Court Refuses to Set Aside Consent Order for Med/Arb

The Court in Streifel v. Forcier 2020 BCSC 1346 considered the wife’s application to set aside a consent order, which provided that the parties’ family law trial would be adjourned and that a med/arb would take place with a specified arbitrator. 

Shortly after agreeing to the order, the wife fired her lawyer and retained new counsel, who cited various grounds to set aside the order including fraud, abuse of process, unconscionability, undue influence, economic duress, material non-disclosure, irreparable harm, procedural fairness, and balance of convenience. She also asserted that her former counsel entered into the consent order without explaining the details to her and without her consent. 

The court refused to set aside the consent order noting that the wife had engaged in ongoing behaviour that contributed to the delay of the family law matter by refusing to attend multiple mandatory judicial settlement conferences; failing to attend multiple appointments for her examination for discovery, failing to attend a court hearing and a trial management conference, ignoring correspondence from her husband’s counsel, and she had interfered with the court ordered sale of the family home.

The Court noted that it was open to the wife to bring an application to adjourn the med/arb before the arbitrator.

Lawdiva aka Georgialee Lang

Divorce Drives Litigant into Depression and Bankruptcy

DSC00275_1You may have heard of the “good divorce”, a concept explored by Psychology Today in 2009 where they suggested that “it is possible if you know how to do it”. Unfortunately, as a divorce lawyer I rarely see the good ones, only the tragically destructive ones.

In worst case scenarios, divorce can be the trigger for personal bankruptcy as it was for Miroslaw Kuczera from Ontario. (Kuczera (Re), 2018 ONCA 322 CanLII)

In an Ontario Court of Appeal decision we read that Mr. Kuczera was a happy family man with two children, employed as an electrician, until his marriage ended in 2007, leading to an acrimonious divorce that included allegations that he was an abusive spouse.

As is typical in high conflict divorces, he had no access to his property and when his legal fees overwhelmed his financial resources he took to using credit cards and borrowed $16,000 from his brother. The loan was to be paid back in 2009 failing which a property owned by Mr. Kuczera in Poland would be forfeited to his brother.

By May 2009 bankruptcy was inevitable and he retained a bankruptcy trustee, made the required monthly payments and was discharged from bankruptcy in October 2010.

Meanwhile the family law litigation continued unabated and his discharge was revoked when the bankruptcy trustee alleged that he had not disclosed the Poland property. He then made a consumer proposal to escape the bankruptcy proceedings which required him to pay $66,0000 over 5 years.

By this time his mental health sadly deteriorated with the combination of soul-destroying family litigation and the exhausting bankruptcy proceedings. His psychiatrist diagnosed him as clinically depressed and suffering from “Dissociative Identity Disorder”.

In January 2012 the family home issue was finally resolved and he received $72,000, but when asked where the money went he had little to say, except that his teenage daughter, who lived with him, was a drug addict, and that he purchased expensive Chinese medicines for his ill son. He said that he always carried cash and that quite likely the children had helped themselves as well. His mental and emotional state left him unable to cope.

The bankruptcy registrar refused to grant an immediate discharge to Mr. Kuczera, delaying it by six months and ordering that he pay the sum of $61,000, writing:

“I appreciate that the bankrupt will find an order of payment of this magnitude difficult in light of the circumstances present at the date of the hearing. However, it is my view that this situation could have been avoided had the bankrupt acted reasonably with his creditors. He clearly did not wish to pay his creditors under the proposal when he received significant funds in 2012. His current situation is his own doing.”

Mr. Kuczera’s appeal from the registrar was dismissed with the court refusing to admit updated psychiatric reports. But then the case came to the Ontario Court of Appeal, who took an entirely different view of his situation.

To begin, the highest court admitted the psychiatric report and affirmed that even though it was only filed after the registrar’s initial hearing and that it came from the bankrupt’s personal therapist, it met the legal test for admission, contrary to the registrar and first appeal court’s views.

While the missing funds were problematic, the Ontario Court of Appeal accepted that Mr. Kuczera’s mental condition affected both his “thinking and his actions”. The Court also found there was no evidence that he had benefitted personally from the sale proceeds. The finding that he had not disclosed the property in Poland was found to be erroneous. The Court said:

“The condition imposed by the Registrar that the appellant pay $61,000 as a condition of his discharge, given his personal history, was more than just “difficult” for the appellant. It was crushing.It does not reflect the rehabilitative objective of the”…(bankruptcy legislation).

While not all family litigants suffer from the dire consequences recounted here, there can be no doubt that family litigation, particularly in high conflict cases and proceedings that carry on for many years after the initial separation, are the cause of mental and physical impairment, financial devastation, and even suicide.

There is a better way and that is to move family law cases out of the courtroom and into Family Law Centres with dedicated judges, lawyers, counsellors, financial experts and other professionals, with a focus on negotiation, mediation and arbitration. Will any government dedicate the funds to try this better way? Don’t hold your breath!

Lawdiva aka Georgialee Lang

“Extreme” Family Law Litigation Decried by the Court

GeorgiaLeeLang025Despite family law Rules of Court that call for the “just, speedy, and inexpensive determination of a family law case on its merits”, there always seem to be those cases that take on the qualities of “scorched earth” litigation. Oliverio v. Oliverio 2017 BCSC 1704 appears to be one of those cases.

The application heard by Master Muir sought orders imputing income, determining the quantum of child and spousal support, and the sale of the family home. Other orders sought in the Notice of Application had been resolved or adjourned by the parties. Nonetheless, the application took more than a day-and-a-half of court time over three separate dates.

What was equally remarkable was the two boxes of materials presented to the court containing 160 affidavits, with 26 affidavits filed by the respondent wife and 15 filed by the claimant husband in respect of the orders sought. Master Muir described this mountain of material as evidence of “an unhealthy and abusive litigation climate”.

The preparation of 160 affidavits is almost too much to contemplate and the cost enormous.

She said:

“This approach to family issues is counter to the fundamental basis of our present family system which encourages negotiation, not litigation. This is not supposed to be a war. It is supposed to be a civilized allocation of rights, responsibilities, and assets following a family break-up.”

Master Muir declared that this style of litigation was unnecessary, damaging to the parties and their children, and a waste of family assets on litigation costs. She noted that the parties had accessed capital in the amount of almost $700,000, much of which was used to fund their legal expenses, albeit their trial was still eight months away.

As both husband and wife were not employed, although capable of employment, the court imputed $95,000 of income to the husband and $25,000 to the wife, and ordered child support with a set-off to account for their equal parenting arrangement. The wife also received spousal support at the mid-range. The application for the sale of the home was dismissed.

Finally, Master Muir implored counsel to speak to their clients. She said:

“I ask that counsel convey those sentiments to their clients in the hope that this can be reined in and the parties can refocus on resolving this in some other way.”

As a mediator and arbitrator, I know this case could be resolved within 60 days, if not less, using a mediation/arbitration model, where a legal professional mediates the disputed issues, with those unresolved being decided by that legal professional. And probably at a cost of less than $20,000…just sayin’

Lawdiva aka Georgialee Lang

$1,000 an Hour Lawyer Disbarred for Appealing an Arbitration Award

BarristerRobert Bennett was a high-flying attorney in Texas with a big reputation as a go-to litigator. He included among his clients uber-wealthy financier R. Allen Stanford, sentenced to 110 years in prison for a $7 billion dollar Ponzi scheme arising from the fictional Stanford International Bank in Antigua and wrongfully convicted death row inmate Anthony Graves, exonerated in the murders of six people and released from prison.

But the case that has ended his career relates to client Gary Land who retained Mr. Bennett in 2011 to handle a breach of contract case and a potential civil rights violation action. The latter case had been turned down by other lawyers as it involved an improbable allegation that Mr. Land was being secretly surveilled by unnamed persons, possibly federal agents.

Bennett asked for and received a $50,000 retainer. Bennett was instructed by his client to forward his bills for legal services to him by email as he would be engaged in extensive travel. Bennett’s first bill arrived by email but the rest were mailed to Mr. Land’s parents’ home. When Mr. Land finally received the posted bills he learned that Mr. Bennett had already billed for $75,000 worth of legal services. Land fired Mr. Bennett and challenged the legal fees.

When Mr. Bennett agreed to act for Mr. Land he asked him to sign an agreement that any fee dispute would be subject to binding arbitration by the Houston Bar Association Fee Dispute Committee. Mr. Land had agreed and an arbitration was scheduled.

Mr. Land’s position that he had been charged excessive fees for very limited legal services was upheld by the arbitrators whose award included a provision that Mr. Bennett would not receive the outstanding amount of $25,000 and that $27,500 in legal fees would be reimbursed to Mr. Land by Mr. Bennett. The award was binding, conclusive and not appealable in accordance with the agreement between Mr. Bennett and his client.

Rather than paying the award, Mr. Bennett filed an application to the Committee for a Modification and Clarification of the award. His application was denied. Mr. Land then applied to the district court who turned the award into a court order. Bennett still refused to pay and appealed the court’s order.

That’s when the Texas State Bar commenced disciplinary proceedings against Mr. Bennett seeking a two-year suspension from the practice of law.

In a rare three-day hearing in district court Judge Carmen Kelsey upheld the Bar Association’s findings of professional misconduct based on Mr. Bennett’s failure to pay the arbitration award and his pursuit of several appeals that were barred by agreement between the parties. However, Judge Kelsey ignored the Bar Association’s submission that Bennett be suspended. She ordered him disbarred. In Texas a lawyer who has been disbarred cannot apply for reinstatement until five years have passed.

But this case is not over. Last week Mr. Bennett’s appeal from the order of the district court was argued before three judges of the Court of Appeal. Most impressive were the one thousand amicus briefs filed by local lawyers in order to show solidarity with Mr. Bennett’s position that disbarment is out of proportion to the alleged offences.

I still can’t figure out why such a notable and successful lawyer would refuse to reimburse his client a mere $27,500, only to engage in protracted, expensive, high-profile disciplinary and court proceedings?

The appeal is under reserve.

Lawdiva aka Georgialee Lang

And Now the End is Near- 2014 Highlights

BarristerFor me, 2014 was fulfilling, both personally and professionally. On the work side, I arbitrated some interesting family law cases, handled several Hague Convention child abduction cases: one that saw the successful reunion of father and child after an abduction from Portugal to Canada, and the other an appeal from an order that a child be returned to Montana.

Personally, I found time to workout with my incredible trainer, Janice; enjoy neighbourhood cook-outs and pool parties; sing in my choir; brainstorm ideas for a book on women in leadership, and enjoy the beauty of California and B.C’s Okanagan.

Meanwhile my contribution to the blogosphere continued throughout the year, with the following highlights:

1. Shared parenting: MP Maurice Vellacott’s bill on shared parenting crashed and burned when the Liberals and most of the Conservatives voted against it in the earliest stages of second reading.

Despite it being a part of Harper’s election platform, only a few brave backbenchers supported the bill. In retrospect it is likely that the focus on a strict equality of parenting time, instead of an emphasis on shared parenting that could see one parent with less than 50% depending on the work and school schedules of parents and child(ren), led to its early demise.

2. New Prostitution Law: On December 6, 2014 the Conservative government brought into effect their new law, based on the Nordic model adopted in Sweden, Norway, Iceland and other European countries.

After the Supreme Court of Canada struck down Canada’s previous law in 2013, which did not criminalize prostitution, but made it illegal to solicit for prostitution, operate a common bawdy house, or live off the avails of prostitution, Justice Minister McKay’s new bill was reviled in many quarters.

The new law criminalizes prostitution for the purchaser of sexual services, while women, girls, and boys who sell sex are no longer subject to legal sanctions. They are treated as exploited victims, with the goal of helping them escape the sordid life of prostitution with its inherent danger.

3. Conscious Uncoupling: Amid mockery and snide remarks, Gwyneth Paltrow introduced “conscious uncoupling” to the world of divorce, as a softer and gentler way to separate and divorce. The details of this model remain elusive but months after its debut, it has found little favour in the real world.

4. Trinity Law School: Conflict and consternation abound when Trinity Western University’s governmental approval to open a Christian law school was announced. British Columbia lawyers railed against the governors/benchers of the Law Society who voted 21 to 6 to permit Trinity law graduates to article in B.C.

The majority of B.C. lawyers who voted at a special meeting, denounced the governors’ decision to permit Trinity students to article in B.C., alleging that Trinity’s community covenant that only permits sexual relations between married, opposite sex couples amounted to sexual discrimination and a breach of human rights.

The Law Society eventually capitulated and adopted the views of Trinity’s critics. The matter is now before the Court in B.C. and in other courts across Canada where the same position prevailed.

5. Madam Justice Lori Douglas: After several years of missteps, rancour, judicial resignations, and the interference of the Federal Court, Judge Douglas finally put an end to the Canadian Judicial Council’s inquiry into the collection of nude photographs of her placed on the internet by her husband, the late Jack King, a well-regarded family law lawyer in Winnipeg, by announcing her resignation from the bench.

The entire exercise highlighted the flaws of Canada’s system of judicial discipline and Judge Douglas’ resignation was welcome relief from the embarrassing sideshow the inquiry had become.

Here’s looking to 2015 with great anticipation for a new year full of juridical intrigue, legal entanglements, and matrimonial mishaps.

Happy New Year!

Lawdiva aka Georgialee Lang

Donald Trump “Trumps” Beauty Queen in Lawsuit

GEO#1Miss Pennsylvania may be beautiful on the outside, but her anger after failing to win the title of Miss U.S.A. in 2012 showed that her beauty was only skin-deep.

Sheena Monnin, from Cranberry Township in Pennsylvania, competed seven times before winning her state title and the opportunity to compete in Donald Trump’s Miss USA pageant.

But apparently it was not what she expected. According to Ms. Monnin, during the pageant another contestant advised her that she had seen a written list of the top five winners before the judges made their announcement the following day.

Relying on this information, Miss Pennsylvania publicly accused Mr. Trump of rigging the competition as she renounced her state title, declaring that the contest was “fraudulent, lacking in morals, inconsistent and in many ways trashy.”

Unfortunately for Ms. Monnin, the other contestant denied the statement attributed to her and Mr. Trump sued for defamation.

An arbitrator found in favour of Trump in December 2012 and awarded him the sum of $5 million dollars. Ms. Monnin appealed and yesterday the Court dismissed Ms. Monnin’s appeal and confirmed that she was on the hook for the payment awarded by the arbitrator.

It was revealed during the arbitration proceedings that Ms. Monnin was also unhappy about Donald Trump’s decision to allow a transgendered competitor in the race for Miss Universe, namely, Canada’s Jenna Talackova.

Mr. Trump’s lawyer advised the media that he intends to take every step required to collect the money from the disappointed beauty queen, while she has stated that the payment will financially devastate her.

Despite her loss Ms. Monnin said:

“I was hopeful for a different outcome, but I am pleased that the true nature of the Miss USA judging procedure has been exposed by the testimony of the Miss Universe Organization (MUO) and Ernst & Young during the arbitration proceedings—testimony that reveals that the MUO does select the top 15 contestants irrespective of the preliminary judges’ scores”.

The moral of the story? Be very careful what you say, particularly if your target is a billionaire with a huge ego.

Lawdiva aka Georgialee Lang

Guest Post: How to Find Your Perfect Divorce Lawyer

Let’s face it, most of us who commit ourselves into the bond of marriage are reluctant to think about it one day crumbling into a messy divorce, but the truth is, with today’s increasing divorce numbers, the reality is downright dismal ( in the US around 50% of all first marriages end in divorce, about 67% for second marriages and the numbers quickly rise with the number of additional marriages).

So what does this mean in terms of finding an attorney if you are among that fifty percent wanting to dissolve you marriage? Plenty!

Here are a few tips to heed if you find yourself needing someone to help you wade through the murky and unfamiliar waters of divorce.

• Before you file: Really consider the ramifications of filing for divorce. Have you exhausted every avenue before taking the steps for your divorce? Counseling and separation can be important steps to take before you make the final move.

Be very careful about moving about before the divorce, this could potentially be used against you, especially in the case of determining custody for minor children. Run a credit check for yourself, if possible get your finances in the best shape that you can. Divorce is extremely expensive and no matter the verdict, both parties will lose when it comes to finances.

Are you the non-breadwinner? You will need to take care of your personal finances as well as your healthcare, housing, cars and personal effects. A good attorney will inform you of what you should do long before you sign anything. Above all, if you can avoid divorce, then do so. Except in the cases of abuse or criminal behaviors on the part of your spouse, you should give your marriage every effort. Divorce should always be a last resort.

• Arbitration and Mediation versus litigation: The dissolution of a marriage cannot be on the same footing as breaking a business contract, though similar as seen through the eyes of the law, no one can put a price on the cost of someone’s betrayal or the lives of children of divorced parents who will forever grieve the loss of a family unit.

But there are ways to lessen the emotional trauma often association with divorce. If at all possible going through mediation services versus outright litigation will help not only with the overall costs, but will help families make choices over issues that can become quickly contentious if presided over by a non-family member or law enforcement.

Talk with your attorney; chances are if they have experience with family law and especially mediation expertise, this would make a better fit than someone hell-bent on taking on your spouse for every nickel and dime. Consider arbitration as an alternative to a lengthy, drawn-out court battle.

• Your attorney’s personal history: Find out about your attorney. Are they married? Or have they also been through a divorce, child custody battles with their own children or were they able to use their legal acumen to help minimize the trauma inflicted on all parties involved.

Sit down and talk with them about your personal feelings in regards to your spouse’s role, your custody concerns and your future. Do they really seem to be listening, adding thoughtful comments to your concerns or do you feel even more ambivalent after you leave their office?

Other than the death of a family member, going through a divorce is right there when it comes to life-altering experiences and more than ever, you will need someone who you feel confident in, someone who will stand up and defend you and fight for all rights.

A good family law lawyer will explain your rights and what you can expect with a divorce, they will not try to sugarcoat the truth about how difficult the situations will be, they will in all likelihood try to talk you out of a divorce, but if you are both in agreement about pursuing a divorce, they will be with you every step of the way.

GUEST AUTHOR NOAH KOVACS has over ten years experience in the legal field. He has since retired early and enjoys blogging about small business law, at Noah Kovacs and everything in between. He recently purchased his first cabin and spends his free time remodeling its kitchen for his family. Twitter: @NoahKovacs.

The Time Has Come: Family Law Arbitration in BC (Part 2)

Why would a couple choose arbitration over litigation? The advantages of family law arbitration include:

1. Privacy

This is considered one of the major advantages of arbitration over litigation. While the contents of a family law file cannot be accessed by the general public, if your case ends up in court, the Reasons for Judgment in your case will be available on the internet for all to see. If you google “BC Superior Courts” you too can read all about your neighbour’s and friend’s divorces, the good, the bad and unfortunately, the ugly.

2. Efficiency and Convenience

Frequently forgotten by lawyers and court officials is the amount of time it takes for a litigant to prepare for a court hearing and the attendant court hearing hours. Many clients have complained that their divorce litigation takes up more of their time than their 9 to 5 job. As well, most people work for a living and courts are only available in the daytime. Arbitration provided parties with more flexible hours, including evenings and weekends.

3. Less Intimidating Environment

While lawyers are comfortable in a courtroom setting, the courthouse is an intimidating place for most people. Arbitration can be conducted in a less formal setting. Professor George Walker in his review of North Carolina’s family law arbitration process, which is heralded as one of the best in North America, remarked that an arbitration could even be held at a “North Carolina resort, if the parties are willing to bear the cost.”

4. More Geographically Convenient

Many people live some distance from a courthouse and even those who live in close proximity to court facilities must deal with downtown traffic and expensive parking. With arbitration, annoyances like this can be avoided.

5. Less Cost

Cost is a primary concern in family law matters. A significant cost factor in favour of arbitration is the elimination of “waiting time”. In situations where a court case may be scheduled for one or two hours, the rule is that the lawyers are heard by the court in accordance with their time estimates. What that means is that a 15 minute hearing goes first, then the half hour hearings are heard, and finally, hours later, a case set for 1 hour will be heard. That means that your lawyer will be siting around the court house waiting to present his or her case. The hours tick away at your lawyer’s hourly billing rate. Very unproductive and very expensive.

Another frustration of the court system is a scheduled trial that cannot proceed because of a shortage of judges. The expense of preparing for trial is a substantial part of the expense of litigation. Where a trial is adjourned for lack of a judge or a courtroom, the litigant’s costs are doubled when trial preparation must be begin again for the second trial.

6. Less Delay

The wheels of justice grind slowly and nowhere is that resented more than in family law cases. Decisions about money or children are crucial in a litigant’s life. After waiting months or even a year for a hearing date in court, to be compelled to wait up to six months for the judge’s decision to be released, is another one of the frailties of the court system.

In arbitration, results are usually available within 30 days.

As you can see there are many good reasons to stay out of a courtroom and resolve matters privately.
The next segment of this series will review the rules and procedures for family law arbitrators.

Lawdiva aka Georgialee Lang


Family Law Not For The Faint of Heart

The practice of family law is not for the faint of heart. The simplicity that existed twenty years ago has truly passed.

It is no longer enough to rely on stale, outdated legal maxims. Gone are the days of custody to mom; $300.00 per month in child support; spousal support for stay-at-home moms to terminate in three years; and all the other quaint practices that have been eclipsed by complex business arrangements, complicated tax issues, divergent parenting arrangements and intricate support concepts.

It is my thesis that family law lawyers of the 21st century must face a future that has already arrived, arm themselves with new, bold principles and eschew the unsophisticated strategies of the past. Thinkers, great and small have mused about the future in terms that are pertinent to today’s family law lawyers:

“The future is here. It’s just not widely distributed.” William Gibson, author
“The future belongs to those who prepare for it today.” Malcolm X
“The future depends upon what we do in the present”. Mahatma Gandhi
“The future ain’t what it used to be”. Yogi Berra
“The future is much like the present, only longer”. Dan Quisenberry, Pro Athlete

In a world of IPads, IPods, blackberries and other sophisticated devices, the pace expected of family law lawyers has also accelerated which, in turn, has heightened the pressure for lawyers and clients alike.

All of this is occurring while the family justice system is collapsing under the weight of it all. Experts all over the world agree that the solution is mediation and arbitration, leaving the court system only for the very wealthy, who can afford it.

Lawdiva aka Georgialee Lang

The Time Has Come: Family Law Arbitration in B.C. (Part 1)

Is there anybody who believes that our current system of family law is working? Just ask any family law lawyer. There are never any winners when husbands, wives, partners, or lovers take their grievances to a Court to be adjudicated. Never. Not even when a litigant wins and is awarded costs.

Canada’s judiciary, law reformers and legislators apparently agree. Madam Justice Mary-Anne Betton of Ontario’s Supreme Court remarked that the Canadian system of family law “at best does not work and at worst, is highly destructive to families.”

Recently, Mr. Justice Quinn in Bruni v. Bruni began his Reasons for Judgment with a feigned cry for help: “Paging Dr. Freud, paging Dr. Freud”, a provocative introduction to a bizarre family law case that was ill-suited for court intervention. Quinn J. in his ruling referred to “the roulette of family law”.

The Law Commission of Ontario released an interim report in September 2010 entitled “Voices From a Broken Family Justice System” where they reported that longer trials and rising court costs and legal fees were crippling a system which had no ability to deal with the intense emotion of family law cases.

British Columbia is no different. With government budget cutbacks, there are too few Supreme Court judges, too many court cases and a need for additional court staff. It all adds up to a most unsatisfactory model of family law justice. And I understand the Provincial Court family law system may be worse.

Mediation, both private and court-based, is presently thriving as an alternative to litigation. Others are using a collaborative law model where each party agrees to use their best efforts to settle, with the assistance of counsel and other experts, and agrees not to go to court. The penalty for court proceedings is the requirement that the parties engage new counsel who must start at the beginning.

What’s gone wrong? It’s very simple. The best case scenario in court is still accompanied by indecent delays, staggering legal and accounting fees, uneven judicial expertise, and an unwillingness on the part of some judges to preside over family law hearings, intense emotional distress, and a lack of privacy.

It can also be worse. A judge may refer to a litigant as a “gold digger”, a “liar”, a “thief”, or an “abuser”. All of these expressions can show up online in Reasons for Judgment, although perhaps couched in more polite language, but not always.

Friends, business associates and other colleagues are now privy to the details of your client’s financial circumstances, inability to control Junior, and even the details of the once secret sexual dysfunction. It’s not a pretty picture.

What has been ignored in British Columbia until recently is family law arbitration. However, B.C.’s new Family Law Act, expected to be in full force within twelve months, heralds a new day for family law litigants.

Why is arbitration better than litigation? Part 2 of this post will tell you why.

Lawdiva aka Georgialee Lang