Canada Legal .com Articles

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

“Can a child’s personal diary be used in a Family Court case ?”

In the May 31, 2004 case of Children’s Aid Society of Haldimand-Norfolk v. C.C, Justice Thibideau found this to be a novel point of law and was forced to consider the competing arguments.

The Children’s Aid Society (CAS) wanted to rely on the information in the diary detailing the child’s fears as part of an ongoing investigation of child abuse and as part of an effort to protect the child from abuse.

The court found that, on the one hand, CAS’ mandate is protect children whom are in need of protection and, therefore, CAS needs to use the diary to prove that its intervention in the family’s life is justified. On the other hand, a 12 year old child has a right to privacy and should not have to disclose the private and confidential notes in her diary, especially if this disclosure would cause serious injury to her relationship with her parents.

CAS argued that that, if all documents of a private nature that are made by children were not usable, then children would be at a much greater risk of abuse.

In the end, since the child had disclosed to the investigating CAS worker what was written in the diary, the court decided that the diary would not be disclosed, but that the verbal evidence of what the child disclosed to the CAS worker could be used.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

When Carolyn Jamieson was criminally charged with assaulting 20 month old Leandra, she argued that the videotape should be excluded from evidence because of her constitutional right to privacy.

On April 30, 2004, the Ontario Superior Court of Justice, in R. v. Jamieson [2004] O.J. No. 1780, dismissed the nanny’s application to exclude the videotape.

Leandra was born with multiple medical challenges. She underwent corrective surgery for a gap in her esophagus. It was not a complete success. When she was one year old, she had heart surgery. Leandra had hearing and vision limitations. She required twenty-four hour care. Several private agencies supplied nurses. Comcare was one of the agencies. Carolyn Jamieson was employed by Comcare. She became Leandra’s primary care nurse.

In March 2002, Leandra’s parents observed Leandra to have facial and other bruising. Some of her hair was found in the crib. Leandra was later found to have a fractured left leg and a swollen arm. Her parents were concerned and sought various medical explanations. They queried that the cause of these injuries might be physical abuse by one of Leandra’s nurses. They decided to install a ‘nanny camera’. The camera, which was concealed, was focused on the crib located in the living room.

Leandra’s parents were devastated when they watched the videotape recording Ms. Jamieson assaulting Leandra. They immediately called the police and took Leandra to the hospital.

In the end, the court ruled that the videotape will be admitted at trial because it is cogent evidence of the crime and is an accurate representation of the actual event. The court went on to say that because this is a very serious criminal charge of aggravated assault, the rights of the child have greater priority over the accused’s right to privacy and that excluding this evidence would bring the administration of justice into disrepute.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

A Dispute Resolution Officer (D.R.O.) is a lawyer who is a member in good standing of the Law Society of Upper Canada; has practiced primarily in the field of Family Law for a minimum of ten years; and has been appointed to assist the Judges and the court system. At Toronto’s Divorce Court - the Ontario Superior Court of Justice, the D.R.O. meets with separated spouses before their case proceeds to a hearing before a Judge to attempt to resolve their case or, at least, to narrowly define the issues and create a timetable to proceed to a hearing.

D.R.O.’s typically are involved in cases where one spouse is applying to the court to change a child support order or to change the parenting plan. The programme has been very successful. Approximately two-thirds of the cases are settled by the D.R.O. without proceeding before a Judge. Those cases that do proceed to a hearing before a Judge have benefited by the D.R.O. assisting the parties in defining the issues and ensuring that the proper evidence is submitted to the Judge.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

In the April 29, 2003 case of R. v. Sanderson, the Court of Appeal of Ontario decided that they do. In that case, David Sanderson assaulted his girlfriend, Karen MacLaurin, and threatened to kill her dog and burn her property. Ms. MacLaurin fled the house shoeless and in her pyjamas in the middle of the night and went to a friend’s apartment. The police were called, and 4 officers accompanied Ms. MacLaurin to the house to retrieve her property. Ms. MacLaurin let herself and the officers into the house with a key. She wanted to get some of her belongings from the bedroom, but Mr. Sanderson stood in the bedroom doorway and refused to move out of the way when he was asked to do so by the police. He was arrested and criminally charged. At trial, Mr. Sanderson was convicted of a number of criminal offences relating to the alterca­tion with Ms. MacLaurin, but he was acquitted of obstructing a peace officer on the basis that the conduct of the police in the residence was unauthorized. The trial judge held that, once the officers decided not to arrest Mr. Sanderson upon their arrival at the house, they ought to have left the house and pursued alternate remedies to protect Ms. MacLaurin’s property, and should have advised Ms. MacLaurin to wait and do nothing until the morning.

However, the Court of Appeal of Ontario reversed this decision and ruled that the police had the authority to enter Mr. Sanderson’s home in order to discharge their duty to preserve the peace and protect property, and their entry did not involve an unjustifiable use of police power. The appellate court stated that there is now a much greater recognition by the police of the extent and seriousness of the consequences for victims of violence when the police fail to respond. It is very much in the public interest that the police, in the discharge of their public duties, be willing and able to assist victims of domestic violence with leaving their relationships and their residences safely and with their belongings. That is precisely what the police did in this case.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

In the 2003 decision of C.H. v. Durham Children’s Aid Society, the Family court judge decided that the father’s criminal charges demonstrated a pattern of physical altercations and anger management issues and, even though the criminal charges were eventually dismissed, they were relevant to deciding what was in the children’s best interests.

The 2 children had been in the care of the Children’s Aid Society since April 11, 2001. The father was granted supervised and semi-supervised access. On April 29, 2002, the father was charged with assaulting his girlfriend. He was in jail until the criminal charges were dismissed on June 20, 2002, after which time the access visits resumed. On September 5, 2002, the father was again criminally charged with assaulting his girlfriend. He alleged that she assaulted him, but she was not charged. The father’s criminal charge was dismissed on September 24, 2002.

The Family court judge stated that “the father’s recent behaviour had been problematic. He had been inappropriately angry and confrontational with Children’s Aid Society. When he was granted access, he did not abide by reasonable expectations…He encouraged the children to lie about the visits. He allegedly threatened harm to one of the children’s caregivers…He increased the stress on at least one of the children by a veiled threat that he knows where their mother lives. He continues to be involved in episodes of domestic strife which result in criminal charges being laid. Although these charges are eventually dismissed, there is a pattern of physical altercations and anger management issues.”

The father appealed this decision, however, the appellate court decided that the Family court judge’s decision was correct.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

In the June 19, 2002 decision of Kreklewetz v. Scopel, the Ontario Court of Appeal decided that Ontario law permits the mother, not the father, to select the child’s name.

The court held that the Vital Statistics Act allows a mother to have the ultimate ability to determine the surname of her child in circumstances where the father is unknown to or ‘unacknowledged’ by her. That is, a mother may admit the identity of the father, but then refuse to acknowledge him for the purpose of naming the child.

In this case, the father and the mother had been involved in a sporadic relationship ending shortly after the birth of their son in 1998. The mother was the primary caregiver to the child and the father exercised access and paid child support.

The parties had a dispute regarding the child’s name and the father applied to the court for an order to change the child’s name. After being denied this relief, the father appealed to the Ontario Court Of Appeal, where his appeal was dismissed.

The appellate court ruled that the Vital Statistics Act expressly provides that if the mother certifies the child’s birth and the father is unknown to or ‘unacknowledged’ by her, she may give the child her surname. The court held that the Ontario legislature had made a policy decision to allow a mother to have the ultimate ability to determine the surname of the child. The appellate court was not prepared to override that policy.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

Do-it-yourself kits are available. However, simply filling out forms is not the equivalent of obtaining critical legal advise and professional representation. The court system involves very serious and complex issues that will affect your life and the lives of your children. A person who fills in a blank court form is under the false impression that his or her legal rights and obligations will be properly determined by a Judge. The prejudice to your case, the probable delays and the unnecessary stress is far more expensive than the cost of proper legal advise and representation.

Many clients do not understand that the information they put in court forms may be damaging to their case and can never be removed from the court record. Many clients do not understand what legal rights are available to them and what strategies they should employ to advance their legal interests. Many clients do not understand how to present their case, orally and in writing, so that they will achieve their objectives in the fastest, simplest and least costly method.

Family lawyers are educated, trained and licensed to represent spouses in court. Family lawyers are familiar with recent changes in the law and are familiar with the court process. The court process is complex. It is based on rules of procedure, such as the Rules of Civil Procedure and the Family Law Rules. The relief sought is based on legislation such as the Family Law Act and the Children’s Law Reform Act. A Family lawyer is professionally trained to prepare your court documents and make oral arguments to a Judge who will decide the outcome. It is critical to obtain legal advice and representation by a Family lawyer when separating.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

“How do you put a dollar value on 38 years of physical, psychological and sexual abuse committed by a husband and father?”

Mr. Justice Lofchik was asked this very question and stated that “where a husband and father preys upon members of his family, no amount of money can adequately compensate them for what they have been through.” He decided that an appropriate amount is $300,000 - the highest award in Canadian history for civil damages resulting from abuse within the family.

On March 12, 2002, the court rendered its decision in the case of C.S.F. v. J.F. [2002] O.J. No. 1350 after hearing evidence from Catherine Flachs who had testified at trial that during her 38 year marriage to the defendant John Flachs, a Hamilton businessman, he regularly punched her with his fists, kicked her, pushed her, spat on her, strangled her, caused burns to her body, beat her with a cane and, on one occasion, stepped on her hand when she reached for a hearing device which had fallen out of her ear when he struck her. Over the years she had suffered injuries such as bruised ribs, broken ribs, a punctured lung, sprains, bruises and having her hair pulled out by the roots. She also testified about being raped on one occasion when she refused to have sex with her husband.

Lorraine Van Der Slyke was one of the couple’s three daughters. Ms. Van Der Slyke witnessed the continued and repetitive abuse suffered by her mother and became a victim of abuse herself. The defendant hit and punched her in the face and dragged her by the hair. He sexually assaulted her by touching her on several occasions and lying on top of her on another. Ms. Van Oer Slyke attempted suicide when she was 16 years old and stayed at a youth shelter for nine months.

In reaching his decision, Mr. Justice Lofchik stated that “the defendant here abused his position as head of the household and turned the home into a place of fear and brutality.”

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

The Law Society of Upper Canada, the governing body that licenses and regulates all lawyers practicing law in Ontario, is also responsible for ensuring that all lawyers comply with the Rules of Professional Responsibility which define what it means to be a ‘Competent Lawyer’.

Rule 2 of the Rules state that a ‘Competent Lawyer’ means a lawyer who has, and applies, relevant skills, attributes and values in a manner appropriate to each matter undertaken on behalf of a client including:

1. knowing general legal principles and procedures and the substantive law and procedure for the areas of law in which the lawyer practices,
2. investigating facts, identifying issues, ascertaining client objectives, considering possible options and developing and advising the client on appropriate courses of action,
3. implementing, as each matter requires, the chosen course of action through the application of appropriate skills, including legal research, analysis, application of the law to the relevant facts, writing and drafting, negotiation, alternative dispute resolution, advocacy and problem-solving ability,
4. communicating at all stages of a matter in a timely and effective manner that is appropriate to the age and abilities of the client,
5. performing all functions conscientiously, diligently and in a timely and cost-effective manner,
6. applying intellectual capacity, judgment and deliberation to all functions,
7. complying in letter and in spirit with the Rules of Professional Conduct,
8. recognizing limitations in one’s ability to handle a matter or some aspect of it, and taking steps accordingly to ensure that the client is appropriately served,
9. managing one’s practice effectively,
10. pursuing appropriate professional development to maintain and enhance legal knowledge and skills, and
11. adapting to changing professional requirements, standards, techniques and practices.

As you can see, a Competent Lawyer is not only a person with a law degree and licence to practice law, but a lawyer who possesses a long list of skills, attributes and values that will benefit the client in a time of need.

By: Steven Benmor, B.Sc., LL.B., Family Lawyer

Jurisdiction: Ontario (Canada)

“What is Collaborative Family Law?” This new concept originated in California. It is based on the idea that an increasing number of separating spouses want to settle their issues with the use of professionals in an inexpensive, amicable and respectful manner.

Each spouse retains a Family lawyer who is specially trained in Collaborative Family Law. The spouses and their lawyers conduct a series of meetings to negotiate a resolution of the issues.

The process is similar to mediation, however, in Collaborative Family Law, if the negotiations are unsuccessful and litigation occurs, neither Family lawyer can continue to represent the spouse in court and must withdraw from the case.

This limitation is expected to encourage the spouses and their lawyers to use their best efforts in a productive, fair and focused manner to arrive at a resolution - so that litigation is unnecessary.

It is anticipated that spouses will be more committed and invested in the process to make the negotiations successful and arrive at a favourable outcome.