Hard-Luck Case Leads to Cancellation of Child Support Arrears

DSC01152_2 (2)_2There’s a saying “If it wasn’t for bad luck, I’d have no luck at all”, a sentiment that the litigants in K.S. v. M.B. 2017 BCSC 2390 should heartily embrace.

The parties lived together for 9 years and had a daughter born in 1986. They separated two years later with mother having custody of their child and father paying regular child support. In 2004 a court found their daughter was no longer eligible for child support as she was living independently and working in the sex trade.

In 2010 another judge of the court heard evidence from the parties and made an order that the father owed arrears of child support of $18,543 for the period between May of 1991 and April of 2003. However, the order was not entered until January 2017 and the mother made no efforts to collect the child support monies she was owed.

Tragically in 2014 their daughter, who had been living in California, was found murdered in New Orleans.

The father, who graduated from high school in 1976, began working as a long-haul truck driver, however, in 1990 he fell off the truck roof, a fall that damaged rods in his back placed there in 1974 to treat his scoliosis. He was in a full body cast for a year as a result.

The nineties were not good times for the father. Between 1992 and 1995 he was involved in criminal law proceedings and was convicted for criminal negligence causing death, He served one year of a three-year sentence. Trying to work his way back to productivity he obtained a diploma in computer networking and telecommunications and found work as a computer technician, until his employer went bankrupt.

He went back to truck driving but injured himself on the job and broke three ribs, an injury that compromised his already damaged spine. While recovering he was diagnosed with two different types of cancer and was on chemotherapy from 2013 to 2016. He welcomed the remission, but was unable to be gainfully employed as he could not stand for long periods of time and even walking was difficult. He was also diagnosed with rheumatoid arthritis in his lower back and hands.

The issue before the court was whether is would be “grossly unfair” to cancel the arrears of child support arising from the 2010 order. At the time of the hearing he was 59 years old and surviving on a pension of $1,600 per month, which would terminate at age 65.

On the other side, the recipient parent was also living on a disability pension which was to end in November 2017, following which she would have only her Canada Pension Plan and Old Age Security benefits. She had also suffered from bad health and in 2010 had taken legal custody of their daughter’s child. She advised the court that she needed the arrears to support herself and her grandchild.

The court reviewed the legal principles relevant to an application to cancel arrears, noting the following:

1. Arrears will only be cancelled if the person has no present and no future ability to pay;
2. Delay in enforcing an order for arrears is generally not a legal basis to cancel or reduce child support;
3. Arrears will not be cancelled because the children were “taken care of” financially by others;
4. Arrears payments of a large sum will not be considered a windfall to the recipient parent.

The court commented that the death of a child does not automatically cancel arrears of support, however, it is a factor the court may consider to determine if it would be “grossly unfair” not to do. The court also promptly dismissed the mother’s argument that she required the child support arrears to support her grandchild, a submission that very likely hurt the mother’s case.

Taking into account all of the circumstances, Mr. Justice Ball ordered that all arrears, interest and penalties be cancelled and that each party pay their own costs.

Another sad family law case where poverty plays a central role.

Lawdiva aka Georgialee Lang

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The Difficulty of Ridding Your Case of a “Seized” Judge.

GeorgiaLeeLang100It is not unusual, especially in family law cases, to have a judge conclude a hearing with the phrase “I will seize myself of this case”. What that means is that the judge has decided that it is reasonable, necessary, or simply prudent for him or her to hear all future court applications regarding the case.

Often this is good news to the parties and their lawyers, but other times it is a fate that is not welcomed.

Madam Justice Martinson in AA v. SNA 2009 BCSC 387 explained the rationale behind a judge seizing herself of a case:

“[77] It is imperative in high conflict family cases generally, and certainly in cases involving allegations of alienation like this one, that one member of the Court take charge of the case. Having a single judge hear cases is required by s. 14 of the Supreme Court Act:

(1) All proceedings in the court and all business arising from those proceedings, if practicable and convenient, must be heard, determined and disposed of before a single judge.

(2) All proceedings subsequent to the hearing or trial including the final order, except as otherwise provided, and on a rehearing must, if practicable and convenient, be before the judge before whom the trial or hearing took place.

[78] The reasons for doing so for all cases are obvious. The judge will be familiar with the case so the litigants do not have to explain the situation over and over again. It avoids “judge shopping” to try to get a better result. It prevents inconsistent approaches. It saves legal and other costs. There will be times in dealing with some cases when it is not convenient or practical to do so.”

In cases like the latter, judges often seize themselves with the proviso that if the matter is urgent and they are not readily available, then another judge can hear the case.

But often one party, usually the party who consistently “loses”, alleges bias and seeks to rid the case of the seized judge. Recently, the British Columbia Court of Appeal in NRG v. GRG 2017 BCCA 407 weighed in on this topic saying:

“There is much wisdom in Madam Justice Martinson’s observation that a family unit may benefit from a judge seizing him or herself of a case. That does not mean, however, that the seized judge should remain seized to the last application filed. The very fact the judge is seized of the case increases the opportunity to develop an impermissible point of view about the case or the parties, and emphasizes the vital requirement of assiduous objectivity. All trial judges will know there may come a time in the conduct of a case when the judge says, “I have done my best and should pass this to fresh eyes.” In our respectful view, this may be such a time.”

The Appeal Court noted that while the appellant sought an order from the appellate panel reversing the Supreme Court judge’s “seizure” proclamation, the Court observed they lacked jurisdiction to overturn the seizure, not wishing to interfere with the lower court’s process, and also did not characterize it as an order of the court. They suggested that a litigant must appear before the seized judge or the Chief Justice of the Supreme Court to obtain such a direction.

Frequently, a complaint against a judge who has seized himself is accompanied by an application requesting a judge to remove himself from a case based on a reasonable apprehension of bias, another application that must go before the judge in question and is most commonly dismissed.

I remember a case many years ago where I drew what I believed to be an “unfavourable” judge and convinced opposing counsel to adjourn the case so that settlement discussions could ensue. When we advised the court we were adjourning by consent, the clever judge declared that he would be seized of the case, despite hearing no evidence at all. It was clear he figured out that the adjournment was an escape from his courtroom…and he was right!

Lawdiva aka Georgialee Lang

Judge Comments that Family Litigants are “Blowing Their Brains Out Fighting”

BarristerIn yet another British Columbia Supreme Court case, a wise judge points out the folly of the battle between litigating spouses and the accompanying expense, both financially and emotionally.

In Danroth v. Whiting 2017 BCSC 1814 Mr. Justice G.C. Weatherill considered an application to defer the sale of the parties’ family home. The wife had previously obtained an order for the sale of the home with the condition that the husband, who now lived in the home, had a one month reprieve before it would be listed for sale, in order to allow him time to raise the funds required to purchase his wife’s interest.

The 71-year-old husband wished to remain in the home he had lived in for years but had not been able to borrow sufficient funds to buy his wife’s interest. The home was valued at $3.5 million and had a mortgage of $1.2 million, leaving equity of $2.3 million. He needed to pay his wife $1.15 million, but he was only able to borrow $2.2 million, which was insufficient to pay out the mortgage and pay his wife. He was also waiting for an appeal hearing as he had previously appealed the order that the house be sold.

Meanwhile, it appeared the family squabble was to become more complicated as at least one of the parties’ children was contemplating filing a lien, called a caveat, against the title of the property prior to the property’s listing for sale, alleging that he/she had an interest in the property as well.

The judge noted that “this court sees a steady diet of these kinds of family disputes where it is all about money. The parties tend to lose track or lose sight of what really matters. However, that is for another day.”

Ultimately, the court refused to defer the sale, but before finalizing his judgment he spoke frankly to the parties’ counsel:

“……this is a tragic situation…the inevitable result will undoubtedly be that they will regret, if they don’t already, not having taken a step back and considering whether there is another, less tragic, way of resolving their dispute…this family is destined for complete ruin if they carry on as they are…this is all about money and the parties are spending it in droves….It seems to me that the parties could put their money to better use, for their retirement or for their future. The claimant is 71 years. How much more of this does he want to devote to this fight?”

Kudos to Justice Weatherill for taking the liberty that his status affords him, to try to de-escalate the family battle before it is too late. Judges hold tremendous sway over litigants that appear before them and it is heartening to see judges earnestly warn litigants of the fate that befalls them if they continue on the path they are on.

His parting words:”These comments can be taken for what they are worth. This court sees these situations far too often. I wish the parties the best of luck.”

A point of interest: Judge Weatherill is one of two judges sitting on the Supreme Court of British Columbia with the same name. The other justice is his twin brother, and yes, they are hard to tell apart.

Lawdiva aka Georgialee Lang

Liar, Liar, Pants on Fire: Perjury in Family Court

GEO#1People tell lies, so-called “white” lies, they tell half-truths, they prevaricate, fabricate, distort, and tell “whoppers”, and they can, unless they are in a court of law or a government hearing where they are “sworn to tell the truth, the whole truth and nothing but the truth.

Yet nowhere is the truth more elusive than in a family law trial and the recent case of Kneller v. Underwood 2015 BCSC 1410 is a prime example of perjury under oath.

The issue was whether or not 36-year-old Twyla Kneller and Jim Greenwood of Cranbrook, B.C. lived together in a marriage-like relationship for nine years, as Twyla testified, or whether they simply were “friends with benefits” as he maintained.

If they were in a spousal relationship, Ms. Kneller would be entitled to share in his property in light of the 2013 law that gave common law spouses the same property rights as married spouses.

Ms. Kneller described a traditional relationship where Mr. Greenwood worked and paid the bills, while she maintained the home with its wood stove, doing the grocery shopping, cooking, baking, canning, cleaning, laundry, and gardening. The parties initially resided in a trailer on bare land and later in a renovated home on acreage, all owned by Mr. Greenwood.

Mr. Greenwood’s parents and grandparents lived on adjacent properties and Twyla became close to his mother.

Interestingly, despite his family’s obvious knowledge of their son’s living arrangements, they were not called to testify, although many other witnesses paraded through the courtroom.

During the nine-year relationship the parties separated on one occasion for three and a half months, not surprisingly, considering Ms. Kneller’s evidence that Mr. Greenwood’s physical
assaults landed her in hospital twice. She testified to regular punching, slapping, kicking, and other abuse. She said that initially Jim would apologize for this behaviour but after a while he didn’t bother. She stayed because she loved him, an oh-so-familiar sentiment in cases of domestic violence.

When it was time for Jim Greenwood to testify his evidence could not have been more different than Ms. Kneller’s.

He swore they never lived together, although she spent some nights with him. He said she lived in Cranbrook with her mother. He apparently forgot that in an earlier affidavit he said “they lived together off and on”. He testified their finances were completely separate and they each filed “single” status tax returns, a misstatement he was forced to correct when his 2010 tax return showed he claimed tax deductions in respect of his “common law spouse”.

He denied he gave her a “promise” ring and was cornered when it came to light he had added her to his medical and dental insurance as a common law spouse. He recounted a denigrating anecdote to the court where he felt it necessary to “take her home”. When it was apparent the “home” he referred to was his, and not Twyla’s Cranbrook home, he squirmed and became agitated and nervous.

When he abruptly asked Ms. Kneller to leave, he said she had almost nothing to pack, despite photographs showing a U-Haul with furniture and personal chattels piled in. He had forgotten that in an earlier affidavit he swore she took all of the furniture, although he paid for it all. He also couldn’t keep the date of their separation straight: Was it August 2013, as he first suggested, or October 2013?

Of course, who to believe was the central issue in the trial, a task that was not daunting for the trial judge. He found that Ms. Kneller was one of the “most genuine, down-to-earth, credible and engaging witnesses” he had ever encountered.

As for Jim Greenwood the court said:

“The respondent’s evidence, in particular, was disingenuous and lacking in credibility. It consisted almost entirely of vague, unsubstantiated and unsupported assertions. His evidence at trial contradicted his earlier affidavit evidence in many significant respects. The best he could muster when faced with the conflicts in his sworn evidence was to blame the drafter of the affidavits, to say he wasn’t a very good reader and to state, “that is what you get when you don’t look at the things you sign.”

The trial judge also declared that Mr. Greenwood’s blanket denial the parties ever lived together, and his testimony that he never physically abused his spouse were “devoid of truth”.

Finally, the trial judge said he didn’t believe or accept anything Jim Greenwood had to say that contradicted the evidence of his common-law spouse and her witnesses.

“In my view, the respondent would be well served by a recalibration of his moral compass.”

It’s called “perjury”, an indictable criminal offence with a possible 14-year jail term attached to it, and yet, liars are not prosecuted in Canada. Oh yes, Air India terrorist, Inderjit Singh Reyat’s acquittal in 2003 on murder charges prompted the Crown to charge him with perjury, securing a conviction and a nine-year prison term, but that is the exception, not the rule.

Not so in the United States where Roger Clemens, Barry Bonds, Martha Stewart and others faced charges, not for steroid use or securities fraud, but for lying.

Canada’s refusal to deliver consequences to parties who blatantly lie in court needs to be addressed. Mr. Greenwood was a poor liar but there are many cases where Mr. or Ms. Charming fool the court and justice does not prevail. Perjury is a serious issue, particularly in our family courts and steps must be taken to punish liars who make a mockery of their oath to tell the truth.

Lawdiva aka Georgialee Lang

Nevada Media Tells Tale of Vancouver Same-Sex Divorce Debacle

GEO CASUAL Television station KLAS Las Vegas featured a story last evening that told of a “divorce debacle” in our British Columbia Supreme Court.

Earlier this year I was retained by a woman in Nevada who, like many others, took advantage of Canada’s same-sex marriage laws. Vivian and her same-sex partner were married in Whistler, British Columbia in 2004, returning to their home state of Nevada, where both were accomplished professional women.

Along the way, Vivian’s partner adopted two children to whom Vivian played an equal mothering role during their marriage. Regrettably, their relationship broke down and Vivian quickly realized that she had no “legal” status with regards to her partner’s children, a most discomforting reality considering the equal role she had played in the children’s lives.

At the time of the separation of Vivian and her partner, same-sex marriage was not legal in Nevada and neither was there any legal provision for same-sex divorce.(Note:same-sex marriage is now legal in Nevada)

In August of 2013 the Canadian government became aware that many same-sex couples who married in Canada could not be divorced in their home countries, and so, a law was quickly passed that enabled same-sex couples to apply for a divorce in Canada in cases where both parties consented, or where a judge of the home country made an order that one of the parties was unreasonably withholding their consent.

Several months later Vivian was shocked when she received a copy of a divorce order made by a Justice of the Supreme Court of British Columbia in Vancouver. She had not been notified that a divorce proceeding had been initiated and completed in Vancouver.

The pronouncement of a divorce was significant with respect to Vivian’s chances of maintaining a parental role with the children and as well, sadly, her ex-partner was terminally ill, which had serious ramifications with respect to estate matters.

Would Vivian become a widow or was she a divorcee, with no legal rights?

It was about this time that Vivian retained me to assist her to determine how her partner was able to obtain a divorce order in Vancouver with no notice to her.

The divorce file in the Vancouver courthouse told the story. Vivian’s ex had filed the proper paperwork, which included a court order from the Las Vegas Justice Court, pronounced by Judge Melanie Andress-Tobiasson. This order declared that Vivian had unreasonably withheld her consent to a divorce. The problem was that Vivian was never informed, notified, or served with any divorce application.

Instead her ex-partner, who happened to be a lawyer in Las Vegas, appeared before Judge Andress-Tobiasson with no application, no motion, no paperwork of any kind, and obtained the order she sought. More significantly, the judge had no jurisdiction over family law cases!

Vivian contacted the Chief Justice of the Nevada Court who immediately voided the Nevada order and also ensured the order was declared void back to the time the Vancouver court made the divorce order.

Nonetheless, the divorce order is still in effect until a hearing can be set down in Vancouver to expose the unethical process and persuade the judge who made the divorce order to rescind it.

In the meantime, Vivian’s ex-partner died, and Vivian is now in court in Las Vegas battling for access to the two children, who are in the primary care of her ex’s new partner.

Judge Gloria O’Malley, presiding over the custody hearing, referred to the divorce debacle saying:

“The order was problematic in numerous respects…The Court is not comfortable with the process used to obtain the ex parte order from Justice Court…there was no due process to Vivian. She didn’t have an opportunity to be heard. She didn’t have an opportunity to present her position”.

Judge Andress-Tobiasson is being sued personally in federal court by Vivian for civil rights violations. As for “judicial immunity”, because the judge had no jurisdiction to make the order, arguably she cannot avail herself of the immunity protection.

It is also likely that judicial discipline proceedings may follow.

Vivian believes that “a huge favour was called in. It’s classic cronyism, corruption, and a back-room deal”. I agree with her, and thought this kind of justice only occurred in countries like Russia and Zimbabwe!

Lawdiva aka Georgialee Lang

ANOTHER WRONGFUL CONVICTION: IVAN HENRY “INNOCENCE ON TRIAL” by JOAN MCEWEN

BarristerI admit it…I’m a crime junkie. I’ve read every true crime book written by Ann Rule and Jack Olsen. I’m also a big fan of America’s Most Wanted, and I frequently peruse the FBI Most Wanted List. Don’t hate me when I tell you that I follow the executions in the States, even though I’m against capital punishment.

Having established my credentials to review Vancouver lawyer Joan McEwen’s new book “Innocence on Trial: The Framing of Ivan Henry” Heritage House Publishing 2014, I should also add that I’m a criminology graduate and have been married to a police officer for almost three decades.

Beginning with Steven Truscott and on to David Milgaard, Guy Morin, Romeo Phillion, Michael Morton and so many others, I have been horrified by the number of men who have languished in prison for crimes they did not commit, both in Canada and the United States.

But Joan McEwen’s story of the persecution of Ivan Henry brings it all home, right to our doorstep in Vancouver British Columbia, where a down-on-his-luck ex-con, father to two young daughters, found himself ensnared in a nightmare that still has not ended, after serving 27 years in prison.

Ivan Henry, age 35, was in an on-again/off-again relationship with ex- wife Jessie, a drug addict, when he was detained by the Vancouver Police Department as a burglary suspect. What he didn’t know was that the police were really after him for fifteen sexual assaults attributed to a sex offender the police called the “rip-off rapist”, based on the offender’s pretense that he was looking for someone who had stolen from him. Henry’s record contained one hit for attempted rape, a charge he pled guilty to on the advice of his lawyer when he lived in Winnipeg.

He denied being involved in any sexual offences and offered to take a polygraph test. The police declined his offer, but were adamant that he participate in a line-up. When he resisted, three “lean and mean” uniformed officers grabbed him and maneuvered him into a line with an assortment of their dark-haired colleagues, wrapping themselves around him, while holding his head of red hair in a vise-grip.

The photo of that line-up became a crucial part of Henry’s case and it was later revealed to be a “trophy”, retained by the trial judge, Mr. Justice Bouck, who proudly displayed it in the Judge’s Lounge in the courthouse at 800 Smithe Street, Vancouver. Cheap laughs…

Henry was immature and ornery, and too foolish to realize he was in water over his head when, after a preliminary hearing before His Honour Wallace Craig, he was committed to trial for ten counts of rape. Before his 1983 jury trial began Henry fired his legal aid lawyer. When offered the services of legal star, Richard Peck as trial counsel, Henry declined, believing the system was rigged and that Peck was just another player in the grand conspiracy against him.

How difficult could it be? There was no evidence against him: no hair, fibre, DNA , confession, or eye witnesses, and he had an alibi for many of the times he was alleged to be in flagrante delicto.
His trial tactics were unconventional, to say the least. Because he knew he had not assaulted any of the parade of women who identified him as their rapist, some of whom said they recognized his voice, he argued they were all liars…making it all up.

Before the trial completed Henry came to the realization that while he could handle the facts, he needed a lawyer to help him with the law. When he asked Mr. Justice Bouck to allow him to obtain a lawyer for that purpose, Bouck J. said:

“You should have thought of that before…I said you should have a lawyer. You turned it down. You elected to represent yourself. You take the chances…We’ve given you a copy of Martin’s Criminal Code.”

After ten hours of deliberation, the jury convicted Ivan Henry on all ten counts, whereafter Crown Counsel Mike Luchenko announced the Crown was seeking a dangerous offender designation. As night follows day, Henry was “bitched”, the expression used to describe criminals found to be “habitual” or dangerous offenders.

Henry poured over law books in preparation for his appeal but could not afford the thousands of dollars required for the court transcripts. Eventually he appeared before British Columbia’s Court of Appeal on a motion to dismiss the appeal for want of prosecution, brought by appellate crown Al Stewart, later Mr. Justice Stewart. Of course, the
Crown won and Henry was banished to purgatory. Later his leave to appeal to the Supreme Court of Canada was also rebuked.

Ms. McEwen’s carefully researched story reveals indifference, betrayal, class discrimination, and worst of all, a cast of characters who didn’t give a damn about Ivan Henry. He was just the usual collateral damage in the state’s zeal to close the books on a series of assaults that continued after Henry was locked away.

As the truth spills out, we learn that Ivan Henry’s ex-wife, sold him down the river, a la Judas Iscariot, in exchange for a few pieces of silver and gold, that ended up in her arm.

The unfortunate women who were victimized by a rapist, were then victims of a justice system that wasn’t really interested in the truth, for if it had been, they could have seen it staring in their face.

It is difficult to say who comes off worse in this sordid tale. Based on Ms. McEwen’s careful narrative, it must be a tie between Crown Counsel Mike Luchenko and trial judge Mr. Justice Bouck, both of whom deserve censure for the roles they played. By 1983, it was no secret that eyewitness testimony was unreliable and could never, by itself, be the foundation for a life sentence. But that’s what happened.

Years later, when one of the heroines of this story, Crown Counsel, Jean Connor , voiced her suspicions to the Attorney-General, concerning the convictions of Ivan Henry, McEwen reports that Mr. Luchenko tried, undeservingly, to take credit for an eleventh hour redemption.

With twists and turns galore, and an unvarnished glimpse of Canada’s brutal prison system, Ms. McEwen’s book is a compelling must-read for anyone who still believes justice should be blind, and that it is better that ten guilty men go free than to have one innocent man suffer.

Lawdiva aka Georgialee Lang

Husband Ordered to Pay His Wife For His Outrageous Behavior

DSC00507 (2)It happens far too often in family law…a marriage breakdown that should and could be resolved, turns into scorched earth litigation.

Case in point: Madam Justice Watchuk in British Columbia’s Supreme Court walloped a litigant for his reprehensible behavior, ordering him to pay $35,000 to his wife. His over-the-top antics included rude, nasty, demeaning, and inflammatory language directed against his former wife, his wife’s lawyer and the court process itself, during a nineteen-day custody trial.

The usual rule in litigation is that the losing party must pay “costs” to the winning party. Costs are not, however, a reimbursement of the successful party’s legal fees, rather they are a contribution to them, usually amounting to about one-third.

In this case the judge ordered the father to pay “special costs”. These costs are intended to punish a litigant for outrageous or reprehensible behavior before the trial or during the court process.

What seemed to escape this belligerent litigant is that no judge will award shared parenting to an individual who is so out-of-control that he cannot rein in his rage in the face of the court.

Yes, there are litigants whose attitude and behavior is despicable, but they are smart enough to clean up their act by the time they get to court, as if butter couldn’t melt in their mouth. Often times these narcissistic creeps fool the court into believing they are the ones who have been abused.

What is common in these cases is that by the time the trial begins, they have alienated any lawyer who had the misfortune to try to assist them. As well, some percentage of these types of litigant don’t want a lawyer because they believe that acting in person allows them greater freedom to harangue, harass, and obfuscate the issues.

Unfortunately, many of these reprobates simply ignore court orders and it would not surprise me if this woman never sees the money she has been awarded, particularly because the fellow in this case spent a lot of his time in the United Kingdom.

But, you may say, once the trial is done, it’s over? Not so fast…these litigants often appeal the trial court’s decision and for good measure, often report their spouse’s lawyer to the Law Society alleging unfounded unethical conduct.

Wise words to family law lawyers: Run as fast as you can when you see this kind of client. It is never worth it…

Lawdiva aka Georgialee Lang