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.

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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

Is it a Loan or a Gift?

BarristerA classic problem that frequently occurs in family law disputes is whether the funds given to a married adult child are a gift or a loan. In Rivas v. Milionis 2018 ONCA 845 the Ontario Court of Appeal upheld a judge’s order that found that a mortgage placed by parents on their married daughter’s home did not secure a legitimate debt to the parents, as the monies advanced to the couple were a gift.

The couple purchased their family home in 2000, financing the purchase with a bank mortgage. In 2004 they encountered financial problems and the wife’s parents provided financial assistance and later agreed to pay off their mortgage, thus alleviating their tight financial circumstances. Discussions between the wife and her parents took place in 2004. The mortgage was discharged in February 2005 and in July 2005 the wife’s parents placed a new mortgage on the family home.

The husband testified that he was baffled when his wife’s parents asked them to execute a mortgage in their favour, but he realized that resisting their overture would cause conflict in the family, so he signed the mortgage documents. He also said that he cooperated to keep his wife happy and relied on her assurance that the house would always be theirs.

All was well until ten years later, when the couple separated and the wife’s parents sought to enforce their mortgage security. The court referred to the presumption of a resulting trust in a situation where there is a transfer of property from a parent to an adult child. The presumption is that property transferred from a parent to an adult child is not a gift but is held in trust by the adult child for his or her parent. Pecore v. Pecore, 2007 SCC 17. That presumption can, of course, be rebutted.

It is noteworthy that the court at first instance did not hear oral evidence, thus, none of the parties were cross-examined. The judge ruled:

“I do not accept Tasos’ [the wife’s father] evidence that the many transfers of money were loans. He stated that each of the transfers constituted a loan however, as noted earlier, there was no evidence that the parents at the very least told their daughter and son-in-law that those transfers were loans or that he communicated the loan terms of each transfer to them. I accept the husband’s evidence that the parents never suggested to him until June or July 2005 that the transfers made from 2000 to 2005 were loans.”

An important factor in the judge’s decision was the “mortgage-freedom” celebration that the parties testified about when the conventional mortgage was paid off by the wife’s parents in 2005.

Parents who generously support their adult children must understand that it is too late after the fact to suggest that monies provided are a loan, unless there is evidence, such as a promissory note, signed by the parties at the time of the advance of funds, with each party having independent legal advice.

Lawdiva aka Georgialee Lang

Disbarred BC Lawyer Refused License in Ontario

GEO_edited-1Malcolm Zoraik was on the losing end of a motor vehicle personal injury case in Victoria, but he didn’t take losing well. Instead, a week after the jury verdict he surreptitiously delivered a letter directed to the Sheriff at the Victoria Courthouse that alleged jury tampering and described circumstances that could only have been his case. His apparent goal was to have a mistrial declared and a second kick at the can.

The police investigation included an interview with Mr. Zoraik, who denied any involvement, but security video showed that he had delivered the letter and his fingerprint was found on the envelope. He was charged with public mischief, obstruction of justice, and fabrication of evidence, plead not guilty, and embarked on a 13-day trial asserting his innocence.

He was convicted of public mischief and fabrication of evidence and two days later signed an undertaking not to practice law in British Columbia. He was disbarred by the Law Society in May of 2013. He appealed his criminal convictions and the Law Society disbarment, losing his criminal appeal, but gaining a second hearing by the Law Society, who again revoked his license to practice in April of 2018.

In 2012 Mr. Zoraik moved to Ontario and enrolled at Osgoode Hall Law School and attained a Masters degree in business law. While in Ontario he filed for bankruptcy with debt of $267,000 including student loans. By 2014 he acquired an articling position in Ontario which was terminated by the Law Society, but upon his principal’s entreaties the articles were reinstated. The Law Society said that they didn’t need to assess Mr. Zoraik’s character.

In 2016 he applied for a license to practice law in Ontario, an application that was deferred until his BC appeals were completed, albeit the application was opposed by the Law Society of Ontario, alleging he lacked the required “good character” to become a member of the Ontario bar.

Remarkably, at the Ontario Law Society’s investigation, Mr. Zoraik refused to speak about his criminal convictions in Victoria. He was asked:

INVESTIGATOR: Okay. I’m just going back to something Shoshanna asked earlier. After the court out in B.C. to do with the letter, the letter that was there, Shoshanna asked how do you feel about it. Do you feel any – do you feel any remorse over your behaviour at that time?

And answered:

MR. ZORAIK: Like I said, I don’t want to get – get into that matter. Like as I said, I think it’s an indication of my level of respect and acceptance of – of the court’s verdict that – that I have kept myself to the utmost, you know, best behaviour. I haven’t had any – any issues before that or since that. So – so whatever lesson that was there for me, I’ve learned. That is it. So, you know, I hope you understand that it’s a legal proceeding, that I not going to go beyond that. I hope that – I hope you understand. (Inaudible). What more I can do. (Inaudible).

Despite multiple character witnesses, none of whom were aware of the details of his criminal convictions or the fact that his bankruptcy discharge was delayed by his Trustee; and a law firm prepared to hire him, the Law Society refused to admit him to the Ontario bar saying:

“The evidence he gave at his criminal trial was found to be evasive, not credible, tarnished, feigned or grasping. He was not believed…There is much speculation reflected in the multiple decisions arising from these matters as to why Mr. Zoraik, an experienced court interpreter and lawyer with 10 years’ standing, would engage is such criminal conduct.
No clear evidence was provided to us that shed any light on this point. We do not know what may have motivated or influenced Mr. Zoraik.”

In the absence of any explanation for his bizarre criminal behaviour and with no expression of remorse, the Law Society correctly determined that Mr. Zoraik would not have the privilege of practicing law in Ontario.

Lawdiva aka Georgialee Lang