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

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