How to Ensure Your Family Court Judge Will Rule Against You….

GeorgiaLeeLang025Family law is incredibly emotional, particularly when it comes to parenting and children’s issues. But there are basic “rookie” mistakes that well-meaning moms and dads make, despite their valiant efforts to present themselves as good parents focused on their children’s best interests.

One of those mistakes is surreptitiously recording your children or your separated spouse.

So many Canadian judges have criticized this practice that it is almost trite law that it should be avoided. For example, Ontario Justice Pazaratz says in Whidden v. Ellwood, 2016 ONSC 6938

“Parents shouldn’t surreptitiously audio record their children. It’s a breach of trust; an abuse of access; and a cheap manipulation of an innocent child. Sheidaei-Gandovani v. Makramati, 2014 ONCJ 82 (CanLII), 2014 ONCJ 82 (OCJ); Hameed v. Hameed, 2006 ONCJ 274 (CanLII), 2006 ONCJ 274 (OCJ); Jackson v. Mayerle, 2016 ONSC 72 (CanLII), 2016 ONSC 72 (SCJ)”.

A British Columbia judge wrote:

“I am of the opinion that it is not desirable to encourage the surreptitious recording of household conversations, particular so when it is done in the family home and the conversations are between family members. This is an odious practice.” (Seddon v. Seddon 1994 BCSC 1062)

The rationale for filming your child during a parenting exchange time is usually done to show one of the following behaviours:

a) The child’s unwillingness to go to the other parent;
b) The child’s eagerness to go to the other parent;
c) The opportunity to present evidence of the other parent’s nastiness, bad language, late arrival, abusive behaviour, etc.

Yes, you will find judges who will admit audio/video recordings into evidence, but the general consensus is that they are rarely useful or necessary for a judge to determine how to determine custody or divide parenting time between parents.

Why do judges dislike audio or video recordings? Because:

a) Parents use recordings to make the other parent look bad, but more often then not it backfires, causing the Court to doubt the judgment of the recording parent;

b) Recording your child or spouse raises doubts about how a fit parent could be so insensitive as to place an innocent child in the middle of an inflammatory situation;

c) The clear message to the child is “Look how bad your mother/father is, so much so that I have to record him/her”.

And yet, clients will continue to ignore the good advice they receive from their lawyers and smartphones will continue to be a part of a warring parent’s arsenal…sad but true.

Lawdiva aka Georgialee Lang

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Courtrooms Flooded with Litigants With No Lawyers

GEO CASUALIt’s not getting any easier to be a judge these days, as self-represented litigants continue to overwhelm Canadian courts in increasing numbers.

With the abolition of Legal Aid and a middle-class that can’t afford to hire lawyers, the situation has become dire.

University of Windsor law professor Julie MacFarlane’s research indicates that up to 80% of court users in family law go into court without a lawyer.

The popular cliché that people who represent themselves in court have fools for clients has never been more true, and despite the increasing availability of pro bono legal services, rarely does free legal advice mean that a lawyer will show up in court.

While it is lawyers that have the reputation for talking too much and wasting court time, the truth is that court cases with lay litigants take up many more court hours because rules of evidence and procedure, while somewhat relaxed for in-person litigants, must still be maintained to ensure due process and the integrity of our justice system.

In a recent court case, with no counsel, where the issue was whether a Pakistani divorce was authentic and legitimate, one judge said:

“I record that I began this case at 10.30 a.m. this morning and I am now concluding it around 3.30 p.m. It has, accordingly, effectively occupied the whole of the court day. By sheer good fortune, the other case which had been listed for hearing by me today was vacated [postponed] yesterday for reasons connected with its readiness. If that case had not been vacated, I, and the litigants in that case, would have been faced with very considerable difficulties and a severe shortage of court time, and probably also additional expenditure to the parties in that case who, as likely as not, would have to have returned on another day.”

The judge found that the divorce was valid, but was justice really served when he noted that he did not have any basic materials, no orderly bundle of relevant documents, no chronology, no case summaries, and no real argument.

Professor MacFarlane’s observation that “it’s the inmates who are running the asylum” is sadly apropos.

Lawdiva aka Georgialee Lang

The Difficulty of Ridding Your Case of a “Seized” Judge.

GeorgiaLeeLang100It is not unusual, especially in family law cases, to have a judge conclude a hearing with the phrase “I will seize myself of this case”. What that means is that the judge has decided that it is reasonable, necessary, or simply prudent for him or her to hear all future court applications regarding the case.

Often this is good news to the parties and their lawyers, but other times it is a fate that is not welcomed.

Madam Justice Martinson in AA v. SNA 2009 BCSC 387 explained the rationale behind a judge seizing herself of a case:

“[77] It is imperative in high conflict family cases generally, and certainly in cases involving allegations of alienation like this one, that one member of the Court take charge of the case. Having a single judge hear cases is required by s. 14 of the Supreme Court Act:

(1) All proceedings in the court and all business arising from those proceedings, if practicable and convenient, must be heard, determined and disposed of before a single judge.

(2) All proceedings subsequent to the hearing or trial including the final order, except as otherwise provided, and on a rehearing must, if practicable and convenient, be before the judge before whom the trial or hearing took place.

[78] The reasons for doing so for all cases are obvious. The judge will be familiar with the case so the litigants do not have to explain the situation over and over again. It avoids “judge shopping” to try to get a better result. It prevents inconsistent approaches. It saves legal and other costs. There will be times in dealing with some cases when it is not convenient or practical to do so.”

In cases like the latter, judges often seize themselves with the proviso that if the matter is urgent and they are not readily available, then another judge can hear the case.

But often one party, usually the party who consistently “loses”, alleges bias and seeks to rid the case of the seized judge. Recently, the British Columbia Court of Appeal in NRG v. GRG 2017 BCCA 407 weighed in on this topic saying:

“There is much wisdom in Madam Justice Martinson’s observation that a family unit may benefit from a judge seizing him or herself of a case. That does not mean, however, that the seized judge should remain seized to the last application filed. The very fact the judge is seized of the case increases the opportunity to develop an impermissible point of view about the case or the parties, and emphasizes the vital requirement of assiduous objectivity. All trial judges will know there may come a time in the conduct of a case when the judge says, “I have done my best and should pass this to fresh eyes.” In our respectful view, this may be such a time.”

The Appeal Court noted that while the appellant sought an order from the appellate panel reversing the Supreme Court judge’s “seizure” proclamation, the Court observed they lacked jurisdiction to overturn the seizure, not wishing to interfere with the lower court’s process, and also did not characterize it as an order of the court. They suggested that a litigant must appear before the seized judge or the Chief Justice of the Supreme Court to obtain such a direction.

Frequently, a complaint against a judge who has seized himself is accompanied by an application requesting a judge to remove himself from a case based on a reasonable apprehension of bias, another application that must go before the judge in question and is most commonly dismissed.

I remember a case many years ago where I drew what I believed to be an “unfavourable” judge and convinced opposing counsel to adjourn the case so that settlement discussions could ensue. When we advised the court we were adjourning by consent, the clever judge declared that he would be seized of the case, despite hearing no evidence at all. It was clear he figured out that the adjournment was an escape from his courtroom…and he was right!

Lawdiva aka Georgialee Lang

Toronto Lawyer’s $2 Million Dollar Fraud Conviction Upheld

GEO#1Yesterday the Ontario Court of Appeal dismissed Toronto corporate lawyer, Remy Boghossian’s appeal from his 2015 conviction for an almost $2 million dollar fraud on the Royal Bank of Canada. (R. v. Boghossian, 2017 ONCA 870 CanLII)

The scam involved Mr. Boghossian and two co-accused acquiring a forged TD Canada Trust bank draft for $1,895,751 in February 2011 from an unidentified bank insider at the Mississauga branch of the TD bank. The funds were then deposited into Mr. Boghossian’s trust account, whereafter he purchased, in two separate transactions, Australian-minted gold bullion from a company in Montreal.

Mr. Boghossian’s lawyer argued that his client purchased the gold on behalf of a client, Omar Ali, who was a real estate developer going through a divorce who wanted to hide the money from his wife. He asserted that his client was a victim of the scam and had been duped into participating. The trial judge found that Mr. Ali did not exist and was created to advance the fraud. He held that a strong circumstantial case had been established and that the three accused acted together to knowingly defraud the Royal Bank by presenting a forged TD bank draft.

The court heard that Boghossian’s two accomplices tried to sell some of the gold bars, but a wary gold dealer recognized the “kangaroo” logo on the bars and contacted the police.

What remains a mystery is who the insider at the TD Bank is and where the gold bars are now. Media reports indicate that the police have discontinued their investigation of these two matters.

Mr. Boghossian also appealed his 3 1/2 year sentence, arguing that as his co-accused only received 3 years each, his sentence should be reduced to three years. The Court of Appeal dismissed the sentence appeal saying:

“In our view, the extra six months awarded the appellant does not raise parity concerns. The appellant was a lawyer. His status as a lawyer and the role his status as a lawyer played in the commission of the offence justified treating this as an aggravating factor, warranting a somewhat higher sentence for the appellant. We see no error in the sentence imposed.”

It is expected that the Law Society of Ontario will disbar Mr. Boghossian.

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How “Uncivil” Can a Lawyer be in Court? The Groia Case

GEO_edited-1If you are a litigator in Canada you should know the name “Joe Groia”. He is a masterful legal advocate from Ontario who specializes in securities law. His prominence in the legal profession was capped this week when Groia v. The Law Society of Upper Canada (now the Law Society of Ontario) was argued before the Supreme Court of Canada. (Law Society of Upper Canada v. Joseph Peter Paul Groia, 2012 ONLSHP 94)

Why is Mr. Groia suing Ontario’s Law Society and why would the Supreme Court of Canada agree to hear his case? In June 2012 the Law Society held that Mr. Groia had professionally misconducted himself while defending his client John Felderhof in an action taken against him by the Ontario Securities Commission. You may recall that Mr. Felderhof was second in command at Bre-X Minerals Ltd, the Canadian-owned gold mine in Borneo that turned out to be a fraud, leaving thousands of investors with losses of hundreds of millions of dollars after investing in the bogus company.

Groia’s representation of Mr. Felderhof was second-to-none, as Mr. Felderhof, after 160 days of trial, was acquitted of all charges. However, the Law Society took it upon themselves to call Mr. Groia to account for his allegedly “uncivil” behaviour during the proceedings, conduct so egregious that during the trial, lawyers for the Ontario Securities Commission asked the judge to stop the trial arguing that he had lost jurisdiction by failing to rein in Mr. Groia’s outrageously rude behaviour in the courtroom. That application failed and the trial continued.

Two Ontario courts reviewed and upheld the Law Society’s ruling against Mr. Groia, describing his trial conduct as “unrestrained invective”, excessive rhetoric”, “theatrically excessive”, “sarcastic and petulant”, “more guerrilla theatre than advocacy in court”, and “attacks on the prosecutor’s integrity”.

Nonetheless, it is noteworthy and significant to Mr. Groia’s defence that the trial judge did not hold him in contempt, neither did he report Mr. Groia’s trial behaviour to the Law Society.

Groia, in rebuttal offered the following arguments:

1. He cast no personal aspersions against opposing counsel, but only targeted the Securities Commission and the prosecution;

2. His basis for alleging prosecutorial misconduct was based on his reasonably held views;

3. His language was mischaracterized by the Law Society and the courts;

4. The tone of the trial was an important factor in assessing his conduct, particularly in light of the prosecutor’s behaviour;

5. The Law Society retroactively applied standards of the “civility movement” to his conduct; and

6. His obligation as an effective advocate outstripped any absence of civility.

Without reading the whole of the transcripts of the trial, it is difficult to assess whether Mr. Groia’s behaviour fell so far below the standard of professionalism of a barrister that he ought to have been sanctioned by the Law Society. His original punishment was a two-month suspension of his license to practice law and an order that he pay costs of $250,000. This penalty was later reduced by the courts to a one-month suspension and $200,000 in costs.

Mr. Groia would, of course, argue that even reading the transcripts one would not be in a position to assess the conduct and roles of each of the counsel and judge at the trial and that may very well be true. It’s the old story that “you had to be there” to understand the dynamics.

Media reports from the hearing in the Supreme Court of Canada this week, appear to underscore the high court’s focus on the absence of disapproval from the trial judge, who was best placed to determine whether Mr. Groia’s conduct sunk to a level where he deserved to be chastised or disciplined.

As a trial lawyer in hard-fought cases, I tend to agree that it is not the Law Society’s place to interfere as a back-seat referee in a hotly contested proceeding where an unsuccessful defence will lead to dire consequences for the accused.

The Supreme Court of Canada clearly wants to provide guidance to litigators. We must now wait to see what the Supremes think…

Trial Debacle Leads to Freedom for Pedophile From Nova Scotia

BarristerDespite what you hear or read, you can’t blame Ernest MacIntosh for the Supreme Court of Canada’s decision to quash his convictions for sex charges involving young boys in the 1970’s. (R. v. MacIntosh 2013 SCC 23)

A successful Cape Breton businessman, MacIntosh was transferred by his employer to Singapore and then to India in 1994 where he remained until his extradition back to Canada in 2007 to face numerous counts of indecent assault and gross indecency charges stemming from allegations made by six young men in 1995.

When MacIntosh left Canada in 1994 there were no charges against him and he had no idea that charges may be laid. Over the years he travelled between India and Canada, renewing his Canadian passport from time to time as required by Canadian law.

He was not hiding from the law. Canadian authorities knew where he lived in New Delhi and had his phone number. Coincidentally, one of his neighbours was an RCMP officer who worked as a liaison in India.

MacIntosh finally became aware of two criminal charges in 1997 but was led to believe by Canada Passport authorities that the charges were not proceeding. He heard nothing more until nine years later, despite the fact that in 2001 fifteen more charges were brought against him and he renewed his passport in 2002. The Crown acknowledged their decision to extradite Mr. MacIntosh in 1997 but as you will read, did nothing about it for nine years.

In 2006 the Crown filed extradition proceedings in India, some 11 years after the first charges were laid and five years after the second group of charges were filed against him.

Mr. MacIntosh was brought back to Canada in June 2007 but did not receive complete mandatory disclosure from the Crown until eleven months later, an astonishing delay considering that the Crown had readied their cases years before.

He finally went to trial in July 2010 and was convicted on several of the charges. However, the Nova Scotia Court of Appeal overturned the convictions based on the 14 year delay of the Crown in proceeding against MacIntosh. But that wasn’t the only problem with the convictions.

The trial judge had so badly confused the evidence, even mixing up the witnesses and attributing evidence to one witness that was derived from another, that the Appeal Court determined that even absent the extraordinary delay, the judge’s errors would be cause for a new trial.

A key issue at the trial were statements made by an alleged victim in 1995 and again in 2000 concerning details of the abuse he suffered, that simply could not be reconciled.

The trial judge acknowledged the discrepancies and based on the victim’s evidence and the testimony of another witness, determined that the assault did not take place at all. Yet despite this finding, the judge did not turn his attention to the issue of the victim’s overall credibility.

The finding that the alleged abuse did not occur as described, or at all, points to a flaw in the Crown’s preparation of their witness. In cases where a witness signs a comprehensive statement which he radically amends five years later, it is incumbent upon the Crown to test the evidence of the witness to ensure its reliability. Under cross-examination, this witness agreed that the event did not occur.

That the Supreme Court of Canada denied the Crown’s appeal in an oral judgment from the bench speaks to the Crown’s flimsy case. After all, an accused is not obliged to turn himself into the police or give a statement. It is the Crown’s job to bring an accused to trial.

Most notably, the Crown was unable to provide any rationale for their delay in prosecuting this case and cries for a public inquiry may well be revived now that our highest court has spoken. However, karma is alive and well because a few short years later Mr. MacIntosh was convicted of sex crimes in Nepal and sentenced to seven years in prison.

I suspect he would rather be serving time in a Canadian prison…

Not Ready for Trial? Ontario Court Says Too Bad….

GeorgiaLeeLang057An Ontario judge has spoken out clearly about counsel who book trials and then abandon them on short notice to the courts. In Armstrong v. Armstrong, 2017 ONSC 6568, Mr. Justice Pazaratz called the case, involving a reduction or termination of spousal support, only to learn that the litigants in the case were not available, and an adjournment was sought by both counsel.

Counsel had earlier agreed and the court permitted them to adjourn the trial, then set for August 2017. At that hearing, counsel had agreed the trial would proceed in October 2017 for three days.

Counsel advised the court that an error had occurred and their clients incorrectly believed the rescheduled trial would take place in January 2018. Counsel also stated that a settlement conference had not been booked which might assist the parties to settle. As well, one of the lawyers indicated he had a doctor’s appointment that afternoon. Judge Pazaratz queried counsel as to why a trial was booked if settlement had not yet been explored, and also opined that the court would and could work around counsel’s medical appointment, but that did not justify an adjournment of the trial. He also said:

“The implications of attending court on day one of a three day trial and requesting an adjournment go far beyond merely wasting one day of court time. Judges and trials are scheduled based on a balancing of multiple scheduling considerations. If this three day time slot becomes wasted, there may be far-reaching consequences (for example another three day trial could have been called, but if I am only available for two more days this week, it means I don’t have enough time to deal with that other matter).”

Judge Pazaratz advised counsel to get their clients to court immediately so the matter could proceed unless a settlement was reached, and warned them that if the matter was not settled and the trial did not go ahead, he would dismiss their case.

Counsel returned with a consent order in which each party withdrew their claims on a without prejudice basis, however, the Court was not impressed with counsels’ tactics saying:

“The problem, of course, is that if people can simply withdraw claims when they aren’t ready for trial, there’s nothing to stop them from re-commencing those claims in short order, and creating even further stress and expense for the system. We have an obligation to ensure that judicial resources are appropriately utilized and not misused. I am not prepared to allow the parties to simply withdraw their claims on a without prejudice basis.”

Judge Pazaratz then dismissed the claims, but not on the merits, saying that if either party wished to return to court to deal with any of the claims, they would require permission from the Court to proceed, and that in the event that occurred, he would be the judge dealing with the matter.

Where courts are being criticized for a lack of judicial time and unreasonable delays in meting out justice, Judge Pazaratz’s ruling is a welcome response to counsel who abuse the system. While “courthouse steps” settlements are to be encouraged, in this case it was apparent from counsels’ remarks that settlement had not yet been broached; that no trial preparation had been undertaken; and that counsel were content to show up, without their clients, expecting a favourable or neutral response to their self-imposed dilemma.

Lawdiva aka Georgialee Lang