FAQ: Procedure

Find out the answers to frequently asked questions ("FAQs") with regard to family law and other legal issues.

Recordings

Many clients inquire as to whether they can use a recording of the other party made without his/her consent as evidence in Court. These recordings are often referred to as “surreptitious recordings”.

There is no universal yes or no response to this question. The answer is that it “simply depends”.

It is not legal to record a conversation between your spouse and another person without their knowledge. This is not a method of collection of evidence that is generally supported by the courts.

A court, however, must weigh the fact that such a recording ought to be inadmissible according to the laws of evidence with the fact that the recording may be extremely relevant. A court must determine if the content of these recordings are of “sufficient probative value, and if … the probative value outweighs the policy considerations against such recordings” (Scarlett v. Farrell). A court will conduct this analysis being mindful of the fact that a court must make decisions about the best interests of children “based upon sufficiently probative evidence that may be available to the court” (Scarlett v. Farrell).

For instance, if a surreptitious recording is presented to a court, evidencing that a parent has been abusive to a child and the court otherwise would not be made aware of this fact, a judge may admit this type of recording into evidence in such a case.

To learn more about these types of recordings as well as the services provided by Krol & Krol, call 905.707.3370 to book a consultation with a lawyer at Krol & Krol today.

Rectification

A concept in law that is (fortunately) uncommon to most, is that of “Rectification”.

Rectification is exactly what it sounds like. When parties have agreed to terms and have mutually settled their differences, they construct a contract agreement that conveys those terms. However, as infrequent as it may seem, errors and omissions do occur from time to time. The concept of rectification is present when one party argues that an error in the agreement was overseen, and the oversight is not what he/she had intended to agree upon.

In Sylvan Lake Golf & Tennis Club Ltd v. Performance Industries Ltd., the leading case on the issue of rectification, Justice Stewart outlines the legal test that should be used when adjudicating such an issue. Justice Stewart reasons that:

“. . .  If the other party ought to have known, that is sufficient. When the mistake was of such a character or in such circumstances that the defendant had good reason to know, or ought to have known, of the mistake and what was actually intended, this condition is satisfied.

Even in the context of a unilateral mistake, when assessing whether a party knew or ought to have known of the other party’s mistake, the inquiry is an objective one. The question is what a reasonable observer would have thought in the circumstances, taking into consideration the evidence of the parties and the documentary evidence.”

It is advisable to retain a lawyer to draft your Separation Agreement to attempt to ensure that no issues (such as rectification) arise in your matter.

Expert Witnesses

When the negotiation stage of a matrimonial matter has run its course, the parties will resort to a trial to determine their outstanding issues.

At trial, it is not unusual for either one or both of the parties to call an expert witness to testify as to specific matters that require an expert opinion. For example, if there was a question as to the value of the matrimonial home or a specific property owned by one of the parties, an expert real estate valuator will be retained by one of the litigants and will testify as to the value of the property at a certain period.

In Harmony Shipping Co. S.A. v. Saudi Europe Line Ltd., Justice Penny conveyed the three pinnacle guidelines that govern the law with respect to qualifying an expert. They are as follows:

  1. there is no property in a witness;
  2. even though a party has retained an expert and communicated privileged information to the expert, the expert can still provide an opinion for an opposing party and may be called as a witness at trial; but
  3. the expert may not be questioned concerning any privileged material he or she received from the opposing solicitor or disclose any opinion given in confidence to the opposing solicitor.

To learn more about expert witnesses as well as the services provided by Krol & Krol, call 905.707.3370 today.

Videotaped Recordings

Many clients seeking to capture a pattern of behavior demonstrated by either their spouse or children, attempt to videotape the behavior with the expectation of presenting the videotaped recording in court.

However, the admissibility of videotaped recordings is not straight-forward, and judges are usually reluctant to watch the recording and admit it into evidence.

In the case of Scarlett v. Farrell, a father who had been accused by his wife of sexually abusing the child, attempted to record his access meetings with the child on three occasions. The father wished to convey to the courts that the child was not frightened by interacting with her father, and that his wife had fabricated the allegations.

The wife argued that the videotaped recordings of the supervised access meetings with the child were recorded surreptitiously and without her consent. She sought to disallow the evidence from being admitted.

Justice Spence reviewed the case law on the issue, and after much deliberation ruled that in cases where the admissibility of videotaped recordings is at issue, the question the court must ask is whether it probative value outweighs its prejudicial effect.

In this particular case, Justice Spence ruled that because the mother was present during these access meetings with the child, the videotaped recordings were not made surreptitiously. He also found that the recordings did have a requisite degree of probative value, and thus allowed the recordings to be admitted into evidence.

To learn more about the admissibility of videotaped recordings as well as the services provided by Krol & Krol, call 905.707.3370 today.

Adverse Witness

When a matrimonial matter proceeds to trial, each lawyer representing the parties involved in the dispute, is tasked with gathering, presenting and proving the evidence.

There are two different types of evidence that lawyers bring forth at trial; documentary and oral.

A lawyer attempting to convey oral evidence at trial will call witnesses with knowledge of the dispute. Opposing counsel may then cross-examine those “adverse witnesses”. The question is, who is considered an “adverse” witness? Is it merely those witnesses summoned by the opposing party? Do “adverse” witnesses need to be hostile to the opposing party or simply unfavorable?

In the case of Reference Re R. v. Coffin, Justice Kellock took an outdated position and one inconsistent with today’s definition. Justice Kellock defined an adverse witness to be hostile; specifically, “not giving the evidence fairly and with a desire to tell the truth because of a hostile animus towards the prosecution.”

Contrary to the former case, the Ontario Court of Appeal held in Wawanesa Mutual Insurance Co. v. Hanes, that a witness is adverse by simply being unfavorable. This has led Ontario courts to further expand on the scope of an “adverse” witness. Currently, an adverse witness encompasses a scenario where the witness has assumed a counter-position to the party calling the witness.

To learn more about adverse witnesses as well as the services provided by Krol & Krol, call 905.707.3370 today.

The Effects of Declaring Bankruptcy

Section 69.3 of the Bankruptcy and Insolvency Act states:

69.3 (1) Subject to subsections (1.1) and (2) and sections 69.4 and 69.5, on the bankruptcy of any debtor, no creditor has any remedy against the debtor or the debtor’s property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy.

(1.1) Subsection (1) ceases to apply in respect of a creditor on the day on which the trustee is discharged.

(2) Subject to sections 79 and 127 to 135 and subsection 248(1), the bankruptcy of a debtor does not prevent a secured creditor from realizing or otherwise dealing with his or her security in the same manner as he or she would have been entitled to realize or deal with it if this section had not been passed, unless the court otherwise orders, but in so ordering the court shall not postpone the right of the secured creditor to realize or otherwise deal with his or her security, except as follows:

(a) in the case of a security for a debt that is due at the date the bankrupt became bankrupt or that becomes due not later than six months thereafter, that right shall not be postponed for more than six months from that date; and

(b) in the case of a security for a debt that does not become due until more than six months after the date the bankrupt became bankrupt, that right shall not be postponed for more than six months from that date, unless all instalments of interest that are more than six months in arrears are paid and all other defaults of more than six months standing are cured, and then only so long as no instalment of interest remains in arrears or defaults remain uncured for more than six months, but, in any event, not beyond the date at which the debt secured by the security becomes payable under the instrument or law creating the security.

In Scott, Re, the court dealt with a husband invoking section 69.3 of the Bankruptcy and Insolvency Act so as to complicate the family law proceedings and wear his wife down.

On a motion brought by his wife to lift the stay, Justice Kershman ruled in her favor and stated that any person affected by section 69.3 of the Bankruptcy and Insolvency Act could apply to the court to have the section deemed inoperable. Justice Kershman outlined the test to have the section deemed inoperable as one that conveys the fact that the affected party is materially prejudiced by its operation, and that it would be inequitable to have the section stay the proceedings.

To learn more about the effects of declaring bankruptcy as well as the services provided by Krol & Krol, call 905.707.3370 today.

 

Mediation

There are times, usually when the parties are seemingly amicable from the outset, when parties seeking a divorce will resort to mediation.

Mediation is an alternative dispute resolution mechanism whereby a third-party professional assists the parties in coming to some form of agreement. Family Mediation Canada defines mediation as follows:

“Family mediation is defined as a co-operative, problem-solving process, in which a qualified and impartial third party neutral, the mediator, assists mediation participants to resolve their disputes by mutual agreement. The resolution is to be voluntary and based upon sufficient information and advice for each person involved in the dispute.”

The purpose and goal of mediation come hand in hand. The purpose of the mechanism is to help the parties understand the harsh realities about their situation, listen to the interests of their spouse and meet in the middle. Thus, the goal is ultimately to get both parties to agree on terms and save them their time and expense bringing one another to court.

As is stated in Family Mediation Canada’s “Code of Professional Conduct”, the essential goals of the process are as follows:

  • The goal of family mediation is a fair and workable agreement that meets the participants’ mutual needs and interests (not a settlement at all costs);
  • The primary responsibility for the resolution of the dispute rests with the participants. At no time should the mediator coerce participants into an agreement;
  • The mediator’s role is that of a facilitator, i.e., to assist the participants to reach an informed and voluntary agreement that meets their mutual needs, interests and concerns, along with those of others affected by the dispute; and,
  • The mediator has a responsibility to promote the participants’ awareness of the interests of others affected by the dispute and by the proposed agreement and to assist them in considering the separate and individual needs of such other persons.

To learn more about mediation in Ontario as well as the services provided by Krol & Krol, call 905.707.3370 today.

What is the point of a case conference in family law?

The case conference is the most important and vital step in family law litigation. It allows the parties to the matter to consult with a judge and get his/her take on the case at an early stage. A fundamental rule with respect to the case conference is that no motion may be hear nor served until the case conference has taken place. The rule is intended to give the parties a good grasp of the issues at hand, thus creating a scenario where negotiation and resolution is more likely, as opposed to the parties spending countless dollars on motions to figure out the differences between them.

Rule 17(4) of the Family Law Rules summarizes the role the case conference plays in the early stages of litigation, and its multi-purposes.

  • As mentioned earlier, the case conference enables the parties to reach a settlement earlier due to the influence a judge’s opinion may have on both sides.
  • The case conference also clarifies what is in dispute and what is actually resolvable. Once the parties have gone through a case conference, there may be issues that were once thought to be serious and irreconcilable, which are actually not in dispute between the parties. Or, there are instances where parties come out of a case conference with things they thought were passable issues, but are in reality contentious.
  • A focal point of the case conference is that it ensures financial disclosure. Thus, both lawyers are fully able to advise their clients properly.
  • With respect to procedural flow, the case allows both parties to sit together and schedule upcoming litigation. The parties can, therefore, leave the conference with a specifically outlined timetable.

To learn more about case conferences as well as the services provided by Krol & Krol, call 905.707.3370 today.

Special Service of a court application in Ontario

Once the claimant has filed his/her court application, the application must be immediately served on every other relevant party to the proceeding.

The method of service of the court application on all other parties in family law matters is predominantly “special service.”

Special service can take effect in 4 ways:

  • By leaving a copy with the opposing party/respondent;
  • By leaving a copy with the opposing party/respondent’s lawyer of record, or alternatively, with a lawyer who accepts service in writing on the document;
  • By mailing a copy to the opposing party/respondent and having the respondent send back a signed form referred to as an “acknowledgement of service”; and,
  • By leaving a copy at the opposing party/respondent’s home with someone who appears to be an adult and mailing another copy to the same address that same day or the next.

In cases where the opposing party/respondent cannot be served through special service, there are 3 other ways of serving the respondent:

  • If the applicant does not know of the whereabouts of the respondent, counsel for the applicant can apply for substituted service;
  • If the applicant reasonably believes that substituted service would also fail, then the applicant can apply to have service “dispensed” with; and,
  • If the applicant has served the application by means of service which ahs not been approved by the court, however the court is convinced that the respondent accepted, the court can “validate” an “irregular” service.

To learn more about special service as well as the services provided by Krol & Krol, call 905.707.3370 today.

Which courts will hear my family law matter?

In Ontario, there are 3 courts that hear family law cases; the Family Court of the Superior Court of Justice or the Superior Court of Justice (Family Court), the Superior Court of Justice, and the Ontario Court of Justice.

The Family Court of the Superior Court of Justice (otherwise referred to as the Superior Court of Justice (Family Court)) hears family law matters of all sorts. It deals with every possible aspect of Family Law.

The Family Court of the Superior Court of Justice is prevalent throughout the Province of Ontario. It is unique as it consists of specialized judges.

In regions where a Family Court of the Superior Court of Justice cannot be found, the Superior Court of Justice is next in line to hear the family law matter. Unlike the previous court, the Superior Court of Justice will not hear matters concerning child protection or adoption proceedings. It will hears cases with respect to property, divorce, custody and access, and support.

Also unlike the Family Court of the Superior Court of Justice, the Ontario Court of Justice will not deal with every aspect of family law. It will hear cases on custody, success, support, child protection, and adoption. The Ontario Court of Justice will not hear cases regarding divorce or property issues.

However, what is common among all 3 courts is that the Family Law Rules will apply to all family law proceedings.

To learn more about family law courts as well as the services provided by Krol & Krol, call 905.707.3370 today.