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

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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

Family Law Lawyers Must Resist Temptation to Take on Their Client’s Cause as Their Own

GeorgiaLeeLang016In a recent discipline decision from Ontario the presiding adjudicator, David Wright, spoke a sensible caution to family law lawyers whose passion for their clients’ causes can obscure their professional objectivity. He also referenced the problem faced by some counsel who in their minds blend opposing counsel with their clients, castigating them as the “enemy”.

Other comments included the following

“Family law involves personal and intimate matters and the most vulnerable members of our society – children. The issues can lead clients and lawyers to feel passionately, particularly when we have our own histories.

However, clients will not be well served if lawyers cannot work together on effective and proportionate dispute resolution and solutions to the issues. We must separate clients’ views from those of lawyers and recognize that, as lawyers, we only fully have one side of the story.

What is more, clients will not be well served by personal incivility in contentious matters. After all, if lawyers are not civil to each other on a personal level, how can we expect spouses involved in a family breakup, the most stressful time of their lives, to do so? What are we modelling? The legal profession will fall in the public eye if lawyers act in an unprofessional and uncivil manner.”

In the case before Mr. Wright, a senior family law lawyer in a contentious divorce proceeding sent 14 pieces of correspondence over a two year period to opposing counsel. The letters contained threatening, inappropriate and unprofessional language. In a second incident the Lawyer became upset during a court hallway discussion with opposing counsel and raised his voice beyond a level that was professional or acceptable.

The third allegation involved the Lawyer’s courtroom submissions where opposing counsel referred to the Lawyer’s argument as “disingenuous”. The judge later directed the lawyers to work together on a worksheet regarding the trial, but the Lawyer refused to participate until opposing counsel apologized for calling his argument “disingenuous” and made a threat to opposing counsel. The adjudicator found that the Lawyer’s behaviour lacked civility.

Adjudicator Wright noted that family law lawyers work together on different cases and often have multiple files with each other during their professional careers. While this can help promote collegiality, counsel must be able to put aside past perceived wrongs or disputes and start fresh with each new file.

My experience in the B.C. family law bar is that opposing counsel are courteous and civil, however, as a junior lawyer, now many years ago, one senior counsel took advantage of my inexperience with unexpected rudeness and aggression. I later learned she was one of those lawyers who other counsel avoided where possible. I later turned down cases where this lawyer was opposing counsel in order to avoid her nastiness. Lawyers who cultivate this style of practice are only to be pitied, as they must be terribly unhappy with their lives. That’s my two cents!

Lawdiva aka Georgialee Lang

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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

No-Show Father Ordered to Pay Over a Half a Million Dollars in Child Support Arrears

GeorgiaLeeLang025In this British Columbia Supreme Court case, the parents of two children separated in 2001 and in 2003 entered into a separation agreement. The agreement stated that the father’s income was $90,000 per year and that he would pay $1,128.00 in monthly child support, together with some additional costs for transportation, as the children lived primarily with their mother on Denman Island. Later, the amount payable was increased to $1,600.00 per month to include the cost of certain extraordinary expenses.

At the time the mother signed the agreement she was not aware that the law provided for a review of child support each year and an adjustment, either upward or downward, depending on any change in the father’s income. The payment of $1,600.00 continued until February 2015 when the father arbitrarily, and without notice, reduced his payment to $800.00 per month, on account of the eldest child attaining the age of 19.

That was his first mistake…As a result of this unilateral action the mother retained counsel who informed her of the children’s rights to receive child support commensurate with their father’s income, as determined on an annual basis. Mother filed an application to vary child support in April of 2016 and in June of 2016 she became aware of the father’s income for 2013, 2014 and 2015, amounts of $477,000; $465,000; and $156,000 respectively.

With respect to the father’s sudden drop in income in 2015, it is noteworthy that by the time he filed his 2015 tax return in 2016 he would have been aware of his ex-wife’s claim for increased child support. Family law lawyers call this phenomenon “RAIDS”: recently acquired income deficit syndrome.

Before filing her application, the mother asked her ex-husband to reinstate the $1,600.00 a month payments, but he ignored her. That was his second mistake.

Later she learned that his income had been as high as $773,000 in 2010; $548,000 in 2011; and $444,000 in 2012. All this time she scrimped and saved what she could of her measly teacher’s aide earnings of $28,470 per annum in an effort to provide the bare minimum for her children, who, contrary to the law, were not receiving the benefit of their father’s increased income levels. Meanwhile, the mother had gone into debt to provide for her children.

Although the father was served personally with the mother’s application and was sent multiple letters advising him of the scheduled court date, he made his third mistake. He was a no-show at the hearing, so the court proceeded in his absence.

The court reviewed the applicable law, which generally provides that a court may go back three years with respect to a retroactive increase in support. However, in the absence of any argument to the contrary, Madam Justice Young found that the father was guilty of “blameworthy conduct”and that a large retroactive support award would not place a financial hardship on him. He was ordered to pay support based on his annual income from 2002 to 2017, an amount that totalled $522,408.24. He was also ordered to pay it immediately and to pay costs to his former spouse.

Would the retroactive order have been significantly different if he had attended the court hearing? That is difficult to ascertain, however, the usual evidence provided by a payor with respect to his conduct and his financial circumstances may have led to a smaller award and could also have given him more time to pay the amount ordered.

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