Family Law Lawyers Must Resist Temptation to Take on Their Client’s Cause as Their Own

GeorgiaLeeLang016In a recent discipline decision from Ontario the presiding adjudicator, David Wright, spoke a sensible caution to family law lawyers whose passion for their clients’ causes can obscure their professional objectivity. He also referenced the problem faced by some counsel who in their minds blend opposing counsel with their clients, castigating them as the “enemy”.

Other comments included the following

“Family law involves personal and intimate matters and the most vulnerable members of our society – children. The issues can lead clients and lawyers to feel passionately, particularly when we have our own histories.

However, clients will not be well served if lawyers cannot work together on effective and proportionate dispute resolution and solutions to the issues. We must separate clients’ views from those of lawyers and recognize that, as lawyers, we only fully have one side of the story.

What is more, clients will not be well served by personal incivility in contentious matters. After all, if lawyers are not civil to each other on a personal level, how can we expect spouses involved in a family breakup, the most stressful time of their lives, to do so? What are we modelling? The legal profession will fall in the public eye if lawyers act in an unprofessional and uncivil manner.”

In the case before Mr. Wright, a senior family law lawyer in a contentious divorce proceeding sent 14 pieces of correspondence over a two year period to opposing counsel. The letters contained threatening, inappropriate and unprofessional language. In a second incident the Lawyer became upset during a court hallway discussion with opposing counsel and raised his voice beyond a level that was professional or acceptable.

The third allegation involved the Lawyer’s courtroom submissions where opposing counsel referred to the Lawyer’s argument as “disingenuous”. The judge later directed the lawyers to work together on a worksheet regarding the trial, but the Lawyer refused to participate until opposing counsel apologized for calling his argument “disingenuous” and made a threat to opposing counsel. The adjudicator found that the Lawyer’s behaviour lacked civility.

Adjudicator Wright noted that family law lawyers work together on different cases and often have multiple files with each other during their professional careers. While this can help promote collegiality, counsel must be able to put aside past perceived wrongs or disputes and start fresh with each new file.

My experience in the B.C. family law bar is that opposing counsel are courteous and civil, however, as a junior lawyer, now many years ago, one senior counsel took advantage of my inexperience with unexpected rudeness and aggression. I later learned she was one of those lawyers who other counsel avoided where possible. I later turned down cases where this lawyer was opposing counsel in order to avoid her nastiness. Lawyers who cultivate this style of practice are only to be pitied, as they must be terribly unhappy with their lives. That’s my two cents!

Lawdiva aka Georgialee Lang

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Politicians Wake Up: Canadians Overwhelmingly Support Shared Parenting

GeorgiaLeeLang057In a poll conducted by leading Canadian pollsters, Nanos Research, the results revealed that 70% of Canadians support shared parenting. Thirteen per cent opposed shared parenting and 17% were undecided.

Nanos conducted an RDD dual frame (land- and cell-lines) hybrid telephone and online random survey of 1,000 Canadians, 18 years of age or older, between August 30th and September 1st, 2017 as part of an omnibus survey. Participants were randomly recruited by telephone using live agents and administered a survey online. The margin of error for a random survey of 1,000 Canadians is ±3.1 percentage points, 19 times out of 20.

You may ask “how can a poll of 1,000 people reflect the views of 35 million Canadians?”

Writer Eric Grenier wrote a piece on polling in the Globe and Mail in 2014 and answered that question:

“It might be hard to believe, but it is mathematically possible. A smaller sample will, of course, have a harder time reflecting the population accurately. But a poll of 1,000 people is generally considered the standard size. Larger polls have smaller margins of error, but the return on that extra effort is smaller is well. Doubling the sample size does not cut the margin of error in half, for example.”

Canada’s largest private broadcaster depends on Nanos Research as the official pollster of record for CTV News. Similarly, world-renowned Bloomberg News Service uses Nanos to conduct Bloomberg’s weekly Canadian consumer sentiment tracking, known as the Bloomberg Nanos Canadian Confidence Index.

Now, if certain lawyers, judges, and politicians would read the scholarly literature and understand that shared parenting is best for children, Canadian families who have suffered from divorce, would be far happier and healthier.

Lawdiva aka Georgialee Lang

No-Show Father Ordered to Pay Over a Half a Million Dollars in Child Support Arrears

GeorgiaLeeLang025In this British Columbia Supreme Court case, the parents of two children separated in 2001 and in 2003 entered into a separation agreement. The agreement stated that the father’s income was $90,000 per year and that he would pay $1,128.00 in monthly child support, together with some additional costs for transportation, as the children lived primarily with their mother on Denman Island. Later, the amount payable was increased to $1,600.00 per month to include the cost of certain extraordinary expenses.

At the time the mother signed the agreement she was not aware that the law provided for a review of child support each year and an adjustment, either upward or downward, depending on any change in the father’s income. The payment of $1,600.00 continued until February 2015 when the father arbitrarily, and without notice, reduced his payment to $800.00 per month, on account of the eldest child attaining the age of 19.

That was his first mistake…As a result of this unilateral action the mother retained counsel who informed her of the children’s rights to receive child support commensurate with their father’s income, as determined on an annual basis. Mother filed an application to vary child support in April of 2016 and in June of 2016 she became aware of the father’s income for 2013, 2014 and 2015, amounts of $477,000; $465,000; and $156,000 respectively.

With respect to the father’s sudden drop in income in 2015, it is noteworthy that by the time he filed his 2015 tax return in 2016 he would have been aware of his ex-wife’s claim for increased child support. Family law lawyers call this phenomenon “RAIDS”: recently acquired income deficit syndrome.

Before filing her application, the mother asked her ex-husband to reinstate the $1,600.00 a month payments, but he ignored her. That was his second mistake.

Later she learned that his income had been as high as $773,000 in 2010; $548,000 in 2011; and $444,000 in 2012. All this time she scrimped and saved what she could of her measly teacher’s aide earnings of $28,470 per annum in an effort to provide the bare minimum for her children, who, contrary to the law, were not receiving the benefit of their father’s increased income levels. Meanwhile, the mother had gone into debt to provide for her children.

Although the father was served personally with the mother’s application and was sent multiple letters advising him of the scheduled court date, he made his third mistake. He was a no-show at the hearing, so the court proceeded in his absence.

The court reviewed the applicable law, which generally provides that a court may go back three years with respect to a retroactive increase in support. However, in the absence of any argument to the contrary, Madam Justice Young found that the father was guilty of “blameworthy conduct”and that a large retroactive support award would not place a financial hardship on him. He was ordered to pay support based on his annual income from 2002 to 2017, an amount that totalled $522,408.24. He was also ordered to pay it immediately and to pay costs to his former spouse.

Would the retroactive order have been significantly different if he had attended the court hearing? That is difficult to ascertain, however, the usual evidence provided by a payor with respect to his conduct and his financial circumstances may have led to a smaller award and could also have given him more time to pay the amount ordered.

Court of Appeal Orders New Trial for Father Because of Expert’s Fraud on the Court

DSC01152_2 (2)_2In a groundbreaking decision last summer after a 147 day trial, Mr. Justice Paul Walker of the British Columbia Supreme Court found that B.C.’s child protection authorities had negligently permitted a father to sexually abuse his children while the youngsters were in the custody of the Ministry. The Court found that the government’s failure to protect the children was “egregious, negligent, and a breach of duty” and government social workers showed a “reckless disregard to their obligation to protect children.”

The evidence before Mr. Justice Walker included expert evidence from Californian Dr. Claire Reeves who had been an expert witness at the 90 day family law trial that preceded the action against the Ministry by several years. Dr. Reeves’ expert opinion played a significant role in the original finding that this father had sexually abused his children.

The parties agreed that her expert evidence from the family law trial would be admitted in the trial alleging negligence against the Ministry. Throughout the lengthy proceedings the father adamantly denied abusing his children, an assertion supported by several expert witnesses, but to no avail, as the court found he had abused them and he was barred from seeing them.

The father, who acted for himself, missed the deadline to file an appeal, however, three years later the Court of Appeal permitted him to proceed with an appeal, based on new evidence that appeared to establish that Dr. Reeves’ evidence was fraudulent. The credentials she touted, including a Doctorate in Clinical Counselling, Masters of Science in Clinical Psychology, Bachelor of Science in Family Mediation, and a Bachelor of Arts in Journalism, were “purchased” from so-called “diploma mills”.

Her assertion that she had testified as an expert on child sexual abuse on numerous occasions in a variety of courts also appeared to be untruthful. The substance of her trial opinion was based on a theory of child abuse that had long been discredited, even by the expert who originally proffered the “child sexual abuse accommodation syndrome”.

This week, in a 411 paragraph decision, the Court of Appeal (JP v. British Columbia 2017 BCCA 308) held that Dr. Reeves’ fraud impacted the integrity of the entire judicial process, leading to a gross miscarriage of justice. The trial findings that the father was guilty of sexual abuse of his children were thrown out and a new trial ordered. The scathing denouncement of BC’s child protection authorities was also dismissed, the appeal court finding that the alleged misfeasance was the product of procedural unfairness.

What is startling about this case is that the Rules of Court and related case law clearly set out the requirements for the admission of expert evidence, rules and law that were flagrantly ignored by the litigants and the trial judge.

The waste of court time and the related costs in this case are staggering, as the trial occupied months of court time. In my view this case screamed out for the appointment of an “amicus curiae” or “friend of the court”, a lawyer who does not represent the parties, but assists the court with information that bears on the case. The admissibility of evidence issues, other procedural flaws, and the duration of the proceedings should have been red flags for the court.

For the parents of the children in this case, more trial dates are expected. What remains to be seen is whether the mother will file a second negligence lawsuit against the Ministry, which will ultimately depend on the findings in the new family law trial.

Lawdiva aka Georgialee Lang

BC Dentist Declared Vexatious Litigant in Family Law Case

B9316548187Z-1.1_20150314202542_000_GFTA6A1QO.1-0Hundreds of family law decisions are handed down every month in courts across Canada, but there are always a few family law cases that stand out and gain notoriety for unusual facts, belligerent litigants, or wisecracking judges.

The conduct of a Vernon, British Columbia dentist, Dr. Andrew Hokhold, brings his family law case within that group of cases that gain attention due to the misguided obstinence and retaliatory litigation strategy employed by him in his quest to defeat his wife, Laurie Gerbrandt in their high-conflict divorce case. (Hokhold v. Gerbrandt 2017 BCSC 1249)

The couple lived together for five years and had two children, ages 6 and 9. At their 2012 trial the court ordered joint guardianship of the children, and granted sole custody to Ms. Gerbrandt, but denied her request to move with the children from Vernon to Swift Current Saskatchewan. Dr. Hokhold was found to earn $610,000 annually and ordered to pay $7,900 in monthly child support and $9,000 in spousal support.

Needless to say, the doctor balked at the large payments required of him and in 2014 was found in contempt of court for failure to pay the amounts ordered. Although he successfully appealed the contempt finding, by April of 2017 his support arrears was $448,000.00.

Meanwhile, Dr. Hokhold, who acted for himself, abandoned his appeal of the support orders and turned his attention to corollary tactics, alleging that his former spouse had defamed him, and conspired with Canada Revenue Agency against him. He also commenced two civil actions against Ms. Gerbrandt and her mother, purporting to act as his children’s “litigation guardians”, a status that was never legitimate in the face of his wife’s sole custody order. He alleged that Ms. Gerbrandt and her mother had acted in breach of trust in respect of gold coins held for the children, proceedings that involved multiple court applications and hearings, adjournments, and filings. Dr. Hokhold eventually conceded that he had no authority to sue on behalf of his children and his claims were dismissed.

But he was not done. He then launched four separate appeals of orders related to his gold coin litigation, including an appeal from his unsuccessful application to remove a certain judge from presiding over his cases. By this time, his ex-wife was fed up and she brought an application to have her ex declared a “vexatious” litigant, unable to file further court actions without express permission from a judge.

When the date finally arrived to hear the “vexatious” litigant arguments, he sabotaged the proceedings by seeking an adjournment and filing and delivering thousands of pages of new material to his former wife’s counsel the evening before. Later, he sought a further adjournment by admitting himself to Vernon Jubilee Hospital, where he was promptly released without any prescriptions and drove himself home.

During his opportunity to defend himself against the “vexatious” litigant claims he opted to criticize his 2012 trial judge alleging fraud and fabrication and noted that he had already reported him to the Canadian Judicial Council and the RCMP.

In support of her “vexatious” litigant application Ms. Gerbrandt advised the Court that Dr. Hokhold had filed 98 affidavits, some exceeding 2,500 pages. He had also filed multiple requests to reappear before the Court and on one occasion in 2016 sought 64 separate orders. He also sued counsel for the Family Maintenance Enforcement Program after they began collection proceedings against him and brought actions in defamation, breach of trust, and multiple adjournment applications.

Dr. Hokhold was declared a vexatious litigant, both in the Court of Appeal and the British Columbia Supreme Court based on his predilection for bringing court actions and appeals that either could not succeed or were brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings that did not assert legitimate rights and by failing to pay the costs related to his unsuccessful applications.

Madam Justice Newbury in the Court of Appeal said:

“It is these factors, together with his filings in this court, that lead me to conclude that Dr. Hokhold has been using the judicial process in a manner calculated to divert attention from the real issues outstanding between the parties – his annual income, the amount of support he should pay, and his rights and obligations as a parent. Even Dr. Hokhold admits that he is “tired” as a result of the litigation, and there are more than a few judges who feel the same.”

Lawdiva aka Georgialee Lang

Judge Kreep Censured for Courtroom Levity

GeorgiaLeeLang100Judges hold a special place in the community and are expected to adhere to a set of rules and ethical standards that the average Joe or Jane can choose to ignore. But judges also have their own distinct personalities, biases, attitudes, and ideologies, which they labour to keep in check in order to ensure that justice is both done and seen to be done.

Some judges display severe personalities, no off-the-cuff quips and nary a smile adorns their face, while others have effusive, even bubbly personalities and seem to enjoy interacting with lawyers and the public.

A good example of the latter is Judge Gary Kreep of the San Diego Superior Court who, as a newly elected judge, was criticized for the levity he displayed as he presided over the cases that came before him.

He ended up in judicial disciplinary proceedings before the Commission on Judicial Performance over a number of issues related to his election to the bench, and for comments he made in court, most of which were relatively harmless, but could easily be misconstrued.

When a female litigant appeared before him he commented that he “loved her accent”. Ms. Hernandez was a United States citizen who spoke fluent English with a Mexican accent. He also quipped that he had “no intention of deporting her”.

When it was suggested to him that his comments belittled her, he acknowledged that his reference to deportation was inappropriate but explained that he was simple trying to “get a laugh and put people at ease”.

Judge Kreep also liked to use nicknames for the lawyers, clerks, and interns that regularly appeared in his courtroom. With respect to three legal interns from the Public Defenders Office, he called them “Bun head”, “Dimples” and “Shorty”. Shorty was 6 feet 7 inches tall and testified before the discipline board that Judge Kreep called him Shorty at least ten times while court was in progress.

He also had a penchant for commenting on the attractiveness of the women who appeared in his courtroom, saying, “She’s a pretty girl, you know you could smile”, or “the lovely attorney showed you the form, correct?”

A deputy city attorney, who was pregnant, was the recipient of his attention as well. On one occasion he said to defence counsel, “Let’s get on with this, we don’t want Ms. S. to have her baby in the courtroom.” During other appearances he said “It’s getting closer Ms. S.” and “She wants to go home and have her baby, I’ll pick on her today.”

In criminal court he interacted with a female accused charged with prostitution who entered a guilty plea. He asked her “Ma’am, anything I can do to get you out of the life?” Later he asked her, “Is it you like the money or just like the action?” The accused began responding only to be cut off by Judge Kreep who asked “Are you going to try to get a job at the bunny ranch in Nevada?” This comment was in regards to the accused’s statement that she might leave California. His final remark was “I don’t think it’s a good lifestyle choice, but it your lifestyle choice and it’s your decision.”

At the discipline hearing Judge Kreep testified that his comments were intended to show support for her predicament, and also to persuade her to change her conduct and lifestyle.

In response to the whole of the allegations against him arising from his courtroom decorum, Judge Kreep acknowledged that he ran the proceedings in a casual matter and admitted that his comments could be taken as offensive or demeaning, although that was never his intention. He denied that his levity rose to the level of sexual harassment.

The offenses arising from his election campaign included his failure to report campaign expenses, and the use of his personal credit card and bank account to pay campaign expenses.

The discipline panel found that he engaged in one act of wilful misconduct, 17 acts of prejudicial misconduct and 11 acts of improper action, leading to the most severe form of censure. A minority of the Commission panel would have liked to see his removal from the bench, however, it was noted that most of his offenses occurred during his first year as a judge and he had changed his behaviour since then.

As for his in-court comments, in my view they were neither offensive nor demeaning, although admittedly, calling intern lawyers by fanciful nicknames was a bit odd. It seems to me that Shorty and the others could and should have addressed their discomfort with their nicknames directly with Judge Kreep, who by all accounts appears to be a congenial, likeable fellow.

Lawdiva aka Georgialee Lang

Family Law Lawyer Creates Fake Accounts for Opposing Counsel

GEO CASUALTwo busy family law lawyers in Illinois, Michelle Mosby-Scott and Drew R. Quitschau spent hours sparring in court as opposing counsel on dozens of cases.

However, their professional relationship became complicated, even sinister, when Ms. Mosby-Scott learned her colleague had set up a false Match.com account in her name, describing her as separated from her spouse, an agnostic, and a fan of grocery stores, all restaurants, the Pizza Ranch, and buffets.

Ms. Mosby-Scott obtained a court order compelling Match.com to provide her with the details of the IP address related to the fake account, which led to Mr. Quitschau’s doorstep.

He had also downloaded photos from Ms. Mosby-Scott’s law firm website and added them to her Match.com account.

But he didn’t stop there. He created false accounts in her name with the Obesity Action Coalition, Pig International, Auto Trader, Diabetic Living, and Facebook, not to mention posting negative reviews of her legal skills on martindale.com and lawyers.com.

As a result she began receiving harassing emails and phone calls from these organizations.

When approached by Ms. Mosby-Scott and the managing partner of his law firm, Mr. Quitschau denied any involvement but an IT expert was retained who confirmed that Quitschau was lying. He was immediately fired from his law firm partnership.

Ms. Mosby-Scott obtained a restraining order against Mr. Quitschau and his conduct is the subject of a pending hearing before the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission. Ms. Mosby- Scott remains mystified as to Quitschau’s motive, conduct which caused serious emotional distress for her and her family.

Lawdiva aka Georgialee Lang