High-Stakes Litigation Results in Costs Award of $1.4 Million to Wife

BarristerIt wasn’t that long ago that family law was considered the “poor sister” of commercial and corporate litigation, labelled “pink collar” law and considered a less worthy pursuit than other areas of the law. Happily that characterization has been abandoned for some time and rightly so.

Cases like Blatherwick v. Blatherwick 2017 ONSC 3968 (Canlii) and many others like it, point to the reality that family law embraces complex legal concepts including corporate valuations, off-shore assets with jurisdictional issues, and complicated income analysis, to name just a few.

When you have family litigation where the wealthy spouse refuses to provide information and documents, lies and evades the truth, and enlists business partners to assist in the obfuscation, it is not unusual to see large costs awards levied against the fraudulent litigant. Blatherwick is a perfect example of such a case.

Where there has been “reprehensible, scandalous, or outrageous conduct on the part of one of the parties”, the successful party will be awarded “special costs”, which represent the actual legal fees he or she has paid to his or her lawyer. In Blatherwick the successful wife was awarded $1,461,000 in circumstances where the husband made a mockery of fair play after a marriage lasting 39 years.

Mr. Blatherwick’s litigation “sins” were numerous including:

1. His admission that his business partners formed a “brotherhood of trust” and would circle the wagons in the case of any matrimonial dispute;

2. His admission that he was a liar and a cheat and that his business was conducted with those values;

3. His admission that his business was conducted in China and the British Virgin Islands and that the few documents produced were utterly unreliable.

4. His ever-changing evidence, despite previous admissions being made under oath;

5. His flagrant and deliberate disregard of court orders, in particular an order that restrained him from depleting his assets. However, the court found that in breach of the order he paid his lawyers over $800,000;

6. He failed to pay interim support to his wife and was in arrears of over $500,000;

7. He gave over $900,000 to several girlfriends in the Philipines and also made fraudulent Canadian immigration applications on their behalf, telling the authorities that his wife was deceased, and on another occasion that he was not married.

8. He made a voluntary assignment into bankruptcy such that his trustee seized and sold all his Canadian assets. He valued his off-shore companies at one dollar, despite evidence of $42 million dollars in annual sales;

In lengthy Reasons the Court held that Mrs. Blatherwick, in her early 60’s, was entitled to lump sum support in the amount of $5,985,216 based on an imputed income to her husband of $1.4 million dollars. Notably, his Canadian tax returns recorded income of about $48,000 per annum. She was also awarded compensation for her interest in the family assets in the amount of $3,573,807.

The Court annulled Mr. Blatherwick’s bankruptcy and scheduled a hearing to determine if his lawyers should be held in contempt of court for receiving funds from their client while he was under a restraining order.

The question remains, however, in the face of Mr. Blatherwick’s litigation behaviour, whether his wife will actually receive the funds she is owed. With her husband living in the Phillipines, and all his valuable assets located off shore, it seems highly unlikely that collecting her award will be a simple task. Although his Canadian passport was seized by Family Maintenance Enforcement authorities, it is very likely he has acquired a Phillipines passport.

These are extremely difficult cases and often the Court’s findings and orders are hollow, in the absence of compliance from a spouse who has already proved to be a rogue.

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

Mother Jailed 8 Years for Child Abduction Now Released

B9316548187Z-1.1_20150314202542_000_GFTA6A1QO.1-0One of the most litigious child abduction cases may have finally come to a conclusion.

Victoria Innes was five-years-old when her mother, Marie Carrascosa kidnapped her, taking her from the United States to Spain, despite a court order that prohibited each of her battling parents from removing her from the United States without the consent of the other parent.

To buttress this order, and as a precaution, the Court also said that Victoria’s passport must be held by her mother’s lawyer and not released.

A series of unexpected events unfolded when Ms. Carrascosa changed lawyers. Her new lawyer, Madeline Marzano-Lesnevich, was unaware of the court order regarding Victoria’s passport. She released the passport to her client whereupon Ms. Carrascosa fled with Victoria to Spain, where her parents lived and where she was qualified as a lawyer.

Distraught father, Peter Innes, took immediate legal action to have Victoria returned to the State of New Jersey, obtaining an American court order for custody, however, the Spanish courts ignored the order.

Later Ms. Carrascosa returned to New Jersey without Victoria to continue the legal battle, apparently confident that the Spanish courts had jurisdiction and taking comfort in an order of the Spanish court that  barred Victoria from leaving Spain until she was 18-years-old.

But the New Jersey courts didn’t see it that way. Ms. Carrascosa was tried and sentenced in New Jersey to fourteen years in prison for contempt of court and interfering with child custody.

In the meantime, Mr. Innes launched a lawsuit against attorney Madeline Marzano-Lesnevich who was ordered to pay compensation of $950,000 to him for her negligence in releasing the passport to Ms. Carrascosa.

Typically a term of imprisonment tends to  eventually persuade an individual to comply with the law, but not in Ms. Carrascosa’s case. In her zeal to ensure her ex-husband would have no contact with Victoria she remained in prison year after year, depriving her daughter, not only of a father, but a mother as well. Victoria was in the care of her maternal grandmother in Spain.

Ms. Carrascosa’s continued defiance of the court orders and her lengthy incarceration became a legal problem for the State court who expected compliance sooner rather than later. At a hearing in 2007 appellate Judge Donald G. Collester said “She cannot be held forever. At some point in time, she will be out of jail. What are you going to do then?”

In 2014 Ms. Carrascosa received parole for the child abduction conviction but was immediately transferred to local  Bergen County jail for refusing to return Victoria to New Jersey.

It was the entreaties of her daughter to court and correctional authorities and the consent of her former husband, Mr. Innes that resulted in her final release in 2015.

Mr. Innes said:

“I know Victoria wants her mother back, and for that reason only, I support her release. I am confident that once our daughter gets to know her mother, she’ll begin to see the reality of this sad situation. It’s been 10 long years since my daughter was taken, and there’s only one thing I am sure of — no one wins in cases like this.”

No person should suffer the torment of child abduction and Peter Innes’ consent to his ex-wife’s release is proof that he understands that it should be all about what is in his daughter’s best interests, a concept that has eluded the self-centred Ms. Carrascosa.

Mr. Innes maintains a website “victoriainnes.com” and has not given up hope that one day he and his daughter will be reconciled.

Lawdiva aka Georgialee Lang

Divorce Drama a Shakespearean Tragedy

DSC00280I first wrote about the mega-divorce of British couple Scot and Michelle Young in August 2013 after Mr. Young was sentenced to six months in jail for failing to pay $1 million in support. I predicted that by the time the matter went to trial he would “lawyer-up” with the best attorney money could buy! But I was wrong… Scot Young acted for himself in his divorce trial in October 2013, a move that fit his litigation strategy of “I’m broke”.

The outcome? Here’s the Young divorce, “By the numbers”:

$6.5 million Legal costs expended by Michelle Young

$5 million Legal costs ordered to by paid by Scot Young to his wife

65 Total number of court hearings

20 Days of trial

13 Sets of lawyers hired/fired/discharged by Michelle Young

6.5 Years it took to resolve the case

4 Sets of accountants hired by Michelle Young

$300 million Amount of money sought by Michelle Young

$32 million What Michelle got from the judge

10,000 Pages of court documents

6 months in jail for Mr. Young for failing to produce financial documents, but he only served three months

British newspapers reported that Michelle Young was angry that the court refused to find that her husband was hiding a billion dollar in assets and called the decision a “disgrace”. She also said her next herculean task was to collect the money she is owed.

As for the trial judge, Mr. Justice Moor remarked that the Young case was a prime example of how not to conduct divorce litigation.

While Young plead poverty throughout the divorce proceedings it was reported he purchased a six-carat diamond engagement ring for his girlfriend, British reality star, Noelle Reno.

But no one could have guessed the last chapter of this British drama. In 2014 Scot Young tragically flung himself out of a window of his $4.5 million dollar London apartment and impaled himself on the railing below. Rumours abound that his apparent suicide was in fact retaliation from the Russian mafia who he allegedly owed millions of dollars.

Mr. Young left two beautiful daughters. Even Shakespeare couldn’t have penned this modern tragedy.

Lawdiva aka Georgialee Lang

The Curse of the In-Person Litigant

GEO_edited-1I guess I’ve been lucky because I have never had to do a trial where the opposing party acted in person, “pro se”, as they call it in the United States.

Why lucky? Because some of the worst trial horror stories involve litigants acting for themselves while their spouse has to pay a lawyer hundreds of dollars an hour to respond to often marginally relevant or unreasonable litigation tactics.

A good example is the case of G.T. v A.T. 2014 NY Slip Op 24035 where Mr. T., a well-educated engineer, just short a few credits for his doctorate degree, turned what should have been a three-day trial into a 12-day debacle.

Judge H. Patrick Leis III of the New York Supreme Court described Mr. T.’s behaviour in the opening paragraph of his Reasons:

“This case highlights the difficulties that arise when one party uses their self-represented status as both a sword and a shield in an attempt to gain undue advantage and behaves in a manner that the court would never tolerate from an attorney. The manner in which the defendant presented his minimal evidence, fueled by his own emotional agenda, lacked direction, reason and oftentimes was totally devoid of probative value.”

In many family law cases a case management judge is assigned to deal with all pretrial matters and preside over the trial. Such was the case in G.T. v. A.T., where Mr. T. and his wife brought their procedural issues to Judge Leis for resolution.

During this 18-month period Mr. T. expressed his satisfaction to the Court with the way these preliminary matters were handled.

Nothing Mr. T. said pretrial could have foretold the application he brought when the trial commenced.

With almost no notice to his wife’s lawyer, Mr. T. argued that Judge Leis should recuse (remove) himself as the trial judge because he had been “disrespectful of the parties’ culture and faith, repeatedly pressuring Mr. T. to retain counsel with coercion and threats”.

Mr. T.’s complaints of judicial threats were held to be without foundation, Judge Leis pointing out that he was in receipt of five letters from Mr. T., all glowing with praise of the judge’s pretrial rulings. Remarkably it was Mr. T. who was disrespectful, advising the judge that if he did not recuse himself he would report him to the Commission on Judicial Conduct.

But that was just Day 1. Mr. T. wasted additional court time with a rambling, unfocused, and mainly irrelevant opening statement, the gist of which was his desire to reconcile with his wife.

He then cross-examined his long-suffering wife for four days, ignoring the Court’s direction that he should ask questions of her, not deliver time-consuming, self-serving statements.

He also disregarded the Judge’s evidentiary rulings and even after admonishment carried on with lines of questioning that were beyond the scope of the trial. He refused to abandon his recusal argument and raised issues about orders pronounced by the court months before. Worst of all, he was rude and nasty, shouting aggressively at his wife and her lawyer.

Of course, the main victim of his flagrant abuse of the court system was his wife, who had to take an additional nine days of holiday from her workplace to complete what should have been a three-day trial, and was now subject to ever-increasing legal fees.

Interestingly, Mr. T. had quit his job shortly after the couple separated, a tactic that was futile, since Judge Leis imputed $120,000 income to him, despite his refusal to work.

Unfortunately, short of finding a belligerent litigant in contempt of court, all a judge can do is award costs. That’s just what Judge Leis did, saying:

“Simple justice dictates that the defendant who chooses to function from a position of anger and resentment, not be allowed to purposely drive up the plaintiff’s counsel fees and act in such an inappropriate manner, without being made responsible for all of the trial fees. Therefore, in an exercise of this court’s discretion, the defendant is responsible for all of the plaintiff’s counsel fees for trial.”

You think Mr. T. is done with court proceedings? Think again…there’s always the appeal court.

Lawdiva aka Georgialee Lang

Judge Sentences Family Lawyer to Jail and Hefty Fine for Alleged Sarcasm

DSC00507 (2)I guess he woke up on the wrong side of the bed….what else could explain the short-tempered reaction of Chief Judge A.J. “Buddy” Welch Jr. of Henry County Juvenile Court in Georgia to family law lawyer Ella A.S. Hughes?

In the midst of his decision to remove Ms. Hughes’ client’s children from their home and into the custody of the child protection authorities, the following exchange took place:

“Judge Welch (to Hughes): “That expression, ma’am, just cost you $100. You are removed from the court approved list.”

Hughes tries to speak up, but Welch tells her to stop.

Judge Welch: “Your sarcastic looks and your sarcastic attitude is unacceptable to this court. You are removed from the appointed list. You can reapply at some other time. You can stay on the cases that you presently have but if I ever see that action from you again I can assure you that appropriate actions will be taken. Do you understand that, ma’am?”

Hughes: “Yes, sir.”

Judge Welch: “You may not like my rulings but you can surely appeal them.”

Hughes: “If I may, Your Honor, the only thing I did was bow my head to write down what you were saying.”

Welch: “No, ma’am. You did not. Now you have tested the court’s patience. I find you in willful contempt of this court. You are fined $1,000 and you are given 10 days in jail. Take her into custody. I want the record to reflect that the attorney I just had to hold in contempt was not just bowing her head but she was giving sarcastic, unprofessional looks, body action that showed her disgust for the court’s ruling and disrespect for the court in its entirety.”

And off she went to jail…for a few minutes…paid her fine and headed to the courtroom where her next client awaited her.

The Georgia Appellate Court overturned the contempt finding made against Ms. Hughes…Just another day in the life of a trial lawyer.

Lawdiva aka Georgialee Lang

Father Pays His Child Support, But Still Jailed for Six Months

DSC00280Texas father Clifford Hall has a great relationship with his 11-year-old son. He pays child support and sees his son regularly. So what’s the problem?

In November 2013 Mr. Hall was in court where his ex-wife’s lawyer confirmed there were no arrears of child support. Fast forward to January 2014, when he reappeared in court and was advised that due to an administrative error his direct deposits of child support to his ex-wife’s bank account had resulted in an underpayment of support. His ex also complained that he was not in adherence with their parenting agreement, as he was seeing his son more often than the agreement permitted.

He immediately paid the $3000.00 owing and expected to walk out of court with everything squared away. Not so fast…

Houston Judge Lisa Millard had something else to say “I sentence you to Harris County Jail for 180 days”. Gulp… That’s six months!

I have to wonder whether it gets dumber than this. A good father who pays his support and sees his child, who, but for an unintentional underpayment, will no longer be in a position to pay support, and can only see his son in a prison visiting room, while the State of Texas expends tens of thousands of dollars to keep him locked up.

Fortunately, there is now talk of a state judicial investigation and Change.org have started a petition directed at Texas governor, Rick Perry, calling for the release of Mr. Hall.

This judge needs her head examined!

PS Change.org is the online petition company that launched the internet petition against George Zimmerman in the Trayvon Martin case in Florida, obtaining 2.2 million signatures

Lawdiva aka Georgialee Lang