Lawyer’s Puffery as Best Personal Injury Lawyer Leads to Reprimand

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Lawyers, like other professionals and business owners, need to get the word out to the public about their skills and expertise, and advertising in social media, print, TV, radio, and even billboards is not unusual.

However, how far can a lawyer go to tout his qualifications and how circumscribed should a lawyer be in attracting clients? Is exaggeration commonplace, should it be allowed, and how does a potential client distinguish the truth from puffery?

The Law Society of Ontario recently reprimanded an Ontario lawyer for what amounted to misleading advertising. In Law Society of Ontario v. Mazin 2019 ONLSTH 35 the tribunal considered the rules that govern advertising which provide that the marketing of legal services must be demonstrably true, accurate, and verifiable. Advertising that is misleading, confusing, or deceptive, not in the best interests of the public, or inconsistent with the high standards of professionalism expected of lawyers will not be tolerated.

Advertising which may fall afoul of the rules includes suggestions of qualitative superiority over other lawyers, or marketing that refers to a lawyer’s past results, without including a statement that past results are not necessarily indicative of future results. As well, the boasting of dubious awards, rankings, or third party endorsements that are not bona fide is not acceptable.

The tribunal found that Mr. Mazin’s Facebook page included the assertion that he was “Toronto’s Best Personal Injury Lawyer”. He also marketed previous successful results touting that he was “known for record breaking cases and multimillion dollar results”. He tweeted an endorsement from a client who claimed that Mr. Mazin had settled his case for 75 times the amount offered by the client’s insurance company. The required disclaimer about past results not being indicative of future results was absent.

Other problematic marketing included a reference that his firm was “rated by ThreeBestRated.ca to be in the top three personal injury firms in Toronto” and on his website he said he had been “voted best personal injury lawyer in Toronto”, and “voted Navigate Magazine #1 Toronto Personal Injury Lawyer”. He also displayed a badge which read “Million Dollar Advocates Forum”.

The tribunal found and Mr. Mazin agreed that his ratings and awards did not reflect his performance as a personal injury lawyer and did not include any input or evaluation of him by clients or others familiar with his work.

While finding that he professionally misconducted himself, the tribunal meted out the least onerous form of discipline and reprimanded him for his breach of the rules.

The tribunal found that he had practiced for 15 years with no previous discipline history, had cooperated fully with the investigation, and by the time of the hearing had addressed all of the concerns that led to his reprimand.

Lawdiva aka Georgialee Lang

Wife’s Deceit and Fraud Leads to Significant Damage Award

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After 30 years of practicing family law I am certain there will always be another case where deceit and fraud visited upon one spouse by the other is beyond the pale. Skinkle v. Skinkle 2019 ONSC 2353 is such a case.

While the Reasons for Judgment are sparse with respect to the details of their lives together, Randy and Mary Skinkle’s marriage ended, like many others. However, the conclusion of their relationship was marred by Mary Skinkle’s fraudulent financial activities, done without her husband’s knowledge or consent.

The evidence before Mr. Justice LaBrosse showed that Mary Skinkle forged her husband’s signature on numerous letters thereby intercepting monies that were payable to him. She also incurred a number of debts in her husband’s name through nefarious means, leaving him with the responsibility to pay them. Further, she arranged to cash in her husband’s life insurance policy keeping the cash for herself and cancelling the policy.

Randy Skinkle sued his wife for fraud, pleading that she knowingly made false representations to secure funds for her own financial benefit. Further, she fraudulently obtained a mortgage, secured funds from other bank accounts, credit cards, insurance policies, stock bonds, GIC’s, RRSP’s and other individuals.

The Court awarded Mr. Skinkle the sum of $180,455 and accepted that his wife’s conduct caused him mental anguish, inconvenience, and loss of enjoyment of life, not to mention the drastic effect on his credit rating. Judge Labrosse found that Mr. Skinkle had demonstrated that his wife’s actions caused an intrusion on his financial integrity, relying on Sobko v. Amex Bank of Canada (2006) 27 BLR (4th) 114 (ONSC) and awarded an additional $5,000 in damages.

He was also awarded costs close to the substantial indemnity rate based on Mary Skinkle’s fraudulent misrepresentations and deceitful conduct, in the amount of $11,431.

While Ms. Skinkle had initially engaged counsel, she did not show up for the hearing.

Lawdiva aka Georgialee Lang

American College of Pediatricians Say Gender Switches in Kids is Child Abuse

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The American College of Pediatricians, a conservative Judeo-Christian group of pediatric professionals, has declared that “fiddling” with children’s genders is a form of child abuse. The College’s statement includes the following:

“1. Human sexuality is an objective biological binary trait: “XY” and “XX” are genetic markers of health – not genetic markers of a disorder. The norm for human design is to be conceived either male or female. Human sexuality is binary by design with the obvious purpose being the reproduction and flourishing of our species. This principle is self-evident. The exceedingly rare disorders of sexual differentiation (DSDs), including but not limited to testicular feminization and congenital adrenal hyperplasia, are all medically identifiable deviations from the sexual binary norm, and are rightly recognized as disorders of human design. Individuals with DSDs do not constitute a third sex.

2. No one is born with a gender. Everyone is born with a biological sex. Gender (an awareness and sense of oneself as male or female) is a sociological and psychological concept; not an objective biological one. No one is born with an awareness of themselves as male or female; this awareness develops over time and, like all developmental processes, may be derailed by a child’s subjective perceptions, relationships, and adverse experiences from infancy forward. People who identify as “feeling like the opposite sex” or “somewhere in between” do not comprise a third sex. They remain biological men or biological women.

3. A person’s belief that he or she is something they are not is, at best, a sign of confused thinking. When an otherwise healthy biological boy believes he is a girl, or an otherwise healthy biological girl believes she is a boy, an objective psychological problem exists that lies in the mind not the body, and it should be treated as such. These children suffer from gender dysphoria. Gender dysphoria (GD), formerly listed as Gender Identity Disorder (GID), is a recognized mental disorder in the most recent edition of the Diagnostic and Statistical Manual of the American Psychiatric Association (DSM-V). The psychodynamic and social learning theories of GD/GID have never been disproved.

4. Puberty is not a disease and puberty-blocking hormones can be dangerous. Reversible or not, puberty- blocking hormones induce a state of disease – the absence of puberty – and inhibit growth and fertility in a previously biologically healthy child.

5. According to the DSM-V, as many as 98% of gender confused boys and 88% of gender confused girls eventually accept their biological sex after naturally passing through puberty.

6. Children who use puberty blockers to impersonate the opposite sex will require cross-sex hormones in late adolescence. Cross-sex hormones are associated with dangerous health risks including but not limited to high blood pressure, blood clots, stroke and cancer.

7. Rates of suicide are twenty times greater among adults who use cross-sex hormones and undergo sex reassignment surgery, even in Sweden which is among the most LGBQT – affirming countries. What compassionate and reasonable person would condemn young children to this fate knowing that after puberty as many as 88% of girls and 98% of boys will eventually accept reality and achieve a state of mental and physical health?

8. Conditioning children into believing a lifetime of chemical and surgical impersonation of the opposite sex is normal and healthful is child abuse. Endorsing gender discordance as normal via public education and legal policies will confuse children and parents, leading more children to present to “gender clinics” where they will be given puberty-blocking drugs. This, in turn, virtually ensures that they will “choose” a lifetime of carcinogenic and otherwise toxic cross-sex hormones, and likely consider unnecessary surgical mutilation of their healthy body parts as young adults.”

Husband Sues Wife’s Law Firm for Fraud

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Statistics suggest that 98% of family law cases settle out of court. For the unlucky few who can only obtain finality and closure with the aid of lawyers and judges, the journey is long, tortuous, and expensive.

Kenneth Felis of Vermont found himself engaged in divorce court proceedings that drained him emotionally and financially.

The parties had one child and a family estate worth between $12 to $15 million dollars, made up of cash, real estate and business interests.

HIs wife, Vicki, retained the law firm of Downs, Rachlin Martin to represent her in the court action. They, according to Mr. Felis, escalated the conflict by implementing a strategy that generated exorbitant legal fees and was intended to “harass and injure” him.

He sued the law firm for fraud and breach of fiduciary duty for “pursuing unreasonable legal positions, demanding extensive and unnecessary discovery, promoting and claiming outrageous asset valuations, raising claims without proper foundation . . . and billing excessive time.”

The firm had retained business valuators Gallagher, Flynn and Company on behalf of Ms. Felis, who were also named as defendants in Mr. Felis’ lawsuit.

Felis argued that at the outset of the multi-year litigation the “red fee-building flag went up” when Vicki Felis’ lawyers twice asked the court and obtained large distributions of cash to fund her lawyers and the business valuators.

Many jurisdictions permit family law litigants to request advances of cash or assets to enable them to pay for their litigation. It is only recently that British Columbia’s family law legislation was amended to permit these applications as well.

Mr. Felis was particularly incensed by his wife’s claim that he had “wastefully dissipated” millions of dollars from the family assets. To respond to the allegations, Felis’ lawyer was compelled to review and produce copious, detailed financial records and accounting documents, a process that required extensive time and generated additional legal fees.

The Court found Ms. Felis’ allegation of dissipation of funds to be without merit and dismissed her claim.

As for the business valuators, Mr. Felis argued that after years of discovery and production of all relevant documents, Gallagher, Flynn and Company “intentionally and wrongfully put up false expert testimony in an attempt to influence the court to improperly value [plaintiff’s] business assets and achieve an exorbitant and outrageous property distribution for Ms. Felis that was not grounded in the law.”

Mr. Felis also alleged that his wife’s lawyers submitted a false financial affidavit that incorrectly identified her debts, in an effort to gain increased child support.

By the time the divorce proceedings were finalized Ms. Felis’ lawyers’ bill was over $800,000 not including the business valuators’ bill of $248,000, all of which would be paid from the parties’ family assets, meaning that Mr. Felis was on the hook for one-half of over a million dollars in legal and valuation fees.

Regrettably for Mr. Felis, both the trial and appeal courts held that his wife’s lawyers owed no “duty” to him on which he could base a claim of breach of fiduciary duty. The law firm’s duty was to their client, not their client’s spouse. They also held that Felis had not alleged or proven the requisite elements of fraud and thus, that claim failed as well.

The simple fact is that spouses may choose the lawyer they wish. Some divorce lawyers approach all their cases as a full-scale battle and unfortunately, unsophisticated clients tag along for the ride, while more discerning clients put a stop to strategies that only increase the conflict.

Mr. Felis’ complaints may have been legitimate but there is no basis in law for the courts to intervene.

Lawdiva aka Georgialee Lang

The Curse of the In-Person Litigant

I guess I’ve been lucky because I have never had to do a trial or hearing where the opposing party acted in person, “pro se”, as they call it in the United States.

Why lucky? Because some of the worst trial horror stories involve litigants acting for themselves while their spouse has to pay a lawyer hundreds of dollars an hour to respond to often marginally relevant or unreasonable litigation tactics.

A good example is the case of G.T. v A.T. 2014 NY Slip Op 24035 where Mr. T., a well-educated engineer, just short a few credits for his doctorate degree, turned what should have been a three-day trial into a 12-day debacle.

Judge H. Patrick Leis III of the New York Supreme Court described Mr. T.’s behaviour in the opening paragraph of his Reasons:

“This case highlights the difficulties that arise when one party uses their self-represented status as both a sword and a shield in an attempt to gain undue advantage and behaves in a manner that the court would never tolerate from an attorney. The manner in which the defendant presented his minimal evidence, fueled by his own emotional agenda, lacked direction, reason and oftentimes was totally devoid of probative value.”

In many family law cases a case management judge is assigned to deal with all pretrial matters and preside over the trial. Such was the case in G.T. v. A.T., where Mr. T. and his wife brought their procedural issues to Judge Leis for resolution.

During this 18-month period Mr. T. expressed his satisfaction to the Court with the way these preliminary matters were handled.

Nothing Mr. T. said pretrial could have foretold the application he brought when the trial commenced.

With almost no notice to his wife’s lawyer, Mr. T. argued that Judge Leis should recuse (remove) himself as the trial judge because he had been “disrespectful of the parties’ culture and faith, repeatedly pressuring Mr. T. to retain counsel with coercion and threats”.

Mr. T.’s complaints of judicial threats were held to be without foundation, Judge Leis pointing out that he was in receipt of five letters from Mr. T., all glowing with praise of the judge’s pretrial rulings. Remarkably it was Mr. T. who was disrespectful, advising the judge that if he did not recuse himself he would report him to the Commission on Judicial Conduct.

But that was just Day 1. Mr. T. wasted additional court time with a rambling, unfocused, and mainly irrelevant opening statement, the gist of which was his desire to reconcile with his wife.

He then cross-examined his long-suffering wife for four days, ignoring the Court’s direction that he should ask questions of her, not deliver time-consuming, self-serving statements.

He also disregarded the Judge’s evidentiary rulings and even after admonishment carried on with lines of questioning that were beyond the scope of the trial. He refused to abandon his recusal argument and raised issues about orders pronounced by the court months before. Worst of all, he was rude and nasty, shouting aggressively at his wife and her lawyer.

Of course, the main victim of his flagrant abuse of the court system was his wife, who had to take an additional nine days of holiday from her workplace to complete what should have been a three-day trial, and was now subject to ever-increasing legal fees.

Interestingly, Mr. T. had quit his job shortly after the couple separated, a tactic that was futile, since Judge Leis imputed $120,000 income to him, despite his refusal to work.

Unfortunately, short of finding a belligerent litigant in contempt of court, all a judge can do is award costs. That’s just what Judge Leis did, saying:

“Simple justice dictates that the defendant who chooses to function from a position of anger and resentment, not be allowed to purposely drive up the plaintiff’s counsel fees and act in such an inappropriate manner, without being made responsible for all of the trial fees. Therefore, in an exercise of this court’s discretion, the defendant is responsible for all of the plaintiff’s counsel fees for trial.”

You think Mr. T. is done with court proceedings? Think again…there’s always the appeal court.

Lawdiva aka Georgialee Lang

“Habitual Residence” Defined by Provincial Statute Governs in Non-Hague Abduction Cases

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Despite strong judicial denunciation of self-help measures by Courts world-wide, some parents will always resort to the unilateral removal of a child from their home jurisdiction, usually without notice to the child’s other parent and always without that parent’s consent.

If a parent removes (abducts) a child to a country that is not a signatory to the Hague Convention on the Civil Aspects of Child Abduction, or if a parent removes a child from one Province in Canada to another, the left-behind parent must rely on the provincial law, the Family Law Act in British Columbia to obtain a court remedy, as the Hague Convention does not apply.

Most countries have now signed on to the Hague Convention, but as of 2015, 38 countries had not, including Iran, Saudi Arabia, Pakistan, India, China, Phillipines, Jamaica, and ten African countries.

The accepted protocol is for the parent in the child’s home jurisdiction to bring a court action in that province for the return of the child. It is not unusual for the abducting parent to attempt to persuade a Court in the child’s “new” home, i.e. the province or country where the child has been taken, to exercise jurisdiction.

Nonetheless, this tactic will rarely be successful for the reason that a Court in the new jurisdiction will typically accede jurisdiction to the child’s province or country of residence.

The question to be determined by the Court in British Columbia is whether they ought to take jurisdiction and hear the “return” application, a first step that will only be taken if the Court finds that the child’s “habitual residence” is British Columbia.

An illustration of this is the case of Kong v. Song 2019 BCCA 84 where the parents and their child resided in China. With the mother’s consent the father brought the child to B.C. for a trip, to begin in December 2017 with a stated intention to return to China in February 2018.

However, the father refused to return the child and instead brought a court action in B. C. urging the Court to find that the child’s habitual residence was B.C. not China. The rationale for the father’s claim was that the child had been born in B.C. and lived in B.C. for 6 months following his birth. The B.C. Supreme Court found that the child’s habitual residence was China based on the definition in the Family Law Act:

“72 (2) For the purposes of this Division, a child is habitually resident in the place where the child most recently resided
a) with his or her parents,
b) if the parents are living separate and apart, with one parent
i. under an agreement,
ii. with the implied consent of the other parent, or
iii. under an order of the court or tribunal, or
c) with a person other than a parent on a permanent basis for a significant period of time
(3) The removal or withholding of a child without the consent of a guardian does not affect the child’s habitual residence unless the guardian from whom the child is being removed or withheld acquiesces or delays in applying for an order of a court or an extra provincial tribunal.”

What is striking about the Kong case is the Court’s clear opinion that the definition of habitual residence in the legislation governs, and that the concepts of habitual residence flowing from the Hague Convention are not applicable. Noteworthy is the fact that the Hague Convention does not define habitual residence and therefore judicial consideration of the term governs in Hague cases.

This approach is also mirrored in the Ontario Hague Convention case of Korutowska-Wooff v Wooff, 2004 Canlii 5548 ONCA where the Court stated:

[9] I note that the application judge stated that there is also no definition of the term “habitually resident” in the Children’s Law Reform Act. There is a definition of the term in s. 22(2), which defines the jurisdiction of the Ontario courts in custody cases. No argument was made in this case that the definition in that Act has any application (in this Hague case)”

The definition of habitual residence in the Ontario legislation is the same as the British Columbia definition.

Lawdiva aka Georgialee Lang

Challenging a Parenting Coordinator’s Authority

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In two recent British Columbia cases the scope of a parenting coordinator’s authority has been the subject of judicial scrutiny. As parents across Canada recognize the value of utilizing a parenting coordinator, clarification of their role and the ambit of their jurisdiction is likely to continue.

For the uninitiated, a parenting coordinator is a highly skilled professional, usually a lawyer or a psychologist/counsellor who is trained in mediation, family violence, arbitration, and family law principles and whose mandate is to assist separated couples in working together in the best interests of their children. It takes a special individual to work with high-conflict parents and mediate and adjudicate disputes in a highly emotional context. My hat goes off to professionals who take these cases on.

In AKS v. ALES 2019 BCSC 419 the parties agreed in a consent order on a parenting schedule and chose a parenting coordinator to work with them. The order provided for a gradual increase in parenting time to the father, working up to a 50/50 parenting schedule by the time the child attained the age of 8 years old. All of the recommendations, accepted by the parties and contained in the consent order were based on the professional opinion of well-regarded child custody psychologist Robert Colby.

However, when it came time to implement the equal parenting schedule, the child’s mother resisted, explaining that she did not understand the provisions she had agreed to and had not received adequate legal advice.

After Mr. Colby provided an updated custody assessment, again recommending equal parenting, and much to’ing and fro’ing between the parties’ respective counsel, the mother dug in her heels, refused to agree to shared parenting, and requested that the parenting coordinator resign.

Meanwhile, the father asked the parenting coordinator to make a decision based on the Colby reports, and the submissions and letters from both counsel to her over the past several months. She agreed to do so and rendered a written determination implementing equal parenting.

Relying on s. 19(1) of the Family Law Act, the mother sought to set aside the determination:

19 (1) On application by a party to a determination made by a parenting coordinator, the court may change or set aside the determination if satisfied that the parenting coordinator

(a) acted outside his or her authority,

The stumbling block to any success for the mother, was a provision in the consent order which read:

“In the event that the parties are unable to resolve the issue of the September 1, 2018 variation to the claimant’s parenting time by agreement, the Parenting Coordinator will have the authority to resolve that issue by way of a determination.”

The Court refused to set aside the determination holding that the consent order provided the parenting coordinator to make the determination. The Court also rejected the mother’s criticisms of the parenting coordinator and her suspicions of bias.

The Court considered whether the consent order provision was subjugated to a clause in the Parenting Coordinator Agreement:

“The Parenting Coordinator will not make determinations in respect of:

(d) a substantial change to the parenting time or contact with a child;”

After finding that the expansion of parenting time to the father amounted to a 4% increase, the Court held that the increased parenting time did not constitute a “substantial change”.

Also, while ascribing no fault to the parenting coordinator, the Court acceded to the mother’s request for the appointment of a new parenting coordinator, remarking that further determinations by her could well end up in more legal proceedings.

Lawdiva aka Georgialee Lang