Friday, November 28, 2008

Do Judges make justice unaffordable or not?

Family Law is a mess. Only the courts do not recognize it.

On Nov 18, Karen SELICK wrote this op-ed piece critical of a recent Supreme Court refusal to hear an appeal of a Ontario Family Court decision that over-rode a pre-nuptial contract because of inaccurate property values.

On Nov 24, John T. SIRTASH, counsel to Bnai B'rith Canada Family Law responded with "Don't blame the judges" - which I took as an odd instance of flattery except he has been a lawyer for 27 years and so is clearly angling for his appointment to the bench.

I fully support Karen's points. It was irrelevant that the husband-to-be misrepresented in good faith the "true value"1 of his assets/property owned before he agreed to marry his wife-to-be (the gold-digger) as she signed a pre-nup disavowing any claim to such assets/property. Further he made it clear that he would not have made a marriage proposal otherwise.

Mr. LeVan was happy to remain in a committed common-law relationship with this women. However in a common-law relationship - unlike formal matrimony2 - she could not have gained any rights to any of his assets/property owned before they began their relationship.

Comments in both are worth reading, especially Karen SELICK's rejoinder to SIRTASH on these points in following the "Comment" section.

1) Partially due to cost (estimated at $10,000) the husband did not bother to provide an "official" valuation of his personal business interests. Eventually these assets were proven to be worth $5.3 million and so obviously he was a wealthy man. His failure to provide an accurate valuation was
construed as a "material" misrepresentation in the pre-nuptial contract. As the final indignity the husband was charged $500,000+ and the wife $244,753 for appraisals of both parties assets.

2) Common Law relationships are governed by Provincial Statutes that intentionally adopt lower social obligations (which itself is a highly debated subject depending on your gender) for the parties involved. A formal marriage must be registered under Federal Statute and holds to established traditions.

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