Happy Ending for Local Child Abduction Case

DSC00275_1Not all abduction cases end in the disappointment of “no return” or even death, like little Amber Lucius. Early last month I became involved in a child abduction case that spanned the globe from Portugal to Vancouver to Corner Brook Newfoundland.

The parents of a nine-year-old girl named Lauren moved from their long-time home of Vancouver to Portugal three years ago. They settled in and Lauren’s mom who was a Canadian citizen applied for and was granted Portuguese citizenship as did Lauren, who was born in Canada. Their new life began, Lauren was registered in school and by all accounts, her parents enjoyed their new home, particularly Lauren’s father who was a dual citizen and had family and business interests in Portugal.

Unfortunately, the marriage began to falter but the parties remained together in the family home. Lauren’s father became concerned that his wife would leave Portugal with Lauren. He was so concerned that he obtained a “travel ban” which is a non-judicial warning to immigration that a child cannot be removed from the country without a court order or the consent of both parents. Lauren’s mom knew that her spouse would never agree, so she planned a clandestine middle-of-the-night departure, circumventing Portuguese authorities by driving to Seville Spain and catching a plane to Newfoundland where the parties had a summer cottage and where her family resided.

Lauren’s mom knew that her midnight dash was contrary to the law, having received advice from several lawyers and other officials, but she ignored them all. Lauren’s father immediately left Portugal and arrived in Vancouver, ready to do whatever was required to bring his daughter back to Portugal for the start of school on September 11. In the meantime, Lauren’s mother had already obtained an ex parte order from a Newfoundland court giving her interim custody of Lauren. My quarrel with ex parte orders is well-know to regular readers of Lawdiva. They are a blatant breach of due process and ought not to be granted unless there is clear evidence of impending danger to the leaving parent or the child.

We rapidly prepared an application pursuant to the Hague Convention on Child Abduction, an intricate process that entails the compilation of many relevant documents. Of course, all of the documents required translation as they were in Portugese. Back in Portugal a criminal action was commenced since child abduction is a criminal offence. The next step was to locate a lawyer in Newfoundland who was able, on short notice, to get into court there to argue for the return of Lauren. An experienced QC jumped on board to secure Lauren’s return.

An interesting part of this case was that Lauren’s father and mother shared a computer which gave Lauren’s father access to all his wife’s emails, many of which were extremely damaging to her case. After obtaining advice from a lawyer specializing in privacy law, the decision was made to include the emails in the Hague application. Lauren’s return was paramount and any evidence that assisted had to be utilized.

A Newfoundland judge presided over a four-day hearing last week that focused exclusively on the question of which court had jurisdiction to deal with custody of Lauren: Portugal or Newfoundland? The law is very clear that the court where the child “habitually resides” has sole jurisdiction to make custody decisions. Naturally, Lauren’s mother attempted to argue that Newfoundland was Lauren’s habitual residence, a position that was doomed to fail, given the extensive evidence of Lauren’s life in Portugal.

Thankfully, the Newfoundland court found that Portugal was the jurisdiction to determine Lauren’s custody and an order was made that her father return with her to Portugal immediately, just in time for the first day of school.

If Lauren’s mother is determined to bring Lauren to Canada, she must now convince a Portuguese judge that her position is in Lauren’s best interests. The battle is won, but the war is not over.

Lawdiva aka Georgialee Lang

Alberta Child Who Was Abducted Found Dead

10950859361151CDPIn a heart wrenching story out of Alberta today, we learned that nine-year-old Amber Lucius was abducted by her mother, and later found dead in a truck parked on a country road in Millet, a farming community outside of Calgary with a population of 2,000. Her mother was with her when she was discovered. How could this have happened and what can be done to prevent the violence that rears its ugly head in high-conflict custody battles between warring parents?

Amber’s parents, Laura Coward and Duane Lucius, were married in 2004 and separated three years later in 2007. In the beginning of their post-separation parenting, the parties shared joint custody and Amber lived primarily with her mother. I should clarify that joint custody does not mean equal parenting time, it means equal decision-making, a concept that is illusory where one parent refuses to collaborate with the other.

Ms. Coward was one of those mothers who made her former husband’s life a living nightmare by refusing to facilitate his parenting time with Amber, a situation that led to ten court orders intended to address Ms. Coward’s refusal to accommodate Mr. Lucius’ parenting time. It took ten court orders before the Court finally transferred custody of Amber from her mother to Mr. Lucius in June of 2013. Ms. Coward was given specified visitation time with her daughter.

In April of 2014 Ms. Coward again breached a court order and refused to return Amber to her father’s home. The RCMP intervened at that time and it appears that Ms. Coward’s parenting time was restricted until a judge made an order last week permitting Ms. Coward to have four consecutive days with Amber over the Labour Day long weekend. But Ms. Coward had planned something far more sinister than spending four lazy summer days with her daughter.

She picked up Amber on Thursday and was to return her on Sunday, however, on Sunday night there was no sign of Amber or her mother. Regrettably, there was no Amber alert for Amber Lucius either. What police have learned since finding Amber’s body and arresting Ms. Coward for child abduction is that she had given notice on her rental premises and a new family had already moved into her former home. Where she was going has not yet been determined and neither has Amber’s cause of death. No charges have yet been brought for the girl’s death pending an autopsy next week.

The community of Millet is understandably shocked by Amber’s death, the second tragedy in Millet in the last few years. In 2010 Allyson McConnell drowned her two sons, ages 2 1/2 and 10 months in a bathtub in her home and attempted to commit suicide. She was convicted of manslaughter, sentenced to six years, and spent 15 months in a psychiatric hospital until her deportation back to her home country of Australia. Shortly after returning to Australia she took her own life. Allyson McConnell was also engaged in a custody battle with her estranged husband.

Lawdiva aka Georgialee Lang

Airplane Carrying Abducted Child Ordered to Return to the US

GEO CASUALLinda Liu no doubt thought she had made good on her clandestine departure from Washington DC after she successfully boarded an American Airlines jet last evening bound for Beijing with her 4-year-old son and her mother.

That is, until the Federal Bureau of Investigation was alerted and the airline was ordered to return to its home base despite completing five hours of its flight to China.

After Ms. Liu (also known as Wenjing Liu,) a Chinese citizen, and  her husband, William Ruifrok, an American citizen,  separated in 2013 they entered into a custody agreement that provided for joint custody and also stipulated that neither parent would remove their young son from the United States “without express written and notarized consent of the other party, provided in advance of the trip.”.

When the flight landed at Dulles Airport, an official  welcoming party escorted Ms. Liu off the plane and took her into police custody on a criminal complaint of unlawfully attempting to remove a child from the United States with intent to obstruct the lawful exercise of parental rights. Ms. Liu’s mother was not detained and the young boy, who has dual citizenship, was returned to his very grateful father.

Once a child is kidnapped, particularly to a jurisdiction that is not a signatory to the Hague Convention on Child Abduction, the process to recover the abducted child is fraught with difficulty and crippling expense. China, of course, is not a signatory and so one can appreciate Mr. Ruifrok’s immense relief at the FBI’s intervention.

Summer is frequently the time when parents who wish to  take their child and run seem to do so. In previous summers I have handled up to three abduction cases, while this summer I worked on the return of a child who was abducted from her Canadian father who lives  in Portugal to  the home of the abducting mother’s  family who  reside in Eastern Canada. That case is still before the Court and hopefully justice will be served and the child will be returned to Portugal. Under the Hague Convention the protocol is for the Court where the child habitually resides to decide whether the child is permitted to move to a new permanent residence, a decision based on the best interests of the child.

The only  question that remains is how Mr. Ruifrok managed to convince the  FBI to order the return of the aircraft. Lucky man!

New York Author Successfully Resists Divorce Subpoena

DSC00447_2 (1)The divorce of American oil billionaire Harold Hamm and former lawyer Sue Ann Hamm has attracted lots of attention and gallons of ink, as media outlets around North America write and revel in every detail. An interesting aspect of the Hamm case is Ms. Hamm’s attempt to subpoena documents from New York author Gregory Zukerman, who penned the best-seller “The Frackers: The Outrageous Inside Story of the New Billionaire Wildcatters”, a book that focused on Harold Hamm, among others.

Ms. Hamm wanted Mr. Zuckerman to produce all audio and visual recordings, notes, emails, records, material, well valuations and all other documents in his possession relating to Harold Hamm or his company, Continental Resource Inc. in her quest to prove that the increase in value of Mr. Hamm’s massive holdings during their 22-year marriage was largely related to his skill, energy, and business acumen. Why would she want to prove that? Simply because if she can show the Court that her husband was responsible for his company’s huge growth, she will be entitled to one-half of the increased value.

Of course, it is in Mr. Hamm’s best interests to modestly suggest that market forces alone were responsible for the significant increase in the value of Continental Resources, and that is exactly the approach his lawyers are taking in their efforts to preserve their client’s assets for him, to the exclusion of his wife.

Unfortunately for Ms. Hamm, New York’s journalist “shield law”, enacted in 1970, prevented her from obtaining the documents she requested. New York Supreme Court Justice Donna Mills ruled that Ms. Hamm had not shown she had exhausted other avenues to obtain the material and absent this kind of evidence she could not breach the shield law. She also noted that Ms. Hamm wanted these documents to use them against her husband, either to impeach him in court or show that his position lacked credibility.

The Court accepted Mr. Zuckerman’s argument that the release of this information would turn him into a professional witness, rather than a journalist, a step that would impede his writing career and hs credibility with his journalistic sources.

For now, Ms. Hamm will need to explore alternative routes to obtain the documents, if she is to succeed in her claim to share in a large portion of her husband’s $20 billion dollar estate. I have no doubt that her clever legal team will prevail in this divorce battle.

Lawdiva aka Georgialee Lang

Enraged Husband Attacks Wife in Court After Child Support Order Pronounced

_DSC4851Catherine Gonzalez, age 23, was forced to go to court to get an order that her husband pay child support, an application that is brought routinely in family law courts across North America, when a parent refuses to pay support voluntarily.

Her husband Paul Gonzalez Jr., a former Marine, was enraged when Judge Geoffrey Cohen made the order and stormed out of the Judge’s chambers. But he returned, and attacked his wife, in front of Judge Cohen and her lawyer, pummeling his wife with his fists. Ms. Gonzalez suffered significant injuries including a broken nose, a broken jaw, a torn lip, a concussion, and severe bruises to her face and eyes.

The beating ended with the intervention of Ms. Gonzalez’s lawyer and court bailiffs who confronted Mr. Gonzalez with a stun gun.

The Court threw the book at Mr. Gonzalez, sentencing him to 15 years in prison for the brutal assault on his wife, despite testimony from the a psychologist that he suffered from bi-polar disorder and post-traumatic stress disorder.

Judge Cohen was particularly incensed by Mr. Gonzalez’s attack in a court of law, where participants had every right to feel safe. The sentence he imposed was more than three times Florida’s maximum sentence for aggravated battery.

Earlier, Ms. Gonzalez had sought a restraining order against her husband but couldn’t persuade a judge to make that order.

In courts in British Columbia where counsel are concerned that one of the parties may become violent, a special request is made to ensure that a sheriff is in the courtroom during the hearing.

It is a shame that Ms. Gonzalez’s fear of her husband’s threatening behavior was not taken seriously, by anyone

Lawdiva aka Georgialee Lang

Why Family Law Lawyers Will Always Bill By the Hour

GEO CASUALI read a piece in the Huffington Post this week written by Jim Halfens of Divorce Hotel, who argued that it was about time that divorce lawyers charged a fixed fee for the legal work they perform, instead of sticking to the “old way” of hourly billing.

It will never happen and for good reason! If Mr. Halfen knew the frailties of the family court system and the opportunities for abuse and delay, he would understand. But let me paint you a picture of regular occurrences in the practice of family law;

A client asks you to draw up a comprehensive separation agreement or prenuptial agreement, which without complications will cost in the range of $3,000. The problem is that often clients will request the agreement, expend the funds, all without having any idea whether their spouse will agree or sign the agreement.

Of course, it is an utter waste of time to present an agreement to your spouse, the terms of which have never been discussed with him or her. My practice is to warn clients that they may be wasting money, if they haven’t bothered to determine if their spouse is “on side”.

Once the client believes their spouse will cooperate, it is a “go” for the agreement and usually clients want to know exactly how much it will cost and want you to guarantee that fee estimate.

But it can’t be done….because every agreement and spouse is different and you can never rely on a client’s advice that their situation is straight forward. For example, it is commonplace to ask your client to provide you with a list of all their assets, their estimated values, and also their debts and the amounts owing. You also need the same information from their partner.

Of course, you can’t forget to request their recent personal and corporate tax returns, and in the case of companies, the financial statements as well. While the client may imagine their financial situation is simple, usually it is not, particularly where there are more sophisticated assets, like trusts, annuities and off-shore assets. But you don’t know any of that until you receive all the documents and my experience is that you never get everything you need or it trickles in over a lengthy period of time.

Lawyers bill for their expertise and the time it takes them to complete a task for their client. In this agreement scenario, it would be foolish to quote a fixed fee for ten hours of time, when it may take you twenty hours, or more. Another difficulty is that once the agreement is complete, your client’s partner will take it to her or his lawyer to review and negotiate. That could take two hours or ten hours, because initially you don’t often know who your client’s spouse will retain. One thing lawyers know is the negotiation styles of their colleagues, some lawyers are known to be reasonable, but others are not.

However, the agreement scenario is a piece of cake compared to the living nightmare if you must enter the family justice system, once negotiation and mediation have failed.(Unless of course, you are smart enough to agree to a private arbitration, but that’s another article) If you thought your lawyer was expensive before, this calamity will cost you not only heaps of money but also your emotional and psychological sanity. Where to begin?

After all the negotiations and mediations are at an end, the first thing you’ll have to do is attend a mandatory mediation with a judge, who may or may not be capable of facilitating a settlement. But it’s not like you haven’t already been there, done that. This first step will cost you several thousand dollars and it is not optional in most cases.

Once that has been a complete bust, you enter the nightmare called family law litigation, an experience that frightens even those who are courtroom addicts. The first shock is that you must produce every single piece of paper that has anything to do with the issues in your case, and I mean everything: your kid’s report cards, your kid’s medical records, all paper that is related to your assets and debts, including statements for long-lost bank accounts, credit card statements for the past five years, business records and financial statements, tax returns, and all the damning emails your spouse has sent to you, but that’s just the beginning.

Speaking of emails, most lawyers spend a lot of time reading lengthy email missives from their clients, and also multiple strings of nasty emails between client and his or her spouse, many of which will be producible for court. Hard to predict in advance whether you’ll need to read a hundred emails or several thousand. And don’t forget your lawyer will regularly scour the internet for damaging posts and pictures.

You’ll need to hire appraisers: lots of them, to value your home, your summer cottage, your cars, your boat and trailer, your wine collection, art collection, antique furniture, and your pension. But none of those appraisals will be definitive because your partner will do the same, and if you have a business, you need to set aside $30,000 or more to pay a business valuator. Welcome to the battle of the experts!

Worse than all of that is that when you finally prepare to go to court, you’ll get there and sit in a courtroom all day, only to learn that you have to come back another day, because the judge ran out of time. More delay and more costs because all that work your lawyer did to prepare, must be redone to prepare again, after all, your lawyer has dozens of clients and with even a delay of one week will not remember all the details without another review. You finally get a judge and you learn that you won’t get a decision for weeks, even months.

Tell me honestly, how do you provide your client with an infallible estimate of what it all will cost? That’s right, you don’t, because you can’t.

Lawdiva aka Georgialee Lang

Lawyer Botches Adoption, Sued for Dead Infant

DSC01152_2 (2)_2Rachel and Heidi McFarland were thrilled with their little baby boy, who they adopted as a newborn from the infant’s 15-year-old mother. They loved him and cared for him for two months, but then received advice from their lawyer, Jason Rieper, that their son, named Gabriel, needed to be returned to his mother, Markeya Atkins.

Lawyer Rieper told the Des Moines couple that if they wanted to continue with the adoption he would need more than $10,000, but he didn’t explain to them why the money was needed. Rachel and Heidi were devastated, writing Mr. Rieper a letter indicating their desire to continue with the process. Mr. Rieper responded with a letter outlining Ms. Atkins “troubled youth” and her abuse of drugs. A few days later, Mr. Rieper showed up at the McFarland home, told them they had a slim chance of a successful adoption, and took the child to his birth mother. He advised them that a judge would likely side with the birth mother in any court proceeding.

Within five weeks of Gabriel’s return, he was dead and the child’s father, 17-year-old Drew James Weehler-Smith was charged with first degree murder. What the McFarland’s discovered was that their lawyer had failed to obtain the mother’s signature releasing the baby to the McFarlands, a fact he hid from his clients. They are suing for negligence and also arguing that Mr. Rieper had a legal obligation to advise child protection authorities of the danger of the infant’s return.

Poor little Gabriel, another victim of child abuse.

Lawdiva aka Georgialee Lang