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44 www.canadianlawyermag.com "Standardized methods of calculating support and division of assets don't consider extreme examples of marital breakdown" Valarie Matthews, McCarthy Hansen & Co. LLP appeal court, in the Leitch v. Novac conspiracy case, reiterated the often- quoted phrase that "nondisclosure is the cancer of family law." He found that using the tort of conspiracy in family law can be a necessary tool to ensure fairness and achieve justice. Co-conspirators, or "invis- ible litigants," he said, should "be prepared to face a conspiracy claim." Pawlitza notes that the Leitch v. Novac case had the advantage of the ex-wife presenting evidence that supported the conspiracy argument. After the couple's separation, the husband's father incorporated a company to provide management ser vices to a casino operation. Evidence was presented indicating the ex-husband and his father had orally agreed that the husband would receive 40 percent of the management fees otherwise payable to the father's corpora- tion over the contract's life. However, before the end of the contract, the casino owner bought out the contract for nearly $6,000,000, and the lump sum was paid to the father's corporation. While the buyout occurred after separation, the husband's 40 percent share would have been income used to calculate spousal and child support. However, the husband's father kept all of the income from the buyout. The defendants brought a motion for partial summary judgment to have the conspiracy claims dismissed. The motions judge allowed the case to go to trial, finding the basis for the claims had not been estab- lished and would open the floodgates of litigation in family law cases. Justice Hourigan saw it differently. The tort of conspiracy in family law could be a game-changer in income or asset division if the evidence is there, says Pawlitza. She says similar claims against extended family members are uncommon and have been largely unsuccessful. When sions in making their own, says arbitrator, mediator, and parenting coordinator John- Paul Boyd. However, "there's not a single regime in Canada where cases of relation- ship breakdowns don' t involve looking at questions such as division of assets, income, support, and parenting duties." Consequently, these decisions "will influence judges in Alberta and everywhere else in the country." Lonny Balbi, lawyer, mediator, and arbi- trator with Balbi & Company in Calgary, says that while it will likely take time for other court systems to consider them, "the two Ontario tort strategies provide a pretty solid potential additional arrow to a lawyer's quiver." Justice William Hourigan of the Ontario LEGAL REPORT FAMILY LAW TORT OF FAMILY VIOLENCE The three-pronged test set by the Ontario Superior Court of Justice requires: conduct by a family member that is violent or threatening; actions and words that constitute a pattern of coercive and controlling behaviour; behaviour that causes the other family member to fear for their safety or that of another person.