Extra Fee for Excellent Result in Family Law Case Denied by Ontario Court

GeorgiaLeeLang025The law in Canada generally prohibits lawyers from entering into a contingency fee agreement with clients in family law cases. In Ontario there is an absolute prohibition, while in British Columbia, it is permissible so long as the matter does not relate to children and is strictly financial.

In a recent Ontario case, the Court of Appeal (Jackson v. Stephen Durbin and Associates 2018 ONCA 424) considered whether a family law lawyer’s retainer agreement, which stipulated that if the lawyer achieved exceptional results he could charge an additional fee, constituted a contingency fee agreement.

Client Davis Jackson, a police officer earning $96,000 per year, hired Stephen Durbin and Associates to represent him in an action where he sought custody of his six-year-old daughter. The firm’s representation was excellent. Mr. Jackson received sole custody of his daughter, one-half of the sale proceeds of the matrimonial home, and costs of $192,000.

Mr. Jackson owed the law firm $132,597 in legal fees which he paid, but the firm also held back a “results achieved fee” of $72,433, to which he objected. No breakdown of the extra fee calculation was provided.

Ontario’s Solicitor’s Act reads as follows:

Contingency fee agreements

28.1 (1) A solicitor may enter into a contingency fee agreement with a client in accordance with this section.

Remuneration dependent on success

(2) A solicitor may enter into a contingency fee agreement that provides that the remuneration paid to the solicitor for the legal services provided to or on behalf of the client is contingent, in whole or in part, on the successful disposition or completion of the matter in respect of which services are provided.

No contingency fees in certain matters

(3) A solicitor shall not enter into a contingency fee agreement if the solicitor is retained in respect of,

(a) a proceeding under the Criminal Code (Canada) or any other criminal or quasi-criminal proceeding; or

(b) a family law matter.

The law firm argued that the results fee was not a contingency fee but a “bonus” or “premium” which was not inappropriate.

The court disagreed saying that family law litigation is fundamentally different from civil litigation. They said that because family finances are divided and no outside funds are injected, it is inappropriate for a lawyer’s fee to be contingent on a particular result.

In respect of a custody issue, the court confirmed there are no “winners” or “losers” as a determination of custody is based on a child’s best interests and an analysis of which parent had more success is contraindicated: it is the child’s success that is paramount.


The Door Slams Shut on Ex-Wife Who Wants More Spousal Support

P1010870 - Version 2In a sensible decision handed down today by the BC Court of Appeal, (Sandy v. Sandy 2018 BCCA 182) a former spouse has learned that the trial judge’s order that she could come back to the “well” after a final settlement of spousal support is unsupportable in law.

Ms. Sandy and her accountant husband settled all financial issues between them by executing a separation agreement that dealt with spousal support via a lump sum payment of $315,000. She eventually received the sum of $411,000 in spousal support because of a CRA reassessment favourable to her spouse, together with her share of the family property, an amount a little more than $1 million dollars.

At the time of the agreement the parties concurred that the husband’s income was $600,000, but did not address his future prospects or whether his income was likely to increase over time.

But his income continued to grow after the agreement was signed. He earned more than $800,000 in 2010 and more than $900,000 in 2014.

Ms. Sandy sought to vary the spousal support on the basis of a change in her health situation and her former spouse’s increase in income.

The first question for the Court of Appeal was whether it was possible to vary an order under s. 17 of the Divorce Act, where the order dismissed a spouse’s claim for spousal support.

Not surprisingly, they answered “no”, however, they acknowledged that in Ontario a five-member panel of the appeal court had decided the answer in the affirmative. Madam Justice Fenlon agreed that if the answer were to be “yes’ it would have to come from an enhanced panel of the Court of Appeal.

The next question was whether the Court could address the issue of ongoing spousal support where a dismissal had been ordered, via s. 15.2 of the Divorce Act, a first instance application. Their answer was “yes”, relying on Mr. Justice Goepel’s decision in B.G.D. v. R.W.D., 2003 BCCA 259, where it was determined that an order dismissing all future claims for spousal support is not supportable at law and it was inappropriate to oust the jurisdiction of the court.

Fenlon J. wrote:

“It is apparent, then, that an order dismissing a claim for child or spousal support does not preclude a subsequent application for support.”

Relying on Miglin v. Miglin the Court applied a two-stage analysis, finding there was nothing to suggest unfairness or non-compliance with the principles of the Divorce Act regarding spousal support. Ms. Sandy had counsel and the services of a financial advisor through the negotiations. With respect to the second stage, she had the burden of establishing a significant change in circumstances not within the contemplation of the parties at the time they signed the agreement.

While the trial judge found that Mr. Sandy’s increased income was a material change, the appeal court disagreed, saying that the trial judge made an assumption, not supported by the evidence. There was no evidence that the increase had not been in the contemplation of the parties, and the trial judge could not simply assume it had been. She noted that Mr. Sandy’s form 8 indicated that “his income fluctuated from year to year” and he estimated his next year’s income at $650,000.

The Court of Appeal offered sage advice saying:

“In my view the message to be drawn from Miglin and L.M.P. v. L.S., 2011 SCC 64 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 changes 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 lesson to be learned is that if your client is seeking finality in spousal support, the order or agreement must specifically identify the future changes that will or will not open the door to more support.

Lawdiva aka Georgialee Lang

Attacks on Canadian Christian Values is Real

GeorgiaLeeLang100Imagine a situation where a gay couple were told they could not adopt a child because they were gay, or a Muslim couple told the same thing….The outcry from the public, specific interest groups, and civil liberties organizations would be searing and the media would gobble up the controversy.

But that’s exactly what occurred in Edmonton last year when an evangelical Christian couple, who otherwise qualified to bring a child into their home, were told they were “unsuitable”. The husband had himself been adopted and when he and his wife realized they could not have their own children, they applied to adopt a child.

They jumped through all the hoops with flying colours until a social worker asked them about their views on same-sex marriage, sex before marriage, and a child who may identify as the opposite gender despite the child’s biological DNA.

The couple exhibited sincere compassion as they explained their beliefs, founded on Biblical principles, beliefs also held by Catholics, Muslims and Orthodox Jews. They advised the social worker that they would accept a child’s exploration but would not encourage a gay lifestyle, hoping that by providing a stable, loving home the child would follow their example.

They also recognized the reality of the legalization of same-sex marriage and were respectful, although not supportive, of the law of the land.

Despite their thoughtful responses they were advised their views were contrary to the position held by the Alberta government and that if they adopted a child they may well abandon the child.

To their rescue came lawyers with the Justice Centre for Constitutional Freedoms who challenged the Alberta government’s Children’s Services branch on their behalf, on the ground that their Charter right to freedom of religion, had been violated. That their case was righteous was obvious when shortly after the lawyers became involved the Alberta government reversed their decision.

Yes, this is another example of the ongoing attack on Christian values in Canada. Not to mention,the battle to stop a Christian law school; deny Christian groups government funding for summer student employment; and introduce LGBTQ gender ideology in public elementary schools.

Lawdiva aka Georgialee Lang

“Mr. Big” Police Sting Convicts Ontario Wife Murderer

GeorgiaLeeLang025I recognize that the RCMP’s classic “Mr. Big” sting to cajole murder suspects to confess to horrendous crimes has been criticized by many civil libertarians as an abuse of process.

Yes, there are cases where the scenario and inducements to confess are suspect, particularly where the police masquerade as members of a murderous criminal gang. However, there are many cases where the tactics, frequently approved by our criminal courts, have been sanctioned as a legitimate tool for law enforcement, particularly after the Supreme Court of Canada issued their analysis in R. v. Hart. (2014 SCC 52)

In the Hart case our highest court found that confessions given during such operations are often unreliable and introduced a stringent new test for their admissibility as evidence in criminal cases. As such, the decision seeks to curtail the abuse of police power in coercing unreliable confessions.

In a recent Ontario case, R. v. Kelly, 2017 ONCA 621, Michael Earl Kelly was convicted of the murder of his wife, whose body was found four years after Mr. Kelly reported her missing. The trial court utilized the standards articulated by R. v. Hart, although the trial occurred before the Hart case was handed down by our highest court. Mr. Kelly was convicted of the first degree murder of Judith Thibault.

Ms. Thibault was found in Thunder Bay a few feet from Wolf Bay Road. She had one 22 caliber bullet wound in her head and was wrapped in a carpet. Although the police had no forensic evidence incriminating Mr. Kelly they were certain he was their main suspect and devised a plan to induce him to confess his crime.

RCMP sergeant “Bob”, parading as a private investigator for an insurance company, contacted Mr. Kelly, who had moved to Alberta with his new wife, and advised him that Ms. Thibault had left a life insurance policy for $3,000, naming him as the beneficiary. Bob paid the bogus insurance money to Mr. Kelly and told him that he needed to sign a release form acknowledging his receipt of the money and releasing any further claims to any other life insurance policies.

Bob told him he would investigate to determine if there was any other life insurance policies naming him as beneficiary before he released his rights. Shortly thereafter Bob contacted Mr. Kelly again and told him he had discovered two additional policies totalling $571,000. Bob showed him two fictious documents saying there was a hold on pay-out of the latter two policies because Mr. Kelly was a suspect in Ms. Thibault’s murder.

Bob told Mr. Kelly that he would not receive the proceeds of the two policies until he was cleared as a suspect and presented an insurance scam to Mr. Kelly, that would benefit both of them. His idea was that Bob had a friend, “Donnie”, who was terminally ill who would confess he was the murderer, thus removing any suspicion from Mr. Kelly, who could then receive the insurance payout. Donnie and Bob would receive $150,000 from the insurance proceeds for their assistance in the scam.

The only trick was that Mr. Kelly had to provide enough information about the murder to convey to Donnie so that the police would be convinced they had their murderer when Donnie confessed.

While Mr. Kelly initially denied any involvement in the murder, eventually he provided information that only the true murderer would know and was promptly arrested for first degree murder.

He appealed his murder conviction to the Ontario Court of Appeal who dismissed his appeal finding that the insurance scam was a variation of the typical Mr. Big sting and not an abuse of process.

The appeal court said:

…this case involved a police sting scenario that was a very modified version of a Mr. Big, without any violent criminal activity or gang aspect to it. Nor did the undercover officers befriend the appellant to make him vulnerable to pressure as a friend. It was an insurance fraud scheme.”

While the Mr. Big sting is illegal in the United States it has been a significant tool for Canadian law enforcement and has resulted in convictions that might never otherwise have been obtained.

Lawdiva aka Georgialee Lang

Appeal Court Says Judges Cannot Avoid Determinations of Grave Risk of Harm in Hague Convention Cases

GEO CASUALThe Ontario Court of Appeal recently reversed a Hague Convention order that a mother from England must return to England with her two children, failing which her British husband would have custody of their children. (Zafar v. Saiyid (2018) ONCA 352)

As is becoming typical in Hague cases, the mother and her two young children who had Canadian citizenship,travelled to Canada for a summer holiday, with the permission of her spouse, and the intention of returning to England by a prescribed date.

On August 23, the mother advised the children’s father that their marriage was over and that she would remain in Ontario with the children. He promptly filed a Hague Convention application seeking the return of the children.

At the court hearing the mother conceded that the children’s habitual residence was England, which is the primary question when a Hague application is brought. The law is very clear that children must be returned to their habitual residence where the question of their residence will be determined.

However, Article 13 (b) of the Hague Convention permits a removing parent to argue that the child should not be returned where the other parent poses a grave risk of physical or psychological harm to the child or the spouse. Ms. Saiyid alleged that her husband was “threatening, verbally abusive, financially controlling” and presented “intolerable behaviour towards the mother, smoke and drank”, which reflected an inability to create ” a safe environment free of danger for the children.”

The hearing judge ordered the mother to return the children to England by December 1, failing which the children’s father would have sole custody of the children. He said:

“In a Hague application, I am not to determine the best interests of the children, only jurisdiction. In any event, on affidavits I cannot determine who is telling the truth about Mr. Zafar’s conduct.”

On November 27 the mother obtained a stay of the judge’s order, however, shortly thereafter she voluntarily returned to England with the children and brought an application to the British court seeking orders that she may relocate to Canada with the children.

Nonetheless, she wished to continue with her appeal in Ontario on the basis that the judge’s alleged errors of law could be used against her in the new British proceeding.

The appeal court agreed that her appeal was not moot for the reason she identified and held that the hearing judge erred in stating that he could not determine whether the children were at grave risk of serious harm, delegating that issue to the English courts. The court held that the hearing judge ought to have made a decision based on the record; or considered whether it was appropriate to hear oral evidence from the parties. The hearing judge’s decision to explicitly decline to consider the matter was an error in law.

While the task is enormous, where conduct allegations are thrown back and forth haphazardly, it is a judge’s duty to sift the wheat from the chaff. Oral evidence, with cross-examination is often the best way of doing that. These cases are the most difficult, particularly when young children are involved, when the question becomes “which parent is most believable?”

Lawdiva aka Georgialee Lang

Should a Child Have His/Her Own Lawyer in Custody Cases?

DSC00280The Ontario Court of Appeal has recently answered the question posed above in a case where a father asked the court to appoint a private lawyer for his two children, where he also sought to increase his parenting time with them. (Mader v. McCormick 2018 ONCA 340)

The parties separated in 2010 and negotiated a parenting schedule that gave the children’s mother primary residence with the father having overnight access every second weekend and after school access 4 nights a week. In 2013 the father sought additional parenting time and the Office of the Children’s Lawyer (“OCL”) was appointed by the court to represent the children. The OCL is a government agency in Ontario that is available by court appointment to act on behalf of children in family law, child protection and estate cases.

The OCL advised the children’s father that after speaking with their clients they ascertained the children were not in favour of additional time with their father. The father then abandoned his application.

In 2015 the father retired and with more leisure time again advanced a claim to have additional parenting time. He also requested the appointment of the OCL but his request was denied.

In 2016 the father took another stab at his desire to have more parenting time, however, this time he asked the court to appoint a private lawyer to represent his children who were both now young teenagers. Two lower courts denied his request for the appointment of a private lawyer for multiple reasons including their reliance on the children’s feelings about additional access as conveyed to the OCL two years earlier; the absence of any behavioural or academic issues that might indicate unhappiness with the current schedule; and the possible embarrassment of a further investigation involving their teachers and other collaterals.

The lower courts also expressed concern that the father’s request for private counsel was not “child-focused” and would burden the children with questions when they had already expressed their wishes.

On appeal from the lower courts the father cited the United Nations Convention on the Rights of the Child, arguing that the Convention obliged the court to appoint counsel for them. Article 12 of the Convention reads:

1. State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child in particular be provided the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly, or through a representative or appropriate body, in a manner consistent with the procedural rules of natural law.

The appeal court confirmed that the appointment of counsel for children is a discretionary decision which should focus on the best interests of the child and deference should be afforded to a motion judge’s assessment of such an appointment. Ultimately, the appeal was dismissed.

The Court referred to Reynolds v. Reynolds 1996 ONSC 7273 where Fleury J. said:

“This remedy [appointing a lawyer for the children] should not be available only for the asking. In as much as it implicates the children very directly in the entire litigation, it is a very blunt instrument indeed. It can cause untold harm to impressionable children who may feel suddenly inappropriately empowered against their parents in a context where the children should be protected as much as possible from the contest being waged over their future care and custody. All actions involving custody and access over children should be governed by one paramount consideration: no one should be allowed to act in a way that might endanger their well-being. The test of “the best interests of the children” as insipid and fluid as it might be, still remains the benchmark against which any person wishing to interfere in their lives should be measured.”

Lawdiva aka Georgialee Lang

Professional Who Changes His Career Focus Receives Minimal Spousal Support Relief

GEO CASUAL In my view the heaviest family litigation traffic amongst aging boomers will be in reviews, variations, and applications to terminate spousal support, based on section 17 of the Divorce Act. The Hepburn case is illustrative of this prediction. (Hepburn v. Hepburn 2013 BCCA 383)

Dr. Hepburn, age 55, was a family physician that had a modest sideline writing a syndicated medical column for local newspapers from which he earned about $30,000.00 per annum. After 26 years of marriage the Hepburn’s separated in 2006. Mrs. Hepburn, age 65, had raised their four children and occasionally performed bookkeeping and administrative duties for her husband’s medical practice.

The parties negotiated a settlement, agreeing that Dr. Hepburn’s income for the purpose of a Spousal Support Advisory Guideline calculation was $220,000 while his wife’s was nil. He agreed to pay his wife $8,000.00 a month indefinitely with no review.

In 2008 Dr. Hepburn decided to amp up his media career and spend less time seeing patients and more time developing a media platform. Eventually he signed a contract with the Oprah Winfrey Network to produce a television show called Wisequacks. He would be paid a modest $1,250.00 per episode. As a minority owner of a group of medical clinics, in 2009 he was asked to transfer his practice to another clinic location, and he agreed.

His pursuit of a media career was not lucrative and entailed many hours of networking and creating opportunities for potential success. In 2011 he advised his ex-wife that because of a downturn in his income he would reduce her monthly support from $8,000.00 a month to $5,000.00 a month.

At a variation hearing in 2012 he deposed his annual income was only $145,000, while his former wife’s income had grown from nil to $12,000.00 a year, on account of rental income and Canada Pension Plan benefits. Dr. Hepburn argued that his change of workplace resulted in fewer patients and less income. He also suggested that the media industry was changing rapidly and that other media forms had displaced a weekly newspaper column. He contended that income should be imputed to his ex-wife because she had not taken reasonable steps to become self-sufficient.

The chambers judge dismissed his variation application opining he had not met the onus of proving a material change in circumstances. The judge found that the change in the location of his workplace was not mandatory; the fact Dr. Hepburn now spent almost fifty per cent of his time on media activities, with no commensurate financial benefit, was also a personal choice that should not give rise to a change in his spousal support obligations.

On appeal Madam Justice Neilson agreed with the chambers judge that Dr. Hepburn’s relocation in his workplace was voluntary and that he ought reasonably to have known that the change would translate to a lower income. She also found that Dr. Hepburn had failed to show that his media activities had a reasonable prospect of financial success, a factor that could have justified the hours he devoted to it.

However, the appeal court allowed the appeal recognizing that the decrease in his media income and the increase in Mrs. Hepburn’s income post-separation, albeit moderate, were nevertheless material. Dr. Hepburn’s income was found to be $200,000.00, a reduction of $20,000.000 per annum and Mrs. Hepburn’s $12,000.00 per annum, an increase from nil income.

Dr. Hepburn was ordered to pay $6,850.00 in spousal support.


1. Although far from startling, the fact remains there is a very heavy onus on a variation applicant to prove a material change in circumstance that is not characterized as voluntary or self-serving. Any change in a payor’s income that comes as a matter of choice is fatal to a successful variation application.

2. Where an applicant has a high-paying, long-term professional position, his or her desire to “stop and smell the roses” is permitted, but not at the expense of a reduction in a dependent spouse’s spousal support.

3. There is no doubt that Mrs. Hepburn’s age was an important factor although it was not specifically mentioned by either court. Dr. Hepburn’s suggestion that his former wife had not taken serious steps to become self-sufficient garnered little comment from the courts.

Lawdiva aka Georgialee Lang