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46 www.canadianlawyermag.com LEGAL REPORT FAMILY LAW THE ONTARIO COURT OF APPEAL DECISION IN LEITCH V. NOVAC STATED THE FOLLOWING: "If the tort of conspiracy is not available, then co-conspirators have no skin in the game. Their participation in hiding income or assets is a no-risk proposition." "Where income or assets have been hidden with the assistance of a co-conspirator, often the family law litigant will be effectively judgment-proof. That, after all, is the whole purpose of the conspiracy." "There is a related malady that often works hand-in-hand with nondisclosure. The problem is what I will call 'invisible litigants.' These are family members or friends of a family law litigant who insert themselves into the litigation process." The Supreme Court of Canada also considered whether a conspiracy claim could be made regarding parenting access over thirty years ago. In Frame v. Smith, the SCC found that a conspiracy claim dealing with access to children was inap- propriate. It noted: " The spectacle of parents not only suing their former spouses but also the grandparents, and aunts and uncles of their children … for interfering with rights of [parenting time] is one that invites one to pause." Lawrence Pinskey is a Winnipeg family law partner with Taylor McCaffrey LLP in Winnipeg. He wonders, with the new conspiracy tort established, "is the Ontario Court of Appeal saying that Frame v. Smith is outdated, at least when it comes to a conspiracy that is related to money in family law matters? And if that is the case, why wouldn't you allow similar torts for alienation and other issues? Does that make family law even messier? And has our family law legislation evolved or devolved to the point where we must add these kinds of torts?" Regarding the case involving the tort of family violence, the parties involved met in 1999, married soon after, and had their first child 18 months later. The wife was subject to several serious physical assaults during the parties' relationship. The court was told the "general pattern was that the father would become irrationally jealous, drink, engage in verbal arguments, and then beat the mother." In awarding the ex-wife the $150,000, Justice Mandhane wrote that the Divorce Act "does not provide a victim/survivor with a direct avenue to obtain repara- tions for harms that flow directly from family violence and that go well beyond the economic fallout of the marriage." She added the no-fault nature of family law "must give way where there are serious allegations of family violence that create independent and actionable harms that cannot be compensated through an award of spousal support." Justice Mandhane then filled this legis- lative gap by recognizing the new tort of family violence and set out a three-pronged test that should be applied. First, damages may be awarded on account of conduct by a family member in a family relationship who is violent or threatening, is so in a way that constitutes a pattern of coercive and controlling behaviour, or causes another family member to fear for their safety or that of another person. In recognizing the new tort, Justice Mandhane noted recent amendments to the Divorce Act, which applies across all Canadian provinces and territories. Those "There's not a single regime in Canada where cases of relationship breakdowns don't involve looking at questions such as division of assets, income, support, and parenting duties" John-Paul Boyd, John-Paul Boyd Arbitration Chambers a spouse has hidden assets or income, even if assisted by extended family, court sanc- tions have primarily been limited to penal- izing the spouse by ordering costs or a contempt finding. What made the conspiracy allegations in Leitch v. Novac easier to prove, says Pawlitza, were several draft memos from the father's accountant, who structured the buyout payment to the father's corporation. One suggested the father take his tax-free proceeds and lend to the husband "his portion as a loan that will be forgiven when the husband's divorce is final." Another draft memo said that "this [will] keep income out of [the husband's] hands."