The Public Has the Right to Know: JP v. British Columbia

GeorgiaLeeLang009In the tradition of open courts and transparency, the BC Court of Appeal has ordered that affidavits, written submissions, and other material filed in the Court be released to the media, in this case CKNW and the Vancouver Sun, a decision I applaud.

The case of JP v. British Columbia has occupied many pages of local newspapers and a multitude of radio and TV reports. It is, of course, the case concerning the groundbreaking decision last summer after a 147 day trial, when 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 children while the youngsters were in the custody of the Ministry. The Court found that the government’s failure to protect the children 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 Californian 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’ expert opinion played a significant role in the original finding that this father had sexually abused his children.

The legal profession was shocked when the Court of Appeal reviewed the evidence and determined that the so-called expert had defrauded the court. Their awe was not a criticism of the high court’s findings, but that the lower court has been so taken in by Dr. Reeves and the utter disregard for proper procedure.

Last year in a 411 paragraph decision, the Court of Appeal (JP v. British Columbia 2017 BCCA 308) held that Dr. Reeves’ fraud impacted the integrity of the entire judicial process, leading to a gross miscarriage of justice. The trial findings that the father was guilty of sexual abuse of his children were thrown out and a new trial ordered. The scathing denouncement of BC’s child protection authorities was also dismissed, the appeal court finding that the alleged misfeasance was the product of procedural unfairness.

With the Court of Appeal’s order made today, more details of this extraordinary case will be forthcoming. Last week, the Supreme Court of Canada refused to hear JP’s appeal of the BC Court of Appeal decision. It is her lawyer that introduced Dr. Reeve’s evidence into the trial process and who has been soundly criticized in the media for the debacle that occurred. JP was the only participant in today’s appeal that resisted the principle of open access to the courts….not surprising!

Lawdiva aka Georgialee Lang

Mediator Attacked by Former Client

BarristerChild custody cases are notoriously difficult for clients and lawyers alike. Emotions run high and regrettably, our adversarial justice system only serves to escalate the conflict and aggravate the parties, on account of the psychological roller coaster of litigation and the drain on their bank accounts.

That’s why mediation has become so popular, particularly in child custody matters, where highly trained negotiation specialists work with parents and others to facilitate consensus and agreement for the benefit of themselves and their children.

While attorneys who deal with custody matters are sensitive to emotional eruptions and aware of the high stakes involved in custody litigation, mediators are usually sheltered from the anger of parents, who may become disenchanted with the mediation process or the results of mediation. “Settlor’s remorse” is the term used for a client who enters into a final agreement but later believes he or she gave up too much or didn’t get enough.

Litigation lawyers become skilled at determining whether their client is capable of settling or whether a client falls into the category of those who need a judge to make a decision.

Recently a lawyer/mediator in Springvale, Maine became a crime victim at the hands of a mediation client who was unhappy with his mediation. The client, Christopher Hall, age 48,  made an appointment with the mediator via text message, identifying himself as “Sue”. Arrangements were made for the attorney to attend at “Sue’s home” to discuss her services.

The mediator pulled up to “Sue’s” home and noticed an elderly man with a cane standing on the sidewalk near her car. As she alighted from her vehicle the old man suddenly rushed her and attacked her with a cane that was equipped as a stun gun, inserting the cane between the lawyer’s legs, resulting in a sudden shock to her inner thigh.

What the old man didn’t expect is that his former mediator would fight back, knocking off his long wig.

“Sue” aka Christopher Hall fled the scene jumping into a van driven by an accomplice. Acting on a tip the police identified Mr. Hall as the perpetrator and arrested him later that evening.

Because Mr. Hall’s trap failed, the planned assault of the mediator was aborted.  A police spokesperson said they were  unsure of Mr. Hall’s  actual  intentions. Did he plan to kidnap the mediator or worse, murder her?

He was charged with aggravated assault and held on bail of $250,000. His criminal record revealed previous convictions for domestic assault and terrorizing.

A frightening experience that could have ended badly, but for the woman’s decision to fight back. Of course, the notion of meeting a potential client at his or her home is wrought with danger. House calls should be reserved for regular clients who are well-known and female lawyers and mediators would be wise to refrain from personal visits to male clients.

Lawdiva aka Georgialee Lang

Father Walks to Highlight the Abuse of Parental Alienation

BarristerPatrick Glynn is on a mission. He wants the world to know that parental alienation is rampant in North America and that he is just one its many victims.

Emotionally and financially spent after his divorce, Patrick’s website, walkforlostkids.com tells his story. As a working father Patrick was not his children’s primary caretaker, but he never dreamed he would become an occasional father.

With the financial pressure of paying for two households he was forced to move and take a job 300 miles away from his children, nonetheless, he drove ten-hours roundtrip every weekend to see them. Worst of all was that the game played by his wife meant he had to prove he was a worthy father, a cunning ploy that saw his wife and her lawyer convince the Court to curtail his visits to six weeks a year.

He says:

“I went from being an involved, hands-on dad to the courts relegating me to seeing my two daughters for six weeks a year, all because my wife wanted a divorce”.

To gain attention to the harm of parental alienation and the despair of its victims, Patrick began his “Walk for Lost Kids” last Fall by walking from Boston to Washington D.C, a 400 mile trek. Along the way he was joined by moms and dads who suffer like he does from a family court system that is out of touch with social science research on parenting and the evils of abusive spouses who use their children to inflict punishment on their spouses.

Writing on his blog, Patrick says:

“Meanwhile, smart, compassionate parents are endlessly stuck in their own cycles; unable to escape family courts and punished with financial and court harassment for years on end. Reasonable, solution-based people eventually realize their limited options at getting out of the abusive never-ending spiral:

Homicide
Suicide
Walking away from their own kids (which won’t stop the court harassment)
Fighting in court against their will, while being financially drained with little hope since the system is slanted
Accepting — in most instances — at least a decade of abuse while the kids are minors with little to no understanding from their peers.”

If this sounds overly dramatic be assured that it is reality for thousands of parents, many of whom have passed through the doors of my law office. And if you think this is a father’s rights issue, you’re wrong. It affects mothers as well as fathers, but it is the children who are scarred for life.

Back on the road, Patrick has just embarked on his second walk this month, a trek that will take him 549 miles from Sacramento to Los Angeles and end in late May. If you see him on the road, walk with him, and let him know you agree the family law justice system needs reform and needs it now. His Walk schedule is posted on walkforlostkids.com.

Lawdiva aka Georgialee Lang

Class Action Lawsuit Continues Against Family Court Judges

10950859361151CDPA group of fathers in New Jersey have banded together to bring a class action lawsuit against five family court judges. They allege their constitutional rights were violated by orders made by these judges that deprived them of a relationship with their children. They also claim they were not afforded due process or equal protection under the law.

Their main argument is that by basing custody decisions on the “best interests of the child” their rights are violated. They also allege that lack of appropriate notice before a court order is made regarding their children is a breach of due process.

Due process, also called “natural justice”, is the right to have an unbiased hearing with an opportunity to present your evidence in defence to the claim against you.

Surender Malhan is one of the fathers in the class action. He alleges that the mother of his two children provided him with two hours notice she would be seeking sole custody of the children. He was given no real opportunity to organize rebuttal evidence to the allegations he was an unfit parent.

When he spoke to the media about his situation, family court Judge Nancy Sivilli issued a gag order preventing him from speaking publicly about his case. Mr. Malhan’s lawyer is now suing Judge Sivilli for First Amendment (free speech) violations.

The State of New Jersey is fighting back and brought a court application seeking a summary dismissal of the class action suit, arguing the fathers were using their court action to effectively appeal the orders made against them in the Family Court.

Judge Freda Wolfson presided over the State’s application, and refused to dismiss the fathers’ action, relying on a 2013 appellate decision, B.S. v. Somerset County, where the Third Circuit Court of Appeals refused to dismiss an action brought by a mother in Pennsylvania who alleged she lost custody of her daughter in a hearing that did not afford her due process.

The State also unsuccessfully argued that “sovereign immunity” protected New Jersey from this type of lawsuit. Judge Wolfson ruled the individual judges were the focus of the court action, not the State of New Jersey.

The debate over the usefulness of the “best interests of the child” test for determining custody has been simmering for a decade or more. It is often suggested that proponents of shared parenting want to eliminate the “best interests” test. Perhaps some do, but I believe that Courts simply need to embrace the substantial psychological literature that resoundingly reveals that children need a full relationship with each parent and that is what is in their best interests.

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

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

Custody Battle Poisons Children

BarristerParents who fight over child custody and access bring out the worst in themselves and often poison their children along the way. Divorce lawyers who are stuck in the middle of high conflict family disputes often remind their clients that children deserve both a mother and a father, and that a child immersed in conflict is usually headed for a disastrous future.

Frequently, the worst of these types of conflict peter out once the children mature, interact with their peers and begin to think for themselves. Some parents also eventually recognize that their anger hurts them more than it does their ex-spouse…but not always.

A recent court case in Illinois illustrates the worst possible outcome where parents refuse to put their children first and instead continue with angry reprisals and revenge, apparently oblivious to the seeds of destruction they are sowing, for themselves and their children.

In Miner and Miner v. Garrity 2011 IL App (1st) 1103023-U the Court of Appeal dealt with a lawsuit brought against Kimblerly Garrity, mother of the plaintiffs, Steven and Kathryn, who were 20 and 18-years old when they commenced their lawsuit.

Their father, attorney Steven Miner, together with two other attorneys, filed the suit for them which claimed damages of $50,000 each, alleging their mother had intentionally or negligently inflicted emotional distress on them during their young lives.

Mr. Miner was quick to point out in media interviews that he tried to talk his two children out of filing the lawsuit, but they insisted. His protestations are unbelievable in view of the claims he advanced on their behalf.

The Garrity/Miner marriage ended after ten-years in 1995. Mr. Miner was awarded sole custody of Steven and joint custody with his ex, of Kathryn, who resided primarily with him. So how bad an access parent was Kimberly Garrity?

The children’s grievances included their distress when their mother tried unsuccessfully to obtain primary residence of Kathyrn. She also allegedly treated the children unequally, requested medical receipts from their father before she would pay her one-half share, and referred to their father as a “Disneyland” dad.

Worse yet was the claim that when her mother began living with another man, Kathryn’s distress caused her to gain weight, which was only exceeded by her mother’s gall in taking a new name when she remarried, a change that upset Kathryn.

Even more petty was Steven’s complaint that his mother forced him to wear a seatbelt when he was 7-years old, and Kathryn’s upset at her mother’s refusal to take her to a car show. Both were also slighted by either no birthday or Christmas cards, or cards that were declared inappropriate and contained no cash or check for them.

One of the “inappropriate” cards from American Greetings showed a table full of red tomatoes with the centre tomato wearing googly eye glasses. The card read “Son I got you this birthday card because it’s just like you…different from all the rest.” On the inside Steven’s mother wrote “Have a great day! Love and Hugs, Mom xoxoxox”. How insensitive!

Not surprisingly, their litany of childish complaints impressed no one and simply confirmed their outrageous sense of entitlement, immaturity and lack of gratitude. Their father’s role in their claims of “bad mothering” deserves even greater rebuke. His participation was both contemptible and shabby.

Needless to say, their lawsuit was thrown out of court, as it should have been.

Lawdiva aka Georgialee Lang

Fox’s Bill O’Reilly in Custody Battle

BarristerFunny how Bill O’Reilly’s divorce in 2011 didn’t make national headlines, particularly when every B list actor/actress/model/athlete/musician/singer’s divorce is splayed across the headlines in every newspaper, blog, and gossip rag.

While the divorce may have been low-profile, website Gawker released a story this week that is not likely to go unnoticed.

Gawker reports that Mr. O’Reilly and his much younger ex-wife Maureen McPhilmy, who were married for fifteen years, resolved their differences via a separation agreement wherein they share joint custody of their two children, ages 10 and 13 at the time of the divorce.

The agreement provided that the children’s counsellor, Lynn Kulakowski, would be utilized as a neutral expert to assist the parties if disputes arose regarding their children.

The cause of the current dispute between the exs’ is that unbeknownst to Maureen McPhilmy, Bill O’Reilly put Ms. Kulakowski on his payroll as a nanny for the children when they are resident with him.

So much for any expectation that psychologist/nanny Lynn can impart objective parenting advice while Mr. O’Reilly pays her a “six-figure salary”, according to Gawker.

The parties were recently in a New York appeal court where the court ordered that the issues raised by Ms. McPhilmy be resolved in a trial and the children be represented by independent counsel.

The case is listed in the New York court registry as “Anonymous 2011-1 v. Anonymous 2011-2”. Not sure what the New York rules are, but in British Columbia the shielding of the names of litigants is the exception, not the rule, hence, the publicly battling Aquilinis’, Mr. being an owner of the Vancouver Canucks and many other enterprises.

Gawker also reports that Bill O’Reilly’s ex married the man she was having an affair with, a member of the local constabulary. Apparently O’Reilly has done everything possible to destroy the police officer’s career.

Meanwhile the Catholic Church, at O’Reilly’s request, has condemned Ms. McPhilmy for her remarriage, which is against church policy and O’Reilly is pursuing an annulment of the marriage.

Altogether a nasty situation and likely to get worse. Probably the last person one would want to battle is the irrepressible Bill O’Reilly.

I wonder what he thinks now of his trademark phrase “We Report, You Decide”?

Halle Berry’s Custody Tactics Bring Out Her Dark Side

If ever there was a primer on how parents should not deal with child custody, Halle Berry and her former common-law spouse, Gabriel Aubry, are in the running for first prize, albeit Aubry appears to be a coerced participant in the fight over their four-year-old daughter, Nahla Ariela Aubry.

The obvious question is how can a woman who is so beautiful on the outside, be so scheming and vindictive on the inside? Yes, Halle Berry fans…that’s how it appears to me, and I bet she is just livid that she agreed to use Aubry’s surname for her daughter when they were still in the throes of love.

Halle Berry’s litigation tactics are “classic” in high-conflict custody cases, and that’s part of
her problem. Most judges have not just fallen off the turnip truck, they have seen it all.

At the time of their uncoupling Halle raved that Aubry was as an “amazing” father and the three of them “were going to be together forever”. But since she connected with serial philanderer and sometime actor Olivier Martinez she’s abandoned her earlier sentiment. Or was it Aubry’s short fling with Kim Kardashian that changed her mind?

For someone who says she only wants to protect her daughter, she has an odd way of going about it. She has desperately tried to remove Aubry from Nahla’s life, with little success. She resisted paying him reasonable child support, even though they share custody. In a drawn out court battle, Ms. Berry was ordered to pay Aubry $20,000 per month.

She must have felt happily triumphant when Nahla’s nanny accused Mr. Aubry of pushing her while she held Nahla. Aubry was relegated to supervised access and no overnight parenting time for a while, but after a thorough child protection investigation by California authorities, he was completely cleared.

Her latest ploy is to convince the Court that it is in Nahla’s best interests to move with her to France with her fiance, Olivier Martinez. Her reasons? She says she is being stalked in California. I guess she was really p-o’d when she recently learned that mental patient Robert Dewey Hoskins, who also harassed Madonna, was arrested and recommitted to a locked psychiatric facility.

She is also urging the Court to favourably consider her pending nuptials with Martinez and the new family she has created. As far as any stability as a result of her relationship with Martinez, I am very skeptical.

If Berry actually marries Martinez, it will be her third marriage. Mr. Martinez has never been married and no wonder….His flings usually are of short duration, from one-night hook-ups to four years. He has bedded model Rosie Huntington Whitley, singer Kylie Minogue, model Sara Givati, actress Michelle Rodriguez, actress Mira Sorvino, actress Juliet Binoche and actress Goya Toledo.

But what is going to really sink Halle’s ship is the expert report before the Court that warns the judge that separating Nahla from her very-involved father will be detrimental to her well-being.

I still don’t get it…when will mothers learn they don’t “own” their children?

Lawdiva aka Georgialee Lang