R.A.I.D.S.: Recently Acquired Income Deficiency Syndrome

Family law lawyers often refer to a deadly disease called “R.A.I.D.S.”, which is very contagious among family law litigants and frequently used as an excuse by wealthy spouses to explain the sudden downturn in their income. 

In a 2010 decision by Judicial Hearing Officer Stanley Gartenstein of Nassau County, New York, Supreme Court Officer Gartenstein wrote:

“After a long and bitterly contested trial, this complex litigation may best be summed up as a well-crafted but legally bankrupt claim of “sudden poverty”, a disease which seems to infect matrimonial litigants with particular frequency.”

“Apart from the time, effort and expense to which he has put his wife to penetrate the smoke-screen he has so skillfully created– and we must give him credit for that–his schemes are a house of cards constructed by a self-indulgent individual intent upon his own gratification at the expense of all of those innocent persons who have given of themselves to him and had a right to expect more.”

I’d love to hear a judge in British Columbia tell it like it is, like Officer Gartenstein. Bravo!

Lawdiva aka Georgialee Lang

Getting Divorced? See a Movie!

Today’s post looks at the lighter side of divorce and separation with a review of my top three “divorce” movies. And the winners are….

1. The War of the Roses

Who can forget the outrageous antics of Michael Douglas and Kathleen Turner as the warring Roses, in this black comedy directed by Danny De Vito, who also plays a divorce lawyer in the film. 

The Roses are a wealthy, sophisticated couple who despite appearances, hate one another. After Mrs. Rose asks for a divorce she advises her husband she will never leave her home and refuses to acknowledge that he has an equal interest in it.

With each refusing to move out, the couple live together in a state of unarmed warfare. To spite each other, they destroy most of the home furnishings and smash Royal Doulton china and Waterford crystal against the walls.

When Mr. Rose “accidently” runs over his wife’s cat, she retaliates by nailing the door of the sauna shut while he is in it. He nearly succumbs to heat stroke and dehydration. 

As matters escalate, Mrs. Rose rigs their large hallway chandelier, hoping that it will fall on her husband, thus eliminating her problem. There is a surprise ending that I will not give away.

This 1989 film grossed $150 million at the box office and won three Golden Globes: Best Actor, Best Actress and Best Movie. 

2. The First Wive’s Club

This 1996 comedy features Diane Keaton, Goldie Hawn and Bette Midler as three middle-aged wives who are dumped by their husbands in favour of younger women.

The three form a club vowing to wreak havoc in their ex-husbands’ lives and exact revenge. Goldie Hawn plays an aging actress who is a plastic surgery addict; Diane Keaton is an anxious neurotic with a lesbian daughter; and Bette Midler is a capable Jewish wife who sacrificed herself for her husband’s successful business.

The film has a great soundtrack including Dionne Warwick’s “Wives and Lovers”, Janis Joplin’s “Piece of My Heart”, Gloria Gaynor’s “I Will Survive”, and Lesley Gore’s “You Don’t Own Me “.

Who can forget Ivana Trump’s cameo line “Don’t get mad, get everything!” 

The film was a winner at the box office and helped revive the careers of its
three leading ladies. It was based on the novel of the same name written by Olivia Goldsmith, who died several years later during a facelift procedure.

3. Mrs. Doubtfire

Robin Williams plays a father, Daniel, with a lagging acting career, who loses his job, his marriage and his three kids. His wife, played by Sally Field, has a new boyfriend (Pierce Brosnan) and sole custody of the children. Daniel is given access to his children once a week on Saturday nights.

Desperate to see his kids, he notices that his wife is advertising for a nanny. With the help of his brother who is a film makeup professional, Daniel transforms into British nanny Mrs. Doubtfire.

The film is hilarious. Eventually the two oldest children realize Mrs. Doubtfire is their father and go along with the scam. 

The “happy ending” includes Daniel on his own children’s television show playing Mrs. Doubtfire and his wife’s recognition that he is really a great dad.

The film was the second highest grossing film of 1993 only outstripped by Jurassic Park. It won an Oscar for Best Makeup and Golden Globes for Best Actor and Best Picture.

What are your favourites?

Lawdiva aka Georgialee Lang

High Conflict Custody Cases: Who Should Decide?

In difficult custody cases it is not unusual for parents to retain a psychologist to assess the family dynamics. Parents and child are interviewed, separately and together, and other people closely connected to the child, including grandparents, new partners, close friends and nannies may all be part of the process.

Often times the conflict between parents will be so great, the parents agree to appoint a custody evaluator and other times, on the court application of one parent, a court will order that an assessment take place.

Custody assessors, typically psychologists or psychiatrists, play a significant role in custody and access decisions across North America. Their opinions and recommendations can carry considerable weight when a court is asked to decide on a parenting plan for a child whose parents cannot agree on their own, although judges are never bound to follow their recommendations.

A recent case out of California is illustrative of the follies and foibles of turning pivotal decisions about one’s children over to experts and judges.

Mother Deborah Singer had custody of her five year-old daughter when Beverly Hills psychiatrist Dr. Joseph Kenan was hired to do a custody and access assessment. Ms. Singer’s estranged husband had barely seen his daughter in two years and was in prison for probation violations. Upon his release, he was facing additional felony charges.

Ms. Singer paid Dr. Kenan a retainer of $7,500.00. Before the completion of his custody report, Dr. Kenan advised Ms. Singer he required an additional $35,000.00 and would send a courier to her home right away to pick up a cheque for $20,000.00

Ms. Singer was alarmed by the doctor’s request and began to investigate him. She came across several websites and a Facebook page that sent her reeling. Under the names Joe Kegan and Joe Keegan she discovered sexually explicit photos including one of the doctor showing his bare buttocks. 

Other photos included one of a woman leaning over a mirror that had lines of white powder on it that she was inhaling with a straw. Another photo of the doctor showed him holding a banner that read “It’s snowing.” His Facebook page promoted unprotected sex and several gay porn sites including Rentboy.com.

She also discovered that several months earlier, police had attended at Dr. Kenan’s home in respect of a sudden death initially thought to be caused by a drug overdose. Later, the death was attributed to natural causes, but a meth pipe was found in his home.

Ms. Singer sought and received a court order removing Dr. Kenan from the case and her retainer was reimbursed to her.

Another concerned mother of an eleven year-old child who had retained Dr. Kenan also asked the court to remove him as the custody expert on her case, but in this instance the court would not, saying ” You want Dr. Kenan removed because of a goofy Facebook page? What has that got to do with anything in this court?” 

At least two important lessons emerge from this story. The first is that decisions about children are best made by their parents, not experts and not judges. In the Singer case, I query why a custody evaluation was required when Ms. Singer had raised her daughter and was the sole provider for her. I suspect that Ms. Singer was seeking to bar her child’s father from any contact with his daughter.

The second lesson arises from the disparate opinions of two California judges. One judge agreed that Dr. Kenan should not be involved in a custody assessment based on the evidence gleaned from the internet, while a second judge believed it was completely irrelevant.

After an investigation, Dr. Kenan was not disciplined as there was no evidence of professional misconduct.

As I often tell my clients, a lot of what happens in court depends on the experts you rely on and the judge you draw. 

Lawdiva aka Georgialee Lang

Forged Evidence Does Not Impress Appeal Court

Appeal Court considers stay of custody order in the face of forged evidence
By Georgialee A. Langpage1image15408576

Many family law attorneys enjoy their practices, despite the rigours of high-conflict litigation and often, never-a- dull-moment narratives, but Ontario counsel surely just survived the emotional wear and tear inflicted by a mother in a recent Ontario case.

In Lenihan v. Shankar 2021 ONCA 142, a custody case, the appeal court considered an application brought by a 2-year-old’s father for security for costs of the mother’s appeal and a stay application brought by the mother, who had lost custody in the court below.

The parties met in Oregon in March 2017 and married in June 2017. The mother was a citizen of India, with permanent residence status in Canada, who a month after their nuptials returned to Vancouver to maintain her Canadian immigration status. She then moved to Ontario and her husband followed her, where she advised him she was pregnant. But that news was

not enough to keep the marriage on track, and the parties separated in December 2017, with the father returning to his home in Oregon.

In February 2018 the father received notice from his estranged wife that their child had been born prematurely and was in neo-natal intensive care on a ventilator. That advice turned out to be false; however, the child was born with craniosynostosis, a condition in which one of more of the fibrous sutures in an infant’s skull prematurely fuses into bone, changing the growth pattern of the skull. The child was actually born on March 30, 2018 and several successful operations completely addressed the child’s skull problems with no remaining disability.

From the day of the child’s birth the mother made scurrilous allegations against the father and enlisted the assistance of child protection authorities and Ontario’s Office of the Children’s Lawyer, who both investigated and rejected the mother’s outrageous allegations, including those of sexual and physical assault, that the father wished to “kill the baby;” that he wanted her to have an abortion; that he did not want to pay child support, and many other equally ludicrous claims.

A custody trial began in November 2020 and the father and his mother arrived in Ontario and self- quarantined in a hotel for the required 14 days prior to the commencement of the trial, and where they remained for the four-week trial.

To describe the trial as a “debacle” fails to capture the turmoil created by the child’s mother. It began on day five, when the mother testified that the father was not the child’s biological father and presented a paternity test to the court. She alleged that he was a sperm donor and filed a “Sperm Donor Agreement” in evidence. She also submitted an e-mail exchange between the father and his lawyer which alleged a criminal act to remove the mother from the litigation.

It quickly became apparent that these documents were “transparent and shocking forgeries prepared by the mother.” But they were not the only fraudulent documents. The mother tendered an 18-page affidavit from a person who, when called as a witness by the father, said she did not know the mother and had never signed an affidavit.

At this juncture, the mother’s legal team, notably her tenth and eleventh counsel, withdrew from the record upon realizing their unwitting participation in placing forged evidence before the court.

The court then permitted the mother to continue and self-represent, and set out a schedule and generous advice as to how she could do so, and ordered weekend parenting time for the father.

However, the mother must have realized that the “jig was up,” as she then boarded a plane for Delhi, first class, without notifying her spouse or the court. An agent appeared on her behalf on the following Monday as court reconvened.

The trial judge agreed that the mother could continue the trial on Zoom from India but must provide the court with details of her return travel arrangements to Ontario, including a return ticket. No ticket was produced, and the mother did not return to Ontario; however, the trial continued until Dec. 11, 2020.

On Dec. 11, 2020 the trial judge delivered short oral reasons, with fuller reasons to follow. He said:

“Time is of the essence in this decision. There is a young child who has been living in a hotel for the past 20 days with a father who is a resident of Oregon, and a mother who has left the jurisdiction without a return ticket.

I find that it is in [the child’s] best interest to transfer her residence from Ontario, Canada to Oregon, USA where she will have a stable residence, extended family supports, medical care and a good education. In doing so, I acknowledge that this change in residence will remove this case from Ontario jurisdiction.”

In written reasons handed down on Jan. 14, 2021, the judge described a mother who sent hundreds of abusive, threatening text messages to her spouse; failed to list him as the child’s father on the birth registration; asserted non-existent court orders to professionals and hospitals; ignored legitimate court orders; failed to disclose the existence of another husband and a second child to the father; and threatened the father’s family and child protection case workers.

With respect to the father’s application for security for costs of the appeal, the court remarked that such an award was rare in a child-related matter but noted that “but for cases of infanticide or abductions, Ms. Shankar’s [the mother] actions in and outside of this litigation exceed any known to me in the caselaw.”

The mother, still lacking any insight in her behaviour, filed a stay motion of 160 pages alleging that her husband had “trafficked,” “abducted,” and “tortured” his daughter; describing him as a “drug addict” and “homeless;” and that he would “sell his daughter,” all allegations that were patently absurd. The court ordered that $30,000 be posted as security for costs and dismissed her stay application.

It remains a mystery to right-thinking people how a person can be so consumed with what? Anger or resentment, fear or shame, or is it mental illness? And how can courts address these cases in the context of our adversarial family system of justice? These are difficult questions that lawyers and judges continue to ponder.

**This article was originally published by The Lawyer’s Daily ( thelawyersdaily.ca ) a division of Lexis Nexis Canada.

Lawdiva aka Georgialee Lang

Judge Orders Litigants to Attend Trial and Denies Adjournment Requests

An Ontario judge has spoken out clearly about counsel who book trials and then abandon them on short notice to the courts. In Armstrong v. Armstrong, 2017 ONSC 6568, Mr. Justice Pazaratz called the case, involving a reduction or termination of spousal support, only to learn that the litigants in the case were not available, and an adjournment was sought by both counsel.

Counsel had earlier agreed and the court permitted them to adjourn the trial, then set for August 2017. At that hearing, counsel had agreed the trial would proceed in October 2017 for three days. 

Counsel advised the court that an error had occurred and their clients incorrectly believed the rescheduled trial would take place in January 2018. Counsel also stated that a settlement conference had not been booked which might assist the parties to settle. As well, one of the lawyers indicated he had a doctor’s appointment that afternoon. Judge Pazaratz queried counsel as to why a trial was booked if settlement had not yet been explored, and also opined that the court would and could work around counsel’s medical appointment, but that did not justify an adjournment of the trial. He also said:

“The implications of attending court on day one of a three day trial and requesting an adjournment go far beyond merely wasting one day of court time. Judges and trials are scheduled based on a balancing of multiple scheduling considerations. If this three day time slot becomes wasted, there may be far-reaching consequences (for example another three day trial could have been called, but if I am only available for two more days this week, it means I don’t have enough time to deal with that other matter).”

Judge Pazaratz advised counsel to get their clients to court immediately so the matter could proceed unless a settlement was reached, and warned them that if the matter was not settled and the trial did not go ahead, he would dismiss their case.

Counsel returned with a consent order in which each party withdrew their claims on a without prejudice basis, however, the Court was not impressed with counsels’ tactics saying:

“The problem, of course, is that if people can simply withdraw claims when they aren’t ready for trial, there’s nothing to stop them from re-commencing those claims in short order, and creating even further stress and expense for the system. We have an obligation to ensure that judicial resources are appropriately utilized and not misused. I am not prepared to allow the parties to simply withdraw their claims on a without prejudice basis.”

Judge Pazaratz then dismissed the claims, but not on the merits, saying that if either party wished to return to court to deal with any of the claims, they would require permission from the Court to proceed, and that in the event that occurred, he would be the judge dealing with the matter.

Where courts are being criticized for a lack of judicial time and unreasonable delays in meting out justice, Judge Pazaratz’s ruling is a welcome response to counsel who abuse the system. While “courthouse steps” settlements are to be encouraged, in this case it was apparent from counsels’ remarks that settlement had not yet been broached; that no trial preparation had been undertaken; and that counsel were content to show up, without their clients, expecting a favourable or neutral response to their self-imposed dilemma.

Lawdiva aka Georgialee Lang

Bob Dylan As Legal Muse

In the turbulent 60′s Bob Dylan’s music and lyrics captured the imagination of a whole generation and became the soundtrack for America’s civil rights and anti-war movements.

His lyrics are as profound today as they were sixty years ago, and Dylan has become the most prominent legal muse for Judges and legal scholars.

Professor Alex Long from the University of Tennessee scoured legal databases for the year 2007 and found that Bob Dylan’s lyrics were cited in Reasons for Judgment 186 times, compared to 74 for the Beatles and 69 for Bruce Springsteen.

Several appellate judges in California have said “You don’t need a weatherman to know which way the wind is blowin’ ” from the song “Subterranean Homesick Blues”, in reference to the fact that an expert isn’t required to offer an opinion when any layperson could discern the facts.

Even the United States Supreme Court has relied on Dylan’s lyrics to make a point. Chief Justice John Roberts Jr. quoted Dylan’s line “If you ain’t got nothing, you’ve got nothing to lose” from his song “Like a Rolling Stone”.

Justice Antonin Scalia, in a case involving privacy protection for employees that use company email, said “The times they are a-changing’ is a feeble excuse for disregard of duty”.

I wonder if a Judge will ever recite this line from Dylan’s “Hurricane”:

“The trial was a pig-circus he never had a chance”

I doubt it!

Lawdiva aka Georgialee Lang

Lawyer Falls for Nigerian Scam

Albert Einstein’s quotes are legion, but one of his most pithy is:

“Two things are infinite: the universe and human stupidity; and I’m not sure about the universe.”

Along the same line, Judge Judy once remarked  that “Beauty fades, but dumb is forever”. 

Both quotes are apropos for a lawyer from Iowa who actually believed he could receive millions from a Nigerian Prince, and worse yet, dragged a client or five along for the ridiculous ride!

Lawyer Robert Allen Wright Jr. represented Floyd Lee Madison in a criminal matter in 2011. Mr. Madison presented lawyer Wright with documents which allegedly showed that Madison was entitled to a huge inheritance from his long-lost cousin in Nigeria. He asked Mr. Wright to help him get the funds transferred to him, a sum of over $18 million dollars, in exchange for 10% of the money. There was, however, one catch. To obtain the funds Madison needed to send the sum of $177,000 to Nigeria to cover the inheritance taxes.

At the same time, Mr. Wright was acting for Linda P. in a worker’s compensation suit. She received a payout of $25,000, whereupon Mr. Wright asked if she would loan $12,500 to Floyd Madison, as he needed the money to obtain an “anti-terrorism certificate” in order to complete the Nigerian transaction. She did more than that: she gave her entire WCB payout to Madison. He then enlisted several other clients to “loan” monies to Madison, in hopes of reaping great rewards from multi-millionaire to-be  Mr. Madison.

Meanwhile, lawyer Wright was busy dealing with representatives of the Central Bank of Nigeria, the African Union, and even the President of Nigeria. As scams go this one was a good one. He spoke with the Nigerian lawyer who purportedly witnessed the will of Madison’s cousin, and had discussions with a lawyer in England, Jonathan Walker, who told Wright he had travelled to Nigeria and attested to the legitimacy of the inheritance.

You already know how this ends…no inheritance received, no legal fees paid, and no repayment of Mr. Wright’s clients. But it wasn’t over yet.

Wright was inundated with disciplinary charges from his discipline body for incompetence, failure to disclose or secure client consent to conflicts of interest, and assisting a client in dishonesty or fraud. (The latter charge was not made out, as Mr. Wright was not devious, just stupid!)

The Iowa Supreme Court Disciplinary Board found that Mr. Wright “honestly believes–and continues to believe that one day a trunk full of one hundred-dollar bills is going to appear upon his office doorstep.”

The Board described Mr. Wright’s conduct as “delusional” but not fraudulent, and he was suspended for a period of one year.

It may be hard to believe but according to Ultrascan Global Investigations who operate in 69 countries, the profits earned by Nigerian 419  scam artists amounted to over $12 billion dollars in 2013. They say there are more than 800,000 organized perpetrators globally and many of them are Nigerian. Section 419 is the  section of the Nigerian Criminal Code dealing with fraud.

Ultrascan also reports that in 2002 the United States government was given authority to open all letters mailed from Nigeria to the U.S.  Government authorities found that 70% of the letters were scams. Today, the Nigerians rely mainly on email to induce unsuspecting victims.

Bottom line: If it sounds too good to be true, it probably is!

Lawdiva aka Georgialee Lang

Lawyer with Student Loan Debt in Excess of $500,000 Not Fit to Practice Law

An interesting case from the Appellate Division of the Supreme Court of New York was handed down, wherein the Court overturned the State Bar Association’s admission of a lawyer, who remained unnamed in the judgment. 

Decided and Entered: November 29, 2018
In the Matter of ANONYMOUS, an
Applicant for Admission to
Practice as an Attorney and
Counselor at Law.

This anonymous lawyer graduated from a Wisconsin law school in 2009 and had practiced law full-time for five years prior to his application to be admitted to the New York bar.

The Court noted that the lawyer had filed for bankruptcy in 2003 and escaped approximately $27,000 in debt, but his student loan debt of $37,000 survived the bankruptcy. At the time of his current application to the New York bar he admitted to student loans and private debt of $580,000 against payments of $2,700 since 1995.

The Court confirmed the lawyer’s burden of demonstrating his fitness and general character to practice law and determined that while the amount of the debt was concerning, it was his cavalier attitude and indifference to the situation that caused them to deny admission to practice law. 

This was the lawyer’s second kick at the can as he had brought an earlier application for admission to the bar in 2009 which was also refused by the appeal court. In 2009 his debt load was $480,000 and the court highlighted his recalcitrance in dealing with his creditors.

We don’t know from the judgment how many university degrees the lawyer attained or how he could possibly acquire such an extreme amount of debt, but I speculate that he was supporting himself on student loans over a lengthy period of time.

Lawdiva aka Georgialee Lang

Judge Denounces “Litigation Nonsense” During Time of Covid Pandemic

Georgialee A. Lang

An Ontario judge has sounded an alarm to family law counsel and their clients who engage in practices that contribute to “litigation nonsense,” a term coined by Justice Alex Pazaratz and particularly relevant in family law litigation in the time of COVID-19.

Berta v. Berta 2021 ONSC 605 provides the backdrop for the court’s discussion of inefficient practice issues, in the context of a spousal support case where Raymond Berta repeatedly refused to comply with a trial court’s order that he pay his ex-wife spousal support of $13,759 a month for an indefinite period of time. His reluctance to accept the court’s decision after a nine-day trial in 2013 and 2014 resulted in an appeal in 2015, a rehearing in 2016 and a second appeal in 2017, where the appellate court confirmed the spousal support order.

However, before the Court of Appeal could release its decision, Raymond Berta brought a further application to vary the Court of Appeal’s order, an application he later abandoned, resulting in costs payable to Delia Berta of almost $80,000 for his failed attempts to escape his support obligations. He also brought an application to change the venue from Milton, Ont., to Hamilton.

Justice Pazaratz observed that Raymond Berta’s non-payment of support led to arrears of spousal support and costs amounting to almost $500,000. Ontario’s Family Responsibility Office (equivalent to British Columbia’s Family Maintenance Enforcement office) set down a hearing for March 2020, adjourned due to COVID-19, and ultimately heard in December 2020.

The court ordered a payment schedule, confirming the ongoing support of $13,859 a month, together with $6,374 monthly on account of arrears, and ordered two lump sum payments: $147,597 payable by March 1, 2021, and $103,088, payable by May 1, 2021.

In considering the material before him and the history of the litigation, Justice Pazaratz described and denounced Raymond Berta’s conduct as “economic warfare.” He noted that while everyone has a right to their “day in court,” some cases distinguish themselves by consuming an inordinate amount of court time and judicial resources, and with some cases “we reach a tipping point where the system has to remind everyone about Rule 2 in the [Ontario] Family Law Rules,” rules we see in every province in Canada that invoke the “just, speedy, and inexpensive resolution of family law cases on their merits.”

The court observed that Raymond Berta had made this litigation as “complex, unproductive, inefficient, and expensive as possible” and suggested that in the time of the COVID pandemic, his litigation conduct could no longer be tolerated:

The COVID pandemic has left our court resources strained as never before. Even working at maximum efficiency, our reduced capacity in family court means that every day more and more families are left waiting for justice. … [t]he well-being and circumstances of children and vulnerable people are at stake. I’m not sure why we tolerated as much litigation nonsense as we used to. But that’s not an option anymore. We can no longer permit or tolerate an inefficient or cavalier approach toward judicial resources. We can no longer overlook or gloss over oppressive, reckless or malicious behaviour.

Justice Pazaratz ordered costs payable to Delia Berta of $4,000 but specified that he declined to waste any more of the court’s time to consider whether the costs order was enforceable by the Family Responsibility Office.

Georgialee A. Lang is a lawyer and arbitrator in Vancouver and Kelowna, B.C. Lang has practised family law for 31 years, recently focusing primarily on arbitration and appellate litigation. Lang is a writer, speaker and media commentator whose publications range from the Huffington Post to the National Post and The Lawyer’s Daily. For fun she pens a blog (lawdiva.wordpress.com). Connect with her at georgialeelang.com or on Twitter **This article was originally published by The Lawyer’s Daily ( thelawyersdaily.ca ) a division of Lexis Nexis Canada.

Is Case Management Judge’s Order Deserving of Deference?

The Alberta Court of Appeal considered an application for a stay of a parenting order where the lower court had drastically altered the pattern of parenting that had been in place. In Lloyd-Martinez v. Martinez 2021 ABCA 13, the case management judge increased Mr. Martinez’s parenting time from seven supervised visits per month to shared parenting, with alternating weeks, and no supervision. 

After nine years of marriage and two young children, this couple separated in March of 2017. In May of 2017 a protection order was made which barred the father from contacting his wife or the children. Several weeks later the father received an order for 2/12 hours of supervised parenting time every eight days.

By June 2018 a case management judge was appointed and in June 2019 the judge increased the father’s parenting time to five four-hour supervised visits every month. From July 2019 to February 2020 the children were in counselling where the counsellor noted that the parties’ son expressed negative feelings toward his father.

In October of 2019 the father’s parenting time was again increased to seven days out of every thirty, albeit it remained supervised. A year later an application to increase parenting time was heard which included evidence that the father had been in counselling, taken anger management courses, and had engaged in high-conflict parenting courses. The case management judge also observed that the children’s mother has taken steps to alienate the children and rejected her evidence of the father’s alleged bad parenting.

Ms. Lloyd-Martinez appealed the order and sought a stay alleging that her ex-husband did not provide a safe and supportive environment for the children and that their son did not want to spend overnights with his father. The parties’ other child, a daughter, did not express similar feelings. 

The Appeal Court considered the usual tripartite test for a stay: (1) Whether there was an arguable case; (2) Whether there would be irreparable harm if a stay was not granted; and (3) Whether the balance of convenience favoured a stay. RJR-MacDonald Inc v Canada (Attorney General)1994 CanLII 117 (SCC), The Court also noted the following

” When dealing with a stay application involving children, a modified test applies to reflect the paramountcy of their best interests… . An arguable case will likely be made out where there is credible evidence that the best interests of the children have been impacted adversely in a significant manner by the lower court’s order, coupled with an arguable case that the challenged order is flawed in some significant manner and that a stay would mitigate those adverse effects and better serve the best interests of the children In addition to influencing whether there is a serious issue to be argued on appeal, the best interests of the children will modify the irreparable harm and balance of convenience stages of the test. The court must consider whether the children will suffer irreparable harm resulting from the granting or denial of the stay.”

Not surprisingly, the Appeal Court determined there was an arguable issue, the threshold of which is notoriously easy to establish, as the analysis does not require a detailed assessment of the merits of a case. 

With respect to irreparable harm, the Court noted that a mere disruption in the children’s lives would not satisfy this part of the test, as the harm required must be “real and significant”. Notably, the parents generally agreed that the father-son relationship was strained, but each parent blamed the other.

The Appeal Court granted the stay. What it came down to was the mother’s role as the children’s primary caregiver since the date of separation and the children’s exposure to their father only under supervised circumstances. The Court held that the radical change in parenting would be destabilizing, particularly given the son’s feelings toward his father and the conflict between the parents.

A final comment: After case managing this high-conflict parenting case for 2/12 years, one must query the Appeal Court’s second-guessing the role of the case management judge and his experience with the parties and their children. Certainly, this gives one pause to consider whether the lauded “deference” to such a judge’s role was respected in this case. 

Lawdiva aka Georgialee Lang

**This article was originally published by The Lawyer’s Daily ( thelawyersdaily.ca ) a division of Lexis Nexis Canada