Friday, December 17, 2010

The Ontario Family Law Ruling "Everyone" Is Talking About

While Mr. Justice Joseph Quinn's November 29, 2010 ruling in Bruni v. Bruni, 2010 ONSC 6568 (CanLII) goes strangely unmentioned by name in Kirk Makin's extensive Globe and Mail report today, In family court, a judge turns to ridicule to defuse the rage, I confess the case was nonetheless relatively easy to find online.

It merely required a search of the CanLii database for the term "dickhead."

(There was only one result)

Leaving Justice Quinn's many colourful turns of phrase aside for the moment, the case is primarily important as a rare example of an Ontario decision in which a spouse's misconduct - in this case parental alienation - has been regarded as so egregious as to essentially disqualify her from entitlement to spousal support.

The excerpts from the ruling, below, set out the Court's rationale for bypassing the Spousal Support Advisory Guidelines and limiting its spousal support award to $1.00 monthly:

9. Spousal Support

...(o) amount and duration under the SSAGs

[202] Larry’s projected annual income for 2010 is $81,000 (rounded). Using Catherine’s income as set out in her sworn financial statement and applying the with-child-support formula under the SSAGs, the monthly spousal support range is: $98(low); $466(mid); and $863(high). The minimum duration under the SSAGs is 5.5 years and the maximum is 11 years, both measured from the date of separation. The minimum period of 5.5 is generally what I thought would be appropriate (I was considering five years). Had Larry been earning $81,000 annually since separation, I would have selected the mid-range support figure of $466, preferring to be conservative in the circumstances of this case,[42] and require that it be paid for the first year after separation, declining to $400 in the second year, $350 in the third year, $300 in the fourth, $250 in the fifth and $200 in the remnant year.[43]As Larry’s ability to pay did not arise until the fourth year after separation, I order (but still provisionally) monthly spousal support of $300 in 2010, $250 in 2011 and $200 for the first six months of 2012.[44]

(p) spousal conduct

[203] Notwithstanding the SSAGs, s. 33(10) of the Family Law Act gives a discretion to the court to consider spousal conduct in arriving at the amount of support:

33(10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

[204] Section 33(10) contains a number of key words and phrases, but they are straightforward in meaning and do not present any semantic tricks.

[205] To begin with, “course of conduct” requires something more than an isolated incident.

[206] The words “unconscionable”, “obvious”, “gross,” “repudiation” and “relationship” have meanings in everyday parlance consistent with their use in law. They are defined in The New Shorter Oxford English Dictionary to include the following: “unconscionable” – “showing no regard for conscience; not in accordance with what is right or reasonable”;[45] “obvious” – “plain and evident to the mind; perfectly clear or manifest; such as common sense might suggest”; “gross” – “flagrant, glaring”; “repudiation” – “rejection, disownment, disavowal”; “relationship” – “an emotional association between two people; the state of being related” and “related” means “connected by blood or marriage.”

[207] Section 33(10) provides clear guidance as to when the court may consider the typically-taboo topic of spousal conduct. There is no need to formulate a test.[46] Section 33(10) contains its own test; and it will be a rare case that passes the test.

[208] Section 33(10) does not restrict “a course of conduct” to pre-separation conduct. Also, “relationship,” in my opinion, includes the relationship of spouses as co-parents. The relationship of parent and child is inextricably linked to that of husband and wife. Accordingly, I am permitted to consider the post-separation alienation that Catherine created between Taylor and Larry in determining the amount of spousal support to which Catherine is entitled.

[209] The parental alienation[47] in this case reflects an intent by Catherine to destroy the relationship between Taylor and Larry; it is shocking conduct. It also amounts to a hideous repudiation of the relationship between Catherine and Larry as co-parents of Taylor. The harm here probably is irreparable. Certainly, it is extremely serious at best. How could such conduct not satisfy the requirements of s. 33(10), stringent as they are?

(q) final conclusion on spousal support

[210] While Larry’s access-conduct has largely reflected nothing more than inept parenting, Catherine’s parental-alienation behaviour has been evil. Is there a remedy?

[211] Dollars cannot replace the father-daughter relationship that Catherine has destroyed. However, in the circumstances of this case, justice has only a Hobson’s choice. Catherine’s alienation of Taylor and Larry must be condemned and, an effective method of expressing that condemnation, is by way of a reduction in spousal support.

[212] Accordingly, the spousal support to which Catherine would otherwise be entitled shall be reduced to one dollar monthly.

The ruling's caustic tone is exemplified by a selection of Mr. Justice Quinn's footnotes:

[2] At one point in the trial, I asked Catherine: “If you could push a button and make Larry disappear from the face of the earth, would you push it?” Her I-just-won-a-lottery smile implied the answer that I expected.

[3] I am prepared to certify a class action for the return of all wedding gifts.

[4] It is likely that, in the period 2004-2006, Larry was having one or more extramarital affairs. Interestingly, Larry’s father was married five times, in addition to going through several relationships. Perhaps there is an infidelity gene...

[7] The courtroom energy level in a custody/access dispute spikes quickly when there is evidence that one of the parents has a Hells Angels branch in her family tree. Certainly, my posture improved. Catherine’s niece is engaged to a member of the Hells Angels. I take judicial notice of the fact that the Hells Angels Motorcycle Club is a criminal organization (and of the fact that the niece has made a poor choice)...

[21] A finger is worth a thousand words and, therefore, is particularly useful should one have a vocabulary of less than a thousand words.

[22] When the operator of a motor vehicle yells “jackass” at a pedestrian, the jackassedness of the former has been proved, but, at that point, it is only an allegation as against the latter.

[23] In recent years, the evidence in family trials typically includes reams of text messages between the parties, helpfully laying bare their true characters. Assessing credibility is not nearly as difficult as it was before the use of e-mails and text messages became prolific. Parties are not shy about splattering their spleens throughout cyberspace.

[24] These do not strike me as the statements of someone who is concerned about precipitating a Hells Angels house call.

[25] I confess that I sometimes permit a lengthier hiatus than the schedule of the court might otherwise dictate, in order to afford the parties an opportunity to reflect on the trial experience, come to their senses and resolve their difficulties like mature adults. It is touching how a trial judge can retain his naivety even after 15 years on the bench.

[26] The New Shorter Oxford English Dictionary defines “dickhead” as “a stupid person.” That would not have been my first guess.

[27] And all of these prohibitions by Catherine are taking place with a trial date already inscribed on her kitchen calendar.


- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

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