Issues of credibility can often make family court proceedings difficult. However, what do the courts do when neither spouse proves to be a credible witness? A recent decision from the Ontario Superior Court of Justice dealt with that very situation.

The early  years of the marriage

The case dealt with property and support issues. The couple met in 1986 and married on July 1, 1989. It was the second marriage for both of them. The husband had two children from his previous marriage while the wife had one. The wife owned a home in Thornhill before they met, but sold it two years before the marriage. She bought another home, this time in Markham. The title was in her name and there is no dispute that she was the sole purchaser.

The husband worked for a laminating company and also owned a cleaning services business. When they met he was making $15,000-$20,000 in his day job and another $600-$700 monthly from his cleaning business. After the couple started to live together he focused entirely on his cleaning business, bringing his annual income up to $40,000. Meanwhile, the wife owned and operated a hair salon.

The wife said that in addition to the husband not contributing towards the purchase of the home, that he also failed to contribute to the day-to-day expenses of the house. She testified about this to the court, which wrote “ He never earned enough to materially contribute to the household expenses. He had no money. The wife was embarrassed that the husband was not able to read properly and so she enrolled him in a school and sometimes attended with, and helped, him at the school. She often helped him too with his cleaning business.”

In 1997 the wife sold the home in Thornhill and they moved to Vaughn. The new home was purchased with the net proceeds from the Thornhill home along with a mortgage, to which the husband was a guarantor. The house, however, was registered solely in the wife’s name. The mortgage was quickly paid, but a new one in the amount of $100,000 was taken out. The wife said the funds were used to cover the couple’s expenses, stating the husband spent extravagantly and gambled.

The husband was injured in a car accident in 2001. It took him nearly two years to be able to properly walk again. As a result, he was no longer able to do cleaning work. He had not worked from the time of the accident to the time of the hearing.

Over the years the couple also purchased properties in Jamaica, with the wife claiming the husband spent more and more time there each year.  In 2010 he reached an insurance settlement from his accident, and planned to use the $85,000 he received to retire in Jamaica. He ended up giving this wife half of that money, which she used towards their expenses and mortgages. The husband also collected a sum of money from the death of an aunt, though the wife says the financial records relating to that disappeared.

The couple separated in 2011, with the husband returning to Jamaica.

A tangled web

Despite court orders to do so, the husband and wife failed to properly disclose their respective sources of income, employment history, business information, or information on their Jamaica properties. The court addressed the parties’ behavior, writing,

“Each party complained that the other did not comply with their disclosure obligations whether as required by court Order or pursuant to the Family Law Rules and that, as a consequence, the other’s evidence should be discounted or disregarded entirely on financial issues.  Each party invited the court to draw adverse inferences about the other party’s credibility and to prefer their evidence instead.  Seemingly lost on the parties was the concept that a party cannot ask the court to make property and income findings favourable to them and contrary to the other party’s interests while at the same time not providing information relevant to the determination of those issues within their possession or ability to obtain.”

The court turned to a recent decision from the Ontario Superior Court of Justice, which outlined how a judge can address questions around witness credibility. The summary is as follows:

(a)      assessing credibility is, in every respect, a holistic undertaking incapable of precise formulation;

(b)      the trial judge need not believe or disbelieve a witness’s testimony in its entirety;

(c)      the trial judge may believe none, part or all of a witness’s evidence, and may attach different weight to different parts of a witness’s evidence; and

(d)      the trial judge can assess credibility by considering different factors that include internal and external consistency of witness testimony with the testimony of other witnesses and the documentary evidence, motive, self-interest, clarity and logic of narrative, witness presentation (distinguishing candour from evasive or strategic testimony) and, to a lesser degree, witness demeanour.  This list is not exhaustive.

While the husband was looking for spousal support from the wife, the court was rejected this request, since he was unable or unwilling to show his income, or show how he was able to maintain a lifestyle that saw him living in both Jamaica and Ontario. The court ended up ordering the wife to pay the husband an equalization payment of  $87,171 after factoring in what was known about the properties in both Ontario and Jamaica.

Working through a separation can be difficult, even for couples who don’t have problems communicating or being truthful with one another or the courts. The exceptional family law team at Borden Family Lawyers help our clients navigate through all areas of family law. With family law serving as our exclusive are of practice, we are able to apply our years of experience to your unique needs and issues. Please call us at 905-576-6090 or reach us online to see how we can help you today. Please ask about our flat fees.