The World’$ Riche$t Lawyers

If you think all lawyers are rich, you’d be wrong. Money Inc. reports in 2016 that the average salary for lawyers in the United States is $133,000 per year. The average for Canadian lawyers is less than that. But there are a group of lawyers worldwide who have made a fortune from practicing law, not from investments or business activities, but just advising and representing clients. The list includes a few well-known names and several who fly under the radar.

1. ALAN DERSHOWITZ $25 million
A graduate of Harvard Law School in 1962, Dershowitz became a faculty member at Harvard in 1964 and a full professor in 1967. While working as a professor he gained a stellar reputation as a criminal lawyer, representing celebrities such as heavyweight champion Mike Tyson, Queen of Mean and New York hotelier Leona Helmsley, OJ Simpson, Patty Hearst, televangelist Jim Bakker, and Claus Van Bulow, acquitted of murdering his wife. He has also written more than a dozen books.

2. MARK GERAGOS $25 million

Mark Geragos is a “celebrity” lawyer who has acted for Michael Jackson in his sexual molestation trial; Winona Ryder for shoplifting; California politician, Gary Condit, who was suspected of murdering his Washington, DC intern; Susan McDougal , partner of the Clinton’s involved in the Whitewater scandal; Scott Ferguson, convicted of murdering his wife Lacey; and Chris Brown, who pleaded guilty to the assault of his girlfriend Rhianna. Named one of the 100 Most Influential Attorneys in California, he also holds the record for one of the top ten jury verdicts in California for a 2008 award of more than $38 million against a pharmaceutical company

3. WILLIAM LERACH $900 Million

William Lerach specialized in corporate law, specifically private securities class action lawsuits, the largest being the $7.12 billion he obtained as the lead attorney in the action against Enron. Nicknamed the “King of Pain”, he was reputed to be one of the most feared lawyers in the US during his 30-year career. In 2010 Pulitzer Prize winning journalists, Patrick Dillon and Carl Cannon wrote a book about Lerach called “Circle of Greed: The Spectacular Rise and Fall of the Lawyer Who Brought Corporate America to its Knees”. He no longer practices law after pleading guilty in 2007 for obstruction of justice, related to a kickback scheme, and serving a two-year prison sentence. He was disbarred in California in 2009.

Lawdiva aka Georgialee Lang

When Will Our Judges Speak Out Forcefully Against Perjury?

Ngo v. Do, 2017 BCSC 83 (CanLII)
by Georgialee Lang BA JD FCIArb

In yet another British Columbia family law decision, the court fails to denounce, in the strongest terms, a litigant whose testimony is rife with lies. Yes, this judge addresses credibility, but in the same anemic way that permeates most family law cases, namely ” I accept the evidence of the claimant where it differs from the evidence of the respondent.”

That’s it, no rebuke, no censure, not even an award of special costs, despite the litigant’s devious conduct requiring untold extra preparation and court time to present a narrative that is flagrantly false, requiring a robust defence….yes, a rebuttal to a pack of lies.

Ngo v. Do 2017 BCSC 83 focuses on the breakdown of the marriage of a Vietnamese couple who agreed they married and immigrated to Canada in 1994. From that point on the parties’ evidence is sharply divergent.

He said their marriage ended two years later, in 1996, while she maintained they lived together as husband and wife in the family home in East Vancouver until their separation in 2012. When asked where he lived after 1996, since he alleged he did not live with his wife and children, he was unable to provide a single address, except to say that he lived in East Vancouver with a friend.

When asked to explain how it was that he and his wife added three additional children to their union after his alleged departure in 1996, he acknowledged that despite the shattering of the bonds of matrimony, they remained intimate with one another.

The date of separation was critical to a determination of the wife’s interest in two homes, a crab boat, and a license to catch crab. Ms. Ngo testified their first home was purchased in 2000 and became the family home where she and her husband raised the children, for all but one year of their marriage. She believed the home was registered in her husband’s name. Not so, said Mr. Do. He testified that the home’s owner was Mr. Den Van Ta, who he said he barely knew, although he had earlier said Den Van Ta was”like a brother” to him.

A second home in Maple Ridge was purchased in 2004, however, Mr. Do said it was purchased by his cousin, Kevin Phan. He testified that he lived with the children in the home from 2004 to 2008 rent-free and that Ms. Ngo was not permitted to live there. Ms. Ngo gave evidence that her husband told her the second home was rented out, but in 2006 he moved the family to the second home for a year, advising her that it was a more convenient location to travel to his employment in Maple Ridge.

Eventually the Maple Ridge home was registered in Mr. Do’s name. He explained that his cousin took pity on him and gifted the property to him in 2007. However, land title documents described the transaction as a cash sale for $445,000, subject to his cousin’s existing mortgage. Mr. Do sold the Maple Ridge home in 2009 netting $145,000 in profit.

Mr. Do’s lucky streak continued. He advised the court that the first home in East Vancouver was later gifted to him by Mr. Den Van Ta. The statement of adjustments described the transfer as a “gift of equity from the seller to the buyer in the amount of $269,000.” He also purchased a vessel and crab license sharing the cost equally with Mr. Den Van Ta, who, no surprise here, later gifted his one-half interest in their crab business to Mr. Do, gratis, for free.

The parties’ two eldest children corroborated Ms. Ngo’s evidence, while Mr. Den Van Ta was called to back up Mr. Do’s version of events with respect to the first home and the crab business. He was less than impressive. Mr. Phan was not called to testify leaving the court to draw an adverse inference.

The outcome? Mr. Do’s evidence was rejected and all the family property was shared equally. However, nowhere does the court suggest that Mr. Do’s perjured testimony is an abuse of process or of such a character as to bring the administration of justice into disrepute. Can anybody reason why Ms. Ngo was not awarded special costs, which is a full reimbursement of every penny she paid to her lawyer to respond to her husband’s pernicious lies? The court’s apparent trivialization of perjury by failing to award special costs to Ms. Ngo sends a strong message to litigants that perjury is acceptable.

Pulitzer prize-winning author James B. Stewart succinctly writes in “Tangled Webs: How False Statements are Undermining America”: “Our judicial system rests on an honor code: “I swear to tell the truth, the whole truth and nothing but the truth.” Perjury is not acceptable behaviour.”

Lawdiva aka Georgialee Lang

Court of Appeal Clarifies Law on Relocation in the Face of an Interim Parenting Order

With our increasingly mobile society the number of parental relocation cases continues unabated. In British Columbia the provincial legislators have done much to remove the mystery of the relevant considerations on parental and child mobility cases with the introduction of Division 2 and Division 6 of Part 4 of the Family Law Act.

In KW v LH 2018 BCCA 204 the Court of Appeal considered which sections of the legislation were applicable where there was a previous order regarding parenting. The Family Law Act states that where there is no order or agreement section 46 applies and where there is an order or agreement section 65 applies.

The issue raised by the appellant mother, whose application to relocate with her 6-year-old son from BC to Nova Scotia was dismissed, was whether section 46 applied in circumstances where there is no order, interim or otherwise at the commencement of the proceeding, but before trial such an interim order is made. This issue had not been fully resolved by previous conflicting authorities.

In the court below the judge applied the provisions of Division 6 (section 65) which the appellant argued constituted a reversible error of law.

The facts revealed that in June 2015 the children’s mother filed a Notice of Family Claim. The parties attended a JCC where a consent order was made for a section 211 report, and in November 2015 mother served written notice on her husband that she wished to relocate with the children to Nova Scotia. The husband indicated he would challenge the move and both parties delivered several other related applications, including for child support, parenting orders and other related matters.

In January 2016 an order was made for parenting for the husband and an interim order barring either party from relocating with the children was made. Months later the mother amended her Notice of Family Claim to include a relocation order. In her amended Claim she abandoned a claim for an interest in the family home and spousal support.

The trial commenced in March 2017 and ran for 14 days with 18 witnesses. The section 211 report author testified that a move to Nova Scotia was not in the children’s best interests. Written closing submissions were in excess of 300 pages.

In light of the previous interim parenting orders, the trial judge held that sections 65 and 69 of the Family Law Act applied. The trial judge also found that the mother’s wish to relocate was based on her desire to be closer to her family and farther from her husband. The judge accepted the opinion of the child custody expert and declined to grant the relocation order sought by the mother. He stated:

“In my opinion the determining date on which the court is to consider if an agreement or order exists respecting parenting arrangements is the date when the application to relocate is heard. An agreement or order respecting parenting arrangements gives guardians legitimate expectations about those arrangements which the courts will enforce in appropriate circumstances. Those legitimate expectations include the obligation found in Division 6 to persuade the court that a relocating guardian is acting in good faith.
I conclude that Division 6 of the FLA governs the [Mother’s] application to relocate.”

The appeal court considered a number of lower court decisions on the issue of whether an interim parenting order brings a relocation case into section 65 of the Family Law Act and held that it did not.

“Absent an existing agreement between the parties, when an initial application is brought for an order respecting parenting arrangements under s. 45 and a guardian indicates in his or her pleadings or by notice in writing of an intention to change the child’s residence, s. 46 applies notwithstanding that an interim order is made in the course of the proceedings. To the extent that many cases suggest otherwise, those cases were wrongly decided and should not be followed.”

The appeal court considered whether they would remit the matter back to the trial court and decided not to do so. Based on the trial judge’s finding of facts, with the exception of the finding that the mother’s move was motivated by a desire to distance herself from his child’s father, which the appeal court said was contrary to the evidence at trial, the court allowed the mother to relocate to Nova Scotia. The court urged the parties to work out a parenting schedule for the father, depending on whether he remained in BC or moved to Nova Scotia.

Lawdiva Court aka Georgialee Lang

No Litigation Funds for “Advantaged” Husband

GeorgiaLeeLang025Before March 18, 2013 there was no level playing field in British Columbia between litigating spouses. The spouse with financial resources, usually the husband, could easily “bully” his spouse, by virtue of his much deeper pockets.

All of that changed when the Family Law Act came into effect with the long-awaited provision in section 89 that if a spouse did not have the funds to hire counsel, or pay for experts, including accountants, there was now a legal avenue to obtain an advance on the family property for that purpose.

Section 89 provides:
“If satisfied that it would not be harmful to the interests of a spouse and is necessary for a purpose listed below, the Supreme Court may make an order for an interim distribution of family property that is at issue under this Part to provide money to fund

(a) family dispute resolution,

(b) all or part of a proceeding under this Act, or

(c) the obtaining of information or evidence in support of family dispute resolution or an application to a court.”

My sense is that since the inception of section 89, most applicants have been awarded funds ranging from $50,000 to $400,000 to level the playing field between spouses, with few cases being denied.

Kerby v. Kerby 2020 BCSC 1078 is a recent case where the applicant husband’s request for litigation funds in the amount of $100,000 was denied, for the following reasons:

1. The parties were married for 3 years and disagreed on how long they had cohabited pre-marriage. The husband said prior cohabitation was 2 years, while his wife said 6 years;

2. The husband was a pilot with a 2019 income of $162,000 and his wife’s income was $26,000. At the time of the application and since late 2019 the husband was receiving $104,000 per annum on “stress leave”, on account of the litigation. He produced a doctor’s note that read: “Pilot seen today. Unfit to fly”. The wife was laid off due to covid-19 and received government funds.

3. The husband deposed that he had already spent $140,000 on legal fees and could no longer afford to pay for a lawyer. He said he required between $93,000 and $188,000 to pay a lawyer to act for him and complete a 7-day trial in November 2020;

4. The sum of $416,000 was held in trust on behalf of the parties;

5. The wife argued that despite the disparity in earnings her husband had not paid spousal support and had paid no child support for their two young children for several months and never paid the required Guideline amount of support.

6. She maintained that her claim for lump sum spousal support could amount to as much as $184,000, so if her husband received the advance of funds he requested, there would be insufficient monies left to pay her share of the trust monies and lump sum support, if her claim was successful.

Relying on IF v. RJR 2015 BCSC 793 Master Muir confirmed that the purpose of section 89 was to assist economically disadvantaged spouses:

“it is meant to help level the litigation playing field that is so often skewed when one spouse controls all or the majority of the wealth and assets. Application of s. 89 calls for a purposive interpretation, where the need of the applicant spouse to receive an interim distribution and the potential entailing harm to the other spouse are evaluated contextually with an eye on the larger objectives endorsed by the FLA…

For example, would the distribution being sought in the particular case require a sale of property or of the encumbering of assets; what income tax ramifications might be triggered and what other transactional costs would arise? The concept of harm under s. 89 would also encompass economic implications such as whether the distribution would adversely impact the other spouse’s lifestyle or effectively undermine or prejudice his or her argument for reapportionment.”

The court agreed with the wife’s counsel that the husband’s request “turns the purpose of section 89 on its head”, denied his application, and awarded costs to the wife.

When are Illegal Recordings Admissible in Family Court?

BarristerWhen are surreptitious recordings of a parent and child admissible in court proceedings? That is the question that was answered by Mr. Justice Milman in the protracted proceeding of M.Y.T.C. v. L.H.N. 2019 BCSC 2454.

The claimant mother sought to introduce four cell phone audio recordings of the parties and their son, between 2011 and 2017. The respondent and the child were not aware they were being recorded. Counsel for the respondent husband challenged their admission on the grounds that their prejudicial value outweighed their probative value. Justice Milman held a voir dire on admissibility so the circumstances surrounding the recordings could be ascertained.

Relying on Finch v. Finch 2014 BCSC 653 the court recited the test for admissibility:

1. Are the recordings relevant?
2. Are the participants accurately identified?
3. Is the recording trustworthy?
4. Does the probative value outweigh any prejudice?

MYTC argued that the recordings show how LHN was encouraging their teenage son to reject a relationship with his mother and contribute to parental alienation. As well, on the tape LHN acknowledged that certain family property reflected a gift from MYTC’s mother, a fact he was presumably denying at trial.

LHN maintained that the recordings painted her client in a bad light and because LHN did not consent to the recording the administration of justice would be
brought into disrepute.

Justice Milman “reluctantly” admitted the recordings, although he was disturbed by the illegal nature of them. He pointed out that the weight they would be given would unfold as the trial progressed. He also noted that recording another party without their consent should not be encouraged by the courts. The transcripts of the recordings, prepared by MYTC, would not be admitted, however. He also remarked that the recordings were a “highly selective” snapshot based on MYTC’s decision to turn on a microphone.

Lawdiva aka Georgialee Lang

Wife Cannot Compel Husband to Sign “Non-Compete” in Sale of Family Business

In Lun v. Lun 2020 BCSC 871 the court considered whether the sale of the family insurance business, as ordered by the court, provided the court with jurisdiction to order the husband to sign a Non-Compete Agreement, as part of the sales contract, in circumstances where the husband resisted signing.

The parties owned a business that sold commercial insurance products and motor vehicle insurance. The wife brought an application to court for the sale of the business, which was contested. The court granted the order sought, with joint conduct of sale to the parties.

A condition of the sale was that Mr. Lun sign a non-competition agreement that would prevent him from being involved in the insurance industry for a period of two years. The clause read:

“… directly or indirectly, either alone or in conjunction with any individual, firm, corporation or any other entity (except for or on behalf of the Protected Entities), whether as principal, agent, employee, shareholder or in any other capacity whatsoever carry on, be engaged in, concerned with or interested in any Person carrying on any business that is competitive in whole or in part with the Business anywhere in the Territory, or advise, lend money to, or guarantee the debt or obligations of any Person that is carrying on any business anywhere in the Territory that is competitive in whole or in part with the Business.”

Mrs. Lun brought an application asking the court to order Mr. Lun to agree to the non-compete term in the contract. Mr. Lun opposed the application as he had been in the insurance industry for 20 years and wished to continue in the industry.

The court posed this question: “On what basis could the court prevent Mr. Lun from engaging in legal business activities?” and remarked that the answer would be found in the Family Law Act. However, the court determined that Part 5 of the Act did not provide jurisdiction to make the order sought

The wife then argued that Supreme Court Family Rule 15-8 (3) applied, which permitted a court to order terms of sale, including “a direction that any document necessary to complete the sale be executed on behalf of any person by a person designated by the court”. The court disagreed saying that an order allowing Mrs. Lun to sign the non-compete on behalf of her husband fell outside the purpose and intent of the rule.

Finally, Mrs. Lun argued that S. 222 (b) of the Family Law Act could be used
to make the order sought, as it authorized a court to manage behaviours that might frustrate the resolution of a family law dispute. Again, the court ruled that Mr. Lun’s refusal was a legally justifiable position and declined to accede to Mrs. Lun’s argument.

Mrs. Lun was left with renegotiating the sale to exclude a non-competition clause or entertain other offers.

Lawdiva aka Georgialee Lang

JESUS WAS A PROTESTER

To see great American cities ravaged in flames with marauding bands of black-clothed youth is startling, and so very sad…the violence and looting shocks the conscience. Yet protesting injustice is honorable and is what Jesus himself did during his time with us.

Jesus was an ardent protester. He publicly denounced the commercialization of the temple in Jerusalem, overturning tables and driving people and animals out, with whip in hand. He condemned the greed and corruption of the Jewish leaders. John 2: 13-25

We read in Luke 4 that in his hometown of Nazareth Jesus rose in the synagogue and read from Isaiah:

“The Spirit of the Lord is on me,
because he has anointed me
to proclaim good news to the poor.
He has sent me to proclaim freedom for the prisoners
and recovery of sight for the blind,
to set the oppressed free,
to proclaim the year of the Lord’s favor.”[

The crowd was amazed at his youthful eloquence, but his message was so countercultural and radical that a mob chased him to the edge of town, threatening to throw him over a cliff. Jesus was not afraid to stand up for righteousness and justice.

Jesus ignored societal norms, performing miracles and healing people on the Sabbath, activities that inflamed the Jewish leaders.

16 So, because Jesus was doing these things on the Sabbath, the Jewish leaders began to persecute him. 17 In his defense Jesus said to them, “My Father is always at his work to this very day, and I too am working.” 18 For this reason they tried all the more to kill him; not only was he breaking the Sabbath, but he was even calling God his own Father, making himself equal with God.” John 5:16

Jesus did not court the famous or influential, rather he surrounded himself with sinners and even tax collectors, consider the lowest of the low in his day, men who collaborated with the Romans and became rich off the backs of Jews.

“ While Jesus was having dinner at Levi’s house, many tax collectors and sinners were eating with him and his disciples, for there were many who followed him. When the teachers of the law who were Pharisees saw him eating with the sinners and tax collectors, they asked his disciples: “Why does he eat with tax collectors and sinners?”
17 On hearing this, Jesus said to them, “It is not the healthy who need a doctor, but the sick. I have not come to call the righteous, but sinners.” Mark 2:15-17

He boldly spoke to a Samarian woman who was at the town well in Sychar drawing water.

“The Samaritan woman said to him, “You are a Jew and I am a Samaritan woman. How can you ask me for a drink?” (For Jews do not associate with Samaritans.)
Jesus answered her, “If you knew the gift of God and who it is that asks you for a drink, you would have asked him and he would have given you living water.” John 4: 9-10

Jesus was a protester who broke all the rules. He called people to account and rebuked the unrighteous, especially those who saw his miracles and yet refused to repent.

“Then Jesus began to denounce the towns in which most of his miracles had been performed, because they did not repent. “Woe to you…”Matthew 11: 20

Jesus created a movement based on justice, love, and hope and his disciples became surrogate protesters. Jesus cautioned them:

“I am sending you out like sheep among wolves. Therefore be as shrewd as snakes and as innocent as doves.17 Be on your guard; you will be handed over to the local councils and be flogged in the synagogues. On my account you will be brought before governors and kings as witnesses to them and to the Gentiles. But when they arrest you, do not worry about what to say or how to say it. At that time you will be given what to say, for it will not be you speaking, but the Spirit of your Father speaking through you.” Matthew 10:16-20

Because Jesus was a protester he was ridiculed, taunted, humiliated and finally murdered, taking on the sins of the world. Martin Luther called his death “the great exchange”. “God made him who had no sin to be sin for us, so that in him we might become the righteousness of God.” 2 Corinthians 5:21

Jesus spent his life bringing awareness to gender inequality, religious hypocrisy, political corruption, racism, hatred, segregation, and social injustice. Through His power we can advocate for the poor, shelter the homeless, sustain widows and children, show hospitality to strangers, encourage the weary, and spread the love of Christ to our neighbours.

Lawdiva aka Georgialee Lang

Judge Grants Adjournment of Trial With Blameless Plaintiff

GeorgiaLeeLang025The BC Supreme Court recently considered whether a lawyer who failed to prepare his client’s case for trial should be granted an adjournment of the trial.

In Raniga v. Poirier 2020 BCSC 780 the plaintiff was injured in a motor vehicle accident and sued Mr. Poirier, who had admitted liability for the accident, which occurred in 2015. The plaintiff filed the claim in 2017 within the limitation period, and had retained counsel shortly after the accident.

In 2018 examinations for discovery were conducted and plaintiff’s counsel scheduled a five-day trial to commence in June of 2020. In late 2019 the defendant arranged for an independent medical examination for the plaintiff which was completed in February 2020, and a report, unfavourable to the plaintiff, was delivered to plaintiff’s counsel in March of 2020.

So far, so good, but then the file started going sideways….it happens and covid-19 did not assist the matter.

In contemplation of an early June 2020 trial date, counsel for the plaintiff began his trial preparation in the first week of May 2020, not an unreasonable time to dive back into the file. However, to counsel’s shock he quickly realized that the only expert evidence with regards to the plaintiff’s injuries was the ICBC report that did not support the plaintiff’s case.

Counsel for the plaintiff explained to the court that in February 2020 his paralegal asked him whether he wanted to commission an expert medical report. Unfortunately, he mixed up this plaintiff’s case with another he was working on and told her “no”. His law office closed and he began working remotely in mid-March 2020. The pre-trial conference scheduled for April 7, 2020 was adjourned due to the court closure. Because he only realized his error in early May 2020 he was not able to arrange an independent medical examination, and hence his application for an adjournment.

Again unfortunately, counsel for Mr. Poirier decided to take advantage of the plaintiff’s misfortune and opposed the adjournment application.

Mr. Justice Kent reviewed the law with respect to the court’s discretion with respect to adjournments, citing Navarro v. Doig River First Nation 2015 BCSC 2173 where the court said:

“There are numerous factors to be considered on an adjournment application. However, the paramount consideration is the interest of justice in ensuring that there will remain a fair trial on the merits of the action… Because the overall interests of justice must prevail at the end of the day, courts are generous rather than overly strict in granting adjournments, particularly where granting the request will promote a decision on the merits… The natural frustration of judicial officials and opposing parties over delays in processing civil cases must give way to the interests of justice, which favours a claimant having his day in court and a fair chance to make out his case…”

Judge Kent had just criticism for both counsel. For plaintiff’s counsel he said he was not impressed with the material that accompanied the adjournment application and did not condone his conduct, which caused the need for an adjournment…but he granted the adjournment, without awarding costs. He also said he expected that counsel’s firm would absorb all fees and expenses incurred in relation to the application and would not bill his client.

As for the defendant, Judge Kent stated that the defendant sought to visit the “sins of his lawyer” upon a blameless plaintiff to whom liability had been admitted and that “it should have been obvious from the outset that an adjournment would be granted.”

I do believe in the golden rule, that is,”Do unto others as you would have them do unto you”. No lawyer is perfect and mistakes are made, but they are magnified when counsel do not subscribe to the ethics of reciprocity.

Lawdiva aka Georgialee Lang

Family Arbitrator’s Jurisdiction Challenged

B9316548187Z-1.1_20150314202542_000_GFTA6A1QO.1-0A family arbitration case from Ontario raises several interesting issues for arbitrators and counsel alike. In Giddings v. Giddings, 2019 ONSC 7203 a couple entered into mediated Minutes of Settlement after several years of litigation.

One of the terms of the Minutes was that an appraiser would be retained to appraise certain real property and if the parties could not agree on the division of the property, an arbitrator would deal with the issue of equalization of family property.

Perhaps predictably, the parties could not agree on the value of one property referred to as Chartwell, and the mediator, Stephen Grant, put on his arbitrator’s “hat” and determined that he had the authority to override the opinion of the appraiser, a finding that led Mr. Giddings to appeal the arbitrator’s decision and file an application to set aside the award.

One of the grounds advanced by Mr. Giddings was that the parties had not signed an arbitration agreement and hence, the arbitrator had no authority to proceed with the matter.

The relevant term in the Minutes of Settlement read:

“Counsel shall resolve all outstanding issues with respect to the parties’ respective Net Family Property, save and except for the present-day value of the properties, real estate commission and capital gains, which will be resolved once the value for the properties listed in paragraph 23 and 27 are determined as provided for in this agreement. In the event the parties are unable to resolve the Net Family Property issues by September 30, 2018, the issue of equalization shall be summarily arbitrated by Mr. Stephen Grant, by way of written submissions. The parties shall proceed to domestic violence screening and thereafter execute an Arbitration Agreement with Mr. Stephen Grant.”

Arbitrator Grant invited submissions with respect to the dispute over the value of Chartwell and the invitation was answered by Ms. Giddings who alleged bias in the report based on Mr. Gidding’s interference with the appraiser. She took the position that the arbitrator was not bound by the appraiser’s opinion but could himself make a decision with respect to value. She also relied on a second appraisal that she commissioned.

With respect to the absence of a signed arbitration agreement, the arbitrator opined that based on the conduct of the parties and their engagement with him on the outstanding issues, they were estopped from challenging his jurisdiction.

The first question considered by the court was whether the arbitrator had jurisdiction where the parties had not executed an arbitration agreement. Justice Gray ruled that the arbitrator did not have jurisdiction, confirming that the formal requirements set out in the Arbitration Act were not discretionary.

The Court then considered whether the arbitrator had the authority to determine the ambit of his jurisdiction and whether the arbitrator’s decision was reviewable. Gray J. found that the arbitrator had ample authority to express his view that he had jurisdiction and authority to determine the value of Chartwell for the purpose of equalization. The Court noted that he interpreted the Minutes of Settlement as a whole and considered the surrounding circumstances.

He remarked that the language of the Minutes “that the issue of equalization shall be summarily determined by Mr. Grant” provided the arbitrator with the ultimate authority to determine the value of the property and that he was not inexorably bound to accept the appraiser’s opinion for the very reasons identified by Ms. Giddings, namely that certain weaknesses may affect the appraiser’s analysis.

The Court also confirmed that the standard of review of an arbitrator’s award will be “reasonableness” unless the question is one that would attract the “correctness” standard, such as a constitutional question or questions of law of central importance to the legal system as a whole and outside the arbitrator’s expertise.

Finally, the Court considered whether it had the authority to order the parties to enter into an arbitration agreement and confirmed that the Court had that authority. In the Minutes of Settlement the parties agreed to enter into arbitration. Relying on Lopatowski v. Lopatowski, 2018 ONSC 824, 140 O.R. (3d) 731 (S.C.J.), the Court cited the following passage:

“In this case, the parties had entered into a clear agreement to the use of a parenting coordinator with broad powers to assist them in parenting disputes, which was to include arbitral authority if necessary. The principle of good faith and honest contractual performance would require that the parties take the steps necessary to make that agreement operative. In a case such as this, the parties, represented by experienced counsel, would know that certain formalities would be required, including statutory formalities.”

Justice Gray commented that the only reason offered for refusing to execute an arbitration agreement was the fact that the arbitrator advised the parties that he had the authority to decide the value of Chartwell, an insufficient reason to breach the contractual terms of the Minutes of Settlement.

The Court dismissed Mr. Gidding’s appeal and application and ordered the parties to sign an arbitration agreement with Mr. Grant.

Lawdiva aka Georgialee Lang

Does a Court Order Barring Facebook Posts During Divorce Infringe Free Speech?

GEO_edited-1It is not unusual for parties in high conflict divorce to use social media, such as Facebook, to gain support for their cause or vent their frustration with their spouse or the court system, particularly when children are involved.

In Butchart v. Pannell 2019 BCSC 599 Mr. Pannell complained to the court of his wife’s Facebook posts where she referred to him as a “deadbeat dad” and aired their divorce issues, arguably undermining his reputation and contributing to his stress.

The court remarked that Ms. Butchart showed little insight into the negative impact of the posts, her solution was to tighten her privacy settings so her husband would no longer be able to read her disparaging missives. She further defended her position by saying there was no court order preventing her from talking about her case.

The parties had two children, ages 11 and 9. The court held that the posts were not in the children’s best interests, and barred Ms. Butchart from posting comments about Mr. Pannell or her children’s counselling on Facebook or any other social media.

I have yet to see a challenge to this type of order based on constitutionally protected free speech, however, the Massachusetts Supreme Judicial Court, sitting with seven judges, recently released an appeal decision declaring that an order limiting a litigant from posting comments, photos of his children, or other information regarding the parties’ divorce litigation online was an “impermissible restraint on speech”. Shak v. Shak SJC #12748 May 7, 2020.

The appeal court said:

“As important as it is to protect a child from the emotional and psychological harm that might follow from one parent’s use of vulgar or disparaging words about the other, merely reciting that interest is not enough to satisfy the heavy burden of restricting free speech.”

The judges noted that there was no evidence that the Shak’s child had been exposed to, or would even understand the speech that gave rise to the non-disparagement orders as the child was too young to read or access social media. The concern about future harm if the child were to later discover the posts was speculative and could not justify a restraint on speech, they said.

“Harm to the child should not be simply assumed or surmised; it must be demonstrated in detail”.

In conclusion the court suggested that judges could make it clear to parties that their behaviour, including intemperate social media postings, may impact child custody determinations and that the best outcome was to rise above acrimonious feelings and simply refrain from making disparaging remarks.

The Massachusetts’ court determined that platitudes about “the best interests of the child” were not sufficient to undermine freedom of speech.