Legal Feeds Blog
Verdict expected today in Twitter harassment trial, Canadian Press
- Reduced annual income a result of ‘intentional acts’
Family lawyers arguing for reductions in child support payments must carefully consider what actions on the part of their clients led to a claim of financial hardship, and whether any of these actions might be perceived by the court as “intentional acts.”
That’s the bottom line after a ruling released last week at the Ontario Superior Court of Justice in Racco v. Racco, where the former husband of a divorced couple claimed that his annual income had collapsed, from $150,000 to around $45,000, after the loss of his brokerage licence in March 2015.
The husband requested a significant reduction of monthly child-support payments, and typically, such a change in circumstances would warrant consideration. In this case, however, the husband had lost his licence as a result of a conviction for the sexual assault of a co-worker.
“[H]is inability to earn income of $150,000 arises solely because of his own actions, over which he had complete control,” writes Justice Jamie Trimble in the ruling. “Mr. Racco cannot earn $150,000 because of the notoriety of his conviction for sexual assault, an intentional act for which he was convicted, and with respect to which appeals failed at two levels.”
“All of this arose because of his intentional acts.”
Geoffrey Wells, the lawyer who represented Racco’s wife, says there was very little ambiguity in this case — a criminal conviction is by definition an intentional act — but that the ruling points to a loose area of family law around intent.
“It is a grey area,” he says. “If somebody does the bare minimum and gets fired, is that misconduct for the purposes of child support? I don’t think so. It’s a slippery slope, but in this case it was a criminal offence.”
Stephen Grant, a family lawyer at Grant and Sadvari, doesn’t believe the case creates legal precedents, but he says the ruling reinforces the importance of credibility in family law matters.
“There are cases that involve that kind of credibility determination,” he says. “There are some cases — like whether someone ought to have retired, or whether their health was such that they needed to retire — those are harder cases. Those are cases where the judge has to say, ‘I think it was reasonable or unreasonable for you to retire at that time.'”
Indeed, the decision points repeatedly to the husband’s lack of credibility and tendency to “hide information” about his sources of income. Justice Trimble also made the rare move of pointing out the poor optics resulting from the husband’s lavish spending:
As the decision states, “Mr. Racco pays $1,089 per month for a car loan used to purchase his 2014 Audi A7. This monthly amount is approximately equal to [the] child support order . . . . [H]is treatment of his auto expense indicates that he prefers his comfort to this support obligation . . . .”
Grant says such acts of conspicuous spending, while carrying no legal standing in a family law matter, nonetheless colour the way the judge looks at the case: “Judges are more inclined to believe somebody who’s sold their Porsche and is now driving a Volkswagen than somebody who’s claiming to be poor and driving an Audi, like this guy.”
Wells, for his part, says the fact that the husband was driving around in an Audi proved to be a damaging blow.
“It was a nice example of his priorities. You pull into the court parking lot with an $85,000 car claiming poverty? I think the court is going to care about that. My only regret is that the court didn’t have a window so we could all march over and point the car out in the parking lot.”
Two men dead in separate shootings in east and west Toronto, Canadian Press
Jury to resume deliberations in trial of Const. James Forcillo, Canadian Press
N.S. government approves proposal for underground gas storage, Canadian Press
The Law Society of Upper Canada’s tribunal has refused to license as a paralegal a former justice of the peace, who was removed from the bench following a finding of professional misconduct.
The tribunal found Jorge Barroilhet-Santibanez did not meet the good character requirement to be licensed as a paralegal. He was removed from his role as a JP in 2009 after the Justice of the Peace Review Council found he tried to use his position to assist a family friend who was convicted of careless driving.
The review council also found Barroilhet-Santibanez improperly assisted his wife, who is a paralegal, by advising her in respect of court documents that went “far beyond general advice.”
“In sum, we are not satisfied that the applicant is of good character and that, therefore, we conclude that he should not be admitted as a licensed paralegal,” wrote tribunal chairman Howard Goldblatt.
Throughout this decision, we have pointed out our significant concerns about both the nature of the conduct which gave rise to his removal and his full appreciation and recognition of the severity of that conduct.”
Two years after his removal as a justice of the peace, Barroilhet-Santibanez applied for a paralegal licence through a provision that exempts former JPs from completing an accredited paralegal program and successfully completing licensing exams.
Barroilhet-Santibanez, who did not testify at this Justice of the Peace Review Council hearing, told a law society investigator for the first time his version of the family friend incident that played a major role in the demise of his career. The review council had found that while in office, Barroilhet-Santibanez called a colleague, JP Trillis Miller, to ask her to reopen a case in which his family friend was convicted in absentia for careless driving. Miller later detailed the phone call in an e-mail to the regional senior JP.
“. . . In speaking with Justice Barroilhet, he advised me that a friend of his, Chad Evans, had received a ticket, but because Mr. Evans lives in the United States, Justice Barroilhet further advised me that he told Mr. Evans that he would take care of the ticket,” wrote Miller.
“Justice Barroilhet in speaking to me asked if I would deal with the matter and re-open the matter for his friend. I advised him that I could not because the affidavit was not signed by Mr. Evans. Justice Barroilhet advised me that we (as justices) are independent and that the nice thing about being independent is that we can make these types of decisions and Justice Barroilhet then asked me to consider overlooking the fact that the affidavit was not signed.”
Miller went on to say she told Barroilhet-Santibanez she would not consider re-opening the matter without the affidavit being signed.
“He then suggested he would sign the affidavit because he was looking after the matter for his friend and that he had hired the agent, Ms. Hernandez, on behalf of Mr. Evans,” she added.
In an interview with a law society investigator, Barroilhet-Santibanez said a huge miscommunication had occurred between him and Miller during that phone call. He told her he would sign “an affidavit” detailing what happened with Evans, but he never said he would sign the affidavit on Evans’ behalf.
He added he was being sarcastic when he made the comments about judicial independence. He also suggested Miller could have misunderstood his comments because of his accent, or the medication she may have been taking.
None of those explanations convinced the tribunal about the propriety of the call.
“It was highly improper, to say the least, for the applicant to sign Mr. Evans’ affidavit. Although the applicant testifies that this was not his intent, he has not provided the panel with a credible explanation of what other affidavit he was offering to sign and, as importantly, he could sign,” Goldblatt said.
“Any information that the applicant had with respect to Mr. Evans’ non-attendance would be hearsay and would need to be based on information conveyed to him through his wife or his wife’s firm since he should not have had any direct contact with Mr. Evans in respect of this matter,” Goldblatt continued.
“At the same time, it is equally inappropriate for the applicant to become involved and offer to sign an affidavit in respect of a case handled by his wife’s firm with which he was supposed to have an arm’s length relationship. While the applicant stressed there was a difference between ‘the’ affidavit and ‘an’ affidavit, the applicant has not explained in a satisfactory way what ‘an’ affidavit would contain.”
The tribunal also said Barroilhet-Santibanez failed to understand the severity of his misconduct as justice of the peace.
“His comments during the interview with the investigator concerning the medication which Her Worship Miller may have been on, the concern he had that he not commit an assault when seeing her at a conference and questions about the composition of the Review Council are only some examples of the applicant’s evidence which reinforces, in our view, that he has not fully accepted the severity of his misconduct and his breach of the public trust and that he is prepared to blame others, in part, for the situation in which he now finds himself,” Goldblatt wrote.
Frank Alfano, who represented Barroilhet-Santibanez at the tribunal, did not respond to a request for comment.
Judge in Forcillo case to conclude instructions to jury today, Canadian Press
The longer Canada waits to lift sanctions against Iran the more Canadian companies lose a competitive edge to get back into that market.
|‘It’s important all of us have a level playing field vis-a-vis our competitors in the U.S. and EU,’ says Daniel Desjardins.|
Jan. 16 was implementation day for the Joint Comprehensive Plan of Action nuclear non-proliferation and sanctions reduction agreement reached by the P5+1 countries (U.S., United Kingdom, China, Russia, France, and Germany), the European Union, and the government of Iran in July 2015. Canada was not part of the agreement.
Watching closely are people like Daniel Desjardins, senior vice president and general counsel of Bombardier Inc., who says he is “optimistic and hopeful” the government will lift sanctions. Iran is said to be looking to buy 300 to 400 large civil aircraft in the next few years — which is of great interest to Bombardier and something the Americans didn’t want Boeing to be shut out of, nor Airbus in the EU.
“The question is the speed at which it will be done. Not only for us but for all Canadian industries and businesses that could have a market over there; it’s important all of us have a level playing field vis-a-vis our competitors in the U.S. and EU,” he says.
“All of us are supportive of Canada lifting sanctions as quickly as possible following the EU and United States lifting their own sanctions so we can have he same access to what is going to be a very important market for many Canadian businesses.”
Before the sanctions were put in place, Bombardier sold trains and planes into Iran.
Milos Barutciski, with Bennett Jones LLP, says the Canadian government needs to act fast to ensure Canada’s competitiveness in several industries including the hard-hit oil and gas sector, engineering and construction, financial services, auto parts, and civil aviation.
“If you listen to what Foreign Affairs Minister Stéphane Dion said on the weekend, it doesn’t make sense to burden Canadian companies when their competitors are there, and even if we do maintain sanctions, they won’t have much effect when our other trading partners are happy to trade with them,” says Barutciski.
Prior to the imposition of sanctions in 2010, Canadian oil and gas, engineering, and construction companies had well-established footholds in Iran. Barutciski says Canadian companies are well positioned to get back into the Iran if the government moves quickly.
On Sunday, The Globe and Mail reported that the U.S. and EU had repealed broad sanctions against Iran after the United Nations confirmed the country was complying with a deal to curb its ambitions for nuclear weapons. It also released four U.S. prisoners in exchange for pardons or charges dropped against seven Iranians.
In 2010, the former Conservative government chose to use the Special Economic Measures Act — well beyond what the UN had called for and beyond what Europe was imposing.
Prior to July 2010, the U.S. had extensive sanctions against Iran but Canada, Europe, and most of the developed world did not. It was then that Canada imposed sanctions on certain financial transactions and anything to do with refining of petroleum or liquefaction of natural gas.
Barutciski has been advising clients in the auto parts sector and oil and gas services companies since that time.
“Canadian companies were very well positioned there and all of a sudden they weren’t,” he says.
“The sanctions only hurt one interest, which is Canadian exporters and, in particular — if there is one sector that is in desperate need — it’s the oil and gas sector that has been seeing their market literally collapse. The Canadian oil and gas service sector is a very global sector. Work in the sector is drying up in a lot of places, not just Canada.”
He expects the federal government will align its sanctions not with the United States, which is what the Conservative government did, but will go back to the more traditional Canadian stance, which was to implement sanctions multilaterally.
As a result of the loosening of sanctions, it is estimated Iran will gain access to more than US$100 billion in assets previously frozen overseas, and it will be able to sell oil on international markets and use international markets to trade.
As Barutciski wrote in a recent blog post, of particular interest is the lifting of restrictions on foreign subsidiaries of U.S. companies. A new “General License H” means Canadian subsidiaries of U.S. parents will no longer be extraterritorially subject to the U.S. sanctions restrictions on Iran (although they will continue to be subject to any Canadian sanctions that remain in place.)
Driver cleared in crash that killed Hamilton pedestrian, Canadian Press
- New report says Supreme Court is more divided than ever in the past decade, leading lawyer disagrees
Strong dissenting voices have emerged at the Supreme Court of Canada and a high level of consensus has disintegrated in the past year, says a report released last week by the Macdonald-Laurier Institute.
|Source: Dissent from within at the Supreme Court of Canada|
Perrin says in the report that among the new developments in the past year for the court was “an increasing amount of discord among the justices, and a sharply reduced degree of unanimity.”
He also points out the former federal Conservative government did not have a sterling year at the Supreme Court, winning only two out of 10 cases Perrin identifies as being major decisions.
These include rulings in Carter v. Canada (related to physician-assisted suicide), Mounted Police Association of Ontario v. Canada (related to RCMP’s right to collective bargaining and freedom to association), and R. v. Nur (related to mandatory minimum sentences). The report is based on the court’s activity from Nov. 1, 2014 to Oct. 31, 2015, covering Harper’s final 12 months in power.
“In 2015, the outgoing federal government continued its losing streak from 2014, but the level of dissent was remarkable compared to the high degree of consensus last year,” says the report.
“Philosophical fissures were laid bare in the reasons of several judges who cautioned the Court against intruding on Parliaments’ legitimate role in making tough policy decisions.
“It is also notable that the Court continues to overrule its own recent Charter decisions with the express disapproval of some of its members.”
For example, the report highlights “statistics provided by the Court reveal that it made consensus decisions in 79 per cent of cases in 2014 (which is consistent with the 80 per cent consensus rate found in last year’s 2014 MacDonald-Laurier Institute report for the top 10 manor decisions from that year), 68 per cent of cases in 2013, 72 per cent of cases in 2012, and 75 per cent of cases in 2011. With only a 50 per cent consensus rate on the top 10 decisions in this 2015 report, the Court has never been so divided in the past decade.”
However, Eugene Meehan, who focuses on Supreme Court cases with Supreme Advocacy, says ”dissent is a natural thing” amongst the nine justices.
“Do we need nine like-minded clones on our Supreme Court? We very definitely do not need that,” he says. “Each justice is different from the other, with their own background and experiences, their own learning, and their own style, just like the rest of us humans.”
Meehan says each justice has the opportunity to express his or her own opinions.
“As a lawyer arguing cases there, I’ve won cases that had a strong dissent, and lost cases too where there was also a strong dissent,” he says.
“It’s part of the natural order, and part of life. Judging is a human process. Have you always agreed, every single time, with your elder sister or brother? Well, that’s the Supreme Court.”
Meehan says Chief Justice Beverley McLachlin ”has done a great job in maintaining an appropriate and reasonable level of consensus in the court. Complete consensus on all areas, in every issue, in every single case is unrealistic and it is undesirable.”
Meehan points out the majority of Supreme Court judgments from 2004 to 2014 were unanimous. In 2014, for example, there were 61 unanimous decisions, and 16 non-unanimous decisions.
“For anyone that’s sat down at a family dinner table and any single contentious issue comes up — and the Supreme Court only gets contentious issues — that’s a remarkable level of consensus, as well as group-consensus-building,” he says.
“It reflects most positively not only on the chief justice , but on the court and its judges as a whole. And does so in the very real context of judges still getting to be able to say out loud, what they want to say, when they want to say it, and how loud. Life is a balance.”
The report highlights that seven of the nine current justices were appointed by Harper, while McLachlin was appointed by former prime minister Brian Mulroney and Justice Rosalie Abella was appointed by former prime minister Paul Martin. McLachlin is due to retire in 2018.
This week, the Supreme Court of Canada will hear five appeals. They include a judicial independence challenge by justices of the peace in Quebec whose pay had been cut, as well as a labour dispute over whether federal employees can be terminated without cause. The court will also hear arguments relating to whether a judge is empowered to compare handwriting.
Jan. 18 – Quebec – Conférence des juges de paix magistrats v. Quebec
Constitutional law: The applicant filed a motion to strike down amendments of the Courts of Justice Act that significantly altered the remuneration, employment conditions, and pension plans of newly hired justices of the peace. The group of presiding justices of the peace argue that the legislative provisions did not guarantee judicial independence. The SCC will review whether the appeal court erred in rejecting the motion.
Read the Quebec appeal court decision
Jan. 19 – Federal – Wilson v. Atomic Energy of Canada
Employment law: Wilson was an employee at AECL who claims to have been fired for whistleblowing about improper procurement practices. He refused to sign a release granting him six months’ severance. He remained on payroll until the severance period ended, at which point he brought an arbitral motion under the Canada Labour Code alleging unjust dismissal. The Federal Court of Appeal dismissed arguments on appeal that federally regulated employees can only be removed with just cause.
Read the Federal Court of Appeal decision
Related news stories:
SCC could topple landmark decision on without-cause dismissals, Canadian Lawyer InHouse
Court releases ‘game-changing’ decision on federally regulated employees, Canadian Lawyer InHouse
Jan. 20 – Alberta – R. v. M.K.B.
Criminal law: The accused was charged with second-degree murder for having killer her two newborn children. She placed them in a garbage bag and put them in a dumpster. The trial judge ruled that the accused’s mind was disturbed after childbirth and acquitted her of the murder charges, instead applying the lesser charge of infanticide. The Crown’s appeal was dismissed with dissent. The SCC will review the original ruling. A publication ban is in place.
Read the Alberta Court of Appeal decision
Related news stories:
Calgary mother charged in killing of two infants, The Globe and Mail
Jan. 21 – Alberta – Meer v. R.
Charter of Rights: The appellant was convicted on charges relating to assault, intimidation, threats, and arson. His counsel had been engaged in disciplinary proceedings for an unrelated matter. The appellant knew of the disciplinary proceedings but allowed his counsel to continue. At trial, the judge compared handwritten notes allegedly by the accused without use of an expert. On appeal, the accused claimed incompetent counsel had led to a miscarriage of justice and that he had been denied his right to a fair hearing. The SCC will review whether the accused in such circumstances waive their right to competent counsel, and whether judges are free to compare handwriting samples without an expert.
Read the Alberta appeal court decision
Jan. 22 – Alberta – Heritage Capital v. Equitable Trust
Municipal law: Heritage Capital is the financing firm underwriting the purchase of the Lougheed Block, a Calgary building in which Equitable Trust held interest. The building was declared a heritage property and was entitled to payments from the city for rehabilitation work. The building was sold, after which a dispute arose as to whether the city’s ongoing payments were included in the price of the transaction. Equitable Trust successfully applied for a declaration that they were not. The appeal was dismissed. The SCC will review whether the lower court erred in its assessment.
Read the Alberta appeal court decision
Teen killed in collision between snowmobile and car in P.E.I., Canadian Press
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