 2152 the Court focused on determining whether the payment of life insurance is contained in a “stand alone” clause that entitles the beneficiary to the entire policy or whether it is clearly only intended to provide security for future payments.

The facts are straightforward. Lawyer Michael Birnie separated from his wife after 15 years of marriage. Their separation agreement dated October 19, 2004 included the provision that he would obtain a life insurance policy in the amount of $500,000 and name his former spouse, Janice Birnie, as the irrevocable beneficiary, which would be kept in place so long as he was obligated to pay spousal support. The paragraph read:

“The Husband undertakes and agrees to obtain a life insurance policy on his life in the face amount of $500,000.00. The Husband will designate the Wife as the irrevocable beneficiary under the terms of the aforementioned life insurance policy; with the beneficiary designation to continue for so long as the Husband is required to pay spousal support to the Wife. Upon the execution of the Separation Agreement by both Parties, the Husband will forthwith provide documentation to the Wife confirming the details of the life insurance coverage, confirmation of the face amount of the policy, and confirmation that the Wife is designated as beneficiary under the terms of the said policy. In addition, the Husband shall provide a direction and authorization to the Wife addressed to the life insurer allowing the Wife to obtain any and all information that she may require directly from the life insurance company with regard to the details of the life insurance designation outlined herein.”

Upon her former husband’s death, she brought a court action in regards to her interest in the life insurance policy, a step that revealed that Mr. Birnie had not obtained the policy he agreed to purchase. As a result she brought a claim against his estate, the executrix and beneficiary being his second wife.

While Ms. Birnie took no court action to confirm that the life insurance policy was in place, she did send her former husband an email in 2014 asking that he provide her with the proof required by the separation agreement.

Relying on Turner v. DiDonato 2009 ONCA 235 the Court held that the language of the life insurance policy indicated a “stand alone” benefit, entitling Ms. Birnie to the sum of $500,000, despite the reference to “the beneficiary designation continuing only so long as the Husband is required to pay spousal support to the Wife.”

The Court provided the following analysis:

a) The agreement contained no express language that the sole purpose of the insurance was to secure support;

b) The releases in the agreement made clear that the agreement constituted a full and final settlement of all issue, which precluded a finding that the insurance was intended solely as security, as such a finding would lead to further litigation;

c) There was no “draw down” clause whereby Mr. Birnie could lower the amount of insurance as his support obligation diminished.

As a lawyer who has drafted hundreds of separation agreements, this decision is a wake-up call for lawyers who believe that a paragraph indicating that life insurance is “security for support” is sufficient to ensure that the payor’s entire policy is not lost to a former spouse.

Lawdiva aka Georgialee Lang