Words Mean Things

In the interpretation of legislation and contracts, words and sentences with a plain meaning are supposed to be read in that plain way. As we all know, this isn’t always as easy as it sounds; I’ve just found this remarkably detailed breakdown of some of the problems with the “plain meaning” rule, for instance.

But there are legitimate arguments based on interpretation, and then there’s denying that the same word in the same context in two places means the same thing. Which is what we have in this charmingly short appeal decision from the Ontario Court of Appeal.

The background facts are set out in the Superior Court reasons better than I could summarize:

[1] On April 28, 2008, Jane Harper retained John C. Cox as her family law lawyer in respect of all matrimonial and financial issues between her and her former husband, Paul Brian Harper. Mr. Cox acted for Ms. Harper in this capacity for almost six years. During which time he sent her 37 accounts, which she paid. On March 20, 2014, Mr. Cox was removed as counsel of record. Mr. Cox then sent a final account to Ms. Harper.

[2] Mr. Cox’s accounts over this period were for a total sum of $445,734.98. The matrimonial dispute had not yet gone to trial.

[3] Ms. Harper proceeded, within 30 days of receiving Mr. Cox’s final account, to obtain an Order for Assessment under s. 3(b) of the Solicitor’s Act, R.S.O. 1990 c. S.15 for 38 accounts (the 37 initial accounts and the final account) provided to her by Mr. Cox. That assessment has not yet take place.

The lawyer seeks, alongside some less interesting items, to have the first 37 bills excluded from the assessment. The client is successful in defeating that argument; the court finds that all of the bills can be examined, as the client brought her request for assessment within 30 days of receiving the final bill.

Ah, but! the lawyer argues–all the previous ones were also final bills, and she didn’t do anything within 30 days except pay them.

Except, as both decisions note, the bills themselves and their cover letters all said “interim,” except for the last one. The Superior Court describes the materials thus:

[51] I turn next the letters sent to Ms. Harper with the accounts and to the accounts themselves. In each of the cover letters that were sent by Mr. Cox, he began by saying, ”Enclosed please find my interim account for services rendered…” and then filled in the relevant time period. The accounts that he attached all had a heading “Interim”. Below Mr. Cox’s signature at the end of each letter is the following passage:

This interim account does not necessarily represent the value of services rendered to date but only a payment towards the final account.

Despite these references to interim vs. final in his own bills and cover letters, the lawyer argues at both levels of court that interim doesn’t MEAN interim, really.

It pretty much does, both courts tell him.

And once again the simple legal rule that words have meaning wins the day.

Molly Leonard

Interjurisdictional Service Issues

The big, shiny new issue in family law procedure is here: interjurisdictional service.

Canada, all the way back in 1988, signed onto the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Yet, if you’re a family practitioner who hasn’t heard of it, you’re far from alone. “The Hague convention,” in our parlance, means the one relating to international child abduction; most of the other conventions Canada has signed onto just don’t have the same impact as that one.

That is, until now. Now, you’ve better have heard of the convention on service, because according to the Divisional Court, it governs us, and not just our civil-law colleagues.

The convention has been cited by Ontario family judges for a number of years, but rarely. Recently, though, a three-judge panel of the Divisional Court heard the appeal of Wang v. Lin, and you know it’s going to be an interesting one because the decision names five lawyers for the two parties.

The subject of the appeal was whether service had complied with the convention — and, of course, whether such compliance was mandated. At the Superior Court level, Justice Kiteley had ruled that the Family Law Rules intentionally depart from the Rules of Civil Procedure, which adopt the convention requirements, and that therefore convention-approved service was not necessary in family cases.

The Divisional Court, for better or worse, did not agree. They wrote:

[7] In brief, it is well established that in interpreting legislation, there is a presumption that the legislature intends to conform to international law and to live up to its international obligations. That presumption may be rebutted, but to do so, the language of the legislation at issue must be clear and unequivocal.

As the Family Law Rules do not actively thumb their nose at Canada’s international obligations, service that did not comply with the convention was not effective.

Ah, you ask, but what’s the big deal? Or, the more pro-active of you: how do I ensure I comply going forward?

The good news is that this is a very answerable question; the bad news is you will have to engage in, at the very least, a minute’s google search to tailor that answer to your specific case. Any service can be effected through the Central Authority–and I feel for Ontario’s, which is currently made up of one lawyer and one clerk, and is perhaps about to be inundated. However, if the other jurisdiction does not object, you can also serve in a method that complies with Ontario service requirements.

I’ll even make it very, very easy for you: the chart of signatories is here. The column on the far right contains indicators of whether the member state in question has added stipulations to its membership. Click on the letter(s) in that column, and look for the word “oppose.” See, for instance, the People’s Republic of China, which was the country in question in Wang v. Lin–click through, and you’ll see, among other declarations, this one:

3. to oppose the service of documents in the territory of the People’s Republic of China by the methods provided by Article 10 of the Convention.

So, those are the basics. If you’re serving outside Canada, get hip to the new requirements, and make sure you warn your client that, like everything else procedural, there may be a long delay associated with compliance.

Molly Leonard

Security for Costs, and Waiting Too Long

I recently attended on a somewhat unusual motion. The case, a complex family matter with four parties, is between trial sittings. Three weeks of trial have already been heard, and two more are scheduled in the near future.

In this break between weeks of trial, my client was served with a motion for security for costs.

In Ontario, security for costs in family cases is governed by Rule 24(13) of the Family Law Rules. It sets out four basic factors which might lead to such an order. One of them, the simplest, is that the party resides outside Ontario, and this is the case for my party.

More important by far, however, is the requirement that the court make an order which is “just.”

In my matter — three weeks into a five-week trial — it is hard to fathom how any order for security for costs could be “just,” except on the most overwhelming evidence that my client is a scoundrel. (My client is not, for the record, a scoundrel. At least one of the other parties may well be; that is for the court to decide.)

If there were evidence of outrageous and insupportable behaviour, justifying a mid-trial order for security for costs, one might presume that the trial judge would have it. Having heard three painful, if necessary, weeks of evidence in this matter, the trial judge is ideally placed to find that a party is likely to lose the case and abscond with costs unpaid.

Interestingly, this motion was not brought before the trial judge. Even after I pointed out that it ought to be, it was brought to a regular Brampton motions list, and there it was heard and dismissed.

The chief case on mid-trial motions for security for costs in Ontario is Stefureak v. Chambers, 2005 ONSC 7890 (CanLII)In that matter — one of many battles between parties whose names crop up in many a caselaw search–the father commenced trial with two planned witnesses and, before mother’s evidence had even closed, was up to a planned seventeen. Mother sought security for costs on the grounds that fifteen new witnesses were obviously an attempt to drive up costs and ensure a Pyrrhic victory.

Notably, mother sought that order from the trial judge, who was in the best position to know the body of evidence.

The judge found, quite reasonably, that the concept of a mid-trial motion for security for costs created a high bar indeed, and that mother’s evidence did not clear it. Seventeen witnesses could well be absurd and a waste of time; they could also be necessary. Until their evidence began, the court could not assume the worst.

Overall lesson: think ahead. Bring your motion for security for costs early, and put your best foot forward in the materials. It’s not an easy motion to win at the best of times, but in the meritorious cases, it can be done.


Other notes from that motion:

  • If an earlier version of your motion was struck for lack of a particular document, make sure that document is contained in your new version
  • If you plan to bring the same motion twice, pay the costs in a timely fashion, not two years late and five days before the second go-round
  • If your argument is based on the difficulties of enforcing judgments in a particular locale, make sure you know whether there’s a reciprocal agreement for that jurisdiction or not

Molly Leonard

There’s Never Enough Time

Family law litigants are often surprised by the typical progress of their court case. It may take three months from filing before they see a judge, and that first date is for talking about possible resolution, not for presenting all of the evidence. Then, there is a two or three-month wait–less in some courts, longer in others–for the next chance to talk about resolution with the judge.

What litigants rarely see is the enormous strain that the family court system is bearing. Huge numbers of family cases are filed in Ontario each year, to be dealt with by a relatively small pool of judges. Some cases take up inordinate amounts of judicial time and energy, further slowing down the system.

Many cases deserve that time and focus. When abuse and neglect, harmful treatment, and contemptuous conduct are on the table, the court has to react accordingly.

Others seem to take up all the time available, to much less obvious purpose. One of these is Jewish Family and Child Service of Toronto v. J.Z., 2014 ONCJ 119. Justice Spence, deciding on a complex motion, reviews in great detail the strain faced by the family courts of Ontario and particularly the family courts of Toronto. He works through the numbers as to how much the priority given to this case might be interfering with the rights of other litigants, and finds the following:

[83]      To put all of this into perspective, in 2013 this court spent 20 days on the present trial, or about one-ninth of the court’s entire allotment of sitting days.  For 2014, a further 43 days have been allocated.  Those 43 days represent approximately one-quarter of the entire allotment of sitting days for 2014.  This means that the other approximately 567 cases will have to make do with the remaining 75% of the court’s available in-court time.  To put this in the starkest of terms, this case, which represents 0.0018% of the court’s caseload, is consuming 25% of the court’s resources.

Justice Spence’s decisions are always remarkable reads, but this has remained one of my favourites since its release in 2014. The family litigant may never need a judicial decision — most cases in our province settle without ever going to trial. However, many family litigants require the implied or actual pressure of the court in order to reach reasonable settlements. They require the man or woman in the robe and sash to explain to the other party that actually, the suggestion on the table is perfectly reasonable, and the court might do the same thing at much greater expense if the matter is forced to trial.

Cases which unnecessarily take up valuable judicial resources get in the way of the small but vital amount of time courts can give to other cases. It frustrates litigants, lawyers, and judges alike. Decisions like the one above are a useful tool in pushing back against unreasonable expectations of some litigants that they are entitled to all of a court’s time.

Molly Leonard