High-Conflict Parenting Case Applies Amended Rule 15 to Grant Stay of Trial Order

The Saskatchewan Court of Appeal recently considered Rule 15 of the Court of Appeal Rules, which formerly provided that the filing of a notice of appeal operated to stay the execution of the order under appeal. Effective as of Jan. 1, 2023, Rule 15 was amended and now falls in line with the practice in all other provinces in Canada, where a stay application must be brought if an appellant wishes to prevent execution of the order from the court below.

In J.L. v. T.T. [2023] S.J. No. 120 the court heard a stay application, the first under the amended Rule, from the father of a 3-year-old girl, B.L., who had raised his daughter in Saskatoon since her birth in 2019, with the assistance of his mother. The child’s mother, T.T., had acquiesced to her limited parenting time, a situation that affected her bond with the child and her mental health. The parties had never cohabited.

T.T., who had two other young children, sought mental health treatment and in May 2019 she unilaterally removed B.L. from her father’s home and took B.L. to her home on Mother’s Day. In June 2019 J.L. brought an application for interim primary parenting time and supervised access for T.T. B.L. was now back in J.L.’s home. In August 2019 the court ordered that the parties would share joint custody and equal parenting time on a five-day rotation.

This order upset J.L. who declined to see his daughter for over two months. In October 2019 J.L. recommenced his parenting time. Between October 2019 and December 2019, the parties shared parenting time. On Dec. 31, 2019, J.L. advised T.T. that he was relocating from Saskatoon to Regina for his employment and to benefit from his parents’ support. He assured T.T. that he would transport B.L. to and from Saskatoon, as T.T. did not have a vehicle. 

This arrangement quickly deteriorated as J.L. did not return B.L. to her mother in January 2020, which led to an interim application and an order that J.L. return B.L. to her mother’s home, with compensatory parenting time ordered.

The COVID pandemic created further problems resulting in multiple court applications and resulting in six court orders, some with police assistance clauses, requiring J.L. to return B.L. to T.T. J.L. refused to fulfil his promise to provide transportation for B.L. to her mother’s home in Saskatoon.

At trial the court considered evidence that included J.L.’s unwillingness to foster the relationship between B.L. and her mother; T.T.’s Indigenous heritage and her plans for the child’s care moving forward (in the absence of a plan from J.L.); the parties’ inability to co-operate and communicate with one another; T.T.’s limited financial resources to travel to Regina; and J.L.’s behaviour in failing to comply with the court’s previous orders of shared parenting.

In a 42-page judgment the trial court ordered the parties to share decision-making responsibilities and awarded primary parenting of B.L. to T.T. in Saskatoon. J.L. was granted parenting time on three weekends a month in Saskatoon and extended vacation parenting time. J.L. was also ordered to pay child support arrears of $36,942 and ongoing child support of $713 a month. It was the parenting order that J.L. sought to have stayed.

The Court of Appeal reviewed the amended Rule 15, referring to the decision of RJR-MacDonald Inc. v. Canada (Attorney-General) [1994] S.C.J. No. 17 for the proposition that “the same principles should be applied by a court whether it is an injunction or a stay.” The factors to be considered are:

a) An assessment of the strength of the appeal;

b) An assessment of irreparable harm if the judgment is enforced and the nature of such harm;

c) An assessment of the balance of convenience, by weighing the risks of relative harm to each of the parties and an accommodation of a range of equitable and other considerations.

The Appeal Court granted the stay, reasoning that J.L. had articulated “serious grounds of appeal,” including the following:

a) The trial judge based her decision on facts not in evidence;

b) The imposed parenting arrangement was unworkable as the appellant lived and worked in Regina, while the respondent was not employed.

c) The trial judge failed to consider the strength of the child’s relationship with each parent;

d) The trial judge failed to consider that the child had lived with her father for over three years;

e) The child had special needs, is enrolled in preschool in Regina, is not toilet-trained, is non-verbal and sees a speech therapist in Regina.

As a term of the stay, the Appeal Court provided parenting time for the child’s mother every week from Wednesday at 3:30 p.m. to Sunday at 5 p.m., with transportation to be arranged by T.T.

My assessment of the trial judge’s decision is that she was not impressed with J.L.’s ongoing and concerted efforts to thwart his daughter’s relationship with her mother by repeatedly refusing to adhere to previous orders of the court. The evidence indicated that he refused to provide basic medical information concerning B.L. to T.T. and misrepresented the parenting arrangements to B.L.’s medical professionals. The reasons reveal that J.L. was a high-income earner, while T.T. was on social welfare and did not receive any financial assistance from J.L., in the form of child support or financial assistance to enable her to travel to Regina and back.

It also appears that he failed to provide the court with a parenting plan that would see him retain primary parenting, but account for the necessity of T.T.’s active engagement and parenting of B.L. Further, there was no evidence suggesting that T.T. was not a proper and fit parent. While she suffered from anxiety and depression, she was receiving counselling and medication that relieved her of any distracting symptoms. She was also successfully raising two other children, according to evidence proffered by her family support worker from the Ministry of Social Services.

Before the reasons were handed down, J.L. brought multiple applications to the trial judge, including an application to submit fresh evidence and reopen the trial which the court agreed to entertain, together with several additional applications, filed without leave of the court; for disclosure of a tape recording, drug testing for T.T., supervised parenting for T.T., and a parenting assessment order.

The court dismissed all of J.L.’s applications finding that his delay in proceeding with the applications and the numerous court conference calls was his attempt to stall the decision process and delay the release of the court’s reason.

The Appeal Court determined that the appeal be expedited to be heard in June 2023.

**This article was first published in Law360, a division of LexisNexis Canada.

Can You Ever Achieve Finality in a Support Agreement?

In Sandy v. Sandy 2018 BCCA 182 the parties filed a consent order incorporating the terms of their settlement agreement which provided the wife with lump sum spousal support of $411,000. The wife later applied for and obtained a variation order awarding her monthly support of $5, 500  despite the language in their Minutes of Settlement that read: “The Plaintiff’s claim for spousal maintenance shall be dismissed as if tried on the merits.” 

On the husband’s appeal the court considered two questions. The first was whether an order dismissing spousal support could be varied pursuant to section 17 of the Divorce Act. The second was whether an order dismissing spousal support could be reopened via a first instance application for spousal support pursuant to section 15. 2 of the Divorce Act. The court determined that an order dismissing spousal support could not be varied, but a first instance application could be brought. 

The court provided this commentary about drafting and achieving finality and certainty in an order or agreement: 

“In my view the message to drawn from Miglin and LMP is that certainty and finality cannot be achieved by drawing orders that dismiss claims for support. Nor do embellishments such as “as if after trial” or references to “future claims” assist. Rather, parties wishing to achieve finality should set out in an order or agreement the potential change in circumstances they have considered in reaching their agreement, and clearly identify the changes they agree will, or will not, warrant reconsideration of the terms on which they have resolved their support obligations.”

The husband’s appeal was allowed with the court applying the Miglin test. They determined that at the time the agreement was entered into, it was unimpeachably negotiated and in compliance with the Divorce Act. With respect to the second branch of the Miglin test, they stated that Ms. Sandy had the burden of establishing a material change in circumstances not within the contemplation of the parties when they entered into their agreement. The court noted that Mr. Sandy’s financial statement contained the following statement: (income) “fluctuates year to year based on earnings of the partnership” which negated the notion that a change in income had not been expected or contemplated. The court reversed the order for monthly support . 

Lawdiva aka Georgialee Lang

Is Expert Evidence Admissible on Interim Family Applications?

While expert evidence is typically presented at the trial of a family law matter, there are occasions when an expert report is necessary to support an argument on an interlocutory matter. Applications for parenting time, child and spousal support and advances on family property come to mind as instances when an expert report may be called for.

In Ellis v. Alvarez [2023] B.C.J. No. 608 the court heard an appeal from a master’s order where a s. 211 custody report was admitted on an interim application where the issue of parenting time and related issues were considered. The report was admitted and, as a result, the appellant’s parenting time was drastically reduced.

On appeal the appellant argued that the report was not delivered to her in a timely fashion, and that the court should have allowed cross-examination of the expert. The appellant relied on Rule 13-1 of the Supreme Court Family Rules which provides that a report must be delivered to the opposing party “42 days before the scheduled trial date.” It also provides that a party wishing to cross-examine an expert must advise the expert of their wish to conduct a cross-examination at least 28 days prior to the trial.

The court rejected this submission, noting that Rule 13-1 does not govern expert reports on interlocutory applications. Citing L.S. v. G.S. 2015 No. 455, the court held that:

… it is appropriate in certain circumstances to reply on expert evidence in interlocutory proceedings, particularly in family law … despite the absence of a specific rule governing the use of expert evidence in chambers matters, a court should still ensure that there is fair notice to the other side of the factual underpinnings of any expert opinion. What should be avoided is bogging down a hearing that is meant to be a more efficient and timely process than a trial in unhelpful procedural requirements.
L.S. v. G.S. was also referred to by the British Columbia Court of Appeal in Mostertman v. Abbotsford (City) [2022] B.C.J. No. 2548, where the court acknowledged that the common law applies to the use and disclosure of expert opinions on interlocutory applications and held:

I am satisfied that the essential issue in this application is whether the plaintiffs have disclosed sufficient information related to the expert file such that the defendant can properly evaluate the opinion. This includes whether there has been sufficient disclosure of the factual basis for the opinion, the research conducted, and the expert’s qualifications. However, I must also balance the competing principle of efficiency and consider how much disclosure is needed at this stage of the proceedings.
Another admissibility argument raised in cases like this one is that the expert report is hearsay and therefore not admissible. However, the answer to that submission is found in Rule 10-4(13) of the Supreme Court Family Rules, which provides that hearsay is admissible on an application for an interim order.

In Evans v. Mahtoy [2015] B.C.J. No. 2509 the respondent attempted to persuade the chambers judge to refer the application to the trial list because the affidavit evidence contained hearsay. The court noted that the “flaw” in the respondent’s position was that his assertion could be made against every contested application for an interim order, which necessarily proceeds on the basis of affidavit evidence. The court confirmed that the Rules permit evidence to be based on “information and belief,” so long as the source of the information is identified, and a final order is not being sought.  

Lawdiva aka Georgialee Lang

**This article was first published in Law360, a publication of LexisNexis Canada.

Appeal Court Varies Agreement to Alleviate Unfairness Between the Parties

The Court of Appeal continues to deal with appeals involving challenges to agreements that were intended to settle all matters between the parties. In Dhaliwal v. Dhaliwal 2021 BCCA 72 the court considered whether after an eight-year marriage the parties’ marriage agreement satisfied the objectives of the Divorce Act and the Family Law Act.

Mr. Dhaliwal was a former federal politician who was widowed with adult children. His second wife, Ms. Dhaliwal, who had also been previously married and had a young son, had moved to British Columbia after meeting her future husband in India.  She had a PhD in Women’s Studies, she expected to earn $30,000 as an academic in Canada and had assets valued at $200,000.  Mr. Dhaliwal’s income was approximately $100,00 and he had property valued at over one million dollars. Notably however, several of Mr. Dhaliwal’s successful businesses were disclosed in the agreement, but not valued. 

The agreement provided Ms. Dhaliwal with $450,000 if the marriage survived between eight and ten years, which it did. This sum was intended to provide her with funds to purchase a home if the marriage ended in divorce.  The agreement also provided her with spousal support of $3,000 a month for seven years. As a result of the agreement Ms. Dhaliwal left the marriage with a net worth of $698,000, while her husband retained assets valued at $3.7 million. However, the trial court included the spousal support in its calculation of Ms. Dhaliwal’s net worth, although support was paid monthly. 

The trial judge determined that the agreement was fair, as all assets were acquired by the husband decades before the marriage; that she had made no contribution to her husband’s property; and that she was highly educated and able to be employed for a further thirteen years, while Mr. Dhaliwal was near retirement age at the time of trial. As well, her son was now an adult and self-supporting.

 The trial judge failed to mention that the family home had increased in value by 100% from $875,000 at the time of the agreement to $1.9 million at the date of trial. He also failed to note that the lump sum payment contemplated by the agreement was intended to pay for a home for Ms. Dhaliwal. The appeal court allowed the appeal and determined that a “fair approach” was to provide that the parties share equally in the growth in value of the family home, which would increase the payment to the wife from $450,00 to $525,00, an increase of $75,000. The spousal support agreement remained intact. Presumably the “win” in the Court of Appeal came at a very high cost, likely netting Ms. Dhaliwal very little if any benefit at the end of it all. 

Lawdiva aka Georgialee Lang

Relocation and Abduction Cases Continue to Confound Courts: Part 2

With very few family law cases receiving leave from our highest court, the Supreme Court of Canada continues to take an interest in relocation and child abduction cases with its latest pronouncement in F. v. N. [2022] S.C.J. 51.

In a 5-4 decision, which indicates the difficulty these cases pose, the court considered a child abduction case concerning a Pakistani citizen living in Dubai with his wife, who was a citizen of Pakistan and Canada. Their two children had Canadian citizenship but had lived in Dubai their entire lives and were taken by their mother to Ontario to visit their maternal grandparents.

Part one of this series examined the Ontario Superior Court and Ontario Court of Appeal decisions. Part two discusses the Supreme Court of Canada decision.

SUPREME COURT DECISION

The Supreme Court noted that in Canada the provinces treat child abduction in non-Hague cases in a manner methodologically comparable to cases under The Hague Convention on the Civil Aspects of International Child Abduction, by declining to decide parental disputes on the merits and by favouring the return of children to the jurisdiction of their habitual residence. Ontario’s provincial legislation presumes that following an abduction, a child’s best interests are aligned with their prompt return to the jurisdiction of habitual residence, unless there are exceptional circumstances. 

Focusing on the issue of “serious harm” the court said that it is not enough to argue that returning a child to his or her habitual residence would have a negative impact on the child; it must focus on the particular circumstances of the child, rather than a general assessment of the society to which they are sent back.

While the opportunities, social conditions and economic circumstances of a country may play a role in a custody decision on the merits, these issues are not a basis for finding that a child would suffer “serious harm” if returned. In deciding jurisdiction, judges should not compare the living conditions each country may offer.

The standard for “serious harm” may be usefully compared to the definition in The Hague Convention: “a grave risk of harm or an intolerable situation” provided for in Article 13 (1)(b). However, the language in The Hague Convention is not found in the provincial legislation, and it must be accepted that the provincial legislature intended a less stringent test.

With regards to the mother’s argument that a separation between her and the children constituted “serious harm,” the court said that the analysis must be individualized and that a presumption that separation between parent and child will lead to serious harm would effectively encourage parents to rely on their status as primary caregivers to circumvent due process and risk making Ontario a haven for child abductions.

Because the mother testified that she would not return to Dubai, the court examined whether a parent’s refusal to return created “serious harm” and whether this self-induced behaviour legitimately could be used as the foundation for a finding of “serious harm.” Relying on an English case, the court quoted C. v. C. (Minor: Abduction: Rights of Custody Abroad), (1989) 2 All ER 465 at p. 471:

“An obvious strategy for a primary care abductor is to state that she is not prepared to return with the child and that the consequent separation from her will cause the child psychological harm. Such claims are almost invariably rejected by most courts …
The court also considered whether foreign law could ever be a source of “serious harm,” stating that where foreign laws are profoundly irreconcilable with Ontario law it might support a finding of “serious harm;” however, where the foreign test is the best interests of the child, nuances in the law may not be sufficient to unseat this paramount criteria. In these cases, expert evidence on foreign law will be mandatory.”

The expert testimony revealed that United Arab Emirates (UAE) law provides that a mother’s custodial rights could be terminated if she remarried, or when a male child reaches the age of 11 or a female child turns 13; however, the expert evidence accepted by the trial judge confirmed that these provisions do not automatically apply and are determined through a “best interests of the child” lens.

Finally, while the mother declined to make submissions with respect to the father’s voluntary undertakings such that the trial judge did not make them part of his order, the high court reviewed the undertakings and ordered that they be incorporated into a consent order in the UAE.

Four judges of the court would have allowed the appeal, finding that the trial judge misapprehended the evidence relating to the likelihood the children would suffer “serious harm” if separated from their mother. The dissenters rejected the suggestion that the mother had “self-engineered” her claim of “serious harm” by refusing to return to Dubai, citing legitimate concerns about her status as a woman in the UAE. Those concerns included the lack of serious response by authorities to domestic violence victims; the need for her husband to consent to her obtaining a driver’s licence; her fear that her husband would override her ability to be an equal parent to the children; and her inability to obtain a residency permit as a divorced non-national.

Family law cases on the relocation of children, whether as a result of self-help measures, such as abduction, or pursuant to the provisions on relocation in provincial statutes or the Divorce Act, remain the most challenging cases for parents, counsel and the bench. This 5-4 decision illustrates the complexity and diversity of opinions by learned jurists who apply the same law but with vastly different outcomes.

Lawdiva aka Georgialee Lang

This article was originally published in Law 360, formerly The Lawyer’s Daily, a publication of Lexis Nexis Canada.

Relocation and Abduction Cases Continue to Confound Courts: Part 1

With very few family law cases receiving leave from our highest court, the Supreme Court of Canada continues to take an interest in relocation and child abduction cases with its latest pronouncement in F. v. N. [2022] S.C.J. 51.

In a 5-4 decision, which indicates the difficulty these cases pose, the court considered a child abduction case concerning a Pakistani citizen living in Dubai with his wife, who was a citizen of Pakistan and Canada. Their two children had Canadian citizenship but had lived in Dubai their entire lives and were taken by their mother to Ontario to visit their maternal grandparents.

Ontario Superior Court decision

An 11-day trial in Ontario was prompted by a mother who departed Dubai with her two young children, to ostensibly vacation in Ontario with her husband’s consent and return tickets in her pocket. Several weeks after arriving she informed the children’s father that she wished to remain in Ontario where her family resided. The father immediately initiated proceedings under s. 40 of the Children’s Law Reform Act (the Act), arguing that the Ontario court should decline jurisdiction and that the United Arab Emirates should determine all parenting issues. It must be noted that the UAE is not a signatory to The HagueConvention on the Civil Aspects of International Child Abduction.

The mother responded by seeking sole custody, alleging that the children’s father was “ill-tempered and aggressive” and that he be granted limited access to the children. She also argued that s. 40 ofthe Act offended various rights pursuant to the Canadian Charter of Rights and Freedoms.

At the same time, the father filed divorce proceedings in Dubai and was granted a divorce in March 2021. The mother did not participate in the Dubai proceedings. Prior to the Ontario court hearing the father presented a “with prejudice” offer to his wife with undertakings contingent on her returning to Dubai with the children. These included purchasing a home in her name, that the children would live primarily with her, and that major decisions would be made jointly. He suggested a consent order in Dubai and agreed that the mother would be free to contest the conditions offered by him in court in Dubai if she so wished. No response was made to the husband’s proposal.

The issue before the court was whether Ontario should take jurisdiction, and if the court did take jurisdiction, whether to order the return of the children to Dubai.The court found that both were loving and caring parents and while the mother had been the children’s primary caregiver, a nanny had provided substantial assistance. Unfortunately for the mother, the court found that she lacked credibility and did not accept her evidence of incidents of physical aggression on the part of the children’s father, and it discounted her claims of religious discrimination and social isolation.The mother also downplayed the role of the family’s nanny, which contradicted her husband’s evidence. More importantly, while testifying that she supported co-parenting, even joint custody, her draft final order provided “anything but lots of access.”

Finally, the mother’s own expert witness on the law of the UAE was “devastating” to the mother’s case, eviscerating the mother’s evidence that the law in the UAE did not endorse the best interests of the child as the paramount factor in a custody decision. The mother was invited by the court to make submissions on how the father’s undertakings could be incorporated into a court order, but she chose not to do so. The court declined jurisdiction under the provincial legislation and its “parens patriae” authority, ordered the return of the children to Dubai, and made the following findings:

a) There was no evidence of a risk of physical harm if the children were returned to Dubai;

b) There was circumstantial evidence that the children could be at risk of emotional or psychological harm if they returned to Dubai without their mother, but the harm did not satisfy the “serious harm” test;

c) There was no evidence that the court system in Dubai would not apply the best interests ofthe child test;

d) The evidence proffered indicated that the Dubai court would approve and enforce the proposed settlement offer made by the father, if agreed to by the mother.

Ontario Court of Appeal decision

On appeal to the Ontario Court of Appeal, the majority dismissed the appeal and upheld the trial judge’s order that the children be returned to Dubai, with one dissenting judge who concluded that the trial judge had erred in his assessment of “serious harm” and that the Ontario court had jurisdiction to make a parenting order under the Act. The Appeal Court also dismissed the mother’s appeal with respect to the constitutional arguments and the Supreme Court of Canada declined to grant leave on the Charter issues.

This is part one of a two-part series. Part two will examine the Supreme Court of Canada decision.

This article was originally published in Law360, formerly The Lawyer’s Daily, a publication of Lexis Nexis Canada.

Lawdiva aka Georgialee Lang

Fractured parent/child relationships: The side effects of high conflict divorce

In the case of Kudrocova v. Kronberger 2023 ONCA 26, a family in crisis agreed to a final custody order in 2016 which provided for a shared week on/week off parenting of girl/boy twins born in 2009. The order was confirmed in May 2019 and additional terms were added considering the continuing conflict between the parents, including a requirement that the parties attend coaching and counselling based on recommendations from counsellors from the “New Ways for Families” program.

The children’s mother, Claudia Kudrocova, was given final decision-making authority for the children’s education and the order was reviewable without a material change in circumstances after the counselling program was completed. Unfortunately, while the order was well-intentioned, the counselling was ineffective and the parties remained polarized, with the young boy refusing to see his mother and living with his father, Ferdinand Kronberger, in Brantford, Ont., and his sister residing exclusively with her mother in Cambridge, Ont., and refusing to see her father.

Each party brought an application in the fall of 2019. The mother sought sole custody of her now 10-year-old son with no access to his father. The father sought sole custody of his son and was content to let his daughter stay with her mother despite his misgivings. Because the May 2019 order gave decision-making on education to Kudrocova, the parties’ son lived in Brantford but attended school in Cambridge at his mother’s insistence, about 30 minutes away. This was an additional source of conflict between the parties.

A Views of the Child Report was conducted by the Office of the Children’s Lawyer in December 2019, which revealed that each child saw the parent with whom they lived as innocent and identified the other parent as the problem. The parties’ son indicated that he wished to remain with his father and attend school in Brantford, but would consider having contact with his mother every other weekend if his sister visited her father every other weekend. She expressed a willingness to do so if it was reciprocated. As it was, neither twin had seen the other outside of school since late 2018.

Kudrocova alleged parental alienation and sought to eliminate Kronberger from her son’s life. However, the court noted that she had no plan to address the alleged alienation and had not considered counselling, therapy or any other type of intervention for her son. The court determined that each parent had, consciously or not, encouraged a child to align with them and against the other parent, and reluctantly concluded that reunification therapy was unlikely to be successful without all parties and the children buying into it.

The court ultimately ordered in March 2020 that Kronberger would have sole custody of his son and Kudrocova would have sole custody of her daughter. Each parent would have sole decision-making authority over the child in their custody. The children were ordered to spend one Saturday every second weekend with the other parent. The motions judge left the door open for the parties to return to court if there was a concrete proposal for further therapeutic intervention (see Kronberger v. Kudrocova 2020 ONSC 1877.

Kudrocova appealed the court’s decision and submitted new evidence that the Saturday visits had been suspended because of incidents that erupted at her home during a visit. Her first ground of appeal was that the motion judge erred in making the orders in the absence of a material change of circumstances. This ground was quickly dispensed with as the May 2019 order specifically provided that custody was reviewable after the counselling program was completed, without the necessity of showing a change in circumstances. Her second ground of appeal was that the issue of parental alienation required a trial with viva voce evidence. However, the appeal panel pointed out that the hearing in the court below was based on affidavits and no one had requested oral evidence. Also, no one took the position that a trial was required to resolve the outstanding issues, nor was there any indication that the court below lacked sufficient evidence to make its determination.

Finally, the Appeal Court stated that the status quo at the time of the hearing in the court below was that each child lived with their preferred parent and the court’s order merely affirmed the existing situation. The new evidence was admitted, but the appeal was dismissed with costs to the father.

Lawdiva aka Georgialee Lang

**This article was first published in The Lawyer’s Daily, a publication of Lexis Nexis Canada.

SPECIAL COSTS AWARD AGAINST LAWYER REVOKED

The subject of “costs” in court cases is often an enigma to clients. What are costs? When will you have to pay the opposing party’s costs?, and other similar questions.

Costs are awarded to the substantially successful party in civil and family court cases. Judges have determined that substantial success amounts to success on 70% of the legal issues decided by the court. For example, if you go to court seeking child support, spousal support, occupation of the family home, and a restraining order and are successful on three out of the four issues, you will likely receive costs. 

These costs are called “party-party” costs and are not equal to the legal fees you have expended, but rather are a contribution by the losing party to the winner, usually representing about 30% of actual fees.

Costs are also not required to be paid during the litigation process, but are calculated according to a schedule in the Rules of Court and payable at the conclusion of a lawsuit.

Where a litigant’s behaviour in the litigation is deserving of punishment or rebuke, the court can order the litigant to pay “special costs” to the opposing party. Special costs are usually about 90% of the successful party’s legal fees. The kind of behaviour that attracts special costs is conduct described as “outrageous, high-handed,and reprehensible”.

In a few rare cases judges have ordered a litigant’s lawyer to pay costs to the opposing party. 

The recent case of Nuttal v. Krekovic 2018 BCCA 341 is an example of such a case. Mr. Krekovic was acting for a client who was injured in a hit and run motor vehicle accident outside a local pub. His client suffered significant injuries. Unfortunately, after an exhaustive RCMP investigation the driver of the vehicle, who fled the scene, could not be identified. 

Mr. Krekovic hired several private investigators but nothing further turned up. After two years of inquiries, Mr. Krekovic received vital information from a lawyer who represented the bar where the accident took place. This lawyer provided Mr. Krekovic with the name and birthdate of the alleged driver. Mr. Krekovic recognized the name of the alleged driver as it had come up during earlier investigation. After further inquiries it became obvious that the alleged driver had a common surname in the East Indian community, Dhillon, and there was some concern to identify the correct man.

Once Mr. Krekovic was satisfied that he done all the due diligence he could, he applied to the court for an order to add Dhillon’s name as a respondent in the lawsuit. He served the alleged driver with the court order and also informed the RCMP so they could re-open their investigation. Shortly after serving Dhillon, his lawyer contacted Mr. Krekovic and advised he had the wrong man. This was followed by a phone call from counsel for the bar who said he had made a mistake. Mr. Krekovic immediately advised Dhillon’s lawyer that he would discontinue the action against his client.

Mr. Krekovic offered to have his client pay party-party costs to Mr. Dhillon, but Dhillon wanted more. He sued Mr. Krekovic for special costs and convinced a judge that his actions were “indefensible and an abuse of process meriting sanction in the form of an order of special costs payable by him personally”. 

The judge found that had the judge who made the order adding Dhillon as a party to the lawsuit known there was a possibility of multiple persons with the same name and similar birthdates, she would not have made the order.

Mr. Krekovic appealed the special costs order to the Court of Appeal, who allowed his appeal and revoked the special costs order. The Appeal Court said:

“…an award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice. This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate…”

In my view, Mr. Krekovic did everything he could do to identify the correct driver, and when notified of the error, he immediately took steps to terminate the court action against him. His unintentional mistake should never have resulted in an order for costs. It has been said that to penalize lawyers for mistakes, errors, or even negligence by way of special costs would undoubtedly put a damper on lawyers zealously representing their clients. 

Lawdiva aka Georgialee Lang

Court Cannot Order Parties into Arbitration or Limit Child Support Variation Applications

In SSG v. SKG 2022 ABCA 379 Canlii, after a 26-day trial involving a high-conflict couple, the court made orders for a detailed parenting plan for two children, ages 9 and 10-years old, retroactive and ongoing child support payable by the father to the mother, and an order that the parties retain a parenting coordinator with arbitration authority to “resolve the day to day conflict that may arise related to the detailed parenting plan or in relation to any conflict over joint decisions.” The court also ordered that the parties could not bring an application to vary child support unless the father’s line 150 income deviated upwards or downwards by more than 20% and the mother could not bring a variation application based on a decrease in her income.

The parties, who had been married for 7 years, set down a 10-day trial which ballooned into 26 days and generated hundreds of pages of written submissions. Both parties indicated a willingness to have certain issues arbitrated, however, after the trial reasons were handed down on February 14, 2022, they appeared again before the court on July29, 2022 to resolve several outstanding matters. Because they disagreed on the form of order for the July 29 hearing, the trial judge drafted the order which read:

” Within 30 days of the date of this Order, the parents shall retain a Parenting Coordinator with arbitration powers, the cost of which shall be shared equally between the parties. If the parties cannot agree on a Parenting Coordinator they will remain Krysta Oswald.

When first retained, the Parenting Coordinator shall be provided with all reports, judgments, prior arbitration awards, and court orders and shall speak to Dr. PP, Ms. R. and Dr. F.”

Before the order was made the children’s mother made the following submission to the court:

” I have thought about that a lot. We have participated in parenting coordination multiple times. Everybody agrees it’s been nothing short of a disaster. It is expensive and now there is a mountain of paper that I understand the court says…before we go see somebody, they have to go through that and then they have to consult all these people. I don’t see that very likely to get a timely decision about anything that comes up.”

The mother appealed both the arbitration order and the order restricting a child support variation.

The appellate court determined that the trial judge had no authority to impose arbitration on the parties, relying on Durocher v. Klementovich 2013 ABCA 115 where the court said:

…it is a principle of access to justice that the parties can bring any dispute they may have to the Court…if would be extraordinary to decline to decide, must less compel the parties to submit to a private adjudicator….a court of competent jurisdiction does not permit the delegation of that power to private arbitrators. An obligation to arbitrate must be founded in a statute or an agreement.”

With respect to the order restricting applications to vary child support, the appeal court accepted that the trial judge was “well-intentioned” and wished to discourage litigation, but nothing in the Divorce Act or the Child Support Guidelines authorized him to limit the circumstances in which a variation application could be made.

The mother’s appeal of both issues was allowed and the orders were set aside.

Lawdiva aka Georgialee Lang

Misconduct and Lack of Contribution are not Grounds for Reapportionment of Property

In He v. Guo 2022 BCCA 355 the court considered whether a false immigration complaint levelled by Mr. He against his wife of 3 ½ years was a proper consideration for a 100% reapportionment of property owned by Ms. Guo in her favour. 

The facts revealed that after an online connection, the parties began living together in November 2014 and separated in early 2018. Ms. Guo was in Canada on a visitor’s visa with her 10-year-old son who had a student visa. She purchased a home in August 2014 where the parties resided. 

During the marriage Mr. He agreed to support her and her son’s applications for permanent residency status by giving a financial undertaking. Permanent residency was granted in December 2017. But apparently angered by their separation he filed a document with Immigration Canada titled “Immigration Marriage Fraud Report” in April of 2018 asserting that the marriage was a fraud. He also alleged that Ms. Guo had “beat him, threatened a witness and was dating some men for money”. 

The trial judge rejected Mr. He’s allegations which should have been the end of it, but the judge invoked section 95 of the Family Law Act which provides for an unequal division of property based on “significant unfairness” and found that it would be significantly unfair to condone Mr. He’s “malicious act of filing a baseless Immigration Marriage Fraud Report”. This together with the trial judge’s findings that Mr. He contributed very little to the family property led him to reapportion the property entirely to Ms. Guo. 

The factors for reapportionment in section 95 are as follows:

• The duration of the relationship;
• The terms of any agreement;
• A spouse’s contribution to the other spouse’s career or career potential;
• Whether a spouse caused a significant increase or decrease in the value of family property;
• The fact that a spouse substantially reduced the value of family property or disposed of or converted family property causing the other spouse’s interest to be defeated or adversely affected. 
• Any other factor that may lead to significant unfairness; 
• The extent to which the financial means and earning capacity of a spouse has been effected by the responsibilities and other circumstances of the spousal relationship in relation to the objectives of spousal support. 

Earlier appeal cases confirm that the “threshold for departing from equal division of property is high”. VJF v. SKW 2016 BCCA 186 and Khan v. Gilbert 2019 BCCA 80. 

The issue of using section 95 to compensate for misconduct was considered in Singh v. Singh 2020 BCCA 21 where a bad faith bankruptcy was filed to avoid paying the claimant’s costs in respect of a property. This behavior was  not characterized as “family violence”, unlike the finding in He v. Guo. However, in Singh Madam Justice Garson said:

…I must consider whether the factors the judge relied on are properly the subject of a s. 95 (2). In my view, they are. The economic characteristics of a spousal relationship would clearly…permit consideration of the costs of bankruptcy and a party’s motivation for entering bankruptcy…and the consequent impact on the value of the asset…”

The court in He v. Guo held there was nothing in section 95 that indicates that family violence should be awarded special consideration absent impact on the “economic characteristics of a spousal relationship.” Ms. Guo testified that she was emotionally shaken by her husband’s conduct but led no evidence that his report to Immigration caused any negative financial consequences or otherwise hindered her self-sufficiency. The court stated:

“In these circumstances, reliance on the malicious filing of a baseless report to reapportion property amounts to an award akin to damages for misconduct or, at the further extreme, punitive damages for misconduct. Neither, in my view, is contemplated by the applicable provisions, and is contrary to the determined attempt to eradicate general enquiries on the relative conduct of parties as a feature of family litigation, absent conduct relevant to the particular relief claimed in the proceeding.” 

With respect to Mr. He’s limited financial contribution to property as a reason to reapportion the property entirely to Ms. Guo, the court held that to find that a spouse of modest income loses the presumptive equal sharing by reason only of having made a small financial contribution is contrary to the Family Law Act and an error in law. 

The appeal court set aside the trial decision and granted Mr. He a 20% interest in the family property. 

**This article was first published by The Lawyer’s Daily, a publication of LexisNexis Canada.