BC’s Leading Case on Parental Alienation

The leading case on parental alienation remains the case of Williamson v. Williamson 2016 BCCA 87 and has been referred to in over 100 cases by courts in BC,  Ontario, Alberta, and Yukon. 

The appeal case arose from a chambers decision that ordered four children, ages 18, 16, 14, and 12 to attend an inpatient family counselling service pioneered by Dr. Kathleen Reay in Kelowna. The court accepted a report authored by family counsellor Bob Finlay, who was appointed as a therapist for the family, and had identified parental alienation by the children’s father. 

The chambers judge said “there is absolutely no doubt that there is serious parental alienation here and it has been encouraged by one of both of the parents. I am not making any decisions insofar as who is right or wrong in any way…you have a 16-year-old who has not seen his mom for roughly 4 years and a daughter who has not seen her mom since September of last year, and the other children have not been seeing their father at all. The family is complete dysfunctional right now…”

The appeal court noted that it was unusual that the chambers judge did not identify which parent was exhibiting alienating behavior and that the judge made clear he had not read all the material before him and that his review was “cursory”. 

This case was even more interesting because the mother had brought the same application six months earlier, only for it to be dismissed. At that time the court determined that Mr. Finlay’s opinion was “untested” by cross-examination and further,  that the court had not invited Mr. Finlay to change his role from therapist to expert assessor, rather Dr. Elterman had been appointed to update a section 211 report for the court. 

The appeal court allowed the appeal and directed that there be an expedited trial,  on the basis that the chambers judge had failed to determine if there had been a material change in circumstances, which was required if  the court were to consider making an order for intensive inpatient therapy, which had earlier been dismissed.  

But it is the Court of Appeal’s commentary on parental alienation that has attracted attention to this case. The court first noted that parental alienation is a controversial area in family law, but its controversy was not before them. They said that other courts have determined that alienation can occur as an unfortunate side-effect of the breakdown of a relationship, but it also occurs because of deliberate actions, both direct and indirect on the part of a parent.  They reminded us that alienation must be distinguished from estrangement, and that estrangement occurs when a child understandably refuses contact with a parent for a logical and rational reason. 

They commented on the use of expert evidence to support allegations of alienation, noting that because of the seriousness of the allegation, courts must be cautious in admitting expert evidence. The chambers judge had accepted the evidence of alienation proferred by Bob Finlay without considering his qualifications, or the necessity of his report given that Dr. Elterman had been the court appointed expert.  They also noted that the inpatient program ordered by the chambers judge was a fairly recent program that had not been independently peer reviewed. Several other judges had questioned the qualifications of Dr. Reay to run such a program including Luo v. Le 2016 ONSC 202 and DSW v. DAW 2014 BCSC 514.

Lawdiva aka Georgialee Lang

Ground-Breaking Covid Decision in Family Law

What can I say about Mr. Justice Pazaratz that has not already been said by others?  There is no doubt that he “can be counted on to tell it like it is”; is “thoughtful and child-focused”; and is “known for his plain language, storytelling, humour, and biting commentary”. 

All of this is true, but in JN v. CG  2022 ONSC 1198 he has outdone himself.

While judges across Canada have parroted the accepted catechism about covid vaccinations for children, Justice Pazaratz has provided the first in-depth analysis and may be the first judge in Canada to deny a parent’s application to vaccinate young children. 

He begins his Reasons asking: “Should judges sit back as the concept of “Judicial Notice” gets highjacked from a rule of evidence to a substitute for evidence? And is “misinformation” even a real word? Or has it become a crass, self-serving tool to pre-empt judicial scrutiny and discredit your opponent? …a childish—but sinister—way of saying “You’re so wrong, I don’t even have to explain why you’re wrong.”  

The facts of the case reveal that a father applied for an order that his two children, LEG age 12 and MDG age 10, receive covid vaccinations, while their mother opposed this. The parties, who separated after seven years of marriage, have three children: a son, age 14 who lives with his father and a son and daughter, ages 12 and 10, who live with their mother. The parties agreed in Minutes of Settlement that each party would have sole-decision making authority for the child(ren) in their care and control, however, their agreement also stated that: “The issue of LEG and MDG receiving a covid vaccine shall remain a live issue and shall be determined at a later date. The child CBG can determine whether or not he wants to be vaccinated now”. 

The mother’s evidence focused entirely on medical and scientific evidence while the father focused on labelling and discrediting his children’s mother in a dismissive attempt to argue that her views were not worthy of consideration. Why? Because she had a political affiliation with the People’s Party of Canada led by Maxine Bernier; had perpetuated covid-related conspiracy theories and vaccine hesitancy on social media; and failed to wear a mask at a large rally. 

Puzzled by this evidence, Justice Pazaratz queries how any of these allegations and many similar ones are relevant and how far is one to take “guilt by association”? He remarks that “it is of little consequence that an individual litigant chooses to advance such dubious and offensive arguments. Even though the father may not admit this, this is still a free country and people can say what they want…including him. But there’s a bigger problem here. An uglier problem.”

Justice Pazaratz then identifies the intolerance, vilification, and dismissive character assassination in family court. He presumes that he is seeing more of it because it is “rampant outside the courtroom” and appears to be socially acceptable to denounce, punish and banish anyone who doesn’t agree with you. An example? A recent case where a mother sought to terminate a father’s equal parenting time with their child because he was “promoting anti-government beliefs”. Judge Pazaratz declares: “…in Communist China that request would likely have been granted”.  But thankfully, not in Canada, say I. 

Of course, what it all boils down to is the best interests of the children, as it must, and the children’s views took centre-stage in the analysis. A Views of the Child Report indicated that neither child wished to be vaccinated, and Justice Pazaratz agreed that their views were not determinative, but also could not be completely ignored, relying on Article 12 of the United Nations Convention on the Rights of the Child and the list of factors to be considered as set out in Decaen v. Decaen 2013 ONCA 218.

The Court reviewed the children’s histories of regular immunizations, and their consistent reasons for rejecting a covid vaccination, which did not appear to be frivolous, superficial, or poorly thought out. 

Finally, the Court considered information obtained from the internet including a “Position Statement” from the Canadian Paediatric Society;  a document from the Government of Canada entitled “Vaccines for Children: Deciding to Vaccinate”; and an article from the Canada Communicable Disease Report entitled “COVID-19 Cases and Hospitalizations Surge Among Children”, all proffered by the father. 

The mother’s material included an article by Dr. Robert Malone, the inventor of the mRNA vaccine; a Pfizer fact sheet; a peer-reviewed article entitled “Immunization with SARS Coronavirus Vaccines Lead to Pulmonary Immunopathology on Challenge with the SARS virus”; and an article from the Centers for Disease Control and Prevention (CDC) entitled “Clinical Considerations: Myocarditis and Pericarditis after Receipt of mRNA Covid-19 Vaccines among Adolescents and Young Adults”.

Justice Pazaratz noted that information obtained from the internet can be admissible if it is accompanied by indicia of reliability, including whether it comes from an official website from a well-known organization, whether the information is capable of being verified and whether the source is disclosed so that the objectivity of the person or organization can be assessed. 

However, he also remarked that in almost all cases in Canada where COVID vaccinations have been ordered the court has made a finding that on the face of it, the internet materials presented by the objecting parent have been grossly deficient and at times, dubious. “The lack of an equally credible counter-point to government recommendations may have well been determinative in those earlier cases”.

Notably, the Court recited the warning from Pfizer, a company that makes the vaccine, as follows:

“There is a remote chance that the Pfizer vaccine could cause severe allergic reaction… Signs of an allergic reaction include difficulty breathing, swelling of the face and throat, a fast heartbeat, a bad rash, dizziness and weakness. Inflammation of the heart have occurred in some people who have received the Pfizer vaccine….”

Justice Pazaratz also quotes from Dr. Robert Malone who warns that “therapeutic approaches that are still in the research phase are being imposed on an ill-informed public” and that  “public health leadership has stepped over the line and is now violating the bedrock principles which form the foundation upon which the ethics of clinical research are built.”

With respect to judicial notice, the Court reviewed the analysis of the safety and efficacy of the vaccine as promoted by the federal government and illustrated in other covid/child vaccination cases in Canada, where judges routinely  “judicially noticed”  the evidence, endorsing the government views.  Judge Pazaratz asked: “After considering all of the evidence– or often the lack of evidence—can the court just fill in the blanks and take judicial notice of the fact that all children should get vaccinated?… Because if “all judges just “know” that children should be vaccinated, then we should clearly say that that’s what we’re doing”.

We are reminded that judicial notice is intended to avoid unnecessary litigation over facts that are clearly uncontroversial or beyond reasonable dispute, however, Justice Pazaratz points out other areas of life and the law where the government was wrong, including the Motherrisk expert evidence that turned out to be disastrous for families; the residential school system; the sterilization of Eskimo women; and the thalidomide crisis of the 1950’s. 

In closing Justice Pazaratz comments that both parents are excellent; the children’s mother has the responsibility to make decisions for the children in her care; and that she has consistently made informed and child-focused decisions. He says she is not a bad parent, simply by virtue of asking questions of the government.  The father’s application to vaccinate the children is dismissed, with a postscript:

“It’s irrelevant to my decision and it’s none of anyone’s business. But I am fully vaccinated. My choice. I mention this because I am acutely aware of how polarized the world has become”.

Me too, I say.

Lawdiva aka Georgialee Lang

***This article was originally published by The Lawyers Daily, a publication of Lexis Nexis Canada.

Standard of Review Remains Elusive in Family Law Arbitrations

Family law arbitration continues to find acceptance in British Columbia, although its welcome has been a slow, albeit steady trajectory. One of the benefits of arbitration is its private nature, and lawyers and arbitrators only hear of this alternative dispute resolution process when a party to an arbitration appeals the award. JEA v. VJA 2022 BCSC 171 is one of those cases.

The parties, who began their relationship in 2008 and separated in 2014, had one child. They initially engaged in mediation which was unsuccessful, and in 2018 agreed to adjourn their scheduled trial in favour of a med/arb process. Three mediation sessions were held in the summer of 2018 where the parties resolved some parenting issues and child and spousal support. The remaining issues included how disagreements on parenting would be resolved; the parenting schedule; the timing of a Views of the Child report; and various issues relating to the valuation of family property and excluded property. 

The parties agreed with the arbitrator’s suggestion that he conduct an evaluative med/arb; that the arbitrator would choose between the parties’ last final offers; and he would provide summary reasons. Both parties were represented until the last step when final offers were presented, and at that point the husband was self-represented. 

Shortly after the final offers were submitted, the arbitrator granted the wife’s application to reopen the arbitration to amend her final offer to reflect new information about remedial work required on the family property that impacted its value. Both parties amended their final offers several months after the mediation concluded and the arbitrator issued his award with summary reasons in December 2018, preferring the wife’s last final offer. 

In February 2019 the husband filed his Petition appealing the arbitrator’s decision and Mr. Justice Myers began the hearing on October 15, 2019 but was unable to conclude it before the court day ended, however, not before ordering him to pay costs of $2,000 to his spouse prior to rescheduling his Petition. He was also ordered to provide within 14 days “full cogent argument as to what he is challenging in his Petition to the court”.

The husband provided his argument in November 2019 but advised in January 2020 that he would not pay the costs order. The proceeding stalled until March 2021 when the husband reset the hearing by requisition and also paid the costs order of $2,000.

The primary issue raised by the petitioner related to the family home and farm, the value of the petitioner’s excluded property, the value of his geoduck license, and the increase in value of the respondent’s property. The arbitrator concluded that the family farm was family property to be shared as tenants in common. The petitioner was permitted to buy out his wife’s interest for $320,000, failing which the property would be sold.

The Petition was then heard by Mr. Justice Steeves on July 22 and 23, 2021, and the petitioner remained self-represented. 

Steeves J. first considered the statutory framework noting that since the arbitration was commenced in 2018 the Arbitration Act applied rather than the  arbitration sections of the Family Law Act. Section 31 (3.1) of the Arbitration Act permits a party to appeal an arbitration award on “any question of law, or any question of mixed law and fact. 

The standard of review was considered a settled question in British Columbia based on McMillan v. MacMillan 2015 BCSC 2177, however, the law is now in flux, or as described by the Court of Appeal in family law case Nolin v. Ramirez 2020 BCCA 274 is “an issue currently percolating in courts across the country” in light of the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65. The issue was further complicated by the Supreme Court of Canada’s decision in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District 2021 SCC 7, where the court declined to opine on this “obviously important question” as it was not necessary to the outcome of the appeal. 

The most recent judicial opinion in British Columbia on the standard of review comes from Madam Justice Griffin in Lululemon Athletica Canada v. Industrial Color Productions Inc. 2021 BCCA 108,  who noted that the correct standard of review from an arbitrator’s decision is “unsettled at the appellate level, post Vavilov and post-Wastech”.

Justice Steeves agreed with the approach in Nolin, Wastech and Lululemon, stating that generally, issues of law that are not necessary to a resolution of an appeal should not be decided. He said:

“It is particularly important to abide by this principle when submissions on a complex legal issue are relatively brief, occurring over only a small portion of a two-day petition where one party was self-represented. Further, this approach is consistent with that the British Columbia Court of Appeal adopted in Nolin (at para. 39)”

Ultimately, Mr. Justice Steeves decided that the Petition must be dismissed whether the standard of review was reasonableness, palpable and overriding error, or correctness. 

The petitioner’s complaints centred on the process employed by the arbitrator including the last final offer arbitration style and the summary reasons. Judge Steeves noted that the last final offer mode of arbitration has been accepted as “fair” by courts in Canada in McLaren v. Casey 2016 BCSC 169 and Kroupis-Yanovski v. Yanovski 2012 ONSC 5312. With respect to the summary reasons, the parties’ med/arb agreement prescribed this form of reasons and the parties signed the med/arb agreement with their respective counsels’ advice.

The court also concluded that the arbitrator committed no errors in law and while the reasons did not refer to any authorities the nature of summary reasons precluded that.

Finally, the court reiterated its view that it need not decide the “complex issue of the standard of review to be applied to the arbitration award” because, as in other recent decisions, on any standard of review, the Petition failed. 

Whether the standard of review will be decided by an appellate court in Canada remains to be seen, as presently the only appellate court who has accepted the challenge is the Northwest Territories Court of Appeal who decided that Vavilov applies to statutory appeals of commercial arbitration decisions. (Northland Utilities Limited v. Hay River 2021 NWTCA 1.) Currently, the judges of the Northwest Territories Court of Appeal are appellate judges from the Yukon, NW Territories, Nunavut and Alberta. 

***This article was first published by The Lawyers Daily, a publication of Lexis Nexis Canada 

Can a Child Custody Expert Perform Dual Roles: Assessor and Mediator?

Can a child custody expert retained to provide an assessment of the children and their parents, modify his or her role during an arbitration where he is the expert, and put on the additional hat of mediator? That is the question the Ontario Superior Court considered in Spadacini-Kelava v. Kelava 2020 ONSC 5561.

The parties, who married in 2000, had two children, D. born in 2008 and C. born in 2010. In 2014 the couple decided that their severely autistic daughter, C.,  would benefit greatly from a specialized program available in Indiana. The wife and D. and C. relocated to Indiana on a time limited visa, while the husband remained in Oakville, Ontario visiting his wife and children frequently. Unfortunately, the marriage broke down in May of 2015 and the parties separated, with the  husband remaining in the family home in Oakville and the wife remaining in Indiana with the two children. Ms. Kelava initiated family law proceedings in Ontario and refused to allow the children to see their father for three-months post-separation. Her anger was related to revelations that her husband had engaged in extra-marital activities in her absence. 

The wife’s pleadings included her request for an order that she be permitted to remain in Indiana permanently with the children. In January 2016 the court referred the parenting and other issues to arbitration and ordered that psychologist Dr. Irwin Butkowsky conduct a custody assessment. 

During the course of his assessment the parties requested that he assist their very experienced arbitrator to attempt to mediate a solution to their parenting issues. Dr. Butkowsky reluctantly agreed to engage in the process requested by the parties. His consent was predicated on the parties’ explicit agreement that if the mediation process failed, neither party would object to him continuing in his role of assessor and neither would raise it as an issue in any other proceeding. 

The mediation was not successful and Dr. Butkowsky completed a 90-page report, which was admitted into evidence before the arbitrator. The arbitrator relied heavily on the doctor’s interviews of the parties and the children and his clinical observations,  but did not allow the expert to usurp his role, by paying little heed to Dr. Butkowsky’s  recommendations. 

The arbitrator rendered his decision, ordering that the wife and two children return to Ontario based on a specific timeline to allow D. to complete his school year.  Upon their return the mother would have primary residence and the majority of parenting time. If the parties failed to agree on a matter regarding the children, she would have the final say. 

The arbitrator found that D. was severely distressed at being away from his father, friends, and other family in Oakville, suffered from depression and anxiety, and had threatened suicide, leading the arbitrator to conclude that his best interests would be served by a return to Canada.  The arbitrator also held that an autism program equivalent to the high-level intensive Indiana program was available in Toronto for C.  He emphasized the documentary evidence that proved that Ms. Kelava’s move to Indiana was never intended to be permanent. 

Both parties appealed the arbitrator’s award, with Ms. Kelava citing the dual role played by Dr. Butkowsky as one of her grounds for appeal, while Mr. Kelava objected to his marginalized parenting position once the family relocated back to Ontario. 

The court indicated that the standard of review of an appeal from an arbitrator mirrored the deferential standard required in an appeal from a judge, citing Rosenberg v. Yanofsky 2019 ONSC 6886 and O’Connell v. Awada 2019 ONSC 273:

“The Court should not interfere with an arbitrator’s  award unless it is satisfied that the arbitrator acted on the basis of a wrong principle, disregarded material evidence, or misapprehended the evidence.”

The court reviewed Ms. Kelava’s submission that the arbitrator erred in law by failing to recognize the procedural and substantive flaws in Dr. Butkowsky’s report, according it undue weight.  Her argument centered on the dual roles adopted by the expert, his knowledge of the parties’ settlement positions, and the delay inherent in  resorting to mediation prior to the arbitration. At the hearing before the court Dr. Butkowsky admitted that the process “may have impacted the reliability and validity of the findings” and he questioned whether he would engage in such a process in the future. 

What Ms. Kelava failed to refer to was her specific agreement that Dr. Butkowsky adopt the roles of mediator and expert assessor, which required her undertaking not to raise this in a future proceeding, which she acceded to. Importantly, the court observed that there was no request by her counsel that Dr. Butkowsky discontinue as expert assessor after the mediation broke down, and no submissions at the arbitration hearing that his report be deemed inadmissible, although her counsel did argue that it should be afforded minimal weight. 

In dismissing her appeal, the court noted that Ms. Kelava was unable to cite any authorities that would point to any impropriety in Dr. Butkowsky accepting the dual roles. The court then referred to an Ontario Court of Appeal case where Dr. Butkowsky also adopted dual roles and his evidence was preferred to the evidence of an expert who critiqued his report, albeit his dual role was not criticized by opposing counsel or the court. M. v. F. 2015 ONCA 277. 

The attraction of using a child custody expert to work with the parties to achieve consensus is readily apparent. Typically, both parties appreciate the expertise and special skills that such an expert brings to the task. In a recent case, this author, with the consent of opposing counsel, invited the parties’ expert, who had prepared a report, to attend at a judicial settlement conference, to assist the court and the parties to agree to a parenting plan in a situation where their three-year old child travelled between father’s residence in British Columbia and mother’s home in Saskatchewan, an engagement and settlement conference that resulted in a consent order. 

The conflict that Ms. Kelava alleged, that the expert was aware of each parties’ position by virtue of the mediation role, is similar to the process involved in a med/arb, where the decision-maker learns the intricacies of each parties’ bottom line, but is expected to excise that knowledge in his or her role as arbitrator and does so effectively. 

Lawdiva aka Georgialee Lang

** This article was first published by The Lawyers Daily, a publication of Lexis Nexis Canada.

Retroactive Support Ordered by the Appeal Court Despite 10-Year Delay

 The Legges were together for eight and a half years before they separated in 2010. During their relationship, Cheryl Legge withdrew from university to support her husband Russell Legge’s training as a heavy-duty mechanic and relocated with him several times to accommodate his career. During the relationship Cheryl worked part time and raised their daughter, who was born in 2009. (Legge v. Legge 2021 BCCA 365)

After separation she attempted to complete her university studies, but was never able to complete her degree and worked at low-paying jobs, earning an average of $14,000 a year until 2019, when she earned $32,000.The parties had considerable consumer debt when they parted, with Cheryl taking responsibility for $43,000 of debt and Russell assuming responsibility for $24,000 of debt. Their main asset was a heavily mortgaged home in Princeton, B.C., with little to no equity due to the depressed housing market.

Russell remained in the family home and continued to pay the mortgage with no assistance from his wife. Initially, Cheryl filed an action in the Provincial Court asking for spousal and child support and custody orders. The parties resolved the parenting issues early on and shared custody of their daughter for the first five years of their separation. In 2015 their daughter began living full time with her father.

During the shared custody years Russell paid his wife $706 a month, a sum that did not correspond with his Guideline income which ranged from $64,000 per year to $117,000. Cheryl paid no child support to her husband when their daughter moved to live with him. She was ordered to pay retroactive support of $3,850 to Russell.

The parties divorced in 2019 and in 2020 the family home was sold after several unsuccessful attempts to sell it years earlier. The net proceeds were $107,791. Russell sought reapportionment of the proceeds of sale based on his payment of the mortgage for 10 years. That submission was met with Cheryl asserting that any reapportionment had to take into account that she was without access to the home for that time period, during which Russell also received some rental income, and she sought reapportionment on that basis.

The trial judge divided the parties’ family debt and property equally and dismissed Cheryl’s application for retroactive spousal support which she had calculated to be $107,610. The trial judge reasoned that while Cheryl had established entitlement to both needs-based and compensatory support for the years following the separation, her delay in pursuing her legitimate claims militated against a retroactive award, which the judge characterized as amounting to a redistribution of family property given the limited asset base of the couple.

It was on this point that Cheryl brought a successful appeal. The Appeal Court found that the trial judge gave little or no weight to Cheryl’s needs and the hardship she experienced, and by this failure, his dismissal of her support claim did not meet the objectives of spousal support articulated in the Divorce Act. The court noted that the evidence showed that Cheryl’s personal circumstances were extremely challenging after separation when she moved into her parents’ home and spent several years on welfare. Her income was below the subsistence level until 2019 when she began working in a family business.

While the trial judge referenced Kerr v. Baranow 2011 SCC 10 and DBS v. SRG 2006 SCC 37, he gave short shrift to Justice Thomas Cromwell’s remarks in Kerr, where the justice said:

“…Commencement of proceedings provided clear notice to the payor that support was being claimed and permitted some planning for the eventuality it was ordered. There is thus little concern about certainty of the payor’s obligations.”

Of course, the Appeal Court’s quotation hearkened back to Cheryl’s court filing for spousal support after the parties first separated, noting that Russell could not have been taken by surprise. The Appeal Court also challenged the trial judge’s “all or nothing” approach, whereby he failed to consider a retroactive award of any amount or a small reapportionment to recognize the entitlement he acknowledged. This, together with the trial judge discounting Cheryl’s unchallenged explanation for not pursuing her support claim, namely, that she could not afford a lawyer and that her legal aid entitlement was exhausted on child custody issues, led to the Appeal Court awarding her $27,000 tax-free.

While Cheryl’s delay took centre stage in this case, the Appeal Court noted that Russell failed to proceed expeditiously with the property division and that support and property were inextricably linked, with property division to precede an analysis of support entitlement and quantum.

This article was originally published in The Lawyer’s Daily, a division of LexisNexis Canada.

Lawdiva aka Georgialee Lang

Unmeritorious Claim Drawn Out by Exploiting Rules of Court


There seems to be a plethora of cases where unwitting parents transfer the legal title of real estate to their son or daughter, only to be caught up in costly and time-consuming litigation when their adult child separates from his or her spouse, and that spouse alleges an interest in the real estate. The recent case of Dadwal v.Parmar 2021 BCSC 1970 is an apt example of the situation that parents of divorcing children find themselves in.

In Dadwal the parties were married for two years. Five years before their marriage Rupinder Kaur Dadwal’s parents purchased a rental property in her name, paying $425,000. Dadwal’s mother deposed that purchasing the property in the name of her daughter was to assist her daughter to establish a credit record.The property was purchased with a $53,000 down payment that came from a joint account between Dadwal and her mother and a mortgage of $340,000 was secured. The evidence of Dadwal and her mother was that her parents’ funds were used to purchase the property, which was rented at all times, and that she and her husband, Ravinder Singh Parmar, never contributed any monies to the property. The rental income supported the mortgage. Shortly after the property was purchased, a bare trust agreement was executed confirming that the beneficial owners were Dadwal’s parents. The bare trust agreement was signed by the claimant, her parents and two independent witnesses.

The court action commenced in July 2018 and shortly after the respondent husband filed a certificate of pending litigation against the property. In November 2019 the parties were divorced and in July 2020 Dadwal’s parents instructed her to list the property for sale. An agreement was struck that the property would be sold and that each party’s solicitor would hold one-half of the net sale proceeds in trust, pending the resolution of Parmar’s claim. The property sold for $1,086,000 in August 2020 and the net sale proceeds were $680,000.

In December 2020 Dadwal and her parents brought an application to have the trust funds released and paid to the senior Dadwals. The master refused the application and ordered that the respondent husband provide his list of documents by Jan. 15, 2021. Dadwal tried again and brought a summary trial application in April 2021 but was rebuffed by the court, which ordered that examinations for discovery be conducted after which Dadwal could renew her application. More documents were exchanged and discoveries took place in June 2021. The parties then agreed to reset the claimant wife’s application to Aug. 25, 2021. 

A flurry of activity followed, as Parmar suggested he needed to discover the witnesses to the bare trust agreement. He also stated that he would add Dalwal’s parents as parties to the action and claimed that certain bank statements had not been produced by Dadwal. Despite these last-ditch efforts to slow down the process, the hearing proceeded on Aug. 25 as scheduled.

The respondent husband argued that the matter was not suitable for summary trial on the basis of conflicting evidence. He also suggested that he needed to complete certain steps in the litigation, including discovering the witnesses to the trust deed; adding the claimant’s parents as parties; and obtaining additional documents from the claimant.

The court cited Gichuru v. Pallai  2013 BCCA 69 and summarized the issues to be considered when determining the suitability of a summary trial:

-The amount involved

-The complexity of the matter;

-Its urgency;

-Any prejudice likely to arise by reason of delay;

-The cost of a conventional trial;

-The course of the proceedings;

-The time of the summary trial;

-Whether the summary trial may create an unnecessary complexity in the resolution of the dispute;

-Whether the application would result in litigating in slices.

The court determined that the case was suitable for summary trial and recited Justice Mary Newbury’s comments from Everest Canadian Properties Ltd. v. Mallmann 2008 BCCA 275 at para. 34:

As this court noted in Anglo Canadian Shipping Co. v. Pulp, Paper & Woodworkers of Canada, Local 8 (1988), 27 B.C.L.R. (2d) 378 at 382 (C.A.), a party cannot, by failing to take such steps, frustrate the benefits of the summary trial process. Where the application is brought by a plaintiff, the defendant may not simply insist on a full trial in hopes that with the benefit of evidence, ‘something might turn up’: see Hamilton v. Sutherland (1992), 68 B.C.L.R.(2d) 115, [1992] 5 W.W.R. 151 at paras. 66-67 (C.A.) 

Parmar managed to keep the senior Dadwals out of their funds for a lengthy period of time, despite the absence of any evidence that the property was beneficially owned by his wife. The claimants ought special costs but the court observed that the respondent’s conduct did not rise to the level required for a special costs award and ordered ordinary costs.

The respondent insisted that he and his wife contributed monies to the purchase and renovation of the property, but he was unable to produce any documents to support this claim, despite extensive document production. He also alleged that the bare trust agreement was a forgery, advancing only his suspicions and providing no evidence or proof of his allegation. The court ordered the release of the net sale proceeds to the claimant in trust for her parents. 

The respondent’s claim, which was devoid of merit, took over three years to resolve, but not for lack of motivation by the claimant. The respondent was able to use the Rules of Court to drag out the proceedings, increasing the costs of both parties, a too-familiar strategy in our family courts today.

This article was originally published in The Lawyer’s Daily, a division of Lexis Nexis.

KEEPING IT OUT OF COURT: Dispute Resolution for the Family Business


A source of great pride for many families is their multi-generational family business, a complex, dynamic organism that combines familial and business components. Unfortunately, the family business can slide into dysfunction when issues arise that would be foreign to a business where sons, daughters, wives, and husbands are uninterested bystanders. 

Conflict in a family business takes many forms: family members who are not capable of exercising the function assigned to them, cast in roles that are far above their pay grade; the scarcity of resources during the early development of a family business can create pressure and conflict; succession issues where family members compete for control; the impact of sibling rivalry; the inability of a founder to take the business to the next level; the death of a founder; the issues that arise when an aging founder refuses to relinquish his or her position; and finally, the divorce or separation of founding members.

In this series of articles I will review conflict resolution methods that are ideally suited to assist in family business disputes, focusing on three schools of mediation: transformative, facilitative, and evaluative. I will highlight mediation/arbitration, a process that encourages family members to be personally responsible for their business success while providing a final solution where compromise is not achievable, and finally, arbitration, a process akin to fast-track litigation with the benefits of privacy and reduced costs. 


Mediation is a procedure in which an impartial mediator facilitates communication between the parties concerning matters in dispute, and explores the possible solutions to promote understanding and settlement. The mediator assists the parties in coming to a resolution by formulating a mediation structure appropriate to the parties, imposing a format and rules that optimize effective communication, and helping brainstorm creative solutions. It is voluntary and non-adversarial. 


 Mediation is a useful dispute resolution tool because of certain features of the process, namely facilitation, evaluation, and the transformative opportunities for the parties. Although in earlier decades, mediation styles (whether facilitative, evaluative, or transformative) were more distinct, today mediation often incorporates all of these elements to some extent, tailoring the process to the individual needs of each of the parties.


Facilitative mediation began in the 1970’s and was the only type of mediation taught and practiced in the early days. A facilitative mediator would begin by outlining the process and rely on joint sessions, typically without counsel present. Mediation techniques such as asking questions, validating a party’s view of an issue, focusing on interests as opposed to rights, and declining to recommend outcomes to the parties were the hallmarks of this style of mediation. Facilitative mediators in the business sphere were not necessarily lawyers and included business consultants, counselors, and accountants.  Mediation purists believe this approach is the only authentic way to mediate.


In evaluative mediation the mediator assists the parties by pointing out the weaknesses in their case and opining on what a judge may do if their case were to go to court. They are focused on strict legal rights rather than needs or interests. Their goal is to promote a legally fair solution. Often evaluative mediators will practice “shuttle diplomacy”, where the parties and their counsel are in separate rooms, with the mediator moving back and forth between the parties, presenting the opposing party’s viewpoint and settlement offers. This style of mediation introduces the parties to a cost/benefit analysis. The question asked is: Is it worth spending tens of thousands of dollars at a trial, only to find out that your position is not sustainable in law? Evaluative mediators are typically lawyers who are well versed in the law. 


Transformative mediation was introduced in the mid-1990’s by authors Joseph Folger and Robert Bush in their book, “The Promise of Mediation”. It is a system based on empowerment and recognition of the interests of each party. It theorizes that mediation participants and their relationships with one another or other persons can be transformed by mediation. 

For example, in cases where relationships have failed because the parties couldn’t communicate effectively, or felt like they were disrespected, misunderstood, or ignored during the relationship, the mediation format can be tailored to teach the parties how to resolve these problems. In such mediations, using communication tools like ensuring only one party talks at a time, or asking parties to repeat what the other was saying, can help parties develop communication skills that improve not just their relationship, but many facets of their lives. In such cases, all sessions are joint in order to promote the recognition of one another. The parties themselves structure the process and control the outcomes. This style of mediation resembles facilitative mediation in many respects.

Lawdiva aka Georgialee Lang

Family Arbitration: Jurisdiction and Self-Reps

 With the September 2020 amendments to British Columbia’s Family Law Act, family arbitration provisions that were once found in the Arbitration Act RSBC 1996 c. 55 are now incorporated into B.C.’s family law legislation and judicial decisions under the new provisions are eagerly welcomed by family law counsel and arbitrators.

The case of Marchetti v. Lane 2021 BCSC 1259 provides guidance to counsel on two important issues. The first is the jurisdiction of a family arbitrator and the second is whether special rules apply to self-represented participants in arbitration.

Relevant facts

The parties were married for three years before they separated and had a child who was about to enter kindergarten. The parties engaged an arbitrator to determine which kindergarten the child should attend when the parents could not agree. They entered into a consent order and agreement that indicated that the arbitration would be completed in one day, and the arbitrator would select the kindergarten for their child based on affidavits, written submissions, and oral submissions.

The arbitrator selected a kindergarten and made an award, but also provided a backup kindergarten if for any reason the child would not be accepted at the first-choice kindergarten. The arbitrator’s award favoured the husband’s choice of schools. Unfortunately, the arbitrator’s award could not be implemented at all, as neither kindergarten identified in the award could accommodate the parties’ child.

The parties then set up a further arbitration hearing after the child’s mother filed an application for a variation of the first award based on a material change of circumstances pursuant to s. 47 of the Family Law Act. At this point the child’s father advised he would now be self-represented. The arbitrator advised him in writing of the process, what he was required to file in response to his wife’s material, and that again, the hearing would be based on written material and 15 minutes of oral submissions. The hearing took place and a second award was made; this time the school suggested by the child’s mother was selected.

The father brought an application to the court asking the court to invalidate the second award and enforce the first award. He relied on ss. 19 (1) and 19.18 (1) (d) and (e) of the Family Law Act:

Changing or setting aside determinations

19 (1) On application by a party to a determination made by a parenting coordinator, the court may change or set aside the determination if satisfied that the parenting coordinator

(a) acted outside his or her authority, or(b) made an error of law or of mixed law and fact.

Orders respecting arbitration awards

19.18 (1) On application by a party, the Supreme Court may change or set aside an arbitration award if satisfied that any of the following apply:

(a) there are justifiable doubts as to the arbitrator’s independence or impartiality;

(b) a party was not provided a reasonable opportunity to be heard respecting theaward;

(c) the award was obtained by fraud or duress;

(d) the award deals with a dispute not falling within the terms of the arbitrationagreement or contains a decision on a matter that is beyond the scope of thearbitration agreement;

(e) the arbitrator acted outside the arbitrator’s authority.

Jurisdictional issue

The father argued that the arbitrator had exceeded her jurisdiction in making the second award on the following grounds:

-It was outside the arbitrator’s jurisdiction to issue an interim order about a matter that had been finally decided;

-The arbitrator had no jurisdiction to change her final and binding decision;

-Any continuing jurisdiction the arbitrator had only arose under s. 19.15 of the Family Law Act and she did not make a correction or give an interpretation of her first award;

-The first award was final and binding on the parties subject to the right of appeal pursuant to s. 19.19 of the Family Law Act or on application to the Supreme Court pursuant to s. 19.18 of the Family Law Act.

The court found that the arbitrator did not exceed her jurisdiction in making the second award, noting that a jurisdictional issue may arise where an initial award turns out to have been based on inaccurate or incomplete facts, citing Ford Motor Company of Canada Limited v. Sherriff 2012 BCSC891, where an arbitrator corrected an initial award by issuing supplemental reasons based on new evidence.

The court held that in that case the arbitrator had committed arbitral error. However, the arbitrator in this case did not correct her initial award based on new evidence; she entertained a variation of the award based on a material change of circumstances which was entirely legitimate.

The court also found that the second arbitration hearing fell within the parameters of the parties’ agreement to arbitrate while the matter remained extant. The court acknowledged that there may come a point where an arbitrator loses jurisdiction over a matter in respect of a variation but found it had not occurred in this case.

Self-represented participant in arbitration

The father submitted that the second award be vacated based on s. 19.18 (b) of the Family Law Act which permits an award to be set aside on the basis that a party was denied a reasonable opportunity to be heard, a provision that mirrors the tenets of natural justice. In the arbitral context natural justice is satisfied where the arbitrator acts in good faith; exercises procedural fairness; fairly listens to both sides; and gives a fair opportunity to each party to make representations (0927613 B.C. Ltd. v. 0941187 B.C. Ltd. 2015 BCCA 457).

The Court of Appeal also opined that “there are no special rules of procedure for a self-represented party in arbitration beyond the basic procedural requirements for any arbitration” and identified the freedom that the parties to an arbitration have to enumerate the disputes in issue, choose the person to resolve their dispute, and agree on the rules and process.

The father argued that he had not been given the opportunity to oppose the second hearing; that he had not been allowed sufficient time to respond to the application; that the arbitrator had held an ex parte hearing with his wife’s lawyer regarding procedure; and that 15 minutes for oral submissions was insufficient.

The court dismissed his entire application, noting there was no evidence that an ex parte hearing had been conducted and concluded with the following significant points:

-Both parties had characterized the school issue as urgent;

-Both parties agreed that the first hearing would resemble a chambers hearing;

-The first and second hearings were only one month apart;

-The second hearing involved the same legal issues as the first, with the addition of a material change in circumstances, and the facts remained substantially the same.

Georgialee A. Lang is a lawyer and arbitrator in Vancouver and Kelowna, B.C. Lang has practised family law for 32 years, recently focusing primarily on arbitration and appellate litigation. Lang is a writer, speaker and media commentator whose publications range from the Huffington Post to the National Post and The Lawyer’s Daily. For fun she pens a blog (lawdiva.wordpress.com). Connect with her at georgialeelang.com or on Twitter. This article first appeared in The Lawyer’s Daily, a division of LexisNexis Canada.

Oh, What a Tangled Web We Weave When First We Practice to Deceive

Mehran Taherkhani and Rosa Donna Este were married in July 2004. Shortly before their marriage they entered into a handwritten agreement that provided that all property owned by each of them would remain the separate property of the owner, and that any increases in value would also be excluded from division between them.

In April 2006 they formalized their earlier agreement with the execution of a marriage agreement. The parties separated in March 2013. A Notice of Family Claim was filed by Taherkhani in May 2013 wherein he sought to set aside the marriage agreement and obtain orders dividing the family property, which he said included three properties in West Vancouver and a $3-million bank account, all owned by his wife. Este answered her husband’s claim with the assertion that the West Vancouver properties were beneficially owned by her mother, Mina Esteghamat-Ardakani.

In support of her claim Este produced three Declarations of Trust, which confirmed her assertions about ownership. In discovery she testified that the bank account belonged to her mother.

In May 2014 the parties settled the action and consented to terms which included Este paying $70,000 to her husband in full and final settlement of all his claims.What came next turned this action from a sprint into a marathon, and launched the parties into complex litigation. 

Nine months after the consent order, Este brought a lawsuit against her mother and her mother’s partner, Craig Blackburn, wherein she took the position that she was in fact the beneficial owner of the three West Vancouver properties and $3.4 million in a bank account and sought their return. She alleged that her mother counselled and encouraged her to hide the true ownership to deprive her ex-husband of his claims. 

Esteghamat-Ardakani and Blackburn denied the claims and brought an application asking the court to dismiss Este’s action as an abuse of process. The court granted the application and found that Este had perpetrated a fraud against her husband and the court. The abuse of process arguments had their foundation in Este’s evidence against her mother and Blackburn, namely, that the trust declarations were forgeries that were back-dated; that she gave false evidence in her discovery; and that her sworn Property and Financial Statement (Form 8) was fraudulent. In Taherkhani v. Este 2021 BCSC 1339, the court summarized Este’s actions:

“In sum, in the divorce proceedings, the plaintiff chose to take steps to defeat her thenhusband’s legal rights by representing falsely, including in Court documents and under oath,the properties and funds she now claims she rightfully owns. She now wishes to perfect herfraud in the divorce proceedings — a fraud designed to cheat financially her then husbandengaging the past unwitting help of officers and a judge of the Court.” (Emphasis added.)

The court found that Este now disavowed her past false evidence because it no longer served her purposes, and held that the law does not allow a party to pursue inconsistent rights.

What followed was a series of appeals and applications. Este appealed the order dismissing her action. Taherkhani applied to be added as a party to the appeal, which was granted. He then brought an application in the lower court for an order that the family law consent order be quashed due to fraud. He also applied to have fresh evidence admitted in the Court of Appeal in the form of the lower court order rescinding the fraudulent consent order.

Este’s appeal was dismissed in July 2018. The Appeal Court also addressed and contemplated that the family action would recommence with Esteghamat-Ardakani and Blackburn added as parties. To that end, the Appeal Court requested that Esteghamat-Ardakani and Blackburn provide undertakings that they would not take the position that Taherkhani was in any way estopped by the appeal order from pursuing whatever rights he may have in the trial court, an undertaking they accepted

.Este’s application for leave to appeal to the Supreme Court of Canada was also dismissed. Taherkhani then brought an application in the trial court to add Esteghamat-Ardakani and Blackburn as parties, and an order that he be permitted to amend his pleadings, applications that were mightily resisted by them. Taherkhani also filed a new action alleging a conspiracy involving Este and Esteghamat-Ardakani and Blackburn. 

Esteghamat-Ardakani and Blackburn offered the following arguments in their effort to defend the applications:

That they were not necessary and property parties to the family law action;

That the pleadings should be struck as there is no action for constructive fraudulentmisrepresentation;

That civil conspiracy claims cannot be made in the context of a family law matter;

That the order rescinding the family consent order was improperly obtained;

That the British Columbia Supreme Court lacked jurisdiction;

That the procedural orders sought by Taherkhani were an abuse of process; and

That Taherkhani’s claims were statute-barred.

The court reviewed each in turn and provided a comprehensive analysis of each issue, ultimately granting Taherkhani’s applications.

However, Esteghamat-Ardakani and Blackburn appealed the procedural orders and Taherkhani brought an application in the Appeal Court for a determination that Esteghamat-Ardakani and Blackburn were in contempt of court for breaching the undertakings they gave in the earlier appeal hearing, and he sought special costs.

Taherkhani argued that Esteghamat-Ardakani and Blackburn’s submissions in the trial court undermined their undertakings to the Appeal Court. His application required counsel for Esteghamat-Ardakani and Blackburn to be added as respondents and to retain counsel for themselves.The Appeal Court disagreed, saying the undertaking was simply a representation to the court that they would not try to use the earlier appeal order to argue that Taherkhani was precluded from making a direct claim against them. The single-judge court also considered whether the breach of an undertaking by a litigant could attract a finding of contempt and found that it could, but stated that Taherkhani ought to have raised the breach argument in the lower court. 

Taherkhani’s application was dismissed and the court awarded special costs to Esteghamat-Ardakani and Blackburn and their counsel. Taherkhani appealed the order to a full panel of the Appeal Court and his appeal was also dismissed.

With their multiple skirmishes in the appeal and trial courts, and the COVID shutdowns, it is doubtful that the merits of Taherkhani’s claims have yet been heard, and if this litigation history is any indication of how hard-fought a trial will be, there is much more to come.

Sir Walter Scott, poet, captured the essence of deceit in his poem, Marmion, published in 1808, with the well-known phrase: “Oh, what a tangled web we weave, When first we practise to deceive!” Meaning when one is dishonest the resulting complications are likely to spin out of control — an apt description of this litigation.

**This article was originally published by The Lawyer’s Daily ( thelawyersdaily.ca ) a division of Lexis Nexis Canada.



Child abduction is the worst kind of child abuse. To wrongfully remove a child from his or her primary parent is the ultimate weapon used by a warring parent. This truism is amply displayed in the case of Y.Q. v. J.D. 2021 BCSC  943 and 2021 BCSC 1185.  While the facts in this case are not unusual, as subterfuge is typically a feature of these cases, and the law regarding jurisdictional disputes is well-established, the young girl in this case, aged four, was spirited away from her home in Richmond, British Columbia by her father who, was a commercial pilot for Sichuan Air. He flew her and her maternal grandmother to China in October of 2019. The child’s mother consented to the trip, assured by the fact that a return ticket was secured for her daughter’s return two months later, and her mother accompanied the child. But the child was not returned and the heartache began.

The parties met through their employment, as Ms. Q. was a flight attendant for Sichuan Air. They fell in love and agreed to move to British Columbia where Mr. D. would seek employment with Air Canada and Ms. Q would attend university. In October 2015 the parties purchased a condo in Richmond, BC  and married in December 2015. Mr. D. spent three to four days twice a month in Richmond and continued to fly with the Chinese airline.

Six months later their daughter A.D. was born, and Ms. Q.’s mother travelled from China to BC to assist Ms. Q. with her care. A.D.’s maternal grandmother travelled to Canada on a visitor’s visa which required her to return to China twice a year. On those occasions she would take A.D. with her to China and often Ms. Q. would travel with them. When Mr. D. was on layovers in Vancouver and on his vacation days he participated in his daughter’s care and took her to daycare. 

In order to facilitate A.D.’s travel to China Mr. D. deposed that he and his wife attended at the Chinese Consulate in Vancouver and relinquished A.D.’s Canadian citizenship in favour of China. Ms. Q denied this suggestion.

The parties disagreed as to the date they believed their marriage was at an end. Ms. Q. said it was over in June 2019 while Mr. D. said that they separated in late 2019 or early 2020.

Upon arriving in China A.D. lived with her maternal grandmother in her home but after the child was diagnosed with pneumonia, resulting in her hospitalization, Mr. D. and A.D. resided in his home with his parents. After December 2019 A.D.’s grandmother no longer had any contact with her granddaughter.

In November 2019 Mr. D. had a layover in Vancouver and registered a spousal protection lien against the condo in Richmond, which was in Ms. Q.’s name.  He also insisted that Ms. Q. provide him with an enduring power of attorney in his favour, but she declined. By Spring 2020 the covid pandemic shut down international borders and the conflict between the parties escalated. Mr. D. refused to facilitate video conferencing between mother and child and accused Ms. Q. of infidelity. After significant pressure from Mr. D., Ms. Q. admitted to infidelity, although untrue, in order to appease her husband and gain access to her daughter.

Mr. D. then began “negotiating” with his wife by demanding that she agree to have his name tattooed on her body and that she have her vagina and ovaries removed. The chambers judge found that the request for the tattoo was proven but the radical surgery was not, despite the evidence of a recorded phone call between the parties where Mr. D. allegedly said:

“If you look for a man, the man won’t want you, you’ll age very fast, because you wouldn’t have any sexual functions. You can donate vagina too; ovaries can be donated too. You can be a normal person, everything you do would be to look after [A.D.] and then I will support the family because I should, you will take care of the home and child because you should.”

Or you will never see [A.D.] again for the rest of your life. Won’t contact, hide very well.”

In May 2020 Mr. D. commenced a court action in China seeking alimony, division of Ms. Q.’s property, and damages for Ms. Q.’s alleged marital indiscretions, stating that Ms. Q. resided in China. He also obtained a residency card for his daughter in China by falsely claiming China was her residence.

In July 2020 Ms. Q. filed proceedings in British Columbia, followed by Mr. D.’s filing of a Jurisdictional Response, challenging the court’s jurisdiction. The BC court reviewed the framework for a jurisdictional dispute and identified two distinct elements: territorial competence and forum conveniens, pointing out that the former invokes a consideration of whether the court can hear the dispute and the latter, whether the court should hear the dispute. The court referred to the Court Jurisdiction and Proceedings Transfer Act and the provisions of the Family Law Act and the Divorce Act.

The court undertook a detailed analysis of the applicable law, which ought to be a primer for counsel engaged in family law cases where the court’s jurisdiction is a primary issue.  The court made the following findings of fact:

  1. A.D.’s habitual residence was British Columbia as Ms. Q. did not consent to her permanent removal from Canada.
  2. While China considers the best interests of a child in a custody dispute they also introduce “fault” into the analysis, contrary to Canadian courts where the child’s best interests is the sole factor.
  3. Ms. D. had used A. D. as a negotiating chip in his dispute with his wife, behavior that constituted family violence.

The Court determined that British Columbia had jurisdiction over all aspects of the dispute between the parties, including custody, child support, spousal support, and property division.  In a separate decision (2021 BCSC 1185) the court made a variety of orders including:

  1. That the parties share joint guardianship and equal parenting responsibilities under s. 41 of the Family Law Act;
  2. That Mr. D. shall cooperate in renewing A.D.’s Canadian passport;
  3. That contact between A.D. and her maternal grandmother be reinstated;
  4. That Mr. D. shall facilitate a video chat between Ms. Q. and A.D. every evening at 8:30 pm.

It remains to be seen whether A.D. will ever be returned to Canada, as China is not a signatory to the Hague Convention on Child Abduction and is known to be averse to returning a child brought to China by a Chinese parent to his or her home country. Jeffrey Morley, a renowned American attorney who specializes in international child abduction confirms this, and this writer believes that Canada has the same problems with China regarding child abduction as the United States. Morley says that it does not appear that China will ever sign onto the Hague Convention and that Chinese courts do not recognize orders from foreign courts…a depressing reality for left-behind parents. 

Georgialee A. Lang is a lawyer and arbitrator in Vancouver and Kelowna, B.C. Lang has practised family law for 31 years, recently focusing primarily on arbitration and appellate litigation. Lang is a writer, speaker and media commentator whose publications range from the Huffington Post to the National Post and  The Lawyer’s Daily. For fun she pens a blog (lawdiva.wordpress.com). Connect with her at georgialeelang.com or on TwitterThis article was originally published by The Lawyers Daily a division of Lexis-Nexis at thelawyersdaily.ca