Appeal Court Says Judges Cannot Avoid Determinations of Grave Risk of Harm in Hague Convention Cases

GEO CASUALThe Ontario Court of Appeal recently reversed a Hague Convention order that a mother from England must return to England with her two children, failing which her British husband would have custody of their children. (Zafar v. Saiyid (2018) ONCA 352)

As is becoming typical in Hague cases, the mother and her two young children who had Canadian citizenship,travelled to Canada for a summer holiday, with the permission of her spouse, and the intention of returning to England by a prescribed date.

On August 23, the mother advised the children’s father that their marriage was over and that she would remain in Ontario with the children. He promptly filed a Hague Convention application seeking the return of the children.

At the court hearing the mother conceded that the children’s habitual residence was England, which is the primary question when a Hague application is brought. The law is very clear that children must be returned to their habitual residence where the question of their residence will be determined.

However, Article 13 (b) of the Hague Convention permits a removing parent to argue that the child should not be returned where the other parent poses a grave risk of physical or psychological harm to the child or the spouse. Ms. Saiyid alleged that her husband was “threatening, verbally abusive, financially controlling” and presented “intolerable behaviour towards the mother, smoke and drank”, which reflected an inability to create ” a safe environment free of danger for the children.”

The hearing judge ordered the mother to return the children to England by December 1, failing which the children’s father would have sole custody of the children. He said:

“In a Hague application, I am not to determine the best interests of the children, only jurisdiction. In any event, on affidavits I cannot determine who is telling the truth about Mr. Zafar’s conduct.”

On November 27 the mother obtained a stay of the judge’s order, however, shortly thereafter she voluntarily returned to England with the children and brought an application to the British court seeking orders that she may relocate to Canada with the children.

Nonetheless, she wished to continue with her appeal in Ontario on the basis that the judge’s alleged errors of law could be used against her in the new British proceeding.

The appeal court agreed that her appeal was not moot for the reason she identified and held that the hearing judge erred in stating that he could not determine whether the children were at grave risk of serious harm, delegating that issue to the English courts. The court held that the hearing judge ought to have made a decision based on the record; or considered whether it was appropriate to hear oral evidence from the parties. The hearing judge’s decision to explicitly decline to consider the matter was an error in law.

While the task is enormous, where conduct allegations are thrown back and forth haphazardly, it is a judge’s duty to sift the wheat from the chaff. Oral evidence, with cross-examination is often the best way of doing that. These cases are the most difficult, particularly when young children are involved, when the question becomes “which parent is most believable?”

Lawdiva aka Georgialee Lang

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Courtrooms Flooded with Litigants With No Lawyers

GEO CASUALIt’s not getting any easier to be a judge these days, as self-represented litigants continue to overwhelm Canadian courts in increasing numbers.

With the abolition of Legal Aid and a middle-class that can’t afford to hire lawyers, the situation has become dire.

University of Windsor law professor Julie MacFarlane’s research indicates that up to 80% of court users in family law go into court without a lawyer.

The popular cliché that people who represent themselves in court have fools for clients has never been more true, and despite the increasing availability of pro bono legal services, rarely does free legal advice mean that a lawyer will show up in court.

While it is lawyers that have the reputation for talking too much and wasting court time, the truth is that court cases with lay litigants take up many more court hours because rules of evidence and procedure, while somewhat relaxed for in-person litigants, must still be maintained to ensure due process and the integrity of our justice system.

In a recent court case, with no counsel, where the issue was whether a Pakistani divorce was authentic and legitimate, one judge said:

“I record that I began this case at 10.30 a.m. this morning and I am now concluding it around 3.30 p.m. It has, accordingly, effectively occupied the whole of the court day. By sheer good fortune, the other case which had been listed for hearing by me today was vacated [postponed] yesterday for reasons connected with its readiness. If that case had not been vacated, I, and the litigants in that case, would have been faced with very considerable difficulties and a severe shortage of court time, and probably also additional expenditure to the parties in that case who, as likely as not, would have to have returned on another day.”

The judge found that the divorce was valid, but was justice really served when he noted that he did not have any basic materials, no orderly bundle of relevant documents, no chronology, no case summaries, and no real argument.

Professor MacFarlane’s observation that “it’s the inmates who are running the asylum” is sadly apropos.

Lawdiva aka Georgialee Lang

The Difficulty of Ridding Your Case of a “Seized” Judge.

GeorgiaLeeLang100It is not unusual, especially in family law cases, to have a judge conclude a hearing with the phrase “I will seize myself of this case”. What that means is that the judge has decided that it is reasonable, necessary, or simply prudent for him or her to hear all future court applications regarding the case.

Often this is good news to the parties and their lawyers, but other times it is a fate that is not welcomed.

Madam Justice Martinson in AA v. SNA 2009 BCSC 387 explained the rationale behind a judge seizing herself of a case:

“[77] It is imperative in high conflict family cases generally, and certainly in cases involving allegations of alienation like this one, that one member of the Court take charge of the case. Having a single judge hear cases is required by s. 14 of the Supreme Court Act:

(1) All proceedings in the court and all business arising from those proceedings, if practicable and convenient, must be heard, determined and disposed of before a single judge.

(2) All proceedings subsequent to the hearing or trial including the final order, except as otherwise provided, and on a rehearing must, if practicable and convenient, be before the judge before whom the trial or hearing took place.

[78] The reasons for doing so for all cases are obvious. The judge will be familiar with the case so the litigants do not have to explain the situation over and over again. It avoids “judge shopping” to try to get a better result. It prevents inconsistent approaches. It saves legal and other costs. There will be times in dealing with some cases when it is not convenient or practical to do so.”

In cases like the latter, judges often seize themselves with the proviso that if the matter is urgent and they are not readily available, then another judge can hear the case.

But often one party, usually the party who consistently “loses”, alleges bias and seeks to rid the case of the seized judge. Recently, the British Columbia Court of Appeal in NRG v. GRG 2017 BCCA 407 weighed in on this topic saying:

“There is much wisdom in Madam Justice Martinson’s observation that a family unit may benefit from a judge seizing him or herself of a case. That does not mean, however, that the seized judge should remain seized to the last application filed. The very fact the judge is seized of the case increases the opportunity to develop an impermissible point of view about the case or the parties, and emphasizes the vital requirement of assiduous objectivity. All trial judges will know there may come a time in the conduct of a case when the judge says, “I have done my best and should pass this to fresh eyes.” In our respectful view, this may be such a time.”

The Appeal Court noted that while the appellant sought an order from the appellate panel reversing the Supreme Court judge’s “seizure” proclamation, the Court observed they lacked jurisdiction to overturn the seizure, not wishing to interfere with the lower court’s process, and also did not characterize it as an order of the court. They suggested that a litigant must appear before the seized judge or the Chief Justice of the Supreme Court to obtain such a direction.

Frequently, a complaint against a judge who has seized himself is accompanied by an application requesting a judge to remove himself from a case based on a reasonable apprehension of bias, another application that must go before the judge in question and is most commonly dismissed.

I remember a case many years ago where I drew what I believed to be an “unfavourable” judge and convinced opposing counsel to adjourn the case so that settlement discussions could ensue. When we advised the court we were adjourning by consent, the clever judge declared that he would be seized of the case, despite hearing no evidence at all. It was clear he figured out that the adjournment was an escape from his courtroom…and he was right!

Lawdiva aka Georgialee Lang

How “Uncivil” Can a Lawyer be in Court? The Groia Case

GEO_edited-1If you are a litigator in Canada you should know the name “Joe Groia”. He is a masterful legal advocate from Ontario who specializes in securities law. His prominence in the legal profession was capped this week when Groia v. The Law Society of Upper Canada (now the Law Society of Ontario) was argued before the Supreme Court of Canada. (Law Society of Upper Canada v. Joseph Peter Paul Groia, 2012 ONLSHP 94)

Why is Mr. Groia suing Ontario’s Law Society and why would the Supreme Court of Canada agree to hear his case? In June 2012 the Law Society held that Mr. Groia had professionally misconducted himself while defending his client John Felderhof in an action taken against him by the Ontario Securities Commission. You may recall that Mr. Felderhof was second in command at Bre-X Minerals Ltd, the Canadian-owned gold mine in Borneo that turned out to be a fraud, leaving thousands of investors with losses of hundreds of millions of dollars after investing in the bogus company.

Groia’s representation of Mr. Felderhof was second-to-none, as Mr. Felderhof, after 160 days of trial, was acquitted of all charges. However, the Law Society took it upon themselves to call Mr. Groia to account for his allegedly “uncivil” behaviour during the proceedings, conduct so egregious that during the trial, lawyers for the Ontario Securities Commission asked the judge to stop the trial arguing that he had lost jurisdiction by failing to rein in Mr. Groia’s outrageously rude behaviour in the courtroom. That application failed and the trial continued.

Two Ontario courts reviewed and upheld the Law Society’s ruling against Mr. Groia, describing his trial conduct as “unrestrained invective”, excessive rhetoric”, “theatrically excessive”, “sarcastic and petulant”, “more guerrilla theatre than advocacy in court”, and “attacks on the prosecutor’s integrity”.

Nonetheless, it is noteworthy and significant to Mr. Groia’s defence that the trial judge did not hold him in contempt, neither did he report Mr. Groia’s trial behaviour to the Law Society.

Groia, in rebuttal offered the following arguments:

1. He cast no personal aspersions against opposing counsel, but only targeted the Securities Commission and the prosecution;

2. His basis for alleging prosecutorial misconduct was based on his reasonably held views;

3. His language was mischaracterized by the Law Society and the courts;

4. The tone of the trial was an important factor in assessing his conduct, particularly in light of the prosecutor’s behaviour;

5. The Law Society retroactively applied standards of the “civility movement” to his conduct; and

6. His obligation as an effective advocate outstripped any absence of civility.

Without reading the whole of the transcripts of the trial, it is difficult to assess whether Mr. Groia’s behaviour fell so far below the standard of professionalism of a barrister that he ought to have been sanctioned by the Law Society. His original punishment was a two-month suspension of his license to practice law and an order that he pay costs of $250,000. This penalty was later reduced by the courts to a one-month suspension and $200,000 in costs.

Mr. Groia would, of course, argue that even reading the transcripts one would not be in a position to assess the conduct and roles of each of the counsel and judge at the trial and that may very well be true. It’s the old story that “you had to be there” to understand the dynamics.

Media reports from the hearing in the Supreme Court of Canada this week, appear to underscore the high court’s focus on the absence of disapproval from the trial judge, who was best placed to determine whether Mr. Groia’s conduct sunk to a level where he deserved to be chastised or disciplined.

As a trial lawyer in hard-fought cases, I tend to agree that it is not the Law Society’s place to interfere as a back-seat referee in a hotly contested proceeding where an unsuccessful defence will lead to dire consequences for the accused.

The Supreme Court of Canada clearly wants to provide guidance to litigators. We must now wait to see what the Supremes think…

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

COURTROOM FASHION POLICE

GeorgiaLeeLang009Clients often wonder what they should wear to court. I usually tell them that “business casual” is acceptable, but jackets and ties are never out of place. On more than a few occasions an in-person litigant has been so well dressed that the judge assumes he/she is a lawyer. Looking around at certain lawyers’ attire, I am not sure that is a compliment!

So, we know what to wear to court, let’s talk about what not to wear…

Judges in Kent County, Delaware have instituted a formal dress code after one woman appeared in court in her pajamas. (Didn’t Michael Jackson do the same thing during his trial? Yes, but his was designer apparel!)

The list of banned clothing in Kent County includes saggy pants, bare feet, curlers, gang clothes, exposed undergarments, skirts more than four inches above the knee, muscle shirts, tank tops, halters and bare midriffs.

“USA Today” cites other examples of court attire judged to be inappropriate:

1. A woman from Detroit who wore a rumpled sweat suit that read “Hot Stuff” on her derriere;

2. A woman from Bakersfield who came to court with rubber flip-flops;

3. A judge in Texas bans people with excessive body piercings and tatoos that are not covered;

4. A man in Ohio was threatened with jail time for wearing a t-shirt with the horror character Chucky on it and the words “Say Goodbye to the Killer”.

As Mark Twain said “Clothes make the man. Naked people have little or no influence.”

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