Renegade Judge Makes Orders Beyond His Jurisdiction in Settlement Conference

GeorgiaLeeLang025In the Courts’ continuing efforts to utilize settlement techniques to avoid costly court proceedings, a major component of that strategy is the judicial case conference (JCC) in the BC Supreme Court.

A JCC is a mandatory settlement conference where the parties and their counsel appear before a judge or master of the court to discuss the issues and attempt to settle them prior to bringing a court application. The rules provide that no court applications may be brought until a JCC has taken place, with a few minor exceptions.

One significant feature of the JCC process is that the Court cannot make any court orders unless both parties agree. It is that provision which led to the British Columbia Court of Appeal overturning a judge’s orders made at a JCC without the consent of the parties. What is remarkable is that the judge not only made orders, knowing the parties did not consent, but admitted that if the parties didn’t like it, they could take it up with the Court of Appeal…which they did. Morales v. Puri 2016 BCCA 216.

The issue between the parties was the parenting time to be granted to the child’s father, where the mother insisted on only telephone and Skype access. The following dialogue ensued:

THE COURT: … – – I’m going to make the orders even though they’re not by consent, and if a party is aggrieved by that, they can appeal to the Court of Appeal.

COUNSEL FOR MOTHER: My client has agreed with every – – every order up until – –
THE COURT: Well, … whether she has consented or not, it’s clear to me that everything that I have ordered has not been by consent, and therefore I’m making the orders whether they are by consent or not. If either of the parties wishes to take an appeal, they know how to do it.

All I’m saying…is you – – by raising the issue, you have made it absolutely clear that everything that I’ve ordered was not by consent and therefore, you have established a lack of jurisdiction for me to have done what I have done.

The orders made included the following:

(a) granting Ms. Morales sole guardianship, sole parental responsibilities, and primary residence of the child on an interim basis;

(b) requiring Ms. Morales to give Mr. Puri’s parents access to the child on Saturdays;

(c) granting Mr. Puri supervised access to the child at his parents’ residence;

(d) providing that after April 1, 2016, either party can bring an application to review Mr. Puri’s supervised access; and

(e) requiring Mr. Puri to provide the child with a cellular telephone at his cost to facilitate telephone access with her on Tuesday and Thursday evenings.

Mr. Puri brought an appeal which resulted in five appearances before the Court of Appeal, all of them unnecessary as at the appeal hearing, Ms. Morales finally conceded that the appeal should be allowed. Despite her protests, Mr. Puri was awarded costs.

The Appeal Court considered the judge’s conduct saying:

“We cannot condone what occurred. The judge’s decision to disregard the limits on his authority has needlessly increased the costs of this litigation and resulted in the unnecessary expenditure of judicial resources in both this Court and the trial court. No doubt, it has caused the parties additional stress, exactly what the judge sought to avoid.”

The cost to the justice system is obvious, however, the cost to the parties was absorbed by the legal aid system in BC. It is likely that had the parties been responsible for the cost of legal services the matter would have been quickly resolved.

Lawdiva aka Georgialee Lang

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Judge Drains Company of Funds, but Appeal Court Reverses

close up court courthouse hammer
Photo by Pixabay on Pexels.com
There are times, thankfully not too often, where judges go way too far and make orders that are well beyond precedent and practice. One such case is Warde v. Slatter Holdings Ltd. 2016 BCCA 63.

When Elaine Warde and Brian Slatter separated, Ms. Warde brought a family law claim against her husband, and a company, Slatter Holdings, owned by his mother Fern Slatter. She also named Fern Slatter as a party. Ms. Warde alleged that Fern held shares of the company in trust for Brian which were divisible family property. Mr. Slatter had worked for the company and at one time Elaine and Brian were named directors. Of course, that changed when their marriage collapsed.

At the time of separation the Company had assets totaling approximately $1.9 million. The assets included funds in the company bank account of $749,147, an accounts receivable of $750,000, equipment valued at $260,000, and two R.V. lots with a value of $130,000.

After filing her Notice of Family Claim Ms. Warde obtained without notice orders against the company and her husband, as follows:

1. Pursuant to section 91 of the Family Law Act, Brian Grant Slatter is:

a. restrained from disposing of any property at issue in this proceeding; and

b. prohibited from disposing of, encumbering, assigning, transferring, converting, exchanging into another form, or in any similar manner dealing with property in which the Claimant has or may have an interest, pending final determination of this action, without the consent in writing of the Claimant or further Order of this Court;

2. Pursuant to the Business Corporations Act [SBC 2002] Chapter 57, including section 228, the Respondents Brian Grant Slatter and Fern Slatter are prohibited from contravening section 301 of said Business Corporations Act, and:

a. Brian Grant Slatter and Fern Slatter are directed to refrain from contravening said provision; and

b. Slatter Holdings Ltd. is enjoined from selling, assigning, transferring, encumbering, or otherwise disposing of property, rights or interests;

After the restraining orders were made, Ms. Warde was provided copies of the general ledgers and was kept informed of company matters, including the repayment of shareholder’s loan to Fern Slatter. The company also wrote several other cheques from company funds but claimed solicitor/client privilege over their details.

As a result, Ms. Warde brought an application asking for a declaration that the company and the respondents had breached the restraining orders; that no further funds be accessed by the respondents; and that the remaining funds be paid into court. The chambers judge acceded to Ms. Warde’s requests and ordered the company to pay all of its remaining funds into court. She also awarded special costs against the company.

The Court of Appeal granted leave to appeal and then allowed the appeal, finding that Ms. Warde’s application was miscast from the outset. Rather than seeking orders for contempt of court, Ms. Warde cited Rule 20-4 (1) of the Supreme Court family rules:

(1) A proceeding is not open to objection on the ground that only a declaratory order is sought, and the court may make binding declarations of right whether or not consequential relief is or could be claimed.

The Appeal Court noted that declarations could not be ordered on an interlocutory basis; neither could they be obtained to condemn previous conduct. The correct approach was a contempt application pursuant to Rule 21-7.

The Appeal Court also reviewed the provisions of the Business Corporations Act under which the company had been restrained and found that the company’s use of corporate funds did not constitute a breach.

The Appeal Court reversed all orders made by the chambers judge and ordered that the corporate funds paid into court be returned to the company, with costs of the breach application and the appeal awarded to the company.

The unusual aspect of this case is that what should have been a straight-forward contempt application, frequently brought in family law cases, became convoluted because counsel incorrectly sought a declaration and the judge followed along.

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 this week, where 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.
_______________________________
D-147-18

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 student loan debt, but I speculate that he was supporting himself on student loans over a lengthy period of time.

Death of A Spouse Precludes Wife’s Property Claim Under the Family Law Act

GEO#1Calvin Livingston and Vicky Gibbons were common law spouses. Calvin died in February of 2016 leaving his estate, comprised of a modest home in Campbell River, British Columbia, valued at approximately $350,000 to his son, Graeme Livingston. However, Ms. Gibbons did receive $350,000 as the beneficiary of her spouse’s life insurance policy and a monthly pension of $3,000 per month.

Ms. Gibbons brought an application to obtain a portion of her deceased husband’s estate pursuant to the Wills, Estates and Succession Act, S.B.C. 2009, c. 13. In January 2018 the parties agreed to mediate their dispute and successfully negotiated a settlement whereby she agreed to vacate the home left to Graeme, pay him the sum of $2,500 and he would pay her the sum of $50,000 in full and final settlement of her claim.

Unfortunately, Ms. Gibbons later refused to vacate the home, retained a new lawyer, and amended her original court action to claim relief under the Family Law Act, alleging that the mediated agreement was unfair, inequitable, and ought to be set aside.

Her new claim was founded on two grounds: the first was that the agreement was only meant to resolve her claim under the wills variation legislation, and not her claim as a spouse under the Family Law Act, and secondly, that she was in a vulnerable, fragile state when she signed the agreement.

Both arguments were rejected by the British Columbia Supreme Court judge, with the court finding that the Family Law Act only applied to living spouses. Ms. Gibbons appealed, arguing that the death of her spouse was a “separation” under the Family Law Act and thus entitled her to relief as a spouse to her husband’s property. She also argued that the court should have set aside the agreement.

The Appeal Court reviewed the definition of “spouse” in the Family Law Act and agreed that it contemplated living persons. The Court also considered the word “separation” in the Act and again found that the language of the statue on its face required living spouses.

With respect to her argument that the agreement was unfair, Ms. Gibbons cited Rick v. Brandsema 2009 SCC 10, with the Court noting that her counsel had not relied on this authority, but argued commercial agreement cases at the summary trial, thus the underpinning of her appeal was brought on a new footing. Her submission was “not so much that the judge erred in dismissing her argument but, rather, that the case should now be decided on correct principles, regardless of how it was argued below.”

The Appeal Court referred to Owners of the “Tasmania” v. Owners of the “City of Corinth” (1889) 15 AC 223 at 225 (U.K.H.L.), cited in S.S. “Tordenskjold” v. S.S. “Euphemia” (1908), [1909] 41 S.C.R. 154 at 163‑164, and Baker v. British Columbia Insurance Co., [1993] 76 B.C.L.R. (2d) 367 at para. 15 (C.A.) [Baker], where courts are directed to “most jealously scrutinize” a view of the facts of a case suggested for the first time on appeal.

The Court was satisfied that the amended pleadings were broad enough to permit a review of the summary trial decision under the Rick v. Brandsema test for varying or setting aside settlement agreements.

Ultimately the Appeal Court determined that taking into account what she received outside of her deceased husband’s estate and the terms of the mediated agreement, the result was not far off her legal entitlements under the estate legislation.

It is unfortunate that Ms. Gibbons was not satisfied with what she received and did not understand that her spouse’s son also had an entitlement under his father’s estate. With a mediation, a summary trial, and an appeal, she likely spent a large portion of her inheritance, all for naught. Query why counsel sought to persuade the courts that the death of a spouse constituted a separation for the purposes of the Family Law Act when that has never been part of the law in British Columbia and was bound to fail. (Gibbons v. Livingston 2018 BCCA 443)

Lawdiva aka Georgialee Lang

Guest Post: Canada is Poised to Punt Real Family Law Reform

Canada is not poised to make meaningful change to its divorce and custody laws. As I mentioned here, it’s poised only to make trivial changes to the wording of existing statutes. And Barbara Kay isn’t happy about it (National Post Millennial, 11/23/18).

Kay of course has for many years been a redoubtable champion of equal parenting, so, when the Canadian Parliament once again simply punts the issue, she’s right to complain. So is everyone else in the country. After all, as Kay points out, it’s now been 20 years since the task force specifically appointed to make recommendations for reform did so. And in those 20 years, essentially nothing has been done.

Everyone agrees that government reforms on divorce law were necessary, as Canada’s Divorce Act has not been re-evaluated since it was passed in 1985.
Yes, you’d think that, with something as important as child well-being hanging in the balance, the august members of Parliament might want to actually do something. And they’re about to. They’re about to change the words “custody and access” to “decision-making responsibility” and “parenting time.” Just think: it only took them 20 years to accomplish that. Such a flurry of activity positively makes the head spin.

If they’d only take about 10 minutes and read Kay’s article, they’d have everything they need to make the right decisions about family law reform.
Shared parenting should be the default for custody
The elephant will only go away with a presumption in law of Shared Parenting – also known as Equal Parenting – as the default for custody (rebuttable in cases of abuse).

Shared/Equal Parenting means children spend literally equal, or near-equal time with each parent, unless a parent is a demonstrable risk to the child…

Winner-takes-all mentality around divorce litigation.

In family court litigation, mothers are overwhelmingly favoured to win sole custody. Everyone knows of this court advantage, which motivates women to refuse compromise and motivates fathers (especially those without the deep pockets to take an odds-against chance) to pre-concede defeat (i.e. they make this decision “in the shadow of the court”), and become visitors in their children’s lives.
That last is a vital point. Opponents of shared parenting occasionally claim that fathers don’t really want equal time with their kids post-divorce. They point to the fact that the huge majority of child custody cases are agreed to by the parents. “If Dad wanted equal custody, why isn’t that reflected in his agreement?” is the argument.

Kay’s point is the answer. Family judges’ pro-mother bias is well known and the great majority of fathers don’t have the money to fight out the matter in court, particularly since they figure the outcome will be the same whether they do or don’t. That commonsense approach by fathers is backed up by the still-important study by Maccoby and Mnookin called “Dividing the Child.” In it they found that, even when fathers request custody, they only get it in about 9% of cases.

And of course,
Canadians support shared parenting.

Every credible government survey on this issue, going back to 2000, indicates that Canadians strongly support Shared Parenting as the fairest and most child-friendly model. A 2017 Nanos poll indicated very firm support for Shared Parenting, regardless of age, gender, region and political affiliation.
That support generally runs between 70% and 80%, but Parliament casually ignores the will of the Canadian people.

And of course it ignores the science on shared parenting.

In a 2012 article published in The American Journal of Family Therapy, Kruk offers 16 evidence-supported Arguments for an Equal Parenting Responsibility Presumption in Contested Child Custody. Amongst them, Kruk shows how and why equal parenting:
preserves children’s relationships with both parents and vice-versa (about 30% of children have no contact with their non-custodial fathers);
reduces feelings of insecurity and rejection in children;
decreases parental conflict (40% of first-time incidence of family violence occurs after an adversarial separation);
respects children’s wishes (70% of children of divorce approve equal parenting, as do 93% of the 8% of children raised in ESP homes);
reduces incidence of ignorance- or bias-based judicial decisions;
reduces the risk of parental alienation that can and does flourish under sole custody conditions;
guarantees what should be children’s and parents’ Charter rights to each other’s love and companionship, as enunciated in the United Nations declaration regarding the rights of children.
Many other social scientists have studied this subject in depth, and the evidence is in: Shared Parenting by fit parents promotes the best outcomes in child well-being measured on multiple axes.
A meta-study including findings by 110 experts concludes that Shared Parenting is the best model, even for toddlers and infants, and even in instances where there is high conflict between parents (but no abuse of children by either).
But Parliament isn’t interested. What interests the members isn’t children’s well-being, it’s, well, self-interest.

This [winner-take-all] model is supported by two groups, both of whom are stakeholders and not disinterested: most family law lawyers who benefit financially from litigation, and feminist groups who frankly advocate for the paradigm that tends to reward women, in the belief that fathers are less important to children than mothers.

I must quibble with that last statement. Sole custody doesn’t “reward” women; far from it. It limits their earning ability and increases their stress. With so much of their time spent on childcare, they’re unable to save as much for retirement or advance as much in their careers. It keeps them financially dependent on their ex. The only “reward” they receive is the obligation of 80-100% of the childcare responsibility. All else is negative.

Here in the U.S., the move toward sanity in family courts is very much under way. Canada does many things that can be considered better than what we do in the U.S. Sadly, family law and practice aren’t among them.

GUEST AUTHOR: ROBERT FRANKLIN, BOARD MEMBER OF THE NATIONAL PARENTS ORGANIZATION (USA), RETIRED ATTORNEY, RESIDES IN TEXAS

When Does Bad Litigation Conduct Constitute Family Violence?

GeorgiaLeeLang025Family law litigation is not for the faint of heart. But are delays in financial disclosure, character assassination, including allegations of parental alienation, financial mismanagement, manipulation of mental health professionals, perjury, and a general failure to act in good faith, sufficient to persuade a judge to award special costs against an allegedly unruly litigant or vary a final order regarding the division of family property?

In K.M.H. v. P.S.W. 2018 BCSC 2022 the Court said “no”, in circumstances where the applicant gave as good as she got. While the court acknowledged that the litigation had been both lengthy and difficult, the court said it would not be fair to place the blame exclusively on her spouse and that both were responsible for the unpleasant circumstances. The Court also commented that each of the parties complained of stress related to the litigation yet neither party seemed capable of extricating themselves from the fray.

The wife’s complaint that the husband had failed to provide full disclosure was also rejected by the Court who reviewed the case of M.W.B. v. A.R.B. 2013 BCSC 885 where following a trial the parties engaged in four additional hearings all driven by the wife’s refusal to settle the order and resolve costs in a reasonable fashion and her interference with her spouse’s parenting time and the ordered sale of a commercial property. The events post-trial contributed to a significant medical issue for the spouse.

The Court held:

“I find the Respondent’s litigation conduct, related both to the selling of the commercial property and to parenting arrangements, considered in their totality, is a form of emotional abuse and harassment that constitute a form of family violence.

The Respondent’s conduct and needless litigation has forced the Claimant to incur litigation expenses, damaging his financial well-being and health. This hindered his capacity to preserve parenting time with the children. Litigation has used up much of his emotional and financial resources.”

Similarly, in CLM v. MJS 2017 BCSC 799 the Court found that litigation conduct constituted family violence where the wife did not cooperate with the sale of the family home, did not abide by court orders, failed to provide full financial disclosure, and was generally obstructionist throughout the litigation. Her conduct forced the Respondent to incur unnecessary litigation expenses and consumed his emotional resources to the disadvantage of his children.

The question remains “why do otherwise good people treat their spouses in such an abominable way?” Psychologists tell us that the more hostile the divorce the harder it is for individuals to move on with their lives and that some spouses are unable to let go of the conflict even a decade after their divorce. Therapy and counselling is the only way to let it all go.

Lawdiva aka Georgialee Lang

To Tape or Not to Tape? Surreptitious Recordings in Custody Cases

GeorgiaLeeLang016To tape or not to tape? That is the question. In hard-fought custody cases, litigants often have an uncontrollable urge to tape record conversations between themselves and their former partners, or conversations of their children, all in the hope that the evidence gathered will assist in their goal for custody or expanded parenting time.

The problem that arises is that sometimes tape recordings are relevant and probative and often the only way to effectively buttress a party’s claims, but equally as often, judges will rule surreptitious recordings inadmissible and criticize the parent who records. The dilemma is when to know the difference.

In Turk v. Turk 2015 ONSC 3165 the court considered an affidavit filed by Mr. Turk that contained transcripts of surreptitious recordings of conversations between his children and their mother, taken on the children’s cell phones provided to them by Mr. Turk. Mr. Turk argued that the tapes were admissible to show that his ex’s household was unstable and that she subjected the children to emotional abuse.

The court found that the recordings were inadmissible for the following reasons:

1. Sound policy reasons suggest that surreptitious recordings are the antithesis of trust and security between family members;
2. Their reliability is difficult to confirm;
3. Often the probative value of recordings is outweighed by their prejudicial effect, particularly considering the age of the Turk children, who were 21 years and 17 years old;
4. As the evidence arises from a staged event, its reliability and prejudicial effect on the administration of justice supersedes its probative value.

In a recent case from the United Kingdom, a father and his new spouse sewed “bugs” into his young daughter’s blazer and rain coat in order to record her conversations with social workers appointed to consider a change of custody from her father to her mother. On other occasions, the father would leave an Ipad or IPhone running when his daughter and the social worker met in his home.

Over a period of 18 months the father produced 100 pages of transcribed conversations in an effort to resist a change in the child’s residence to her mother’s.

Ultimately, the court ordered a transfer of custody, finding that the recording of the girl’s conversations was indicative of the father’s inability to meet the child’s emotional needs, albeit the recordings failed to “produce a single piece of useful information” and had damaged relationships between the adults in the child’s life.

Ontario’s Court of Appeal weighed in on the issue of surreptitious recordings in
Sordi v. Sordi 2011 ONCA 665 focusing on the balancing of sound policy to discourage recordings with the probative value of the evidence.

In a case where recordings were both relevant and probative, Justice Bell found that the evidence from the recordings was compelling and admissible in the context of a parental alienation case where the recordings between the mother and her children provided support for the allegations. The odious nature of secret recordings was trumped by the cogent evidence of alienation. Reddick v. Reddick (1997) OJ No. 2497

Family law lawyers are frequently called upon to determine whether recordings should be made and then, whether they should be disclosed, considering whether they are relevant to the issues before the court. This is never a decision to be left to a client.

Lawdiva aka Georgialee Lang