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

DSC00280The 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

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BC Notaries Challenge to Lawyers’ Turf Dismissed

GeorgiaLeeLang025What is the difference between a notary public and a lawyer? While notaries are held to the highest standards of ethics, their training is far different than that of a lawyer. They must have an undergraduate degree with a B average, complete an 18 month course and write exams, and then do 6 weeks of practical training with the Society of Notaries.

As for lawyers, most have an undergraduate degree and are then required to complete 3 years of law school, followed by a 1 year articling program which includes a 9 week professional legal training course, and then pass the rigorous bar exam.

Interestingly, lawyers in British Columbia are automatically awarded the designation of notary once they are called to bar.

What services can notaries offer? Most commonly notaries take oaths on affidavits or statutory declarations, prepare residential real estate transfers, and mortgage documents, draft powers of attorney, and prepare simple wills.

It is the drafting of wills that has been the subject of discontent among notaries, who recently brought a court challenge, seeking to expand their will repetoire to include the preparation of wills that contain life estates and trusts.

In a court decision dated December 21, 2017, The Society of Notaries Public of British Columbia v. The Law Society of British Columbia 2017 BCCA 448, the BC Court of Appeal dismissed the notaries action. The restriction on notaries regarding wills is found in the Notaries Act RSBC 1996 c.344:

s. 18 “A member enrolled and in good standing may do the following:

(b) draw and supervise the execution of wills

(i) by which the will-maker directs the will-maker’s estate to be distributed immediately on death,

(ii) that provide that if the beneficiaries named in the will predecease the will-maker, there is a gift over to alternative beneficiaries vesting immediately on the death of the will-maker, or

(iii) that provide for the assets of the deceased to vest in the beneficiary or beneficiaries as members of a class not later than the date when the beneficiary or beneficiaries or the youngest of the class attains majority;”

The Court of Appeal held that the legislation did not contemplate the drafting of wills that included trusts or life estates. They summarized and rejected the following argument made on behalf of the notaries:

“For example, they say that when a will-maker leaves real property to A subject to B having a life interest in that property, since A’s interest vests immediately, the property has been “distributed immediately” to A, notwithstanding the fact that A is not entitled to possession or use of the property until B dies. I am unable to accept this argument.”

This is not the first time notaries have sought to increase the services they may provide. In an earlier British Columbia decision, The Law Society of British Columbia v. MacDonald 2013 BCSC 1204, the Law Society successfully sued notary public Ms. Macdonald and sought an injunction against her for the unauthorized practice of law. She had prepared a will that included a trust and a life estate.

The expansion of legal services to professional who are not lawyers remains controversial, but where access to justice has become critical right across Canada, it is in the public’s interest to expand the expertise of those trained to provide legal assistance. With respect to the notaries, their court overtures have been rebuffed. Perhaps they should now focus on lobbying the provincial government to amend the Notaries Act and legislate additional training to accommodate expanded legal services.

In other jurisdictions, like Ontario, paralegals have been given enhanced status and are licensed and regulated through Ontario’s Law Society. They can practice independently, without supervision by a lawyer, if they meet the educational requirements and practice standards. Notably, licensed paralegals can represent clients in Small Claims Court, and handle matters under the Provincial Offences Act and summary convictions where the penalty is not more than 6 months imprisonment. They may also give advice and act for clients in residential tenancy matters and worker’s compensation matters.

My view is that the public needs more legal services from qualified individuals, not less. Lawyers who are good at what they do need not be threatened by notaries public or licensed paralegals.

Lawdiva aka Georgialee Lang

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It All Seemed So Good: Toronto Neurosurgeon Arrested for Murder of Wife

GeorgiaLeeLang025Mohammed Shamji had it all:  a beautiful wife, who was herself a family doctor, three lovely children, and a PhD from Duke University in biomedical engineering, which paved the way for his reputation as a world-renowned neurosurgeon. But the family was hiding a secret…according to news reports, the Shamji’s had visits from the police more than once for allegations of domestic violence and neighbours reportedly heard them fighting.

Tragically the ultimate weapon for men that engage in family violence was unleashed when Dr. Sahmji, age 40, allegedly murdered his wife, Elana Fric-Shamji last week in their garage. He was arrested on Friday and is in police custody charged with first degree murder. The media reports that Dr. Shamji placed her body in a suitcase and dropped her  beside a river in suburban Toronto, where she was found the day before her husband was arrested.  The coroner determined she died from strangulation and blunt force trauma.

It is impossible to pigeon-hole Dr. Shamji as he does not fall within the typical profile of a husband (or wife) who murders their partner, which includes severe mental illness, previous felony convictions, lower intelligence, and more cognitive impairment than in other types of murders. However, eschewing political correctness,  it may well be that his cultural upbringing played a role.

The killing of a female intimate partner or spouse is referred to as “uxoricide”. Statistics reveal that of 2,340 partner murders in America in 2007, female victims made up 70%. In South-East Asia 55% of all murdered women died at the hands of their partner, in Africa it is 40%, and 38% in the Americas. It is reported that approximately 7 women are killed per month in England and Wales, 4 women per month in Australia, and in the United States it is 76 women per month.

Dr. Elana Fric-Shamji had recently filed for divorce and expressed relief that she was on her way to a new life. This stage of separation is the most dangerous time for women. Her last tweet on November 27, 2016 was lively and upbeat, displaying a photo of her and a fellow female physician. Her children have now been placed with their maternal grandparents. How very sad…

Lawdiva aka Georgialee Lang

Court Orders Maintenance Enforcement Program to Pay Dad for Abusive Collection Efforts

GeorgiaLeeLang009Some of the worst complaints about the  British Columbia family law justice system arise from litigants dealing with the Family Maintenance Enforcement Program  (“FMEP”), called the Family Responsibility Office in Ontario.

Support enforcement programs permit parents and spouses who have court orders or agreements providing for child or spousal support payments to register their orders or agreements with the enforcement program in their province, at no cost to the registrant.

The protocol is that once an agreement or order is registered, the payee parent or spouse must pay support to FMEP, no longer directly to the recipient. FMEP ensures that the recipient parent or spouse receives the payment monthly, and in cases where a payee fails to pay, they take steps to enforce the payment of the support.

Interestingly, a payee does not have to be in arrears of support to be monitored by FMEP.  I remember years ago when a client of mine agreed to pay support for his wife and children, an agreement that was incorporated into a court order. My client’s wife registered with the Program as she was entitled to, however, my client was most distressed when he received a letter from FMEP  addressed, “Dear Debtor”. My client made every payment every month on time and was insulted by the program’s cavalier use of the term “debtor”. He was certainly not a debtor, just a regular guy whose wife registered with the program.

Sometimes recipients enter the program out of spite for their former spouse, however, 99.9% of the cases involve payees who have fallen behind in their court ordered payments.

In a recent Ontario case, a typical scenario unfolded for Richard DeBiasio, who paid child support to his ex-wife for the support of the two children residing with her, with a set-off because he had one child living with him. It is not uncommon that as children mature they switch homes and move from mom’s house to dad’s house. That’s what occurred in the DeBiasio case where over time all the children resided with their father.

Mr. DeBiasio negotiated new terms for child support with his former wife, entered into a new agreement and made arrangements to appear in court to finalize their new arrangements. Unfortunately, Ms. DeBiasio had already registered with the Family Responsibility Office,  (“FRO”) who were unaware of the new support agreement that had yet to be confirmed by the court.

The first Mr. DeBiasio heard of any problems was when FRO sent a letter advising him that they were reporting him to the credit bureau. Shortly thereafter FRO issued a garnishing order to his employer which prompted his lawyer to send a letter to FRO advising of their mistake and the pending court order.  FRO was unmoved–they were enforcing the order they had received from Mr. DeBiasio’s wife and had now taken steps to have his driver’s  license suspended. Needless to say, FRO was not responsive to any communication and regularly ignored letters from his lawyer, also refusing to accept phone calls.

Mr. DeBiasio finally obtained a court order directing FRO to cease their collection efforts. He then asked the court to order FRO to reimburse him for his legal fees, an amount close to  $10,000. The court reviewed numerous other decisions ordering FRO to pay costs, noting that most of these cases involved “aggressive enforcement actions on the part of FRO”.

Justice Nelson awarded Mr. DeBiasio the sum of $7,500 saying:

“In this case it was made clear to the FRO caseworker that there was a dispute over the amount of arrears owing.  It was made abundantly clear that there had been a material change because of the move of the children.  While I understand that FRO has a mandate to enforce, it seems to me that insisting on enforcement by way of licence suspension, when it is likely that the matter will be before the court within a very short period of time, is an unreasonable exercise of the Director’s mandate to enforce.

…the caseworker was kept fully apprised of all relevant information about the motion to change.  The refraining motion was December 10, 2015; the motion to change was scheduled for December 30, 2015.  The insistence by the Director on proceeding with enforcement under such circumstances is not only costly to the individual involved but costly to the court in terms of time allotted to the case.”

It should be noted that FMEP’s and FRO’s inappropriate attitude while serving the public is not limited to payors who have arrears of support. It is also nigh impossible for recipients to be heard in a timely manner. The British Columbia program is contracted to a large American corporation that makes oodles of money, with little apparent concern for customer relations.

DeBiasio v. DeBiasio 2016 ONSC 2253

Lawdiva aka Georgialee Lang

The Ghomeshi Verdict: Part 1

BarristerIn the aftermath of ex-CBC celebrity Jian Ghomeshi’s acquittal on sexual assault charges, you could feel sympathy for the misunderstood victims and their placard-waving supporters. Yes, you could…but you shouldn’t.

The ever-changing testimony of the three women who alleged that Mr. Ghomeshi assaulted them presented a field day for any lawyer with a rudimentary ability to cross-examine. For Mr. Ghomeshi’s highly skilled advocate, Marie Henein, it was “easy pickings” and here’s why.

The witness referred to as L.R. met Mr. Ghomeshi at the CBC Christmas party in 2002 where she was hired as a waitress. After a brief flirtation, he invited her to come to the CBC studio to see him tape his show. She attended several times alone and their sexual interaction was limited to kissing. One time as they sat in his car, he suddenly “pulled her hair”, which puzzled her, but did not impact their continuing relationship.  On the last occasion she came to the studio with a girlfriend. The three of them went out for drinks after the show, and later Mr. Ghomeshi suggested they go to his home. L.R. agreed, while her girlfriend declined.

L.R. and Mr. Ghomeshi were in the living room when suddenly “out of the blue” he came up behind her, grabbed her hair and pulled it.

He then punched her in the head several times and pulled her to her knees. The force of the blow was significant. She said it felt like walking into a pole or hitting her head on the pavement. L.R. thought she might pass out. She testified that as quickly as the violence started, Mr. Ghomeshi’s apparent rage subsided and he told her he would call her a taxi to take her home. L.R. admitted that she felt that he threw her out “like trash.”

Unfortunately for L.R., her evidence at trial contradicted what she told the police, recorded in a written witness statement, and did not jive with her media interviews before the trial. The discrepancies included:

L.R. said that Mr. Ghomeshi’s cute, bright yellow Volkswagen “bug” gave her a sense of comfort that he was a kind, nice guy. The only problem was that he did not purchase the vehicle until seven months after their “relationship” ended. And yet she was “so sure”.

The day after L.R.’s police interview, she called the investigating officer to let them know that she had now remembered that the assault in the car was not just hair pulling.  She said he also slammed her head against the car window. At trial she reversed herself, and denied she acted out the head-slamming scene for the police. A police video played in court proved otherwise.

In her initial police interview she did not tell the police that before the alleged assault at Mr. Ghomeshi’s home, they were kissing, a fact she revealed at trial. The import of this additional evidence served to turn an assault into a more serious sexual assault.

L.R. was adamant that after the second incident she ceased all contact with Mr. Ghomeshi. But it simply wasn’t true. She sent him multiple emails and a photograph of herself wearing a red string bikini. She never mentioned any of this to the police or the prosecution and was ambushed at trial with her glaring omissions.

Not surprisingly, L.R.’s evidence was rejected by the trial judge, William B. Horkins, who wrote in his Reasons:

“L.R. has been exposed as a witness willing to withhold relevant information from the police, from the Crown and from the Court. It is clear that she deliberately breached her oath to tell the truth. Her value as a reliable witness is diminished accordingly.”

However, L.R.’s difficulty with telling the truth, the whole truth, is eclipsed by the evidence of the two other women, whose evidence will be the subject of Parts 2 and 3 of The Ghomseshi Verdict.

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Canadian Couple Sue Georgia Sperm Bank for Misrepresentation

DSC00507 (2)An Ontario couple were over-the-moon with delight when their first child was born. Angela Collins and Margaret Elizabeth Hanson of Port Hope Ontario had purchased sperm from Xytex Corp. in Atlanta, who touted the sperm donor as an overachiever with a 160 IQ, working on his PhD in Neuroscience Engineering.

The couple received their donor’s photo which showed an attractive man, only later did they learn the photo had been photoshopped.

Seven years after the birth of their son, Xytex inadvertently released the name of the anonymous donor to Ms. Collins and Ms. Hanson. That was when they discovered their child’s father was schizophrenic ex-convict, James Christian Aggeles, a college drop-out who had fathered 20 other children through the services of Xytex.

The couple’s lawsuit reveals that if they had known the truth about the donor’s background and medical history they would have declined. Their lawyer, Nancy Hersh, said the couple love their child but want to ensure they have the funds to properly evaluate and care for him if he is diagnosed as schizophrenic. Ms. Hersh is representing 15 other mothers in the same situation as the Ontario couple.

Collins and Hanson say they have suffered emotional and financial damages and are suing for fraud, negligent misrepresentation, breach of warranty, and unfair business practices.

According to John Hopkins Medical School, research data shows that schizophrenia affects about 1% of Americans. If a parent has schizophrenia, there is a 10% chance their child will be similarly afflicted.

Canadian couples are forced to use offshore sperm banks as Canada has only one national sperm bank, Toronto’s Institute for Reproductive Medicine, and they have only 51 active donors. Two small clinics in Quebec have several donors but only operate locally.

It is reported that there is a need for donor sperm for more than 5,500 inseminations per year in Canada, 3,000 of those for lesbian couples.

Spokesperson, Wendy Kramer, for the American non-profit “Donor Sibling Registry” says there is little regulation or oversight in the sperm bank industry allowing donors to get away with saying whatever they want about their personal and medical histories.

With the number of women requiring donors, it surely is time for proper protocols to be legislated to protect vulnerable women, eager to have a child.

Lawdiva aka Georgialee Lang