Appeal Court Says No Bias, But Allows Appeal

It will inevitably come up in your law practice. You finish a hearing, get the Reasons, experience the disappointment, and then, while formulating the grounds of appeal, consider an appeal based on a reasonable apprehension of bias. Was the judge sneering, did he sternly caution counsel, did your client feel he or she was misunderstood and unfairly criticized? A constellation of “second guessing” of what occurred at the hearing might lead counsel to seriously consider this ground of appeal.

But I urge you to take this step very carefully. In my 30 year trial career only once did I make this argument before a chambers judge who promptly dismissed my application. At that time I researched the law extensively and remarkably found that in 99% of cases, the alleged “offending” judge declined to recuse him or herself and the matter proceeded. Whether the argument is more successful at the appellate level is doubtful.

In Willms v. Willms 2020 BCCA 51 the Court of Appeal considered an allegation of bias and the appellant’s complaints about the chambers judge, which included the following:

1. Counsel was “harshly” reprimanded by the chambers judge when he submitted that “the respondent had intentionally deposed statements that were deceiving the court”. The judge responded saying: “Don’t call somebody a fraud based on this kind of material. And don’t suggest they’re deceiving the court. It’s a very serious allegation – – could end somebody in jail. … And a conclusion like that based on assumptions is on very, very thin ice indeed. Don’t do it again.”

The Court of Appeal noted that the affidavit said to be deceptive had not been tested, was not the subject of cross-examination, and the respondent’s evidence was not contradicted. After that exchange, counsel changed his approach calling the respondent’s evidence “inconsistent”. The Court of Appeal indicated that the transcript showed the judge’s respectful attention to the balance of counsel’s submissions.

2. Later there was an exchange between counsel and the judge following completed submissions on the respondent’s application to increase spousal support. It was then that appellant’s counsel began argument regarding his application to reduce spousal support. The judge remarked that all the necessary submissions had already been made on the topic of spousal support. Counsel advised the court that he was also seeking to terminate spousal support. The judge asked him where that could be found in the pleadings and a discussion ensued regarding the “fuzzy” reference to it in the material. Nonetheless, the court stated it would take the submissions into account.

3. Counsel also argued that he was repeatedly interrupted by the judge, that the judge dismissed his arguments without proper consideration, and failed to hear all of his submissions, which taken collectively, was evidence of bias.

The appeal court dismissed Mr. Willms appeal on this ground, finding there was nothing in the exchanges that gave rise to a reasonable apprehension of bias if viewed by an impartial observer cognizant of the matters that preceded the dialogue between counsel and the judge, and accepting at face value the judge’s assurance he would take counsel’s submissions into account. Further, the appeal court said that the appellant’s concerns that certain issues were not addressed by the judge could not be blamed on him, as counsel failed to make submissions on those points.

However, Mr. Willms did persuade the appeal court to address a miscalculation in the amount of spousal support and varied the retroactive award from August 2016 to March 2018, the date his former spouse brought her application for an increase in support.

Lawdiva aka Georgialee Lang

Why Bother? Hopeless Appeal Dismissed

I sometimes wonder why a litigant would bother to challenge a case that they will so obviously lose…even more curious is when they lose, but carry on, by appealing…Kraemer v. Kraemer is such a case, 2020 ONCA 91.

Larry and Stacey Kramer married in 2001, but ended their marriage in 2015. In the spirit of familial harmony, they agreed that Stacey’s parents, Gus and Jan, would invest $216,000 into the home the Kraemer’s owned to renovate the property and build a “granny suite”. Gus and Jan resided together in the suite commencing in 2007 until Jan died in 2013. Gus remained living there.

After Gus and Jan moved in, they wisely retained a lawyer to document the arrangements and all parties signed a License Agreement, which confirmed that Larry and Stacey owned the home and that in consideration of a loan of $165,000 from Stacey’s parents to Larry and Stacey, Gus and Jan would reside in the granny suite. As security for the loan the parties agreed to an unregistered mortgage, which could be registered with 14 days notice.

After Stacey’s marriage collapsed, Gus tried unsuccessfully to register the mortgage, followed quickly by the commencement of several lawsuits.

Larry argued that the monies advanced were a gift and not a loan. Stacey
and her father Gus relied on the license agreement and mortgage to defend that claim. The Chambers judge, not surprisingly, agreed with Stacey and Gus and dismissed Larry’s action.

But Larry was not done, he brought an appeal citing three grounds:
1. He said that the License Agreement was not a “license” but a lease. This was summarily dismissed by the appeal panel.

2. Remaining with the rental theme, Larry argued that because it was really a lease, it was an invalid lease as it had no rental payment provision.

3. Finally, he said that if it was a license the amount of the mortgage should be reduced to take into account a “discount” for the time Gus occupied the suite. He sought a reduction of $67,000.

Pointing out that the agreement contained no such discount provision, Larry’s appeal was dismissed with an order that he pay costs of $21,000.

Only one question remains: How embarrassed was Larry Kraemer’s lawyer, Patrick Kraemer, to advance such futile arguments on appeal? Only a relative would suffer through that humiliation.

Lawdiva aka Georgialee Lang

Nine-day Trial a “Crushing Weight” with No Gain, Says Judge

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In a recent costs decision from the Ontario Superior Court of Justice, Mr. Justice Pedlar decried the “crushing weight” of a 9-day trial accompanied by a huge risk of costs and the unfathomable stress on the parties. Calver v. Calver 2019 ONSC 7317.

The Calver’s were married for four years of a relationship lasting eight years. The judge noted that Ms. Calver chose the multiple remedies she sought, leading to a case that was “over-litigated”. Mr. Calver’s counsel remarked that the trial should have been completed within a day and a half and the judge agreed.

Her claims included unjust enrichment, constructive trust, proprietary estoppel, loss of future income, and compensation for emotional and physical damages related to her role in pursuing in vitro fertilization treatments over a period of seven years.

The facts relevant to the division of property were basically admitted. There was no dispute between them with regards to a joint venture or Ms. Calvert’s contributions to the joint venture. Ms. Calver sought a compensation payment of $450,000 and presented an offer to settle before the trial of $300,000. Her husband made a pre-trial offer of $9,000. The judge remarked that neither offer was reasonable given the outcome of the trial.

The majority of the relief claimed by Ms. Calver was dismissed and she was awarded the sum of $83,000, approximately 18% of her total claim.

In assessing an appropriate costs award, Judge Pedlar ordered Mr. Calver to pay his wife costs related to her success in being awarded 18% of her claim, amounting to costs of $13,560. He awarded Mr. Calver costs for his success in defending all other claims in the amount of $94,000 and set off what he was to pay his wife, leaving her to pay him $81,000 by forfeiting all of her judgment except the sum of $2,588.

In closing, the court commiserated that a 9-day trial cost the parties an enormous amount of money for virtually no gain.

Lawdiva aka Georgialee Lang

Filing a Lien on Your Spouse’s Home is Easy to Do in British Columbia

home real estate
Photo by Binyamin Mellish on Pexels.com

Are you worried that your spouse may sell or mortgage the home you live in with him or her, without your consent? What if you want to file a lien on a property you live in with your spouse? Do you have to start a lawsuit or is there an easier way?

The good new is, there is an easier way. You can file an “entry”, which acts as a lien against a home you reside in, without notifying the owner spouse and without starting a court action. This lien or entry, as it is called, is filed under British Columbia’s Land (Spouse Protection) Act.

To be eligible to file an entry you must:

1. Be a legal spouse or common law spouse, defined as having lived in a marriage-like relationship with the owning spouse for a continuous two-year period or more;

2. The entry can only be filed on a home that you have resided in with your spouse;

3. The entry must be filed within one year of your residence in the home;

4. The home must be owned only by your spouse, if you are on title you cannot use this lien;

5. If you are divorced you cannot use this lien.

6. If you are separated and have resolved ownership of the family home, you cannot use this lien

While this entry is on title the owning spouse cannot take any of the following actions:

They cannot:
(a) transfer, agree to sell, assign an agreement for sale, or lease or execute any other instrument intended to convey or transfer any interest in land;

(b) mortgage or encumber the land with the payment of money;

(c) devise or dispose of the land by your will; and

(d) mortgage by deposit of duplicate indefeasible title or indefeasible title, or other mortgage not requiring the execution of any document.

However, a lien under this legislation does not give the lien holder any priority over other filings against the land. To obtain priority, a person must commence a court action against the land and file a certificate of pending litigation pursuant to the Land Title Act.

If an owning spouse wishes to sell the property that spouse must obtain the consent of his or her spouse. Typically, if a spouse with an entry on title refuses to agree to a sale, a court order will be required. The usual remedy is that the sale is approved by the court with the net sale proceeds held in trust, pending the resolution of the spouse’s claim against the property under the Family Law Act.

Lawdiva aka Georgialee Lang

Borrowing on Family Property to Acquire New Property Will be Traced by the Court

With the introduction of “excluded property” into British Columbia’s family property law, cases continue to be released providing guidance to lawyers and separating couples alike.

The Appeal Court in KPB v. KE 2019 BCCA 152 considered whether the husband’s use of a line of credit secured by the parties’ family home, and used by him to purchase real property in his name after the date of separation, brought the after-acquired property into the category of family property or whether it was excluded property.

The parties were married for 12 years and had two children. They jointly purchased the family home for $255,000 with a $70,000 loan from the appellant wife’s father. The parties agreed that the trial judge incorrectly held that the loan was excluded property and consented to an order that the loan was a family debt pursuant to the Family Law Act.

The parties had a joint line of credit, that had a $0 balance. It was secured by a collateral mortgage against the family home. The home had a trial date value of $480,000. Just prior to the separation, the husband withdrew $25,000 from the credit line, and later an additional $95,000 to purchase a home in his name. Still later, he unilaterally withdrew a further $73,000, making total withdrawals of approximately $194,000.

When the husband brought his action for divorce and corollary relief, he failed to disclose this new home and the line of credit debt.

During the marriage the husband received an inheritance which he used to purchase RRSP’s and mutual funds which were agreed to be excluded property.
The trial judge equally divided the family property with the exception of the home the husband purchased at the time of separation. His rationale was that since the line of credit debt was the husband’s sole responsibility, the home was excluded property.

The appeal panel acceded to the wife’s argument that the trial judge erred in concluding that the husband’s after-acquired real property was excluded property. The Court held that if the trial judge had first determined what assets were family property and thereafter, what debt was family debt, he may not have fallen into error.

The Court said:

“After determining that the $193,792 was not family debt, the judge then reasoned that whatever was acquired by the husband with those monies was not family property. Had the correct approach been followed, in my opinion the result would have been different.”

The Court observed that the husband’s new home and the family home were interconnected assets because the husband, in effect, borrowed $120,000 from the equity of the family home to make his purchase.

The Court held that the wife’s interest in the husband’s home equated to that portion of the home that was purchased using the family home equity, which based on the home’s value of $490,000, less encumbrances, amounted to a compensation payment to the wife of $88,000.

Lawdiva aka Georgialee Lang

Trial Judge Misunderstands Evidence: Appeal Court Intervenes

In Baryla v. Baryla 2019 BCCA 22, the Court considered whether the trial judge had erred by failing to find that a half-interest in a home owned by the husband was excluded property, as the respondent husband had received the half-interest from his mother upon her death as a joint survivor of the joint tenancy property.

The parties ended their 40-year marriage in 2014 by signing a Letter of Intent Agreement dividing their assets equally between them. The Agreement provided that Mr. Baryla would transfer the subject home to his wife, and he did so. However, not all of the terms of the Agreement were implemented, as the wife brought a family law action seeking spousal support and an equal division of property.

The trial judge determined that the respondent wife had made a financial contribution to the home, which caused the appellate court to examine whether the gift of the right of survivorship was made to the husband and his wife, or just the husband, noting that this analysis was not done by the trial judge.

The appeal panel also pondered whether the husband’s transfer of the property to his wife pursuant to the Agreement extinguished his excluded property claim.

The appellant husband alleged that the trial judge had misapprehended the evidence by erroneously finding that the parties had contributed approximately $170,000 to the purchase of the home, while the true facts were that the sum of $170,000 came from the sale of his mother’s former home.

The trial judge relied on VJF v. SKW 2016 BCCA 186 to find that the husband’s voluntary transfer of the property to his wife eliminated his excluded property claim.

The Court of Appeal disagreed saying that the presumption of advancement had no application because the parties were separated at the time of the transfer and the transfer was not a gift but a fulfillment of a contract.

The husband also challenged the trial judge’s alternative holding that it would be significantly unfair not to divide the property equally because the purchase price of the home came primarily from the parties, relying again on the misunderstanding of the relevant evidence.

The appeal panel acknowledged that they could not consider this argument until the parties’ actual contributions to the purchase price was ascertained.

The Appeal Court allowed the appeal and ordered a new trial.

Lawdiva aka Georgialee Lang

GUEST POST: 5 TIPS FOR PARENTING TEENS AFTER SEPARATION

Separating isn’t easy, and many divorced parents worry about how they might alter their parenting to minimize damage on their teenager. It is common for teenagers to have a variety of negative emotions and increased risk after divorce, but having the right attitude and methods can prevent the poor outcomes from becoming long term problems. Here are five tips to keep in mind when parenting your teen after separation.

1. Don’t Make You Teen Your Confidant
It’s important to find someone to confide it, but it shouldn’t be your teenager. Your teen has to struggle with the effects of the divorce on their own, and shouldn’t be burdened with additional stress that you can put on them by treating them like a therapist. We suggest that you confide in someone else, like a close friend, someone who went through similar experiences or a professional therapist.

2. Encourage Closer Bonding with Your Teen
One of the unexpected positive outcomes of divorce is that teens get closer to their parents than if they had stayed married. If you maintain a positive attitude, use inspirational language, and find more ways to bond with your teen in a unique way, your relationship will be better than it ever has been. Use this opportunity to show a different side of yourself to your teen, and get to know your teen more personally too.

3. Don’t Talk Badly About Your Ex
One of the most troubling things you can do to your teen after divorce is criticize your ex. Your teen needs to have a positive relationship with both parents, that part doesn’t change after separation. Criticism can ruin those relationships. Plus, you don’t want your teen to start picking sides or make the family more divisive during a time when everyone needs to heal. We recommend that you only speak positively about your ex, regardless of the gripes you may have.

4. Pay Attention to Emotional Changes
Another tip we have is to pay close attention to emotional or behavioral changes in yourself and your teen. If you or your teen start acting out, or stop socializing, or form other negative habits, you should take note and come up with strategies to cope with the divorce in a healthier way. One way to cope is to have regular communication, get exercise, and find new hobbies to get involved in. These are beneficial for you and your teen, and should help you stay on track if your mood persistently changes.

5. Find Counseling for Your Teen
We think it’s important for your teen to have someone to talk to about the divorce that isn’t a parent. Having a third party is crucial because they can approach their issues with the divorce without fear of offending someone. Also, your teen is likely to experience anger, frustration, sadness, or other negative emotions that can interfere with their lifestyle. Being unable to express emotions in a healthy way can lead to risky behavior in the future. Having a counselor might help your teen learn how to handle their feelings and continue to live a happy life.

We Hope This Helps
These situations are never easy, and there can be a lot of unpredictable consequences on your teenager. We hope that following these tips can help you reduce the negative impact of divorce on your teen.

Author Bio:
ANDY EARLE is a researcher who studies parent-teen communication and adolescent risk behaviors. He is the co-founder of talkingtoteens.com and host of the Talking to Teens podcast, a free weekly talk show for parents of teenagers.