Nevada Media Tells Tale of Vancouver Same-Sex Divorce Debacle

GEO CASUAL Television station KLAS Las Vegas featured a story last evening that told of a “divorce debacle” in our British Columbia Supreme Court.

Earlier this year I was retained by a woman in Nevada who, like many others, took advantage of Canada’s same-sex marriage laws. Vivian and her same-sex partner were married in Whistler, British Columbia in 2004, returning to their home state of Nevada, where both were accomplished professional women.

Along the way, Vivian’s partner adopted two children to whom Vivian played an equal mothering role during their marriage. Regrettably, their relationship broke down and Vivian quickly realized that she had no “legal” status with regards to her partner’s children, a most discomforting reality considering the equal role she had played in the children’s lives.

At the time of the separation of Vivian and her partner, same-sex marriage was not legal in Nevada and neither was there any legal provision for same-sex divorce.(Note:same-sex marriage is now legal in Nevada)

In August of 2013 the Canadian government became aware that many same-sex couples who married in Canada could not be divorced in their home countries, and so, a law was quickly passed that enabled same-sex couples to apply for a divorce in Canada in cases where both parties consented, or where a judge of the home country made an order that one of the parties was unreasonably withholding their consent.

Several months later Vivian was shocked when she received a copy of a divorce order made by a Justice of the Supreme Court of British Columbia in Vancouver. She had not been notified that a divorce proceeding had been initiated and completed in Vancouver.

The pronouncement of a divorce was significant with respect to Vivian’s chances of maintaining a parental role with the children and as well, sadly, her ex-partner was terminally ill, which had serious ramifications with respect to estate matters.

Would Vivian become a widow or was she a divorcee, with no legal rights?

It was about this time that Vivian retained me to assist her to determine how her partner was able to obtain a divorce order in Vancouver with no notice to her.

The divorce file in the Vancouver courthouse told the story. Vivian’s ex had filed the proper paperwork, which included a court order from the Las Vegas Justice Court, pronounced by Judge Melanie Andress-Tobiasson. This order declared that Vivian had unreasonably withheld her consent to a divorce. The problem was that Vivian was never informed, notified, or served with any divorce application.

Instead her ex-partner, who happened to be a lawyer in Las Vegas, appeared before Judge Andress-Tobiasson with no application, no motion, no paperwork of any kind, and obtained the order she sought. More significantly, the judge had no jurisdiction over family law cases!

Vivian contacted the Chief Justice of the Nevada Court who immediately voided the Nevada order and also ensured the order was declared void back to the time the Vancouver court made the divorce order.

Nonetheless, the divorce order is still in effect until a hearing can be set down in Vancouver to expose the unethical process and persuade the judge who made the divorce order to rescind it.

In the meantime, Vivian’s ex-partner died, and Vivian is now in court in Las Vegas battling for access to the two children, who are in the primary care of her ex’s new partner.

Judge Gloria O’Malley, presiding over the custody hearing, referred to the divorce debacle saying:

“The order was problematic in numerous respects…The Court is not comfortable with the process used to obtain the ex parte order from Justice Court…there was no due process to Vivian. She didn’t have an opportunity to be heard. She didn’t have an opportunity to present her position”.

Judge Andress-Tobiasson is being sued personally in federal court by Vivian for civil rights violations. As for “judicial immunity”, because the judge had no jurisdiction to make the order, arguably she cannot avail herself of the immunity protection.

It is also likely that judicial discipline proceedings may follow.

Vivian believes that “a huge favour was called in. It’s classic cronyism, corruption, and a back-room deal”. I agree with her, and thought this kind of justice only occurred in countries like Russia and Zimbabwe!

Lawdiva aka Georgialee Lang

ANOTHER WRONGFUL CONVICTION: IVAN HENRY “INNOCENCE ON TRIAL” by JOAN MCEWEN

BarristerI admit it…I’m a crime junkie. I’ve read every true crime book written by Ann Rule and Jack Olsen. I’m also a big fan of America’s Most Wanted, and I frequently peruse the FBI Most Wanted List. Don’t hate me when I tell you that I follow the executions in the States, even though I’m against capital punishment.

Having established my credentials to review Vancouver lawyer Joan McEwen’s new book “Innocence on Trial: The Framing of Ivan Henry” Heritage House Publishing 2014, I should also add that I’m a criminology graduate and have been married to a police officer for almost three decades.

Beginning with Steven Truscott and on to David Milgaard, Guy Morin, Romeo Phillion, Michael Morton and so many others, I have been horrified by the number of men who have languished in prison for crimes they did not commit, both in Canada and the United States.

But Joan McEwen’s story of the persecution of Ivan Henry brings it all home, right to our doorstep in Vancouver British Columbia, where a down-on-his-luck ex-con, father to two young daughters, found himself ensnared in a nightmare that still has not ended, after serving 27 years in prison.

Ivan Henry, age 35, was in an on-again/off-again relationship with ex- wife Jessie, a drug addict, when he was detained by the Vancouver Police Department as a burglary suspect. What he didn’t know was that the police were really after him for fifteen sexual assaults attributed to a sex offender the police called the “rip-off rapist”, based on the offender’s pretense that he was looking for someone who had stolen from him. Henry’s record contained one hit for attempted rape, a charge he pled guilty to on the advice of his lawyer when he lived in Winnipeg.

He denied being involved in any sexual offences and offered to take a polygraph test. The police declined his offer, but were adamant that he participate in a line-up. When he resisted, three “lean and mean” uniformed officers grabbed him and maneuvered him into a line with an assortment of their dark-haired colleagues, wrapping themselves around him, while holding his head of red hair in a vise-grip.

The photo of that line-up became a crucial part of Henry’s case and it was later revealed to be a “trophy”, retained by the trial judge, Mr. Justice Bouck, who proudly displayed it in the Judge’s Lounge in the courthouse at 800 Smithe Street, Vancouver. Cheap laughs…

Henry was immature and ornery, and too foolish to realize he was in water over his head when, after a preliminary hearing before His Honour Wallace Craig, he was committed to trial for ten counts of rape. Before his 1983 jury trial began Henry fired his legal aid lawyer. When offered the services of legal star, Richard Peck as trial counsel, Henry declined, believing the system was rigged and that Peck was just another player in the grand conspiracy against him.

How difficult could it be? There was no evidence against him: no hair, fibre, DNA , confession, or eye witnesses, and he had an alibi for many of the times he was alleged to be in flagrante delicto.
His trial tactics were unconventional, to say the least. Because he knew he had not assaulted any of the parade of women who identified him as their rapist, some of whom said they recognized his voice, he argued they were all liars…making it all up.

Before the trial completed Henry came to the realization that while he could handle the facts, he needed a lawyer to help him with the law. When he asked Mr. Justice Bouck to allow him to obtain a lawyer for that purpose, Bouck J. said:

“You should have thought of that before…I said you should have a lawyer. You turned it down. You elected to represent yourself. You take the chances…We’ve given you a copy of Martin’s Criminal Code.”

After ten hours of deliberation, the jury convicted Ivan Henry on all ten counts, whereafter Crown Counsel Mike Luchenko announced the Crown was seeking a dangerous offender designation. As night follows day, Henry was “bitched”, the expression used to describe criminals found to be “habitual” or dangerous offenders.

Henry poured over law books in preparation for his appeal but could not afford the thousands of dollars required for the court transcripts. Eventually he appeared before British Columbia’s Court of Appeal on a motion to dismiss the appeal for want of prosecution, brought by appellate crown Al Stewart, later Mr. Justice Stewart. Of course, the
Crown won and Henry was banished to purgatory. Later his leave to appeal to the Supreme Court of Canada was also rebuked.

Ms. McEwen’s carefully researched story reveals indifference, betrayal, class discrimination, and worst of all, a cast of characters who didn’t give a damn about Ivan Henry. He was just the usual collateral damage in the state’s zeal to close the books on a series of assaults that continued after Henry was locked away.

As the truth spills out, we learn that Ivan Henry’s ex-wife, sold him down the river, a la Judas Iscariot, in exchange for a few pieces of silver and gold, that ended up in her arm.

The unfortunate women who were victimized by a rapist, were then victims of a justice system that wasn’t really interested in the truth, for if it had been, they could have seen it staring in their face.

It is difficult to say who comes off worse in this sordid tale. Based on Ms. McEwen’s careful narrative, it must be a tie between Crown Counsel Mike Luchenko and trial judge Mr. Justice Bouck, both of whom deserve censure for the roles they played. By 1983, it was no secret that eyewitness testimony was unreliable and could never, by itself, be the foundation for a life sentence. But that’s what happened.

Years later, when one of the heroines of this story, Crown Counsel, Jean Connor , voiced her suspicions to the Attorney-General, concerning the convictions of Ivan Henry, McEwen reports that Mr. Luchenko tried, undeservingly, to take credit for an eleventh hour redemption.

With twists and turns galore, and an unvarnished glimpse of Canada’s brutal prison system, Ms. McEwen’s book is a compelling must-read for anyone who still believes justice should be blind, and that it is better that ten guilty men go free than to have one innocent man suffer.

Lawdiva aka Georgialee Lang

Nasty Judge’s Sexism Leads to New Trial

BarristerThere is no place for mean-spirited judges in Canadian courts, but regretfully a few slip through the vigorous screening process and become tyrants in an institution where they preside as untouchables.

Mr. Justice Jean-Guy Boilard, of the Quebec Superior Court, is a case in point. A former crown prosecutor, he was appointed to the Quebec court in 1977, beginning a career steeped in controversy. Boilard retired in 2012 but not before leaving a legacy of arrogant, pompous, and derisive in-court commentary attacking the lawyers who had the misfortune of drawing him as their judge. His behavior was so loathsome that Crown Attorneys in Quebec circulated a petition urging their colleagues to sign on, in an attempt to avoid Boilard’s courtroom.

In 2001 Judge Boilard was conducting a trial involving seventeen members of the Hell’s Angels when, in the words of the Canadian Judicial Council, he was “insulting and unjustifiably derogatory…displaying a flagrant lack of respect” for defence counsel, Gilles Dore. Boilard chastised Mr. Dore saying “an insolent lawyer is rarely of use to his client” and also criticized Dore’s “bombastic rhetoric and hyperbole” and dismissed his “ridiculous” argument.

After the hearing, Gilles Dore delivered a scathing letter to Judge Boilard calling him “a coward…pendantic…aggressive…petty…arrogant…unjust…that he was of dubious legal acumen” and made “shameful, ugly, vulgar and mean personal attacks on the unsuspecting”.

Boilard removed himself from the motorcycle gang trial while Mr. Dore was left to respond to a complaint to the Barreau du Quebec, who ultimately found his letter was “likely to offend and was rude and insulting”. Dore was suspended from practice for 21 days, a ruling that was upheld by three other courts, including the Supreme Court of Canada in 2012.

In an inquiry to determine if Justice Boilard’s unilateral departure from the criminal trial was worthy of his removal from the bench, the Canadian Judicial Council ruled it was improper but not so serious that public confidence in the judicial system was undermined. This finding was made in the face of evidence that Judge Boilard’s withdrawal took place four months into the trial and was recommenced at great expense by a new judge.

However, the final blow to Judge Boilard’s reputation was the finding of the Quebec Superior Court this month that his abrasive, insulting behavior directed at criminal defence lawyer Elise Pinsonnault so profoundly compromised the 2011 jury trial of Sebastian Hebert, who was convicted of first-degree murder, that a new trial was ordered. Judge Boilard’s insulting comments included the following exchanges with Ms. Pinsonnault:

Boilard: “It would probably be a good thing if Ms. Pinsonnault listened to us.”

Pinsonnault: “I am sorry your Honour…I can do two things at the same time.”

Boilard: “That’s what women are doing all the time. It does not mean that it is always done well.”

And later:

Boilard: “What is it you want to introduce?”

Pinsonnault: “Some photos!”

Boilard: I’m not asking you to be hysterical. I’m simply asking you to answer me.”

As well:

Boilard: “Listen here, there is a limit to amateurism, isn’t there?”

Boilard: “I am not in the habit of responding to lawyers’ questions. Nor am I in the habit of polishing their education in criminal law.”

Despite the emotional rollercoaster for the victim’s family and the expense and inconvenience, a new trial was required said Chief Justice Hesler:

“Such animosity, such contempt on the part of the presiding judge, so flagrant and repeated to the appellant’s lawyer, leads me to believe that the fairness of the trial was in all probability compromised.”

It is staggering to think that Mr. Justice Boilard spent 35 years on the bench mired in anger and hostility and not one person stopped him.

Judge Trashes New York Landmark “Carnegie Deli” in Divorce Ruling

49afd8240a58bf0fb97d4a86105572c1I was in New York city last fall and near the top of our agenda was a trip to the Carnegie Deli, a landmark in mid-town since 1937 and run by the Levine family since 1976. Its claim to fame is kosher pastrami, corned beef, and their famous cheesecake, all of which they can ship almost anywhere in the world. It’s a very kitschy little place with uneven floors and plastic table cloths, but there is always a line-up.

I didn’t expect the Carnegie Deli to be featured in a divorce post, but it seems that Marian Harper Levine and her husband Sandy, who now runs the deli with her, were lambasted by Manhattan Supreme Court Justice Matthew Cooper for their petty squabbles, while litigants with serious problems were put on the back burner. The audacious judge said:

“What I care more about is the fact they’ve made millions of millions of dollars on the backs of dishwashers, cleaners and pastrami slicers who make as much in a year as they’ve made in a day or two.”

This was apparently in reference to a recent $2.65 million dollar settlement reached between the Levine’s and their staff, who were cheated out of proper wages for over a decade.

Mrs. Levine’s application was to reduce the $11,00 per month she has been paying her husband in spousal support, a request that was denied by Judge Cooper. She also complained that her husband, who began an affair with the deli’s former hostess, had helped himself to huge sums of money, an allegation that was called “all smoked meat and mirrors” by Mr. Levine’s witty attorney, Donald Frank. Mrs. Levine took exception to the trivialization of her concerns by opposing counsel, a view that Judge Cooper dismissed saying:

“This is not a case where I lose sleep at night. This is not some case where I have people with disabled children, where I have people who can’t afford to make next-month’s rent”…If I made light of anything, if I joked more than I should have, if I occasionally used a sarcastic tone…it’s not that I’ve lost track of what this case is about…”

No doubt we’ll hear more about the dissolution of the Levine’s 22-year marriage…as for me, I really didn’t like their cheesecake at all!

Lawdiva aka Georgialee Lang

Judge Presides Over Child Support Hearing While Conducting an Affair with Litigant

DSC01152_2 (2)_2If you were the payor father in a child support hearing and you learned that the judge presiding over your case was having an affair with your child’s mother, how angry would you be? How about if you read an email from the judge to your ex, agreeing with her suggestion that you be sent to jail because you’re in arrears of child support?

“I figure if he hasn’t come current by his court date, he gets jail to pay. If he says he can’t bring me the $$, I’ll put him on a tether (electric monitoring) til he brings the receipt…or do “double time”.

You might think this kind of corruption comes from a judge in Russia or Zimbabwe, but you’d be wrong. Judge Wade McCree was, until recently, a judge in Wayne County Michigan, home to two million people, best known for Motown and Motor City, and of late, the 18 billion dollar debt and subsequent bankruptcy of the City of Detroit.

Judge McCree’s judicial career ended ignominiously this Spring when Michigan’s Supreme Court suspended him for six years, after finding his conduct affected not only the litigants involved, but harmed the integrity of the judicial system as a whole.

Initially Judge McCree pulled a “Weiner” by texting a partially nude photo of himself to a female deputy sheriff, and was under investigation by the Judicial Tenure Commission. Rather than minding his “p’s and q’s” while under scrutiny for that indiscretion, he began an affair with Geniene LaShay Mott, who was the complaining party in People v. King, a court proceeding involving the enforcement and collection of arrears of child support against Robert King, who was the father of one of Ms. Mott’s children. He was in arrears of support in the amount of $15,000.

Judge McCree’s offences included:

1. Conducting an affair with Ms. Mott while he was presiding over her child support hearing;
2. Engaging in sexual relations with Ms. Mott in his judicial chambers;
3. Allowing Ms. Mott to access the court house through a rear, private door and utilize the judicial parking lot;
4. Surreptitiously arranging for Ms. Mott’s cell phone to be delivered to her in court by a sheriff so she could call him during the hearing;
5. Texting Ms. Mott from the bench while presiding over other cases;
6. Accepting Ms. Mott’s suggestions as to how he should deal with her child’s father;
7. Giving money to Ms. Mott, as much as $6,000;
8. Lying to the Judicial Commission concerning the date that he ended his affair with Ms. Mott;

But there was even more. Judge McCree presided over People v. Tillman, reducing Mr. Tillman’s bond in another child support case. Tillman was a relative of Ms. Mott’s, a fact known to McCree. And when his affair with Ms. Mott cooled down he lodged a complaint with Wayne County’s Prosecuting Attorney, alleging that Ms. Mott was stalking him and extorting him by demanding $10,000 in exchange for terminating her pregnancy and not revealing the affair and pregnancy to Judge McCree’s wife. In fact, the alleged crimes never occurred.

While Judge McCree’s attorney argued “no harm, no foul”, the judicial panel, comprised of seven judges, disagreed, saying the judge was well aware that his conduct was egregiously inappropriate as evidenced by an email he sent to Ms. Mott:

“Second, you are the complaining witness on a case that is before me. Naturally if it got out that we were seeing each other before your baby daddy’s case closed, everybody would be in deep shit”.

As for the aggrieved Mr. King, he filed a lawsuit against Judge McCree alleging constitutional violations, including the right to equal protection under the law and the right to be treated fairly in legal processes. District Court Judge Avern Cohn ruled against Mr. King finding that Judge McCree’s decisions in King’s case were “judicial acts” covered by “judicial immunity”, a protection that applies even if a judge’s actions are negligent, incompetent, or malicious.

Unfortunately for Mr. King, this week the U.S. Sixth Circuit Court of Appeals endorsed Judge Cohn’s decision while declaring Judge McCree’s behavior “reprehensible”:

“Casual readers of this opinion…may erroneously conclude that…we are somehow endorsing Judge McCree’s conduct or going out of our way to protect one of our own…We do nothing of the sort.”

The Appeals Court also noted that “the best justice possible” was achieved by the Michigan Supreme Court when they suspended Judge McCree for six years.

Is this the end of Wade McCree’s judicial career? Only the people of Detroit can decide that, since Michigan State judges are elected, not appointed.

Lawdiva aka Georgialee Lang

Tennessee Judge Fired for Refusing to Approve the Name “Messiah” for Baby Boy

DSC01152_2 (2)_2When couples with kids separate they can fight about almost anything. One of the most common points of disagreement is what surname a child will use in the future. Mom wants her surname used by the child, while Dad wants his, or one of them proposes a double-hyphenated last name. Yes, these cases are routinely heard by family court judges, usually with little fanfare.

A naming case attracted more than the usual amount of attention when Jaleesa Martin and Jawaan McCullough appeared before Tennessee Judge Lu Ann Ballew quarrelling over what surname their son Messiah should use. The Child Support Magistrate surprised both parents when she unilaterally ordered that Messiah could not use the name of Jesus and ordered that he be called Martin McCullough.

Judge Ballew opined that the name Messiah was reserved for Jesus Christ and that the youngster would suffer embarrassment and derision if he were forced to assume a name that was associated with God the Son. Messiah’s parents successfully appealed Judge Ballew’s order where the appellate court held her ruling was unconstitutional. End of story? Not quite.

Judge Ballew, whose appointment was at the pleasure of the court service, was fired last week for “inappropriate religious bias”, with the Chief Judge noting she had been cited previously for a similar offence. She will face a judicial hearing on March 3, 2014.

Something tells me there is a lot more to this story. Stay tuned….

Lawdiva aka Georgialee Lang

Judge “Friends” Wife While Hearing Her Divorce Case

P1010870 - Version 2She’s a Facebook fan and also a Florida judge who thinks its OK to “friend” a litigant in the middle of her divorce trial. No, I’m not kidding!

Sandra Chace and her husband Robert Loisel had just finished their divorce hearing and were awaiting the Judge’s decision, when Sandra received a request from the Judge to become a Facebook friend.

Ms. Chace immediately contacted her lawyer who recommended she not accept the request, so she ignored it.

Shortly thereafter the Judge handed down her Reasons. To Ms. Chace’s dismay the decision was highly favourable to her husband. Notably, the Judge left her responsible for the majority of the family debt and granted her spouse extremely generous alimony.

After learning this Judge had previously contacted litigants through social media and had been compelled to recuse herself, Ms. Chace’s lawyer brought a motion before her alleging a reasonable apprehension of bias based on her internet overture to his client and his client’s rejection of it.

The protocol for applications alleging bias is to go back to the Judge who made the order and have him or her review the situation.

Several years ago I brought a similar application before a judge in the British Columbia Supreme Court on the basis that his remarks during the hearing could lead a reasonable person to believe he was biased against my client.

At the time I thoroughly researched the law on bias and was not surprised to see that in 99.9% of cases, the judge determined there was no bias. That’s the finding this Judge made as well.

Ms. Chace then appealed the decision to the Court of Appeal who disagreed with the Facebook friendly trial judge. The Appeal Court found that Ms. Chace was caught “between the proverbial rock and a hard place”. She was trapped in a difficult position: Should she respond to the Judge’s ex parte communication or ignore it and risk offending the judge?

The Appeal Judges quashed the order of the trial judge and remitted the matter back to the trial court. Ms. Chace can only hope she does better the second time around.

Lawdiva aka Georgialee Lang