Dhillon Murthi Law

Electronic Evidence and Family Law

Electronic evidence refers video or audio recordings, emails, Facebook posts and cell phone recordings, amongst many other things. They are often useful to courts and can provide meaningful evidence to a Judge, however they also have the potential for serious misuse such as strategically editing and forging such evidence. In family law cases litigants often find things posted on social media or via text message are used in courts. It is important to be cautious when using such means to communication that nothing is said or done that may later be used against you in a court proceeding to your detriment. 

Under the Canadian Evidence Act, s.31.1 a party seeking to admit an electronic document in court is responsible for providing its authenticity and must produce evidence capable of supporting a finding that the electronic document is what it purports to be.  

In the recent case of Lenihan v. Shankar2021 CarswellOnt 364 (S.C.J.) Justice McGee discussed issues arising with the increased use of electronic evidence in family matters. Specifically, the potential for misuse of such evidence in high conflict cases. She stated, “Fake electronic evidence has the potential to open up a whole new battleground in high conflict family law litigation, and it poses specific challenges for Courts. Generally, email and social media protocols have no internal mechanism for authentication, and the low threshold in the Evidence Act that requires only some evidence: direct and/or circumstantial that the thing “is what it appears to be;” can make determinations highly contextual.” She urged that parties and lawyers in such family matters to be on guard for potential misuses.  

In this particular case, the mother engaged in a concerted effort to alienate a two year of child from her father.  There was a lengthy four-week custody trial where the court ended up disregarding much of the mother’s evidence as much of it was fake and forged, including a forged paternity test and sperm donor agreement along with fake emails between the father and his lawyer that purported to show them planning a criminal act against the mother. She further had a witness who claimed to be the mother’s first husband. Justice McGee disqualified the witness finding that “he was not who he was presented to be.”  

Ultimately, the mother’s attempts to fake evidence resulted in a hefty cost order against her of $438,000.00. The court also granted the father custody of the child. This should serve as a warning to litigants that attempting such tactics to gain advantage during litigation will not be tolerated by the court. It is likely that issues such as this will continue to arise given the increasing use of electronic evidence in family law matters and the rapidly evolving technology that makes catching forgeries more difficult. Parties, courts and lawyers have be more vigilant in ensuring that false electronic evidence is not being used. It is recommended that you contact a lawyer to discuss these issues and any questions you may have relating to the use of electronic evidence in your family matter.  

Wife of deceased terrorist can’t collect

Wife of deceased terrorist can’t collect on life insurance policy, Ontario court rules in a decision with broad implications for insurance applicants. The court ruled that the deceased failed to disclosure “material information” related to his decades old terrorist activities even though insurance application did not ask these questions. The court interpreted applicants’ duty to disclose material information broadly, terming his failure to disclose as fraud on the insurer. #Insurance #Disclosure #MaterialInformation


Spousal Support

Spousal support is the payment of money from one spouse to another after a separation or divorce. The purpose of such support is to financially compensate one party if they are financially disadvantaged by the relationship or if there is a significant disparity between the spouses’ incomes on separation. An obligation to pay spousal support can arise based on the following: 

  • Compensatory factors: When one spouse is disadvantaged by the relationship for example where he or she leaves the workforce to care for the children of the relationship and has lost opportunities to advance his or her career. 
  • Non-compensatory or needs based: Where one spouse earns significantly less than the other and requires assistance after separation to get back on his or her feet. 
  1. Contractual basis: This can include situations where one spouse signs a cohabitation agreement agreeing to provide support to the other on the breakdown of the relationship, or where one spouse sponsors another’s immigration and agrees to be financially responsible for him or her. 

      Spousal support can be complex and depend on several factors. You should contact a lawyer if you        believe you may be entitled to spousal support or that you may owe a spousal support obligation to        your former spouse.

A common factor that may impact spousal support payments is the early retirement of the payor spouse., In MacDonald Hills v. Hills (2021), 55 R.F.L. (8th) 46 (Ont. S.C.J.), the husband brought a motion to terminate child and spousal support payments. The parties had three children who were all adults at the time of the motion. The parties had originally signed Minutes of Settlement in 2009 settling the issues of child support, spousal support and property.  Pursuant to these Minutes, the husband had agreed to transfer his interest in the matrimonial home to the wife for a sum of $25,000.00 and an agreement by the wife to not seek any claim to the husband’s pension. The final order further provided that the husband’s pension income would not be included in any future determination of the husband’s income for support purposes. 

The husband was employed as a registered nurse in the mental health department where he worked with patients that suffered from mental illness. His work was demanding and stressful such that it had a negative impact on his health. The husband’s doctor recommended that retire early and address his own mental and physical health issues. As a result, the husband advised the wife of his intention to retire when at 56 years old. 

It was the husband’s position that on retirement his spousal support obligation should terminate. The in-contrast wife argued that she was incapable of working as a result of a stroke that caused her memory and word loss, along with rotator cuff and carpel tunnel issues. 

Justice Sproat determined that the parties had discussed the husband’s earlier retirement with an unreduced pension during the marriage and the wife understood that this was a possibility when she signed the Minutes of Settlement in 2009. Justice Sproat stated in his decision: 

          I agree with the following observations by D.J. Gordon J., in Smith v. Smith2013 ONSC 6261, at paragraphs 31, 64 – 67 and 72.

  • a)        a person who meets the pension criteria for an unreduced pension is not taking an “early retirement”;
  • b)        65 is no longer the presumptive retirement date.  Many pension plans use retirement dates based on an 80 factor of years and service;
  • c)        the decision to retire when a person is entitled to an unreduced pension is a foreseeable event that should have been expected by the support recipient; and
  • d)        the fact the parties had discussed the payor’s intention to retire when qualified for a full pension is a relevant consideration.

Additionally, the husband had been paying spousal support for 14 years and the parties had been married for 14.5 years. Justice Sproat concluded that the husband should not be imputed an employment income and reduced support to $1.00 per month after a brief transition period.

Ultimately, the original Order providing that the husband’s pension would not be included in his income for future support calculations, along with the wife’s understanding during the marriage that early retirement by the husband was likely and the husband’s health concerns resulted in a decision to end support for the recipient, despite her continued health concerns and need.  

If you are planning on retiring in the future and want to understand the impact this may have on any spousal support obligation you may have, you should speak to a lawyer and get the appropriate legal advice.

Guiding Principle

At Dhillon Law, our team is guided by a simple but important principle: access to justice must not be a privilege available to a select few; rather it must be a right available to all.

As a result, not only are we committed to bettering the lives of our clients’ by providing comprehensive legal services, but we also strive to provide all services at an affordable cost.

Do citizens have fundamental right to privacy?

The Supreme Court of India grapples with the mighty issue in light of its two earlier decisions denying any such …fundamental rights. Those cases were decided in 1954 and 1962. (Sharma and Kharak Singh cases). Modern society has come a long way over the 65 years since. We have come to take privacy much more seriously. Under the Canadian Charter of Rights and Freedoms, the right to privacy flows from section 8 which reads: Everyone has the right to be secure against unreasonable search or seizure.

Relevant Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”.

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