Appeal Court Says Judges Cannot Avoid Determinations of Grave Risk of Harm in Hague Convention Cases

The Ontario Court of Appeal recently reversed a Hague Convention order that a mother from England must return to England with her two children, failing which her British husband would have custody of their children. (Zafar v. Saiyid (2018) ONCA 352)

As is becoming typical in Hague cases, the mother and her two young children who had Canadian citizenship,travelled to Canada for a summer holiday, with the permission of her spouse, and the intention of returning to England by a prescribed date.

On August 23, the mother advised the children’s father that their marriage was over and that she would remain in Ontario with the children. He promptly filed a Hague Convention application seeking the return of the children.

At the court hearing the mother conceded that the children’s habitual residence was England, which is the primary question when a Hague application is brought. The law is very clear that children must be returned to their habitual residence where the question of their residence will be determined.

However, Article 13 (b) of the Hague Convention permits a removing parent to argue that the child should not be returned where the other parent poses a grave risk of physical or psychological harm to the child or the spouse. Ms. Saiyid alleged that her husband was “threatening, verbally abusive, financially controlling” and presented “intolerable behaviour towards the mother, smoke and drank”, which reflected an inability to create ” a safe environment free of danger for the children.”

The hearing judge ordered the mother to return the children to England by December 1, failing which the children’s father would have sole custody of the children. He said:

“In a Hague application, I am not to determine the best interests of the children, only jurisdiction. In any event, on affidavits I cannot determine who is telling the truth about Mr. Zafar’s conduct.”

On November 27 the mother obtained a stay of the judge’s order, however, shortly thereafter she voluntarily returned to England with the children and brought an application to the British court seeking orders that she may relocate to Canada with the children.

Nonetheless, she wished to continue with her appeal in Ontario on the basis that the judge’s alleged errors of law could be used against her in the new British proceeding.

The appeal court agreed that her appeal was not moot for the reason she identified and held that the hearing judge erred in stating that he could not determine whether the children were at grave risk of serious harm, delegating that issue to the English courts. The court held that the hearing judge ought to have made a decision based on the record; or considered whether it was appropriate to hear oral evidence from the parties. The hearing judge’s decision to explicitly decline to consider the matter was an error in law.

While the task is enormous, where conduct allegations are thrown back and forth haphazardly, it is a judge’s duty to sift the wheat from the chaff. Oral evidence, with cross-examination is often the best way of doing that. These cases are the most difficult, particularly when young children are involved, when the question becomes “which parent is most believable?”

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

 

 

Fifty-Year-Old Woman Can Refuse Life-Saving Treatment Where She Has Lost Her Youth and Beauty

Assisted suicide is a complex social issue, one that many people struggle with. I have come to the conclusion that if a person has a fatal or incurable condition with no quality of life or unmanageable pain, it is simply humane to engage a physician to assist in a peaceful passing. However, I am still concerned there will be inappropriate, even frivolous medical conditions that will pass scrutiny as doctors and the public become comfortable with new laws legalizing assisted suicide.

A related issue is whether an otherwise healthy adult with a medical condition that can be treated, should be permitted to refuse treatment where the result will be death.
A case in England last month comes to mind where a 50-year-old woman who said she “lost her sparkle”, meaning her youth and beauty, was the subject of a court application to determine whether she would be permitted to refuse lifesaving treatment following a suicide attempt.

The woman was first diagnosed with breast cancer and refused any treatment that would “affect her wearing a bikini” or “make her fat”. A year later she went through a high-
conflict relationship breakdown, lost her business and home, and incurred significant debt. She tried to commit suicide by taking an overdose of an over-the-counter analgesic called paracetamol, not unlike aspirin, quaffing them with liberal amounts of champagne. The suicide attempt failed leaving her with a serious kidney condition that could be reversed with dialysis. She refused the treatment.

Her doctors contacted the Health Authority who applied to the Court for an order that she be treated, despite her refusal to consent. Justice MacDonald described her as a woman to whom youth and beauty was most important, she was unconventional in her lifestyle: married four times, had several affairs, and drank excessive amounts of alcohol. In short, she was a “party girl”.

Her daughter told the court, “Put bluntly, her life has always revolved around her looks, men, and material possessions. She understands that people have failed relationships,
feel sad, and continue living, but for her, she doesn’t want to ‘live in a council flat’, ‘be poor’ or ‘be ugly’, which she equates with being old.”

The judge considered whether the woman was competent to make an informed choice, ruled that she was, and refused the Health Authority’s application to force her to undergo treatment. Mr. Justice MacDonald added that his ruling did not prevent the woman’s doctors from “continuing to seek to engage with her in an effort to persuade her of the benefits of receiving life-saving treatment”.

She died fifteen days after the Court permitted her to refuse the life-saving dialysis, leaving behind three children including one who was still a dependent, all because in her dysfunctional mind she felt old, a state she equated with ugliness. Very sad.

Lawdiva aka Georgialee Lang

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

Extortion and Nude Photos Send Ex-Husband to Jail for Twelve Years

How would you like to marry a billionaire’s daughter? James Casbolt from Cornwall, England made an internet connection in 2009 with Haley Meijer, daughter of American billionaire, Hank Meijer, owner and CEO of a retail conglomerate with his brother, Doug, consisting of 213 grocery and pharmacy stores, 177 gas stations, and other related businesses, located in Michigan, Illinois, Ohio, Kentucky, and Wisconsin.

Their attraction was immediate and mutual.

They moved in together in Cornwall and later moved to the state of Michigan, marrying in 2011. Mr. Casbolt enlisted in the US Army and was posted to Texas whereupon he persuaded Haley to send him sexually explicit photos of herself to fend off his loneliness. She in turn made him promise he would never show them to anyone else.

They later had a child together but domestic violence led to their separation and divorce. James Casbolt was bitter and angry with the demise of his marriage and began a campaign of threats and abuse, writing

“If you are living with another guy, you just gave him a death sentence”.

He also threatened to send suicide bombers to her parents’ home and demanded a large sum of money saying “If my terms are not met, I can tickle the public interest for years, until the Meijers are so infamous in the world they will not be able to walk down the streets safely.”

But he had already released some photos on Facebook, many of them photo-shopped to look seedier than they were.

Casbolt, now living in the UK, also told his ex-wife that he would dedicate the rest of his life to destroying her, that his efforts would be inexhaustible, and he would continue for years. He sent her photos with images of him wielding a sword and a gun. He threatened: “Your dad could be lynched in the street” and sent an email that read:“[£]2M. Put in my bank account. I will then stop talking about the Meijer family.”

In a trial this week in England James Casbolt was sentenced to 12 years in prison.

“You systematically set out to destroy her reputation. Thousands of people with gullible minds saw the photos and doubtless believed the horrible lies you wrote.”

Internet Trolls: Be Careful Who You Diss Online…

Colorado Springs attorney Timothy Bussey was incensed when he read a comment on his Google Map page declaring him a “scumbag” and accusing him of paying for positive internet reviews of his legal skills. The anonymous source, ostensibly a dissatisfied client, also wrote that Bussey “lost 80% of his cases”.

Needless to say, the post was damaging to his reputation and his business as a lawyer. It was also not true, so he hired a California law firm to find out who the “internet troll” was.

After months of legal manoeuvering Bussey was able to issue a subpoena to Google who were compelled to disclose the source of the post, enabling him to locate 20-year-old Jason Page of Telford, England. Young Mr. Page denied any culpability for the online defamation, insisting that his Google account had been hacked, but a British court threw the book at him, ordering him to pay 50,000 pounds in damages and an additional 50,000 pounds in costs to Mr. Bussey, pending a full accounting of his costs.

Judge Sir David Eady surmised that while it was difficult to understand why Mr. Page had attacked Bussey it was likely because he received a financial reward for his effort.

Taking into account the length of time the post remained online, over one year, and the ‘grapevine effect’ of the internet, the judge said he had no doubt that the post had caused serious damage to Mr. Bussey and his firm’s good name.

As for Bussey, he is determined to find out who paid Jason Page to ruin his livelihood and has every intention of initiating further legal proceedings.

England’s reputation as the “libel tourist” capital of the world has been well-deserved because of its liberal defamation laws. Prior to recent amendments to the law, persons could successfully sue for libel without proving any damage to their reputation, it was enough that the impugned language was capable of inflicting damage. As well, England allowed persons who had no connection to Britain to use their libel laws and court system to chill freedom of speech, an infringement that the Defamation Act of 2013 has now eliminated.

Whether you are a plumber, a restaurant owner, or a lawyer, your business lives or dies based on your reputation in the community. As Warren Buffet said “It takes 20 years to build a reputation and five minutes to ruin it.”

Lawdiva aka Georgialee Lang

Guest Post: The Most Expensive Divorces Ever

Everyone knows that divorce can be an expensive process, but some of the sums involved in the world’s most expensive divorces are truly eye-watering.

Expensive divorces have been in the news recently with the Russian oligarch Dmitry Rybolovlev being forced to pay his former wife $4.5 billion in what has been called the “most expensive divorce in history”.

The order came from a Swiss court, with Elena Rybolovlev’s divorce solicitors branding it a “complete victory”. Her former husband is now set to lose half of his wealth.

Dmitry Rybolovlev’s spokesperson Serget Chernitsyn argued that the divorce was a “win” for him, although his lawyers are said to be launching an appeal. Query why Mr. Rybolovlev would appeal if he won his case? Pure bafflegab!

The couple was married for 23 years and it took six years for the case to be completed. Rybovelev made his money from the potassium fertilizer industry and is the owner of the Monaco Football Club. He is also famous for buying the Palm Beach Maison de L’Amitie from Donald Trump for chump change, around $95 billion!

THE DIVORCE OF MURDOCH AND DENG

Controversial media tycoon Rupert Murdoch’s 2013 divorce from Wendi Deng cost him a reported $1.8 billion even though he had a pre-nuptial agreement. This gives you an idea that prenps may not be everything they are cracked up to be, particularly if a couple’s circumstances change and children enter the picture.

They were married for 14 years and it is likely the payout to Ms. Deng was so high due to the needs of their daughters’, among other reasons. Deng, who is almost 40 years his junior, hit the headlines when she slapped a protestor who threw a pie at her husband during the phone-hacking enquiry in 2011.

Murdoch married Deng just two-and-a-half weeks after his previous marriage was finalised in 1999 with the help of divorce lawyers. He also paid a bundle to his first wife!

THE WILDENSTEIN’S DIVORCE

The 1997 divorce of Alec and Jocelyn Wildenstein cost an estimated $2.5 billion. Alec was from a family of famous art dealers and their divorce was seen as a huge scandal. Things turned sour when Ms. Wildenstein caught her husband in bed with a young Russian model.

Alec then, wielding a gun, threatened his wife and for his trouble spent a sleepless night in the local jail. Judge Marilyn Diamond, who presided over the divorce proceedings received a number of death threats.

Judge Diamond told Jocelyn that she could not use the alimony payments for cosmetic surgery, as by this time Ms. Wildenstein’s multiple surgeries led to her nickname “The Cat Woman”.

The Court gave her $2.5 billion and $100 million every year for 13 years after. Alec Wildenstein died in 2008 leaving his young Russian widow.

ECCLESTONE PAID BY FORMER WIFE

Formula One tycoon Bernie Ecclestone raised eyebrows when it was made public that he was being paid by his ex-wife following his 2009 divorce.

Documents recently released showed that Ecclestone was receiving $100 million dollars each year from his former wife Slavica’s trust fund. Information about how long the payments would continue have not been made public.

It’s said that this divorce was worth $1.2 billion, placing it high in the top ten divorces in history. Ecclestone is one of the sporting world’s most controversial figures and famously paid a significant sum to escape bribery charges in spring 2014.

It seems the richer you are, the harder you will fight to retain your wealth. Quite amazing to realize that these couples could not in a lifetime spend all the money they have.

“Money often costs too much.” –Ralph Waldo Emerson

This post was GUEST AUTHORED by RIX AND KAY, Family law solicitors from Sussex, Brighton, East Sussex and Kent in the UNITED KINGDOM, an experienced team of barristers and solicitors.

Family Law Lies Endanger “Save China’s Tigers” Charity

Stuart Bray met his wife Li Quan in 1990 and quickly embraced her passion to save China’s tigers and to develop a breeding program to reintroduce China’s tigers back to their wild reserves.

Each of them invested huge sums of money, time, and energy into their joint charity called “Save China’s Tigers” which was established in the United Kingdom in 2000.

Mr. Bray had a successful career in finance and banking before leaving the Deutsche Bank with a libel judgment in his favour for $20 million pounds. Ms. Quan and Mr. Bray began living together in 1997 and married in 2001.

Regrettably, the couple’s marriage floundered, in part because they could not agree about future policy for their tiger project. Ms. Quan commenced divorce proceedings in the divorce capital of Europe, London, England, and was removed from the directorship of the charity.

She alleged in Court that the millions of dollars held by the charity had been used by her husband as the family’s personal piggy bank and the estimated $25 million pounds remaining should be divided between them equally. The couple has few assets apart from the funds held by Save China’s Tigers.

At the outset, the Court noted that the determination of this preliminary issue would have a profound effect on Ms. Quan’s claims.

Judge Sir Paul Coleridge of London’s Family Division of the High Court found that Ms. Quan was bent on revenge, noting that she had gone so far as to say that if she could not lead the charity, she would rather destroy it. The Court heard that since the separation Ms. Quan has established a charity in competition with Save China’s Tigers.

However, the Court found there was no evidence of “past, present, or future benefit to the parties”, soundly rejecting Ms. Quan’s allegations. Justice Coleridge said her evidence was “fabricated to assist her case”.

Mr. Bray’s testimony was found to bear “all the conventional hallmarks of honesty and accuracy”.

Disappointed with the result, Ms. Quan remarked that she would appeal the decision.

Sir Paul Coleridge is a renowned jurist who recently retired from the English bench.

Lawdiva aka Georgialee Lang

Facebook Friendship Turns Fatal

With the explosion of internet dating and the old tried-and-true “I met him at a bar”, women have every reason to be cautious about who they hook up with. Certainly, if they are not, they are taking an enormous chance that their new boyfriend has a past that would scare even a female wrestler.

Sadly, domestic violence in dating relationships is rampant. Studies show that domestic/dating violence is experienced by 25% of women worldwide and is the leading cause of injury to women, far outpacing car accidents, muggings, and rapes combined.

While women are the predominant victims, 15% of intimate partner violence victims are men. Research also tells us that in 70-80% of domestic homicides, no matter which partner is killed, these tragic events were preceded by domestic violence in the relationship.

It took one such murder to galvanize lawmakers in England and Wales who recently enacted “Clare’s Law”.

Clare Wood, 36, was strangled and set on fire by her ex-boyfriend, George Appleton, at her home in Manchester in 2009. Clare, a single mom, met George on Facebook, completely unaware of his atrocious history of violence against women, including multiple harassments, threats, and the knifepoint kidnapping of a former girlfriend.

After her death, Clare’s father, Michael Brown, vigorously lobbied for new laws to assist women like his daughter, resulting in the enactment of the Domestic Violence Disclosure Scheme this month.

This new program provides information, upon request to the police, about a partner’s previous history of violence. A pilot project testing the new law saw 100 people in four police areas access potentially life-saving information.

It is hoped that this legislated “right to know” will help women make informed decisions about who they let in their lives.

Lawdiva aka Georgialee Lang