If You Don’t Ask, You Don’t Get

GEO CASUALIt is open season on spouses who own substantial assets, now that s. 89 of the Family Law Act has found its footing in British Columbia jurisprudence.

S. 89 permits a spouse to apply for an “interim distribution” of family property prior to a final division of property where a spouse needs money to settle or litigate the family case, or funds to obtain information and evidence that will assist them to settle or litigate their case.

Prior to the introduction of this section, litigants without access to ready cash were severely prejudiced, often unable to retain counsel or hire accountants and other experts required to prove their case. Longtime case law prevented any distribution of property in order to retain counsel.

Cases now abound and large amounts of money have been ordered to be paid by property owning spouses. In some cases, these spouses have been ordered to mortgage their property or otherwise borrow funds to pay their less well-financed spouses. It is not unusual to see orders of six figures, no small-time amounts.

However, all of the current cases recognize that this financial remedy is restricted to applications for funds prior to trial. Until today, that is.

In Negus v. Yehia, 2018 BCSC 3, a high-conflict case where Ms. Negus has already received $533,500.00 pursuant to S. 89, her counsel had the temerity, on the last day of trial, to make yet another application for funds. She advised the court that her client owed $400,000 in legal fees and sought another interim distribution.

The court judiciously refused the request saying:

“While I have been referred to a number of cases where the court has ordered advances under s. 89, all of those orders were made before trial in order to permit the economically weaker spouse to prepare for and conduct a trial. That has included, where necessary, putting that spouse in a position to pay for expert evidence. The focus is on the fairness of the trial process and the ability of both spouses to effectively put forward all relevant evidence. I have been referred to no case where such an order was made during or after trial.

In this case, I find that the purpose of s. 89 has been achieved, presumably with the help of the advances already ordered. There has already been a trial in which the “playing field” was clearly level and the claimant, with the assistance of experienced family law counsel, was able to vigorously challenge the respondent’s position.
An additional advance at this stage would do nothing further to meet the objectives of s. 89.”

I guess if you don’t ask, you don’t get, but this one took chutzpah!

Lawdiva aka Georgialee Lang

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BC Dentist Declared Vexatious Litigant in Family Law Case

B9316548187Z-1.1_20150314202542_000_GFTA6A1QO.1-0Hundreds of family law decisions are handed down every month in courts across Canada, but there are always a few family law cases that stand out and gain notoriety for unusual facts, belligerent litigants, or wisecracking judges.

The conduct of a Vernon, British Columbia dentist, Dr. Andrew Hokhold, brings his family law case within that group of cases that gain attention due to the misguided obstinence and retaliatory litigation strategy employed by him in his quest to defeat his wife, Laurie Gerbrandt in their high-conflict divorce case. (Hokhold v. Gerbrandt 2017 BCSC 1249)

The couple lived together for five years and had two children, ages 6 and 9. At their 2012 trial the court ordered joint guardianship of the children, and granted sole custody to Ms. Gerbrandt, but denied her request to move with the children from Vernon to Swift Current Saskatchewan. Dr. Hokhold was found to earn $610,000 annually and ordered to pay $7,900 in monthly child support and $9,000 in spousal support.

Needless to say, the doctor balked at the large payments required of him and in 2014 was found in contempt of court for failure to pay the amounts ordered. Although he successfully appealed the contempt finding, by April of 2017 his support arrears was $448,000.00.

Meanwhile, Dr. Hokhold, who acted for himself, abandoned his appeal of the support orders and turned his attention to corollary tactics, alleging that his former spouse had defamed him, and conspired with Canada Revenue Agency against him. He also commenced two civil actions against Ms. Gerbrandt and her mother, purporting to act as his children’s “litigation guardians”, a status that was never legitimate in the face of his wife’s sole custody order. He alleged that Ms. Gerbrandt and her mother had acted in breach of trust in respect of gold coins held for the children, proceedings that involved multiple court applications and hearings, adjournments, and filings. Dr. Hokhold eventually conceded that he had no authority to sue on behalf of his children and his claims were dismissed.

But he was not done. He then launched four separate appeals of orders related to his gold coin litigation, including an appeal from his unsuccessful application to remove a certain judge from presiding over his cases. By this time, his ex-wife was fed up and she brought an application to have her ex declared a “vexatious” litigant, unable to file further court actions without express permission from a judge.

When the date finally arrived to hear the “vexatious” litigant arguments, he sabotaged the proceedings by seeking an adjournment and filing and delivering thousands of pages of new material to his former wife’s counsel the evening before. Later, he sought a further adjournment by admitting himself to Vernon Jubilee Hospital, where he was promptly released without any prescriptions and drove himself home.

During his opportunity to defend himself against the “vexatious” litigant claims he opted to criticize his 2012 trial judge alleging fraud and fabrication and noted that he had already reported him to the Canadian Judicial Council and the RCMP.

In support of her “vexatious” litigant application Ms. Gerbrandt advised the Court that Dr. Hokhold had filed 98 affidavits, some exceeding 2,500 pages. He had also filed multiple requests to reappear before the Court and on one occasion in 2016 sought 64 separate orders. He also sued counsel for the Family Maintenance Enforcement Program after they began collection proceedings against him and brought actions in defamation, breach of trust, and multiple adjournment applications.

Dr. Hokhold was declared a vexatious litigant, both in the Court of Appeal and the British Columbia Supreme Court based on his predilection for bringing court actions and appeals that either could not succeed or were brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings that did not assert legitimate rights and by failing to pay the costs related to his unsuccessful applications.

Madam Justice Newbury in the Court of Appeal said:

“It is these factors, together with his filings in this court, that lead me to conclude that Dr. Hokhold has been using the judicial process in a manner calculated to divert attention from the real issues outstanding between the parties – his annual income, the amount of support he should pay, and his rights and obligations as a parent. Even Dr. Hokhold admits that he is “tired” as a result of the litigation, and there are more than a few judges who feel the same.”

Lawdiva aka Georgialee Lang

Court Orders Maintenance Enforcement Program to Pay Dad for Abusive Collection Efforts

GeorgiaLeeLang009Some of the worst complaints about the  British Columbia family law justice system arise from litigants dealing with the Family Maintenance Enforcement Program  (“FMEP”), called the Family Responsibility Office in Ontario.

Support enforcement programs permit parents and spouses who have court orders or agreements providing for child or spousal support payments to register their orders or agreements with the enforcement program in their province, at no cost to the registrant.

The protocol is that once an agreement or order is registered, the payee parent or spouse must pay support to FMEP, no longer directly to the recipient. FMEP ensures that the recipient parent or spouse receives the payment monthly, and in cases where a payee fails to pay, they take steps to enforce the payment of the support.

Interestingly, a payee does not have to be in arrears of support to be monitored by FMEP.  I remember years ago when a client of mine agreed to pay support for his wife and children, an agreement that was incorporated into a court order. My client’s wife registered with the Program as she was entitled to, however, my client was most distressed when he received a letter from FMEP  addressed, “Dear Debtor”. My client made every payment every month on time and was insulted by the program’s cavalier use of the term “debtor”. He was certainly not a debtor, just a regular guy whose wife registered with the program.

Sometimes recipients enter the program out of spite for their former spouse, however, 99.9% of the cases involve payees who have fallen behind in their court ordered payments.

In a recent Ontario case, a typical scenario unfolded for Richard DeBiasio, who paid child support to his ex-wife for the support of the two children residing with her, with a set-off because he had one child living with him. It is not uncommon that as children mature they switch homes and move from mom’s house to dad’s house. That’s what occurred in the DeBiasio case where over time all the children resided with their father.

Mr. DeBiasio negotiated new terms for child support with his former wife, entered into a new agreement and made arrangements to appear in court to finalize their new arrangements. Unfortunately, Ms. DeBiasio had already registered with the Family Responsibility Office,  (“FRO”) who were unaware of the new support agreement that had yet to be confirmed by the court.

The first Mr. DeBiasio heard of any problems was when FRO sent a letter advising him that they were reporting him to the credit bureau. Shortly thereafter FRO issued a garnishing order to his employer which prompted his lawyer to send a letter to FRO advising of their mistake and the pending court order.  FRO was unmoved–they were enforcing the order they had received from Mr. DeBiasio’s wife and had now taken steps to have his driver’s  license suspended. Needless to say, FRO was not responsive to any communication and regularly ignored letters from his lawyer, also refusing to accept phone calls.

Mr. DeBiasio finally obtained a court order directing FRO to cease their collection efforts. He then asked the court to order FRO to reimburse him for his legal fees, an amount close to  $10,000. The court reviewed numerous other decisions ordering FRO to pay costs, noting that most of these cases involved “aggressive enforcement actions on the part of FRO”.

Justice Nelson awarded Mr. DeBiasio the sum of $7,500 saying:

“In this case it was made clear to the FRO caseworker that there was a dispute over the amount of arrears owing.  It was made abundantly clear that there had been a material change because of the move of the children.  While I understand that FRO has a mandate to enforce, it seems to me that insisting on enforcement by way of licence suspension, when it is likely that the matter will be before the court within a very short period of time, is an unreasonable exercise of the Director’s mandate to enforce.

…the caseworker was kept fully apprised of all relevant information about the motion to change.  The refraining motion was December 10, 2015; the motion to change was scheduled for December 30, 2015.  The insistence by the Director on proceeding with enforcement under such circumstances is not only costly to the individual involved but costly to the court in terms of time allotted to the case.”

It should be noted that FMEP’s and FRO’s inappropriate attitude while serving the public is not limited to payors who have arrears of support. It is also nigh impossible for recipients to be heard in a timely manner. The British Columbia program is contracted to a large American corporation that makes oodles of money, with little apparent concern for customer relations.

DeBiasio v. DeBiasio 2016 ONSC 2253

Lawdiva aka Georgialee Lang

Should This Be Stopped? Foreign Mothers Give Birth to Children in Canada to Secure Citizenship

DSC00275_1Canada, the true north strong and free, is the envy of the world and one of its most valuable assets is its citizenship. Before the Harper government left office they made sweeping changes to Canada’s Immigration Act, making it more difficult to qualify for citizenship. Meeting great opposition however, the Conservative government did not tackle  the phenomenon of “birth tourism”, a subject that remains  highly controversial, particularly in Vancouver.

Those who favour birth tourism argue that innocent children, born in Canada to a foreign mother, should not be deprived of the benefits and advantages of  birth citizenship, saying that to ban birth citizenship is a racist response to what is a miniscule practice in Canada.

Kerry Starchuk of Richmond BC, a suburb of Vancouver, is an advocate for a ban on birth tourism. She has organized a petition to raise the issue in the House of Commons this fall. Backed by Conservative Member of Parliament Alice Wong, the petition was posted on-line in mid-June 2016 and quickly acquired more than double the 500 required signatures to be referred to the House of Commons.

The petition favours the elimination of birthright citizenship in Canada unless one of the parents of the child born in Canada is a Canadian citizen or permanent resident of Canada.

Ms. Starchuk’s chief complaint is that her home for 28 years is now bordered by a “maternity motel” for pregnant women from China, one of several such homes in Richmond. Local Chinese newspapers and websites in Vancouver and Asia display advertisements soliciting Mandarin-speaking mothers, and promote the advantages of delivering a baby in Canada, suggesting that having a Canadian child will assist them to obtain citizenship as well.

Services offered include airport shuttles, language translation services, provision of obstetricians, and assistance with birth certificates, child tax benefits, medical coverage,  social insurance numbers, and passport and visa applications. These maternity motels boast of healthy  food prepared by professional chefs and describe  views of the snow-capped north shore mountains from their  facility.

China and Hong Kong are well-versed in the potential exploitation of birth tourism, a phenomenon they struggled with when mainland Chinese mothers travelled to Hong Kong to give birth in order to obtain better health care, Hong Kong residency, and the freedom to dodge China’s one-child policy. Until Hong Kong  passed laws banning birth tourism in 2013, statistics indicate that up to half of all children born in Hong Kong had parents who lived elsewhere.

Immigration lawyer Richard Kurland presents the argument that this isn’t really a  Canadian problem, citing the huge number of foreign workers and long-term visitors to Canada of over a million people per year, compared to 232 births attributed to birth tourism.

I predict that Ms. Starchuk’s petition will languish just like similar proposals to rid Canada of birth tourism.

Interestingly, Canada and the United States are the only G7 countries that permit babies born on their soil to obtain citizenship.

Lawdiva aka Georgialee Lang

 

 

 

 

 

 

 

 

 

No Justice for Murdered Surrey Hockey Mom

DSC00280If you ask a resident of British Columbia what the murder capital of Canada is they may well tell you it’s Surrey. But they’d be wrong. The latest statistics tell us that it is Regina, Saskatchewan, followed by Toronto, Ontario.

However, that is cold comfort for victims of violent crimes across Canada, and in particular the family of Julie Paskall, the 53-year old Surrey mother who was attacked while waiting in the Newton arena parking lot to pick up her 16-year old son who was refereeing a hockey game.

Her son left the arena expecting to see his mom waiting for him as she regularly did, but instead he saw her on the ground surrounded by blood and scrambling paramedics. She had been brutally beaten and was rushed to hospital where she died two days later, on December 31, 2013.

Ms. Paskall’s murder shocked the neighbourhood and surrounding communities, who had become complacent with the ever-increasing toll of gangland slayings. But this was entirely different. This was a loving mother of three children, happily married to her high school sweetheart, and well-known in the community for her volunteerism.

A public memorial was packed with friends, neighbours and strangers. Her husband remarked that the outpouring of grief and sympathy was overwhelming, with cards and condolences coming from all over Canada and as far afield as Hong Kong and Sweden.

Mayor Diane Watts reminded the community their anger was understandable but that justice would prevail.

Unfortunately, Ms. Watts was wrong on that score. Last week Yosef Gopaul pled guilty to manslaughter and was sentenced to 12 years in prison for Ms. Paskall’s death and a second robbery that took place two weeks before he attacked Ms. Paskall with a rock the size of a grapefruit. His DNA was on the rock and he confessed to an undercover police officer.

He said he only wanted to steal her purse and couldn’t believe he had caused her death. Gopaul had only been in B.C. for eight weeks prior to the murder, coming from Ontario.

While Gopaul attempted to say all the right things at his sentencing hearing his words rang hollow. The Crown informed the Court that at age 28 he had rung up 29 convictions, including six for violent offences, and although charged with second degree murder, a “deal with the devil” saw him escape with only a manslaughter conviction. With time served his sentence will be ten years, and he will likely only serve a portion of that before work release and parole.

In my view the sentence is unfit and an insult to the Paskall family and the community of Surrey who were told and expected that justice would prevail. I suspect it is easier (and cheaper) for the Crown to offer a plea deal than to run a challenging second degree murder trial. Even with DNA and a confession, the Crown refused to roll the dice which I suspect was because Ms. Paskall died from a pre-existing cardiac condition that took her life when she was beaten by this habitual criminal.

Perhaps if the Crown and the Courts had taken Mr. Gopaul’s previous serial criminality more seriously, he would have been locked up after his sixth violent offence. As it is, he will be free sooner that you think, making the Paskall murder beyond a tragedy.

Lawdiva aka Georgialee Lang

Terror in the Home: The Scourge of Domestic Violence

_DSC4179 - Version 2 A pair of tragic events has sadly reminded me of the scourge of domestic violence in our society. As a young woman I found myself in a relationship where the sudden, unexplained rage of my partner exploded in punches to my head, several times occurring while I was sleeping. These frightening events were always followed by tearful apologies and my departure from the relationship. However, time after time, the purplish bruises healed and I returned and forgave him, only to have the cycle repeat itself.

Sonia Cella is another survivor of domestic abuse, her secret revealed this week when her estranged husband, Andre Richard, age 44, attacked her and her 14-year-old daughter with a hammer after lighting the family home in Langley, British Columbia on fire. Thankfully, she escaped the blaze with her two children, her home destroyed.

Records show that Mr. Richard was charged with assault in 2009 and in February 2014, charges still before the court, and was subject to a restraining order, barring him from contact with his wife. I understand why the recent charges are pending, but can’t imagine why an assault in 2009 has not been adjudicated, some four years or more after the event.

The media reports that Ms. Cella’s ordeal this week was precipitated by her filing divorce documents in court, a step which all too commonly triggers threats of retaliation, and in some cases, leads to violence, even murder.

Across the country in Ottawa, a mother of five was beaten in her home on the same day as the B.C. incident, by her husband wielding a baseball bat. She fled the home and was found bleeding in her driveway, with her husband standing beside her, his weapon discarded. Shocked neighbours called 911.

Police officers located the bat and arrested Chris Hoare, age 44, for the attempted murder of his wife. As news of the attack spread, Hoare’s business colleagues couldn’t believe that the former president of the Ottawa Real Estate Board could have lashed out with such violence.

Early reports indicate the couple were having financial trouble, not unlike many middle-class families who creatively stretch their pay check under difficult circumstances.

But divorce and financial issues plague families all the time, so why did these two men respond with a hammer, a baseball bat, and arson?

Harvard law graduate Teresa Ou conducted research for a thesis titled “Are Abusive Men Different? Can We Predict Their Behavior?” She discovered that convicted abusers often seemed proud when they talked about kicking, slapping or biting their wives or girlfriends. Others completely denied being batterers, despite being arrested for assault.

She concluded that abusers were more anxious, irritable, moody, defensive and self-centred than the control group of non-abusers. They were also more stubborn, demanding, argumentative, suspicious and aggressive, characteristics that lead to a propensity for sudden outbursts of anger.

Yes, up to 50% of Canadian women over the age of 16 have suffered from some sort of domestic abuse. They are only too familiar with police intervention, covered bruises, overnights in tacky motels or crouched low in corners of their home to escape their attackers.

Even more frightening is that an estimated 362,000 Canadian children witnessed or experienced domestic violence in 2006, according to a UNICEF/United Nations report.

Is it any wonder that young children exposed to violence often become trapped in cycles of abuse themselves? As parents, relatives, and friends it is up to each one of us to do our part to educate and intervene.

Lawdiva aka Georgialee Lang

Ten-Year-Old B.C. Boy Champions Case for Gender Identity Syndrome

GEO CASUALA ten-year-old boy from Comox British Columbia, who calls himself Harriette, has gone public with his crusade to reform the law that prevents him from acquiring a new birth certificate to reflect his preferred gender.

Harriette’s birth name is Declan Forrest Cunningham, but he recently announced to his Grade 5 teacher and classmates that he is transgendered and lives as a girl, with the full support of his family, who decry the Canadian bureaucracy that refuse to issue him new identification.

Harriette could be a poster child for a debate that is brewing over the treatment of children who are confused about their gender.

Picture a little boy in a pink tutu, fairy wings and ballet pumps. Now imagine that boy being treated with hormone-blocking drugs in a clinic established to diagnose and treat children who believe they were born in the wrong body.

Gender Identity Syndrome, first identified by the American Psychiatric Association in the 1990’s, has spawned a new industry, one where children as young as five, are receiving puberty suppressing injections, despite a paucity of research with respect to the side effects or medical dangers that may accompany these treatments.

At Tavistock Clinic in the United Kingdom over 165 children are being treated by the clinic’s team of social workers and child therapists. Seven of these children are under the age of five, despite Tavistock’s own research that indicates that up to 80% of these children will change their minds about living in the wrong body, once they reach adolescence.

Nonetheless, proponents of hormone therapy believe the treatment is worthwhile to prevent the mental distress these children will experience as their bodies mature. The treatment is also said to be beneficial to those children who will eventually have gender-changing surgery. Others say the treatment reduces suicide and self-harm rates.

Contrary opinions abound. Professor Russell Viner, a hormone specialist at London’s Institute of Child Health believes the impact on a child’s developing bones and brain has not been ascertained and warns of the potential danger. He notes the drugs reduce a patient’s fertility level.

Dr. Kenneth Zucker, a world authority on gender issues, with a Toronto clinic, is opposed to hormonal treatments for children. He says:

“Suppose you saw a black kid that wanted to be white. Wouldn’t you try to understand what was happening…You certainly wouldn’t recommend skin-bleaching.”

He says that gender confusion is an issue of nurture, not nature and believes dysfunctional families or cultural backgrounds play an important role. Other experts say that children confused about their gender may have experienced sexual abuse or have psychiatric ailments and need psychotherapy, not drugs, and not sexual reassignment surgery.

While it is reported that most adults who complete sex-change surgery are happy with their new lives, for others the surgery is anything but positive.

After allegations were made in 2009, psychiatrist Dr. Trudy Kennedy of the Monash Gender Dysphoria Clinic in Melbourne, Australia was forced to close her clinic for a time, while she dealt with numerous complaints and three lawsuits alleging negligence and faulty diagnosis.

Certainly the medical and ethical issues of prescribing intrusive treatments on vulnerable children requires more intense scrutiny than it has received to date.

While the Cunningham family believe their young son’s passion to find justice for himself is laudable, they ignore the potentially negative consequences of his public campaign. He is a child in his formative years who deserves to develop and mature away from the prying eyes of the media. If I was cynical I would say that it is his parents that seek the spotlight…another reality TV show?

Lawdiva aka Georgialee Lang