“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

Has a B.C. Father Been Labelled a Sexual Predator Based on Fraudulent Expert Evidence?

GeorgiaLeeLang025In a groundbreaking decision last summer after a 147 day trial, Mr. Justice Paul Walker of the British Columbia Supreme Court found that B.C.’s child protection authorities had negligently permitted a father to sexually abuse his child while the youngster was in the custody of the Ministry. The Court found that the government’s failure to protect this child was “egregious, negligent, and a breach of duty” and government social workers showed a “reckless disregard to their obligation to protect children.”

The evidence before Mr. Justice Walker included expert evidence from Dr. Claire Reeves who had been an expert witness at the 90 day family law trial that preceded the action against the Ministry by several years. Dr. Reeves’ opinion played a significant role in the original finding that this father had sexually abused his children. The parties agreed that her expert opinion from the family law trial would be admitted in the Ministry trial.Throughout the lengthy proceedings, the father adamantly denied abusing his children.

After the family law trial Reasons were handed down, the father had 30 days to file an appeal of that decision, however, no appeal was filed. Yesterday the Court of Appeal allowed the father to appeal the original family trial decision, although three years had passed since the original ruling and the 30 day window has long passed.

Madam Justice Elizabeth Bennett in the Court of Appeal remarked that “one would be hard pressed to envision an act as vile as sexually abusing one’s own children or a travesty of justice as great as being falsely accused and found guilty of such acts”. The father’s successful application was based on new evidence that appears to establish that Dr. Reeves’ evidence was fraudulent. The credentials she touted, including a Doctorate in Clinical Counselling, Masters of Science in Clinical Psychology, Bachelor of Science in Family Mediation, and a Bachelor of Arts in Journalism, are from so-called “diploma mills”.

Her assertion that she had testified as an expert on child sexual abuse on numerous occasions in a variety of courts also appears to be untruthful. The substance of her trial opinion was based on a theory of child abuse that has long been discredited, even by the expert who originally proffered the “child sexual abuse accommodation syndrome”.

Dr. Reeves has not responded to the allegations outlined by the Court of Appeal, however, a Google search, where one would expect to find many entries regarding her professional work, is sparse. She is the President and Founder of Mothers Against Sexual Abuse.

CBC News reports their online research indicates that Dr. Reeves says she was instrumental in bringing in chemical castration for child molesters in California. She also has unusual views on related topics. On her Facebook page she wrote:

” Why test on animals when we have prisons full of pedophiles”.

She also believes many people have had controlling microchips implanted in their brains — and have been given trigger words that could turn them into saboteurs.

“I believe people have been chipped, targeted individuals, and more of them than we can imagine,” said Reeves, calling it, “Mind control. Because it really is mind control.”

The father’s appeal will be of great interest to those who decry the failings of the family law administration of justice. No doubt the children’s mother will seek to legitimize her reliance on Dr. Reeves as an expert. The truth will, undoubtedly be revealed.

Lawdiva aka Georgialee Lang

Rocker Randy Bachman’s Divorce Just Got More Complicated

10950859361151CDPRock legend Randy Bachman thought he was “taking care of business” when he and his wife, Denise Beck Bachman opted out of their divorce trial and agreed to settle their financial issues amicably last January. A smart move….however, sometimes in family law, one party thinks they’ve got a deal, while the other disagrees.

That’s exactly what brought the Bachman’s into Supreme Court recently.

The couple married in 1982 and became step-parents of each other’s children from previous marriages. Randy had six children with his first wife, while Denise had one son. Together they brought their own child into the world and remained a couple until their separation in 2011.

Their alleged settlement provided Denise with 27.5% of his annual song royalties of $1.4 million a year, amounting to approximately $32,000 a month in spousal support. As part of Denise’s financial package she was to acquire one-half of a residence in London, England upon Randy’s death.

However, she later learned that the property had been transferred to a trust and she claimed the beneficiaries were Randy’s six children and not her.

Meanwhile, while Mr. Bachman argued that a full agreement had been reached, he did not pay Denise her $32,000 monthly support but instead had paid her $3,000 a month.

Denise advised Chief Justice Hinkson that no final agreement had been reached because her husband had not agreed to provide “security” for the payments she was to receive. Security can be in many forms including the granting of a mortgage, a sum of money held in trust, or a letter of credit.

The purpose of security is that if the payor refuses or cannot pay the sums owed, the security can be used to make the required payments.

Denise’s argument prevailed. The judge ordered that if security was an integral part of the agreement and it had not been agreed by the parties, then the agreement was not complete. CJ Hinkson also said it was not the Court’s responsibility to fill in the details of an otherwise incomplete agreement. The judge also ordered Mr. Bachman to pay his wife $32,000 a month pending a final settlement or judgment.

So, the Bachman’s are back where they started. They can either negotiate a new settlement of the financial issues or book a trial and have a judge decide the issues. Or if they were really smart they would hire a family law arbitrator to resolve all matters and thus avoid the cost, delay, and publicity of a trial.

The public unravelling of a rock and roll marriage would undoubtedly generate a media frenzy!

Lawdiva aka Georgialee Lang

Eighteen Month Delay in Custody Decision Illustrates Glaring Problem

GEO_edited-1Just yesterday I was speaking to a group of lawyers about family law arbitration. One of the points I made was that arbitration has several advantages over court proceedings because private family law arbitrators, be they retired judges or senior family law lawyers, can be available on short notice, and most will guarantee their written reasons or “award” within 30 days after the arbitration hearing completes.

What better illustration of my recent complaints about the length of time it takes to receive written Reasons from our trial courts then the case of Madden v. Dahl 2013 BCCA 373.

Mr. Madden and Ms. Dahl lived with their two children, ages 5 and 3, in northern British Columbia. Their relationship broke down and Ms. Dahl, without notice to her partner, moved herself and the children to her parent’s home in the Okanagan, a 14-hour drive from the family home.

Mr. Madden commenced a court application for custody of the two children and the parties had a six-day trial in the Provincial Court-Family Division in March of 2011. Three months prior to the trial the parties had agreed on a two-week on/two-week off parenting schedule, which seemed to work as the children were not yet school-age.

Five months passed without a decision from the court so Mr. Madden, in contemplation of his 5-year old starting kindergarten, brought an application to the trial judge for an order of primary residence. The judge refused to hear him.

Mr. Madden took his 5-year-old to kindergarten during his two-week parenting time and during the two weeks she was with her mother she was “home schooled”.

Another year passed and still no decision from the trial judge, so the parties’ lawyers wrote a letter to the court asking for an “expedited” decision, as grade one was now beckoning. This is where I began to snicker and ponder whether counsel actually suggested that the long-awaited decision could be rationally characterized as “expedited”, albeit the situation for these parents and children in the face of apparent judicial apathy, is no laughing matter.

On September 4, 2012 the trial judge ordered that the children spend the school year with their father in year one and in year two, spend it with their mother, sharing school vacations equally, and exchanging the children on additional days, a result that would see the children miss about thirty days of school each year. The judge’s decision was bare-bones as the Reasons supporting the decision were not released until three months later.

It apparently did not occur to the judge to inquire as to the intervening circumstances, or to request updated information from the parties with respect to their children, so the court was not aware that the concept of two homes, 14 hours apart, was having disastrous effects on them.

Mr. Madden wisely appealed the trial judge’s decision to the British Columbia Supreme Court and not surprisingly, found a judge who agreed the order could not stand. The appeal judge ordered that the children reside primarily with their father in the former family home, finding that his circumstances provided the best situation for the children.

Ms. Dahl appealed the order of the Supreme Court judge to the British Columbia Court of Appeal where three additional judges also agreed that the children’s best interests favoured the father’s residence as their primary home.

It is shocking to think that a family would have to wait 18-months to get a judgment from a Provincial Court on a custody matter. It is even worse to see the apparent lack of concern about the delay, resulting in a decision that was flagrantly flawed and led to two appeals.

And one wonders why the public are disenchanted with the family justice system?

Lawdiva aka Georgialee Lang

Judicial “Copying” Longstanding and Acceptable Says Highest Court

GEO CASUALTwo years ago the British Columbia Supreme Court heard a case about a young boy who had severe brain damage and cerebral palsy as a result of difficulties during his birth. His mother sought damages on his behalf and was awarded several million dollars. His doctors and the hospital, who were found to be at fault, appealed the decision.

As is usual, a three-member panel of British Columbia’s Court of Appeal listened to their arguments and handed down their Reasons. What turned this case from a tragedy for this family to a case worthy of the attention of the Supreme Court of Canada was that two of the appeal judges excoriated the trial judge, accusing him of plagiarism by including lengthy excerpts from one of the lawyers’ written closing arguments in his Reasons for Judgment.

As a result of their findings, they set aside the young boy’s damage award and ordered a new trial, a devastating result for a family who had already suffered so much.

Many in the legal profession were shocked that this usually scholarly, genteel group of jurists would publicly impugn a sitting judge, for indulging in a practice that was frankly, commonplace. In fact, as far back as British jurist Lord Blackstone, lawyers hoped their written closing submissions would find a place in the Court’s Reasons and ultimately, dictate the Court’s decision.

Last week the Supreme Court of Canada ruled that Mr. Justice Groves’ so-called plagiarism was nothing of the kind and his rebuke by the appeal judges was exposed for what it was: an inappropriate attack on an exemplary judge who did nothing wrong. (Cojocaru v. BC Women’s Hospital 2013 SCC 30)

Chief Justice McLachlin noted that “judicial copying” is a longstanding and accepted practice which should only be condemned if it so egregious that it displaces the presumption that judges fufill their duties with integrity and impartiality.

She gave short-shrift to the criticism that a judges’s Reasons must be an “original” product of the judge’s mind and mused that a lack of originality is “part and parcel” of the judicial process:

“Borrowed prose, attributed or not, does not establish that a judge has failed to come to grips with the issues to be decided.”

She also affirmed that to criticize a judge for utilizing excerpts from counsel’s written submissions is to fundamentally misunderstand the Court’s task and the time-honoured tradition of decision-writing.

She noted that unlike term papers, novels, essays and newspaper articles, a judge’s Reasons reflect a body of law and legal principles that have been arrived at based on precedents, which over the years when recited in successive decisions take on a “deja-vu” quality. The verbatim repetition of legal formulas is de rigueur, representing the “tried and true” rather than the novel.

For Mr. Justice Groves the exoneration must be bittersweet, as he spent two years under the shadow of plagiarism that never was.

Lawdiva aka Georgialee Lang

Polygamy Ruling to be Released Tomorrow

Polygamy is probably not something that crosses your mind too often, but if you live in British Columbia, Utah, Arizona, Texas and a few other states in America, it is a simmering issue that has come to a boil in Canada.

Tomorrow the British Columbia Supreme Court will issue its ruling as to whether polygamy should be legalized in Canada.

Last November the British Columbia Supreme Court began proceedings intended to grapple with the law that criminalizes polygamy in Canada and has since 1890.

The case began when rumours and reports of sexual exploitation, coercion, and human trafficking in the small British Columbia community of Bountiful came to the attention of BC’s Attorney-General.

Bountiful is the home of Canada’s most high-profile fundamentalist Mormon community, a group that has links to the infamous Warren Jeffs, the leader and high priest of the Fundamentalist Church of the Latter Day Saints in the United States, who practice polygamy as part of their religion.

Jeffs has been the target of US authorities for some time and is presently serving a lengthy prison term for his role in the rape of an underage Mormon wife.

Bountiful’s leader is Winston Blackmore who is said to have 25 wives and 101 children. Blackmore married five of his wives when they were still children and it is this conduct that has attracted the attention of the BC government and feminist organizations across Canada.

Those in favour of maintaining polygamy as a criminal offence argue the law is vital to protect society’s vulnerable, in this case women and children.

Others say that Canadians don’t want a society that encourages multiple marriages with the social ills that follow. The family law issues alone are mind-boggling.

Those who support striking down the law say that it violates freedom of religion and freedom of association, both protected under Canada’s Charter of Rights and Freedoms.

The Canadian Polyamory Advocacy Association, a group whose members are involved in intimate relationships consisting of three or more consenting adults, line up with those who say the law must go. They take the position they ought to be free to love and live with whoever they choose and the law against polygamy has no place in their bedrooms.

The legal and moral issues arising from polygamy are sensitive and complex. The Court heard testimony from dozens of witnesses who will be directly affected by the outcome of the court proceedings.

What everyone agrees upon is that this case will undoubtedly end up in the Supreme Court of Canada.

My prediction? The law against polygamy will stand and the criminal activities arising from the practice will be vigorously prosecuted, while the activities of consenting adults will remain unfettered.

Lawdiva aka Georgialee Lang