Divorce Spyware: I Spy With My Little Eye

DSC00275_1 In many family law cases suspicion and lack of trust permeates divorce proceedings. It has become routine to have new divorce clients ask about the legal rules regarding spyware, computer passwords, telephone taps, and other forms of clandestine information-gathering tools.

In the old days, divorcing parties hired private detectives to ferret out damaging information about their estranged spouses. When no-fault divorce was introduced in Canada, investigators found their work drying up as it didn’t matter whether a spouse had been unfaithful.

However, with advances in technology and the proliferation of “Spy” stores, anybody
can readily access hidden “nanny” cameras, telephone bugs and computer screeners, or privately install a GPS on an unwitting spouse’s vehicle.

Gone are the simpler days when a wife simply located her husband’s desk keys or office pass to make an after-hours entry in order to surreptitiously remove or photocopy important documents and generally snoop for information that might help her and hurt him.

Even without sophisticated spy tools it is not difficult to track a spouse’s activities by monitoring their emails, text messages, credit card purchases, bank transactions, Facebook page, etc. Most separated spouses do not immediately change their passwords and frequently spouses can access important information this way.

But is it legal? That’s where it gets dicey…If the family computer is shared by both husband and wife with a single password, it may be offensive to spy on one’s spouse, but probably not illegal.

But even without a computer password, illegal hacking is easier than you think with today’s sophisticated devices. You may recall that journalists for one of Britain’s leading newspapers were hacking phones and computers of celebrities, crime victims, and the royal family, a situation that resulted in the newspaper eventually folding amid embarrassment and scandal.

What about putting a tap on a spouse’s car phone? That’s a no-no. Canada’s privacy law provides that so long as one of the two parties being recorded consents there is no problem and of course, if you record your conversations with your spouse you have obviously consented. However, if you place a bug on your wife’s car telephone, you are recording her conversations with others, yes, maybe even her boyfriend, but those parties have not consented.

What about installing a hidden tracker on your spouse’s car? Again, if the car is in joint names, you can do as you like, but I would be cautious with a GPS on a vehicle that does not belong to you. Besides potential privacy violations, you may be faced with criminal charges such as stalking or harassment.

The question you must ask is whether the evidence you need to get is worth the risk of a privacy violation or worse? That’s a decision for you and your family lawyer to make.

Lawdiva aka Georgialee Lang

Rocker Randy Bachman’s Divorce Just Got More Complicated

10950859361151CDPRock legend Randy Bachman thought he was “taking care of business” when he and his wife, Denise Beck Bachman opted out of their divorce trial and agreed to settle their financial issues amicably last January. A smart move….however, sometimes in family law, one party thinks they’ve got a deal, while the other disagrees.

That’s exactly what brought the Bachman’s into Supreme Court recently.

The couple married in 1982 and became step-parents of each other’s children from previous marriages. Randy had six children with his first wife, while Denise had one son. Together they brought their own child into the world and remained a couple until their separation in 2011.

Their alleged settlement provided Denise with 27.5% of his annual song royalties of $1.4 million a year, and $32,000 a month in spousal support. As part of Denise’s financial package she was to acquire one-half of a residence in London, England upon Randy’s death.

However, she later learned that the property had been transferred to a trust and she claimed the beneficiaries were Randy’s six children and not her.

Meanwhile, while Mr. Bachman argued that a full agreement had been reached, he did not pay Denise her $32,000 monthly support but instead had paid her $3,000 a month.

Denise advised Chief Justice Hinkson that no final agreement had been reached because her husband had not agreed to provide “security” for the payments she was to receive. Security can be in many forms including the granting of a mortgage, a sum of money held in trust, or a letter of credit.

The purpose of security is that if the payor refuses or cannot pay the sums owed, the security can be used to make the required payments.

Denise’s argument prevailed. The judge ordered that if security was an integral part of the agreement and it had not been agreed by the parties, then the agreement was not complete. CJ Hinkson also said it was not the Court’s responsibility to fill in the details of an otherwise incomplete agreement. The judge also ordered Mr. Bachman to pay his wife $32,000 a month pending a final settlement or judgment.

So, the Bachman’s are back where they started. They can either negotiate a new settlement of the financial issues or book a trial and have a judge decide the issues. Or if they were really smart they would hire a family law arbitrator to resolve all matters and thus avoid the cost, delay, and publicity of a trial.

The public unravelling of a rock and roll marriage would undoubtedly generate a media frenzy!

Lawdiva aka Georgialee Lang

When Surrogacy and Adoption Goes Wrong

DSC00258_1Several months ago we read about a couple from Australia who hired a Thai surrogate so she could bear the child they always wanted. During month three of the surrogate’s pregnancy the couple were informed that the 21 year-old surrogate was having twins, one of whom tested positive for Down’s syndrome. According to the surrogate, the parents-to-be implored her to have an abortion but she refused.

When the twins were born the agency who arranged the surrogacy delivered the “healthy” twin girl to the couple, leaving behind the baby boy who also had a congenital heart defect. Once the rejection of this little boy went viral, kind people around the world began donating monies, more than $150,000, to the surrogate mother who vowed to keep the baby and was surprised and heartened by the generosity of strangers.

The Australian couple were vilified and attempted to tell their side of the story, which was that they prayed fervently for their baby’s boy health when the twins were born two months premature, but were told the baby boy would not survive more than a day.

The media storm accelerated when it was publicly revealed that the biological father, an Australian, was a convicted pedophile and his Asian wife was aware of his sordid past. At the same time, the media released information that more than 65 babies born of surrogates in Thailand for gay couples from Israel were in the hands of Thai social services, because the Israeli government refused to grant immigration visas to the children.

These stories and others tell of the difficulties experienced by adoptive parents, surrogate mothers, and other players in the world of assisted reproduction and adoption.

A new story out of New York sheds further light on the frailties of international adoption. In the case of Matter of Adoption of Child A and Child C, a Long Island couple adopted two children from Russia in 2008. The children were described as “healthy and socially well-adjusted siblings”, but their adoptive parents had reason to doubt what they had been told when both children began to exhibit serious mental health problems. The couple also learned that the children were not related and both had been victims of sexual abuse. This truth began to explain the children’s bizarre behaviour including their threats to kill the parents.

Nassau County Judge Edward McCarty III will hear the parent’s application to void the adoption which will be heard in open court although the names of the parents and the children will be sealed. Judge McCarty explained that he wanted the proceedings to be public because 18 Russian children who were adopted by American families died violently in the last 20 years, most of them only residing in the US for six months.

The Long Island children, who are 12 and 14 years-old, are presently in state mental health facilities.

Lawdiva aka Georgialee Lang

Family Law Lies Endanger “Save China’s Tigers” Charity

10950859361151CDPStuart Bray met his wife Li Quan in 1990 and quickly embraced her passion to save China’s tigers and to develop a breeding program to reintroduce China’s tigers back to their wild reserves.

Each of them invested huge sums of money, time, and energy into their joint charity called “Save China’s Tigers” which was established in the United Kingdom in 2000.

Mr. Bray had a successful career in finance and banking before leaving the Deutsche Bank with a libel judgment in his favour for $20 million pounds. Ms. Quan and Mr. Bray began living together in 1997 and married in 2001.

Regrettably, the couple’s marriage floundered, in part because they could not agree about future policy for their tiger project. Ms. Quan commenced divorce proceedings in the divorce capital of Europe, London, England, and was removed from the directorship of the charity.

She alleged in Court that the millions of dollars held by the charity had been used by her husband as the family’s personal piggy bank and the estimated $25 million pounds remaining should be divided between them equally. The couple has few assets apart from the funds held by Save China’s Tigers.

At the outset, the Court noted that the determination of this preliminary issue would have a profound effect on Ms. Quan’s claims.

Judge Sir Paul Coleridge of London’s Family Division of the High Court found that Ms. Quan was bent on revenge, noting that she had gone so far as to say that if she could not lead the charity, she would rather destroy it. The Court heard that since the separation Ms. Quan has established a charity in competition with Save China’s Tigers.

However, the Court found there was no evidence of “past, present, or future benefit to the parties”, soundly rejecting Ms. Quan’s allegations. Justice Coleridge said her evidence was “fabricated to assist her case”.

Mr. Bray’s testimony was found to bear “all the conventional hallmarks of honesty and accuracy”.

Disappointed with the result, Ms. Quan remarked that she would appeal the decision.

Sir Paul Coleridge is a renowned jurist who recently retired from the English bench.

Lawdiva aka Georgialee Lang

How Family Law Court Costs Escalate…

_DSC4851One of the main reasons the middle class is abandoning family courts in droves is because of the bank-draining costs of litigation. While it may appear straight forward to bring a claim for parenting or child support, there are a myriad of legal skirmishes that accompany these claims, that are difficult to predict, and hence, make it impossible to estimate the amount of legal fees for any particular court case.

Typical preliminary court applications that may unpredictably drive up court costs include a challenge to a court’s jurisdiction to even hear and adjudicate a particular case, or a motion to remove a party’s lawyer based on an alleged conflict of interest, before a case gets started.

A wealthy Malaysian couple provide an excellent example of jurisdictional litigation. Dr. Khoo Kay Penn, the multi-millionaire majority shareholder of Welsh textile and fashion company, Laura Ashley, and owner of ten upscale hotels, married former beauty queen Pauline Chai in 1970, a union that produced five children.

The couple have multiple homes located in England, Canada, Australia and Kuala Lumpur. Shortly before the parties separated, they began living primarily in their United Kingdom home, worth a staggering $30,000,000, where they raise alpacas and llamas on a 1,000 acre country estate that has two man-made lakes.

Six months after separation Ms. Chai, age 68, filed a divorce petition in England. British law provides that a party may bring divorce proceedings in England if they have resided in the country for six months, a requirement satisfied by Ms. Chai.

It cannot be a coincidence that England is reputed to be the divorce capital of Europe and a venue that is highly sought after by women seeking a generous property division.

Dr. Khoo Kay Penn, age 74, resisted his wife’s British claims arguing that a court in Malaysia was the proper court to deal with their divorce as they were citizens of Malaysian, not Britain.

Their preliminary battle to determine which court has jurisdiction has already cost them approximately $2 million dollars, an amount one judge of the British court described as “eye-watering”. Mr. Justice Holman also questioned why the couple, who allegedly pay no tax in the United Kingdom, have “squeezed out” more important cases, while paying only a fraction of what it costs to staff and run a tax-payer funded court room.

At a recent ten-day hearing, Dr. Khoo Kay Penn argued that his wife was “forum-shopping” and her status in England was based on a visitor’s visa. However, Ms. Chai emerged the victor, after compiling a mountain of evidence including the fact that her collection of 1,000 pairs of shoes was housed in her English home and not in Malaysia or Australia.

Mr. Justice Bodey accepted that Ms. Chai intended to remain in the United Kingdom and would pay the required $1 million dollar fee to obtain permanent legal status in England. He doubted that Ms. Chai had a 1,000 pair of shoes, but on that point, I certainly believe her!

So on to the real dispute? Not so fast…Dr. Khoon Kay Penn will undoubtedly appeal the jurisdictional decision, and who knows how many other pre-trial battles will yet emerge.

Lawdiva aka Georgialee Lang

Guest Post: Spousal Support: Heads She Wins, Tails He Loses

I have been a fan of Ontario lawyer/writer KAREN SELICK (karenselick.com) for many years and appreciate her “tell-it-like-it-is” approach to some of Canada’s absurd laws. Karen wrote the piece below on spousal support seventeen years ago in the November, 1997 issue of “Canadian Lawyer”, when the Spousal Support Advisory Guidelines were nothing more than a law professor’s dream. Enjoy!

“The law of spousal support has become so repugnant to me lately that I often ponder giving up the practice of family law altogether.  It’s almost impossible to feel good about what you’re doing.  If you act for wives, you have to inform them about the kinds of claims they can make—including claims which I consider to be unjust or downright ridiculous.  If you act for husbands, you have to be prepared to be on the losing side most of the time. 

It seems that no matter what course a couple’s married life took, the wife can always find some reason to claim spousal support.   If she  worked outside the home and supported her husband while he became a brain surgeon, her claim is for “compensatory support.”  If she did just the opposite, sitting around eating bonbons while the brain surgeon supported her, her claim is for  “developing a pattern of economic dependency.”

I’ve even seen cases where the wife has claimed both grounds in the same action, oblivious to the possibility that the bonbon-eating lifestyle she enjoyed in the later years of marriage has already more than compensated her for whatever work she did in the early years, or to the idea that if she was such a great provider in the early years, there was nothing stopping her from maintaining her lucrative career throughout the marriage. 

In fact, the only common thread running through most support orders is this: males pay.

I remember reading once about the peculiar notion held by some eastern philosophy that if you rescue a person from impending death, you become responsible for him for the rest of his life.  Canadian courts seem to apply a similar prescript to support cases.  Once a man has kindly provided a woman with a higher standard of living than she could reasonably have hoped to achieve on her own, he’s stuck with providing it for years to come—maybe even the rest of her life–regardless of how she has behaved toward him or the reason they separated. 

The Divorce Act enshrines this principle.  It tells judges to alleviate any economic disadvantage arising from either “the marriage or its breakdown.”   That “or” is a powerful word.  Suppose the marriage gave the wife an advantage rather than a disadvantage: a more affluent, leisured lifestyle than she would have earned on her own. Then, obviously, the termination of the marriage constitutes a disadvantage. 

If a man genuinely caused his wife some disadvantage during the marriage, he pays for that reason.  But if instead he bestowed an advantage upon her, he pays for having stopped.  Heads she wins, tails he loses.

Another objectionable thread woven through both the legislation and the case law is the notion that if a woman can’t support herself after separation, the courts should make her ex-husband support her rather than see her go on welfare.  Maybe the legislators and judges who came up with this idea thought it would placate opponents of welfare. If so, they’ve misunderstood the nature of the objection to welfare. 

Welfare is objectionable because it is coercive and one-sided.  It’s not like charity, which is voluntary.  It’s not like a contract, from which both parties benefit.  No, welfare simply forces some people to hand over money to others whose predicament they didn’t cause and who have provided no value in exchange. 

The same could frequently be said about spousal support.  Take, for instance, the recent Ontario case, B. v. B.   The trial judge accepted the husband’s evidence that this was a marriage “made in Hell.”  The wife, whose IQ was only 68, didn’t work outside the home, but also didn’t do housework.  She watched a lot of television, while the husband assumed responsibility for cooking and cleaning, in addition to being the sole breadwinner.  They argued a lot, and she was occasionally violent towards him. 

The trial judge awarded her only time-limited support, saying “…this husband started to pay for this marriage about three months after it occurred, and then he paid for the next 15 years, and I am not prepared to make him pay for the rest of his life.” 

On appeal, the Divisional Court removed the time limit on the wife’s support, stating explicitly that the burden of the wife’s support should fall on family members, not on taxpayers.  Why?  What principle of justice or morality warrants making Mr. B. pay, as opposed to some unrelated taxpayer? Neither of them caused the wife’s need for support. Neither of them ever received any benefit from her existence.

In fact, we’ve thrown out just about every principle there ever was—from the notion of contract to the notion of fault—that made matrimonial law rational, comprehensible, predictable, controllable or just.  While some people may feel that no-fault support has been a liberating event, it’s clear that for others, it has meant nothing but grief and involuntary servitude. 

It’s about time we re-examined the unfashionable idea of marital conduct to see whether justice can ever again form part of matrimonial law.”

Lawdiva aka Georgialee Lang

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