This is Why We Have a Court of Appeal

GeorgiaLeeLang016People make mistakes and judges are people too…In Wang v. Sigouin 2017 BCCA 372 the parties married in 1993 and separated in 2015. The couple lived with their two children in Shanghai but had real estate in Vancouver, including a two bedroom apartment with a tenant and a one-bedroom unit that was available for family use when visiting Vancouver.

Despite the fact that litigation had already been commenced by the husband in China, the wife brought an application to the court in British Columbia asserting that she lived in British Columbia with her high-school-age daughter and sought an order for exclusive occupation of the Vancouver two-bedroom apartment.

The husband responded to the application arguing that the BC court did not have jurisdiction over the parties because neither of them ever resided in BC and also challenged the wife’s application for occupation of the tenanted apartment as it was not the parties’ “ordinary place of residence” as required by the law.

The British Columbia Court of Appeal determined that the chambers judge had been mislead and that the evidence before him confirmed that neither parent nor children resided in BC.

The evidence revealed that the parties’ daughter attended school in Shanghai. Because of the inaccurate submissions he received, the chambers judge ordered exclusive occupation of the apartment to the wife and pending the eviction of the tenant, the husband was ordered to pay the wife $400 per night so that she could pay for hotel accommodation in Vancouver, until the tenant’s departure.

The judge failed to consider the husband’s challenge to the court’s jurisdiction likely because he was told that the wife and daughter lived in BC and owned real estate in BC. Without assessing the matter the court simply agreed with the wife’s counsel that the court had jurisdiction.

Ultimately, the appeal court reversed all of the judge’s orders and sent the case back to the court to determine the issues in accordance with the law and the correct facts.

An unfortunate case where additional legal fees were incurred by the parties to correct an injustice, however, it is the responsibility of counsel to ensure that accurate information and correct legal principles are before the court.

Lawdiva aka Georgialee Lang

Advertisements

Grey Spousal Support: Will You Still Need Me, Will You Still Feed Me, When I’m 64?-Part 1

Barrister

Part 1

I naively thought that one day a discussion of spousal support would begin without the preliminary sentiment that spousal support is one of the most difficult areas of family law in Canada. That’s what I wrote in 1990 in my Canadian Bar Review article entitled “Pelech: Variations on a Theme”; in 1995 in “Spousal Support After Moge” published by the Continuing Legal Education Society; and in 2011 in The Huffington Post: “Family Law’s Crapshoot: Will Canada Reform Spousal Support Laws?”

And here I go again… the promised consistency and certainty that would allegedly flow from the Spousal Support Advisory Guidelines (“SSAG”) has proven illusory. The stark reality is pre-SSAG one could at least rely on precedent, similar cases with similar facts, but today, not so much, and don’t get me going on the discrepancy in the use and abuse of the SSAG across Canada.

Sadly, similarly situated spouses across Canada face support awards and principles that bear little resemblance to spousal support orders made in British Columbia, the jurisdiction that has most avidly welcomed, even embraced the SSAG. B.C. judges and SSAG go together like “Love and Marriage” with all due respect to the great Frank Sinatra and the fine judges of our Court of Appeal.

The lack of predictability in spousal support awards, including variation and termination of support orders, has increasing importance as Canada faces a “greying” population and long term marriages are crumbling at startling rates, owing in part to the “boomers” refusal to imitate the more languid lifestyles of previous generations. It is universally recognized that many Canadians are healthier, and with advances in medicine, life now has more “cherries in the bowl”. Statistics Canada reports that by 2036 there will be only 2.5 workers in Canada for every retired senior. That’s a lot of old people!

Spousal support for spouses 50 or older introduces considerations and consequences that require a nuanced approach to the determination of quantum and duration, reviews, variation, and termination. In this paper I will review the most recent spousal support cases from the British Columbia Court of Appeal to provide a glimpse of current trends and issues.

I believe this review will illustrate the impact of grey divorce on Canada’s divorce industry and the future prospects for family law lawyers.

1. JENDRUCK v. JENDRUCK 2014 BCCA 320

The Jendrucks were married for 34 years, were in their late 50’s, and had two independent children. Mrs. Jendruck was not employed at the time of trial but had previously worked at a bank for 20 years and operated a daycare from her home. Mr. Jendruck’s income was $80,000 per annum.

Mr. Jendruck argued his wife had made no effort to become economically independent and that income should be imputed to her. The trial judge found that Mrs. Jendruck’s lack of self- sufficiency was Mr. Jendruck’s fault as he had maligned his wife’s daycare operation, leading to her emotional issues. The trial judge expressly noted that Mrs. Jendruck could not be expected to work for minimum wage at a job that would provide no satisfaction to her.

Support was ordered at the highest range of the SSAG, an amount of $3,849.00 per month, to be reviewed in 2020 when the husband would attain 65 years of age.

The husband appealed citing the trial judge’s error in attributing his wife’s inability to continue with her daycare operations and emotional upset to him. He also argued that the notion that his wife was exempt from seeking outside employment,
albeit at minimum wage, was wrong in law.

Madam Justice Saunders agreed that the trial judge had erred on the basis of the following factors:

a) Neither the pleadings nor the trial evidence supported the trial judge’s theory that the wife was unable to restart her daycare;

b) There was no evidence, other than the wife’s; that her emotional state would prevent her from the childcare work she aspired to.

c) Mr. Jendruck’s “unenthusiastic” comments about his wife’s daycare operation did not “bear upon her ambition once he left the family home”.

d) Mrs. Jendruck had argued she needed to retain the family home in order to operate her day care, a position the trial judge acceded to.

e) The court cited Van Gool v. Van Gool (1998) 44 RFL 4th 314, for the proposition that “this Court has never sanctioned the refusal of a parent to take reasonable steps to support his or her children simply because they could not obtain interesting or highly-paid work”, declaring it to be applicable to a spouse’s obligation to contribute to her own support insofar as is practicable, pursuant to the Divorce Act.

The Appeal Court imputed income of $1,000 a month to Mrs. Jendruck; found that the review provision upon Mr. Jendruck’s 65th birthday was not unreasonable and left it in place; but also ordered an earlier review to take into account the uncertainty of Mrs. Jendruck’s earned income. This review was to take place in six months and focus on Mr. Jendruck’s income, Mrs. Jendruck’s income, and her efforts to enhance her income.

IMPORTANT “TAKE-AWAYS” FROM JENDRUCK

a) The wife’s pleadings did not include the assertion she was incapable of restarting a day care in her home. With the new “check-box” pleadings it is easy to skip over important facts that are central to a party’s case. Counsel often forgets it is the pleadings that govern the issues and argument in a case.

b) The Court found that the wife’s evidence of emotional upset and an inability to work was insufficient to make a finding of fact in that regard. When physical or emotional incapacity is relied on to support an award of spousal support, there must be independent third-party evidence such as medical records or a medical report.

c) Despite a 34-year marriage, and a 58-year old dependent spouse, with no more than a grade twelve education, but previous work experience, counsel can no longer suggest that it is inappropriate or degrading for their older female clients to work at a menial job for minimum wage.

Lawdiva aka Georgialee Lang

Ugly Dispute Between Mother and Daughter Righfully Astounds Court

GEO_edited-12

Some family disputes between warring spouses can be terribly nasty but they take a backseat to the ugliness of the case of Jafar-Gholizadeh v. Larijani 2018 BCSC 279 which shows the worst of an adult daughter pitted against her long-suffering mother over the purchase of a home.

Mother Nasrin Jafar-Gholizadeh, age 58 at the time of the dispute, had three children: Samaneh, age 36; Honey, age 33; and Keon, age 26. In 2002, the family operated a hookah lounge/tea house business where the spouses worked. Samaneh was on her own and in university at the time the business commenced but moved back into the family’s rental premises in 2003. By 2007 she had a university degree and was employed. She loaned her mother and father $10,000 and they purchased a condominium, a debt that was quickly repaid to her.

In 2008 Samaneh’s parents separated. The children including Samaneh remained with their mother. Nasrin purchased her husband’s interest in the hookah lounge and continued to operate it until 2015, when it closed down. From time to time the children assisted with the operation, happy to work for tips.

After her divorce in 2009 Nasrin decided to buy a home in Burnaby which she registered in the names of herself and her daughter Samaneh as joint tenants, after Nasrin realized that her income was not sufficient to obtain a mortgage on her own. Nasrin also borrowed $23,000 from Samaneh to satisfy her debt to her ex-husband as a result of the divorce settlement. Samaneh resided in the home until 2011 after which the relationship between mother and daughter became estranged with only limited email communication. Later Nasrin was not even aware of where her daughter was living.

In the Fall of 2011 Nasrin began receiving abusive vitriolic emails from Samaneh with respect to the second loan, which her mother repaid with interest in October 2011.

Life became even more complicated when the mortgage signed by Nasrin and Samaneh came up for renewal in November 2014. Without Samaneh’s signature, Nasrin was in a difficult position, a situation she resolved by signing Samaneh’s name to the mortgage renewal documents. At trial she readily admitted that what she did was wrong and expressed sincere remorse.

Samaneh became aware of the “forgery” when she tried to obtain a mortgage for herself and was unable to because of her previous mortgage commitment. This is when the conflict escalated with Samaneh threatening to call the police and alleging that her mother had “screwed her forever”. She also regretted signing on the mortgage alleging she had now lost any first-home owner discount otherwise available to her. This is when she demanded her mother sell the home and pay Samaneh her one-half.

Samaneh hired a lawyer who proposed that for one-half of the sale proceeds, his client would agree to forgo a claim for past wages for her work in the hookah business, in the amount of $80,000, and drop her “forgery” claim. By this time the home was assessed at $1,164,600 with a mortgage of $605,000.

The Court determined that the outcome of the case hinged on the credibility of the parties, finding that Samaneh’s evidence was not credible. The judge rejected Samaneh’s assertions that:

1. She was an integral part of the decision to purchase the home and helped find a suitable home;
2. That she and her mother discussed that she would be entitled to 50% of the house in exchange for working for free at the family business and providing loans to her mother;
3. That she had offered to make mortgage payments but her mother said that wasn’t necessary while a loan was outstanding.

Apart from the evidence of Nasrin and the other adult children it is apparent from the Reasons that Samaneh’s abusive emails weighed against her. The Court reproduced scurrilous excerpts to provide the flavour of her rage and hostility toward her mother.

The Court found that Nasrin had made all the mortgage payments, property tax payments, and paid all other expenses to maintain the home. She had also expended $100,000 on home renovations. Nonetheless, while the court held that Samaneh’s half-interest was held in trust for her mother, the judge recognized that Samaneh’s “gift” to her mother of co-signing the mortgage was a valuable contribution which had produced consequences not expected by Samaneh. The Court ordered Nasrin to pay Samaneh 10% of the net sale proceeds of the home.

She also awarded costs to Nasrin based on the untrue and misleading evidence led by her daughter.

How many friendships and family relationships have come undone because of financial arrangements not committed to writing? It would have been so simple for Nasrin and Samaneh to sign a document that explicitly set out the terms of Samaneh’s participation in the purchase of her mother’s home.

One would have more sympathy for Samaneh had she not resorted to “gutter” language in her dealings with her mother, but the final result was based on the judge’s finding of facts and the law on trusts.

Lawdiva aka Georgialee Lang

Nice Guys Finish Last

GeorgiaLeeLang025I remember years ago looking at a website for an American family law firm and perusing their “rules” for family law litigation. The one that most stuck in my mind was their admonition that “nice guys in family law cases finish last”. At the time I cynically thought they were correct, and I still do.

An example of this truism is the recent British Columbia Supreme Court case of T.N. v. B.N. 2018 BCSC 201 where the parties were married for 22 years. At the date of separation the parties’ two children remained in the primary care of their mother who was a registered nurse who earned $28,000 per year working part-time. Prior to the birth of her children she held prominent high-paying nursing positions. Her husband was an academic with a Ph.D degree who earned $126,000 per annum. In 2007 the parties signed a separation agreement that resolved all issues including parenting and financial issues.

Their agreement was completed just before the final Spousal Support Advisory Guidelines (SSAG) were published, but both parties were aware of them and recognized the likely amount that would flow in spousal support to Ms. N. as a result of her and her husband’s respective incomes.

The agreement stipulated that based on their current guideline incomes, Ms. N could expect to receive between $1,728.00 and $2,378.00 per month. However, Mr. N. agreed to pay his wife $3,400.00 per month for at least one year after the date of the agreement in order to ensure that Ms. N. could remain in the family home with the children. The agreement also provided that:

“The parties both acknowledge the need to adjust, within a reasonable period of time, to a level of Spousal Support that fits within national guidelines and standard customs and practices in British Columbia and Canada.”

As it turned out, Mr. N. paid this monthly sum until 2014. Besides paying guideline child support and over-paying spousal support, Ms. N also received more than 50% of the parties’ family property. Mr. N. asserted he paid her an extra $277,000, but during the hearing agreed with Ms. N. that the amount was closer to $139,000, still not a small amount.

While the agreement called for a review of spousal support, for years the parties ignored this clause and life carried on. In the meantime, Ms. N. related the children’s very negative reaction to the parties’ divorce and their escalating deviant behaviour, conduct that limited their mother in her work hours, coupled with an estrangement between the children and their father. Mr. N. deposed that parental alienation had played a part in his lack of relationship with the children, a fact that was denied by his ex-wife.

Naturally Mr. N. argued and expected that his additional financial efforts would be sufficient to support his position that he had fulfilled his legal financial obligations to his former wife.

Unfortunately for Mr. N., his former wife had also suffered from several major health ailments and for several years was unable to work at all, although by the time of the hearing she reported 2016 income of $84,000 and 2017 income of close to $60,000.

The Court determined that Ms. N. had a strong compensatory claim which called for a retroactive support order at the high end of the SSAG range, noting that if the only advantage to Ms. N. was an overpayment of spousal support the court would not decrease the length of ongoing spousal support.

However, the court acknowledged that Ms. N. received more than 50% of the value of the family home, however, the parties had not shared their employment pensions or Canada Pension. The value of these assets was not before the court, but the Court estimated that Mr. N.’s would be far greater based on his work history. The Court thus determined that Ms. N. was still entitled to spousal support albeit at the low end of the SSAG range.

A further interesting judicial observation was the Court’s statement that “one might think that a person earning between $60,000 and $85,000” may give an appearance of self-sufficiency but that would not necessarily be true. An unbiased assessor may disagree that a single woman would not be entirely self-supporting on this income, however, the family law definition of “self-sufficiency” incorporates a “standard of living” test and an unspoken “comparison of incomes between former spouses”.

It is not surprising that Ms. N. was still entitled to spousal support, based on well-known compensatory principles, however, it is very likely that Mr. N. expected that his early generosity would translate to a reduced time period for payment of support. Instead the Court ordered continuing support of $1,967.00 per month for an indefinite period of time and $9,000.00 of retroactive support beyond the contracted overpayment, based on the high range of the SSAG.

Lawdiva aka Georgialee Lang

Grandparents Arrested in Child Abduction Case

GeorgiaLeeLang057Chris Brann is a Houston, Texas doctor whose 9-year-old son, Nicolas, was abducted by his ex-wife, Marcelle Guimaraes, in 2013, on the pretence that she was simply attending a wedding in Brazil, her home country and the home of her parents.

She led Mr. Brann to believe that after the wedding celebrations she and Nicolas would return to Texas, where the parties shared joint custody of Nicholas, but that was a subterfuge. She had already prepared in advance to remain in Brazil; obtain a sole custody order; and with the help of her parents had arranged to pre-register Nicolas in a school in Brazil.

Mr. Brann filed an application for the return of Nicolas under the Hague Convention on Child Abduction, an international treaty to which most countries are signatories, as is Brazil. However, Brazil is also one of several countries who pay lip service to the treaty but frequently ignore the spirit of the law and through delay and other tactics fail to order the return of children.

The guiding principle of the treaty is that custody decisions should only be made in the country where the child is “habitually resident” in order to foil parents who abscond to another country and seek orders that would not otherwise be granted in their home country.

While father Brann has visited his son in Brazil numerous times, the justice system in Brazil has failed to respond in accordance with the treaty. However, the tide may now turn as Nicolas’ Brazilian grandparents, Carlos Otavio Guimaraes, 67, and Jemima Guimaraes, 65, were taken into custody this week when they arrived at the Miami International Airport. Their involvement in Nicolas’ removal from Texas has led to charges for international abduction and conspiracy to abduct. They face up to five years in prison if convicted.

Mr. Brann reportedly issued a statement remarking that he was “very sorry it has come to this” and hoped their arrest will convince them to persuade their daughter to return Nicolas to the United States in return for his plea for leniency for them.

Child abduction is one of the worst forms of child abuse and too often abducting parents are given a slap on the wrist, rather than the harsh punishment their conduct deserves.

Lawdiva aka Georgialee Lang

If You Don’t Ask, You Don’t Get

GEO CASUALIt is open season on spouses who own substantial assets, now that s. 89 of the Family Law Act has found its footing in British Columbia jurisprudence.

S. 89 permits a spouse to apply for an “interim distribution” of family property prior to a final division of property where a spouse needs money to settle or litigate the family case, or funds to obtain information and evidence that will assist them to settle or litigate their case.

Prior to the introduction of this section, litigants without access to ready cash were severely prejudiced, often unable to retain counsel or hire accountants and other experts required to prove their case. Longtime case law prevented any distribution of property in order to retain counsel.

Cases now abound and large amounts of money have been ordered to be paid by property owning spouses. In some cases, these spouses have been ordered to mortgage their property or otherwise borrow funds to pay their less well-financed spouses. It is not unusual to see orders of six figures, no small-time amounts.

However, all of the current cases recognize that this financial remedy is restricted to applications for funds prior to trial. Until today, that is.

In Negus v. Yehia, 2018 BCSC 3, a high-conflict case where Ms. Negus has already received $533,500.00 pursuant to S. 89, her counsel had the temerity, on the last day of trial, to make yet another application for funds. She advised the court that her client owed $400,000 in legal fees and sought another interim distribution.

The court judiciously refused the request saying:

“While I have been referred to a number of cases where the court has ordered advances under s. 89, all of those orders were made before trial in order to permit the economically weaker spouse to prepare for and conduct a trial. That has included, where necessary, putting that spouse in a position to pay for expert evidence. The focus is on the fairness of the trial process and the ability of both spouses to effectively put forward all relevant evidence. I have been referred to no case where such an order was made during or after trial.

In this case, I find that the purpose of s. 89 has been achieved, presumably with the help of the advances already ordered. There has already been a trial in which the “playing field” was clearly level and the claimant, with the assistance of experienced family law counsel, was able to vigorously challenge the respondent’s position.
An additional advance at this stage would do nothing further to meet the objectives of s. 89.”

I guess if you don’t ask, you don’t get, but this one took chutzpah!

Lawdiva aka Georgialee Lang

Hard-Luck Case Leads to Cancellation of Child Support Arrears

DSC01152_2 (2)_2There’s a saying “If it wasn’t for bad luck, I’d have no luck at all”, a sentiment that the litigants in K.S. v. M.B. 2017 BCSC 2390 should heartily embrace.

The parties lived together for 9 years and had a daughter born in 1986. They separated two years later with mother having custody of their child and father paying regular child support. In 2004 a court found their daughter was no longer eligible for child support as she was living independently and working in the sex trade.

In 2010 another judge of the court heard evidence from the parties and made an order that the father owed arrears of child support of $18,543 for the period between May of 1991 and April of 2003. However, the order was not entered until January 2017 and the mother made no efforts to collect the child support monies she was owed.

Tragically in 2014 their daughter, who had been living in California, was found murdered in New Orleans.

The father, who graduated from high school in 1976, began working as a long-haul truck driver, however, in 1990 he fell off the truck roof, a fall that damaged rods in his back placed there in 1974 to treat his scoliosis. He was in a full body cast for a year as a result.

The nineties were not good times for the father. Between 1992 and 1995 he was involved in criminal law proceedings and was convicted for criminal negligence causing death, He served one year of a three-year sentence. Trying to work his way back to productivity he obtained a diploma in computer networking and telecommunications and found work as a computer technician, until his employer went bankrupt.

He went back to truck driving but injured himself on the job and broke three ribs, an injury that compromised his already damaged spine. While recovering he was diagnosed with two different types of cancer and was on chemotherapy from 2013 to 2016. He welcomed the remission, but was unable to be gainfully employed as he could not stand for long periods of time and even walking was difficult. He was also diagnosed with rheumatoid arthritis in his lower back and hands.

The issue before the court was whether is would be “grossly unfair” to cancel the arrears of child support arising from the 2010 order. At the time of the hearing he was 59 years old and surviving on a pension of $1,600 per month, which would terminate at age 65.

On the other side, the recipient parent was also living on a disability pension which was to end in November 2017, following which she would have only her Canada Pension Plan and Old Age Security benefits. She had also suffered from bad health and in 2010 had taken legal custody of their daughter’s child. She advised the court that she needed the arrears to support herself and her grandchild.

The court reviewed the legal principles relevant to an application to cancel arrears, noting the following:

1. Arrears will only be cancelled if the person has no present and no future ability to pay;
2. Delay in enforcing an order for arrears is generally not a legal basis to cancel or reduce child support;
3. Arrears will not be cancelled because the children were “taken care of” financially by others;
4. Arrears payments of a large sum will not be considered a windfall to the recipient parent.

The court commented that the death of a child does not automatically cancel arrears of support, however, it is a factor the court may consider to determine if it would be “grossly unfair” not to do. The court also promptly dismissed the mother’s argument that she required the child support arrears to support her grandchild, a submission that very likely hurt the mother’s case.

Taking into account all of the circumstances, Mr. Justice Ball ordered that all arrears, interest and penalties be cancelled and that each party pay their own costs.

Another sad family law case where poverty plays a central role.

Lawdiva aka Georgialee Lang