Lawyer with Student Loan Debt in Excess of $500,000 Not Fit to Practice Law

An interesting case from the Appellate Division of the Supreme Court of New York was handed down, wherein the Court overturned the State Bar Association’s admission of a lawyer, who remained unnamed in the judgment. 

Decided and Entered: November 29, 2018
_______________________________
In the Matter of ANONYMOUS, an
Applicant for Admission to
Practice as an Attorney and
Counselor at Law.
_______________________________
D-147-18

This anonymous lawyer graduated from a Wisconsin law school in 2009 and had practiced law full-time for five years prior to his application to be admitted to the New York bar.

The Court noted that the lawyer had filed for bankruptcy in 2003 and escaped approximately $27,000 in debt, but his student loan debt of $37,000 survived the bankruptcy. At the time of his current application to the New York bar he admitted to student loans and private debt of $580,000 against payments of $2,700 since 1995.

The Court confirmed the lawyer’s burden of demonstrating his fitness and general character to practice law and determined that while the amount of the debt was concerning, it was his cavalier attitude and indifference to the situation that caused them to deny admission to practice law. 

This was the lawyer’s second kick at the can as he had brought an earlier application for admission to the bar in 2009 which was also refused by the appeal court. In 2009 his debt load was $480,000 and the court highlighted his recalcitrance in dealing with his creditors.

We don’t know from the judgment how many university degrees the lawyer attained or how he could possibly acquire such an extreme amount of debt, but I speculate that he was supporting himself on student loans over a lengthy period of time.

Lawdiva aka Georgialee Lang

Judge Denounces “Litigation Nonsense” During Time of Covid Pandemic

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Georgialee A. Lang

An Ontario judge has sounded an alarm to family law counsel and their clients who engage in practices that contribute to “litigation nonsense,” a term coined by Justice Alex Pazaratz and particularly relevant in family law litigation in the time of COVID-19.

Berta v. Berta 2021 ONSC 605 provides the backdrop for the court’s discussion of inefficient practice issues, in the context of a spousal support case where Raymond Berta repeatedly refused to comply with a trial court’s order that he pay his ex-wife spousal support of $13,759 a month for an indefinite period of time. His reluctance to accept the court’s decision after a nine-day trial in 2013 and 2014 resulted in an appeal in 2015, a rehearing in 2016 and a second appeal in 2017, where the appellate court confirmed the spousal support order.

However, before the Court of Appeal could release its decision, Raymond Berta brought a further application to vary the Court of Appeal’s order, an application he later abandoned, resulting in costs payable to Delia Berta of almost $80,000 for his failed attempts to escape his support obligations. He also brought an application to change the venue from Milton, Ont., to Hamilton.

Justice Pazaratz observed that Raymond Berta’s non-payment of support led to arrears of spousal support and costs amounting to almost $500,000. Ontario’s Family Responsibility Office (equivalent to British Columbia’s Family Maintenance Enforcement office) set down a hearing for March 2020, adjourned due to COVID-19, and ultimately heard in December 2020.

The court ordered a payment schedule, confirming the ongoing support of $13,859 a month, together with $6,374 monthly on account of arrears, and ordered two lump sum payments: $147,597 payable by March 1, 2021, and $103,088, payable by May 1, 2021.

In considering the material before him and the history of the litigation, Justice Pazaratz described and denounced Raymond Berta’s conduct as “economic warfare.” He noted that while everyone has a right to their “day in court,” some cases distinguish themselves by consuming an inordinate amount of court time and judicial resources, and with some cases “we reach a tipping point where the system has to remind everyone about Rule 2 in the [Ontario] Family Law Rules,” rules we see in every province in Canada that invoke the “just, speedy, and inexpensive resolution of family law cases on their merits.”

The court observed that Raymond Berta had made this litigation as “complex, unproductive, inefficient, and expensive as possible” and suggested that in the time of the COVID pandemic, his litigation conduct could no longer be tolerated:

The COVID pandemic has left our court resources strained as never before. Even working at maximum efficiency, our reduced capacity in family court means that every day more and more families are left waiting for justice. … [t]he well-being and circumstances of children and vulnerable people are at stake. I’m not sure why we tolerated as much litigation nonsense as we used to. But that’s not an option anymore. We can no longer permit or tolerate an inefficient or cavalier approach toward judicial resources. We can no longer overlook or gloss over oppressive, reckless or malicious behaviour.

Justice Pazaratz ordered costs payable to Delia Berta of $4,000 but specified that he declined to waste any more of the court’s time to consider whether the costs order was enforceable by the Family Responsibility Office.

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

Is Case Management Judge’s Order Deserving of Deference?

The Alberta Court of Appeal considered an application for a stay of a parenting order where the lower court had drastically altered the pattern of parenting that had been in place. In Lloyd-Martinez v. Martinez 2021 ABCA 13, the case management judge increased Mr. Martinez’s parenting time from seven supervised visits per month to shared parenting, with alternating weeks, and no supervision. 

After nine years of marriage and two young children, this couple separated in March of 2017. In May of 2017 a protection order was made which barred the father from contacting his wife or the children. Several weeks later the father received an order for 2/12 hours of supervised parenting time every eight days.

By June 2018 a case management judge was appointed and in June 2019 the judge increased the father’s parenting time to five four-hour supervised visits every month. From July 2019 to February 2020 the children were in counselling where the counsellor noted that the parties’ son expressed negative feelings toward his father.

In October of 2019 the father’s parenting time was again increased to seven days out of every thirty, albeit it remained supervised. A year later an application to increase parenting time was heard which included evidence that the father had been in counselling, taken anger management courses, and had engaged in high-conflict parenting courses. The case management judge also observed that the children’s mother has taken steps to alienate the children and rejected her evidence of the father’s alleged bad parenting.

Ms. Lloyd-Martinez appealed the order and sought a stay alleging that her ex-husband did not provide a safe and supportive environment for the children and that their son did not want to spend overnights with his father. The parties’ other child, a daughter, did not express similar feelings. 

The Appeal Court considered the usual tripartite test for a stay: (1) Whether there was an arguable case; (2) Whether there would be irreparable harm if a stay was not granted; and (3) Whether the balance of convenience favoured a stay. RJR-MacDonald Inc v Canada (Attorney General)1994 CanLII 117 (SCC), The Court also noted the following

” When dealing with a stay application involving children, a modified test applies to reflect the paramountcy of their best interests… . An arguable case will likely be made out where there is credible evidence that the best interests of the children have been impacted adversely in a significant manner by the lower court’s order, coupled with an arguable case that the challenged order is flawed in some significant manner and that a stay would mitigate those adverse effects and better serve the best interests of the children In addition to influencing whether there is a serious issue to be argued on appeal, the best interests of the children will modify the irreparable harm and balance of convenience stages of the test. The court must consider whether the children will suffer irreparable harm resulting from the granting or denial of the stay.”

Not surprisingly, the Appeal Court determined there was an arguable issue, the threshold of which is notoriously easy to establish, as the analysis does not require a detailed assessment of the merits of a case. 

With respect to irreparable harm, the Court noted that a mere disruption in the children’s lives would not satisfy this part of the test, as the harm required must be “real and significant”. Notably, the parents generally agreed that the father-son relationship was strained, but each parent blamed the other.

The Appeal Court granted the stay. What it came down to was the mother’s role as the children’s primary caregiver since the date of separation and the children’s exposure to their father only under supervised circumstances. The Court held that the radical change in parenting would be destabilizing, particularly given the son’s feelings toward his father and the conflict between the parents.

A final comment: After case managing this high-conflict parenting case for 2/12 years, one must query the Appeal Court’s second-guessing the role of the case management judge and his experience with the parties and their children. Certainly, this gives one pause to consider whether the lauded “deference” to such a judge’s role was respected in this case. 

Lawdiva aka Georgialee Lang

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

Damages for Parental Alienation?

Parental alienation is a most insidious form of child abuse, a phenomenon that leaves children scarred and innocent parents victimized.  If and when the child is returned, the healing process begins, though often times the damage is difficult to repair and the financial and emotional wear and tear is immeasurable. 

Sometimes “left-behind” parents consider whether a court action is feasible to receive damages from the alienating parent as compensation for the tortuous journey they travelled to recover their “stolen” child. 

In a recent Ontario case, the Court of Appeal considered an appeal by a father who sued his former wife and her new husband in a Florida court for $9.6 million in damages, including punitive damages, arising from an intentional course of conduct to interfere with his custodial rights and intentional infliction of emotional distress. Glegg v. Glass et al 2020 ONCA 833.

The father alleged that his former wife moved with his daughter to Florida in 2014 in the face of a 2001 joint custody agreement that provided both parents would remain in the Oakville, Ontario area until their daughter turned 18 years. The unilateral move led to extensive litigation and the return of their then 15-year-old daughter to Ontario. However, when the young girl turned 16, she sought and obtained an emancipation order, withdrawing from both parents’ control. Father’s appeal of this order was not successful. Later, his daughter brought a child support application against him, which she eventually abandoned.

The recourse to the Ontario courts was related to an application based on Letters of Request (letters rogatory) from the Florida court for the production of documents in the possession of his former spouse’s lawyers, as well as from the lawyer for his now estranged daughter, and Justice for Children and Youth, a non-profit organization providing legal services for children under the age of 18.

The application judge dismissed the father’s application concluding it would be against public policy to enforce the Letters of Request from a foreign court “in aid of a cause that is forbidden in Ontario” and because it would be a breach of solicitor-client privilege. 

The heart of the court’s dismissal was based on Frame v. Smith 1987 Canlii 74 SCC where the high court  held that a parent cannot sue his spouse or third parties for interfering with a parental relationship.  In Frame the court stated:

“Permitting civil actions against the custodial parents cannot be said with any certainty to be in the best interests of the child…Like the resort to fines and imprisonment, these proposed remedies could encroach on the resources of the custodial parent and could cause the child to suffer from the knowledge that one parent has taken such drastic action against the other.”

Query whether with the passage of 33 years since the Frame decision and the almost universal acceptance of advanced research and judicial analysis of parental alienation, this decision would stand scrutiny today, if the right case presented itself. 

While an action in damages for parental alienation has not yet succeeded in Canada, it is a viable claim in the United States. Segal v. Lynch May 3, 2010 in the New Jersey Court of Appeal,  began in Ontario where child custody, child support, spousal support, and property division was determined. A few years later the children and their mother moved to New Jersey and she effectively hid the children from their father for three months. 

The children’s father alleged that the mother’s actions alienated the children such that they no longer sought a relationship with him.  He sued his former spouse for intentional infliction of emotional distress. 

At trial the judge dismissed the father’s lawsuit. The principal grounds for the dismissal were the  finding that the facts of the case were not sufficiently egregious to satisfy a claim for intentional infliction of emotional distress. The court also said that the father’s allegations should be dealt with by the family court and not in a separate civil action. 

On appeal the trial judge’s decision was affirmed, but a different analysis of the law was invoked. The appeal court held that an action for damages alleging parental alienation was available, however, the best interests of the child and the doctrine of parens patriae must come into play. 

The appeal court said that the obvious witnesses in such a trial would be the children and the best interests of the child would not permit the action to proceed. The court did, however, confirm that the cause of action could be made out where the facts were so outrageous that justice required intervention. They suggested that prolonged alienation or repetitive allegations of unfounded sexual abuse may provide adequate grounds. 

Parental alienation is a complicated issue, but with the amendments to the Divorce Act, soon to come into effect, our legislators have recognized the dynamics associated with alienation by including a provision that a court must consider a parent’s ability to support the child’s relationship with the other parent, empowering the court to prioritize family connections when making parenting orders. 

Lawdiva aka Georgialee Lang

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

Shark Tank Star Loses His Appeal

Robert Herjavec, of Shark Tank and Dancing With the Stars fame, not surprisingly, lost his appeal to overturn a $125,000 per month spousal support order resulting from a 4-week trial in 2018. While Wikipedia and other sites claim his net worth is $200 million dollars, the actual number is far less. Schedule A of the trial reasons indicate a net worth of $42 million, with no excluded property, and an annual personal income of approximately $6 million.

Herjavec asserted three grounds of appeal:

1.   The trial judge erred in her assessment of the respondent’s needs and means.

2.   The trial judge erred in her determination of spousal support by failing to apply, or incorrectly applying, this court’s decision in Halliwell, and the SSAGs.

3.   The trial judge erred in her order for indefinite spousal support by refusing to stipulate a termination date or review terms.

Was his appeal bound to fail? I would say yes, but I can imagine how strident he might be in pursuing this course of action. His position on spousal support at trial was prophetic of his misguided appeal. At trial, in the context of a 24-year marriage, with three children and a wife who left her professional career to raise the children, he argued that after paying $124,000 a month in temporary support since 2015, his wife had been overpaid by $500,000 and he sought reimbursement. He also suggested that spousal support ought to be immediately terminated. With respect to property division he asserted that he was entitled to a $3 million dollar equalization payment from his wife. The trial judge ordered him to pay $2.7 million to Ms. Plese to equalize family property.

Given the standard of review in spousal support appeals, the only ground of appeal that I examined in detail was the appellant’s position that the court failed to apply the principles of support found in Halliwell v. Halliwell 2017 ONCA 349.

Halliwell was a high net worth case, although paling in comparison to the Herjavec case, where Mr. Halliwell presented multiple grounds of appeal regarding property division and spousal support. At trial Mr. Halliwell was ordered to pay an equalization payment of $3 million dollars over 5 years and spousal support of $29,000 a month, based on his income of $1 million dollars per annum.

The appeal court held that the trial judge was fully justified in finding entitlement based on compensatory and non-compensatory factors, but in setting the quantum he needed to take into consideration that the equalization payment went a considerable distance towards satisfying both bases for the award, but he failed to do so. The Halliwell trial judge awarded support at the highest end of the Spousal Support Advisory Guidelines range, which the appeal court identified as an error in law, as well as the lack of investment income attributed to Mrs. Halliwell as a result of the equalization payment.

As a result Mr. Halliwell’s spousal support was reduced to $20,000 per month.

So how did the Herjavec appeal panel distinguish Halliwell? The appeal court reviewed the trial judge’s analysis:

“Here, in her analysis of entitlement, the trial judge looked at the respondent’s capital base resulting from the equalization payment and the potential investment income. The trial judge understood that the ability of the respondent’s capital base to meet her future needs could not be examined in isolation. She attributed some of the respondent’s capital base to the costs of residences, which were not income-producing, and the remainder to income-generating vehicles at an appropriate rate of return. She also compared the capital base of the respondent to that of the appellant. She found that, after the equalization payment, the appellant still had a substantial capital base through THG, his income of more than $5.5 million per year, his “luxurious” home in California, and other assets and savings.”

With respect to Mr. Herjavec’s argument that the trial judge erred by not stipulating a termination or review date, the appeal court noted that the judge’s award was for an indeterminate period, subject to variation based on a material change of circumstance.

Lawdiva aka Georgialee Lang

Season’s Greetings

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

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

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

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

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

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

AND FURTHER for a fiscally successful, personal fulfilling, and 

medically uncomplicated onset of the generally accepted calendar year

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

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

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

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

sexual preference of the wishee.

“Shadow Trial” Argument Rejected in Special Costs Appeal

Berthin v. Berthin 2020 BCCA 376 is another high-conflict case described by the chambers judge as an “unenvious litigation odyssey”, an apt characterization considering the court action was commenced in 2011 and led to 19 reported decisions in the BC courts. Ten of the court’s judgments related to the sale of a property owned by the parties, an order sought by Mr. Berthin and then mightily resisted by him.

The latest foray in the appeal court was a leave to appeal application brought by Mr. Berthin as a result of a special costs order based on allegations of fraud advanced by him against his former spouse and the purchasers of said property.

In his application for leave, Mr. Berthin contended that the chambers judge erred by conducting a “shadow trial” and adjudicated the substantive issues as though there was a trial on the merits.

The appeal panel agreed that in most cases, when special costs are awarded, they will be ordered at the conclusion of a trial or hearing. In the case at bar, Mr. Berthin argued that he abandoned his case before the trial and consented to a dismissal of his action.

Relying on Lim v. Zhu 2019 BCSC 88 he submitted that the costs award was improper as the matter had settled without a hearing or trial. The relevant passage from Madam Justice Adair’s decisions in Lim v. Zhu was the foundation for Mr. Berthin’s appeal:

 “Because the parties settled, there will never be an adjudication of the facts, or findings about which party’s evidence was credible and reliable, or about whether parties conspired with one another, or a determination about whether a particular remedy was (or was not) justified. … The court should not now be expected to conduct a shadow trial to declare winners and losers for the purposes of a costs award.”

Unfortunately for Mr. Berthin, the appeal court distinguished Judge Adair’s case finding that Mrs. Berthin and the purchasers of the property declined to settle, and the cased was simply dismissed, “at which point the defendant’s entitlement to costs was triggered”, according to the Court of Appeal.

As well, in Lim v. Zhu some of the parties sought leave to discontinue before the trial and the remaining parties arrived at a settlement just before the trial commenced:

“There was, accordingly, no adjudication on the facts…but the settlement included a provision for costs to be “awarded upon application”.

Justice Adair declined to order costs against the settling parties but ordered costs payable by the discontinuing parties based on Ontario jurisprudence, citing Waterloo North Condominium Corp. v. Redmond 2017 ONSC 1304.

Finally, in dismissing the leave application the court remarked that Mr. Berthin’s case more resembled the facts in O’Connell Electric Ltd. v. BC Hydro 2006 BCSC 1632 where Mr. Justice Myers awarded special costs against a plaintiff who discontinued his action in unlawful conspiracy some five years after he started it. The judge considered the threshold issue: did the plaintiff have a sufficient factual basis upon which he could reasonably make allegations of conspiracy and dishonesty? Myers J. concluded that there was no proper evidentiary basis to do so and awarded special costs. The plaintiff’s appeal of the costs order was dismissed as was Mr. Berthin’s.

Lawdiva aka Georgialee Lang

Judge Remains Seized: Is That Ever an Error in Law?

The question of a judge’s refusal to “unseize” herself was considered by the Ontario Court of Appeal in DG v. AF 2015 ONCA 290.

The parties were engaged in high-conflict custody litigation, a scenario where the appellant mother, who had supervised access to her children, refused to accept the trial judge’s decision that custody be awarded to the children’s father. The trial judge remained seized until he was transferred to another judicial district. Thereafter a chambers judge heard multiple applications and seized herself of the proceedings.

The appellant sought to escape the chambers judge’s “influence”, arguing that the judge had no basis to seize herself indefinitely. She also suggested that the judge’s management of the case would put the judge in a continual conflict of interest because her applications to vary custody and access would inevitably involve the judge reviewing her own decisions.

The Court of Appeal rejected her allegations of unfairness and dismissed her appeal, saying that active case management was part of the underlying philosophy of the Family Law Rules. The court referred to Rules 2(5) and 39(9) of Ontario’s Family Law Rules, noting that these rules represent the “gold standard” for case management in the unified family courts, where case management is most active.

The court remarked that in a non-unified Superior Court site, litigants could not avail themselves of all of the benefits of active case management. Nonetheless, the court noted that nothing in the Family Law Rules prevented a judge from using her inherent jurisdiction to seize herself of a case. Further, the court confirmed that a judge’s seizure of a case permitted reasonably quick access to justice before a judge who is familiar with the relevant facts and the parties.

While this is certainly the goal of judicial case management, speedy access to a seized judge is often not achieved, given the busy calendars and travel of Supreme Court judges in British Columbia.

In BC the Supreme Court Family Rules provide for a Judicial Case Conference with expansive management powers available to judges or masters who conduct these conferences. Remedies available include court mediation, discovery orders, document production orders, a direction that any applications be made in a prescribed timeframe, additional orders regarding the timing of specific events in the litigation, and additional case conferences. In summary, the court can make any order or give any direction that will further the objectives of the Supreme Court Family Rules, which is the “just, speedy, and inexpensive determination of every family law case on its merits.”

Lawdiva aka Georgialee Lang

What to Do About Duplicate Divorce Filings?

It sometimes happens…estranged spouses, who are not in communication with one another, each go to a family law lawyer and each lawyer prepares and files court documents to obtain a divorce. So what happens if your lawyer files first, and the next day, a second Notice of Family Claim is filed, seeking a divorce. Or what about if both spouses file for divorce on the same day…it’s been done before, and that’s why the Divorce Act tells us what to do…

Section 3(2) states:

“Where divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days and the proceeding that was commenced first is not discontinued within thirty days after it was commenced, the court in which a divorce proceeding was commenced first has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the second divorce proceeding shall be deemed to be discontinued.”

Pretty simple…if you file first, you go first, and the second divorce filing is deemed to be discontinued.

Each spouse filing on the same day is a bit more complicated. Section 3(3) says:

“Where divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day and neither proceeding is discontinued within thirty days after it was commenced, the Federal Court has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the divorce proceedings in those courts shall be transferred to the Federal Court on the direction of that Court.”

The upshot is that it appears that if one of you does not discontinue, the matter has to go to the Federal Court…a very bizarre solution…keep in mind that ordinarily divorces are heard in your local Supreme Court or Queen’s Bench, depending upon which Province you live in.

The case of Kumhyr v. Kumhyr 1997 Canlii 3078 BCSC sheds some light on this anomaly. In Kumhyr the husband filed for a divorce in the Nanaimo Supreme Court. On the same day his separated spouse filed for divorce in the Chilliwack Supreme Court. Ms. Kumhyr’s counsel referred to section 3(3) and argued that the case had to be transferred to the Federal Court. The Court said “no, you have misread section 3(3)”.

The Court explained that when section 3(3) refers to “proceedings in two courts that would otherwise have jurisdiction” it meant two courts, the Supreme Court in BC and another court in a different Province, since only the BC Supreme Court has jurisdiction over divorce in BC. The fact that the BC court locations were not the same did not make a difference.

In Kumhyr the spouses agreed that an order could made for custody of the children in the Nanaimo Registry and the final determination of which court would take charge would await further argument, another day.

If you have lots of money to spend on legal fees you could argue this point or you could come to a satisfactory solution, perhaps through mediation. Jurisdictional battles are expensive and time-wasting, especially one like this one.

Lawdiva aka Georgialee Lang

Can You Appeal An Interim Parenting (Access) Order?

The BC Court of Appeal recently considered the circumstances under which a parent can appeal an interim parenting order, in the case of Hammond v. Hammond 2020 BCCA 314.

The general rule is that if the interim order is made pursuant to the Divorce Act, there is an appeal as of right, but if the order is made under provincial legislation, the Family Law Act, “leave” or permission to appeal must be applied for in the Court of Appeal.

In Hammond the parents were married for 10 years, separating in 2018, two years after the birth of their son. In 2019 they entered into a consent order which included the following term:

” The child of the marriage shall, for the time being, continue to reside primarily with the Claimant mother. Provided however, the parties acknowledge their intention is to work toward an equal shared parenting regime so long as that objective meets the physical and emotional needs of the child. The parties further agree to review parenting time annually each September, or more frequently if agreed upon by the parties and circumstances warrant such a review.”

As an aside, terms such as this one are frequently inserted into agreements where one parent is of the view that shared parenting is not in a child’s best interests at the time the agreement is under negotiation. It is intended to provide some comfort or security to the other parent that his or her desire to be a fully involved co-parent is on the horizon. However, in my experience these terms suggesting an expansion of parenting time, rarely result in agreement, and most frequently, end up in court. Nonetheless, if a review term is the only way to provide an open door, it is better than nothing.

Mr. Hammond’s application to vary the consent order to expand his parenting time to an equal schedule was dismissed in July 2020. The court’s rationale was that the child’s anxiety, as alleged by the mother, had not subsided since the 2019 consent order and therefore, increased parenting time was not in the child’s best interests. Interesting that Mr. Hammond’s application was a variation application, which requires a material change in circumstance, and not a “review” as indicated in the consent order, which does not.

Unfortunately the judge’s reasons and the court order did not specify whether the dismissal order was made under the Divorce Act or the Family Relations Act, a fact central to the question of whether the appeal was allowed as of right. Mr. Hammond’s counsel also could not identify the applicable legislation.

As a practice point, if counsel is acting for a legally married litigant, the authority for an interim parenting order, in fact any interim order, should always be the Divorce Act. Of course, principles from the Family Law Act are relevant, as are cases, but the Notice of Application is rendered confusing if counsel cites the Divorce Act, as well as the provincial legislation. In marriage-like relationships the applicable legislation is the Family Law Act, thus eliminating any right to appeal an interim order.

Query if the distinction is fair to parents in marriage-like relationships? Of course, it is not….I wonder why this has not yet been addressed by legislators?

The reason it is unfair is because of the high bar that must be met to convince the Court of Appeal to grant leave to appeal an interim order. The criteria are as follows:

(1) whether the point on appeal is of significance to the practice; 

(2) whether the point raised is of significance to the action itself; 

(3) whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and 

(4) whether the appeal will unduly hinder the progress of the action. Power Consolidated (China) Pulp Inc. v. B.C. Resources Investment Corp. (1988), 19 C.P.C. (3d) 396 (C.A.

The appeal court has said on several occasions that it is only “in the most extreme circumstances” that leave will be granted to appeal family law interim orders. Munro v. Munro 2015 BCCA 530.

Twenty-four years ago, Madam Justice Proudfoot declared that access order are rarely final orders, because variations are applied and granted. She also said:

“…one could only imagine the number of access appeals that would arrive in this Court if leave were not required.” A.L.J. v. S.J.M. (1996), 81 B.C.A.C. 268.

Lawdiva aka Georgialee Lang