It should come as no surprise to anyone that most Canadians cannot afford a lawyer. In fact, lawyers often joke that if they had to pay a lawyer, they too couldn’t afford it. Nowhere is this dilemma more obvious than in family courts.
It is now commonplace to see self-represented litigants dueling with lawyers in most of our family courts in Canada. In British Columbia a parent or spouse can apply for custody and child and spousal support in the Provincial Court, which is purposely “user-friendly”. The Provincial Family Courts across Canada have successfully implemented reforms including plain-language court documents that are readily decipherable by lay litigants. The judges in Provincial Court are accustomed to hearing cases without lawyers and graciously assist those who act for themselves.
However, to obtain a divorce or property division, the only venue is each province’s Supreme Court, sometimes called “Queen’s Bench”, a most inhospitable environment for in-person litigants.
In a 2011 survey of Ontario divorce lawyers, conducted by Professor Nick Bala of Queen’s University Law School, he found that 48% of 167 responding lawyers indicated they were seeing many cases with at least one lay litigant and more cases where at some point in the litigation, neither party had counsel.
As family law becomes increasingly more complicated, despite the Canadian government’s sensible introduction of both Child Support Guidelines in 1997 and Spousal Support Advisory Guidelines in 2006, there are minefields enough for lawyers, never mind those who are forced to act as their own lawyer.
Will a lay litigant understand that in calculating their income for the payment of child support they must consider and understand complex nuances such as the possibility of the exclusion of non-recurring income; the need to include all of their capital gains income in their calculation and not just the portion they see on page two of their tax return; and their ability to deduct business expenses, union or professional dues and carrying costs? I doubt it. Not all lawyers have figured it out yet!
But affordability is not the only reason litigants refuse to retain counsel. There is another group of litigants who believe they can handle their divorce case just as well as a lawyer can. This smaller segment often become serial litigators who, because it costs them nothing, bring multiple frivolous applications, although some would say that lawyers do the same thing! Often when offered pro bono counsel, they decline.
Problems abound for all involved in the family justice system in the wake of the impact of lay litigants. Judges who must ensure that justice is both done, and seen to be done, are at the centre of the dilemma. If they provide too much help for an in-person litigant, that litigant’s spouse will see it as an unfair advantage and often, the court Rules that govern court procedures are less stringently enforced when it comes to litigants with no lawyer.
As well, litigants that pay for their own lawyer often become disenchanted with their counsel when they see their lawyer “helping” their estranged spouse who has no counsel. Lawyers are bound to treat participants in the justice system with courtesy and respect, traits that are frequently misconceived as their lawyer being “too friendly” with their opponent. Fee-paying litigants resent their lawyer telling their spouse what the law is or how the court process works.
For lawyers the problems are multiplied. They must walk a fine line in dealing with an unrepresented spouse and must ensure that all communication with an in-person litigant is documented in writing, with no exceptions. Of course, their clients are even more unhappy since it is their clients who pay the bills for the extra time and effort required to work with a lay litigant.
Lay litigants have also been known to send abusive communication to their spouse’s lawyer and from time to time, report their spouse’s lawyer to the Law Society, a complaint which can cost a lawyer hours of wasted time to respond to the often ill-founded allegations.
Is there a cure? They say that recognizing a problem is the first step to solving it. Certainly, the issue can no longer be avoided. It has taken centre stage as a result of lawyers, judges, court administrators, law professors, lawmakers, and the Canadian public decrying the slow demise of Canada’s family justice system.
Lawdiva aka Georgialee Lang
How would you feel if your jurist husband filed for divorce and coincidentally had his divorce petition assigned to his courtroom? Hard to believe, but that is exactly what occurred with Texas Judge Miguel (Mike) Herrara.
In Judge Herrara’s discipline hearing he acknowledged that the same day he filed his divorce petition he learned it had been assigned to his courtroom. He didn’t think it was a problem because he and his wife, Melissa Carrasco were “trying to save the marriage and he did not want to do anything on the case”. (In my 28 years of practicing family law I have never seen a litigant file a divorce petition, while seriously “trying to save the marriage”).
He explained that he saw his role in the divorce as that of a husband, not an attorney or judge and justified his behaviour, saying:
“I did not care to place my family in the same position as other litigants find themselves, in conflicts and court hearings, which, for the most part only benefit the attorneys financially. It is really sad and embarrassing to see the reputation of some of the litigants being dragged in the mud in these court proceedings.”
Judge Herrara’s breach of ethics may have escaped scrutiny if he and his wife reconciled, but that didn’t happen. Instead, she retained lawyer Angelica Carreon who filed a counter-petition for divorce against Judge Herrara.
This did not please the judge who asked his wife why she was involving Ms. Carreon who he alleged did not like him. In his testimony he admitted that he refused to recognize the “legitimacy” of Ms. Carreon’s representation because she had improperly solicited his wife as her client, had campaigned against him during judicial elections, and was “dishonest, unethical and unreasonable”.
Several months after the judge’s original filing he terminated his divorce petition, leaving his wife’s counter-petition to be determined. At this stage, Ms. Carrasco’s lawyer filed a motion requesting the judge to produce certain documents. Judge Herrara responded by filing a motion in his court for an order to extend the time beyond the normal time-frame for responding to the document request. He also filed a motion for a protective order.
Again, Judge Herrara did not recognize the absurdity of filing motions in his own court, saying that he did nothing wrong as he did not rule on the motions. But that wasn’t the end of his problems. His wife’s lawyer began filing motions requesting that he recuse himself from officiating over a number of other cases that were scheduled to be heard in his courtroom. Ms. Carreon alleged that Judge Herrara could not be fair and unbiased, because of the difficult professional relationship that had developed between them over her representation of Ms. Carrasco.
Many of the recusal motions were resolved by moving the cases to another judge, but several others remained in his courtroom and were not referred out. But, Herrara wasn’t done yet. He filed yet another motion to intervene in certain recusal cases because he wanted his views to be heard by the court. He testified that if he agreed to recuse himself he would be admitting the truth of Ms. Carreon’s allegations and would suffer at the polls in the next election.
The Texas Discipline Commission found that Judge Herrara failed to comply with the law, demonstrated a lack of professional competence, and engaged in wilful and persistent conduct that was inconsistent with his judicial duties.
They also determined that Judge Herrara showed no genuine remorse and continued to believe his conduct was justified.
His discipline? Six hours of instruction with a “mentor”. In 2016 he was re-elected for an additional four-year term.
Lawdiva aka Georgialee Lang
While President Trump’s opponent are having a large-scale melt-down over his recent appointments, perhaps the most consequential of these appointments is his nomination of Justice Neil Grosuch to replace the late Justice Scalia on the United States Supreme Court.
But lest you think that Canada’s judicial appointments lack the intensity and angst of our American friends, you need only refer back to Prime Minister Stephen Harper’s appointment of Federal Court of Appeal Justice Marc Nadon to the Supreme Court of Canada in 2013.
You may also recall that Ontario lawyer, Rocco Galati, challenged Mr. Harper’s appointment by filing a lawsuit against Mr. Harper, the Governor-General, Justice Nadon, the Attorney-General, and the Minister of Justice, which undoubtedly prompted the government’s prompt action to have the Supreme Court of Canada issue a ruling on Justice Nadon’s eligibility for our highest court, this after he had already been appointed.
The argument against his appointment was that Mr. Justice Nadon, as a Federal Court judge, was not qualified to represent Quebec on the Supreme Court of Canada, despite his long tenure as a lawyer in Quebec.
The eventual outcome confirmed Mr. Galati’s position that Judge Nadon was not eligible, a surprise to the Harper government who had contrary opinions from two retired Supreme Court of Canada justices and several constitutional experts.
Most of this has been long forgotten by Canadians, but Mr. Galati’s 2016 application to the Federal Court of Appeal to be paid $800.00 per hour by Canadian taxpayers for his legal work in bringing this challenge has brought this case back to media scrutiny, particularly in light of the Supreme Court of Canada’s decision this week to refuse to hear the case.
Mr. Galati claimed the sum of $51,706.00 and his co-counsel, Paul Slansky, wished to be paid $16,769.oo, again at a rate of $800.00 per hour.
Both counsel admitted that this is not the hourly rate they normally charge, but this amount reflects their years at the bar and their expertise, a proposition that was soundly rejected by the Federal Court of Appeal in their Reasons.
The Court found that Mr. Galati’s and Mr. Slansky’s request for full indemnity for their legal services, called “special costs” was unwarranted for a variety of sensible reasons. For starters, their litigation did not decide the outcome of the Nadon issue, as shortly after they filed their action, the Supreme Court of Canada stepped in, thus ousting their private action. They were not successful litigants.
As well, “special costs”are only awarded when the opposing litigant’s behaviour has been egregious, even outrageous. Short of that, a costs tariff comes into play, a tariff that is far from reimbursement for all legal costs. Additionally, Mr. Galati and his colleague were representing themselves and were actually in-person litigants, not entitled to costs.
The Federal Court also remarked that experienced counsel would know that if costs were to be awarded, the tariff rules would govern. But the court’s ire was raised in response to Mr. Galati’s argument that the constitution supported his request for special costs and that to deny his claim was to be evidence that the Federal Court was “in bed” with the federal government. To this audacious statement the court replied:
“It is therefore unnecessary for me to deal with the argument as to constitutional entitlement as it does not arise on these facts. That said, it sometimes occurs that a party makes an argument that is so scandalous that it deserves to be condemned, whether it arises on the facts of the case or not. This is such a case.”
The Court found that Mr. Galati’s allegation of collusion between the court and the government was “reminiscent of the Gonzo logic of the Vietnam War era, where entire villages were destroyed to save them from the enemy…this argument deserves to be condemned without reservation.”
Regrettably, it is cases like this that lower the reputation of lawyers to right-thinking members of the Canadian public. But “gonzo” aptly describes arguments that are “weird, eccentric and crazy”.
Lawdiva aka Georgialee Lang
In yet another British Columbia family law decision, the court fails to denounce, in the strongest terms, a litigant whose testimony is rife with lies. Yes, this judge addresses credibility, but in the same anemic way that permeates most family law cases, namely ” I accept the evidence of the claimant where it differs from the evidence of the respondent.”
That’s it, no rebuke, no censure, not even an award of special costs, despite the litigant’s devious conduct requiring untold extra preparation and court time to present a narrative that is flagrantly false, requiring a robust defence….yes, a rebuttal to a pack of lies.
Ngo v. Do 2017 BCSC 83 focuses on the breakdown of the marriage of a Vietnamese couple who agreed they married and immigrated to Canada in 1994. From that point on the parties’ evidence is sharply divergent.
He said their marriage ended two years later, in 1996, while she maintained they lived together as husband and wife in the family home in East Vancouver until their separation in 2012. When asked where he lived after 1996, since he alleged he did not live with his wife and children, he was unable to provide a single address, except to say that he lived in East Vancouver with a friend.
When asked to explain how it was that he and his wife added three additional children to their union after his alleged departure in 1996, he acknowledged that despite the shattering of the bonds of matrimony, they remained intimate with one another.
The date of separation was critical to a determination of the wife’s interest in two homes, a crab boat, and a license to catch crab. Ms. Ngo testified their first home was purchased in 2000 and became the family home where she and her husband raised the children, for all but one year of their marriage. She believed the home was registered in her husband’s name. Not so, said Mr. Do. He testified that the home’s owner was Mr. Den Van Ta, who he said he barely knew, although he had earlier said Den Van Ta was”like a brother” to him.
A second home in Maple Ridge was purchased in 2004, however, Mr. Do said it was purchased by his cousin, Kevin Phan. He testified that he lived with the children in the home from 2004 to 2008 rent-free and that Ms. Ngo was not permitted to live there. Ms. Ngo gave evidence that her husband told her the second home was rented out, but in 2006 he moved the family to the second home for a year, advising her that it was a more convenient location to travel to his employment in Maple Ridge.
Eventually the Maple Ridge home was registered in Mr. Do’s name. He explained that his cousin took pity on him and gifted the property to him in 2007. However, land title documents described the transaction as a cash sale for $445,000, subject to his cousin’s existing mortgage. Mr. Do sold the Maple Ridge home in 2009 netting $145,000 in profit.
Mr. Do’s lucky streak continued. He advised the court that the first home in East Vancouver was later gifted to him by Mr. Den Van Ta. The statement of adjustments described the transfer as a “gift of equity from the seller to the buyer in the amount of $269,000.” He also purchased a vessel and crab license sharing the cost equally with Mr. Den Van Ta, who, no surprise here, later gifted his one-half interest in their crab business to Mr. Do, gratis, for free.
The parties’ two eldest children corroborated Ms. Ngo’s evidence, while Mr. Den Van Ta was called to back up Mr. Do’s version of events with respect to the first home and the crab business. He was less than impressive. Mr. Phan was not called to testify leaving the court to draw an adverse inference.
The outcome? Mr. Do’s evidence was rejected and all the family property was shared equally. However, nowhere does the court suggest that Mr. Do’s perjured testimony is an abuse of process or of such a character as to bring the administration of justice into disrepute. Can anybody reason why Ms. Ngo was not awarded special costs, which is a full reimbursement of every penny she paid to her lawyer to respond to her husband’s pernicious lies? The court’s apparent trivialization of perjury by failing to award special costs to Ms. Ngo sends a strong message to litigants that perjury is acceptable.
Pulitzer prize-winning author James B. Stewart succinctly writes in “Tangled Webs: How False Statements are Undermining America”: “Our judicial system rests on an honor code: “I swear to tell the truth, the whole truth and nothing but the truth.” Perjury is not acceptable behaviour.”
Lawdiva aka Georgialee Lang
It is common knowledge that a doctor who enters into an intimate relationship with his/her patient will typically lose his license to practice medicine. But what about lawyers? Is a sexual relationship between a lawyer and his client considered a punishable ethical breach? Is it a conflict of interest and should it warrant disbarment?
The story of Ontario lawyer Anthony Macri provides some insight into this delicate subject. Mr. Macri was acting in a family law case for a vulnerable stay-at-home mom with two young children. She found herself without financial resources to defend herself against her husband’s litigation tactics, which included allegedly vandalizing her personal property.
Falling for a “damsel in distress”, Mr. Macri began a consensual sexual relationship with his client, a coupling that both hoped would continue after her family law matters were completed. During the course of their romantic trysts, Mr. Macri loaned his client $60,000 to cover her legal fees and personal expenses. She promised to pay him back from her share of the sale proceeds of the family home.
Eventually her home sold, but she refused to reimburse Mr. Macri for the loan. That is when their relationship turned ugly. Mr. Macri retaliated by sending threatening emails and text messages to his former lover saying “You don’t want to screw me over like this. Your case isn’t over. You still need me.” Other messages suggested that Mr. Macri would divulge personal information to her husband.
Not surprisingly, Mr. Macri ‘s lover reported their relationship to the Law Society of Ontario, and was called upon by them to address the issues raised by his clandestine relationship. The hearing tribunal found that Mr. Macri’s behavior in both acting for his client and sleeping with her was a conflict of interest. His loan to her, which he did not disclose to his law firm was the basis for their finding that Mr. Macri lacked integrity, and his inappropriate and abusive emails to her constituted dishonourable conduct.
While physicians who engage in sexual activities with their patients are subject to removal from their profession, there is no similar policy with respect to lawyers.
Lawyer Macri was fired by his law firm; suspended from the practice of law for two and a half months, and fined $2,500 with additional costs of $2,000 payable to the Law Society.
Should lawyers have the same ethical edicts as doctors in Canada? University of Ottawa law professor Adam Dodek was quoted in the “Toronto Star”, saying:
“Lawyers who have sex with their clients should be subject to a mandatory penalty of disbarment, the ultimate penalty that law societies can impose on lawyers. It is surely time to revisit the issue in the public interest.”
Side note: Was Mr. Macri repaid the funds he loaned? No.
Lawdiva aka Georgialee Lang
You have surely heard the time-worn adage “You get what you pay for”? Often that is true, but not always.
The decades-long investigation into the death of 15-year-old Martha Moxley of tony Greenwich, Connecticut in 1975 ultimately led to the 2000 arrest and 2002 conviction of Michael Skakel, infamous as a Kennedy cousin.
Over the years, Skakel, with the help of cousin Robert Kennedy, battled to reverse his conviction, but was largely unsuccessful until 2013 when he persuaded Mr. Justice Thomas Bishop of the Connecticut Superior Court to overturn his conviction, based on the incompetence of his trial lawyer.
Skakel’s trial lawyer was no junior schlep, but celebrity attorney Mickey Sherman whose reputation as a skilled, albeit flamboyant criminal counsel, was well-established.
Sherman’s successful law career was fast tracked when he became a legal commentator and analyst for MSNBC, CNBC, HLN, Fox News, CBS, and CNN. But his courtroom prowess took a huge hit after representing Michael Skakel in his 2002 murder trial.
Skakel’s new counsel argued that attorney Sherman spent more time basking in the limelight and charming the media than putting his mind to an aggressive, comprehensive defence of Mr. Skakel. From the outset, it was Michael Skakel’s older brother, Tom, who was suspected of sexually assaulting and beating neighbour girl Martha Moxley with a golf club.
He was a plausible suspect who had a history of emotional instability, anger and violence and had admitted to consensual sexual relations with Martha on the night she died. Ms. Moxley’s diary confirmed an ongoing sexual tension between her and Tom Skakel.
Another young man, Ken Littleton, who worked as a tutor for the Skakel family and lived with them, also attracted the attention of police investigators. In finding that Mickey Sherman did not properly defend his client, Judge Bishop noted Mr. Sherman’s failure to argue that either or both of these suspects was the more likely perpetrator, introducing an element of reasonable doubt, was a serious error.
Skakel also had an independent alibi witness that Mr. Sherman did not call to testify. Sherman advised the court that he had not been told about this witness, however, if Mr. Sherman had read the transcript of the grand jury hearing he would have known.
A particularly strong prosecution witness was vigorously cross-examined by Mr. Sherman, who later bragged of his decimation of the witness, but Sherman failed to call witnesses who could actually impeach his testimony. Mr. Sherman’s excuse was that they couldn’t be found, although later Skakel’s appellate counsel easily located them.
Among the litany of instances of ineffective assistance of counsel was Mr. Sherman’ s acceptance of two jurors who Mr. Sherman could and should have declined to seat on the jury panel.
The first was a police officer who knew Mr. Sherman and was a motorcycle buddy of one of the investigating officers. The juror reminded Mr. Sherman that he had effectively defended a client who had assaulted the juror and had on another occasion angered this juror’s wife when he aggressively cross-examined her in another case.
The second juror that Sherman should not have approved was a woman who admitted that her good friend’s mother knew Martha Moxley’s mother. She said she thought it would be a little awkward for her to explain an acquittal to her friend and that she might feel defensive about an acquittal, given the friendship with Mrs. Moxley. She also indicated that a friend’s father had been murdered and she testified that it could be difficult for her, as a juror, to separate herself from feelings that might arise because her oldest child and Ms. Moxley were the same age. Shockingly, Mr. Sherman saw no reason to eliminate these jurors from the panel.
Yesterday a new page in this murder mystery was written when the Connecticut appeal court overturned Judge Bishop’s judgment ending Mr. Skakel’s short-lived freedom. The court found that attorney Mickey Sherman, despite accusations to the contrary, represented him effectively and thus earned his $1.2 million dollar legal fee.
No doubt further appeals will follow.
Lawdiva aka Georgialee Lang