A PARENT’S WORST NIGHTMARE: INTERNATIONAL CHILD ABDUCTION

  

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

A Word or Two about Rhetorical Excess in Family Litigation

Picture the following scenario: After a blistering argument between Mr. and Mrs. A. resulting in assault charges against Mr. A. and an order barring him from being within 500 metres of his wife and the family home, the children refuse to remain living with their mother, and the three of them, a girl of 13 and her brothers, ages 15 and 8, move in with their father in his one-bedroom basement apartment. Father and sons sleep on makeshift beds on the living room floor, with their sister in the bedroom. COVID has shut down the schools and father works from home. Father continues to pay all the expenses for the four-bedroom family home and his rental accommodation but realizes that the children are suffering from being cramped in his small apartment. The obvious solution is for father and children to move back into the family home and for mother to move out. Father has even arranged with the landlord to have mother take over his apartment, if she wishes.

The best interests of the children demand this remedy, but mother refuses and the court intervenes. Alsawwah v. Afifi 2020 ONSC 2883 provides the backdrop for lessons for family law counsel who fail to “see the forest for the trees” and continue to believe that aggressive advocacy is beneficial fo their clients.

Justice Marvin Kurz begins his tutorial with a quote from legendary American trial counsel Louis Nizer, who once said, “When a man points a finger at someone else, he should remember that four of his fingers are pointing at himself,” an aphorism that highlights the ubiquity of human foible that Justice Kurz suggests “aggressive” family law counsel “should take to heart.”

The discrete application brought by Mr. A. is for exclusive possession of the family home and nothing more. What Justice Kurz identified was affidavit material that was “unnecessary, excessive,distracting and unhelpful,” primarily from Mrs. A., but as is often the case, the applicant chose to respond in a similar fashion.

The facts reveal that the children’s departure from the family home was precipitated by a physical altercation between mother and her daughter, an event that led to the 13-year-old wielding a knife and threatening to commit suicide. Mother characterized the event in terms of her victimization and blamed the father as instigator of her daughter’s behaviour, claiming that he incited his daughter to violence.

The court was unable to sort out the precise truth of the parties’ differing versions of the event but noted that portions of the mother’s “explanation” lacked credibility and her silence with regards to her daughter’s suicide attempt was problematic.

Mrs. A. argued that the application was not “urgent” as required during COVID, and that the applicant failed to prove that a return to the family home was in the children’s best interests. She also pointed out the impact of the financial disparity between her and her spouse.

However, her most intense and incessant focus was on her husband’s “abuse and character,” albeit offering little detailed evidence of the alleged abuse, but heaping on pejorative allegations describing his conduct as “conniving (twice), malicious (eight times), cruel (four times), acting in bad faith (six times), with hidden motives (four times).” 

But there was more. She admitted certain facts alleged by the applicant but referred to her husband’s material as “fabricated” seventeen different times, including being “entirely fabricated.”She went on to state that he has “fabricated every statement in his motion materials to maliciousl ygain exclusive possession of the home and financially drain and abuse me.” Her denial of the father’s recitation of facts is “vehement.”

Justice Kurz remarked that the mother’s use of hyperbolic language to describe her husband so demonized him that “it is hard to see the objective truth hiding behind the thick gauze of denigration,” a fact that diminishes her credibility. Her allegations of financial abuse were quickly dispatched by the judge.

As may now be apparent to all, exclusive possession was granted to the father with an order that he provide certain funds to Mrs. A. to enable her to make the move. But the important takeaways from this judgment eclipse the trite law of exclusive occupancy.

The sage Justice Kurz offers the following “to the parties, their counsel, and the profession as a whole.” Family litigation is far too corrosive of once-loving relationships and far too soul-destroying for emotionally scarred litigants to be exacerbated by an unnecessary war of invective. His advice includes the following:

The role of family law lawyers is complicated and requires a balancing act of duties towards the client, the administration of justice and even the child before the court. Lawyers need to be rational counsel and not flame-throwing propagandists;

Evidence regarding moral failings is rarely relevant to the court;

A partner can be a terrible spouse, but a good parent;

Affidavits that read as argument are not persuasive and speak to careless drafting;

A lawyer’s letter, unless it contains an admission, is not evidence of anything, except that it was sent;

Facts win cases, not innuendo or bald allegations;

Relevance matters, collateral issues are irrelevant and counterproductive;

Counsel should always take the “moral high ground.”

To this I might add a few of my own pet peeves, including counsel who bring a motion for a discrete order, but refer in their application to every affidavit filed by their client, often numbering in excess of a dozen. A waste of time for counsel and the court, but no doubt a contribution to the firm’s photocopy lease. Similarly, I query why counsel would cite 20 cases when five or less covers it all.

Kudos to Justice Kurz for this treatise on advocacy for family law counsel.

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

THE EVER EXPANDING DEFINITION OF SPOUSAL RELATIONSHIPS

Who would have thought, even ten years ago, that courts would define a spousal relationship as including couples who occasionally spend the night together, each with their own home?  But the Ontario Court of Appeal in Climins v. Latner 2020 ONCA 554 did that, in the context of a lengthy dating relationship where the couple spent time together at a Muskoka summer cottage and vacationed in Florida together in the winter. 

But what was once just a slippery slope has rapidly transformed  into an icy cliff with the British Columbia Supreme Court’s decision in Han v. Dorje 2021 BCSC 939. The claimant, Ms. Han, conceded that her relationship with Mr. Dorje did not fit within a traditional view of marriage as she and he had never lived together as husband and wife. In fact, their “dating” relationship, if it could even be characterized as such, was comprised of only four occasions when they were together, two of them in a public setting, once privately, and a final occasion when Ms. Han informed Mr. Dorje that because of their private encounter, he was the father of her child.

Their conjugal relationship, which Ms. Has said began in January 2018, consisted of private text messages and emails. They rarely even spoke on the telephone. Ms. Han deposed that the reason for their unusual relationship was because of Mr. Dorje’s role as His Holiness, the high lama of the Karma Kagyu School of Tibetan Buddhism. The parties met in October 2016 when Ms. Han began a lengthy meditation at a monastery in New York with a view to becoming a Buddhist nun. Ms. Han became pregnant in October 2017, alleging a non-consensual sexual encounter. When she informed Mr. Dorje of her impending motherhood, he denied responsibility , but provided her with his email address and telephone number and advised her that he would send some money to her. 

The baby girl was born on June 19, 2018. Throughout 2018 Ms. Han received funds from Mr. Dorje totaling $770,000, and he once wrote to her: “Taking care of her and you are my duty for life.” Ms. Han deposed that they discussed living together and buying a home in Toronto,  and he purchased a condo for her in Richmond, but by January 2019 Ms. Han lost contact with Mr. Dorje. 

In July 2019 she brought a family law claim in Vancouver seeking child support, a declaration of parentage, and paternity testing. She did not claim spousal support in her initial claim, however, in April 2020 her counsel brought an application to amend her claim to plead a spousal relationship and seek spousal support. 

Mr. Dorje denied any romantic relationship, contrary to Ms. Han’s assertions that their single sexual encounter developed into a loving and affectionate relationship. 

Master Elwood granted Ms. Han’s application, permitting her to amend her claim. He identified the novel question of whether a secret online relationship that never moved into the physical world could be a marriage and determined that the question was worthy of answer by a trial judge. Several other legal propositions were cited by the Master:

  1. A party seeking to amend a pleading must show there is a reasonable cause of action and the threshold is low; 
  2. The applicant’s allegations of fact are assumed to be true for the purpose of the analysis;
  3. It is good practice for applicants who seek to amend their pleadings in family law cases to include a schedule of material facts on which they rely for the proposed amendment;
  4. Quoting from Mother 1 v. Solus Trust Company 2019 BCSC 200, the court stated that the “concept of a marriage-like relationship is elastic and difficult to define” and is “like sand running through one’s fingers”; 
  5. In determining whether a relationship is marriage-like, the courts have looked at “mutual” intent. 

Whether this case is resolved by trial or by settlement, the usual indicia of marriage-like relationships will mostly be answered in the negative. The parties did not live under the same roof; they had sexual relations only once;  they did not share domestic services; they did not share financial accounts; there was no interaction between them and friends or family; they did not socialize together; and finally, they did not hold themselves out to the world to be husband and wife. 

APPEAL COURT HOLDS THAT APPELLANT’S RELIGIOUS BELIEFS DO NOT CONSTITUTE MENTAL UNFITNESS

The Alberta Court of Appeal allowed the appeal of a father who had come to court seeking an increased parenting schedule but was rebuffed by the chambers judge who criticized his religious views and suggested that he needed to address his mental fitness, two issues that were not raised by the children’s mother, or the experts that had been involved with the children and their parents. Volkman v. Volkman 2021 ABCA 151

The Reasons describe an initial interim order made on March 1, 2018 that provided the father with parenting time of one overnight per week and every second weekend. It also referred to the parties engaging in a Practice Note 7 Intervention with a specified expert, a process similar to a section 211 custody assessment in British Columbia. The Practice Note 7 expert recommended that the children attend counselling and made a referral, however, this counselling was delayed for a lack of funds. However, by November 2019 the expert sent a report to the court advising that a detailed parenting plan had been worked out, leaving only several unresolved issues, including the father’s request for increased parenting time. The doctor advised that he was closing the family’s file. 

In June 2020 the father brought an application for shared parenting on a weekly rotating schedule. He advised the court of the two-year counselling regime undertaken by the children on the expert’s recommendations, with their own dedicated counsellor, and requested an order that counselling continue.

His former wife brought a cross-application in July 2020 seeking to confirm the interim parenting order and obtain an order that the children’s father be barred from bring any further applications until the children’s counsellor had provided an opinion with respect to the father’s wish to increase his parenting time and the best interests of the children. She also alleged that the father spoke and behaved “inappropriately” to her and the children. 

On July 15, 2020 the court made a consent without prejudice order providing for shared weekly parenting throughout the summer months and ordered the children to continue their counselling.

The parties’ respective applications were heard on September 18, 2020 by which time the interim parenting schedule had been revived. At the commencement of the hearing the chambers judge advised the parties that she had read the material and then, before hearing a single word from counsel, said: 

“And the issue of whether the chambers judge – and that’s me – should be entertaining such an application without waiting for the court-ordered intervention to be completed is simple to me. No is the answer.”

She then stated: 

“Ms. Volkman, in her own affidavit, addresses this as to how – how is she supposed to prove blah, blah, blah? And my problem is I seriously question the premise that both parents are “fit, capable, and loving”. I have reviewed that premise as against the affidavit evidence, including his own, which relates to his deeds and to his mental health. And in saying so, it is his own words and deeds I refer to.”

 Not yet done, she criticized the father’s religious beliefs, which she said were “the foundation for the father’s attitude toward women and marriage”. This was followed by her question to father’s counsel: 

“…what do you say, having heard what would sound to your client, I’m sure, as a pretty harsh assessment?”

Not surprisingly, counsel was baffled, but steadfastly defended her client, who denied all the allegations. Counsel advised the court that no issues had been raised by the Practice Note 7 expert or the children’s counsellor. She then addressed the slur against the father’s faith and replied:

“These parents – these parties – if I could just say this – they met in church. They went to church. They had their children in church. They raised their children in that church. This is Monday morning remorse.”

Realizing where the judge was going with this, counsel advised that court that the parties had limited funds and could not afford an adjournment. She said:

“He only has so many benefits [to fund counselling]. Mom does not work. He is out of money. And I said: You’ll have to go ahead. He has approximately 35 percent of the time. You have indicated that he is no kind of parent. Obviously, he takes the kids camping. He does their homework. He makes them meals. He takes them to that awful church that the parties attended.” 

The judge ignored her entreaties and adjourned the hearing to a date four months hence; declared that she needed a psychiatric opinion on the father’s mental fitness, and seized herself of the matter. 

The father’s grounds of appeal focused on the judge’s unilateral imposition of orders that were neither sought nor plead; her misapprehension of the expert evidence; and a reasonable apprehension of bias. 

The appeal court allowed the appeal and remitted the matter back to the trial division, to go before a different judge. The court articulated the following conclusions:

  1. Subject to narrow exceptions, chambers judges are expected to confine themselves to the issues raised by the parties and not grant relief beyond what is claimed in the applications;
  2. The suggestion that the appellant was mentally unfit was not supported by the evidence. The father had enjoyed overnight parenting time for years and for four summers had shared week on/week off parenting. Presumably, the mother would not have consented to this parenting schedule if the father was not fit;
  3. The mother did not seek a reduction in parenting time, which would have been expected if the father was mentally unfit. The parties engaged with the professional expert for 17 months and he did not raise any issues regarding mental fitness or any other parenting concerns, neither did the children’s counsellor;
  4. While the chambers judge was critical of the appellant’s religious beliefs there was no evidence that his beliefs were a mental health issue. A difference in parenting styles does not make a parent mentally or otherwise unfit;
  5. The chambers judge misunderstood the roles of the expert, who had provided a report and closed his file, and the children’s counsellor, who was in a therapeutic relationship with the children and could not be expected to now become a forensic expert for the court.

This appeal was never a “close case”, or an attempt to interfere with the chambers judge’s inherent “discretion” in parenting matters. Most unfortunate is that the parties retained counsel, expended funds on a court hearing, and attended court, only to be compelled to bring an appeal and start over again. Fortunately, for this father, his counsel represented him well, and recognized the flaws in the judge’s orders. 

R.A.I.D.S.: Recently Acquired Income Deficiency Syndrome

Family law lawyers often refer to a deadly disease called “R.A.I.D.S.”, which is very contagious among family law litigants and frequently used as an excuse by wealthy spouses to explain the sudden downturn in their income. 

In a 2010 decision by Judicial Hearing Officer Stanley Gartenstein of Nassau County, New York, Supreme Court Officer Gartenstein wrote:

“After a long and bitterly contested trial, this complex litigation may best be summed up as a well-crafted but legally bankrupt claim of “sudden poverty”, a disease which seems to infect matrimonial litigants with particular frequency.”

“Apart from the time, effort and expense to which he has put his wife to penetrate the smoke-screen he has so skillfully created– and we must give him credit for that–his schemes are a house of cards constructed by a self-indulgent individual intent upon his own gratification at the expense of all of those innocent persons who have given of themselves to him and had a right to expect more.”

I’d love to hear a judge in British Columbia tell it like it is, like Officer Gartenstein. Bravo!

Lawdiva aka Georgialee Lang

Getting Divorced? See a Movie!

Today’s post looks at the lighter side of divorce and separation with a review of my top three “divorce” movies. And the winners are….

1. The War of the Roses

Who can forget the outrageous antics of Michael Douglas and Kathleen Turner as the warring Roses, in this black comedy directed by Danny De Vito, who also plays a divorce lawyer in the film. 

The Roses are a wealthy, sophisticated couple who despite appearances, hate one another. After Mrs. Rose asks for a divorce she advises her husband she will never leave her home and refuses to acknowledge that he has an equal interest in it.

With each refusing to move out, the couple live together in a state of unarmed warfare. To spite each other, they destroy most of the home furnishings and smash Royal Doulton china and Waterford crystal against the walls.

When Mr. Rose “accidently” runs over his wife’s cat, she retaliates by nailing the door of the sauna shut while he is in it. He nearly succumbs to heat stroke and dehydration. 

As matters escalate, Mrs. Rose rigs their large hallway chandelier, hoping that it will fall on her husband, thus eliminating her problem. There is a surprise ending that I will not give away.

This 1989 film grossed $150 million at the box office and won three Golden Globes: Best Actor, Best Actress and Best Movie. 

2. The First Wive’s Club

This 1996 comedy features Diane Keaton, Goldie Hawn and Bette Midler as three middle-aged wives who are dumped by their husbands in favour of younger women.

The three form a club vowing to wreak havoc in their ex-husbands’ lives and exact revenge. Goldie Hawn plays an aging actress who is a plastic surgery addict; Diane Keaton is an anxious neurotic with a lesbian daughter; and Bette Midler is a capable Jewish wife who sacrificed herself for her husband’s successful business.

The film has a great soundtrack including Dionne Warwick’s “Wives and Lovers”, Janis Joplin’s “Piece of My Heart”, Gloria Gaynor’s “I Will Survive”, and Lesley Gore’s “You Don’t Own Me “.

Who can forget Ivana Trump’s cameo line “Don’t get mad, get everything!” 

The film was a winner at the box office and helped revive the careers of its
three leading ladies. It was based on the novel of the same name written by Olivia Goldsmith, who died several years later during a facelift procedure.

3. Mrs. Doubtfire

Robin Williams plays a father, Daniel, with a lagging acting career, who loses his job, his marriage and his three kids. His wife, played by Sally Field, has a new boyfriend (Pierce Brosnan) and sole custody of the children. Daniel is given access to his children once a week on Saturday nights.

Desperate to see his kids, he notices that his wife is advertising for a nanny. With the help of his brother who is a film makeup professional, Daniel transforms into British nanny Mrs. Doubtfire.

The film is hilarious. Eventually the two oldest children realize Mrs. Doubtfire is their father and go along with the scam. 

The “happy ending” includes Daniel on his own children’s television show playing Mrs. Doubtfire and his wife’s recognition that he is really a great dad.

The film was the second highest grossing film of 1993 only outstripped by Jurassic Park. It won an Oscar for Best Makeup and Golden Globes for Best Actor and Best Picture.

What are your favourites?

Lawdiva aka Georgialee Lang

High Conflict Custody Cases: Who Should Decide?

In difficult custody cases it is not unusual for parents to retain a psychologist to assess the family dynamics. Parents and child are interviewed, separately and together, and other people closely connected to the child, including grandparents, new partners, close friends and nannies may all be part of the process.

Often times the conflict between parents will be so great, the parents agree to appoint a custody evaluator and other times, on the court application of one parent, a court will order that an assessment take place.

Custody assessors, typically psychologists or psychiatrists, play a significant role in custody and access decisions across North America. Their opinions and recommendations can carry considerable weight when a court is asked to decide on a parenting plan for a child whose parents cannot agree on their own, although judges are never bound to follow their recommendations.

A recent case out of California is illustrative of the follies and foibles of turning pivotal decisions about one’s children over to experts and judges.

Mother Deborah Singer had custody of her five year-old daughter when Beverly Hills psychiatrist Dr. Joseph Kenan was hired to do a custody and access assessment. Ms. Singer’s estranged husband had barely seen his daughter in two years and was in prison for probation violations. Upon his release, he was facing additional felony charges.

Ms. Singer paid Dr. Kenan a retainer of $7,500.00. Before the completion of his custody report, Dr. Kenan advised Ms. Singer he required an additional $35,000.00 and would send a courier to her home right away to pick up a cheque for $20,000.00

Ms. Singer was alarmed by the doctor’s request and began to investigate him. She came across several websites and a Facebook page that sent her reeling. Under the names Joe Kegan and Joe Keegan she discovered sexually explicit photos including one of the doctor showing his bare buttocks. 

Other photos included one of a woman leaning over a mirror that had lines of white powder on it that she was inhaling with a straw. Another photo of the doctor showed him holding a banner that read “It’s snowing.” His Facebook page promoted unprotected sex and several gay porn sites including Rentboy.com.

She also discovered that several months earlier, police had attended at Dr. Kenan’s home in respect of a sudden death initially thought to be caused by a drug overdose. Later, the death was attributed to natural causes, but a meth pipe was found in his home.

Ms. Singer sought and received a court order removing Dr. Kenan from the case and her retainer was reimbursed to her.

Another concerned mother of an eleven year-old child who had retained Dr. Kenan also asked the court to remove him as the custody expert on her case, but in this instance the court would not, saying ” You want Dr. Kenan removed because of a goofy Facebook page? What has that got to do with anything in this court?” 

At least two important lessons emerge from this story. The first is that decisions about children are best made by their parents, not experts and not judges. In the Singer case, I query why a custody evaluation was required when Ms. Singer had raised her daughter and was the sole provider for her. I suspect that Ms. Singer was seeking to bar her child’s father from any contact with his daughter.

The second lesson arises from the disparate opinions of two California judges. One judge agreed that Dr. Kenan should not be involved in a custody assessment based on the evidence gleaned from the internet, while a second judge believed it was completely irrelevant.

After an investigation, Dr. Kenan was not disciplined as there was no evidence of professional misconduct.

As I often tell my clients, a lot of what happens in court depends on the experts you rely on and the judge you draw. 

Lawdiva aka Georgialee Lang

Forged Evidence Does Not Impress Appeal Court

Appeal Court considers stay of custody order in the face of forged evidence
By Georgialee A. Langpage1image15408576

Many family law attorneys enjoy their practices, despite the rigours of high-conflict litigation and often, never-a- dull-moment narratives, but Ontario counsel surely just survived the emotional wear and tear inflicted by a mother in a recent Ontario case.

In Lenihan v. Shankar 2021 ONCA 142, a custody case, the appeal court considered an application brought by a 2-year-old’s father for security for costs of the mother’s appeal and a stay application brought by the mother, who had lost custody in the court below.

The parties met in Oregon in March 2017 and married in June 2017. The mother was a citizen of India, with permanent residence status in Canada, who a month after their nuptials returned to Vancouver to maintain her Canadian immigration status. She then moved to Ontario and her husband followed her, where she advised him she was pregnant. But that news was

not enough to keep the marriage on track, and the parties separated in December 2017, with the father returning to his home in Oregon.

In February 2018 the father received notice from his estranged wife that their child had been born prematurely and was in neo-natal intensive care on a ventilator. That advice turned out to be false; however, the child was born with craniosynostosis, a condition in which one of more of the fibrous sutures in an infant’s skull prematurely fuses into bone, changing the growth pattern of the skull. The child was actually born on March 30, 2018 and several successful operations completely addressed the child’s skull problems with no remaining disability.

From the day of the child’s birth the mother made scurrilous allegations against the father and enlisted the assistance of child protection authorities and Ontario’s Office of the Children’s Lawyer, who both investigated and rejected the mother’s outrageous allegations, including those of sexual and physical assault, that the father wished to “kill the baby;” that he wanted her to have an abortion; that he did not want to pay child support, and many other equally ludicrous claims.

A custody trial began in November 2020 and the father and his mother arrived in Ontario and self- quarantined in a hotel for the required 14 days prior to the commencement of the trial, and where they remained for the four-week trial.

To describe the trial as a “debacle” fails to capture the turmoil created by the child’s mother. It began on day five, when the mother testified that the father was not the child’s biological father and presented a paternity test to the court. She alleged that he was a sperm donor and filed a “Sperm Donor Agreement” in evidence. She also submitted an e-mail exchange between the father and his lawyer which alleged a criminal act to remove the mother from the litigation.

It quickly became apparent that these documents were “transparent and shocking forgeries prepared by the mother.” But they were not the only fraudulent documents. The mother tendered an 18-page affidavit from a person who, when called as a witness by the father, said she did not know the mother and had never signed an affidavit.

At this juncture, the mother’s legal team, notably her tenth and eleventh counsel, withdrew from the record upon realizing their unwitting participation in placing forged evidence before the court.

The court then permitted the mother to continue and self-represent, and set out a schedule and generous advice as to how she could do so, and ordered weekend parenting time for the father.

However, the mother must have realized that the “jig was up,” as she then boarded a plane for Delhi, first class, without notifying her spouse or the court. An agent appeared on her behalf on the following Monday as court reconvened.

The trial judge agreed that the mother could continue the trial on Zoom from India but must provide the court with details of her return travel arrangements to Ontario, including a return ticket. No ticket was produced, and the mother did not return to Ontario; however, the trial continued until Dec. 11, 2020.

On Dec. 11, 2020 the trial judge delivered short oral reasons, with fuller reasons to follow. He said:

“Time is of the essence in this decision. There is a young child who has been living in a hotel for the past 20 days with a father who is a resident of Oregon, and a mother who has left the jurisdiction without a return ticket.

I find that it is in [the child’s] best interest to transfer her residence from Ontario, Canada to Oregon, USA where she will have a stable residence, extended family supports, medical care and a good education. In doing so, I acknowledge that this change in residence will remove this case from Ontario jurisdiction.”

In written reasons handed down on Jan. 14, 2021, the judge described a mother who sent hundreds of abusive, threatening text messages to her spouse; failed to list him as the child’s father on the birth registration; asserted non-existent court orders to professionals and hospitals; ignored legitimate court orders; failed to disclose the existence of another husband and a second child to the father; and threatened the father’s family and child protection case workers.

With respect to the father’s application for security for costs of the appeal, the court remarked that such an award was rare in a child-related matter but noted that “but for cases of infanticide or abductions, Ms. Shankar’s [the mother] actions in and outside of this litigation exceed any known to me in the caselaw.”

The mother, still lacking any insight in her behaviour, filed a stay motion of 160 pages alleging that her husband had “trafficked,” “abducted,” and “tortured” his daughter; describing him as a “drug addict” and “homeless;” and that he would “sell his daughter,” all allegations that were patently absurd. The court ordered that $30,000 be posted as security for costs and dismissed her stay application.

It remains a mystery to right-thinking people how a person can be so consumed with what? Anger or resentment, fear or shame, or is it mental illness? And how can courts address these cases in the context of our adversarial family system of justice? These are difficult questions that lawyers and judges continue to ponder.

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

Lawdiva aka Georgialee Lang

Judge Orders Litigants to Attend Trial and Denies Adjournment Requests

An Ontario judge has spoken out clearly about counsel who book trials and then abandon them on short notice to the courts. In Armstrong v. Armstrong, 2017 ONSC 6568, Mr. Justice Pazaratz called the case, involving a reduction or termination of spousal support, only to learn that the litigants in the case were not available, and an adjournment was sought by both counsel.

Counsel had earlier agreed and the court permitted them to adjourn the trial, then set for August 2017. At that hearing, counsel had agreed the trial would proceed in October 2017 for three days. 

Counsel advised the court that an error had occurred and their clients incorrectly believed the rescheduled trial would take place in January 2018. Counsel also stated that a settlement conference had not been booked which might assist the parties to settle. As well, one of the lawyers indicated he had a doctor’s appointment that afternoon. Judge Pazaratz queried counsel as to why a trial was booked if settlement had not yet been explored, and also opined that the court would and could work around counsel’s medical appointment, but that did not justify an adjournment of the trial. He also said:

“The implications of attending court on day one of a three day trial and requesting an adjournment go far beyond merely wasting one day of court time. Judges and trials are scheduled based on a balancing of multiple scheduling considerations. If this three day time slot becomes wasted, there may be far-reaching consequences (for example another three day trial could have been called, but if I am only available for two more days this week, it means I don’t have enough time to deal with that other matter).”

Judge Pazaratz advised counsel to get their clients to court immediately so the matter could proceed unless a settlement was reached, and warned them that if the matter was not settled and the trial did not go ahead, he would dismiss their case.

Counsel returned with a consent order in which each party withdrew their claims on a without prejudice basis, however, the Court was not impressed with counsels’ tactics saying:

“The problem, of course, is that if people can simply withdraw claims when they aren’t ready for trial, there’s nothing to stop them from re-commencing those claims in short order, and creating even further stress and expense for the system. We have an obligation to ensure that judicial resources are appropriately utilized and not misused. I am not prepared to allow the parties to simply withdraw their claims on a without prejudice basis.”

Judge Pazaratz then dismissed the claims, but not on the merits, saying that if either party wished to return to court to deal with any of the claims, they would require permission from the Court to proceed, and that in the event that occurred, he would be the judge dealing with the matter.

Where courts are being criticized for a lack of judicial time and unreasonable delays in meting out justice, Judge Pazaratz’s ruling is a welcome response to counsel who abuse the system. While “courthouse steps” settlements are to be encouraged, in this case it was apparent from counsels’ remarks that settlement had not yet been broached; that no trial preparation had been undertaken; and that counsel were content to show up, without their clients, expecting a favourable or neutral response to their self-imposed dilemma.

Lawdiva aka Georgialee Lang

Bob Dylan As Legal Muse

In the turbulent 60′s Bob Dylan’s music and lyrics captured the imagination of a whole generation and became the soundtrack for America’s civil rights and anti-war movements.

His lyrics are as profound today as they were sixty years ago, and Dylan has become the most prominent legal muse for Judges and legal scholars.

Professor Alex Long from the University of Tennessee scoured legal databases for the year 2007 and found that Bob Dylan’s lyrics were cited in Reasons for Judgment 186 times, compared to 74 for the Beatles and 69 for Bruce Springsteen.

Several appellate judges in California have said “You don’t need a weatherman to know which way the wind is blowin’ ” from the song “Subterranean Homesick Blues”, in reference to the fact that an expert isn’t required to offer an opinion when any layperson could discern the facts.

Even the United States Supreme Court has relied on Dylan’s lyrics to make a point. Chief Justice John Roberts Jr. quoted Dylan’s line “If you ain’t got nothing, you’ve got nothing to lose” from his song “Like a Rolling Stone”.

Justice Antonin Scalia, in a case involving privacy protection for employees that use company email, said “The times they are a-changing’ is a feeble excuse for disregard of duty”.

I wonder if a Judge will ever recite this line from Dylan’s “Hurricane”:

“The trial was a pig-circus he never had a chance”

I doubt it!

Lawdiva aka Georgialee Lang