Court of Appeal Orders New Trial for Father Because of Expert’s Fraud on the Court

DSC01152_2 (2)_2In a groundbreaking decision last summer after a 147 day trial, 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 parties agreed that her expert evidence from the family law trial would be admitted in the trial alleging negligence against the Ministry. Throughout the lengthy proceedings the father adamantly denied abusing his children, an assertion supported by several expert witnesses, but to no avail, as the court found he had abused them and he was barred from seeing them.

The father, who acted for himself, missed the deadline to file an appeal, however, three years later the Court of Appeal permitted him to proceed with an appeal, based on new evidence that appeared to establish that Dr. Reeves’ evidence was fraudulent. The credentials she touted, including a Doctorate in Clinical Counselling, Masters of Science in Clinical Psychology, Bachelor of Science in Family Mediation, and a Bachelor of Arts in Journalism, were “purchased” from so-called “diploma mills”.

Her assertion that she had testified as an expert on child sexual abuse on numerous occasions in a variety of courts also appeared to be untruthful. The substance of her trial opinion was based on a theory of child abuse that had long been discredited, even by the expert who originally proffered the “child sexual abuse accommodation syndrome”.

This week, 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.

What is startling about this case is that the Rules of Court and related case law clearly set out the requirements for the admission of expert evidence, rules and law that were flagrantly ignored by the litigants and the trial judge.

The waste of court time and the related costs in this case are staggering, as the trial occupied months of court time. In my view this case screamed out for the appointment of an “amicus curiae” or “friend of the court”, a lawyer who does not represent the parties, but assists the court with information that bears on the case. The admissibility of evidence issues, other procedural flaws, and the duration of the proceedings should have been red flags for the court.

For the parents of the children in this case, more trial dates are expected. What remains to be seen is whether the mother will file a second negligence lawsuit against the Ministry, which will ultimately depend on the findings in the new family law trial.

Lawdiva aka Georgialee Lang

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BC Dentist Declared Vexatious Litigant in Family Law Case

B9316548187Z-1.1_20150314202542_000_GFTA6A1QO.1-0Hundreds of family law decisions are handed down every month in courts across Canada, but there are always a few family law cases that stand out and gain notoriety for unusual facts, belligerent litigants, or wisecracking judges.

The conduct of a Vernon, British Columbia dentist, Dr. Andrew Hokhold, brings his family law case within that group of cases that gain attention due to the misguided obstinence and retaliatory litigation strategy employed by him in his quest to defeat his wife, Laurie Gerbrandt in their high-conflict divorce case. (Hokhold v. Gerbrandt 2017 BCSC 1249)

The couple lived together for five years and had two children, ages 6 and 9. At their 2012 trial the court ordered joint guardianship of the children, and granted sole custody to Ms. Gerbrandt, but denied her request to move with the children from Vernon to Swift Current Saskatchewan. Dr. Hokhold was found to earn $610,000 annually and ordered to pay $7,900 in monthly child support and $9,000 in spousal support.

Needless to say, the doctor balked at the large payments required of him and in 2014 was found in contempt of court for failure to pay the amounts ordered. Although he successfully appealed the contempt finding, by April of 2017 his support arrears was $448,000.00.

Meanwhile, Dr. Hokhold, who acted for himself, abandoned his appeal of the support orders and turned his attention to corollary tactics, alleging that his former spouse had defamed him, and conspired with Canada Revenue Agency against him. He also commenced two civil actions against Ms. Gerbrandt and her mother, purporting to act as his children’s “litigation guardians”, a status that was never legitimate in the face of his wife’s sole custody order. He alleged that Ms. Gerbrandt and her mother had acted in breach of trust in respect of gold coins held for the children, proceedings that involved multiple court applications and hearings, adjournments, and filings. Dr. Hokhold eventually conceded that he had no authority to sue on behalf of his children and his claims were dismissed.

But he was not done. He then launched four separate appeals of orders related to his gold coin litigation, including an appeal from his unsuccessful application to remove a certain judge from presiding over his cases. By this time, his ex-wife was fed up and she brought an application to have her ex declared a “vexatious” litigant, unable to file further court actions without express permission from a judge.

When the date finally arrived to hear the “vexatious” litigant arguments, he sabotaged the proceedings by seeking an adjournment and filing and delivering thousands of pages of new material to his former wife’s counsel the evening before. Later, he sought a further adjournment by admitting himself to Vernon Jubilee Hospital, where he was promptly released without any prescriptions and drove himself home.

During his opportunity to defend himself against the “vexatious” litigant claims he opted to criticize his 2012 trial judge alleging fraud and fabrication and noted that he had already reported him to the Canadian Judicial Council and the RCMP.

In support of her “vexatious” litigant application Ms. Gerbrandt advised the Court that Dr. Hokhold had filed 98 affidavits, some exceeding 2,500 pages. He had also filed multiple requests to reappear before the Court and on one occasion in 2016 sought 64 separate orders. He also sued counsel for the Family Maintenance Enforcement Program after they began collection proceedings against him and brought actions in defamation, breach of trust, and multiple adjournment applications.

Dr. Hokhold was declared a vexatious litigant, both in the Court of Appeal and the British Columbia Supreme Court based on his predilection for bringing court actions and appeals that either could not succeed or were brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings that did not assert legitimate rights and by failing to pay the costs related to his unsuccessful applications.

Madam Justice Newbury in the Court of Appeal said:

“It is these factors, together with his filings in this court, that lead me to conclude that Dr. Hokhold has been using the judicial process in a manner calculated to divert attention from the real issues outstanding between the parties – his annual income, the amount of support he should pay, and his rights and obligations as a parent. Even Dr. Hokhold admits that he is “tired” as a result of the litigation, and there are more than a few judges who feel the same.”

Lawdiva aka Georgialee Lang

Family Law Lawyer Creates Fake Accounts for Opposing Counsel

GEO CASUALTwo busy family law lawyers in Illinois, Michelle Mosby-Scott and Drew R. Quitschau spent hours sparring in court as opposing counsel on dozens of cases.

However, their professional relationship became complicated, even sinister, when Ms. Mosby-Scott learned her colleague had set up a false Match.com account in her name, describing her as separated from her spouse, an agnostic, and a fan of grocery stores, all restaurants, the Pizza Ranch, and buffets.

Ms. Mosby-Scott obtained a court order compelling Match.com to provide her with the details of the IP address related to the fake account, which led to Mr. Quitschau’s doorstep.

He had also downloaded photos from Ms. Mosby-Scott’s law firm website and added them to her Match.com account.

But he didn’t stop there. He created false accounts in her name with the Obesity Action Coalition, Pig International, Auto Trader, Diabetic Living, and Facebook, not to mention posting negative reviews of her legal skills on martindale.com and lawyers.com.

As a result she began receiving harassing emails and phone calls from these organizations.

When approached by Ms. Mosby-Scott and the managing partner of his law firm, Mr. Quitschau denied any involvement but an IT expert was retained who confirmed that Quitschau was lying. He was immediately fired from his law firm partnership.

Ms. Mosby-Scott obtained a restraining order against Mr. Quitschau and his conduct is the subject of a pending hearing before the Hearing Board of the Illinois Attorney Registration and Disciplinary Commission. Ms. Mosby- Scott remains mystified as to Quitschau’s motive, conduct which caused serious emotional distress for her and her family.

Lawdiva aka Georgialee Lang

Zealous Advocacy or Abuse of Process?

GEO CASUALThis week two Vancouver lawyers were excoriated by a Supreme Court Justice because of the tactics they employed in a case involving the proposed adoption of a young Metis child, referred to as SS. (A.S. v. British Columbia (Director Of Child, Family and Community Services),2017 BCSC 1175)

Lawyer JH represented foster parents who were desperate to retain custody and adopt the young child, while lawyer NG represented the biological parents, who supported the claims of the Metis foster parents. Their mutual nemesis was the Director of the Ministry of Child, Family and Community Services who determined the child, born in 2013, should be placed for adoption with a non-Metis Ontario family who had already adopted the child’s two siblings.

The court battle was hard fought involving multiple and duplicate actions and subsequent appeals, however, the lynchpin of Madam Justice Fisher’s damning findings against lawyer JH centered on a settlement letter JH sent to the Ministry, threatening to disclose a recording of an interview between Ministry social workers and the child which he said would show that the social workers had perjured themselves in their evidence in court. HH wrote:

“This is critical information which should be made available to Madam Justice Dickson, the panel hearing the appeal, and every subsequent Justice hearing any further matter in these and all related proceedings. Should the contested litigation continue, appropriate sanctions may be appropriate against the 3 social workers and the Director.

I have instructions from my clients, counsel for the birth parents, and the President of the BC Metis Federation, that if the Director is prepared to consent to my clients adopting S.S. by 10:00 a.m. this Wednesday, September 7, 2016, my clients, the birth parents and the BC Metis Federation are prepared to discontinue all legal proceedings, with the exception, of course, of the finalization of the adoption, and will enter into comprehensive releases involving all of the parties with respect to any and all possible legal outstanding matters.”

Despite repeated requests by the Ministry, JH refused to produce the alleged tape, a tape that if it existed was of questionable origin since the social workers had not recorded the meeting. If a recording existed it could only have been done surreptitiously by the unwitting child.

Madam Justice Fisher found that JH and NG had become blinded by their zeal to obtain custody for the foster parents ignoring that the Ministry could only settle the case if it was in the child’s best interests. To accept JH’s proposal would be a dereliction of their duty to act only in the best interests of their wards. A settlement to avoid scandal, the purported perjury, would be unconscionable. Madam Justice Fisher characterized JH’s conduct as a form of blackmail.

Lawyer NG was chastised for an email he sent accusing a Ministry lawyer of conduct that was “totally outrageous”,”totally unreasonable” and of a pattern of behaviour that showed “utter disrespect for the Court and to counsel”. He then threatened to report the alleged misconduct to the Law Society of British Columbia, apparently forgetting that while counsel may report another lawyer’s conduct, it is inappropriate to threaten to do so. One reports or not, but threats to report are sacrosanct.

The Court found that the lawyers’ conduct, which also included advancing inconsistent versions of their clients’ claims and unreasonable delay tactics was worthy of rebuke in the form of an order that each pay special costs to the Ministry for their egregious conduct, a rare sanction from the court. It is commonplace to order that a litigant pay costs but to order a lawyer to be responsible personally for costs is highly unusual and it is even scarcer to see a judge order special costs, which is typically 90% of the actual costs of the litigation.

The Reasons in this case illustrate that while lawyers should advance every legitimate argument in favour of their client, if they become enmeshed in their client’s cause they may lose objectivity and the perspective required of them. Following a client’s instructions will not protect an overzealous lawyer who is expected to control heated litigation as both an effective advocate and an officer of the court.

It is important to note that both JH and NG retained lawyers to represent them at the hearing where special costs were imposed and I predict that each lawyer will appeal the ruling of Madam Justice Fisher.

Lawdiva aka Georgialee Lang

5 of the Dirtiest Divorce Tricks

Some divorcing spouses treat each other deplorably. In these sad cases, it is actually hard to believe they were once in love. Candor and kindness are replaced by artifice and cruelty. Divorce lawyers are well aware of the grab bag of dirty tricks spouses inflict on each other. My top five dirtiest divorce tricks are:

1. Conflicting Out All the Top Divorce Lawyers

An age-old practice for a spouse who expects a long, drawn out divorce battle is to ensure their estranged partner can’t retain a top divorce lawyer. It goes like this – husband or wife makes appointments with the top lawyers in the area. At each meeting they reveal enough about their situation that the top lawyer, who they have no real intention of retaining, cannot act for their spouse. If each top lawyer charges them $500.00 for a one hour consultation, they only spend a few thousand dollars to ensure they have defanged their spouse by preventing him or her from hiring a “gun” equivalent to their top-tier counsel. Yes, this happens in the world of high net worth divorce.

2. Firing Your Lawyer Just Before Trial

Another effective divorce trick is to fire your lawyer weeks before your divorce trial is set to commence. How does this work? It’s easy. Let’s say you are the wife of a wealthy husband. Since you obtained a court order ejecting your husband from the family home, you now reside in luxury with peace and quiet; you are receiving thousands of dollars a month in tax-free child and spousal support; and your life consists of tennis lessons, lunch with the girls at the Club and evening soirees. Meanwhile your husband is doing what he always does: travelling around the world doing business deals to support your mutual lifestyles. He doesn’t even see the kids much, so there’s no hassles at all.

Why would you spoil all this by taking a chance that a judge may eliminate some part of your lavish lifestyle or impose an access schedule for the children to see their father that may interfere with your plans?

3. Transferring Your Assets Off-Shore

While you may live a life of champagne and caviar, it is unlikely you can maintain that level of opulence if your spouse has arranged to stash all his liquid assets off-shore in trusts set up in any number of tax havens such as the Bahamas, the Isle of Man, Turks and Caicos or Panama.

In many jurisdictions a Court may make an order that off-shore assets be divided between the spouses, but just wait until you see how difficult it is for you to convince the foreign jurisdiction they must obey the order of a North American Court. All I can say is good luck!

4. Arranging Multiple Mortgages on Your Real Estate

It is not uncommon to see marriages where the “little lady” has no idea of what she and her husband are really worth. Imagine a spouse’s disappointment when their lawyer informs them that the family home and their summer cottage are mortgaged to the hilt and have little or no equity. Their once middle-class standard of living evaporates as Mrs. now looks for a basement suite to house her and her two children.

Another real estate divorce trick is to build a lavish home on leased land that is situated on property that is in the agricultural land reserve, so that while it may have cost $3 million to build, it has no real market value since nobody in their right mind would purchase this property. Yes, this is a true story.

5. Building a House of Cards

For a time life is grand, but inevitably problems arise in your marriage. In an effort to please your spouse you try you to spend your way back to the marriage you once had. Little does your spouse know that the trips to Europe, Hawaii and the Super Bowl were leveraged, courtesy of American Express or Visa.

The marriage does not survive and you discover your net worth is much less than you expected as you have tens of thousands of dollars in credit card debt all used for the family. Let’s just hope the Sistine Chapel was worth it.

Perhaps you think that with the explosion of mediation and collaborative divorce, these tricks have lost their luster? Think again. For spouses who need revenge more than they need closure, they are alive and well.

Mr. No-Pay…You Can Run, But You Can’t Hide.

GEO#1Family law lawyers now have access to information that can transform a case from an up-hill battle to a slam-dunk, and it’s all thanks to the internet.

Case in point: I have a client whose ex-husband, a venture capitalist, stopped paying his child support about one year ago. Exhibiting the patience of a saint, my client bided her time, hopeful her ex would reinstate his payments and make up the arrears. Didn’t happen.

She then contacted my office and the legal process began. Her ex was obliged to provide the usual financial documents including income tax returns and corporate financial statements. His tax returns showed nominal income and gosh, darn, he said that all of his businesses were insolvent so he hadn’t bothered to have his accountant prepare financial statements.

With a little help from the internet, we learned he was selling his home with an asking price of just over $900,000.00. After the usual land title searches, we found out he had already purchased a new home in another community. He said he was downsizing. He paid about $850,000.00 for his new home. It was a lovely estate property, larger than his last home, in a less expensive rural area.

Next stop was his Linkedin page and from there we simply googled his name and the names of his corporations. Here’s what we found.

Earlier that year, he made an offer of $25 million to purchase a golf course/housing development project that was very close to his new home and in financial trouble. Press releases abounded announcing the pending acquisition and his superior business acumen.

Several years earlier he had been a finalist for an entrepreneur of the year award. He was on the Board of his local Chamber of Commerce and associated with at least two consulting firms touting his business expertise. His allegations of insolvency were not born out. His only business debt was related to a wine store he operated. He was paying $1000.00 per month to pay down the $40,000.00 debt, $1000.00 more than he was paying for his two kids!

With this information and his feeble explanations, he no longer looked as broke as he said he was. My client got her happy ending when a judge ordered Mr. No-Pay to pay up asap!

It’s not always this easy, but his “high profile” doomed any chance of a judge buying what he was selling. And don’t get me started on the gems you can find on Facebook!

You can run, but you can’t hide from the internet!

MILLENIALS AND PRE-NUPS

CBC NEWS REPORT
Millennials are more open to pre-nups than older generations, says B.C. family lawyer Georgialee Lang
Millennials are marrying with more assets they would like to see protected, lawyer says.
Prenuptial agreements are becoming more prevalent as millennials decide to marry in their early 30s, often entering relationships with significant assets, says B.C. family lawyer Georgialee Lang.
Prenuptial agreements are becoming more prevalent as millennials decide to marry in their early 30s, often entering relationships with significant assets, says B.C. family lawyer Georgialee Lang. (CBC)
Prenuptial agreements are on the rise for B.C.’s younger newlyweds, says family lawyer Georgialee Lang.
According to a recent survey from the American Academy of Matrimonial Lawyers, prenuptial agreements are rising for newlyweds aged 18 to 35 — and Lang says the shift is noticeably taking place in B.C.
“We’re seeing [prenuptial agreements] more notably with millennials — and there’s a whole range of reasons as to why that’s happening,” she told host Gloria Macarenko on CBC’s B.C. Almanac.
Lang says that the trend is taking place primarily because millennials are waiting until they’re in their 30s to get hitched, unlike previous generations — and that millennials tend to enter marriages with a lot more to lose.
“People in their early 30s have had an opportunity to acquire assets — and they’re aware of that,” she said.49afd8240a58bf0fb97d4a86105572c1