BC Court of Appeal Allows New Hearing for “Game-Playing” Litigant

BarristerThis week’s decision from the British Columbia Court of Appeal in Ghavim v. Jamali provides a stark picture of how a family law litigant can use the system to thwart a “just, speedy and inexpensive” resolution to a family law case.

The parties were married for 20 years, immigrating from Iran to British Columbia. The marriage broke down in 2009 and in September of 2010 Ms. Ghavim filed a divorce action seeking division of property and child and spousal support. There were several interlocutory applications and a five-day trial was set for November 2012.

Ms. Ghavim’s lawyer, in an effort to bring an end to the issues in the case, set down a hearing in August 2012, called a summary trial. A summary trial is an expedited hearing to resolve a case, short of a lengthy trial. Family law lawyers are encouraged to bring finality to family law cases to decrease costs and the emotional wear and tear of protracted litigation.

On the appointed date in August, Mr. Jamali showed up without a lawyer and sought an adjournment to obtain counsel. I have never seen a Court refuse an adjournment application brought by an in-person litigant and the case was adjourned for a month.

When the case began in September, Mr. Jamali, not surprisingly, still had no lawyer, but the case proceeded, as it should have. He did bring an interpreter with him.

On a summary trial the evidence before the court consists of affidavits, transcripts of other sworn testimony, and relevant documents. Each of the parties filed two affidavits.

The wife alleged her husband had a luxury apartment in Tehran valued at $1 million dollars that provided rental income of $7,000 per month. Her husband brought a lease agreement to court that showed a rental income of $50.00 a month. He also said the apartment had only $50,000 in equity with a fair market value of $200,000 to $300,000. Ms. Ghavim asserted that the rental agreement was a forgery, a recurring feature in cases like this one.

The parties sold their home in the Lower Mainland in 2009, each receiving a portion of the net sale proceeds of $259,000, however, Mr. Jamali’s previous lawyer had given an extra amount from his trust account to Mr. Jamali, although he had no authority to do so. That money, of course, was long gone and the judge voiced his criticism of the lawyer’s questionable actions.

During the hearing the judge asked questions of Mr. Jamali in order to elicit the testimony he would need to make a decision. Notably, the judge queried him with respect to the deposits in his bank account. He was utterly unable to explain the source of the funds.

The judge asked to see Mr. Jamali’s wallet, noting that for someone who had no income he was carrying a large amount of cash. Of course, Mr. Jamali had an answer for that: it was money to pay the interpreter. As an aside, I am puzzled that Canadian immigrants like Mr. Jamali who cannot speak English manage to obtain status in Canada, but that’s for another day.

The judge was openly skeptical of the husband’s evidence and at one point suggested that he stop “playing games”. The Court ultimately did not believe that Mr. Jamali had no income and imputed income to him, ordered him to pay retroactive child support and provided Ms. Ghavim with $32,000 in lump sum spousal support, which was the amount remaining from the proceeds of sale of the home.

Of course, Mr. Jamali retained the apartment in Tehran and its rental income, since only a court in Iran could divide that property.

Mr. Jamali appealed on the basis that the judge showed bias against him during the hearing. The Court of Appeal characterized the issue as to whether a reasonable observer of this trial would conclude that Mr. Jamali’s trial was unfair and ruled they would.

The Court of Appeal noted that Mr. Jamali probably didn’t understand the process of a summary trial, he probably didn’t know that he could argue that there be a full trial, he probably didn’t know that when he answered the questions of the judge that the judge would rely or scrutinize his replies to determine credibility, he probably didn’t know that he could ask to cross-examine his wife on her affidavits,and he probably didn’t know the judge would make a decision.

Yes, that’s the upshot of the case. The Court of Appeal saw Mr. Jamali as a victim of an unfair hearing and ordered that the parties start over, while confirming that the new process should also be a summary trial.

Perhaps its been too long since the Appeal Court presided over a family law hearing where there is nothing but excuses: I don’t have a lawyer; I don’t speak English; I didn’t have enough time; I didn’t know I could do this or that; please believe me, although I could have brought appraisals and documents to prove my case.

This is just one example of why the Canadian public is fed up with the system of family justice and yes, these cases happen time and time again.

How much do you want to bet that Mr. Jamali shows up again without a lawyer and the new judge makes a similar ruling?

Lawdiva aka Georgialee Lang

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26 thoughts on “BC Court of Appeal Allows New Hearing for “Game-Playing” Litigant

  1. I sincerely hope that the Honourable Justices of the Court of Appeal of British Columbia have an opportunity to read Ms. Lang’s blog regarding the Judge’s decision to set aside the verdict and order a new summary trial in Gavhim v. Jamali.

    1. If you use Canlii.org, and look for “summary trial” and “division of assets” in BC, you’ll find a tiny number of hits.

      In 100% of the cases, the BC court of appeal ordered a new trial.

      Imo, this case should not have gone through a Summary Trial, as the fundamental facts were in dispute. It should have gone to a conventional, “viva voce” trial, so that credibility could be tested.

      The appeal judges also noted that expert reports, pensions, were not tried.

      There is one oddity, that there was a transcript of the summary trial — that is not required for BC appeals; and, it is very costly to obtain, and usually delays the appeal (and the tight appeal deadlines.)

      Imo (not a legal one), the court of appeal correctly ruled that a Summary Trial is not the proper venue to determine the contested facts.

      The wife’s lawyer, imho, milked the file by taking it to a summary trial, the court of appeal, and back to square one, another BC Supreme Court trial. That’s just my two cents.

  2. Some say the wheels of justice grind slowly, in this and too many other cases, they simply spin without progress. One can only imagine how the local courts in Mr. Jamali’s homeland might deal with him. It is no wonder that B.C. litigants must wait for months and even years before being able to access the courts.

  3. Ms LawDiva

    I have, and other Canadian immigrants like me, have been waiting to hear your words if wisdom on what you promised in your blog “I am puzzled that Canadian immigrants like Mr. Jamali who cannot speak English manage to obtain status in Canada, but that’s for another day.”

    It been nearly 80 days. Perhaps you could care to read the Charter before you answer.

    1. Tony Take a look at the requirements to become either a permanent resident or Canadian citizen. In both cases you need to speak and understand either French or English. It’s got nothing to do with the Charter. It’s a reasonable requirement in light of the privilege of having official status in Canada.

      1. So you think a self represented litigant is not entitled to use an interpreter, and because he somehow managed to get “official status” he should expect to go to court and litigate in English, against a lawyer, and a judge who wants to search his wallet and check out his watch?

        What part of the injustice did you not comprehend in this case? Do you, a lawyer of all things, think you can tar the man as a “game playing litigant” when the court of appeal found that the judge who said that showed a reasonable apprehension of bias?

        Come on Ms LawDiva, don’t delete this message. Answer it. Show us your legal skills to dig yourself out of this and not just your snide remarks.

  4. So Ms LawDiva

    I see you take issue with a case in which the court of appeal overruled a lower court judge – because the litigant was not to your liking ….

    That’s the ugly colour of justice for non-white Canadians. The court of appeal can’t possibly be correct because the litigant was a foreigner ….

    Are you going to moderate this out? Let me guess …. Taking a turn from your own line of thinking – what’s the bet that you will not post this on your blog?

      1. What about the judge’s behavior? He was found to have shown a reasonable apprehension of bias, or is he the victim of the Appeal Court?

      2. The implication is that the judge’s behavior is to your liking. In saying that the new judge would find the same, you are forgetting the basic tenet justice, that justice must not only be done but seen to be done. Even when it is not seen to be done, YOU believe it was done.

  5. I am going to complain to the law society.

    Time you got what is due to you for opinionated slander. That litigant was found to have been wronged. You think otherwise and use ugly argument. He is not a lawyer, can’t speak English and you write against him.

    Apologize in public or explain yourself to your peers and the court of appeal. Take your pick.

  6. Next time you want to pick on an immigrant self represented party, pick on someone who can argue back in English better than a blonde diva wannabe judge

  7. Here the link to the case in the BC Court of Appeal:

    http://www.canlii.org/en/bc/bcca/doc/2014/2014bcca21/2014bcca21.html?autocompleteStr=Ghavim%20v.%20Jamali&autocompletePos=1

    Although the husband won in the Court of Appeal, there are no costs against the wife in the judgment, as is usually the case.

    In Skidmore, the court have started to give fees to lay litigants, but apparently not to the husband, here.

    Is that just? Imo, no.

    Add this case to the list of cases in the statistical survey of gender-bias against husbands in family appeal decisions in BC.

    1. The court of appeal was composed of 3 male judges – a rarity. (One only has to look at how many female judges there are in BC to see the significance. In BC women judges are not unrepresentative of the population, which probably makes it all the more difficult for fathers to overcome gender bias.)

      He is defacto entitled to his costs in the Court of Appeal. He didn’t win in the trial judgement either in first judgement or on appeal so can’t get costs there.

      1. In British Columbia, only five of the 32 appointments to the Supreme Court between January 2009 and January 2013 were women. Gender bias has little to do with the gender of the judge and more to do, with precedent: Judges following the decisions in earlier judgments, which they are obliged by law to do.

  8. Re the “playing games”, the husband was asked to remember 2009 banking details in 2012. Is that a fair question? Imo, no. The judge could have adjourned the trial until the necessary deposit slips were obtained.

    So, I agree with the BC Court of Appeal — a new trial should have been ordered.

    1. The husband was obliged by law to produce his bank account statements. If he had complied with the disclosure laws in family law proceedings he would not have found himself in the position he was. He has no one to blame but himself. He had already received one adjournment and there were no grounds to grant him a second adjournment. His “game-playing” was apparent to Mr. Justice Grove, who is a very fair and reasonable judge.

      1. Hold on LawDiva!

        You said “The judge was openly skeptical of the husband’s evidence and at one point suggested that he stop “playing games”.”

        That Madam LawDiva reads like the judge was biased against the father. A judge can’t be “openly skeptical” and claim to be fair and reasonable. In any event, three judges found the judges to be biased.

        How is it that you continue to insist he was fair and reasonable? Clubiness or too much rubbing shoulders at the Wedgewood perhaps? Just stinks.

  9. It doesn’t matter how many women and men apply. It’s who gets appointed… and the statistics are clear that female judges make up no more than 30% of Supreme Court judges in Canada, that means 70% of judges are male. I realize that doesn’t fit your theory but do your own research and you will see it is true.

  10. Why argue about “apprehension of bias”, gender-bias against males, in BC courts? The surveys have been done:

    Google for: BC COURTS GENDER BIAS STATISTICAL SURVEY

    TALLY: Husband Won vs Wife Won on Appeal 53%
    TALLY: Husband obtained costs, on average 25%

    1. Treasure_hunter, I am not sure I get your point on costs.

      The Supreme Court Family rules say costs must be awarded to the successful party. If they were not awards at trial, you can go back and get the judge to make the award. The problem however is the judge can use his discretion not to award costs. However, this discretion has to be exercised judicially. Let’s suppose he/he did not make the award even then, the problem is you can’t appeal the decision (without leave). This is open to abuse and frequently is abused.

      In the court of appeal, costs should follow the event. You can just go the Registrar and have costs assessed. If he won’t do it, then go back and get the Court to finish the job.

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