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

The 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

Hard-Luck Case Leads to Cancellation of Child Support Arrears

There’s a saying “If it wasn’t for bad luck, I’d have no luck at all”, a sentiment that the litigants in K.S. v. M.B. 2017 BCSC 2390 should heartily embrace.

The parties lived together for 9 years and had a daughter born in 1986. They separated two years later with mother having custody of their child and father paying regular child support. In 2004 a court found their daughter was no longer eligible for child support as she was living independently and working in the sex trade.

In 2010 another judge of the court heard evidence from the parties and made an order that the father owed arrears of child support of $18,543 for the period between May of 1991 and April of 2003. However, the order was not entered until January 2017 and the mother made no efforts to collect the child support monies she was owed.

Tragically in 2014 their daughter, who had been living in California, was found murdered in New Orleans.

The father, who graduated from high school in 1976, began working as a long-haul truck driver, however, in 1990 he fell off the truck roof, a fall that damaged rods in his back placed there in 1974 to treat his scoliosis. He was in a full body cast for a year as a result.

The nineties were not good times for the father. Between 1992 and 1995 he was involved in criminal law proceedings and was convicted for criminal negligence causing death, He served one year of a three-year sentence. Trying to work his way back to productivity he obtained a diploma in computer networking and telecommunications and found work as a computer technician, until his employer went bankrupt.

He went back to truck driving but injured himself on the job and broke three ribs, an injury that compromised his already damaged spine. While recovering he was diagnosed with two different types of cancer and was on chemotherapy from 2013 to 2016. He welcomed the remission, but was unable to be gainfully employed as he could not stand for long periods of time and even walking was difficult. He was also diagnosed with rheumatoid arthritis in his lower back and hands.

The issue before the court was whether is would be “grossly unfair” to cancel the arrears of child support arising from the 2010 order. At the time of the hearing he was 59 years old and surviving on a pension of $1,600 per month, which would terminate at age 65.

On the other side, the recipient parent was also living on a disability pension which was to end in November 2017, following which she would have only her Canada Pension Plan and Old Age Security benefits. She had also suffered from bad health and in 2010 had taken legal custody of their daughter’s child. She advised the court that she needed the arrears to support herself and her grandchild.

The court reviewed the legal principles relevant to an application to cancel arrears, noting the following:

1. Arrears will only be cancelled if the person has no present and no future ability to pay;
2. Delay in enforcing an order for arrears is generally not a legal basis to cancel or reduce child support;
3. Arrears will not be cancelled because the children were “taken care of” financially by others;
4. Arrears payments of a large sum will not be considered a windfall to the recipient parent.

The court commented that the death of a child does not automatically cancel arrears of support, however, it is a factor the court may consider to determine if it would be “grossly unfair” not to do. The court also promptly dismissed the mother’s argument that she required the child support arrears to support her grandchild, a submission that very likely hurt the mother’s case.

Taking into account all of the circumstances, Mr. Justice Ball ordered that all arrears, interest and penalties be cancelled and that each party pay their own costs.

Another sad family law case where poverty plays a central role.

Lawdiva aka Georgialee Lang

Ungrateful Children? You’re Not Alone.

Meddling Friends No Help in Divorce

If you are going through a divorce you need all the support you can muster, particularly if you find yourself in the midst of the “affidavit” wars, a stage of divorce litigation where nasty allegations fly fast and furious, and usually turn out to be highly exaggerated and embellished.

It is not unusual for clients, particularly female clients, to visit their lawyer’s office with a sympathetic friend in tow, a practice that I do not discourage subscribing to the theory that friends make the burden lighter.

However, with the recent explosion of “grey” divorce, family law lawyers have noticed that the adult children of their clients are “interfering” in the process, making their jobs more difficult.

Sometimes the interference is the intentional undermining of the legal advice provided by the lawyer to their elderly parent, other times it is directed at the adult offspring’s concern about the loss of their future inheritance, or their desire to force the reconciliation of their parents, a goal that while laudable, may not be in their parent’s best interests, particularly where the marriage is marked by chronic family violence.

Whether the adult child is cajoling their parent to rewrite their will, or sending abusive missives to the parent they deem to be the “guilty” party, most of these tactics only serve to escalate the conflict between their parents.

Well-known British divorce lawyer and media commentator, Marilyn Stowe, remarks:

“A client should be able to rely upon their legal team 100 per cent. Friends (and family) play a completely different role, which is socially centred. It is free of the professional ethics, scruples, obligations, privilege and confidentiality that are the lawyer’s domain.”

Certainly, if you are paying a lawyer hundreds of dollars an hour, it is most unwise to discard their professional expertise in favour of a friend or family member, who “only wants to help”, but may have little real insight or knowledge of the process or the law.

Frankly, if you have so little confidence in your lawyer’s advice that you defer to your girlfriend, who has been through two divorces, or your son, who sees his “meal ticket” slipping away, you need to seriously consider hiring a lawyer that commands your respect.

Lawdiva aka Georgialee Lang

Family Law Firm Tells It Like It Is

I don’t know about you, but I like people, companies, organizations etc. that tell you what they are really all about and where they are at.

For most of the public, law firms are not particularly transparent entities. They deal in complicated subject matters and use complex language to describe what they do, if they ever explain it at all.

Not so, however, with respect to the Columbia, South Carolina law firm of Pincus Family Law. Their firm website tells you exactly what they will do and what they won’t. Their critics say their to-the-point abruptness can’t be good for business. Consider the following excerpts from their website.

Under the heading “Client Expectations” the following paraphrased rules are set out:

1. They do not work weekends and they will not provide clients with a weekend emergency number;

2. They will not routinely respond to email from clients on a weekend, however, if they do on occasion respond, this is the exception and not the rule;

3. They are good at what they do but they are not perfect. They are human beings with the same frailties as their clients. If a mistake is made, they will fix it quickly, but they do not expect to be harangued or insulted by their clients for human error;

4. They will return client phone calls in the order they are received by the firm, subject to their assessment as to client priority. Calling their office three or four times a day will not change the priority assigned to a call;

5. Legal Assistants and Paralegals are available to answer clients’ questions and provide status updates and their hourly billing rates are substantially less than the firm’s lawyers;

6. Being “nice” to your spouse during the divorce process is a laudable goal, but do not expect to get any concessions or consideration from your spouse as a result of your civility;

7. In the litigation process, your spouse’s lawyer will file documents called “pleadings”. These pleadings will contain allegations that may be upsetting to you. Don’t waste your emotional energy fretting over these documents. The allegations are “standard-operating procedure” and may or may not be true;

8. Courtrooms are overbooked and often there are an insufficient number of judges to handle all the scheduled cases. Don’t blame us if we cannot obtain hearing dates as early as you or we would wish. We have no control over court scheduling;

9. Your spouse may retain counsel who are “nasty” or who procrastinate. Once again, that is not our fault. We will work within the rules to keep your case moving forward but we cannot be held responsible for your spouse’s lawyers’ personality disorder or their delay tactics;

10. In divorce and family law, nothing happens quickly. That’s just the way the system is, so be prepared.

My impression? I love it! I have never seen a family law firm that has more succinctly identified some of the major client issues that cause friction between attorney and client. Certainly, many divorce lawyers operate on the same terms, they just don’t do their clients the favour of telling them.

As award-winning journalist Roberta Baskin has noted, there is a public feeding frenzy for transparency, and Pincus Law delivers all of that. Kudos to them!

Lawdiva aka Georgialee Lang

Biased Judge Removed from Divorce Case

Sir Nicholas Mostyn was a formidable divorce lawyer before he was appointed a judge in London, England in 2010. Nicknamed “Mr. Payout”, he had an illustrious reputation for obtaining large sums of money for his female clients and was among the most sought after barristers for the monied upper class.

Of course, many male clients clamoured for his services and he represented Paul McCartney in his divorce battle with Heather Mills. She sought $125 million dollars but was only awarded $25 million.

He also acted for Lady Diana’s brother, the Earl of Spencer, who later sued Mr. Mostyn claiming that his second wife received $1 million more in a settlement than she deserved because Mostyn failed to advise him that his divorce proceeding would not remain private, as there had been a recent change in the law.

The Earl of Spencer was forced to settle to avoid the fall-out of a public trial. The lawsuit went nowhere.

This week Justice Mostyn was subject to a rare order from the Court of Appeal, removing him from a case he had been assigned.

It is not uncommon to hear clients complain about judges who they perceive are unsympathetic, even biased against them, but it is a rare occasion when an application to remove a judge is granted.

In British Columbia if counsel believes there is evidence to suggest that a judge may be biased against their client, they may bring an application to have the judge removed. However, the tricky part is that the application must be brought before the judge you accuse of bias.

About 99% of the time, the judge will gamely hear the application but dismiss it. These applications are infrequent, however, I remember a case fifteen years ago where I brought such an application. At the time, my legal research indicated that the chances of success were extremely slight and true to form, the application was dismissed.

As for Justice Mostyn, the complaint against him included
the allegation that he had made up his mind against litigant Mr. Mann, who had cancer, had fallen on hard times and lived in social housing. Mrs. Mann brought the matter to court in her attempt to have her ex-husband pay her $2 million she said was owed her as a result of their matrimonial matter, following their separation in 2007.

Justice Mostyn threatened to throw Mr. Mann in prison if he did not pay his ex-wife the funds owed. Mr. Mann’s lawyer also argued that the Justice was generally hostile towards his client throughout the proceedings.

The Court of Appeal judges acceded to the claim against Justice Mostyn. Lady Justice Macur referred to hearings before Judge Mostyn in February and June 2014, describing ‘intemperate judicial dialogues’ showing that Justice Mostyn had made up his mind about Mr Mann’s ability to pay.

She also said: ‘During that time Mostyn J’s frustration is palpable and clearly arises from his obvious belief that Mr. Mann is deliberately and maliciously avoiding his legal and moral responsibilities.’

A new judge has been assigned to the case.

Lawdiva aka Georgialee Lang