Legal Nightmare Documented in B.C. Judge’s Reasons

BarristerWhat would your life look like if you were engaged in protracted family law litigation requiring more than fifty court appearances before 28 different Judges and Masters of the Court, over a period of 15 years?

“Hell on earth” would be an apt description for Laura Koch and Graham Underhill, the divorced parents of two children who have used the British Columbia Supreme Court as their public battleground since 1997.

In reviewing Mr. Justice Grove’s Reasons (2013 BCSC 1889), several aspects of Koch v. Underhill are noteworthy. Firstly, their legal rollercoaster began with an ex parte or without notice application to the court, wherein Ms. Koch received interim custody of the children who were ages three and one. A variety of restraining orders were also put in place barring Mr. Underhill from any activity that involved his wife and children.

In numerous posts I have decried the damage done when parents go to court behind their partner’s back to obtain life-changing orders, a practice that in my opinion usually leads to ugly, soul-destroying litigation, just like it did here.

As is typical in cases such as these, a succession of court hearings quickly followed the initial ex parte hearing, resulting in a more balanced order that saw the ex parte order set aside, the interim custody order deleted, and joint guardianship ordered.

Ten months later the parties agreed to share joint custody and equal parenting of their children, but by this time they had been back to court seven more times.

Another trigger that often leads to high-conflict in family law cases are allegations of mental illness and substance abuse. In 2002 the Koch v. Underhill litigation machine wound up again resulting in orders for production of psychiatric files, medical intervention, and a change in the equal parenting arrangement, with the children ordered to live primarily with their father.

The third significant factor in this case was Mr. Underhill’s longstanding refusal to provide proper financial disclosure, a situation that is often referred to as the “cancer of matrimonial litigation”.

Mr. Justice Groves remarked that despite Mr. Underhill’s “limited” disclosure it was apparent he was a very wealthy individual, which brings up the fourth element often found in marathon family law litigation, a litigant with “deep pockets”.

Through much of the litigation Mr. Underhill was represented by counsel, while Ms. Koch acted for herself, after her resources ran dry.

The Koch/Underhill saga is a textbook treatise that shows how warring spouses/parents can ruin their lives…and for what? To win? What about their children and the psychological damage they have inflicted on them? It is shameful…

Lawdiva aka Georgialee Lang

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6 thoughts on “Legal Nightmare Documented in B.C. Judge’s Reasons

  1. Yes it is horribly traumatic and shameful…. on the children and so many others involved.

    Maybe there is a more insidious issue of abuse, on Mr. Underhill’s part.

    Mr. Graham Dacre Underhill was charged with Assault Causing Bodily Harm on July 29 2011, on his third wife, breaking her nose and causing other injuries. He was convicted after a 5 day trial. http://nolet.com/tags/person/graham-dacre-underhill

    In R v Graham Dacre Underhill, amongst other things, Justice Moss stated in his reasons regarding Mr. Underhill “I find he displayed a rather callous, indifferent attitude towards his wife’s physical health.”

    Mr. Underhill’s Appeal was denied and so was his leave to Appeal to the BCCA.

    I fully agree that ex parte orders are a sure fire way to start a battle and increase tensions. However, when there is abuse sometimes it may be necessary because sometimes the abuse is hidden and does not come to light for years.

    It is very interesting that Mr. Underhill, who was represented by legal counsel, was fined for non production and never ever did produce what was Ordered but continued to seek Orders for production from the opposing party. Is there not some ethical requirements on his lawyers behalf, to not be complicit in such egregious behavior? Are officers of the court not required to comply with Orders and if their clients refuse, should they not remove themselves?

    There is more than physical abuse too. Legal abuse can happen if there is a power imbalance and used as another form of control by the abuser. In Justice Groves decision he even recognized “Mr. Underhill was unbelievable” and he also states;

    “What is of a particular note in this case and what I find on the evidence, is that Mr. Underhill undertook a pattern of behaviour with the clear intention and goal to ensure that the children did not spend time with their mother over the summer so as to relieve himself, in his mind, of the obligation to pay support and impose Ms. Koch an obligation to pay support.”…. “Mr. Underhill, who on issues related to money has no credibility and a proven pattern of misleading”…..”Mr. Underhill has ignored that provision of the order and instead has undertaken what can only be described as an attempt at financial harassment of Ms. Koch. He had additionally incurred costs, as I have found, with the expressed intention of trying to defeat Ms. Koch’s ability to spend time with the children and to gain economic advantage.”

    During Mr. Underhill’s criminal trial for assault causing bodily harm, Justice Moss also dismissed Mr. Underhill’s evidence, when Mr. Underhill also accused that wife of perjury.

    I am just saying that sometimes there is more to the story than what appears on the surface. Victims of abuse can seem to others to be unstable but it is the abuse that can create that instability. I believe Einstein said something to the effect of… Being well adjusted in an inherently unhealthy environment, is not good mental health.

    But when the truth finally does come out, that too must be heard.

  2. I am cautiously hopeful that the new Family Law Act in BC will begin to look at the often very complex dynamics of abuse that occur in families and to which children are exposed in determining guardianship and contact with non-custodial parents.

    I am also hopeful that BC’s courts will also start to look at other jurisdictions, such as Australia, which are abandoning the failed concept of equal, or shared parenting. This was never a child-centred, or developmentally normative solution, and was really about parents (father’s) rights, not children’s needs and interests.

    Thanks for writing this blog and to Ms. Underhill for her comments.

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