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Recently a Vancouver judge made it  clear which antics he thought were too much in divorce court. We have blogged on this site before about the importance of legal advice and what to avoid when presenting the court with affidavit evidence here and here. In the recent case of Zandbergen v. Craig, Justice Smith was clear about his frustration arising out of the conduct of the parties, and in particular one of the parties’ lawyers.

Divorce Court

To give a little bit of background, the parties in that case were married in 1993, separated in 2007 and divorced in June 2009 after reaching a settlement mid-trial before Madam Justice Russell.  At the time of the divorce, the parties’ two children were 14 and 12 years old. The father was a realtor and the mother was unemployed.

Part of the settlement was that the father would pay $5000 per month in child support and $8000 per month in spousal support which is based loosely on the father’s income being $300,000. It was also agreed that child and spousal support would be reviewed in 2013. Both the mother and father had lawyers present and entered into the settlement willingly.

In August 2016, the father applied to vary the child support going forward for the parties’ 20 year old daughter. The parties’ son had already stopped school and was no longer a child of the marriage.

The father’s  application was set down to be heard on November 14, 2016. When the parties attended court on that date, the mother asked for an adjournment. The adjournment was granted by Justice Williams on the following basis:

  1. The mother was required to make any applications she wished before November 30, 2016, and provide additional materials;
  2. If the mother or father wished to cross examine the other on their materials they would do so before January 20, 2017; and
  3. The application would be heard on February 1, 2017.

In direct violation of the court orders, the mother applied on December 2, 2017 for a review of child and spousal support retroactive to 2009, when the parties entered into the consent order.

No cross examinations were held pursuant to Justice Williams’ order.

With respect to the mother’s applications to review child and spousal support going back to 2009, Justice Smith states at paragraph 10:

[10]         Counsel for the respondent now argues that the respondent was “pressured” to consent to something that “when looked at later, was not consistent with the objectives of the Divorce Act” and that the respondent agreed to the June 9, 2009 Order “under conditions of virtual duress”. With respect, that submission is simply untenable coming from counsel who was there at the time and whose duties included protecting his client from any such pressure or duress and ensuring that the outcome was consistent with the objectives of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).

The mother also claimed that the father had not adequately disclosed his income. With respect to that claim, Justice Smith states that the mother failed to prove the father’s failure to disclose, and focuses on the mother’s lawyer’s failure to follow orders of the court as follows:

[22]         The respondent argues that the claimant’s evidence does not reflect the true income available for support payments, in part because it includes an excessive deduction of expenses. In the years 2010 through 2015, his real estate corporation’s expenses ranged from approximately 42 to 54% of gross income. The respondent argues that a reasonable amount would be about 25% “at most”.

[23]         That submission is based in part on evidence contained in a letter from an accountant dated January 26, 2017 and attached to the respondent’s affidavit dated January 27, 2017. I have given no weight to any opinion contained in that letter, most importantly because it was filed in blatant non-compliance with the order of Williams J. That order required the respondent to serve her material by November 30, 2016. Orders of the court, including those made by consent, are to be complied with. They are not to be treated as mere recommendations that parties and counsel need respect only as long as it is convenient to do so. Further, the very late service denied the claimant any meaningful opportunity to respond.

Finally, Justice Smith’s obvious frustration with these parties is made clear by his comments relating to the parties’ respective affidavits as they relate to the parties’ claims to spousal support where he makes the following comments respecting affidavits in family law cases:

[57]         The means, needs and circumstances of the claimant are straightforward. He has continued in his successful real estate practice, with a particularly high income in the year that just ended.

[58]         The circumstances of the respondent are more difficult to ascertain, in large part because her affidavits contain more argument than evidence. For example, on the question of spousal support, she states at one point in her affidavit sworn November 30, 2016 at para. 4(c):

(c)        … I have no ability on my own to be “self‑sufficient” and require ongoing and continuing spousal support. I believe that I am entitled to a very good standard of living, so as to have not less than the standard of living that I enjoyed while the claimant and I were together and that we had at the time we were separated, and to also benefit from increased spousal support after separation as the income of the claimant increases. …

Such statements in an affidavit are not evidence; they are counsel’s argument put in the mouth of the client.

[59]         To be fair, the affidavits of the claimant are also not free from argument. For example, there is this exchange in sequential affidavits of the claimant and the respondent, sworn November 9, 2016 and November 30, 2016 respectively. The claimant said at para. 5(a):

(a)        The Respondent has provided virtually no evidence of efforts made to become employed since the date of separation. In addition, and as I have pointed out in previous Affidavit sworn August 19, 2016, she has not provided medical evidence with respect to how her health difficulties have impacted on her ability to become self‑sufficient.

[60]         The respondent responded at paras. 4(a) and (b):

(a)        As to paragraph 5(a): I do not agree with and deny the statement in paragraph 5(a) that I have (allegedly) “provided virtually no evidence of efforts to be come employed since the date of separation”. I have provided extensive and substantial information and evidence about this. I am prepared to go on the witness stand and fully describe and explain all that I have done, including efforts to earn income, raise the children virtually on my own, deal with very significant health and financial and housing problems, and inform the court of my entire circumstances. I have tried to do this in my affidavits. How this sentence can be put in the paragraph 5(a) of the claimant’s affidavit, I do not know.

(b)        I have provided “medical evidence” being my own description of my physical, psychological and health difficulties. I am advised that the phrase “medical evidence” in the affidavits of the claimant may be a reference to obtaining a “doctor’s letter”. To my knowledge, that has not been requested. I believe that I can inform the court under oath as to my various health conditions and the affect on me. I am fully prepared to testify in court as to this. I will also now request a letter from my doctor.

[61]         Argumentative affidavits like these are unfortunately common in family litigation. Perhaps counsel who draft them will someday realize that they are not only improper, but of absolutely no assistance to the court.

At the end of the day, the parties were split in their success on this divorce court application, but these reasons remind family law lawyers to be careful in the drafting of affidavits and to make sure the positions they and their clients are taking in divorce court are reasonable. If you want to hire a family law lawyer that will work to avoid comments like these in your case, contact us for a free evaluation of your case.

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