Family Justice Courts Case Highlights

The fulfilment of the Ladd v Marshall conditions does not bind the court’s hands in admitting fresh evidence, and conversely the court is not prevented from admitting fresh evidence even in the absence of strict compliance with these conditions.

Section 112(5)(d) of the Women’s Charter 1961 provides for orders to supplement and give effect to primary orders for division of matrimonial assets. Entitlements to shares may be treated as matrimonial assets (but not automatically so) depending on the nature of the conditions for entitlement.

While default date for the identification of assets is the date of the interim judgment, the court may depart from that date in deserving cases, such as when parties separated and lived separate lives years before the interim judgment.

The change of a name or surname of a child was a serious matter that requires compelling reasons before the court will allow for such change. There is a list of non-exhaustive factors that the court will consider. While a child’s name is a symbol of his identity, it is not the only connection between the child and his or her parent and a change of surname is not necessary for the child to know that he or she is a parent’s child.

Section 112(4) of the Women’s Charter only applies to orders made under the section, and does not have retrospective application. For a variation to be justified under s 112(4), there must be “exceptional reasons” in that the order was unworkable or has become unworkable.

The contractual reasoning that parties who have jointly appointed an expert to adjudicate on a particular matter can only challenge that expert’s determination on the grounds of fraud or collusion does not apply in the family context.

The assessment of mental capacity is a holistic one involving functional and clinical components.

A caveator will not be liable for costs if he insists that the applicant of a grant of probate proves the formality of the will and if he wishes to cross-examine the witnesses. However, if the caveator goes beyond that and challenges the will, he now becomes the “mover” or “plaintiff” responsible for starting the contentious probate proceedings and as a result may be liable for security for costs.

That a personal protection order (“PPO”) may encourage more meaningful access is an irrelevant consideration, and the PPO may on the contrary negatively impact family relationships. The grant of a PPO involves a fact-centric analysis in determining if the threshold under s 65(1) of the Women’s Charter has been satisfied on a balance of probabilities.

Remarriage in itself is a change in circumstances but whether it is sufficient to merit a variation of the maintenance order requires further examination of the nature and extent of the change.