It All Seemed So Good: Toronto Neurosurgeon Arrested for Murder of Wife

GeorgiaLeeLang025Mohammed Shamji had it all:  a beautiful wife, who was herself a family doctor, three lovely children, and a PhD from Duke University in biomedical engineering, which paved the way for his reputation as a world-renowned neurosurgeon. But the family was hiding a secret…according to news reports, the Shamji’s had visits from the police more than once for allegations of domestic violence and neighbours reportedly heard them fighting.

Tragically the ultimate weapon for men that engage in family violence was unleashed when Dr. Sahmji, age 40, allegedly murdered his wife, Elana Fric-Shamji last week in their garage. He was arrested on Friday and is in police custody charged with first degree murder. The media reports that Dr. Shamji placed her body in a suitcase and dropped her  beside a river in suburban Toronto, where she was found the day before her husband was arrested.  The coroner determined she died from strangulation and blunt force trauma.

It is impossible to pigeon-hole Dr. Shamji as he does not fall within the typical profile of a husband (or wife) who murders their partner, which includes severe mental illness, previous felony convictions, lower intelligence, and more cognitive impairment than in other types of murders. However, eschewing political correctness,  it may well be that his cultural upbringing played a role.

The killing of a female intimate partner or spouse is referred to as “uxoricide”. Statistics reveal that of 2,340 partner murders in America in 2007, female victims made up 70%. In South-East Asia 55% of all murdered women died at the hands of their partner, in Africa it is 40%, and 38% in the Americas. It is reported that approximately 7 women are killed per month in England and Wales, 4 women per month in Australia, and in the United States it is 76 women per month.

Dr. Elana Fric-Shamji had recently filed for divorce and expressed relief that she was on her way to a new life. This stage of separation is the most dangerous time for women. Her last tweet on November 27, 2016 was lively and upbeat, displaying a photo of her and a fellow female physician. Her children have now been placed with their maternal grandparents. How very sad…

Lawdiva aka Georgialee Lang

Court Orders Maintenance Enforcement Program to Pay Dad for Abusive Collection Efforts

GeorgiaLeeLang009Some of the worst complaints about the  British Columbia family law justice system arise from litigants dealing with the Family Maintenance Enforcement Program  (“FMEP”), called the Family Responsibility Office in Ontario.

Support enforcement programs permit parents and spouses who have court orders or agreements providing for child or spousal support payments to register their orders or agreements with the enforcement program in their province, at no cost to the registrant.

The protocol is that once an agreement or order is registered, the payee parent or spouse must pay support to FMEP, no longer directly to the recipient. FMEP ensures that the recipient parent or spouse receives the payment monthly, and in cases where a payee fails to pay, they take steps to enforce the payment of the support.

Interestingly, a payee does not have to be in arrears of support to be monitored by FMEP.  I remember years ago when a client of mine agreed to pay support for his wife and children, an agreement that was incorporated into a court order. My client’s wife registered with the Program as she was entitled to, however, my client was most distressed when he received a letter from FMEP  addressed, “Dear Debtor”. My client made every payment every month on time and was insulted by the program’s cavalier use of the term “debtor”. He was certainly not a debtor, just a regular guy whose wife registered with the program.

Sometimes recipients enter the program out of spite for their former spouse, however, 99.9% of the cases involve payees who have fallen behind in their court ordered payments.

In a recent Ontario case, a typical scenario unfolded for Richard DeBiaso, who paid child support to his ex-wife for the support of the two children residing with her, with a set-off because he had one child living with him. It is not uncommon that as children mature they switch homes and move from mom’s house to dad’s house. That’s what occurred in the DeBiaso case where over time all the children resided with their father.

Mr. DeBiaso negotiated new terms for child support with his former wife, entered into a new agreement and made arrangements to appear in court to finalize their new arrangements. Unfortunately, Ms. DeBiaso had already registered with the Family Responsibility Office,  (“FRO”) who were unaware of the new support agreement that had yet to be confirmed by the court.

The first Mr. DeBiaso heard of any problems was when FRO sent a letter advising him that they were reporting him to the credit bureau. Shortly thereafter FRO issued a garnishing order to his employer which prompted his lawyer to send a letter to FRO advising of their mistake and the pending court order.  FRO was unmoved–they were enforcing the order they had received from Mr. DeBiaso’s wife and had now taken steps to have his driver’s  license suspended. Needless to say, FRO was not responsive to any communication and regularly ignored letters from his lawyer, also refusing to accept phone calls.

Mr. DeBiaso finally obtained a court order directing FRO to cease their collection efforts. He then asked the court to order FRO to reimburse him for his legal fees, an amount close to  $10,000. The court reviewed numerous other decisions ordering FRO to pay costs, noting that most of these cases involved “aggressive enforcement actions on the part of FRO”.

Justice Nelson awarded Mr. DeBiaso the sum of $7,500 saying:

“In this case it was made clear to the FRO caseworker that there was a dispute over the amount of arrears owing.  It was made abundantly clear that there had been a material change because of the move of the children.  While I understand that FRO has a mandate to enforce, it seems to me that insisting on enforcement by way of licence suspension, when it is likely that the matter will be before the court within a very short period of time, is an unreasonable exercise of the Director’s mandate to enforce.

…the caseworker was kept fully apprised of all relevant information about the motion to change.  The refraining motion was December 10, 2015; the motion to change was scheduled for December 30, 2015.  The insistence by the Director on proceeding with enforcement under such circumstances is not only costly to the individual involved but costly to the court in terms of time allotted to the case.”

It should be noted that FMEP’s and FRO’s inappropriate attitude while serving the public is not limited to payors who have arrears of support. It is also nigh impossible for recipients to be heard in a timely manner. The British Columbia program is contracted to a large American corporation that makes oodles of money, with little apparent concern for customer relations.

DeBiaso v. DeBiaso 2016 ONSC 2253

Lawdiva aka Georgialee Lang

Why Would You Hire a Lawyer if You Don’t Want to Take Their Advice?

BarristerI could never understand why someone would hire a high-priced, hotshot lawyer but refuse to take their advice.  It happens more frequently than you might realize, sometimes the result of an uneducated neighbour or friend, who after going through their own divorce, deigns to give (bad) advice to all who will listen. Other times it’s a litigant who thinks he or she knows better.

In a recent case in Vancouver, a lawyer had a difficult time persuading her client that his strategic decisions were wrong-headed and would ultimately lead to disaster. Here’s what the lawyer told her doubting client:

“Family law is a breed apart. Affidavit evidence is generally full of crap, most of which doesn’t matter. ” (Editorial comment: A true statement)

“…if you bring numerous expensive court applications that are out of the ordinary in family law in response to her material, you can guarantee she will get her advance for legal fees because you will have proved to the court what she has said in her material that you will seek to prolong the court proceedings by litigation tactics that are outside the norm in family law and not only will they be unsuccessful, those tactics will backfire spectacularly.” (Editorial comment: Also true)

“You might be better served with a puppet lawyer than with someone who is trying to save you money and grief. Think about it, as once you start down this type of path, you have blown your potential opportunity to get this litigation over with relatively easily.” (Editorial comment: A puppet lawyer is a stooge, a dupe)

“We won’t fire you now because you are stuck with a rapidly approaching court date but (John) or (Jane) will have to argue the motions you want to argue that I think are a waste of time and money, as my reputation as ethical counsel with the court and other lawyers is important to me and I don’t want the court or other counsel to think I am suddenly trying to rip off my clients by bringing motions that appear to be designed to make me money and not to help my clients.” (Editorial comment: Lawyers cannot abandon clients if a hearing is pending)

Tough words, but ethical lawyers who see their clients heading in the wrong direction are obliged to point out the crash course they are on. Most often the solicitor/client relationship ends dramatically, with unpaid legal bills and complaints to the lawyer’s governing body. (Editorial comment: Most times these complaints are dismissed)

To you who hire lawyers, you’d be wise to remember that the legal system is a  complex maze that requires  a steady hand at the wheel, a driver who has the expertise you need and the interest and passion to pursue justice on your behalf. Of course, in all litigation there are winners and losers, and competent counsel should tell you what side you will likely land on.

Lawdiva aka Georgialee Lang

 

 

 

 

 

Can Residue on a Cell Phone Identify a Criminal?

GEO CASUALThe field of investigative science is rapidly expanding, but it is also diminishing as forensic scientists throw out investigative tools that have been discredited, such as bite-mark analysis.

In a study funded by the National Institute of Justice,  and carried out by  biochemists at the University of California, San Diego, scientists  have discovered that residue aka “gunk” on a person’s cell phone can reveal much about the phone’s owner. Anything we touch leaves behind trace chemicals, molecules, and microbes which can be analyzed to obtain lifestyle information, including diet, hygiene products, health status and locations visited.

In a press release, the authors of the study said that this process  can reveal whether “ a person is likely female, uses high-end cosmetics, dyes her hair, drinks coffee, prefers beer over wine, likes spicy food, is being treated for depression, wears sunscreen and bug spray—and therefore likely spends a lot of time outdoors—all kinds of things.”

The authors of the study caution that this technique only provides a general lifestyle readout and unlike fingerprint analysis is not capable of providing a match to a particular person.

Then how is this information useful? The analysis could assist  a criminal investigator to narrow down the owner of an object found at a crime scene and assist in the determination of a viable suspect. Besides criminal profiling, it can be used for airport screening, medication adherence monitoring and environmental exposure studies.

The authors say their next project is to look at other personal items, such as wallets and keys to determine if their molecular analysis applies to these objects.

Lawdiva aka Georgialee Lang

 

 

 

 

 

 

 

 

 

Judge’s Decision Results in Tragedy

BarristerHave you ever thought about how judges make decisions? Frankly, I rarely think about this as my focus is simply on persuading a judge to see it my way. But learned scholars have studied and researched the psychology of judicial decision-making with interesting results.

The authors of “Blinking on the Bench: How Judges Make Decisions”* say that judges are predominantly intuitive decision makers, a characteristic that unfortunately can lead to flawed decisions. Of course, some intuitive decisions are accurate, but as between those kind of decisions and  the more academically rigorous “deliberation” method,  acting on gut feelings or hunches can be a dangerous way to adjudicate matters of critical importance to participants in the justice system.

A case this week out of Madison, Kentucky highlights the impact of judges’ “getting it right”.

Local prosecutor Chad Lewis was in court in Madison on October 6, 2016 seeking an arrest warrant against Laura Russell’s husband, Anthony Russell, age 51. The couple was divorcing and it was going far from well. Charged in August 2016 with strangulation and domestic battery for allegedly attacking his wife on several occasions. Mr. Russell was out on bond of $500.00 and subject to a restraining order, that he apparently ignored.

This court appearance was scheduled after Ms. Russell advised the police that her husband was continuously stalking her. She was upset, intimidated and frightened.

Judge Michael Hensley presided at the hearing, however, he refused to issue a warrant for Mr. Russell’s arrest and instead issued a summons requiring Mr. Russell to attend court on  October 11, 2016 after the three-day long weekend.

Mr. Russell did not show up at court on October 11 and neither did his estranged wife. They were both dead. Mr. Russell went to Ms. Russell’s home on October 7 and stabbed her multiple times. He then  committed suicide, blowing his head off with a pistol…a tragedy that devastated Judge Hensley.

The judge released a statement to the press expressing his condolences to Ms. Russell’s family, saying he felt “horrible about her death” and understood that his sincere regret would not “bring her back”. He explained that he didn’t believe there was “probable cause” to issue a warrant and said “I made what I thought to be the correct legal decision…obviously I made a decision that had the most tragic result possible”.

Prosecutor Lewis criticized Judge Hensley for failing to accede to his request for a warrant for stalking. Meanwhile, Ms. Russell’s lawyer suggested that it was Mr. Lewis’ fault as he could have asked for a warrant for multiple breaches of the restraining order, instead of seeking a probable cause hearing for a new charge of stalking.

Judge Hensley also announced that he would institute a new procedure in respect of arrest warrants, by ensuring that a hearing be scheduled for the day the warrant request is made.

 Lawdiva aka Georgialee Lang

*Chris Guthrie,  Jeffrey J. Rachlinski & Andrew J. Wistrich

Guest Post: Abduction by Adoption

Could your teenage child be secretly adopted without your knowledge? If New Jersey sets the example, then the answer looks like yes.

The New Jersey horror story started out typically enough. Parents of three children got a divorce. To make the transition as easy as possible on their children, these parents agreed to custody arrangements outside of court.

The children would remain in the family home with their father. The mother moved into a home 15 minutes away and the two parents shared parenting duties and privileges as well as parents from two households can. Things went well, and the parents never needed the courts to intervene to enforce any of their arrangements.

It was the good divorce that we want and expect should our marriages fail.

A few years later, when the eldest was a young teenager, the mother remarried. The new couple began holding the children at their house.  It was not a power play as much as a bid for control. The new husband came from a fatherless home. The mother was adopted. Together, they had a view of fathers as replaceable, and it would make their life so much easier to simply cut the ex-husband away.

As they worked to cut the father’s connections with his children, one time even snatching them from the lawn, the father had to resort to the courts to enforce their custody agreements. There were multiple hearings, interviews, and appeals. By 2015 the court had issued various orders upholding the shared custody plan and instructing the stepfather not to interfere with any of the father and child relationships.

Things got so bad that the judge even openly entertained the idea of awarding sole physical custody to the father so he would have more enforcement options. (As many divorced parents know, states have various laws and assumptions about equal legal custody, but in practice custody agreements mean as much as the parent with physical custody wants them to mean.)

The mother and step-father did not like this development. They did not want to abide by the custody agreements or have to appear in court when they ignored the agreements. Therefore, when the eldest daughter turned 18 the step-father used an odd adoption provision in New Jersey law and petitioned for an adult adoption in another court. It was granted.

The Adoption Loophole

The adult adoption provision is typically used for inheritance issues. For instance, prior to the legalization of same sex marriage, one member of a homosexual couple might adopt the other so they would have tax advantaged inheritance rights.  It is a simple process. The adopting parent petitions for the adoption and certifies that there are no obstacles to the adoption.

Adopting a step-child is an entirely different matter and New Jersey law has provisions for step-parent adoptions. As common sense suggests, those adoptions require notice to the biological parent and a waiver of parental rights, as well as background assessments of the adopting party. The law knows — the public knows — that adoptions of children are not to be taken lightly.

In the New Jersey case, the mother and stepfather waited until the eldest girl turned 18 so they could use the adult adoption provision. The step-father did not inform the new court about the many and current restraints set to keep him from interfering with the father and daughter relationship.  He simply verified there were no controversies and adopted the eldest daughter away from her father.

The father was never notified. He even continued paying child support, un-aware that legally, according to the State of New Jersey his daughter was no longer his. The next time he tried to enforce the custody arrangements the adoption rendered them meaningless.

Such is the tale told by the pleadings in the New Jersey Supreme Court where the father has asked the court to vacate the adoption of his daughter.

In addition to this new use of the adult adoption statute, the ultimate interference with the father and child relationship, and the lack of notice to the father and protections to the child, the court must also consider the implications of letting this adoption stand. Custody agreements will mean nothing if one parent can simply find someone, anyone, to adopt a child away from a biological parent. It’s a custody loophole, abduction by adoption.

According to Alice M. Plastoris, attorney on the Board of Directors of the New Jersey Association for Justice and Chair of the Matrimonial Committee, “This is not how the legislature intended for this statute to be used and the courts have cautioned against using the adult adoption provisions without notice.”

In a surprise move, the New Jersey Court denied the petition last month while agreeing to hear a related case. Another New Jersey couple’s divorce decree stated that neither parent could move the children out of state — and then the mother promptly moved the couple’s children to Utah. A parent’s ability to rely upon custody agreements is clearly in question in New Jersey. The father in the adoption case has asked for reconsideration.

If the New Jersey courts allow these events to stand, then what comfort could any divorced parent take in child custody agreements? The agreements can be ignored by legally or physically removing the children from one parent. And thus, New Jersey could set a new standard in child custody: the first parent to capture the kids wins.

AUTHOR: LESLIE LOFTIS,  LAWYER AND WRITER: Her writing typically covers feminism, law, politics, parenthood, and pop culture, particularly where they intersect. A member of LEADING WOMEN FOR SHARED PARENTING.

NOTE: In British Columbia an adult may be adopted based on the criteria in section 44 of the Adoption Act.

44 (1) One adult alone or 2 adults jointly may apply to the court to adopt another adult.

(2) The court may make the adoption order without the consent of anyone, except the person to be adopted, as long as the court

(a) is satisfied that that person, as a child, lived with the applicant as a member of the family and was maintained by the applicant until the person became self supporting or became an adult, and

(b) considers the reason for the adoption to be acceptable.

(3) An adoption order made with respect to an adult has the same effect as an adoption order made with respect to a child.

Lawdiva aka Georgialee Lang

 

 

Bob Dylan: Nobel Prize in Literature and Legal Muse

GeorgiaLeeLang057This past weekend I saw Bob Dylan perform in concert in Indio, California, a musical extravaganza that featured Dylan, Neil Young, the Rolling Stones, The Who, and Paul McCartney, but it was Dylan’s weekend, as he was feted by his fellow artists for his Nobel Prize in Literature. He joins luminaries such as Jean Paul Sartre, Alice Munro, Doris Lessing, John Steinbeck, Albert Camus, Boris Pasternak, Harold Pinter, Toni Morrison, and many others, 113 awarded thus far.

As relevant today as he was in the turbulent 60’s, 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. And his poetry remains as profound today as fifty years ago.

University of Tennessee  Professor Alex Long 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, 69 for Bruce Springsteen,  Paul Simon, 59; Woody Guthrie, 43; the Rolling Stones, 39; the Grateful Dead, 32; Simon & Garfunkel, 30; Joni Mitchell, 28; and R.E.M., 27.

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 State 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”.

And the late 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” , Dylan’s ode to wrongfully convicted Rubin “Hurricane” Carter.

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

Lawdiva aka Georgialee Lang