To Tape or Not to Tape? Surreptitious Recordings in Custody Cases

GeorgiaLeeLang016To tape or not to tape? That is the question. In hard-fought custody cases, litigants often have an uncontrollable urge to tape record conversations between themselves and their former partners, or conversations of their children, all in the hope that the evidence gathered will assist in their goal for custody or expanded parenting time.

The problem that arises is that sometimes tape recordings are relevant and probative and often the only way to effectively buttress a party’s claims, but equally as often, judges will rule surreptitious recordings inadmissible and criticize the parent who records. The dilemma is when to know the difference.

In Turk v. Turk 2015 ONSC 3165 the court considered an affidavit filed by Mr. Turk that contained transcripts of surreptitious recordings of conversations between his children and their mother, taken on the children’s cell phones provided to them by Mr. Turk. Mr. Turk argued that the tapes were admissible to show that his ex’s household was unstable and that she subjected the children to emotional abuse.

The court found that the recordings were inadmissible for the following reasons:

1. Sound policy reasons suggest that surreptitious recordings are the antithesis of trust and security between family members;
2. Their reliability is difficult to confirm;
3. Often the probative value of recordings is outweighed by their prejudicial effect, particularly considering the age of the Turk children, who were 21 years and 17 years old;
4. As the evidence arises from a staged event, its reliability and prejudicial effect on the administration of justice supersedes its probative value.

In a recent case from the United Kingdom, a father and his new spouse sewed “bugs” into his young daughter’s blazer and rain coat in order to record her conversations with social workers appointed to consider a change of custody from her father to her mother. On other occasions, the father would leave an Ipad or IPhone running when his daughter and the social worker met in his home.

Over a period of 18 months the father produced 100 pages of transcribed conversations in an effort to resist a change in the child’s residence to her mother’s.

Ultimately, the court ordered a transfer of custody, finding that the recording of the girl’s conversations was indicative of the father’s inability to meet the child’s emotional needs, albeit the recordings failed to “produce a single piece of useful information” and had damaged relationships between the adults in the child’s life.

Ontario’s Court of Appeal weighed in on the issue of surreptitious recordings in
Sordi v. Sordi 2011 ONCA 665 focusing on the balancing of sound policy to discourage recordings with the probative value of the evidence.

In a case where recordings were both relevant and probative, Justice Bell found that the evidence from the recordings was compelling and admissible in the context of a parental alienation case where the recordings between the mother and her children provided support for the allegations. The odious nature of secret recordings was trumped by the cogent evidence of alienation. Reddick v. Reddick (1997) OJ No. 2497

Family law lawyers are frequently called upon to determine whether recordings should be made and then, whether they should be disclosed, considering whether they are relevant to the issues before the court. This is never a decision to be left to a client.

Lawdiva aka Georgialee Lang

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Is it a Loan or a Gift?

BarristerA classic problem that frequently occurs in family law disputes is whether the funds given to a married adult child are a gift or a loan. In Rivas v. Milionis 2018 ONCA 845 the Ontario Court of Appeal upheld a judge’s order that found that a mortgage placed by parents on their married daughter’s home did not secure a legitimate debt to the parents, as the monies advanced to the couple were a gift.

The couple purchased their family home in 2000, financing the purchase with a bank mortgage. In 2004 they encountered financial problems and the wife’s parents provided financial assistance and later agreed to pay off their mortgage, thus alleviating their tight financial circumstances. Discussions between the wife and her parents took place in 2004. The mortgage was discharged in February 2005 and in July 2005 the wife’s parents placed a new mortgage on the family home.

The husband testified that he was baffled when his wife’s parents asked them to execute a mortgage in their favour, but he realized that resisting their overture would cause conflict in the family, so he signed the mortgage documents. He also said that he cooperated to keep his wife happy and relied on her assurance that the house would always be theirs.

All was well until ten years later, when the couple separated and the wife’s parents sought to enforce their mortgage security. The court referred to the presumption of a resulting trust in a situation where there is a transfer of property from a parent to an adult child. The presumption is that property transferred from a parent to an adult child is not a gift but is held in trust by the adult child for his or her parent. Pecore v. Pecore, 2007 SCC 17. That presumption can, of course, be rebutted.

It is noteworthy that the court at first instance did not hear oral evidence, thus, none of the parties were cross-examined. The judge ruled:

“I do not accept Tasos’ [the wife’s father] evidence that the many transfers of money were loans. He stated that each of the transfers constituted a loan however, as noted earlier, there was no evidence that the parents at the very least told their daughter and son-in-law that those transfers were loans or that he communicated the loan terms of each transfer to them. I accept the husband’s evidence that the parents never suggested to him until June or July 2005 that the transfers made from 2000 to 2005 were loans.”

An important factor in the judge’s decision was the “mortgage-freedom” celebration that the parties testified about when the conventional mortgage was paid off by the wife’s parents in 2005.

Parents who generously support their adult children must understand that it is too late after the fact to suggest that monies provided are a loan, unless there is evidence, such as a promissory note, signed by the parties at the time of the advance of funds, with each party having independent legal advice.

Lawdiva aka Georgialee Lang

Disbarred BC Lawyer Refused License in Ontario

GEO_edited-1Malcolm Zoraik was on the losing end of a motor vehicle personal injury case in Victoria, but he didn’t take losing well. Instead, a week after the jury verdict he surreptitiously delivered a letter directed to the Sheriff at the Victoria Courthouse that alleged jury tampering and described circumstances that could only have been his case. His apparent goal was to have a mistrial declared and a second kick at the can.

The police investigation included an interview with Mr. Zoraik, who denied any involvement, but security video showed that he had delivered the letter and his fingerprint was found on the envelope. He was charged with public mischief, obstruction of justice, and fabrication of evidence, plead not guilty, and embarked on a 13-day trial asserting his innocence.

He was convicted of public mischief and fabrication of evidence and two days later signed an undertaking not to practice law in British Columbia. He was disbarred by the Law Society in May of 2013. He appealed his criminal convictions and the Law Society disbarment, losing his criminal appeal, but gaining a second hearing by the Law Society, who again revoked his license to practice in April of 2018.

In 2012 Mr. Zoraik moved to Ontario and enrolled at Osgoode Hall Law School and attained a Masters degree in business law. While in Ontario he filed for bankruptcy with debt of $267,000 including student loans. By 2014 he acquired an articling position in Ontario which was terminated by the Law Society, but upon his principal’s entreaties the articles were reinstated. The Law Society said that they didn’t need to assess Mr. Zoraik’s character.

In 2016 he applied for a license to practice law in Ontario, an application that was deferred until his BC appeals were completed, albeit the application was opposed by the Law Society of Ontario, alleging he lacked the required “good character” to become a member of the Ontario bar.

Remarkably, at the Ontario Law Society’s investigation, Mr. Zoraik refused to speak about his criminal convictions in Victoria. He was asked:

INVESTIGATOR: Okay. I’m just going back to something Shoshanna asked earlier. After the court out in B.C. to do with the letter, the letter that was there, Shoshanna asked how do you feel about it. Do you feel any – do you feel any remorse over your behaviour at that time?

And answered:

MR. ZORAIK: Like I said, I don’t want to get – get into that matter. Like as I said, I think it’s an indication of my level of respect and acceptance of – of the court’s verdict that – that I have kept myself to the utmost, you know, best behaviour. I haven’t had any – any issues before that or since that. So – so whatever lesson that was there for me, I’ve learned. That is it. So, you know, I hope you understand that it’s a legal proceeding, that I not going to go beyond that. I hope that – I hope you understand. (Inaudible). What more I can do. (Inaudible).

Despite multiple character witnesses, none of whom were aware of the details of his criminal convictions or the fact that his bankruptcy discharge was delayed by his Trustee; and a law firm prepared to hire him, the Law Society refused to admit him to the Ontario bar saying:

“The evidence he gave at his criminal trial was found to be evasive, not credible, tarnished, feigned or grasping. He was not believed…There is much speculation reflected in the multiple decisions arising from these matters as to why Mr. Zoraik, an experienced court interpreter and lawyer with 10 years’ standing, would engage is such criminal conduct.
No clear evidence was provided to us that shed any light on this point. We do not know what may have motivated or influenced Mr. Zoraik.”

In the absence of any explanation for his bizarre criminal behaviour and with no expression of remorse, the Law Society correctly determined that Mr. Zoraik would not have the privilege of practicing law in Ontario.

Lawdiva aka Georgialee Lang

Back Door Approach to Obtain Deceased Husband’s Estate Dismissed

GeorgiaLeeLang025The British Columbia Supreme Court has dismissed a wife’s application to obtain the remaining personal injury compensation paid to her husband before his untimely death via an application for lump sum child support.

Mr. Bouchard received a $1.9 million dollar award for injuries he suffered in a serious car accident, following a trial and an appeal. He received the funds in 2012, the same year he and his wife separated. Unfortunately, Mr. Bouchard became a drug addict and died without a will in 2015, still holding $322,000 from the compensation he received. The balance of the award was not accounted for.

Ms. Bouchard sought to obtain the personal injury funds being held by her husband’s lawyers in a trust account pursuant to an order of the Provincial Court which provided the funds would be held in trust as security for future child support payments. Prior to Mr. Bouchard’s receipt of the judgment, the Provincial Court found that Mr. Bouchard’s annual income was $19,000 and ordered that he pay child support for two children in the amount of $300 per month.

Ms. Bouchard made an application for child support, asking the court to order that the trust funds be paid to her in their entirety as lump sum support, but the chambers judge found that in the absence of an administrator for the estate, her application was premature.

Despite this warning, Ms. Bouchard brought a second application (Bouchard v. Bouchard 2018 BCSC 1728) in the summer of 2018, again seeking an order for lump sum child support in the amount of the trust funds held by her deceased husband’s PI lawyers, pursuant to S. 170 (g) of the Family Law Act.

Among the submissions made by Ms. Bouchard was the argument that the funds held in trust did not form part of Mr. Bouchard’s estate; that there were no creditors of the estate; and that Mr. Bouchard’s family was “fine” with her application. With respect to the quantum of the lump sum support she sought, she submitted that her “rough calculation” of the costs of raising her two children, and her “approximate average family costs” should suffice as evidence in support of her claim for the entirety of the trust funds.

The court reviewed the applicable sections of the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (WESA), namely, sections 150 and 151 of WESA and Supreme Court Family Rules 8-2 and 20-6.

The court declined to accede to Ms. Bouchard’s claim saying:

“Ms. Bouchard’s attempt to obtain these funds using this approach really asks the court to circumvent the proper procedural and substantive law.

Procedurally, Ms. Bouchard is improperly attempting to obtain orders in the absence of any representation of Mr. Bouchard’s estate. The orders she seeks could only be orders against his estate and no one has been appointed as a personal or litigation representative.”

The court also found that Ms. Bouchard’s reliance on s. 170 of the Family Law Act was misconceived as the legislation contemplated an order for child support against a living payor, not a deceased one.

What is most apparent about this case is that counsel for Ms. Bouchard had already been told by a judge of the court that without the appointment of a personal representative for the estate of her deceased spouse, no orders would be made. Clearly, it should have been obvious that Ms. Bouchard either needed to apply to be appointed administrator or some other relative of Mr. Bouchard’s should have been recruited. I can’t imagine that she could be happy about her multiple unsuccessful court applications, with the same reasons for the dismissal of same.

Lawdiva aka Georgialee Lang

US White Supremacy Group Forfeits Bequest in Canadian Will: Racism Trumps Testamentary Freedom

GeorgiaLeeLang100In an intriguing case from New Brunswick the Court held that a bequest in Robert McCorkill’s will to an American Neo-Nazi group would be declared void as against public policy because of the racist views of the organization, a decision endorsed by the Supreme Court of Canada, as evidenced by their refusal to grant leave to appeal.
(Canadian Association for Free Expression v. Fred Gene Streed, Executor of the Estate of Harry Robert McCorkill (a.k.a. McCorkell), deceased, et al., 2016 CanLII 34017 SCC)

National Alliance, a white supremacy group in West Virginia, was gifted a collection of valuable coins from ancient Rome and Greece, an antique Iranian sword, and other artifacts and investments said to be worth a minimum of $250,000 and as much as $1 million dollars.

Robert McCorkill, who died in 2004 in New Brunswick, lived primarily in Saskatchewan and Ontario during his lifetime. He was a geologist and a professor at Carleton University in Ottawa, who had spent time at National Alliance’s headquarters.

The challenge to his Will was brought by his sister, Isabelle McCorkill, who maintained that it was not about the money but a reflection of her moral duty to intervene in what she described as an offensive and illegal bequest.

The Attorney-General of New Brunswick agreed with her, as did B’nai B’rith and the Centre for Israel and Jewish Affairs who were granted intervener status and made submissions at the hearing.

In their arguments against upholding the will, the interveners argued that the National Alliance’s profile had declined with the death of its founder ten years before, and that the bequest would provide funds to the organization to resurrect itself and its mandate to deny the Holocaust, and promote racial cleansing and genocide.

However, the Canadian Association for Free Expression (CAFE) argued that the will should stand as representing Mr. McCorkill’s testamentary wishes which were paramount and should not be subject to court intervention simply because the intended beneficiary espouses a message that is unpopular or even contrary to the Criminal Code or the Charter of Rights and Freedoms.

CAFE also argued that it was not up to a judge to determine the worthiness of a beneficiary and to do so would open a Pandora’s box, illustrating their point by querying whether a bequest to the Hell’s Angels or to a drug dealer or even to Greenpeace could be subject to attack.

They also noted that the National Alliance is a lawful corporation in good standing and had no criminal convictions either in Canada or the United States.

Their entreaties were rejected by the trial court, the Court of Appeal, and the Supreme Court of Canada. While testamentary freedom is sancrosanct, the intended beneficiary was determined to be so vile as to be contrary to Canada’s public policy. Clearly, racists views trump testamentary freedom in Canada.

Quebec Superior Court Judge Busted for Using Cocaine as a Lawyer

10950859361151CDPJudges who sit in provincial Supreme or Superior Courts (also Queen’s Bench judges), or Courts of Appeal are governed by the Canadian Judicial Council, a body of judges who consider and review complaints made about these judges. Mr. Justice Michel Girouard has been the subject of a Council investigation for the past five years, grounded from sitting on the bench, but still collecting his $321,000 salary, plus benefits, since the investigation began.

It began in 2012 when Quebec’s Chief Justice Francis Rolland learned that a drug trafficker and informant, Mr. X, identified Judge Girouard as his former lawyer and revealed that he sold cocaine to him. The investigation turned up a video tape showing lawyer Michel Girouard buying cocaine in a video store, just weeks before his appointment to the bench.

The Council’s first inquiry found insufficient evidence to prove that the judge had purchased cocaine while practicing as a lawyer, but several dissenting judges recommended his removal from the bench due to his “lack of candour, honesty and integrity” in defending himself against the allegations. However, later the Council voted unanimously for his retention on the bench, only considering the drug allegations and not the integrity issues.

Still later, the Minister of Justice, Jody Raybould-Wilson, and Quebec’s Justice Minister reopened the investigation to consider the integrity issues. The second inquiry committee interviewed a new witness who was deemed credible. This witness testified to interacting with Mr. Girouard and his wife and observing “white powder” on Giroaurd’s nose and his “stoned” behaviour. The committee found Giroaurd to be an “uncooperative and obstinate” witness and on a balance of probabilities, held that Judge Giroaurd had lied about his use of cocaine as a lawyer and ought to be removed as a Superior Court judge.

Yet seven months after the Council’s recommendation, Minister of Justice Raybould-Wilson has failed to take action. Judge Girouard is still receiving his salary and has received $700,000 in public funds to pay his lawyers to challenge the Council’s edict.

Further delay will cost taxpayers even more as Justice Girouard is eligible for a fully indexed pension in two years….it is not unreasonable to believe that legal proceedings could well take more than two years and then, the judge will likely retire with his full pension.

It would be naive to think that some of our judges have not experimented with drugs in their youth or in college, but using cocaine several weeks before an appointment to the bench is beyond the pale.

Lawdiva aka Georgialee Lang

Special Costs Award Against Lawyer Revoked

GeorgiaLeeLang057The subject of “costs” in court cases is often an enigma to clients. What are costs? When will you have to pay the opposing party’s costs?, and other similar questions.

Costs are awarded to the substantially successful party in civil and family court cases. Judges have determined that substantial success amounts to success on 70% of the legal issues decided by the court. For example, if you go to court seeking child support, spousal support, occupation of the family home, and a restraining order and are successful on three out of the four issues, you will likely receive costs.

These costs are called “party-party” costs and are not equal to the legal fees you have expended, but rather are a contribution by the losing party to the winner, usually representing about 30% of actual fees.

Costs are also not required to be paid during the litigation process, but are calculated according to a schedule in the Rules of Court and payable at the conclusion of a lawsuit.

Where a litigant’s behaviour in the litigation is deserving of punishment or rebuke, the court can order the litigant to pay “special costs” to the opposing party. Special costs are usually about 90% of the successful party’s legal fees. The kind of behaviour that attracts special costs is conduct described as “outrageous, high-handed,and reprehensible”.

In a few rare cases judges have ordered a litigant’s lawyer to pay costs to the opposing party.

The recent case of Nuttal v. Krekovic 2018 BCCA 341 is an example of such a case. Mr. Krekovic was acting for a client who was injured in a hit and run motor vehicle accident outside a local pub. His client suffered significant injuries. Unfortunately, after an exhaustive RCMP investigation the driver of the vehicle, who fled the scene, could not be identified.

Mr. Krekovic hired several private investigators but nothing further turned up. After two years of inquiries, Mr. Krekovic received vital information from a lawyer who represented the bar where the accident took place. This lawyer provided Mr. Krekovic with the name and birthdate of the alleged driver. Mr. Krekovic recognized the name of the alleged driver as it had come up during earlier investigation. After further inquiries it became obvious that the alleged driver had a common surname in the East Indian community, Dhillon, and there was some concern to identify the correct man.

Once Mr. Krekovic was satisfied that he done all the due diligence he could, he applied to the court for an order to add Dhillon’s name as a respondent in the lawsuit. He served the alleged driver with the court order and also informed the RCMP so they could re-open their investigation. Shortly after serving Dhillon, his lawyer contacted Mr. Krekovic and advised he had the wrong man. This was followed by a phone call from counsel for the bar who said he had made a mistake. Mr. Krekovic immediately advised Dhillon’s lawyer that he would discontinue the action against his client.

Mr. Krekovic offered to have his client pay party-party costs to Mr. Dhillon, but Dhillon wanted more. He sued Mr. Krekovic for special costs and convinced a judge that his actions were “indefensible and an abuse of process meriting sanction in the form of an order of special costs payable by him personally”.

The judge found that had the judge who made the order adding Dhillon as a party to the lawsuit known there was a possibility of multiple persons with the same name and similar birthdates, she would not have made the order.

Mr. Krekovic appealed the special costs order to the Court of Appeal, who allowed his appeal and revoked the special costs order. The Appeal Court said:

“…an award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice. This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate…”

In my view, Mr. Krekovic did everything he could do to identify the correct driver, and when notified of the error, he immediately took steps to terminate the court action against him. His unintentional mistake should never have resulted in an order for costs. It has been said that to penalize lawyers for mistakes, errors, or even negligence by way of special costs would undoubtedly put a damper on lawyers zealously representing their clients.

Lawdiva aka Georgialee Lang