The Ghomeshi Verdict: Part 3

GeorgiaLeeLang016While some have tried to characterize this decision as gender discrimination, the truth is these witnesses can blame no one but themselves for the Court’s devastating critique of their characters.”

The allegations against Mr. Ghomeshi came from three witnesses, each of whom was thoroughly discredited. That the Crown did not abort their case mid-trial is astonishing to me. I can only imagine the conversations between the Crown lawyers and their embarrassment as they presented their case.

The third witness/victim was referred to as S.D. She was a professional dancer and met Mr. Ghomeshi after a performance in Toronto. They had one dinner date and then met after one of her shows and took a walk to a local park. S.D. told the police that it was after dark when they sat on a park bench and kissed. She said she felt his hands and teeth on her neck. She said it was “not right”, “rough”, and unwelcome. She socialized with Mr. Ghomeshi at public events two or three times after that evening and then had no further relationship with him.

Her evidence at trial was problematic. It was imprecise and inconsistent. An excerpt from the trial illustrates this:

“ He had his hand-it was sort of-it was sort of his hands were on my shoulders, kind of my arms here, and then it was-and then I felt his teeth and his hands around my neck…It was rough but-yeah, it was rough.”

Question: “Were his hands open, were they closed?

Answer: “It’s really hard for me to say, but it was just-I felt his hands around my neck, all around my neck…And I –I think I tried to-I tried to get out of it and then his hand was on my mouth, sort of smothering me.”

When asked about her report to the police and the lack of detail she said she was still “trying to figure it out”. When asked if she had spoken to one of the other witnesses before providing her evidence to the police she said she had not. However, under cross-examination she admitted that she had.

Most damaging to S.D. were the Court’s findings that she and witness Lucy DeCoutere had joined forces to bring Mr. Ghomeshi “down”. S.D. and Ms. DeCoutere had exchanged 5,000 emails in a 12-month period. The Court described the strong bond forged between the two women as they discussed witnesses, court dates, and meetings with the Crown. They initially hired the same lawyer and shared a “publicist”, an unusual professional adjunct for a sexual assault victim.

S.D. was adamant that she cut off all further contact with Mr. Ghomeshi and tried to “keep her distance”. What she failed to disclose until the trial was that she and Mr. Ghomeshi had another date at her home where she admitted they “messed around”, describing the sexual acts she engaged in on that occasion. She was forced to admit she had deliberately lied and tried to conceal her continuing relationship with him.

She explained she didn’t think it was important and invoked the Bill Clinton defence “we did not have sexual relations”.  It didn’t work for Bill and clearly undermined her testimony.

The Court also learned that six months after the alleged assault she sent Mr. Ghomeshi an email inquiring whether he “still wanted to have that drink sometime?” Not exactly the sentiment of someone trying to keep their distance from an alleged sexual offender.

Of course we know that Mr. Ghomeshi was acquitted of all charges, thanks to the tenacity of his lawyer, Marie Henein. The Court commented on her skillful cross-examination of the three witnesses:

“The cross-examination dramatically demonstrated that each complainant was less then full, frank and forthcoming in the information they provided to the media, to the police, to Crown Counsel and to this Court.”

The sad truth is that once a witness perjures her or himself their credibility is lost. The Court said the “volume of serious deficiencies in the evidence left the Court with reasonable doubt.”

While some have tried to characterize this decision as gender discrimination, the truth is these witnesses can blame no one but themselves for the Court’s devastating critique of their characters.

Lawdiva aka Georgialee Lang

Parental Alienation Leads Court to Call Father a “Wallet”

There are many divorced fathers in Canada who believe they are nothing more than a “wallet” in their children’s eyes. It is rare however, for a judge to confirm that status in Reasons for Judgment, but that is exactly what Mr. Justice Gray did in his recent decision in Veneman v. Veneman 2012 ONSC 6324.

Mr. and Mrs. Veneman separated in 2004 after 11 years of marriage. Mr. Veneman left the family home but maintained the financial status quo and enjoyed a good relationship with the children, ages 8 and 11.

The apparent bliss of separation disappeared, however, when Mr. Veneman commenced a personal relationship with a woman he met on the internet. His ex-wife’s reaction was venomous as revealed in vulgar emails from her to Mr. Veneman where she called his girlfriend an “internet whore”.

At about the same time, Mr. Veneman decided that after two years of separation, the parties should reorganize their financial affairs. He closed the joint account that his wife and he shared since the date of separation and began paying voluntary child and spousal support.

Ms. Veneman’s campaign of abuse against Mr. Veneman was quickly adopted by his two girls who also began writing mean-spirited and disrespectful emails to their father. The children were particularly angered by their father when he brought his girlfriend to a birthday party for one of the girls hosted by the girl’s paternal grandparent. This was the first occasion they had met her, although Mr. Veneman told his children about her and their relationship.

As time went on, the girls also sent emails scolding their father for failing to provide sufficient funds to their mother. The Court found that Ms. Veneman liberally shared her views about his girlfriend and his financial contribution, all actions which eventually led to the termination of any father/daughter relationship.

Eldest daughter Maggie described her father in an email to him as “selfish, greedy, lying, back-stabbing, neglecting, blackmailing, bribing, idiotic, mean and just overall a stupid person”. This kind of poison most often originates from a parent who cannot see that their attitude is severely harming their children.

Despite the difficulties, Mr. Veneman continued to make every effort to reconnect and appease his children but all overtures were rebuffed by them.

With his older daughter approaching the age of nineteen and attending Queen’s University, Mr. Veneman brought an application to court asking for an order that his obligation to pay child support cease upon her birthday.

Several years earlier, he had agreed to an order that he pay 75% of his children’s post-secondary education costs, but he now argued that her termination of any relationship with him was cause for the court to reconsider his child support obligations.

Mr. Veneman relied on several cases where courts noted that an adult child’s unilateral and unreasoned abandonment of a parental relationship could lead to a termination of support. Other cases, however, were cited where the proposition was accepted that “estrangement, even at the sole instance of the child, should not be relevant”.

Judge Gray, however, did not need to grapple with which authority was correct as he was able to decide the case by finding that the father had not shown a material change in circumstances, which was the required test to vary a child support order. The judge held that when Mr. Veneman agreed to pay post-secondary expenses in 2009, he had no relationship with Maggie, and had no relationship now.

He declared that Mr. Veneman “was nothing more than a wallet” and said the blame for the alienation must be assumed by both parents.

It is here where I part company with the judge’s findings. It is startling to suggest that the clumsy, perhaps even insensitive, introduction of a new partner to one’s children who are 10 and 13, after two years of separation from their mother, constitutes conduct that is blameworthy.

In my view, Ms. Veneman’s immature behavior is the reason her children have ousted their father from their lives. I hope when the girls figure it out, which they will, they will clearly understand their mother’s role in a tragic family situation the judge called “irrational and avoidable”.

Interesting that if you are part of an intact family you can decide how much you want to contribute, if any, to your child’s education, but if you are separated or divorced the State decides.

Equally interesting is the absence of any reference to “parental alienation”. I guess if you don’t say it, it doesn’t exist.

Lawdiva aka Georgialee Lang

Family Law Lawyer Ordered to Pay Costs Personally

Practicing family law is difficult enough without having to be wary of opposing counsel’s wily tactics. One of the cardinal rules of litigation is to provide notice to opposing counsel (or to an unrepresented litigant) of any steps you intend to take in court to pursue your client’s claims. To proceed without notice, also called “ex parte”, ought to be a rarity, particularly in the emotionally charged dynamics of a family law proceeding.

Recently Toronto lawyer and former 2010 mayoralty candidate, Rocco Achampong, was handling a high-conflict custody matter that resulted in a judge ordering him to pay costs of $1200.00 to his client’s husband for “sharp practice”. Such an order is extremely rare and only made when a lawyer’s conduct has been seriously egregious.

The case started with Mr. Achampong’s client, who was living in the family home, obtaining an ex parte order for custody of her two-year-old daughter from the Ontario Court of Justice. That action resulted in her husband bringing a cross-motion for the same order, however, the parties talked through matters and decided to reconcile. All court action was terminated and the temporary custody order in favour of the mother was vacated.

Their reconciliation, however, was brief and ended after police were called to the home for an alleged incident of domestic violence. Promptly thereafter, the father brought another application to court seeking custody of his child and alleged that he and his wife had previously agreed they would share custody, but she had reneged on their oral agreement. After filing the application but before he obtained a fresh court order, he went to the child’s daycare and brought the child to his home.

This triggered a landslide of emails, letters and telephone correspondence between the parent’s respective lawyers, all of which adopted a conciliatory tone as the lawyers made efforts to resolve their clients’ problems without further court action. Different resolution options were canvassed including a 4-way meeting with clients and counsel, a mediation session, or an expedited return to court to have a judge assist.

However, while father and his counsel, Mr. Schuman believed their negotiations were bearing fruit, Mr. Achampong was hurriedly preparing court documents, while lulling opposing counsel into believing that the only issue between them was the selection of a mediator.

In the meantime, father’s counsel had obtained an expedited hearing date as well, as a back up, and delivered his application documents to Mr. Achampong.

Despite this, Mr. Achampong obtained a custody order from the Ontario Superior Court of Justice, a higher court in Ontario with the same jurisdiction as the Ontario Court of Justice to make child custody orders.

He did all of this without notice to opposing counsel, and without advising the judge that a new hearing date had already been secured in the lower court. Neither did he tell the Court that as recently as that morning, he had been involved in ongoing settlement discussions with father’s counsel.

Mr. Schuman was furious with the betrayal and reported Mr. Achampong to the Law Society. His client then brought an application for costs against Mr. Achampong personally. The Court made the following observations:

“Mr. Achampong never advised Mr. Schuman that he was wasting his time in the Ontario Court of Justice since his intention was to have the case heard instead in the Superior Court of Justice. He had an obligation to do so. Even if his client instructed him to proceed in the Superior Court of Justice (likely the case) and not to immediately advise Mr. Schuman (this is unknown), he cannot hide behind the excuse of client instructions. It was his obligation to let Mr. Schuman know that he would be proceeding in a different court, so that Mr. Schuman did not prepare needlessly for a case that would be stayed.

Mr. Achampong demonstrated poor judgment in exercising his professional obligations to Mr. Schuman on October 12, 2012. It is apparent from a review of the correspondence of counsel on that day that they were discussing urgent mediation to try and resolve the temporary issues. Mr. Schuman was taking steps to expedite this process. While Mr. Achampong asked for his client to be able to speak and see the child, there was no indication that he would be immediately going to court to obtain relief. It was certainly reasonable for Mr. Schuman to believe from the correspondence that the process would be mediation first, and if the case was not adjourned, that the temporary motions about parenting arrangements would be argued on Tuesday, October 16, 2012, in the Ontario Court of Justice.”

Mr. Achampong compounded his ethical breach by arguing before the Court that he had done nothing wrong. Another lesson learned. Best to fall on one’s sword than to justify improper behavior. The costs order is miniscule compared to the embarrassment of the national publication of his breach of professional ethics.

My guess is that in his zeal to have his client’s child returned, he forgot about his professional obligations as an officer of the court. In my view, no client’s case is worth a breach of ethical standards.

Lawdiva aka Georgialee Lang