The Public Has the Right to Know: JP v. British Columbia

GeorgiaLeeLang009In the tradition of open courts and transparency, the BC Court of Appeal has ordered that affidavits, written submissions, and other material filed in the Court be released to the media, in this case CKNW and the Vancouver Sun, a decision I applaud.

The case of JP v. British Columbia has occupied many pages of local newspapers and a multitude of radio and TV reports. It is, of course, the case concerning the groundbreaking decision last summer after a 147 day trial, when Mr. Justice Paul Walker of the British Columbia Supreme Court found that B.C.’s child protection authorities had negligently permitted a father to sexually abuse his children while the youngsters were in the custody of the Ministry. The Court found that the government’s failure to protect the children was “egregious, negligent, and a breach of duty” and government social workers showed a “reckless disregard to their obligation to protect children.”

The evidence before Mr. Justice Walker included expert evidence from Californian Dr. Claire Reeves who had been an expert witness at the 90 day family law trial that preceded the action against the Ministry by several years. Dr. Reeves’ expert opinion played a significant role in the original finding that this father had sexually abused his children.

The legal profession was shocked when the Court of Appeal reviewed the evidence and determined that the so-called expert had defrauded the court. Their awe was not a criticism of the high court’s findings, but that the lower court has been so taken in by Dr. Reeves and the utter disregard for proper procedure.

Last year in a 411 paragraph decision, the Court of Appeal (JP v. British Columbia 2017 BCCA 308) held that Dr. Reeves’ fraud impacted the integrity of the entire judicial process, leading to a gross miscarriage of justice. The trial findings that the father was guilty of sexual abuse of his children were thrown out and a new trial ordered. The scathing denouncement of BC’s child protection authorities was also dismissed, the appeal court finding that the alleged misfeasance was the product of procedural unfairness.

With the Court of Appeal’s order made today, more details of this extraordinary case will be forthcoming. Last week, the Supreme Court of Canada refused to hear JP’s appeal of the BC Court of Appeal decision. It is her lawyer that introduced Dr. Reeve’s evidence into the trial process and who has been soundly criticized in the media for the debacle that occurred. JP was the only participant in today’s appeal that resisted the principle of open access to the courts….not surprising!

Lawdiva aka Georgialee Lang

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It’s a Whole New Ball Game with Social Media Evidence in Family Law Cases

BarristerSocial media has changed the way the world communicates and connects on a personal level. While many lawyers have resisted the change, it is no longer possible to deny its impact. Your clients are using social media and so should you. Its relevance to family law lawyers takes several forms, none more important than as evidence in court.

This comment will consider the admissibility of online material in court proceedings by reviewing several recent Ontario and British Columbia cases. You will see that social media evidence has made it a whole new ball game for family law litigators.

Family law cases are infamous for “he said/she said” narratives, and in many cases, social media can shed light on the credibility of a litigant’s evidence. In Plese v. Herjavec 2015 ONSC 7572, Dragon’s Den star Robert Herjavec was faced with argument that his net worth was well beyond what he admitted. His wife tendered three exhibits: a Wikipedia excerpt that reported his net worth at $200 million; other social media reports that his net worth was $160 million, and a “getnetworth.net” report in the amount of $100 million. Mr. Herjavec had also written a book where he wrote that he sold his company for $100 million.

He challenged the social media evidence explaining that he had no control over what others published and that most ofit was mere “hype”.

For her part, his wife said that the evidence proferred was not intended to prove the value of his business interests, but to show that his evidence of net worth should be viewed sceptically. She also referenced a speech given by her husband in 2015 where he said that “in three years we can quadruple the value of our business” and increase revenue from $150 million to $250 million.

Mr. Herjavec urged the court to strike the evidence from his wife’s affidavit. The Court declined saying:

“Indeed, the Applicant does not say that she believes the evidence to be true. She does not offer it as evidence of the income of the Respondent or of the value of the business.Rather, she offers it to undermine the credibility of the Respondent and argues that the court ought to conclude that there is serious reason to doubt the accuracy of the Respondent’s evidence and assertions.”

However, the Court also said that it had not relied on the social media evidence in respect of its analysis of Mr.Herjavec’s income.

In Caine v. Ferguson 2012 ONCJ 129 a father, who was a musician, argued that his income was too low for an award of child support to be made against him.

His former wife’s counsel submitted he could be earning $35,000 per annum, and in support of her submission sought to introduce two internet articles from American websites: Payscale andMusicianWages.com.

The chambers judge remarked that in Rodgrigues v. De Sousa 2008 ONCJ 807 he had permitted reports from Ontario Job Futures and Statistics Canada as evidence of income levels for a payor in the insurance industry, as the documents came directly from the provincial and federal governments and had some indicia of reliability.

However, he refused to admit the documents, finding they did not come close to achieving threshold reliability: there was no indication the sources were reputable, no foundation was provided as to the qualifications of the authors of the documents; they were dated; and from the United States. The Court was not satisfied they reflected what a freelance musician could earn in Toronto.

In Balayo v. Meadows 2013 ONSC 5321, a mother made serious and inflammatory allegations against her husband, stating that he was physically abusive to her and verbally abusive to her and their child, who was traumatized by his behaviour. She alleged he was a drug user, drank excessively, and gambled away their assets. The allegations were vociferously denied by the husband who introduced into evidence text messages between the parties that showed cordiality, respect, and cooperation, and evidenced plans to spend time together with their child. The Court noted that a determination of where the truth lay would be facilitated by oral testimony and cross-examination at trial.

The father had not seen his daughter for eight months. In light of the length of time there had been no contact between father and child, the Court ordered short-term supervised access to facilitate a gradual re-introduction of the child to her father, noting that the order should not be considered an acceptance of the mother’s allegations of abusive or harmful behaviour.

In Teuissenv. Hulstra 2017 BCSC 2365 the British Columbia Supreme Court refused the defendant’s application to admit a binder of 277 Facebook posts covering a two-year period in a motor vehicle accident case.

The defendant hoped to use the posts to prove that the plaintiff’s alleged physical impairment and loss of enjoyment of life was exaggerated as evidenced by the activities shown in the Facebook entries. The plaintiff did not object to the defendant entering the posts individually by showing them to a witness and asking relevant questions, but questioned the efficacy of entering a binder of posts some of which had little relevance to the defendant’s position.

Relying on Samuel v. Chryler Credit Canada Ltd. 2007 BCCA 431 the court considered the impractical nature of admitting documents “en masse” and eschewed the practice of entering a book of documents as a whole. The court reasoned that such a process would unduly lengthen already unmanageable trials.

The court held:

” I conclude, therefore, that the proper approach is for the defendant to seek the entry of the pertinent post or picture after properly identifying it, establishing its relevance, and questioning the author on that matter. At that point, the parties can agree or the court will determine whether it should be properly marked as an evidentiary exhibit in this matter.”

To properly submit a book of documents “en masse”, counsel will need to have opposing counsel review the book and agree that each document is authentic and admissible. This exercise will ensure that both counsel have put their mind to each specific document, prior to the trial commencing, thus avoiding the dilemma of hordes of irrelevant material being thrust upon the court.

So long as the usual evidentiary rules are adhered to, social media evidence is no different than other forms of evidence in court. The hallmarks remain relevance and reliability.

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

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

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