Comments for Toronto Family Lawyer Blog

Comment on Shand v Shand: Spousal Support not Granted by James Cooper

James Cooper — Sat, 30 Jun 2012 07:03:37 +0000

I agree that this was a well-argued decision. The judge in this case was mindful of the fact that his decision should be guided by the consequences of the marriage and its breakdown, and the consequent compensatory need stemming from the marital relationship. However, his assessment that she “left the marriage for no apparent reason” does raise the suspicion that perhaps aspects of his decision were based on factors that might depart from the factors that, according to statute, should be properly considered in a spousal support case.

Comment on Gobin v. Gobin: Imputing Income for Child Support by Poester99

Poester99 — Tue, 26 Jun 2012 03:48:54 +0000

I would think that perhaps it was reasonable accommodation on behalf of the judge that expecting someone who has gone through the dissolution of a marriage, which can have profound negative psychological effects on people making them in fact NOT able to as successfully earn an income afterwards.

If the judge put the hammer to this person more strongly the he/she risked escalating the problem instead of fixing it.
“Escalation” would be quitting completely (risking jail), suicide, leaving the county… and other possibilities.

Comment on Justice Corbett: TD Bank could not have known mortgaged house was matrimonial home by Andrew Feldstein

Andrew Feldstein — Fri, 04 May 2012 18:58:19 +0000

From a common sense perspective, this is very scary to the spouse that is not on title to the matrimonial home as a significant amount of equity could be borrowed from the matrimonial home without any notice. If the spouse that borrowed the money has spent the money, there may be no recourse.

However, there is a simple solution to this problem which requires a person who is not on title to register a designation of the property as a matrimonial home. If this was done, then the bank could not have registered the mortgage and they would have been put on notice that this was a matrimonial home.

This designation can be registered without notice to your spouse on the title of the property and will prevent a person from selling or placing a mortgage against the home.

Comment on Supreme Court: defining “material change in circumstances” by Andrew Feldstein

Andrew Feldstein — Sun, 15 Jan 2012 12:42:56 +0000

I like this decision. When the parties to a separation can agree on terms to settle all of their outstanding issues, I see that as a good thing. Knowing that you can rely on the terms of your Separation Agreement and that they cannot be easily changed is also a good thing. Stability and security are important to my clients and to us all.

The Supreme Court of Canada likes to speak out on the costs of legal proceedings, but by the same token the Supreme Court has just made things more expensive for parties because the result of this case increases the work a lawyer will have to do on a file once a Separation Agreement has been entered into.
In this decision, the majority is essentially saying that you should incorporate the support provisions of any Separation Agreement you execute into a final support Order, but that creates an additional cost to the parties.

Comment on Appeal of Factual and Credibility Findings: Stergios v. Kim by Jason Isenberg

Jason Isenberg — Fri, 06 Jan 2012 16:56:40 +0000

It is always hard to appeal findings of fact, as the best person to make findings on the facts is the trial judge. In this case, the Court of Appeal was asked to overturn a trial judge’s findings on the credibility of Ms. Kim, however the Court of Appeal never had the opportunity to hear Ms. Kim testify or to ask her any questions after she testified, as such it would be hard to weigh the credibility of that witness. In contrast the trial judge was present throughout the whole trial and heard all of the evidence, as such that person was in the best position to make findings with respect to credibility.

The real lesson here is that when you do not like a decision, it is usually advisable to only appeal when a judge makes an error in law, such that a higher Court can substitute in their own decision to rectify the error. Errors in the facts do not work the same.

Also, if you want to argue something on appeal, make sure you argued it at trial, as a judge’s decision to disregard your argument may in itself be appealable. If you never raised it at trial, then you denied the trial judge a chance to make a decision, and that trial judge was most likely the best person to make the decision, not the appeal court.

Comment on De-Parental Alienation: Filaber v. Filaber by laddie

laddie — Wed, 12 Oct 2011 16:00:46 +0000

Well done for Justice van Melle’s brave decision to give the alienated parent custody of her children. I hope that this is the beginning of a trend and a recognition of Parental Alienation Syndrome. At last. I have first hand experience of being a target parent myself and Dr Randy Rand was my expert forensic psychologist in my case. This was 12 years ago in New Mexico and he was very good – unfortunately we were up against too much opposition – not having it in the DSM 1V was not a help either. He tried his very best but nobody was prepared to listen and if anybody has seen severely alienated children – it is a very convincing act (for lack of a better word).
The Judge, like most PAS cases washed his hands of it – having never seen a phenomenen like this before and passed it over to the hands of therapists to try and re-integrate the family. It was, of course, doomed to failure. As long as the children reside with the alienator there is no chance of reunification with target parent. I know, I tried many times and they didn’t want to see me and when they did were full of hatred and vilified me.
Let’s hope this is the beginning of a change of courts attitudes towards PAS. Ordinary therapists just cannot deal with this and you really do need something as drastic as a change of custody and a reunification program with therapists/psychologists who understand PAS.
By the way, children can be alienated very quickly – it does not take years and they can be most vulnerable to this between the ages of 9 and 12.
I am pleased to see that there are more books on the subject for example ‘Breaking the Ties that Bind’ by Amy Baker. Also ‘A kidnapped Mind’ by Pamela Richardson – a tragic story of what damage alienation can result in.
The more public awareness the better and PAS won’t be written off as a ‘junk science’ anymore.

Comment on V. (J.), Re: Can a private adoption proceed without consent of the biological father? by Jason Isenberg

Jason Isenberg — Fri, 16 Sep 2011 18:43:54 +0000

Clearly this is an excellent decision from Justice MacKinnon on the relevant issues. The father of this child would have an excellent claim had the adoption been granted without notice to him, and as such the right remedy was granted.

At the end of the day, the mother knew the identity of the man, and did not provide any reason why he should not be provided with notice about the adoption proceeding. Thankfully the adoptive parents decided to be thorough and brought this issue to light. The real prejudice is to the child if the father was not given notice, as the child has the right to know the identity of the father, at least for medical reasons and social reasons.

Comment on Equalization and Claiming Bankruptcy: Thibodeau v. Thibodeau by anchorman

anchorman — Wed, 03 Aug 2011 01:22:15 +0000

Interesting article…a person should never use bankruptcy as an excuse not to support their family. I know there are always two sides to a story…but still no excuse.

Comment on Issasi v. Rosenzweig, 2011 ONCA 302 by Andrew Feldstein

Andrew Feldstein — Fri, 29 Jul 2011 18:52:07 +0000

I remember this case making some headlines in the news recently. I agree with the Court of Appeal that it is crucial to assess risk regarding the return of a child who has been found to be a refugee. It is clearly relevant, and it will be interesting to see the reasons provided by the Court of Appeal at a future date, and whether there are any possible applications of a risk assessment to other scenarios under the Hague Convention, which do not also deal with the Immigration and Refugee Protection Act.

Comment on Child Abduction & Costs: Tulchinsky v. Shuster by Ex Parte emergency motion - NEED HELP PLEASE!!! - Ottawa Divorce .com Forums

Ex Parte emergency motion - NEED HELP PLEASE!!! - Ottawa Divorce .com Forums — Fri, 29 Jul 2011 16:04:35 +0000

[...] "Children under nine should be accompanied by adults or older children whenever they cross the street or ride their bikes. Even if you feel your child has the intelligence to do these activities alone, in reality he/she may not be developmentally ready to do so. Statistically, children are more likely to get struck by a car while crossing at an intersection followed by running into the road. Children are also vulnerable when they cross the road at uncontrolled intersections, when they enter the road between parked cars or walk on the road instead of the sidewalk- Safekids Canada. Pedestrian Safety – frequently asked questions thanks for all your replies, but they haven't actually answered my No. 1 question though… Do I have any chances of bringing and winning an ex parte motion regarding the circumstances in this case??? There's no way of me finding her, i believe she's in a shelter with kids. This case is on it's face as Tulchinsky v. Shuster [...]