This 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