KEEPING IT OUT OF COURT: Dispute Resolution for the Family Business

A. INTRODUCTION

A source of great pride for many families is their multi-generational family business, a complex, dynamic organism that combines familial and business components. Unfortunately, the family business can slide into dysfunction when issues arise that would be foreign to a business where sons, daughters, wives, and husbands are uninterested bystanders. 

Conflict in a family business takes many forms: family members who are not capable of exercising the function assigned to them, cast in roles that are far above their pay grade; the scarcity of resources during the early development of a family business can create pressure and conflict; succession issues where family members compete for control; the impact of sibling rivalry; the inability of a founder to take the business to the next level; the death of a founder; the issues that arise when an aging founder refuses to relinquish his or her position; and finally, the divorce or separation of founding members.

In this series of articles I will review conflict resolution methods that are ideally suited to assist in family business disputes, focusing on three schools of mediation: transformative, facilitative, and evaluative. I will highlight mediation/arbitration, a process that encourages family members to be personally responsible for their business success while providing a final solution where compromise is not achievable, and finally, arbitration, a process akin to fast-track litigation with the benefits of privacy and reduced costs. 

B. MEDIATION

Mediation is a procedure in which an impartial mediator facilitates communication between the parties concerning matters in dispute, and explores the possible solutions to promote understanding and settlement. The mediator assists the parties in coming to a resolution by formulating a mediation structure appropriate to the parties, imposing a format and rules that optimize effective communication, and helping brainstorm creative solutions. It is voluntary and non-adversarial. 

C. ASPECTS OF MEDIATION: FACILITATION, EVALUATION, TRANSFORMATION

 Mediation is a useful dispute resolution tool because of certain features of the process, namely facilitation, evaluation, and the transformative opportunities for the parties. Although in earlier decades, mediation styles (whether facilitative, evaluative, or transformative) were more distinct, today mediation often incorporates all of these elements to some extent, tailoring the process to the individual needs of each of the parties.

D. FACILITATIVE

Facilitative mediation began in the 1970’s and was the only type of mediation taught and practiced in the early days. A facilitative mediator would begin by outlining the process and rely on joint sessions, typically without counsel present. Mediation techniques such as asking questions, validating a party’s view of an issue, focusing on interests as opposed to rights, and declining to recommend outcomes to the parties were the hallmarks of this style of mediation. Facilitative mediators in the business sphere were not necessarily lawyers and included business consultants, counselors, and accountants.  Mediation purists believe this approach is the only authentic way to mediate.

E. EVALUATIVE

In evaluative mediation the mediator assists the parties by pointing out the weaknesses in their case and opining on what a judge may do if their case were to go to court. They are focused on strict legal rights rather than needs or interests. Their goal is to promote a legally fair solution. Often evaluative mediators will practice “shuttle diplomacy”, where the parties and their counsel are in separate rooms, with the mediator moving back and forth between the parties, presenting the opposing party’s viewpoint and settlement offers. This style of mediation introduces the parties to a cost/benefit analysis. The question asked is: Is it worth spending tens of thousands of dollars at a trial, only to find out that your position is not sustainable in law? Evaluative mediators are typically lawyers who are well versed in the law. 

F. TRANSFORMATIVE

Transformative mediation was introduced in the mid-1990’s by authors Joseph Folger and Robert Bush in their book, “The Promise of Mediation”. It is a system based on empowerment and recognition of the interests of each party. It theorizes that mediation participants and their relationships with one another or other persons can be transformed by mediation. 

For example, in cases where relationships have failed because the parties couldn’t communicate effectively, or felt like they were disrespected, misunderstood, or ignored during the relationship, the mediation format can be tailored to teach the parties how to resolve these problems. In such mediations, using communication tools like ensuring only one party talks at a time, or asking parties to repeat what the other was saying, can help parties develop communication skills that improve not just their relationship, but many facets of their lives. In such cases, all sessions are joint in order to promote the recognition of one another. The parties themselves structure the process and control the outcomes. This style of mediation resembles facilitative mediation in many respects.

Lawdiva aka Georgialee Lang

Family Arbitration: Jurisdiction and Self-Reps

 With the September 2020 amendments to British Columbia’s Family Law Act, family arbitration provisions that were once found in the Arbitration Act RSBC 1996 c. 55 are now incorporated into B.C.’s family law legislation and judicial decisions under the new provisions are eagerly welcomed by family law counsel and arbitrators.

The case of Marchetti v. Lane 2021 BCSC 1259 provides guidance to counsel on two important issues. The first is the jurisdiction of a family arbitrator and the second is whether special rules apply to self-represented participants in arbitration.

Relevant facts

The parties were married for three years before they separated and had a child who was about to enter kindergarten. The parties engaged an arbitrator to determine which kindergarten the child should attend when the parents could not agree. They entered into a consent order and agreement that indicated that the arbitration would be completed in one day, and the arbitrator would select the kindergarten for their child based on affidavits, written submissions, and oral submissions.

The arbitrator selected a kindergarten and made an award, but also provided a backup kindergarten if for any reason the child would not be accepted at the first-choice kindergarten. The arbitrator’s award favoured the husband’s choice of schools. Unfortunately, the arbitrator’s award could not be implemented at all, as neither kindergarten identified in the award could accommodate the parties’ child.

The parties then set up a further arbitration hearing after the child’s mother filed an application for a variation of the first award based on a material change of circumstances pursuant to s. 47 of the Family Law Act. At this point the child’s father advised he would now be self-represented. The arbitrator advised him in writing of the process, what he was required to file in response to his wife’s material, and that again, the hearing would be based on written material and 15 minutes of oral submissions. The hearing took place and a second award was made; this time the school suggested by the child’s mother was selected.

The father brought an application to the court asking the court to invalidate the second award and enforce the first award. He relied on ss. 19 (1) and 19.18 (1) (d) and (e) of the Family Law Act:

Changing or setting aside determinations

19 (1) On application by a party to a determination made by a parenting coordinator, the court may change or set aside the determination if satisfied that the parenting coordinator

(a) acted outside his or her authority, or(b) made an error of law or of mixed law and fact.

Orders respecting arbitration awards

19.18 (1) On application by a party, the Supreme Court may change or set aside an arbitration award if satisfied that any of the following apply:

(a) there are justifiable doubts as to the arbitrator’s independence or impartiality;

(b) a party was not provided a reasonable opportunity to be heard respecting theaward;

(c) the award was obtained by fraud or duress;

(d) the award deals with a dispute not falling within the terms of the arbitrationagreement or contains a decision on a matter that is beyond the scope of thearbitration agreement;

(e) the arbitrator acted outside the arbitrator’s authority.

Jurisdictional issue

The father argued that the arbitrator had exceeded her jurisdiction in making the second award on the following grounds:

-It was outside the arbitrator’s jurisdiction to issue an interim order about a matter that had been finally decided;

-The arbitrator had no jurisdiction to change her final and binding decision;

-Any continuing jurisdiction the arbitrator had only arose under s. 19.15 of the Family Law Act and she did not make a correction or give an interpretation of her first award;

-The first award was final and binding on the parties subject to the right of appeal pursuant to s. 19.19 of the Family Law Act or on application to the Supreme Court pursuant to s. 19.18 of the Family Law Act.

The court found that the arbitrator did not exceed her jurisdiction in making the second award, noting that a jurisdictional issue may arise where an initial award turns out to have been based on inaccurate or incomplete facts, citing Ford Motor Company of Canada Limited v. Sherriff 2012 BCSC891, where an arbitrator corrected an initial award by issuing supplemental reasons based on new evidence.

The court held that in that case the arbitrator had committed arbitral error. However, the arbitrator in this case did not correct her initial award based on new evidence; she entertained a variation of the award based on a material change of circumstances which was entirely legitimate.

The court also found that the second arbitration hearing fell within the parameters of the parties’ agreement to arbitrate while the matter remained extant. The court acknowledged that there may come a point where an arbitrator loses jurisdiction over a matter in respect of a variation but found it had not occurred in this case.

Self-represented participant in arbitration

The father submitted that the second award be vacated based on s. 19.18 (b) of the Family Law Act which permits an award to be set aside on the basis that a party was denied a reasonable opportunity to be heard, a provision that mirrors the tenets of natural justice. In the arbitral context natural justice is satisfied where the arbitrator acts in good faith; exercises procedural fairness; fairly listens to both sides; and gives a fair opportunity to each party to make representations (0927613 B.C. Ltd. v. 0941187 B.C. Ltd. 2015 BCCA 457).

The Court of Appeal also opined that “there are no special rules of procedure for a self-represented party in arbitration beyond the basic procedural requirements for any arbitration” and identified the freedom that the parties to an arbitration have to enumerate the disputes in issue, choose the person to resolve their dispute, and agree on the rules and process.

The father argued that he had not been given the opportunity to oppose the second hearing; that he had not been allowed sufficient time to respond to the application; that the arbitrator had held an ex parte hearing with his wife’s lawyer regarding procedure; and that 15 minutes for oral submissions was insufficient.

The court dismissed his entire application, noting there was no evidence that an ex parte hearing had been conducted and concluded with the following significant points:

-Both parties had characterized the school issue as urgent;

-Both parties agreed that the first hearing would resemble a chambers hearing;

-The first and second hearings were only one month apart;

-The second hearing involved the same legal issues as the first, with the addition of a material change in circumstances, and the facts remained substantially the same.

Georgialee A. Lang is a lawyer and arbitrator in Vancouver and Kelowna, B.C. Lang has practised family law for 32 years, recently focusing primarily on arbitration and appellate litigation. Lang is a writer, speaker and media commentator whose publications range from the Huffington Post to the National Post and The Lawyer’s Daily. For fun she pens a blog (lawdiva.wordpress.com). Connect with her at georgialeelang.com or on Twitter. This article first appeared in The Lawyer’s Daily, a division of LexisNexis Canada.

Oh, What a Tangled Web We Weave When First We Practice to Deceive

Mehran Taherkhani and Rosa Donna Este were married in July 2004. Shortly before their marriage they entered into a handwritten agreement that provided that all property owned by each of them would remain the separate property of the owner, and that any increases in value would also be excluded from division between them.

In April 2006 they formalized their earlier agreement with the execution of a marriage agreement. The parties separated in March 2013. A Notice of Family Claim was filed by Taherkhani in May 2013 wherein he sought to set aside the marriage agreement and obtain orders dividing the family property, which he said included three properties in West Vancouver and a $3-million bank account, all owned by his wife. Este answered her husband’s claim with the assertion that the West Vancouver properties were beneficially owned by her mother, Mina Esteghamat-Ardakani.

In support of her claim Este produced three Declarations of Trust, which confirmed her assertions about ownership. In discovery she testified that the bank account belonged to her mother.

In May 2014 the parties settled the action and consented to terms which included Este paying $70,000 to her husband in full and final settlement of all his claims.What came next turned this action from a sprint into a marathon, and launched the parties into complex litigation. 

Nine months after the consent order, Este brought a lawsuit against her mother and her mother’s partner, Craig Blackburn, wherein she took the position that she was in fact the beneficial owner of the three West Vancouver properties and $3.4 million in a bank account and sought their return. She alleged that her mother counselled and encouraged her to hide the true ownership to deprive her ex-husband of his claims. 

Esteghamat-Ardakani and Blackburn denied the claims and brought an application asking the court to dismiss Este’s action as an abuse of process. The court granted the application and found that Este had perpetrated a fraud against her husband and the court. The abuse of process arguments had their foundation in Este’s evidence against her mother and Blackburn, namely, that the trust declarations were forgeries that were back-dated; that she gave false evidence in her discovery; and that her sworn Property and Financial Statement (Form 8) was fraudulent. In Taherkhani v. Este 2021 BCSC 1339, the court summarized Este’s actions:

“In sum, in the divorce proceedings, the plaintiff chose to take steps to defeat her thenhusband’s legal rights by representing falsely, including in Court documents and under oath,the properties and funds she now claims she rightfully owns. She now wishes to perfect herfraud in the divorce proceedings — a fraud designed to cheat financially her then husbandengaging the past unwitting help of officers and a judge of the Court.” (Emphasis added.)

The court found that Este now disavowed her past false evidence because it no longer served her purposes, and held that the law does not allow a party to pursue inconsistent rights.

What followed was a series of appeals and applications. Este appealed the order dismissing her action. Taherkhani applied to be added as a party to the appeal, which was granted. He then brought an application in the lower court for an order that the family law consent order be quashed due to fraud. He also applied to have fresh evidence admitted in the Court of Appeal in the form of the lower court order rescinding the fraudulent consent order.

Este’s appeal was dismissed in July 2018. The Appeal Court also addressed and contemplated that the family action would recommence with Esteghamat-Ardakani and Blackburn added as parties. To that end, the Appeal Court requested that Esteghamat-Ardakani and Blackburn provide undertakings that they would not take the position that Taherkhani was in any way estopped by the appeal order from pursuing whatever rights he may have in the trial court, an undertaking they accepted

.Este’s application for leave to appeal to the Supreme Court of Canada was also dismissed. Taherkhani then brought an application in the trial court to add Esteghamat-Ardakani and Blackburn as parties, and an order that he be permitted to amend his pleadings, applications that were mightily resisted by them. Taherkhani also filed a new action alleging a conspiracy involving Este and Esteghamat-Ardakani and Blackburn. 

Esteghamat-Ardakani and Blackburn offered the following arguments in their effort to defend the applications:

That they were not necessary and property parties to the family law action;

That the pleadings should be struck as there is no action for constructive fraudulentmisrepresentation;

That civil conspiracy claims cannot be made in the context of a family law matter;

That the order rescinding the family consent order was improperly obtained;

That the British Columbia Supreme Court lacked jurisdiction;

That the procedural orders sought by Taherkhani were an abuse of process; and

That Taherkhani’s claims were statute-barred.

The court reviewed each in turn and provided a comprehensive analysis of each issue, ultimately granting Taherkhani’s applications.

However, Esteghamat-Ardakani and Blackburn appealed the procedural orders and Taherkhani brought an application in the Appeal Court for a determination that Esteghamat-Ardakani and Blackburn were in contempt of court for breaching the undertakings they gave in the earlier appeal hearing, and he sought special costs.

Taherkhani argued that Esteghamat-Ardakani and Blackburn’s submissions in the trial court undermined their undertakings to the Appeal Court. His application required counsel for Esteghamat-Ardakani and Blackburn to be added as respondents and to retain counsel for themselves.The Appeal Court disagreed, saying the undertaking was simply a representation to the court that they would not try to use the earlier appeal order to argue that Taherkhani was precluded from making a direct claim against them. The single-judge court also considered whether the breach of an undertaking by a litigant could attract a finding of contempt and found that it could, but stated that Taherkhani ought to have raised the breach argument in the lower court. 

Taherkhani’s application was dismissed and the court awarded special costs to Esteghamat-Ardakani and Blackburn and their counsel. Taherkhani appealed the order to a full panel of the Appeal Court and his appeal was also dismissed.

With their multiple skirmishes in the appeal and trial courts, and the COVID shutdowns, it is doubtful that the merits of Taherkhani’s claims have yet been heard, and if this litigation history is any indication of how hard-fought a trial will be, there is much more to come.

Sir Walter Scott, poet, captured the essence of deceit in his poem, Marmion, published in 1808, with the well-known phrase: “Oh, what a tangled web we weave, When first we practise to deceive!” Meaning when one is dishonest the resulting complications are likely to spin out of control — an apt description of this litigation.

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

A PARENT’S WORST NIGHTMARE: INTERNATIONAL CHILD ABDUCTION

  

Child abduction is the worst kind of child abuse. To wrongfully remove a child from his or her primary parent is the ultimate weapon used by a warring parent. This truism is amply displayed in the case of Y.Q. v. J.D. 2021 BCSC  943 and 2021 BCSC 1185.  While the facts in this case are not unusual, as subterfuge is typically a feature of these cases, and the law regarding jurisdictional disputes is well-established, the young girl in this case, aged four, was spirited away from her home in Richmond, British Columbia by her father who, was a commercial pilot for Sichuan Air. He flew her and her maternal grandmother to China in October of 2019. The child’s mother consented to the trip, assured by the fact that a return ticket was secured for her daughter’s return two months later, and her mother accompanied the child. But the child was not returned and the heartache began.

The parties met through their employment, as Ms. Q. was a flight attendant for Sichuan Air. They fell in love and agreed to move to British Columbia where Mr. D. would seek employment with Air Canada and Ms. Q would attend university. In October 2015 the parties purchased a condo in Richmond, BC  and married in December 2015. Mr. D. spent three to four days twice a month in Richmond and continued to fly with the Chinese airline.

Six months later their daughter A.D. was born, and Ms. Q.’s mother travelled from China to BC to assist Ms. Q. with her care. A.D.’s maternal grandmother travelled to Canada on a visitor’s visa which required her to return to China twice a year. On those occasions she would take A.D. with her to China and often Ms. Q. would travel with them. When Mr. D. was on layovers in Vancouver and on his vacation days he participated in his daughter’s care and took her to daycare. 

In order to facilitate A.D.’s travel to China Mr. D. deposed that he and his wife attended at the Chinese Consulate in Vancouver and relinquished A.D.’s Canadian citizenship in favour of China. Ms. Q denied this suggestion.

The parties disagreed as to the date they believed their marriage was at an end. Ms. Q. said it was over in June 2019 while Mr. D. said that they separated in late 2019 or early 2020.

Upon arriving in China A.D. lived with her maternal grandmother in her home but after the child was diagnosed with pneumonia, resulting in her hospitalization, Mr. D. and A.D. resided in his home with his parents. After December 2019 A.D.’s grandmother no longer had any contact with her granddaughter.

In November 2019 Mr. D. had a layover in Vancouver and registered a spousal protection lien against the condo in Richmond, which was in Ms. Q.’s name.  He also insisted that Ms. Q. provide him with an enduring power of attorney in his favour, but she declined. By Spring 2020 the covid pandemic shut down international borders and the conflict between the parties escalated. Mr. D. refused to facilitate video conferencing between mother and child and accused Ms. Q. of infidelity. After significant pressure from Mr. D., Ms. Q. admitted to infidelity, although untrue, in order to appease her husband and gain access to her daughter.

Mr. D. then began “negotiating” with his wife by demanding that she agree to have his name tattooed on her body and that she have her vagina and ovaries removed. The chambers judge found that the request for the tattoo was proven but the radical surgery was not, despite the evidence of a recorded phone call between the parties where Mr. D. allegedly said:

“If you look for a man, the man won’t want you, you’ll age very fast, because you wouldn’t have any sexual functions. You can donate vagina too; ovaries can be donated too. You can be a normal person, everything you do would be to look after [A.D.] and then I will support the family because I should, you will take care of the home and child because you should.”

Or you will never see [A.D.] again for the rest of your life. Won’t contact, hide very well.”

In May 2020 Mr. D. commenced a court action in China seeking alimony, division of Ms. Q.’s property, and damages for Ms. Q.’s alleged marital indiscretions, stating that Ms. Q. resided in China. He also obtained a residency card for his daughter in China by falsely claiming China was her residence.

In July 2020 Ms. Q. filed proceedings in British Columbia, followed by Mr. D.’s filing of a Jurisdictional Response, challenging the court’s jurisdiction. The BC court reviewed the framework for a jurisdictional dispute and identified two distinct elements: territorial competence and forum conveniens, pointing out that the former invokes a consideration of whether the court can hear the dispute and the latter, whether the court should hear the dispute. The court referred to the Court Jurisdiction and Proceedings Transfer Act and the provisions of the Family Law Act and the Divorce Act.

The court undertook a detailed analysis of the applicable law, which ought to be a primer for counsel engaged in family law cases where the court’s jurisdiction is a primary issue.  The court made the following findings of fact:

  1. A.D.’s habitual residence was British Columbia as Ms. Q. did not consent to her permanent removal from Canada.
  2. While China considers the best interests of a child in a custody dispute they also introduce “fault” into the analysis, contrary to Canadian courts where the child’s best interests is the sole factor.
  3. Ms. D. had used A. D. as a negotiating chip in his dispute with his wife, behavior that constituted family violence.

The Court determined that British Columbia had jurisdiction over all aspects of the dispute between the parties, including custody, child support, spousal support, and property division.  In a separate decision (2021 BCSC 1185) the court made a variety of orders including:

  1. That the parties share joint guardianship and equal parenting responsibilities under s. 41 of the Family Law Act;
  2. That Mr. D. shall cooperate in renewing A.D.’s Canadian passport;
  3. That contact between A.D. and her maternal grandmother be reinstated;
  4. That Mr. D. shall facilitate a video chat between Ms. Q. and A.D. every evening at 8:30 pm.

It remains to be seen whether A.D. will ever be returned to Canada, as China is not a signatory to the Hague Convention on Child Abduction and is known to be averse to returning a child brought to China by a Chinese parent to his or her home country. Jeffrey Morley, a renowned American attorney who specializes in international child abduction confirms this, and this writer believes that Canada has the same problems with China regarding child abduction as the United States. Morley says that it does not appear that China will ever sign onto the Hague Convention and that Chinese courts do not recognize orders from foreign courts…a depressing reality for left-behind parents. 

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

A Word or Two about Rhetorical Excess in Family Litigation

Picture the following scenario: After a blistering argument between Mr. and Mrs. A. resulting in assault charges against Mr. A. and an order barring him from being within 500 metres of his wife and the family home, the children refuse to remain living with their mother, and the three of them, a girl of 13 and her brothers, ages 15 and 8, move in with their father in his one-bedroom basement apartment. Father and sons sleep on makeshift beds on the living room floor, with their sister in the bedroom. COVID has shut down the schools and father works from home. Father continues to pay all the expenses for the four-bedroom family home and his rental accommodation but realizes that the children are suffering from being cramped in his small apartment. The obvious solution is for father and children to move back into the family home and for mother to move out. Father has even arranged with the landlord to have mother take over his apartment, if she wishes.

The best interests of the children demand this remedy, but mother refuses and the court intervenes. Alsawwah v. Afifi 2020 ONSC 2883 provides the backdrop for lessons for family law counsel who fail to “see the forest for the trees” and continue to believe that aggressive advocacy is beneficial fo their clients.

Justice Marvin Kurz begins his tutorial with a quote from legendary American trial counsel Louis Nizer, who once said, “When a man points a finger at someone else, he should remember that four of his fingers are pointing at himself,” an aphorism that highlights the ubiquity of human foible that Justice Kurz suggests “aggressive” family law counsel “should take to heart.”

The discrete application brought by Mr. A. is for exclusive possession of the family home and nothing more. What Justice Kurz identified was affidavit material that was “unnecessary, excessive,distracting and unhelpful,” primarily from Mrs. A., but as is often the case, the applicant chose to respond in a similar fashion.

The facts reveal that the children’s departure from the family home was precipitated by a physical altercation between mother and her daughter, an event that led to the 13-year-old wielding a knife and threatening to commit suicide. Mother characterized the event in terms of her victimization and blamed the father as instigator of her daughter’s behaviour, claiming that he incited his daughter to violence.

The court was unable to sort out the precise truth of the parties’ differing versions of the event but noted that portions of the mother’s “explanation” lacked credibility and her silence with regards to her daughter’s suicide attempt was problematic.

Mrs. A. argued that the application was not “urgent” as required during COVID, and that the applicant failed to prove that a return to the family home was in the children’s best interests. She also pointed out the impact of the financial disparity between her and her spouse.

However, her most intense and incessant focus was on her husband’s “abuse and character,” albeit offering little detailed evidence of the alleged abuse, but heaping on pejorative allegations describing his conduct as “conniving (twice), malicious (eight times), cruel (four times), acting in bad faith (six times), with hidden motives (four times).” 

But there was more. She admitted certain facts alleged by the applicant but referred to her husband’s material as “fabricated” seventeen different times, including being “entirely fabricated.”She went on to state that he has “fabricated every statement in his motion materials to maliciousl ygain exclusive possession of the home and financially drain and abuse me.” Her denial of the father’s recitation of facts is “vehement.”

Justice Kurz remarked that the mother’s use of hyperbolic language to describe her husband so demonized him that “it is hard to see the objective truth hiding behind the thick gauze of denigration,” a fact that diminishes her credibility. Her allegations of financial abuse were quickly dispatched by the judge.

As may now be apparent to all, exclusive possession was granted to the father with an order that he provide certain funds to Mrs. A. to enable her to make the move. But the important takeaways from this judgment eclipse the trite law of exclusive occupancy.

The sage Justice Kurz offers the following “to the parties, their counsel, and the profession as a whole.” Family litigation is far too corrosive of once-loving relationships and far too soul-destroying for emotionally scarred litigants to be exacerbated by an unnecessary war of invective. His advice includes the following:

The role of family law lawyers is complicated and requires a balancing act of duties towards the client, the administration of justice and even the child before the court. Lawyers need to be rational counsel and not flame-throwing propagandists;

Evidence regarding moral failings is rarely relevant to the court;

A partner can be a terrible spouse, but a good parent;

Affidavits that read as argument are not persuasive and speak to careless drafting;

A lawyer’s letter, unless it contains an admission, is not evidence of anything, except that it was sent;

Facts win cases, not innuendo or bald allegations;

Relevance matters, collateral issues are irrelevant and counterproductive;

Counsel should always take the “moral high ground.”

To this I might add a few of my own pet peeves, including counsel who bring a motion for a discrete order, but refer in their application to every affidavit filed by their client, often numbering in excess of a dozen. A waste of time for counsel and the court, but no doubt a contribution to the firm’s photocopy lease. Similarly, I query why counsel would cite 20 cases when five or less covers it all.

Kudos to Justice Kurz for this treatise on advocacy for family law counsel.

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

THE EVER EXPANDING DEFINITION OF SPOUSAL RELATIONSHIPS

Who would have thought, even ten years ago, that courts would define a spousal relationship as including couples who occasionally spend the night together, each with their own home?  But the Ontario Court of Appeal in Climins v. Latner 2020 ONCA 554 did that, in the context of a lengthy dating relationship where the couple spent time together at a Muskoka summer cottage and vacationed in Florida together in the winter. 

But what was once just a slippery slope has rapidly transformed  into an icy cliff with the British Columbia Supreme Court’s decision in Han v. Dorje 2021 BCSC 939. The claimant, Ms. Han, conceded that her relationship with Mr. Dorje did not fit within a traditional view of marriage as she and he had never lived together as husband and wife. In fact, their “dating” relationship, if it could even be characterized as such, was comprised of only four occasions when they were together, two of them in a public setting, once privately, and a final occasion when Ms. Han informed Mr. Dorje that because of their private encounter, he was the father of her child.

Their conjugal relationship, which Ms. Has said began in January 2018, consisted of private text messages and emails. They rarely even spoke on the telephone. Ms. Han deposed that the reason for their unusual relationship was because of Mr. Dorje’s role as His Holiness, the high lama of the Karma Kagyu School of Tibetan Buddhism. The parties met in October 2016 when Ms. Han began a lengthy meditation at a monastery in New York with a view to becoming a Buddhist nun. Ms. Han became pregnant in October 2017, alleging a non-consensual sexual encounter. When she informed Mr. Dorje of her impending motherhood, he denied responsibility , but provided her with his email address and telephone number and advised her that he would send some money to her. 

The baby girl was born on June 19, 2018. Throughout 2018 Ms. Han received funds from Mr. Dorje totaling $770,000, and he once wrote to her: “Taking care of her and you are my duty for life.” Ms. Han deposed that they discussed living together and buying a home in Toronto,  and he purchased a condo for her in Richmond, but by January 2019 Ms. Han lost contact with Mr. Dorje. 

In July 2019 she brought a family law claim in Vancouver seeking child support, a declaration of parentage, and paternity testing. She did not claim spousal support in her initial claim, however, in April 2020 her counsel brought an application to amend her claim to plead a spousal relationship and seek spousal support. 

Mr. Dorje denied any romantic relationship, contrary to Ms. Han’s assertions that their single sexual encounter developed into a loving and affectionate relationship. 

Master Elwood granted Ms. Han’s application, permitting her to amend her claim. He identified the novel question of whether a secret online relationship that never moved into the physical world could be a marriage and determined that the question was worthy of answer by a trial judge. Several other legal propositions were cited by the Master:

  1. A party seeking to amend a pleading must show there is a reasonable cause of action and the threshold is low; 
  2. The applicant’s allegations of fact are assumed to be true for the purpose of the analysis;
  3. It is good practice for applicants who seek to amend their pleadings in family law cases to include a schedule of material facts on which they rely for the proposed amendment;
  4. Quoting from Mother 1 v. Solus Trust Company 2019 BCSC 200, the court stated that the “concept of a marriage-like relationship is elastic and difficult to define” and is “like sand running through one’s fingers”; 
  5. In determining whether a relationship is marriage-like, the courts have looked at “mutual” intent. 

Whether this case is resolved by trial or by settlement, the usual indicia of marriage-like relationships will mostly be answered in the negative. The parties did not live under the same roof; they had sexual relations only once;  they did not share domestic services; they did not share financial accounts; there was no interaction between them and friends or family; they did not socialize together; and finally, they did not hold themselves out to the world to be husband and wife. 

APPEAL COURT HOLDS THAT APPELLANT’S RELIGIOUS BELIEFS DO NOT CONSTITUTE MENTAL UNFITNESS

The Alberta Court of Appeal allowed the appeal of a father who had come to court seeking an increased parenting schedule but was rebuffed by the chambers judge who criticized his religious views and suggested that he needed to address his mental fitness, two issues that were not raised by the children’s mother, or the experts that had been involved with the children and their parents. Volkman v. Volkman 2021 ABCA 151

The Reasons describe an initial interim order made on March 1, 2018 that provided the father with parenting time of one overnight per week and every second weekend. It also referred to the parties engaging in a Practice Note 7 Intervention with a specified expert, a process similar to a section 211 custody assessment in British Columbia. The Practice Note 7 expert recommended that the children attend counselling and made a referral, however, this counselling was delayed for a lack of funds. However, by November 2019 the expert sent a report to the court advising that a detailed parenting plan had been worked out, leaving only several unresolved issues, including the father’s request for increased parenting time. The doctor advised that he was closing the family’s file. 

In June 2020 the father brought an application for shared parenting on a weekly rotating schedule. He advised the court of the two-year counselling regime undertaken by the children on the expert’s recommendations, with their own dedicated counsellor, and requested an order that counselling continue.

His former wife brought a cross-application in July 2020 seeking to confirm the interim parenting order and obtain an order that the children’s father be barred from bring any further applications until the children’s counsellor had provided an opinion with respect to the father’s wish to increase his parenting time and the best interests of the children. She also alleged that the father spoke and behaved “inappropriately” to her and the children. 

On July 15, 2020 the court made a consent without prejudice order providing for shared weekly parenting throughout the summer months and ordered the children to continue their counselling.

The parties’ respective applications were heard on September 18, 2020 by which time the interim parenting schedule had been revived. At the commencement of the hearing the chambers judge advised the parties that she had read the material and then, before hearing a single word from counsel, said: 

“And the issue of whether the chambers judge – and that’s me – should be entertaining such an application without waiting for the court-ordered intervention to be completed is simple to me. No is the answer.”

She then stated: 

“Ms. Volkman, in her own affidavit, addresses this as to how – how is she supposed to prove blah, blah, blah? And my problem is I seriously question the premise that both parents are “fit, capable, and loving”. I have reviewed that premise as against the affidavit evidence, including his own, which relates to his deeds and to his mental health. And in saying so, it is his own words and deeds I refer to.”

 Not yet done, she criticized the father’s religious beliefs, which she said were “the foundation for the father’s attitude toward women and marriage”. This was followed by her question to father’s counsel: 

“…what do you say, having heard what would sound to your client, I’m sure, as a pretty harsh assessment?”

Not surprisingly, counsel was baffled, but steadfastly defended her client, who denied all the allegations. Counsel advised the court that no issues had been raised by the Practice Note 7 expert or the children’s counsellor. She then addressed the slur against the father’s faith and replied:

“These parents – these parties – if I could just say this – they met in church. They went to church. They had their children in church. They raised their children in that church. This is Monday morning remorse.”

Realizing where the judge was going with this, counsel advised that court that the parties had limited funds and could not afford an adjournment. She said:

“He only has so many benefits [to fund counselling]. Mom does not work. He is out of money. And I said: You’ll have to go ahead. He has approximately 35 percent of the time. You have indicated that he is no kind of parent. Obviously, he takes the kids camping. He does their homework. He makes them meals. He takes them to that awful church that the parties attended.” 

The judge ignored her entreaties and adjourned the hearing to a date four months hence; declared that she needed a psychiatric opinion on the father’s mental fitness, and seized herself of the matter. 

The father’s grounds of appeal focused on the judge’s unilateral imposition of orders that were neither sought nor plead; her misapprehension of the expert evidence; and a reasonable apprehension of bias. 

The appeal court allowed the appeal and remitted the matter back to the trial division, to go before a different judge. The court articulated the following conclusions:

  1. Subject to narrow exceptions, chambers judges are expected to confine themselves to the issues raised by the parties and not grant relief beyond what is claimed in the applications;
  2. The suggestion that the appellant was mentally unfit was not supported by the evidence. The father had enjoyed overnight parenting time for years and for four summers had shared week on/week off parenting. Presumably, the mother would not have consented to this parenting schedule if the father was not fit;
  3. The mother did not seek a reduction in parenting time, which would have been expected if the father was mentally unfit. The parties engaged with the professional expert for 17 months and he did not raise any issues regarding mental fitness or any other parenting concerns, neither did the children’s counsellor;
  4. While the chambers judge was critical of the appellant’s religious beliefs there was no evidence that his beliefs were a mental health issue. A difference in parenting styles does not make a parent mentally or otherwise unfit;
  5. The chambers judge misunderstood the roles of the expert, who had provided a report and closed his file, and the children’s counsellor, who was in a therapeutic relationship with the children and could not be expected to now become a forensic expert for the court.

This appeal was never a “close case”, or an attempt to interfere with the chambers judge’s inherent “discretion” in parenting matters. Most unfortunate is that the parties retained counsel, expended funds on a court hearing, and attended court, only to be compelled to bring an appeal and start over again. Fortunately, for this father, his counsel represented him well, and recognized the flaws in the judge’s orders. 

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

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

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

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

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

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

Lawdiva aka Georgialee Lang

Getting Divorced? See a Movie!

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

1. The War of the Roses

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

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

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

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

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

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

2. The First Wive’s Club

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

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

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

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

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

3. Mrs. Doubtfire

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

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

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

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

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

What are your favourites?

Lawdiva aka Georgialee Lang

High Conflict Custody Cases: Who Should Decide?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lawdiva aka Georgialee Lang