The Door Slams Shut on Ex-Wife Who Wants More Spousal Support

P1010870 - Version 2In a sensible decision handed down today by the BC Court of Appeal, (Sandy v. Sandy 2018 BCCA 182) a former spouse has learned that the trial judge’s order that she could come back to the “well” after a final settlement of spousal support is unsupportable in law.

Ms. Sandy and her accountant husband settled all financial issues between them by executing a separation agreement that dealt with spousal support via a lump sum payment of $315,000. She eventually received the sum of $411,000 in spousal support because of a CRA reassessment favourable to her spouse, together with her share of the family property, an amount a little more than $1 million dollars.

At the time of the agreement the parties concurred that the husband’s income was $600,000, but did not address his future prospects or whether his income was likely to increase over time.

But his income continued to grow after the agreement was signed. He earned more than $800,000 in 2010 and more than $900,000 in 2014.

Ms. Sandy sought to vary the spousal support on the basis of a change in her health situation and her former spouse’s increase in income.

The first question for the Court of Appeal was whether it was possible to vary an order under s. 17 of the Divorce Act, where the order dismissed a spouse’s claim for spousal support.

Not surprisingly, they answered “no”, however, they acknowledged that in Ontario a five-member panel of the appeal court had decided the answer in the affirmative. Madam Justice Fenlon agreed that if the answer were to be “yes’ it would have to come from an enhanced panel of the Court of Appeal.

The next question was whether the Court could address the issue of ongoing spousal support where a dismissal had been ordered, via s. 15.2 of the Divorce Act, a first instance application. Their answer was “yes”, relying on Mr. Justice Goepel’s decision in B.G.D. v. R.W.D., 2003 BCCA 259, where it was determined that an order dismissing all future claims for spousal support is not supportable at law and it was inappropriate to oust the jurisdiction of the court.

Fenlon J. wrote:

“It is apparent, then, that an order dismissing a claim for child or spousal support does not preclude a subsequent application for support.”

Relying on Miglin v. Miglin the Court applied a two-stage analysis, finding there was nothing to suggest unfairness or non-compliance with the principles of the Divorce Act regarding spousal support. Ms. Sandy had counsel and the services of a financial advisor through the negotiations. With respect to the second stage, she had the burden of establishing a significant change in circumstances not within the contemplation of the parties at the time they signed the agreement.

While the trial judge found that Mr. Sandy’s increased income was a material change, the appeal court disagreed, saying that the trial judge made an assumption, not supported by the evidence. There was no evidence that the increase had not been in the contemplation of the parties, and the trial judge could not simply assume it had been. She noted that Mr. Sandy’s form 8 indicated that “his income fluctuated from year to year” and he estimated his next year’s income at $650,000.

The Court of Appeal offered sage advice saying:

“In my view the message to be drawn from Miglin and L.M.P. v. L.S., 2011 SCC 64 is that certainty and finality cannot be achieved by drawing orders that dismiss claims for support. Nor do embellishments such as “as if after trial” or references to “future claims” assist. Rather, parties wishing to achieve finality should set out in an order or agreement the potential changes in circumstances they have considered in reaching their agreement, and clearly identify the changes they agree will, or will not, warrant reconsideration of the terms on which they have resolved their support obligations.”

The lesson to be learned is that if your client is seeking finality in spousal support, the order or agreement must specifically identify the future changes that will or will not open the door to more support.

Lawdiva aka Georgialee Lang

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Attacks on Canadian Christian Values is Real

GeorgiaLeeLang100Imagine a situation where a gay couple were told they could not adopt a child because they were gay, or a Muslim couple told the same thing….The outcry from the public, specific interest groups, and civil liberties organizations would be searing and the media would gobble up the controversy.

But that’s exactly what occurred in Edmonton last year when an evangelical Christian couple, who otherwise qualified to bring a child into their home, were told they were “unsuitable”. The husband had himself been adopted and when he and his wife realized they could not have their own children, they applied to adopt a child.

They jumped through all the hoops with flying colours until a social worker asked them about their views on same-sex marriage, sex before marriage, and a child who may identify as the opposite gender despite the child’s biological DNA.

The couple exhibited sincere compassion as they explained their beliefs, founded on Biblical principles, beliefs also held by Catholics, Muslims and Orthodox Jews. They advised the social worker that they would accept a child’s exploration but would not encourage a gay lifestyle, hoping that by providing a stable, loving home the child would follow their example.

They also recognized the reality of the legalization of same-sex marriage and were respectful, although not supportive, of the law of the land.

Despite their thoughtful responses they were advised their views were contrary to the position held by the Alberta government and that if they adopted a child they may well abandon the child.

To their rescue came lawyers with the Justice Centre for Constitutional Freedoms who challenged the Alberta government’s Children’s Services branch on their behalf, on the ground that their Charter right to freedom of religion, had been violated. That their case was righteous was obvious when shortly after the lawyers became involved the Alberta government reversed their decision.

Yes, this is another example of the ongoing attack on Christian values in Canada. Not to mention,the battle to stop a Christian law school; deny Christian groups government funding for summer student employment; and introduce LGBTQ gender ideology in public elementary schools.

Lawdiva aka Georgialee Lang

“Mr. Big” Police Sting Convicts Ontario Wife Murderer

GeorgiaLeeLang025I recognize that the RCMP’s classic “Mr. Big” sting to cajole murder suspects to confess to horrendous crimes has been criticized by many civil libertarians as an abuse of process.

Yes, there are cases where the scenario and inducements to confess are suspect, particularly where the police masquerade as members of a murderous criminal gang. However, there are many cases where the tactics, frequently approved by our criminal courts, have been sanctioned as a legitimate tool for law enforcement, particularly after the Supreme Court of Canada issued their analysis in R. v. Hart. (2014 SCC 52)

In the Hart case our highest court found that confessions given during such operations are often unreliable and introduced a stringent new test for their admissibility as evidence in criminal cases. As such, the decision seeks to curtail the abuse of police power in coercing unreliable confessions.

In a recent Ontario case, R. v. Kelly, 2017 ONCA 621, Michael Earl Kelly was convicted of the murder of his wife, whose body was found four years after Mr. Kelly reported her missing. The trial court utilized the standards articulated by R. v. Hart, although the trial occurred before the Hart case was handed down by our highest court. Mr. Kelly was convicted of the first degree murder of Judith Thibault.

Ms. Thibault was found in Thunder Bay a few feet from Wolf Bay Road. She had one 22 caliber bullet wound in her head and was wrapped in a carpet. Although the police had no forensic evidence incriminating Mr. Kelly they were certain he was their main suspect and devised a plan to induce him to confess his crime.

RCMP sergeant “Bob”, parading as a private investigator for an insurance company, contacted Mr. Kelly, who had moved to Alberta with his new wife, and advised him that Ms. Thibault had left a life insurance policy for $3,000, naming him as the beneficiary. Bob paid the bogus insurance money to Mr. Kelly and told him that he needed to sign a release form acknowledging his receipt of the money and releasing any further claims to any other life insurance policies.

Bob told him he would investigate to determine if there was any other life insurance policies naming him as beneficiary before he released his rights. Shortly thereafter Bob contacted Mr. Kelly again and told him he had discovered two additional policies totalling $571,000. Bob showed him two fictious documents saying there was a hold on pay-out of the latter two policies because Mr. Kelly was a suspect in Ms. Thibault’s murder.

Bob told Mr. Kelly that he would not receive the proceeds of the two policies until he was cleared as a suspect and presented an insurance scam to Mr. Kelly, that would benefit both of them. His idea was that Bob had a friend, “Donnie”, who was terminally ill who would confess he was the murderer, thus removing any suspicion from Mr. Kelly, who could then receive the insurance payout. Donnie and Bob would receive $150,000 from the insurance proceeds for their assistance in the scam.

The only trick was that Mr. Kelly had to provide enough information about the murder to convey to Donnie so that the police would be convinced they had their murderer when Donnie confessed.

While Mr. Kelly initially denied any involvement in the murder, eventually he provided information that only the true murderer would know and was promptly arrested for first degree murder.

He appealed his murder conviction to the Ontario Court of Appeal who dismissed his appeal finding that the insurance scam was a variation of the typical Mr. Big sting and not an abuse of process.

The appeal court said:

…this case involved a police sting scenario that was a very modified version of a Mr. Big, without any violent criminal activity or gang aspect to it. Nor did the undercover officers befriend the appellant to make him vulnerable to pressure as a friend. It was an insurance fraud scheme.”

While the Mr. Big sting is illegal in the United States it has been a significant tool for Canadian law enforcement and has resulted in convictions that might never otherwise have been obtained.

Lawdiva aka Georgialee Lang

Looking for a Lawyer? Buyer Beware

GeorgiaLeeLang057The practice of law is both a profession and a business. Many lawyers can rely on their winning track record and high ethics to gain a reputation that engenders word-of mouth referrals.

Other lawyers buttress their status in the profession with advertising. Gone are the days, however, of yellow pages ads.

Today’s lawyers utilize television, radio, and the internet to entice potential clients. Many of these ads fall into the “conservative, balding lawyer standing in front of a bookcase” category. While others are innovative, even racy! Case in point:

An all-women law firm in Chicago created a billboard ad that read “Life’s Short. Get a Divorce.” The ad featured a photo of an attractive woman in her lingerie beside a handsome man with a six-pack. It turned out that the woman who posed for the ad was the lead attorney at the firm and the dude with her was her personal trainer. She reported that the firm was inundated with phone calls. Unfortunately, the billboard was removed seven days after it went up for an alleged by-law infringement.

Other forays into to the world of marketing are less provocative but no less effective. One family law firm, again an all-women firm, launched their print marketing with the headline “Ever Argue With A Woman?” I think they made their point very clear!

Lubbock Texas is the home of a personal injury lawyer whose billboard screams, “Injured? Get the Gorilla!” and yes, a huge gorilla dominates the advertisement.

Other law firms have raised the hackles of their governing bodies with their ads.

In Nevada a lawyer bills himself as “The Heavy Hitter” in his rambunctious television spots and a Polish speaking lawyer ran an ad on a Polish-language radio station referring to himself as “The Lion of the Court”. The trouble was that he had never tried a case in court!

A Christian Response to Racism

BarristerOne common thread throughout mankind is the endemic ugliness of racism.

Human history is rife with examples: early Romans subjugated the Jews; slavery was rampant; India’s caste system ostracizes the untouchables; Japanese immigrants to Canada and the United States were rounded up and forced into internment camps; indigenous peoples in Canada, Australia, the United States live amid poverty and discrimination; Germany oversaw the murder of Jews, political prisoners, homosexuals, and the mentally disabled; colonialism and apartheid ruled South Africa;  Jim Crow laws ruled the south, and today in North America, African-Americans have risen up to demand an end to systemic racism, their action propelled by a wave of police shootings of black men.

Meanwhile, white America reels as black vigilantes assassinate white and black police officers in retaliation, as Black Lives Matter assumes centre stage in the public arena.

The question I pose is whether Christians should believe and act upon the notion that racial injustice is a gospel issue that deserves our energy and attention. I believe it is.

How could it not be when the spirit-breathed Word of God tells us that Christians should be peacemakers: “So then let us pursue what makes for peace and for mutual up building.” Romans 14:19

We are told to forgive those who do harm to us and treat our enemies with love. “Clothe yourselves with compassion, kindness, humility, gentleness, and patience.” Colossians 3:12

Admittedly, these are difficult aspirations for flawed mortals to embrace, but the message of the Gospel demands the abolition of discrimination of any kind, be it sexism, homophobia, ageism, disablism, fat-shaming, or religious discrimination.

When Moses descended from Mount Sinai with the commandments of God, men and women had no difficulty understanding the Sixth Commandment: “Thou Shall Not Kill.” Later, in the Gospel of John we read: “Whoever hates his brother is a murderer, and you know that no murderer has eternal life abiding in him.” 1 John 3:15

Jesus Christ, delivering his Sermon on the Mount, admonished his followers: “You have heard that it was said, ‘You shall love your neighbor and hate your enemy.’ But I say to you, love your enemies, bless those who curse you, do good to those who hate you, and pray for those who spitefully use you and persecute you, that you may be sons of your Father in heaven; for He makes His sun rise on the evil and on the good, and sends rain on the just and on the unjust.” Matthew 5:43-45

It seems there are so many ways that people hurt people, often inadvertently, but the pain remains the same. Is the Church of Jesus Christ prepared to tackle this difficult issue?

Following on the heels of a Sunnyvale, California church, a congregation in Concord, North Carolina is taking action to defeat the affliction of racism. Based on the 12-Step program of Alcoholics Anonymous, this predominantly white church invites their members and the public to join weekly meetings of Racists Anonymous, encouraging and fostering this decidedly uncomfortable conversation. Pastor Nathan King reports that the meetings attract old and young, those admittedly racist, and others who are unsure or believe they may have a problem.

The only sure remedy for racism is the love of Jesus Christ. The gospel of Christ has the power to transform our understanding of race and discrimination. We must confront it, name it, shame it, and banish it forever.

Lawdiva aka Georgialee Lang

Lawyers’ Merry Christmas Cards

Lawyers’ Merry Christmas Cards

Just for fun, I’ll set out the sentiments from a few lawyers’ Christmas cards:

1. Picture an intense lawyer grilling Santa Claus on the witness stand:

“I’ll ask you again sir, did you or did you not look at my client, and in a crowded shopping mall, in front of her children, call her not once, but three times… a ho?”

2. A lawyer making closing submissions in court:

“The evidence will clearly show that my client, Mr. Claus, was not the driver of the sleigh the night that Grandma, as the charges read, “got run over by a reindeer”.

3. This time it’s a sleigh full of reindeer being pulled by Santa Claus:

“Our lawyers sure know how to negotiate an employment contract.”

4. Husband reading a Christmas card to his wife:

“Honey, our lawyer wishes us, but in no way guarantees a Merry Christmas”

5. Child sitting on Santa’s lap in a department store:

“Actually my legal counsel has advised me to plead the 5th with respect to “naughty or nice”.”

6. Santa standing outside the front door of a home on Christmas Eve
with his lawyer:

“My client would like you to sign this waiver before he descends your chimney.”

7. A lawyer sitting on Santa’s lap in a department store, reading his Christmas
wish list:

“Sympathetic judges, evidence that is irrefutable, friendly juries, no hostile witnesses.”

8. Young boy sitting on Santa’s lap in a department store:

“As to your question “Were you a good boy?”, my attorney tells me I have the right to remain silent.”

MERRY CHRISTMAS!

Lawdiva aka Georgialee Lang

Merry Christmas Disclaimer

PLEASE ACCEPT without obligation, express or implied, these best wishes for an

environmentally safe, socially responsible, low stress, non addictive, and gender

neutral celebration of the winter solstice holiday as practiced within the most

enjoyable traditions of the religious persuasion of your choice (but with respect

for the religious or secular persuasions and/or traditions of others or for their

choice not to practice religious or secular traditions at all):

AND FURTHER for a fiscally successful, personal fulfilling, and

medically uncomplicated onset of the generally accepted calendar year

(including, but not limited to, the Christian calendar, but not

without due respect for the calendars of choice or of other cultures).

THE PROCEEDING wishes are extended without regard to the race, creed,

colour, age, physical ability, religious faith, choice of computer platform, or

sexual preference of the wishee.

 

Lawdiva aka Georgialee Lang