Should a Child Have His/Her Own Lawyer in Custody Cases?

The Ontario Court of Appeal has recently answered the question posed above in a case where a father asked the court to appoint a private lawyer for his two children, where he also sought to increase his parenting time with them. (Mader v. McCormick 2018 ONCA 340)

The parties separated in 2010 and negotiated a parenting schedule that gave the children’s mother primary residence with the father having overnight access every second weekend and after school access 4 nights a week. In 2013 the father sought additional parenting time and the Office of the Children’s Lawyer (“OCL”) was appointed by the court to represent the children. The OCL is a government agency in Ontario that is available by court appointment to act on behalf of children in family law, child protection and estate cases.

The OCL advised the children’s father that after speaking with their clients they ascertained the children were not in favour of additional time with their father. The father then abandoned his application.

In 2015 the father retired and with more leisure time again advanced a claim to have additional parenting time. He also requested the appointment of the OCL but his request was denied.

In 2016 the father took another stab at his desire to have more parenting time, however, this time he asked the court to appoint a private lawyer to represent his children who were both now young teenagers. Two lower courts denied his request for the appointment of a private lawyer for multiple reasons including their reliance on the children’s feelings about additional access as conveyed to the OCL two years earlier; the absence of any behavioural or academic issues that might indicate unhappiness with the current schedule; and the possible embarrassment of a further investigation involving their teachers and other collaterals.

The lower courts also expressed concern that the father’s request for private counsel was not “child-focused” and would burden the children with questions when they had already expressed their wishes.

On appeal from the lower courts the father cited the United Nations Convention on the Rights of the Child, arguing that the Convention obliged the court to appoint counsel for them. Article 12 of the Convention reads:

1. State parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child in particular be provided the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly, or through a representative or appropriate body, in a manner consistent with the procedural rules of natural law.

The appeal court confirmed that the appointment of counsel for children is a discretionary decision which should focus on the best interests of the child and deference should be afforded to a motion judge’s assessment of such an appointment. Ultimately, the appeal was dismissed.

The Court referred to Reynolds v. Reynolds 1996 ONSC 7273 where Fleury J. said:

“This remedy [appointing a lawyer for the children] should not be available only for the asking. In as much as it implicates the children very directly in the entire litigation, it is a very blunt instrument indeed. It can cause untold harm to impressionable children who may feel suddenly inappropriately empowered against their parents in a context where the children should be protected as much as possible from the contest being waged over their future care and custody. All actions involving custody and access over children should be governed by one paramount consideration: no one should be allowed to act in a way that might endanger their well-being. The test of “the best interests of the children” as insipid and fluid as it might be, still remains the benchmark against which any person wishing to interfere in their lives should be measured.”

Lawdiva aka Georgialee Lang

How to Ensure Your Family Court Judge Will Rule Against You….

Family law is incredibly emotional, particularly when it comes to parenting and children’s issues. But there are basic “rookie” mistakes that well-meaning moms and dads make, despite their valiant efforts to present themselves as good parents focused on their children’s best interests.

One of those mistakes is surreptitiously recording your children or your separated spouse.

So many Canadian judges have criticized this practice that it is almost trite law that it should be avoided. For example, Ontario Justice Pazaratz says in Whidden v. Ellwood, 2016 ONSC 6938

“Parents shouldn’t surreptitiously audio record their children. It’s a breach of trust; an abuse of access; and a cheap manipulation of an innocent child. Sheidaei-Gandovani v. Makramati, 2014 ONCJ 82 (CanLII), 2014 ONCJ 82 (OCJ); Hameed v. Hameed, 2006 ONCJ 274 (CanLII), 2006 ONCJ 274 (OCJ); Jackson v. Mayerle, 2016 ONSC 72 (CanLII), 2016 ONSC 72 (SCJ)”.

A British Columbia judge wrote:

“I am of the opinion that it is not desirable to encourage the surreptitious recording of household conversations, particular so when it is done in the family home and the conversations are between family members. This is an odious practice.” (Seddon v. Seddon 1994 BCSC 1062)

The rationale for filming your child during a parenting exchange time is usually done to show one of the following behaviours:

a) The child’s unwillingness to go to the other parent;
b) The child’s eagerness to go to the other parent;
c) The opportunity to present evidence of the other parent’s nastiness, bad language, late arrival, abusive behaviour, etc.

Yes, you will find judges who will admit audio/video recordings into evidence, but the general consensus is that they are rarely useful or necessary for a judge to determine how to determine custody or divide parenting time between parents.

Why do judges dislike audio or video recordings? Because:

a) Parents use recordings to make the other parent look bad, but more often then not it backfires, causing the Court to doubt the judgment of the recording parent;

b) Recording your child or spouse raises doubts about how a fit parent could be so insensitive as to place an innocent child in the middle of an inflammatory situation;

c) The clear message to the child is “Look how bad your mother/father is, so much so that I have to record him/her”.

And yet, clients will continue to ignore the good advice they receive from their lawyers and smartphones will continue to be a part of a warring parent’s arsenal…sad but true.

Lawdiva aka Georgialee Lang

Court of Appeal Orders New Trial for Father Because of Expert’s Fraud on the Court

In a groundbreaking decision last summer after a 147 day trial, Mr. Justice Paul Walker of the British Columbia Supreme Court found that B.C.’s child protection authorities had negligently permitted a father to sexually abuse his 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 parties agreed that her expert evidence from the family law trial would be admitted in the trial alleging negligence against the Ministry. Throughout the lengthy proceedings the father adamantly denied abusing his children, an assertion supported by several expert witnesses, but to no avail, as the court found he had abused them and he was barred from seeing them.

The father, who acted for himself, missed the deadline to file an appeal, however, three years later the Court of Appeal permitted him to proceed with an appeal, based on new evidence that appeared to establish that Dr. Reeves’ evidence was fraudulent. The credentials she touted, including a Doctorate in Clinical Counselling, Masters of Science in Clinical Psychology, Bachelor of Science in Family Mediation, and a Bachelor of Arts in Journalism, were “purchased” from so-called “diploma mills”.

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

This week, 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.

What is startling about this case is that the Rules of Court and related case law clearly set out the requirements for the admission of expert evidence, rules and law that were flagrantly ignored by the litigants and the trial judge.

The waste of court time and the related costs in this case are staggering, as the trial occupied months of court time. In my view this case screamed out for the appointment of an “amicus curiae” or “friend of the court”, a lawyer who does not represent the parties, but assists the court with information that bears on the case. The admissibility of evidence issues, other procedural flaws, and the duration of the proceedings should have been red flags for the court.

For the parents of the children in this case, more trial dates are expected. What remains to be seen is whether the mother will file a second negligence lawsuit against the Ministry, which will ultimately depend on the findings in the new family law trial.

Lawdiva aka Georgialee Lang

$500,000 Custody Case Garners Harsh Criticism

 

Another day…another courtroom, but the same insanity…. a custody battle that has cost two parents $500,000 in legal fees. This time it’s an exasperated Ontario Superior Court judge from Hamilton who asks the question, “How does this keep happening? What will it take to convince angry parents that nasty and aggressive litigation never turns out well?”

Mr. Justice Alex Pazaratz presided over a 36-day trial, awarding sole custody of an 8-year-old child to her father, a Toronto police officer. The Court’s Reasons for Judgment begin with the recitation of an email sent by the husband to his wife, a year after their separation, and before litigation commenced:

“We are both reasonable people and I really think we can work this out without spending $40,000 to $50,000 a piece in lawyer fees only to have a judge tell us something we could arrange ourselves. Please I’m begging you to be reasonable.”

It only takes one parent to turn a family law case into a hellish nightmare, and according to Judge Pazaratz that’s what an angry, foolish woman did. Consider the optics: Father wants generous parenting time, and mother refuses, turning the child against her father. In these situations, fathers will get nowhere unless they ask a court to intervene. At this point, most right-thinking parents would instruct their lawyers to negotiate a parenting plan, or attend mediation, with the goal of maximizing each parent’s time with the children, focusing always on the child’s best interests.  Sound so simple, doesn’t it?

In this case, dad spent $300,000, while mom spent $200,000. Judge Pazaratz said:

“Pause for a moment to consider the overwhelming tragedy of this case,…These are nice, average people. Of modest means (now considerably more modest). They drive old cars and probably pinch pennies shopping at Costco.”

The harshest criticism was leveled at the child’s mother, who the Court found had manipulated and falsified evidence, engaged in provocative and dangerous behaviour, and poisoned the child against her father. Judge Pazaratz described her conduct as “emotional child abuse… with their only child caught in the cross-fire”. Her deviant behaviour was triggered when her estranged husband began to move on with his life and began a new relationship.

The Court ordered the mother to pay costs to the father in the amount of $192,000, wryly concluding:

“In retrospect, (the father’s) sombre warning about ‘spending $40 – $50,000 a piece in lawyer fees’ now amounts to wishful thinking.”

Lawdiva aka Georgialee Lang

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Madonna Battles in New York Family Court for Return of Her Son

She’s one of those people whose one word name is instantly recognizable: Madonna. She and her ex-husband British director Guy Ritchie, were in family court in New York this week being scolded by Judge Deborah Kaplan over the custody dispute concerning their 15-year old son, Rocco.

Since 2008 Rocco has lived primarily with his mother in New York, however, on Madonna’s international Rebel Heart Tour last summer, Rocco decided to stay in Europe and moved in with his father who lives in England. Madonna was not pleased.

And neither was the judge this week. She admonished Madonna and Mr. Ritchie suggesting that while they appeared to enjoy living their lives in the media spotlight, their son did not. As is typical in custody cases the barbs flew…. Madonna’s lawyer, Eleanor Alter accused Mr. Ritchie of ignoring a court order and encouraging Rocco to do the same, while his lawyer, Peter Bronstein expressed the folly of forcing a 15-year old teenager to live with one parent or the other, against his wishes.

The expression often used for teens in custody disputes is that they “choose with their feet”, which is just what Rocco has done. Mr. Bronstein also noted the difficulty in forcing Rocco to board a plane back to New York… and he is spot on.

I remember a case I had many years ago of a mature 12-year old boy visiting his father in Vancouver during the summer, and when the vacation was over, he refused to return to his mother in Germany.

There was a court order that stipulated the exact date of this boy’s return and I warned my client that he was obliged to obey the court order, bring the child to the airport, and see that he got on the plane. But the boy took matters into his own hands.

Father and son approached the airline counter where the young man started screaming and tossing his clothes out of his suitcases and onto the floor. He created such a scene that the passenger agents paged the plane’s Captain to come to the counter to determine if they should force the child to board. Viewing the scene, the Captain refused to permit the young man to board the plane.

My client was clever enough to get the names of the other passengers in line who witnessed this spectacle and later agreed to be witnesses, confirming that my client had done everything he could to persuade the boy to board the plane.

Yes, the young man remained in Vancouver with his father after his mother realized she could not force him to return to Germany. A few years later his younger brother joined him. His arrival was unexpected and a real escapade, but that’s another story.

Lawdiva aka Georgialee Lang

Take Your Pick: 19 Dogs or Your Kids?

A couple in England lost custody of their two children, ages 7 and 2, when authorities discovered 19 dogs in their house, a home described by officials as “incredibly filthy and utterly squalid”. The children were placed into foster care.

At the time of the seizure of the children, their mother had been prosecuted by the SPCA and banned from owning any dogs for a period of 4 years.

After three years of foster care, the children’s parents, both in their fifties, brought an application to the court to have their children returned to them. Mother advised the court that once the ban expired she planned to have only 1 or 2 dogs.

Judge Peter Nathan denied their application despite evidence that the home was now neat, clean, and nicely decorated. He believed the improved conditions would gradually deteriorate, and he did not accept that the home would only house 1 or 2 dogs.

Other factors that caused Judge Nathan to refuse to return the children included:

1. He found that the children’s mother resented the intrusion of social services, police and other persons in authority;
2. He found that the mother’s expressed desire to involve the media, write a book, and participate in a film about the case was not in the children’s best interests;
3. He found that the children’s father was paranoid and had complained about social workers, the SPCA, the police, and the children’s teachers, and believed these authority figures were envious of his lifestyle.

An odd conclusion to an interesting case…the judge specifically found that the children’s parents loved the children and had changed the conditions in the home. If these parents were unfit, the court needed to say so. There must be lots of parents who disdain state intervention in their home life. While I understand the initial removal, I can’t understand why there was no “second chance”. Surely these parents or other family members would be preferable to state foster care. There must be something more to this case and if I find out, I will update this story.

Lawdiva aka Georgialee Lang

 

 

Brainwashed and Alienated Teens Found on “Underground” Farm

In April 2015 I wrote about the deception and lies that Sandra Rucki engaged in when she divorced her husband David Rucki in 2013. It began with a fraudulent one-sided consent order that she alleged her husband had agreed to. Once the order was overturned by the  Minnesota Court it escalated into despicable false allegations that father, David Rucki had sexually abused his two daughters, Gianni and Samantha, ages 13 and 14, and the spin-off of parental alienation.

The Court ruled there was no credible evidence to support Ms. Rucki’s claims and the girls were removed from their mother’s custody. David Rucki received custody  of them, but as the girls refused to see him, other family members would provide residential care.

The Court’s order provided a measure of hope to Mr. Rucki that his daughters could be de-programmed once they were removed from their mother’s influence. Instead what happened is that the girls, with their mother’s assistance, fled their new home,  although Sandra Rucki denied any involvement in her daughters’ disappearance.

In the summer of 2015, with the girls on the lam for over two years, the police arrested Ms. Rucki who was extradited from Florida to Minnesota after witness, Dale Nathan, a suspended attorney and longtime critic of the family courts, provided information that placed Ms. Rucki with her daughters at the time of their escape.

She has been charged with three felony counts of deprivation of parental rights and is being held  in Ramsey County workhouse on one million dollars bail.

Police advised the media that evidence seized from the home of  Dede Evavold led them to White Horse Ranch in Minnesota, where the teens were found. Ms. Evavold is a supporter of an organization called “Protective Parent”, a movement that  supports the notion that the family courts are broken and frequently award custody of children to abusive parents. It is believed to be part of an underground network of family court critics.

The website for White Horse Ranch describes it as a non-profit Christian organization that helps abused children heal with equine therapy.

Interestingly, Ms. Rucki’s attorney, Michelle MacDonald,  recently campaigned for election as a Minnesota Supreme Court judge. Her campaign manager? Oh, that was none other than Dede Evavold. Ms. MacDonald said she had no knowledge of Ms. Evavold being involved in the Rucki girls’  disappearance. Attorney MacDonald was also quoted in the media saying:

“I am in disbelief,  I hope [the girls] are reunited with their mother and brothers and sister, and even their father.”

Funny how she adds “their father”, almost as an afterthought, yet he is the custodial parent. I have said it before and I will say it again: parental alienation is the worst kind of child abuse.

Lawdiva aka Georgialee Lang

 

 

GUEST POST: TIPS FOR SEPARATING PARENTS

No couple imagines that the vows they once exchanged would cease to ring true one day. But we are all human, and things happen. Relationships dissolve. Divorce is hard for every couple that has to go through the process, especially those who had children together.

At the end of the day, you both want what is best for your children, but often that can get lost in the hurt and anger that surrounds the separation. However, with hard work and patience, you can have a healthy relationship with your ex, and you both can be happy with the new arrangement.

Blended families work best when a divorce happens and small children are involved. You both need to be on the same page parent-wise, while also moving on with your lives in other aspects. Despite what you may think, this can be done.

Working toward a happy arrangement with your ex, and each other’s future spouses, creates a happy environment for everyone. Plus, your kids will be relieved that you aren’t at each other’s throats. A happy divorce happens when the separated couple can at least speak to each other in a civilized manner while sharing custody and a role in their children’s lives.

Jumpstart the process to a happy divorce with these steps:

1. Visualize Your Goal

Think of how you wish the relationship to be with your ex. This could means anything from interacting cordially when dropping the kids off, to vacationing together. Make a realistic goal for your circumstance.

2. Create a Pause

Before interacting with your ex, gauge your emotions and what you expect would be your emotional reactions when you see him or her. Identify your problem areas and what you believe you need to work on. Calm yourself before the face to face, and teach yourself certain tricks to stay cool and collected, rather than blowing up out of anger. Preparing yourself on what to expect and how to react will help you to remain calm when it is actually go-time.

3. Think Positively

Positive thinking can go a long way. Every conversation will probably not go smoothly, but, with a positive outlook, you will be able to better work toward your goal of achieving a happy divorce.

4. Persistence

Along with your positive mindset, you will need persistence. There will be tough times and obstacles, but you cannot let that get you down. Also, try not to let your ex’s personal actions get to you.

Perhaps they seem to be moving on faster than you, or have had a better success at bouncing back financially. Don’t let these insignificant things trigger your ugly side. You don’t want your kids to witness an altercation, nor do you want to disrupt the mutual arrangement to strive for a happy medium.

5. Keep the End Goal in Mind

Remember that, in the end, this is all for your children. Never take your eyes off that prize. You two are the adults here, so suck it up and work hard to set good examples for your kids. Divorce isn’t what greatly affects children – it’s the way the divorce was handled.

 Guest Post from Atlanta, Georgia family law boutique firm Naggiar & Sarif

Naggiar and Sarif LLC focuses exclusively on  Family and Divorce Law litigation. They provide unparalleled and personalized legal counsel to those facing family law  issues and have earned numerous awards and distinctions.

Grandparents Jailed for Assisting in Children’s Abduction

Poor grandma and grandpa…thrown in jail for their misguided efforts to assist their daughter to flee England with her two children after the Court ordered a change in custody to their father.

The children’s mother had custody of her son, age 7 and daughter, age 2 until a judge ordered the children to be transferred to their father’s custody, leaving mom with one hour a month of supervised access. The mother’s “issues”, what ever they be, were plainly reflected in the draconian limitation placed on her time with the children.

And then a plan was hatched: Mother’s parents drove her and the children to a secret rendezvous spot under cover of night where mother, children, and six suitcases were loaded into a chauffeur driven Mercedes for the journey to Charles de Gaulle airport in Paris where they hopped on a flight to Costa Rica. They had escaped, or so they thought.

Police investigators naturally began their search for the missing children at their grandparents’ home. The grandparents advised the police that the children had spent the night at their home, but in the morning when they awoke the children and their mother were gone, leaving only a note.

However, their story quickly fell apart when police discovered a text message from granny to her daughter that showed her daughter’s location in the Channel Tunnel enroute to France.

More damning evidence emerged from roadside video that showed the Mercedes and other footage displayed the abducting mother’s vehicle being driven by grandfather back to his home.

Eventually the police learned that mother and children were in Costa Rica and not surprisingly, the children were already on the local constabulary’s radar as it had been reported that the children were wandering through their hotel without supervision, their mother’s whereabouts unknown.

The children’s father’s wife and a social worker arrived in Costa Rica to retrieve the children from an orphanage and return them to England, a task that took almost six weeks to obtain the proper paperwork from local authorities. All tolled, the children’s ordeal lasted two and a half months before they landed on British soil.

Grandma was jailed for 14 months, while her husband, who was less involved, was sentenced to 12 months in prison. Judge John Wait said to the elderly offenders:

“The consequences of this case have been quite awful. You were responsible for some of this but those acts were done out of love and emotion, not for money. You knowingly flouted a court order and told lies in the Royal Courts of Justice.”

Mother remains in Costa Rica but extradition proceedings are pending. You can be sure this mother will receive a lengthy jail sentence once she is back in the United Kingdom.

Lawdiva aka Georgialee Lang

Legal Tsunami Accompanies Custody Battle

The level of vitriol, anger, and violence that finds its way into child custody litigation is beyond frightening, as common sense is displaced by exaggerated allegations, bizarre threats, and all too often, bodily harm or death.

The case of Tiffany and Eric Stevens of Connecticut represents the thin edge of the wedge, a story replete with allegations of infidelity, drug abuse, domestic violence, failed stints in rehab, mental health evaluations, child protection issues, harassment leading to a restraining order, exorbitant gambling debts,a hit man, and police intervention. Whew!

All it took was a five-year marriage and one little girl to create a legal tsunami that saw the Stevens’ in court on 200 occasions, the last being Tiffany Steven’s trial for hiring handyman cum hitman, John McDaid, to kill her husband for a fee of $5,000. When Mr. McDaid told Mr. Stevens of his assignment, the jig was up, and Tiffany was arrested for the attempted murder-for-hire.

But believe me, neither Tiffany, age 39, or Eric, age 49, qualify as “parent of the year”. Mr. Stevens stupidly wrote to his estranged wife saying:

“”I am going to let you bury yourself with your lies and then I am going to shovel the dirt onto your body…I will be dreaming of you laying in our bed with your addict boyfriend, the one that your mom bought us for a wedding present, and wondering to myself if you’re in that bed when they come. Will the mattress be saveable or will it have to be thrown out from all of your blood?”

When will litigants ever figure out that written expletives and threats of violence are a ticket to doomsday? Eric’s behaviour resulted in a restraining order against him and a custody order in favour of Tiffany, while he was saddled with supervised access that apparently never occurred.

Ms. Stevens advised the family court that Eric detonated his Mercedes and her BMW for the insurance money to avoid the wrath of his Mafia creditors. She also said Eric told his insurance company that all of their jewellery had been stolen to access yet more funds to pay gambling debts.

While Eric disavowed the insurance fraud he admitted his gambling debts, and agreed he posted his wife’s contact particulars on a Craigslist sex page.

Ms. Stevens was released on $1 million dollars bail after her arrest and continued to parent their daughter. The jury deadlocked during her first trial in December 2014 but this week she admitted the lesser charge of inciting injury to person and received five years probation and a ten-year suspended prison sentence.

The prosecutors threw in the towel in light of evidence, albeit from a convict, that Eric Stevens “set-up” Ms. Stevens to take a fall for a murder-for-hire that never was.

The custody battle rages on as Mr. Stevens remains committed to ensuring a relationship with his daughter. Mr. Stevens’ last word is that his ex-wife “bought” her slap on the wrist, or rather her wealthy father did. He has been self-represented for some time.

Lawdiva aka Georgialee Lang