Litigation & Arbitration

Cases

The key to successful litigation and arbitration is preparation. That preparation starts from the moment that I am retained, through to the drafting of documents, to the preparation for the hearings, to the completion of closing submissions. I take tremendous pride in the fact that many of the cases in which I have been involved, have been reported.

Increases in income after separation

I had an interesting case involving a doctor (my client). He separated from his wife of 10 years, with whom he had three children. At the time of separation, she wasn't working, as the children were quite young. Although his matter went to court, we settled it on the eve of trial, with the parties agreeing to a reasonable level of child support and spousal support.

A few years later, his already significant income tripled, and his former wife wanted a significant increase in her spousal support. She started another round of court proceedings.
We acknowledged that child support should increase in accordance with his income; but what about his spousal support payments?
The issue is not straightforward. My client had since re-married, and had a child with his new (and unemployed) wife. Also, he had acquired some significant, legitimate debt.
On the eve of trial (again), we were able to settle the issues, in a fair way and having regard to the issues that applied to this somewhat complicated fact situation.

Joint custody for same sex parents

I represented a woman in a same-sex custody dispute, back in 2007. My client was the non-biological parent of twin boys, then age 4. When the parents separated, the biological mother refused to give my client reasonable access to the children, claiming that she was not a biological parent. She had even alleged that my client had sexually abused the boys. At trial, we claimed joint custody of both boys, with equal time. Based on the fact that there was such a high level of hostility between the parents, I proposed to the presiding judge that the parents should share custody in the form of parallel parenting, which means that each parent have sole decision-making authority over certain areas. After a two week trial, the judge granted our requested order, in this precedent-setting case. It has been widely reported and relied upon by many lawyers and judges, not only in same-sex cases, but in cases in which parallel parenting is viewed as the best decision-making model. The link to the case can be found here.

A book of business is “property” has value for equalization purposes

In this case, I represented a husband whose wife was a financial advisor with a book of business; a very large book of business. She took the position throughout the legal proceeding that the book of business was owned by the financial institution, and tried to rely upon her employment contracted with the institution that confirmed that the clients belonged to it. This two week trial also dealt with other issues, but the main issue and the most financially significant, dealt with the wife's book of business. The trial judge accepted my argument that the wife's book of business was indeed a very valuable asset that she could sell, and the judge attributed a "fair value" to this item of property for equalization purposes. Not only was my client successful at trial, he was awarded over $75,000 in costs! The link to the case can be found here.

Alienation

Sadly, alienation seems to be present in so many situations. An all too common scenario at separation involves a hurt parent either enlisting the children as allies and/or using them to get back at the other parent. Whatever the reason, the result is a foregone conclusion; the children end up damaged. I have had a few "success" stories (where I was acting for the alienated parent), where the alienation has been addressed and overcome. In one, on the eve of trial the parties agreed to adjourn the trial on condition that, among other things, the mother agree to allow the father to attend counseling with his son on a weekly basis. The counselor was authorized to report back to the judge as to the progress of counseling and to make any ongoing recommendations as to access. Over several years (yes, several), the father rebuilt his damaged relationship with his son, who started to understand and appreciate his mother's destructive involvement in his relationship with his father. In another very difficult case, we obtained an order from the court allowing my client to attend a reunification program with the child, and for there to be no contact with the alienating parent upon my client's return from the program.

Costs

Although the issue of costs is discretionary, there are rules to guide judges as to how to address the issue of costs following a contested hearing (usually a motion or a trial). Following a lengthy trial with a self-represented client on the other side, the judge had to deal with the issue of costs. As my client (the husband) was the successful party, he was presumed entitled to costs. The problem was that the wife was essentially impecunious, and argued that she had no ability to contribute towards my client's costs in any significant amount. The judge accepted my argument that the wife pay costs to my client by way of a reduction of his spousal support payments, until the costs (ultimately awarded in the amount of $31,000) were paid in full. My client was thrilled that he was able to pay a lower amount of support over several years! The link to this costs case, as well as other ones in which I have been involved as counsel, can be found herehere, and here.

Imputing income

"Imputing income", means a court finding that a spouse's income is higher than it actually is, for the purposes of support (child and/or spousal). Whether the spouse is hiding income (doing "under the table" work which he/she is not reporting for tax purposes), or unreasonably deducting expenses from his/her income for tax purposes, a judge has the authority to find that one's income is, for the purposes of calculating support, higher than what is being reported to CRA. I had a case involving a wife who owned and operated a home daycare. She was seeking spousal support from the husband (my client), using her line 150 income on her tax return, as her total income for support purposes. After I extensively cross-examined the wife on her income and expenses (and reviewed all of the wife's receipts, invoices and tax returns), the judge ultimately rejected her claim and found that her income was more than three times what she had reported to CRA. The link to the case can be found here.

Dogs

I have represented many clients on arbitrations. An arbitration is an out of court process where an arbitrator (instead of a judge), makes a decision (called an "award"). It is less formal than court and, typically, can proceed much more quickly than the court process. I had a two day arbitration over ownership and possession of the families' dogs. As an aside, pets (and all other animals, for that matter) are not treated like children under the law. One cannot obtain "custody" of pets. Rather, they are treated like chattels, where ownership and possessory rights determine who gets to keep the pets. It amazed me that it took two full days for both parties to present their cases. We had to call witnesses (including the dogs' vet), to testify about which spouse attended the veterinary appointments for the dogs. In the end, my client lost. He couldn't overcome the evidence that he had purchased the dogs as gifts to his wife. She had friends and relatives who supported her claim. It didn't help my client's case that the dogs were purchased just before the wife's birthday.

Changing joint custody to sole custody

It is a challenge to change an order or agreement from joint custody to sole custody. The court must find that there has been a material change in circumstances, that the current joint custody arrangement is contrary to the children's best interests, and that the children's best interests mandate that the children be placed in your client's sole custody. I have represented several clients who have successfully overturned a joint custodial arrangement, two of which cases can be found here and here.

A custody and access assessment should not be implemented at a motion

The recommendations set out in a custody and access assessment and report can carry significant weight with the court. However, it is clear that an assessment is one piece of evidence, which needs to be tested in full by the trial judge. I had a motion where the wife tried to change an equal time-sharing arrangement to one of primary residence to her, on the basis of an assessor's recommendation. I represented the husband. Her motion was dismissed.  The link to the case can be found here.

Upholding a Marriage Contract

A Marriage Contract that is in writing, signed and witnessed, is a domestic contract. I had a case where the husband (the other side) was claiming that he had not signed the contract. The trial judge found otherwise, and upheld the contract. The link to the case can be found here.

Wrongful allegation of sexual abuse upon a child

These are extremely difficult and sensitive cases to handle. Most often there are no witnesses other than the alleged perpetrator and the child (whose evidence may or may not be reliable). I represented a father who was wrongfully accused by the mother of having sexually abused their very young daughter. The link to the case can be found here.

Which court has jurisdiction to hear the case

An interesting and common issue involves jurisdiction; where should the case proceed? I had an interesting case in which my client (the wife) wanted the divorce to proceed in Ottawa, whereas the husband wanted the case to be heard in Bulgaria (where he had moved after separation). My client was successful. The link to the case can be found here.

Judicial deference to trial judge’s decision

Provided that a judge has addressed all of the factors relating to a child's best interests and has not committed an overriding or palpable error, an appellate court (the Ontario Court of Appeal) will not overturn the trial judge's decision regarding custody. I successfully defended my client's award of joint custody from the trial, on an appeal before the Ontario Court of Appeal. The link to the case can be found here.

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