Law Times

Law Times • June 26, 2017 Page 7 www.lawtimesnews.com Decision affects net family property BY MARTA SIEMIARCZUK A short but important decision came out of the Court of Appeal recently. In Ernikos v. Ernikos, 2017 CarswellOnt 6285, the court considered whether Minutes of Set- tlement relating to, among other things, equalization of net family property con- tinued to be valid and binding on the par- ties after they reconciled and then sepa- rated again. Very brief ly, the facts are that Anasta- sios and Katherine Ernikos separated in 2006 after nine years of marriage. They resolved all issues through Minutes of Settlement in March 2007. In this regard, pursuant to the equalization scheme, Katherine Ernikos owed an equalization payment to Anastasios Ernikos, among other sums, which was satisfied by her through a transfer of her half interest in the matrimonial home to him. A few months after the settlement was finalized and the property transferred, the parties reconciled. They separated again in 2013. In 2010, during the period of reconciliation, Anastasios Ernikos transferred his sole title in the matrimo- nial home to his mother. At trial, he indi- cated this was due to the fact that he owed money to his mother. The Minutes of Settlement included something that is standard language in separation agreements relating to recon- ciliation. That was if the parties recon- ciled for more than 90 days, "the Agreement will become void, except that any trans- fers or payments made to that time will not be affected or invalidated." Commonly, this is where those clauses stop. However, in the Ernikos' Minutes, a subsequent paragraph stated that in the event the par- ties continued to cohabit for more than 90 days, neither party would be entitled to equalization of net family property should they separate again. Fol- lowing the second separation, Katherine Ernikos sought, among other forms of relief, a trust interest in the matrimonial home and named her mother-in-law as an added respondent. An unfortunate and complicating fac- tor for Anastasios Ernikos is that during the period of reconciliation, Katherine Ernikos received a disability lump sum payment of approximately $135,000 that she put into her husband's bank account. It would appear, although it is not entirely clear, that part of those funds were used to pay off the balance of the mortgage against the matrimonial home, which, in different circumstances, could have led to a successful constructive trust claim. The trial judge held that the Minutes, as they pertained to equalization of net family property, were binding as against the parties and her claims were dismissed. The Court of Appeal considered the resulting and construc- tive trust claims of Katherine Ernikos with respect to the home and also dismissed her appeal. While the decision is very brief, it appears that had there been better evidence present- ed by Katherine Ernikos at trial or had she made a trust claim as against the husband's bank accounts (as opposed to seeking an interest in the home that he no lon- ger owned), her claim may have received some traction. Unfortunately, Katherine Ernikos was self-represented at trial and seemingly fairly confused. She did not amend her pleading to claim a trust interest in her husband's bank accounts, nor did she adduce any evidence about advancing money to her mother-in-law regarding the payoff of the mortgage with her disability settlement. Seemingly, there was also no "tracing" evidence of the money trail. In large part, on this basis, the Court of Appeal dismissed her appeal on all fronts. I read this case several times over despite how short it is because, at first blush, it really looks like Katherine Ernikos got a bad deal. However, at the end of the day, based on the facts and evidence, both levels of court got this one right. There was no evidence that I could see to sup- port Katherine Ernikos' claims before the court. Why this is unfortunate is that, in all likelihood, there could have been good evidence in her favour that may well have led to a different result. Looking at the clauses in the Minutes of Settlement, they only preclude further claims for equalization. They do not preclude all property claims, such as a constructive or resulting trust. Those are still open to the parties; however, those need to be supported by good, solid evidence. The result in this case illustrates how important it is that we ensure clients un- derstand these "reconciliation clauses" as they are, in large part, marriage contracts in and of themselves. Clients need to be made aware of just how significant the consequences of these clauses can be if there is a reconciliation and a subsequent separation and just how important it is to keep track of your property, assets and intermingling or transferring of funds/ assets to your spouse. LT uMarta Siemiarczuk is a lawyer practising family law litigation and collaborative family law at Nelligan O'Brien Payne LLP in Ottawa. She can be reached at marta.siemiarczuk@nelligan.ca. Time for action for self-represented litigants BY JENNIFER LEITCH T he problem of self-represented litigants is now achieving endemic proportions. The civil justice system is in crisis. In a variety of legal contexts, self-represented litigants now represent the majority of litigants. Wheth- er it is landlord-tenant, family, employment or debt-col- lection matters, statistics confirm that a vast number of individuals are compelled to represent themselves. Thus, to continue to adhere to a policy that seeks to provide more legal representation to those who cannot otherwise afford it is unrealistic at best. More likely, it is throwing bad money after good. The unbundling of legal services whereby lawyers offer limited services to those who cannot afford to re- tain a lawyer has also been described as the pragmatic alternative when compared to full representation. Empirical evidence suggests that, while unbundling might help individuals' perceptions of the legal process, it may not actually change the legal outcome for unrep- resented litigants unless they have full representation. As such, when it comes to unbundling, neither the lofty goal of full representation (which remains sig- nificantly unmet and practically unattainable) nor the pragmatic approach is likely to meaningfully narrow the growing justice gap. Self-represented litigants will remain hostages to fortune. Thus, instead of focusing exclusively on supply-side solutions, it is perhaps time to focus more directly on what has been termed demand-side solutions. These are solutions that look at how self- representation may be better incorporated into the civil justice system. The goal would be the promotion of the parties' meaningful participation in the decision-making pro- cess that affects them regardless of whether they are represented by legal counsel. The reality is that self-representation calls into ques- tion a legal system that grounds ideas of fairness and justice in a process that assumes two equally trained professionals presenting their cases to a passive and neutral adjudicator. However, if one of the parties ostensibly has one hand tied behind their back (due to a lack of training or knowledge), it is no longer a fair fight. And if it is no longer a fair fight, then it is time to critically consider the workability as well as legitimacy of such a dispute process. In the interests of procedural fairness, it is no longer possible to associate impartiality and neutrality with passivity. This is where the role of the judge becomes pivotal in securing the proper administration of justice — a role recently reviewed by Justice David Brown in Moore v. Apollo Hair and Beauty Care (Moore). On appeal, a self-represented plaintiff alleged that the Small Claims Court judge hearing her claims of constructive dismissal misconstrued her evidence re- specting a claim for unpaid wages. This was based on the fact that the judge failed to assess a short statement she made during her evidence- in-chief. Her answer to one question appeared to con- tradict the other evidence that she had presented in her case. The trial judge further failed to make inquiries before concluding that the plaintiff was abandoning her claim. In making these determinations, Brown said, "[Deputy judges of the Small Claims Court] daily face the challenge of trying to modify an adversarial civil litigation process historically predicated on representa- tion by counsel to the increase in self-representation by parties. Nevertheless, such is the new reality." Brown's comments ref lect the need to articulate a new role for trial judges vis-à-vis self-represented liti- gants. In light of cases like Moore, the debate can no longer be about whether judges should treat self-represented litigants as they would treat counsel. Rather, the focus must be on the efforts necessary to engage an appropri- ate degree of judicial intervention that will ensure that non-lawyers are provided with a fair opportunity to present their cases and participate meaningfully in the legal processes that affect them. In this vein, in 2006, the Canadian Judicial Coun- cil articulated guidelines that judges should follow in cases involving self-represented litigants — guidelines that were recently endorsed by the Supreme Court of Canada in the decision of Pintea v. Johns, 2017 SCC 23. Although these guidelines have been in place for some time, the number of self-represented litigants continues to rise as do the cases highlighting the challenges facing the judiciary in such cases. Given this growth, such guidelines are no longer sufficient to address the challenges facing judges with- in the civil justice system. Questions about the scope of a judge's duties and responsibilities in cases involving self-represented litigants are in urgent need of concrete answers. There must be a move beyond the discussion of principles to efforts to articulate how judges are to conduct legal processes involving self-represented litigants. Such a shift will likely call on adjudicators to intervene in the legal process; they would more actively and consistent- ly engage with the self-represented litigants. In this sense, the time for mere tinkering with the existing adversarial process has passed. Rather, there is a need for an engaged re-framing of the judge's role within those processes to better and more fairly incor- porate self-represented litigants. Such an endeavour requires a different view of the problem. Self-representation must be seen for what it is — a new reality that demands new processes and new roles for those who inhabit and control the legal system. Instead of viewing self-represented litigants as a problem for which some form of reduced legal repre- sentation provides the best answer, it behooves lawyers and judges to make a less makeshift and more adequate response. The consequence of failing is a loss of legitimacy in the legal system by those who seek justice from it. It may be that how we deal with the challenges of self-represented litigants will be a measure of our true commitment to genuine access to justice. In a manner of speaking, as goes the plight of self-represented liti- gants, so goes the quality of the legal process. LT uJennifer Leitch is a lawyer and research fellow at the Canadian Forum on Civil Justice, as well as an adjunct professor at Osgoode Hall Law School and University of Toronto Faculty of Law. Previously, she practiced civil litigation at Goodmans LLP. u SPEAKER'S CORNER COMMENT Family Law Marta Siemiarczuk

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