Mr. No-Pay…You Can Run, But You Can’t Hide.

GEO#1Family law lawyers now have access to information that can transform a case from an up-hill battle to a slam-dunk, and it’s all thanks to the internet.

Case in point: I have a client whose ex-husband, a venture capitalist, stopped paying his child support about one year ago. Exhibiting the patience of a saint, my client bided her time, hopeful her ex would reinstate his payments and make up the arrears. Didn’t happen.

She then contacted my office and the legal process began. Her ex was obliged to provide the usual financial documents including income tax returns and corporate financial statements. His tax returns showed nominal income and gosh, darn, he said that all of his businesses were insolvent so he hadn’t bothered to have his accountant prepare financial statements.

With a little help from the internet, we learned he was selling his home with an asking price of just over $900,000.00. After the usual land title searches, we found out he had already purchased a new home in another community. He said he was downsizing. He paid about $850,000.00 for his new home. It was a lovely estate property, larger than his last home, in a less expensive rural area.

Next stop was his Linkedin page and from there we simply googled his name and the names of his corporations. Here’s what we found.

Earlier that year, he made an offer of $25 million to purchase a golf course/housing development project that was very close to his new home and in financial trouble. Press releases abounded announcing the pending acquisition and his superior business acumen.

Several years earlier he had been a finalist for an entrepreneur of the year award. He was on the Board of his local Chamber of Commerce and associated with at least two consulting firms touting his business expertise. His allegations of insolvency were not born out. His only business debt was related to a wine store he operated. He was paying $1000.00 per month to pay down the $40,000.00 debt, $1000.00 more than he was paying for his two kids!

With this information and his feeble explanations, he no longer looked as broke as he said he was. My client got her happy ending when a judge ordered Mr. No-Pay to pay up asap!

It’s not always this easy, but his “high profile” doomed any chance of a judge buying what he was selling. And don’t get me started on the gems you can find on Facebook!

You can run, but you can’t hide from the internet!

A Christian Response to Racism

BarristerOne common thread throughout mankind is the endemic ugliness of racism.

Human history is rife with examples: early Romans subjugated the Jews; slavery was rampant; India’s caste system ostracizes the untouchables; Japanese immigrants to Canada and the United States were rounded up and forced into internment camps; indigenous peoples in Canada, Australia, the United States live amid poverty and discrimination; Germany oversaw the murder of Jews, political prisoners, homosexuals, and the mentally disabled; colonialism and apartheid ruled South Africa;  Jim Crow laws ruled the south, and today in North America, African-Americans have risen up to demand an end to systemic racism, their action propelled by a wave of police shootings of black men.

Meanwhile, white America reels as black vigilantes assassinate white and black police officers in retaliation, as Black Lives Matter assumes centre stage in the public arena.

The question I pose is whether Christians should believe and act upon the notion that racial injustice is a gospel issue that deserves our energy and attention. I believe it is.

How could it not be when the spirit-breathed Word of God tells us that Christians should be peacemakers: “So then let us pursue what makes for peace and for mutual up building.” Romans 14:19

We are told to forgive those who do harm to us and treat our enemies with love. “Clothe yourselves with compassion, kindness, humility, gentleness, and patience.” Colossians 3:12

Admittedly, these are difficult aspirations for flawed mortals to embrace, but the message of the Gospel demands the abolition of discrimination of any kind, be it sexism, homophobia, ageism, disablism, fat-shaming, or religious discrimination.

When Moses descended from Mount Sinai with the commandments of God, men and women had no difficulty understanding the Sixth Commandment: “Thou Shall Not Kill.” Later, in the Gospel of John we read: “Whoever hates his brother is a murderer, and you know that no murderer has eternal life abiding in him.” 1 John 3:15

Jesus Christ, delivering his Sermon on the Mount, admonished his followers: “You have heard that it was said, ‘You shall love your neighbor and hate your enemy.’ But I say to you, love your enemies, bless those who curse you, do good to those who hate you, and pray for those who spitefully use you and persecute you, that you may be sons of your Father in heaven; for He makes His sun rise on the evil and on the good, and sends rain on the just and on the unjust.” Matthew 5:43-45

It seems there are so many ways that people hurt people, often inadvertently, but the pain remains the same. Is the Church of Jesus Christ prepared to tackle this difficult issue?

Following on the heels of a Sunnyvale, California church, a congregation in Concord, North Carolina is taking action to defeat the affliction of racism. Based on the 12-Step program of Alcoholics Anonymous, this predominantly white church invites their members and the public to join weekly meetings of Racists Anonymous, encouraging and fostering this decidedly uncomfortable conversation. Pastor Nathan King reports that the meetings attract old and young, those admittedly racist, and others who are unsure or believe they may have a problem.

The only sure remedy for racism is the love of Jesus Christ. The gospel of Christ has the power to transform our understanding of race and discrimination. We must confront it, name it, shame it, and banish it forever.

Lawdiva aka Georgialee Lang

MILLENIALS AND PRE-NUPS

CBC NEWS REPORT
Millennials are more open to pre-nups than older generations, says B.C. family lawyer Georgialee Lang
Millennials are marrying with more assets they would like to see protected, lawyer says.
Prenuptial agreements are becoming more prevalent as millennials decide to marry in their early 30s, often entering relationships with significant assets, says B.C. family lawyer Georgialee Lang.
Prenuptial agreements are becoming more prevalent as millennials decide to marry in their early 30s, often entering relationships with significant assets, says B.C. family lawyer Georgialee Lang. (CBC)
Prenuptial agreements are on the rise for B.C.’s younger newlyweds, says family lawyer Georgialee Lang.
According to a recent survey from the American Academy of Matrimonial Lawyers, prenuptial agreements are rising for newlyweds aged 18 to 35 — and Lang says the shift is noticeably taking place in B.C.
“We’re seeing [prenuptial agreements] more notably with millennials — and there’s a whole range of reasons as to why that’s happening,” she told host Gloria Macarenko on CBC’s B.C. Almanac.
Lang says that the trend is taking place primarily because millennials are waiting until they’re in their 30s to get hitched, unlike previous generations — and that millennials tend to enter marriages with a lot more to lose.
“People in their early 30s have had an opportunity to acquire assets — and they’re aware of that,” she said.49afd8240a58bf0fb97d4a86105572c1

Even Divorce Lawyers Can’t Afford to Hire a Divorce Lawyer

It should come as no surprise to anyone that most Canadians cannot afford a lawyer. In fact, lawyers often joke that if they had to pay a lawyer, they too couldn’t afford it. Nowhere is this dilemma more obvious than in family courts.

It is now commonplace to see self-represented litigants dueling with lawyers in most of our family courts in Canada. In British Columbia a parent or spouse can apply for custody and child and spousal support in the Provincial Court, which is purposely “user-friendly”. The Provincial Family Courts across Canada have successfully implemented reforms including plain-language court documents that are readily decipherable by lay litigants. The judges in Provincial Court are accustomed to hearing cases without lawyers and graciously assist those who act for themselves.

However, to obtain a divorce or property division, the only venue is each province’s Supreme Court, sometimes called “Queen’s Bench”, a most inhospitable environment for in-person litigants.

In a 2011 survey of Ontario divorce lawyers, conducted by Professor Nick Bala of Queen’s University Law School, he found that 48% of 167 responding lawyers indicated they were seeing many cases with at least one lay litigant and more cases where at some point in the litigation, neither party had counsel.

As family law becomes increasingly more complicated, despite the Canadian government’s sensible introduction of both Child Support Guidelines in 1997 and Spousal Support Advisory Guidelines in 2006, there are minefields enough for lawyers, never mind those who are forced to act as their own lawyer.

Will a lay litigant understand that in calculating their income for the payment of child support they must consider and understand complex nuances such as the possibility of the exclusion of non-recurring income; the need to include all of their capital gains income in their calculation and not just the portion they see on page two of their tax return; and their ability to deduct business expenses, union or professional dues and carrying costs? I doubt it. Not all lawyers have figured it out yet!

But affordability is not the only reason litigants refuse to retain counsel. There is another group of litigants who believe they can handle their divorce case just as well as a lawyer can. This smaller segment often become serial litigators who, because it costs them nothing, bring multiple frivolous applications, although some would say that lawyers do the same thing! Often when offered pro bono counsel, they decline.

Problems abound for all involved in the family justice system in the wake of the impact of lay litigants. Judges who must ensure that justice is both done, and seen to be done, are at the centre of the dilemma. If they provide too much help for an in-person litigant, that litigant’s spouse will see it as an unfair advantage and often, the court Rules that govern court procedures are less stringently enforced when it comes to litigants with no lawyer.

As well, litigants that pay for their own lawyer often become disenchanted with their counsel when they see their lawyer “helping” their estranged spouse who has no counsel. Lawyers are bound to treat participants in the justice system with courtesy and respect, traits that are frequently misconceived as their lawyer being “too friendly” with their opponent. Fee-paying litigants resent their lawyer telling their spouse what the law is or how the court process works.

For lawyers the problems are multiplied. They must walk a fine line in dealing with an unrepresented spouse and must ensure that all communication with an in-person litigant is documented in writing, with no exceptions. Of course, their clients are even more unhappy since it is their clients who pay the bills for the extra time and effort required to work with a lay litigant.

Lay litigants have also been known to send abusive communication to their spouse’s lawyer and from time to time, report their spouse’s lawyer to the Law Society, a complaint which can cost a lawyer hours of wasted time to respond to the often ill-founded allegations.

Is there a cure? They say that recognizing a problem is the first step to solving it. Certainly, the issue can no longer be avoided. It has taken centre stage as a result of lawyers, judges, court administrators, law professors, lawmakers, and the Canadian public decrying the slow demise of Canada’s family justice system.

Lawdiva aka Georgialee Lang

Judge Presides Over His Own Divorce Case

GeorgiaLeeLang016

How would you feel if your jurist husband filed for divorce and coincidentally had his divorce petition assigned to his courtroom?  Hard to believe, but that is exactly what occurred with Texas Judge Miguel (Mike) Herrara.

 

In Judge Herrara’s discipline hearing he acknowledged that the same day he filed his divorce petition he learned it had been assigned to his courtroom. He didn’t think it was a problem because he and his wife, Melissa Carrasco were “trying to save the marriage and he did not want to do anything on the case”. (In my 28 years of practicing family law I have never seen a litigant file a divorce petition, while seriously “trying to save the marriage”).

He explained that he saw his role in the divorce as that of a husband, not an attorney or judge and justified his behaviour, saying:

“I did not care to place my family in the same position as other litigants find themselves, in conflicts and court hearings, which, for the most part only benefit the attorneys financially. It is really sad and embarrassing to see the reputation of some of the litigants being dragged in the mud in these court proceedings.”

Judge Herrara’s breach of ethics may have escaped scrutiny if he and his wife reconciled, but that didn’t happen. Instead, she retained lawyer Angelica Carreon who filed a counter-petition for divorce against Judge Herrara.

This did not please the judge who asked his wife why she was involving Ms. Carreon  who he alleged did not like  him. In his testimony he admitted that he refused to recognize the “legitimacy” of Ms. Carreon’s representation because she had improperly solicited his wife as her client, had campaigned against him during judicial elections, and was “dishonest, unethical and unreasonable”.

Several months after the judge’s original filing he terminated his divorce petition, leaving his wife’s counter-petition to be determined. At this stage, Ms.  Carrasco’s lawyer filed a motion requesting the judge to produce certain documents. Judge Herrara responded by filing a motion in his court for an order to extend the time beyond the normal time-frame for responding to the document request. He also filed a motion for a protective order.

Again, Judge Herrara did not recognize the absurdity of filing motions in his own court, saying that he did nothing wrong as he did not rule on the motions. But that wasn’t the end of his problems. His wife’s lawyer began filing motions requesting that he recuse himself from officiating over a number of other cases that were scheduled to be heard in his courtroom. Ms. Carreon alleged that Judge Herrara could not be fair and unbiased, because of the difficult professional relationship that had developed between them over her representation of Ms. Carrasco.

Many of the recusal motions were resolved by moving the cases to another judge, but several others remained in his courtroom and were not referred out. But, Herrara wasn’t done yet. He filed yet another motion to intervene in certain recusal cases because he wanted his views to be heard by the court. He testified that if he agreed to recuse himself he would be admitting the truth of Ms. Carreon’s allegations and would suffer at the polls in the next election.

The Texas Discipline Commission found that Judge Herrara failed to comply with the law, demonstrated a lack of professional competence, and engaged in wilful and persistent conduct that was inconsistent with his judicial duties.

They also determined that Judge Herrara showed no genuine remorse and continued to believe his conduct was justified.

His discipline? Six hours of instruction with a “mentor”. In 2016 he was re-elected for an additional four-year term.

Lawdiva aka Georgialee Lang

Supreme Court of Canada Refuses to Hear Lawyers Who Argue “Gonzo Logic”

GeorgiaLeeLang025While President Trump’s opponent are having a large-scale melt-down over his recent appointments, perhaps the most consequential of these appointments is his nomination of Justice  Neil Grosuch to replace the late Justice Scalia on the United States Supreme Court.

But lest you think that Canada’s judicial appointments lack the intensity and angst of our American friends, you need only refer back to Prime Minister Stephen Harper’s appointment of Federal Court of Appeal Justice Marc Nadon to the Supreme Court of Canada in 2013.

You may also recall that Ontario lawyer, Rocco Galati, challenged Mr. Harper’s appointment by filing a lawsuit against Mr. Harper, the Governor-General, Justice Nadon, the Attorney-General, and the Minister of Justice, which undoubtedly prompted the government’s prompt action to have the Supreme Court of Canada issue a ruling on Justice Nadon’s eligibility for our highest court, this after he had already been appointed.

The argument against his appointment was that Mr. Justice Nadon, as a  Federal Court judge, was not qualified to represent Quebec on the Supreme Court of Canada, despite his long tenure as a lawyer in Quebec.

The eventual outcome confirmed Mr. Galati’s position that Judge Nadon was not eligible, a surprise to the Harper government who had contrary opinions from two retired Supreme Court of Canada justices and several constitutional experts.

Most of this has been long forgotten by Canadians, but Mr. Galati’s 2016 application to the Federal Court of Appeal to be paid $800.00 per hour by Canadian taxpayers for his legal work in bringing this challenge has brought this case back to media scrutiny, particularly in light of the Supreme Court of Canada’s decision this week to refuse to hear the case.

Mr. Galati claimed the sum of $51,706.00 and his co-counsel, Paul Slansky, wished to be paid $16,769.oo, again at a rate of $800.00 per hour.

Both counsel admitted that this is not the hourly rate they normally charge, but this amount reflects their years at the bar and their expertise, a proposition that was soundly rejected by the Federal Court of Appeal in their Reasons.

The Court found that Mr. Galati’s and Mr. Slansky’s request for full indemnity for their legal services, called “special costs” was unwarranted for a variety of sensible reasons. For starters, their litigation did not decide the outcome of the Nadon issue, as shortly after they filed their action, the Supreme Court of Canada stepped in, thus ousting their private action. They were not successful litigants.

As well, “special costs”are only awarded when the opposing litigant’s behaviour has been egregious, even outrageous. Short of that, a costs tariff comes into play, a tariff that is far from reimbursement for all legal costs. Additionally, Mr. Galati and his colleague were representing themselves and were actually in-person litigants, not entitled to costs.

The Federal Court also remarked that experienced counsel would know that if costs were to be awarded, the tariff rules would govern. But the court’s ire was raised in response to Mr. Galati’s argument that the constitution supported his request for special costs and that to deny his claim was to be evidence that the Federal Court was “in bed” with the federal government.  To this audacious statement the court replied:

“It is therefore unnecessary for me to deal with the argument as to constitutional entitlement as it does not arise on these facts. That said, it sometimes occurs that a party makes an argument that is so scandalous that it deserves to be condemned, whether it arises on the facts of the case or not. This is such a case.”

The Court found that Mr. Galati’s  allegation of collusion between the court and the government was “reminiscent of the Gonzo logic of the Vietnam War era, where entire villages were destroyed to save them from the enemy…this argument deserves to be condemned without reservation.”

Regrettably, it is cases like this that lower the reputation of lawyers to right-thinking members of the Canadian public. But “gonzo” aptly describes arguments that are “weird, eccentric and crazy”.

Lawdiva aka Georgialee Lang

 

 

 

 

When Will Our Judges Speak Out Forcefully Against Perjury?

_DSC4851In 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