How not to win a court case goes like this……: Stubbornly insisting that nothing is your fault, the other person is always to blame, and they are a liar but you always see and tell the truth, is a good way to lose your credibility. In a recent Ontario case, the judge trashed the testimony of someone who committed these all-to-common sins: “Her intention was clear,” the judge fumed. “She wanted to paint herself in the best possible light, and him in the worst possible light. Doing so, she rendered her evidence unreliable.”
She was “not calm in the witness box,” the judge observed, adding that “if she disagreed with a proposition put to her in cross-examination, she responded emphatically ‘that is a lie!’ rather than simply disagreeing with the statement. She was anxious to call him a liar. Even when it was clear she should simply agree with the proposition put to her on cross-examination, she would stubbornly refuse to do so.”
So she lost.
Then she appealed and lost that too. The most interesting legal issue at play was what to do with the money he received from his mother — there were some gifts made by mom while she was alive, then an inheritance after she passed away. Ontario law says any gifts or inheritances (other than a matrimonial home) received during marriage DO NOT have to be shared with your ex. It even says the financial growth of these monies will not be shared, provided the person giving the gift, or the person leaving the inheritance, expressly says so.
She claimed the gifts from his mom were meant for both of them. The judge didn’t buy it because, well, she had no credibility. Plus, the evidence said otherwise: for example, the cheques from mom were made out to him alone. As for the inheritance, mom’s Last Will and Testament expressly stated that the bequest — and any growth of it — were not to be shared in the event of marriage breakdown.
Then she claimed that because he parked the gift money and inheritance money in a joint account for a while meant that he gave her half of it. No, said the court. True, the law says that if an asset is jointly held by both spouses, this proves they both own it, “in the absence of evidence to the contrary.” In this case there was evidence to the contrary — see above. The fact that money passes through a joint account does not automatically mean the money is jointly owned.
For a durable and responsibly-negotiated agreement, contact Shirley Levitan, Toronto based collaborative family law lawyer, and consider a collaborative negotiation!!!
Bill Rogers is a Toronto-based lawyer, journalist, and family law mediator