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

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Switching Counsel: A Good Idea or Not?

_DSC4179 - Version 2How important is it to stick with the lawyer you originally retained? Not an easy question to answer, but clearly, changes in representation can be detrimental to a litigant.

There are, of course, cases where a change is beneficial. For example, where a client and a lawyer’s personalities clash continually, that may signal a needed change. However, what often happens in family law cases is that counsel will bring an application on behalf of a client with results that are less than expected, leading the client to blame the lawyer for the disappointing result.

If the result is because of a lack of preparation on the lawyer’s part, the client may consider that a change is necessary, but often a disappointing result is because the facts of the case do not support the outcome sought by counsel. If that is the case, clients should be advised in writing of the chances of success.

Sometimes a less than stellar result is because of a particular judge. Experienced counsel get to know a judge’s attitude toward a particular type of argument or client and will avoid that judge when arguing certain cases, although it is not always easy to do so.

In a recent case in California ex-Spice Girl, X Factor and America’s Got Talent coach, Mel B’s divorce from Stephen Belafonte has garnered salacious headlines, but the latest media coverage concerns her switching counsel just before her trial scheduled to commence on November 6.

The reason for her change in counsel is unknown, but media reports indicate that she abruptly walked out of her recent deposition and was later ordered by a judge to reappear and continue that discovery process.

While the trial has previously been adjourned it is expected that her new counsel will try to obtain a further delay of the trial. It has been reported that the 42-year-old has already spent a million dollars in the seven months since her divorce litigation began. A truly ugly case that may well get worse….

Is Yelling at Your Spouse Domestic Violence? British Court Says “Yes”

GeorgiaLeeLang057Have you ever yelled at your spouse, perhaps out of frustration or even anger? If you say “no”, I don’t believe you.

For those of us who on those rare, embarrassing occasions have sounded off rather loudly, best keep away from England, since Britain’s highest court has found that raising your voice to your spouse qualifies as domestic violence.

This is truly a case of “words mean what I say they mean” and the “I” is Baroness Hale of Richmond, who was the first woman appointed to the prestigious House of Lords in 2004 and in 2009 took her place on England’s new Supreme Court of the United Kingdom. She is the most senior female judge in Britain.

The case involved 35 year-old Mirhet Yemshaw who lived in government subsidized housing with her husband and children. She brought an action against the housing authority for refusing to provide her with her own apartment after she left the home she shared with her husband because of alleged domestic violence.

Ms. Yemshaw had not been threatened by her spouse, neither had she ever been physically assaulted; no pushing, shoving, or slapping. Nothing.

She said that her spouse had yelled at her in front of the children and did not provide her with a sufficient allowance to run the household. She also said that she was afraid she would lose custody of her children.

Rather than viewing this as a preemptive strike in an obvious matrimonial dispute, Lady Hale declared that the definition of domestic violence must change to include a range of abusive behaviors.

She said it was not up to the government or other officials to decide what constituted domestic violence, rather it was within the purview of the courts alone to determine changes in the meaning of Parliament’s words.

Lady Hale remarked that while the dictionary defined “violence” as a physical attack it could also include “extreme fervor, passion or fury.”

The ramifications of this ruling will be draconian and disastrous in terms of the interpretation of a variety of criminal and family law statutes. I wonder if Lady Hale thought about that before she decided she knew better than everyone else.

However, she was not alone. Four male Law Lords agreed with her decision, albeit Lord Brown expressed what he called “real doubt” about the correctness of the decision, noting that the ruling overturned two precedent cases decided by six Justices of the Court of Appeal. Nonetheless, he was content to let the majority stand.

But England is not alone in their expanded definition of domestic violence. A British Columbia Provincial Court judge recently held that non-payment of child support was also a form of violence. Lawyer John-Paul Boyd writes on his blog

“In J.C.P. v J.B. the Provincial Court has characterized a person’s failure to “pay child support on time and in the full amount” as “family violence” within the meaning of s. 1 of the Family Law Act, and then applied this finding to determine the appropriate arrangements for the care of the parties’ child. This decision continues a trend toward the broad interpretation of “family violence”…

While both yelling and non-payment of child support are actions to be avoided, neither in my view falls under “family violence”. In fact, for those women and men who have been subject to real domestic violence, it is scurrilous to suggest that a raised voice or a missed child support payment is the equivalent of a physical or mental assault.

Lawdiva aka Georgialee Lang

Judge Comments that Family Litigants are “Blowing Their Brains Out Fighting”

BarristerIn yet another British Columbia Supreme Court case, a wise judge points out the folly of the battle between litigating spouses and the accompanying expense, both financially and emotionally.

In Danroth v. Whiting 2017 BCSC 1814 Mr. Justice G.C. Weatherill considered an application to defer the sale of the parties’ family home. The wife had previously obtained an order for the sale of the home with the condition that the husband, who now lived in the home, had a one month reprieve before it would be listed for sale, in order to allow him time to raise the funds required to purchase his wife’s interest.

The 71-year-old husband wished to remain in the home he had lived in for years but had not been able to borrow sufficient funds to buy his wife’s interest. The home was valued at $3.5 million and had a mortgage of $1.2 million, leaving equity of $2.3 million. He needed to pay his wife $1.15 million, but he was only able to borrow $2.2 million, which was insufficient to pay out the mortgage and pay his wife. He was also waiting for an appeal hearing as he had previously appealed the order that the house be sold.

Meanwhile, it appeared the family squabble was to become more complicated as at least one of the parties’ children was contemplating filing a lien, called a caveat, against the title of the property prior to the property’s listing for sale, alleging that he/she had an interest in the property as well.

The judge noted that “this court sees a steady diet of these kinds of family disputes where it is all about money. The parties tend to lose track or lose sight of what really matters. However, that is for another day.”

Ultimately, the court refused to defer the sale, but before finalizing his judgment he spoke frankly to the parties’ counsel:

“……this is a tragic situation…the inevitable result will undoubtedly be that they will regret, if they don’t already, not having taken a step back and considering whether there is another, less tragic, way of resolving their dispute…this family is destined for complete ruin if they carry on as they are…this is all about money and the parties are spending it in droves….It seems to me that the parties could put their money to better use, for their retirement or for their future. The claimant is 71 years. How much more of this does he want to devote to this fight?”

Kudos to Justice Weatherill for taking the liberty that his status affords him, to try to de-escalate the family battle before it is too late. Judges hold tremendous sway over litigants that appear before them and it is heartening to see judges earnestly warn litigants of the fate that befalls them if they continue on the path they are on.

His parting words:”These comments can be taken for what they are worth. This court sees these situations far too often. I wish the parties the best of luck.”

A point of interest: Judge Weatherill is one of two judges sitting on the Supreme Court of British Columbia with the same name. The other justice is his twin brother, and yes, they are hard to tell apart.

Lawdiva aka Georgialee Lang

Anonymous v. Anonymous: The Secret Divorces

GeorgiaLeeLang016Anthony Weiner’s public and private activities have been splashed over media outlets around the world. Besides his unsuccessful run for mayor of New York in 2013, and the discovery of “Hillary” emails on his computer, there has been rampant media coverage of his arrest for sexting an underage teen, and his 21-month prison sentence.

But even more recently was the news that Huma Abedin, Mr. Weiner’s wife, and former top aide to Hillary Clinton, made an application to the New York divorce court to keep their divorce proceedings private, with their names hidden from the public via an “Anonymous v. Anonymous” designation.

In the world of celebrity divorce, where notoriety for the wrong reasons is to be avoided, celebrities often convince judges to ignore their written policies on open and transparent courts.

New York is just like British Columbia, where divorce and family law files are not searchable by the general public or the media, but only by the parties themselves, their lawyers, or any other lawyer. Family Court hearings are always public, and once a court makes a ruling, Reasons for Judgment are posted on the internet, and the details of the proceedings are fair game for publication. In some cases, where children are involved, a court will initialize the parties’ and their children’s names, but this is also the exception and not the rule.

Leading divorce lawyers in Los Angeles and New York have spilled the beans on certain judges and celebrities who have manipulated the system to avoid the ignominy of having their personal peccadilloes and financial wherewithal, (or not), broadcast for public consumption. Los Angeles divorce attorney Laura Wasser says the reasons celebrities want anonymity is varied, but for some it’s because they are embarrassed at their lack of a substantial net worth.

One example of a notorious “anonymous” divorce was the divorce of Mayor Rudy Guliani and his wife Donna Hanover in 2000. Guiliani was the mayor of New York, involved in an affair with staff member, Judith Nathan, who he later married. His divorce attorney, Raoul Felder applied for the designation but even he admitted that everyone who followed the case knew it was the mayor’s divorce. Felder also noted that the presiding judge, Justice Judith Gische at one point said that it was silly to continue the anonymous designation, but it remained in place throughout the proceedings.

Even more startling was the divorce of Real Housewives of New York star, Bethanny Frankel, whose whole life was on display on her reality television show, nonetheless, her lawyer was able to convince Judge Ellen Gesmer to anonymize her divorce from Jason Hopper. Judge Gesmer even kept the “public” hearings private by keeping the case off the court docket sheets typically displayed on boards on the ground floor of the courthouse.

As for Huma and Anthony, the court ruled against them this week, ensuring that their divorce case will not be sequestered. A better incentive to settle out of court could not be found!

Lawdiva aka Georgialee Lang

“Extreme” Family Law Litigation Decried by the Court

GeorgiaLeeLang025Despite family law Rules of Court that call for the “just, speedy, and inexpensive determination of a family law case on its merits”, there always seem to be those cases that take on the qualities of “scorched earth” litigation. Oliverio v. Oliverio 2017 BCSC 1704 appears to be one of those cases.

The application heard by Master Muir sought orders imputing income, determining the quantum of child and spousal support, and the sale of the family home. Other orders sought in the Notice of Application had been resolved or adjourned by the parties. Nonetheless, the application took more than a day-and-a-half of court time over three separate dates.

What was equally remarkable was the two boxes of materials presented to the court containing 160 affidavits, with 26 affidavits filed by the respondent wife and 15 filed by the claimant husband in respect of the orders sought. Master Muir described this mountain of material as evidence of “an unhealthy and abusive litigation climate”.

The preparation of 160 affidavits is almost too much to contemplate and the cost enormous.

She said:

“This approach to family issues is counter to the fundamental basis of our present family system which encourages negotiation, not litigation. This is not supposed to be a war. It is supposed to be a civilized allocation of rights, responsibilities, and assets following a family break-up.”

Master Muir declared that this style of litigation was unnecessary, damaging to the parties and their children, and a waste of family assets on litigation costs. She noted that the parties had accessed capital in the amount of almost $700,000, much of which was used to fund their legal expenses, albeit their trial was still eight months away.

As both husband and wife were not employed, although capable of employment, the court imputed $95,000 of income to the husband and $25,000 to the wife, and ordered child support with a set-off to account for their equal parenting arrangement. The wife also received spousal support at the mid-range. The application for the sale of the home was dismissed.

Finally, Master Muir implored counsel to speak to their clients. She said:

“I ask that counsel convey those sentiments to their clients in the hope that this can be reined in and the parties can refocus on resolving this in some other way.”

As a mediator and arbitrator, I know this case could be resolved within 60 days, if not less, using a mediation/arbitration model, where a legal professional mediates the disputed issues, with those unresolved being decided by that legal professional. And probably at a cost of less than $20,000…just sayin’

Lawdiva aka Georgialee Lang

Politicians Wake Up: Canadians Overwhelmingly Support Shared Parenting

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

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

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

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

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

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

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

Lawdiva aka Georgialee Lang