Lawyer Did Not Breach Professional Code of Conduct by Calling 15-Year Old as a Witness

A Northwest Territories lawyer was called to account before the Law Society based on the allegation that by calling his client’s 15-year old son to testify at his client’s criminal trial, without advising the child’s custodial parent, he breached the Professional Code of Conduct and was deserving of discipline. Harte (Re) 2016 CanLii 73579 NWT LS

The precise charge was that he:

“required [D] to leave school without the permission or knowledge of his custodial parent and that such conduct is deserving of discipline.”

The relevant section of the Code of Professional Conduct states:

2. (1) A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.

Commentary 2 regarding this rule states:

[2] Public confidence in the administration of justice and in the legal profession may be eroded by a lawyer’s irresponsible conduct. Accordingly, a lawyer’s conduct should reflect favourably on the legal profession, inspire the confidence, respect and trust of clients and of the community, and avoid even the appearance of impropriety.

Counsel for the Law Society conceded that the lawyer had not served a subpoena on the child, nor had he subjected the child to any duress, in fact, the lawyer told the child that he was not obligated to attend the trial and that it was up to him. Nonetheless, the Law Society insisted that by arranging the child’s attendance at the trial, the Code had been breached.

The facts revealed that an adult women attended at the child’s high school and the school authorities permitted the child to leave the school during classes. She also returned him to the school.

The tribunal hearing the case noted that had the lawyer served a subpoena on the child, there would have been no issue, but since he left it up to the 15-year old, he was in the crosshairs of the Law Society.

The Agreed Statement of Facts indicated that the lawyer did not know that the child’s mother had custody and the responsibility to make all decisions for the child. The Law Society argued that it was the lawyer’s responsibility to ferret out this information from his client. The lawyer argued that he had no legal responsibility to contact the child’s mother and the tribunal agreed. The tribunal also found that the lawyer’s conduct did not reflect poorly on the legal profession.

The tribunal dismissed the allegation stating:

“…at 15 years old D was apparently able to understand the importance of telling the truth in such an important situation. D was permitted to leave by his school and D had a responsible adult attending with him from school to court and back again. D had some modicum of support during the day, albeit not from B (his mother). While I can keenly appreciate that B, indeed any parent, would wish to have prior notice of her son’s intention to testify, I do not think that the absence of such notice in these circumstances deserves a sanction against Mr. Harte.”

Despite his son’s testimony the lawyer’s client was convicted of sexual assault against his daughter.

Clearly, the “de minimis” behaviour of the lawyer was overreach by the Law Society and the panel noted that the lawyer’s first priority was properly the defence of his client and no harm had been caused to the teenager.

Lawdiva aka Georgialee Lang

Lawyer Reprimanded for Failing to Draw Case to Court’s Attention

A lawyer in Saskatchewan was cited for conduct unbecoming a member of the Law Society for failing to bring a “relevant and adverse” case authority to the attention of the trial judge presiding over a criminal trial, where his client was charged with driving while disqualified. Kapoor v. The Law Society of Saskatchewan 2019 SKCA 85

As part of his submissions, the lawyer argued that an essential element of the offence was proof of non-enrolment in an alcohol ignition interlock program, which the Crown failed to advance and hence, his client ought to be acquitted.

In support of this argument the lawyer cited a Quebec Court of Appeal case and an Alberta Provincial Court case, but failed to mention an additional Alberta Provincial Court case that was contra the position he was positing, despite the case being referred to in the criminal law text book he relied upon.

The trial judge discovered the relevant case on his own and did not accede to the lawyer’s argument.

The Law Society’s formal complaint stated that he:

“Failed to treat a Judge of the Provincial Court of Saskatchewan with candour, fairness, courtesy and respect, by failing to bring relevant and adverse case authority, of which he was aware, to the Court’s attention during argument of a non‑suit application on March 18, 2014.”

The Law Society relied on two provisions of their Code of Conduct:

1) to “represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy, and respect” (Code at s. 4.01(1), now 5.1 (1)

2) that a lawyer must not deliberately refrain from informing a tribunal of any “binding authority that the lawyer considers to be directly on point and that has not been mentioned by another party” (Code at s. 4.01(2)(i), now 5.1 (2)

The lawyer appealed the Law Society’s ruling, where he was reprimand and ordered to pay costs of $6,000.00. At the appellate level, he argued that it was unreasonable for him to be cited for conduct unbecoming for failing to cite a case that was not binding on the Saskatchewan Provincial Court judge, and that his failure to proffer the case was not a breach of his duty of candour.

The appeal court reviewed the transcript and audio recording of the hearing, together with the extract from the legal text book, noting the following exchange between the trial judge and the lawyer:

1. The lawyer referred to the Quebec case which he said supported his position, of which the trial judge expressed surprise that the case represented the law in Saskatchewan, saying that “he was not bound by any other provincial court’s decision, but I’ll listen to your argument”.

2. The lawyer replied ” I am not, your honour, misleading you” and then read an excerpt from the criminal law text book which reviewed the ratio of the Quebec case. The trial judge responded that he would prefer to read the case himself, and again expressed surprise at the ratio of the Quebec case.

3. At that point the judge asked if the lawyer had further submissions and that was when the lawyer cited the Alberta Provincial Court case, for the same point. The trial judge then reviewed the lawyer’s submissions and invited him to present a Saskatchewan case that supported the proposition he was advancing. Hearing there was no similar case, he rejected the lawyer’s argument.

4. Despite the judge’s ruling, the lawyer continued to press his position and suggested he would take the matter to the appellate court. During a break in the proceedings, the judge read the text book excerpt and upon returning to court, challenged the lawyer for failing to draw the contra case to the court’s attention. The lawyer replied that he “honestly intended to bring this contra up” but that he “could not say anything”.

The appeal court dismissed the lawyer’s appeal, finding that the lawyer had acknowledged he was aware of the adverse decision, which was contrary to the position and the case authority he was citing. The Court said that “while he may have suggested to the trial judge that his failure to mention the case was innocent, this position is not tenable when considering the whole of the discussion recorded in the transcript, and counsel for the lawyer did not advance this in the appeal hearing.”

While the case he failed to refer to was not binding on the trial judge, the appellate court agreed with the Law Society that “the specific obligation to disclose binding authority on point does not subsume the more general duty of candour; and in the circumstances of this case, the lawyer’s failure to bring the case to the trial judge’s attention constituted conduct unbecoming.”

Lawdiva aka Georgialee Lang

Court of Appeal Allows Contempt Appeal in Parenting Case

It is beyond dispute that the Court’s contempt powers are meant to be used as a process of last resort, particularly in the area of family law. Nonetheless, warring couples continue to bring contempt applications for the most minor deviations from a court order. Chong v. Donnelly 2019 ONCA 799 is yet another example of a “mole hill turned into a mountain”.

The contempt allegation centred on a provision in a court order that required the parties to transition the children between each parent’s home at the children’s school on school days and if not a school day, at the other parent’s home at 8 am.

On this occasion Mr. Donnelly texted his ex-wife advising her that he would pick up the children after school, feed them dinner, and then return them to the school for their evening activities. Ms. Chong requested that he not do that as it was her evening with the children and she had already arranged after school care and dinner for them. He ignored her and picked up his children.

The motions judge reviewed the legal test for a contempt finding including the necessity of the court order being clear and unequivocal; that the party allegedly in breach had clear notice of the order; and that the conduct in breach of the order was intentional. Finding all three elements of the test to be satisfied, the judge found Mr. Donnelly to be in contempt in picking up the children in breach of the order.

The father appealed the contempt finding and succeeded, persuading the appellate court that because contempt was a discretionary power and one of last resort, the lower court judge erred in law. The appeal panel found that while the chambers judge applied the correct legal test he failed to consider whether there were alternatives to a contempt finding, such as admonishing the father.

The Court also found that the motions judge failed to consider the best interests of the children and by ignoring these discretionary factors erred in law. The Court did remark that the judge’s decision not to impose a contempt penalty was correct but her finding of contempt, in a high conflict case, was not in the interests of justice.

The Court also stated that contempt motions brought by each parent reflected badly on them and were not in the children’s best interests.

Lawdiva aka Georgialee Lang

Court Rejects Application to Terminate Spousal Support Due to Early Retirement

This decision is not surprising, it is merely one of the many cases where an ex-husband paying spousal support voluntarily retires and then asks the court to terminate his spousal support obligation. In McPherson v. McPherson 2019 BCSC 933, the retiree was 60 years old and had 24 years of contributory service, thus earning an unreduced pension of $2,300 a month. His ex-wife’s share of the pension was $800 a month.

The parties were married for just over 20 years and were divorced in 2005. Their mediated settlement terms were incorporated into the divorce order and compelled Mr. McPherson to pay spousal support of $1,200 a month with no end date.

However, oddly, there was a provision that he could bring on a review application in 2007 in the event of a material change in financial circumstances. He brought an application to terminate support in the spring of 2007 and his former wife sought an increase in support, however, both applications were dismissed and he continued to pay support.

The Court learned that the marriage had been a traditional one with the wife working as a hairdresser at the outset of the marriage but later remaining at home to care for children. At the time the support was negotiated Mr. McPherson earned $56,000 per annum. At the date of his 2019 application he had retired from a position that paid him $112,000 per year. The Court remarked on his good health and his stated desire to spend time training rescue dogs.

The Court confirmed that “Law Courts have no power to compel people to work” but also stated that if a healthy individual with a spousal support obligation retires at an earlier-than-expected age, the question to be answered is “Is that decision reasonable in the circumstances?”

The Court held that given Ms. McPherson’s ongoing entitlement to compensatory support, and Mr. McPherson’s age, health, occupational history and other circumstances, his decision was unreasonable and unfair.

The Court also recited Professors Rogerson and Rollie, from the Spousal Support Advisory Guidelines: The Revised User’s Guide April 2016, as follows:

“When will a retirement be described as “early”? The courts are not always clear. For our purposes, an “early” retirement is either a retirement on a reduced pension or a retirement on a full or unreduced pension before 65 years of age, in the absence of health issues or other special circumstances. If the court sees the early retirement as “voluntary” and not necessary or reasonable, then it is likely that spousal support will not be changed. …”

There will be many more of these retirement cases over the next decade and word to the wise: Voluntary retirement before the age of 65, where there are no health issues, but a mere wish to “stop and smell the roses” will not fly with the BC Supreme Court. In fact, I have argued strenuously for judges to accept the retirement of individuals between the ages of 66 and 72, with mixed results.

Lawdiva aka Georgialee Lang

Special Costs Awarded Against Litigant Who Sued Counsel Based on Unfounded and Scandalous Allegations

It doesn’t happen frequently, thank goodness, but once in a while an in-person litigant will turn the tables, and after attacking their ex-spouse through aggressive litigation tactics, turns their venom on their ex’s lawyer. That’s what happened in the latest chapter of Shih v. Shih 2019 BCSC 1681.

Mr. Shih, a “frequent flyer” in the BC courts, described by the judge as having a “long history of several applications, case conferences, a 2-day settlement conference, settling of orders, a 15-day trial in 2015, a trip to the Court of Appeal, Registrar’s hearings, garnishing orders and other applications”, brought an application seeking an order that his former wife’s lawyer be compelled to respond to his emails, be fined and suspended for failing to respond promptly to his emails, be found in contempt of court for allegedly evading service of Mr. Shih’s application and special costs.

The chambers judge, after outlining the lengthy history of the litigation, summarized Mr. Shih’s core complaint as involving his allegation that his ex’s counsel had ignored three emails from Mr. Shih, refusing to believe her representation that she did not receive them. He also accused her of:

a) fraudulently falsifying a court order;
b) engaging in misconduct by obtaining a garnishing order against him;
c) evading service of court documents;
d) refusing to respond to communications;
e) unwilling to accept service of court documents’
f) falsely claiming not to receive his emails;
g) committing a fraud on the court by lying to the court about her receipt of his emails.

When asked by the chambers judge what authority he was relying on for his application, he merely shrugged his shoulders and leaned on his status as an unrepresented litigant, a response that drew the ire of the chambers judge who cited Owners Strata Plan v. She Hang Holding Inc. 2015 BCCA 424, as follows:

“Self‑represented litigants have no licence to employ accusations of dishonesty as a feature of their rhetoric unless such accusations are firmly grounded in the evidence, are relevant to the proceedings, and are responsibly made. By “responsibly”, I mean measured, careful, and faithful to the evidence. Self‑represented litigants must understand that the court is not a free fire zone where anything can be said regardless of the harm to others and their reputations.”

The Court ruled that his application lacked any evidentiary foundation, lacked bonafides, and was brought in retaliation, to harass his ex and her counsel. Of course, his application was thrown out and he was ordered to pay special costs.

Lawdiva aka Georgialee Lang

99 Authorities Cited is “Overkill”

GeorgiaLeeLang025Family law situations that deal with a child who refuses to see a parent are certainly some of the most difficult cases for family law counsel. In an effort to leave no stone unturned, counsel for the estranged or alienated parent must necessarily marshal all available arguments and resources, seeking to persuade a court to make orders that will lead to reconciliation and reunion between parent and child.

Sadly, these cases seem to have become more prolific over the last decade and JMC v. CJC 2019 BCSC 1408 is yet another example of the complexity of these cases. In JMC v. CJC the parties’ 14-year-old daughter resided with her father, refusing to see her mother. Her 10-year-old brother lived 50/50 with each parent.

The main focus of the 2-day hearing was an application for an order that the children and parents be compelled to attend reunification counselling. During the parties’ 2018 trial the estrangement issue had been front and centre and at that time the trial judge, Mr. Justice McIntosh, recommended that mother and daughter each engage in individual therapeutic counselling as a precursor to joint counselling to deal with the estrangement issues.

The mother’s application, again before Judge McIntosh, required her to show a “material change in circumstance” since the trial, a step she could not muster, as the child still refused to reconnect with her mother. The Court remarked that the child was now almost 15 years-old and even if there was a material change, he would not order that the family participate in reunification counselling saying:

“I am not satisfied that it is in the best interests of either of the children to embark on reunification counselling at this formative time of adjustment in their lives. For that reason, even if I could find a change in circumstances, I would not accept it to be in C.’s best interests to have her embark on individual counselling at this stage, which was J.M.C.’s alternative request to family reunification counselling.”

Judge McIntosh acknowledged that mother’s counsel had said everything that could be said on behalf of his client, but to no avail. Interestingly, the Court also commented on what can only be described as “overkill”, with respect to the “paper” created and relied upon to argue the case in relation to the costs award to the child’s father.

He noted that thousands of pages of evidence were filed, and in addition, four large volumes of law containing 62 authorities were filed by the mother. The father filed three binders with 37 authorities, while both parties filed lengthy written argument. The Court reduced CJC’s disbursements by one-half of the photocopy costs for printing affidavits and authorities saying:

“…despite capable submissions from both sides, both sides were disproportionate in the volume of their preparation…applications of this nature need to become more distilled and proportionate.”

While the mother sought several other additional orders that were not granted, including conduct orders and the retention of a parenting coordinator, presenting the court with almost 100 cases is akin to filing a large book of documents at trial and only referring to half of them.

Lawdiva aka Georgialee Lang

Child Support: Agreeing to “No Variation” No Guarantee the Court Will Not Interfere

GEO_edited-1The parties in Skotnicki v. Cayen, 2019 ONSC 4831 separated in 2000 and for years struggled with child support disputes involving their three children. Finally, in December of 2017 the divorced couple entered into an agreement for child support which provided that it would “not be subject to any variation for any reason whatsoever.” The intent and expectation was that this phrase would put an end to their ongoing squabbles. Ms. Cayen even went so far as to waive support arrears and agree to a lower amount in exchange for an order that would be truly “final”. Did it work? Sort of…

In July of 2019 Mr. Skotnicki brought an application to vary child support alleging two material changes:

1. Their daughter, Natalie, moved out of her mother’s home in November 2018; completed her university education in December 2018 and commenced full-time employment in January 2019.

2. Their son, Joseph, moved out of his mother’s home to attend university in another province, living on his own.

With respect to Joseph, his father argued that he should no longer be required to pay his ex-wife $900 a month as he was paying equivalent funds to his son who was living in the same city he was. Joseph also spent a considerable amount of time in his father’s home, although he did not live with him.

After the father served his variation application, Joseph’s mother began giving her son $450.00 from the funds received from Mr. Skotnicki, keeping $450.00 for herself.

Mr. Justice Williams held that a support order restricting variation for “any reason whatsoever” is strong and specific wording, yet still does not bar a variation if the provisions of s. 17 of the Divorce Act are fulfilled.

However, the Court dismissed the father’s application to terminate Natalie’s support as of January 2019, holding that the order respecting Natalie, by virtue of the December 2017 order, terminated in March of 2019 and no uncontemplated material change had occurred.

With respect to Joseph, Williams J. found that Joseph’s move and change of university was clearly contemplated at the time of the 2017 order, and his mother’s evidence that she had paid for his return trips to her home on six occasions and kept a room for him in her home, was sufficient to continue the father’s obligation.

The time-worn adage that child support is never final is still true, however, in this case the Court easily found a way to respect the “no variation whatsoever” consent order.

Lawdiva aka Georgialee Lang