Four Reasons Why BC’s New Family Law Act is Good for Fathers

Jun

Four Reasons Why BC’s New Family Law Act is Good for Fathers

Posted June 25, 2012 by Georgialee Lang in Divorce, Family Law. Tagged: access, contact, custody, denial of access, Family Law Act, Family Relations Act, Parenting Coordinators, parenting time. 5 Comments

British Columbia’s new family laws will be in effect on March 13, 2013. For husbands and fathers who have felt victimized and exploited by the Family Relations Act 1979, there is every reason to be optimistic that the new law will assist them to achieve the fairness and equality they have been fighting for.
The first bit of good news is that effective March 13, 2012 the new law will apply to everyone, even if they commenced a family law proceeding under the current Family Relations Act that has not yet been concluded, with one exception. Property claims made under the old Act will be governed by that legislation, unless both parties agree that the new law should be applied.
The changes in law that will assist fathers include:
1. Pejorative terminology is removed:
The language of “custody” and “access” used in the current legislation left many parents feeling marginalized and overlooked as fully contributing parents who provided value to their children’s lives. These terms also connoted an “I win, you lose” philosophy. The language of the new Family Law Act is “parenting time” and “contact”, words that do not imply ownership of children by one parent to the exclusion of the other.
2. Endless court applications regarding children can be avoided:
For fathers who are constantly struggling to see their children regularly, or have a vacation with their child, or obtain their child’s passport for travel, or the dozens of other irritants that require fathers to go back to court, the new law has introduced and codified the role of a Parenting Coordinator. This person, who may be a counselor or a lawyer, will be empowered under the law to make binding decisions with regards to parenting issues, with the criteria being “the best interests of the child only”.
3. Informal parenting arrangements will be respected:
In scenarios where a father and mother have recently separated and have worked out a voluntary parenting plan, one parent cannot unilaterally change the plan. What often occurs is the parties will agree to a particular schedule, but when mom learns about dad’s new girlfriend, or is angry over some event involving dad, it is not uncommon for mother to unilaterally impede the regularly scheduled parenting time of the father. This new law forbids this kind of unilateral action.
4. Denial of parenting time will be treated seriously:
One of the most common complaints from fathers in high conflict marriage breakdown is the capricious, unreasonable denial of parenting time as punishment for the parties’ separation, even when the separation was requested by the mother.
The new law recognizes the importance of a father’s time with his children and will take serious steps to enforce parenting time. The key is that a father must complain to the court within 12 months of the access denial. In those circumstances the court may order compensatory parenting time to make up for the time denied. The court can also order a denying parent to go to counseling, pay a $5000.00 fine or reimburse the father for all of his expenses including travel expenses, lost wages and child care expenses incurred as a result of the refusal to comply with the informal parenting arrangement or the terms of any agreement or court order.
In my view the government has enacted new law that is meant to assist parents who do not want to be excised from their children’s lives. The important matter now is that the public be educated as to the upcoming changes so they can improve their relationships with their children.
A final note: there are many mothers who do not conduct themselves in ways described above, but when they do the emotional and financial damage to the family is devastating and destructive, both for the parents and the children.
Lawdiva aka Georgialee Lang

Divorce Can Be Profitable

Divorce Can Be Profitable

Posted February 23, 2012 by LawDiva in Uncategorized

A growing industry is developing in the area of litigation loans. Though not unusual in personal injury cases or residential school litigation, entrepreneurs are beginning to look to the lucrative divorce market to turn a profit.
In high-net worth divorce cases it is typical to hear that only one of the spouses has their hands on the purse-strings of the family wealth, usually the husband, but not always. The economically challenged spouse may reside in a beautiful family home and drive a BMW, but once her savings have been used for her lawyer’s retainer and her credit cards are maxed out, she is playing on a field skewed in favour of her cash-rich spouse.
In British Columbia the Supreme Court may order that family funds be made available to a spouse who has run out of financial options, but only for the purpose of hiring expert witnesses, such as a chartered accountant, business valuator or property appraiser.
The Court will not order one spouse to pay the ongoing legal fees of the other, except in the most extreme circumstances. Of course, the rules on the costs of a court case do allow a court to order the losing spouse to pay the winning spouse, but that comes at the end of the litigation. Also, it is not full reimbursement, but a limited contribution to the victorious spouse’s legal fees.
Business woman and lawyer, Stacey Napp of California, has jumped on the litigation financing bandwagon with her firm, Balance Point Divorce Funding, a company she founded after her own brutal eight-year divorce.
Borrowing from friends and relatives, Ms. Napp settled her divorce case by agreeing to retain the family home and receive $500,000 as her share of her husband’s mobile home parks business. Not a bad deal you say?
It turned out to be a very bad deal, since shortly after the settlement; her husband offered his business for sale for the princely sum of $5.7 million.
Eventually an Arizona judge reopened the fraudulent settlement and awarded her an appropriate share of the actual value of the business. Using the funds from the court judgment Ms. Napp decided to put her money to work, funding divorce cases for others who like her, did not have the financial means to compete with their husbands’ deep pockets.
As a lawyer with a career in finance, Ms. Napp recognized she had all the skills required to run her new business. She knew how to find assets, understood the litigation process and had the money to make loans.
As for her clients, they don’t see it as a loan; rather they view it as an investment in their future financial security.
Lawdiva aka Georgialee Lang

Warning to Men: Just When You Thought It Couldn’t Get Worse– New Alimony Law

Warning to Men: Just When You Thought It Couldn’t Get Worse– New Alimony Law

Posted December 22, 2011 by LawDiva in Divorce, Family Law. Tagged: alimony, Carol Rogerson, Rollie Thompson, separation agreement, spousal support, Supreme Court of Canada

You can’t quarrel with the fact that a stay-at-home mom, who has been married for 20 years, has three kids and has never worked, is a worthy recipient of spousal support. And, believe me…she needs it.
It took some time for Canadian men to accept that if they had income and their ex-wife did not, they were bound to pay some spousal support, even if their spouse left the marriage or worse even took up with another partner. Forty-years ago it was not too big a “hit”, as our Courts favored a “clean break” approach, meaning not much support, for not very long.
A few years later, as lawyers, legislators and judges encouraged and promoted support agreements, supported spouses who entered into separation agreements, but wanted or needed more support, had to prove their increased need was based on a “radical” change in their circumstances, causally related to the marriage. That too posed a challenge for women seeking support and carried on the pattern of low support orders for limited periods of time.
In the 1990’s the law changed rapidly and saw more women getting more support for longer periods of time, until 2006 when the federal government empowered law professors Carol Rogerson and Rollie Thompson to create “Spousal Support Advisory Guidelines”, which though never passed into law, were quickly adopted by all the Provinces.
This was real change. It became more difficult for a smooth-talking lawyer to convince a judge that the old rules still applied, namely that spousal support should be “short and not sweet”. The Guidelines provided schedules based on the payor’s income that introduced consistency in support awards across Canada and the new theme meant that men had to dig deeper and pay for a much longer period of time, even indefinitely.
Any hope of reprieve for long-time support payors was that when their financial circumstances changed due to illness, retirement or the vicissitudes of life, they could go back to court and apply for a reduction in spousal support, based on a “material change” in circumstances, theirs or their ex-spouse’s.
Yesterday, the Supreme Court of Canada gave short shrift to support payors’ “faint-hope”. What the majority of the Court said was because a separation “may result in dramatic life changes and emotional stress…these circumstances give rise to the possibility that the ability of separating spouses to realistically and objectively assess their current and future needs and preferences, can be impaired”.
In other words, don’t count on a separation agreement dealing with spousal support to be upheld in Canada. The Court held that the notion that separation agreements should be accorded “significant weight…is problematic”. Now they tell us?
Lawyers, who have been criticized for years, for “promoting” litigation, have just learned that Canada’s highest court eschews long-held contract principles of finality and certainty, comparing them to the condemned “clean break” approach of the 1970’s.
For what good it does, it must be noted that Chief Justice McLachlin and Justice Cromwell took a different view, holding that a support agreement plays a central role in the variation of a support order. They voiced puzzlement at the logic employed by the majority of the court, saying their approach is at odds with the “basic purpose of agreements, namely to apportion the risks of future uncertain events in order to achieve finality and certainty.”
What is certain is that while there is a new wave of American lawmakers restricting long-term alimony, Canada is on the opposite track. If this is the Court’s way of discouraging divorce, they may be on to something.
Lawdiva aka Georgialee Lang

Divorce Can Be Deadly

Divorce Can Be Deadly

Posted January 11, 2012 by LawDiva in Divorce, Family Law, Uncategorized. Tagged: death, divorce, health risks of divorce, Professor David Sbarra

We’ve been told by experts that smoking, overeating and excessive consumption of alcohol can shorten our life span, but now we find out that divorce may be as bad as the above-mentioned vices.
A new study from the University of Arizona reveals that the risk of premature death is 23% higher in divorced people than those whose marital bonds are still intact.
The research involved more than 6.5 million adults in eleven countries, over a time span of 27 years. To ensure accuracy, the research was statistically controlled for age, smoking, weight and medical conditions, allowing only the effects of divorce to be measured. Breaking the data down into gender, divorced men were at a substantially higher risk than divorced women.
Professor David Sbarra, who led the study, left open the issue of cause and effect. Does divorce lead to poor health or does poor health lead to divorce? He noted that further research is required to determine how divorce affects us biologically.
I can hear people saying “If I had stayed with my husband/wife I’d be in the grave by now!”
Lawdiva aka Georgialee Lang

No Spousal Support Reform for Canadians

No Spousal Support Reform for Canadians

Posted January 19, 2012 by LawDiva in Divorce, Family Law. Tagged: alimony, alimony reform, Messier v. Delage, Moge v. Moge, Pelech v. Pelech, spousal support, Supreme Court of Canada

While alimony reform is on the march in the United States, I predict that Canadian law makers will not jump on the bandwagon. In fact, I believe Canadian spouses (read “women”) will hold their place as the “most likely to succeed” financially post-separation, particularly in relation to their foreign sisters.

Yes, it’s true that it hasn’t always been this way. In the early 1980’s a majority of the Supreme Court of Canada in Messier v. Delage held strong to the philosophy that the obligation of support between ex-spouses “should not continue indefinitely when the marriage bond is dissolved,” and decried the notion that “one spouse could continue to be a drag on the other indefinitely; acquire a lifetime pension as a result of the marriage; or luxuriate in idleness at the expense of the other.”
The support noose got even tighter in 1987 after a trio of cases made their way up to Canada’s highest court. In Pelech v. Pelech, Caron v. Caron and Richardson v. Richardson the Court determined that spouses who had signed agreements dealing with spousal support could not easily shake loose of them.
The test to challenge an agreement to obtain support, to increase support, or to extend support required the applicant spouse to show there had been a radical change in circumstances causally linked to the marriage.
The first part of the legal requirement, establishing that a change was radical, was relatively easy. If a wife agreed to take no support and later became fully disabled it was not difficult to characterize the change in her ability to work as radical.
More stringent, however, was the additional requirement that the radical change be attributable to the marriage. So, for example, if a wife signed a separation agreement that gave her no spousal support because she was fully self-supporting, and she later became disabled from an illness that did not manifest itself until after the divorce, her financial need could not be linked to her marriage.
For women who found themselves in this situation, their only hope was family support, welfare, or a second marriage. Meanwhile, the federal government overhauled the Divorce Act 1968 and replaced it with a new Divorce Act in 1985. The new model for support became an analysis of the economic advantages and disadvantages suffered by both spouses from the marriage or from the breakdown of the marriage. The stage was now set for a groundbreaking Supreme Court of Canada decision.
In 1992 the support pendulum swung hard in the opposite direction with a case that involved a spousal support payment of a mere $100.00 per month. In Moge v. Moge the Supreme Court of Canada introduced a new way of thinking about spousal support with a support rationale that was based on compensation to a spouse, instead of just a consideration of “means and needs”.
In this ground breaking decision the Court directed judges to explore the economic consequences of divorce with a greater focus on women’s work at home as mothers and wives and the aftermath of staying at home, while their husbands worked.
The Court recognized that women in this position typically had no job skills, limited opportunities for education, and no pensions, savings, or health benefits.
Fast forward to 2006 when the federal government introduced Canada’s Spousal Support Advisory Guidelines, a further move to a more generous system of spousal support. The Guidelines provided a scheme to ensure that supported spouses received support that was up to 43% of their partner’s gross income. They also set a formula to determine how long support would be paid.
The upshot was that spouses who were married for 20 years or more typically received indefinite support that could be reviewed or varied if there was a material change in circumstances. Spouses in marriages under 20 years would receive support equivalent to the length of their marriage, also subject to variation if the supporting spouse could show a material change in circumstances.
While this analysis is a simplification of the Guidelines, there could be no doubt that women benefitted and men were burdened with higher support payments paid for a greater length of time.
In recent cases in British Columbia, men seeking to decrease their support have only been mildly successful, while most obtain no relief at all.
Last month the Supreme Court of Canada reinforced their model of generosity in L.M.P.v. L.S. where they decided that spouses receiving support pursuant to an agreement were not necessarily bound by the terms of their agreement because recipient spouses may have been under intense emotional strain at the time they negotiated their agreements.
As a result of this decision husbands in Canada can now wave good-bye to well-established principles of certainty and finality when they settle support issues.
Hearkening back to my original point, the Canadian trend in spousal support in no way resembles the burgeoning alimony reform sweeping through the United States. In fact, Canada continues to move in a direction that will eventually financially cripple husbands, particularly those that pay both child support and spousal support.
Yes, we need alimony reform but we are unlikely to get it anytime soon.
Lawdiva aka Georgialee Lang

Grass Roots Group’s Goal is to Change Family Law

Grass Roots Group’s Goal is to Change Family Law

Posted February 10, 2012 by LawDiva in Family Law. Tagged: Canadians for Family Law Reform

Concerned citizens in Sarnia, Ontario banded together last summer to form “Canadians For Family Law Reform”, after years of frustration with Canada’s family law justice system. Beginning with a core group of nine members, the organization continues to grow as it raises its profile in Sarnia.

The CFLR organized a public rally last month in front of the Sarnia Courthouse where 50 members converged with signs to picket throughout the day. The group also picketed outside the office of one of Sarnia’s family law lawyers, referring to him as a “poster boy for what is wrong in family law”. This unnamed lawyer allegedly has the largest family law case load in the city and it was reported that on one day in court he was counsel in 37 of 39 family law cases being heard.

Some of the reforms sought by CFLR include:
1. Simplification of the court process;
2. More expedient decisions from judges;
3. Deterring lawyers from overbilling;
4. Eliminating conflicts of interest where lawyers and judges are closely connected;
5. Avoiding the tendency to push proceedings into higher courts;
6. Stopping lawyers from creating hostilities where none exist;
7. Addressing the practice of adjourning cases for months or years.

The group will rally again on February 16, 2012 at the Sarnia courthouse and hold a candlelight vigil on February 20, 2010 to commemorate “the tragic death of families due to an antagonistic family legal system”. Check out their Facebook page for other events.

Lawdiva aka Georgialee Lang

The Lighter Side of Divorce

The Lighter Side of Divorce

Posted February 12, 2012 by LawDiva in Divorce

We all need a few laughs once in while, so today’s post is intended to focus on the lighter side of divorce, which, believe me, does not exist when you are in the middle of it. It is always amusing to see what Hollywood has to say about the subject, given their residents are abundant among the divorce statistics.

For those who have survived divorce and those who watch from a distance (and are grateful for that), consider the following sound bites and barbs.

1. “Ah yes divorce, the Latin word meaning to rip out a man’s genitals through his wallet.”
ROBIN WILLIAMS, divorced twice

2. “I’m an excellent housekeeper. Every time I divorce, I keep the house.”
ZSA ZSA GABOR, divorced seven times, one anulment

3. “The difference between a legal separation and a divorce is that a legal separation gives the husband a chance to hide his money.” JOHNNY CARSON, divorced three times

4. “Today Pamela and Tommy Lee announced they are getting back together. You know what that means? There’s still hope for Ike and Tina Turner.”JAY LENO, married for 30 years

5. “I’ve given my memoirs more thought than my marriages. You can’t divorce a book.”
GLORIA SWANSON, divorced four times

6. “The secret of a happy marriage remains a secret.”
HENNY YOUNGMAN, married for 60 years

The literary world also has something to say on the topic of divorce:

6. “A divorce is like an amputation, you survive it, but there’s less of you.”
MARGARET ATWOOD, divorced once

7. “The worst reconciliation is better than the best divorce.”
MIGUEL DE CERVANTES, married for 32 years

8. “When two people get a divorce, it isn’t a sign that they “don’t understand” one another,
but a sign that they have at last, begun to.”
HELEN ROWLAND, marital status unknown

As Billy Joel once said “I’d rather laugh with the sinners than cry with the saints.”

Lawdiva aka Georgialee Lang, happily married for 23 years!

Defamed Husband Sets the Record Straight

Defamed Husband Sets the Record Straight

Posted February 13, 2012 by LawDiva in Divorce, Family Law. Tagged: England, Lancashire

The rumour mill was running rampant in the village of St. Michaels on the Lancashire coast in England when Gary Dean said “That’s enough.”

Dean, a successful advertising executive and publishing entrepreneur, decided to set the record straight by starting a website at deandivorce.com called “The Truth About Helen Louise Dean v. Gary Dean.”

Dean and his wife separated after nineteen years of marriage and four children. The divorce was finalized in 2007 and all financial issues had been resolved, yet the gossip mill continued to pump out offensive, inflammatory, even defamatory stories about how Dean left his wife and children penniless. He was describe as “greedy, tight, and ruthless.”

The problem was none of it was true, so Mr. Dean posted the settlement pronounced in the local Preston Court on his website. He disclosed that his wife received $5.9 million, including diamonds, other jewelery, watches, a Mercedes and an Audi convertible together with $24,000 per year for each of the four children and payment of the children’s private school fees.

Dean remarked that if he lived in in London, Manchester or a similar city, his divorce would not have attracted any attention, but in his small village, which he likened to “Coronation Street”, he was forced to go public.

At the time of the Dean’s divorce, family law hearings were private and the media had no access to decisions. As of April 2009, the law has changed and divorce and family law cases in England are now in the public arena.

Lawdiva aka Georgialee Lang

Wives Want Out

Wives Want Out

Posted February 14, 2012 by LawDiva in Divorce. Tagged: Britain, divorce statistics, United States.

A survey of 2000 men and women in Britain reveals that the British divorce rate could be much higher than it is, if wives were assured of future economic security. That’s how 59% of the women surveyed responded to the question “Would you divorce your spouse?”

While statistics are highly manoeuvrable, the consensus among government agencies that track the data is that in Great Britain the divorce rate for first marriages is 40%, while second marriages and third marriages have a 60% and 75% rate of failure.

The United States divorce rates are similar although 50% of first marriages are likely to fail, while 67% of second marriages and 74% of third marriages end in divorce. Canadian statistics fall somewhere between the United Kingdom and the United States.

So, why are the unhappy British wives staying in their marriages? The survey showed the following:

12% stayed to have an “easy life”
30% stayed to avoid a major upheaval in their lives
37% stayed for the children
42% stayed so they would not lose their homes
33% stayed because they feared if they left they would get nothing
25% stayed because of the cost of legal fees in a divorce

Additional data indicated that 30% of men stay in a “loveless” marriage because they fear losing contact with their children. Were the survey participants open to marriage counselling? Yes, 50% would welcome marital therapy while 20% said they wouldn’t bother.

Surprisingly, 60% of the participants were unaware of mediation as an alternative to a court battle to resolve issues arising from marriage breakdown.

I often remind clients who are weighing the pros and cons of divorce to consider that marriage requires hard work and it doesn’t get any easier the second time around. Like author and marriage therapist Lori Gordon PhD says “Love is a feeling, marriage is a contract and relationships are work.”

Lawdiva aka Georgialee Lang

Lawyer Liable for $950,000 Judgment in Parental Abduction Case

Lawyer Liable for $950,000 Judgment in Parental Abduction Case

Posted February 16, 2012 by LawDiva in Divorce, Family Law. Tagged: Madeline Marzano-Lesnevich, Marie Carrascosa, parental abduction, Peter Innes, Spain, Victoria Innes. 4 Comments


A lawyer who mistakenly released a child’s passport to the child’s mother, contrary to a court order, has been ordered to pay $950,000 to the father of a child abducted by her client from New Jersy to Spain.

The parents of Victoria Innes, Peter Innes and Marie Carrascosa, were married in Spain in 1999 but resided in the United States. Their daughter, Victoria, was born in 2000. Their marriage ended in 2004. Victoria had both US and Spanish citizenship.

After an acrimonious dispute Victoria’s parents signed an agreement in 2004 that prohibited both parties from international travel with Victoria without the consent of the other parent. The agreement also provided that Victoria’s passport would be held in trust by Ms. Carrascosa’s lawyer.

When Ms. Carrascosa changed lawyers her file was delivered to the new lawyer, however, her new lawyer, Madeline Marzano-Lesnevich, was not aware that Victoria’s passport was to held by her and not released to her client without Mr. Innes’ consent or a court order.

Ms. Carrascosa, a lawyer in Spain, took advantage of the situation, obtained the passport from her lawyer and promptly fled to Spain where she and her daughter stayed with Victoria’s maternal grandmother. Later Ms. Carrascosa returned to New Jersey but refused to return Victoria, alleging the Spanish court had jurisdiction and would not let Victoria leave the country until she was 18-years-old.

In the meantime, Victoria’s father had obtained an American order for custody of Victoria and attempted to enforce it, to no avail. Ms. Carrascosa was charged with contempt of court and interfering with custody and was sentenced to fourteen years in prison, where she has been languishing since 2006, determined not to comply with American justice.

Despite all efforts and the involvement of Spanish/ American judicial mediators at the Hague Court in Holland, Victoria remains in Spain.

Parental abduction is the worst form of child abuse. While the Hackensack court undoubtedly meted out strict punishment, so far it has not motivated Victoria’s mother to relinquish her hold on Victoria.

Lawdiva aka Georgialee Lang

5 Of the Dirtiest Divorce tricks

5 of the dirtiest divorce tricks  

Posted October 29, 2011 by LawDiva in Divorce, Family Law. Tagged: child support, dirty divorce tricks, father's access, spousal support. 7 Comments

Some divorcing spouses treat each other deplorably. In these sad cases, it is actually hard to believe they were once in love. Candour and kindness are replaced by artifice and cruelty. Divorce lawyers are well aware of the grab bag of dirty tricks spouses inflict on each other. My top five dirtiest divorce tricks are:
1. Conflicting Out All of the Top Divorce Lawyers
An age-old practice for a spouse who expects a long, drawn out divorce battle is to ensure their estranged partner can’t retain a top divorce lawyer. It goes like this – husband or wife makes appointments with the top lawyers in the area. At each meeting they reveal enough about their situation that the top lawyer, who they have no real intention of retaining, cannot act for their spouse. If each top lawyer charges them $500.00 for a one hour consultation, they only spend a few thousand dollars to ensure they have defanged their spouse by preventing him or her from hiring a “gun” equivalent to their top-tier counsel. Yes, this happens in the world of high net worth divorce.
2. Firing Your Lawyer Just Before Trial
Another effective divorce trick is to fire your lawyer weeks before your divorce trial is set to commence. How does this work? It’s easy. Let’s say you are the wife of a wealthy husband. Since you obtained a court order ejecting your husband from the family home, you now reside in luxury with peace and quiet; you are receiving thousands of dollars a month in tax-free child and spousal support; and your life consists of tennis lessons, lunch with the girls at the Club and evening soirees. Meanwhile your husband is doing what he always does: travelling around the world doing business deals to support your mutual lifestyles. He doesn’t even see the kids much, so there’s no hassles at all.
Why would you spoil all this by taking a chance that a judge may eliminate some part of your lavish lifestyle or impose an access schedule for the children to see their father that may interfere with your plans?
3. Transferring Your Assets Off-Shore
While you may live a life of champagne and caviar, it is unlikely you can maintain that level of opulence if your spouse has arranged to stash all his liquid assets off-shore in trusts set up in any number of tax havens such as the Bahamas, the Isle of Man, Turks and Caicos or Switzerland.
In many jurisdictions a Court may make an order that off-shore assets be divided between the spouses, but just wait until you see how difficult it is for you to convince the foreign jurisdiction they must obey the order of a North American Court. All I can say is good luck!
4. Arranging Multiple Mortgages on Your Real Estate
It is not uncommon to see marriages where the “little lady” has no idea of what she and her husband are really worth. Imagine a spouse’s disappointment when their lawyer informs them that the family home and their summer cottage are mortgaged to the hilt and have little or no equity. Their once middle-class standard of living evaporates as Mrs. now looks for a basement suite to house her and her two children.
Another real estate divorce trick is to build a lavish home on leased land that is situated on property that is in the agricultural land reserve, so that while it may have cost $3 million to build, it has no real market value since nobody in their right mind would purchase this property. Yes, this is a true story.
5. Building a House of Cards
For a time life is grand, but inevitably problems arise in your marriage. In an effort to please your spouse you try you to spend your way back to the marriage you once had. Little does your spouse know that the trips to Europe, Hawaii and the Super Bowl were leveraged, courtesy of American Express or Visa. The marriage does not survive and you discover your net worth is much less than you expected as you have tens of thousands of dollars in credit card debt all used for the family. Let’s just hope the Sistine Chapel was worth it.
Perhaps you think that with the explosion of mediation and collaborative divorce, these tricks have lost their lustre? Think again. For spouses who need revenge more than they need closure, they are alive and well.
Lawdiva aka Georgialee Lang

Divorcing Couple Ordered to Exchange Social Media Passwords

Nov

Divorcing Couple Ordered to Exchange Social Media Passwords

Posted November 12, 2011 by LawDiva in Divorce, Family Law. Tagged: Courtney Gallion, Facebook, Judge Kenneth Schluger, Linkedin, MySpace, social media, Stephen Gallion, Twitter. 2 Comments

By now everyone should know that Facebook, Twitter, LinkedIn, etc. can provide fertile ground for discovering information about your neighbour, your kids and most importantly, your ex-wife. Recently Judge Kenneth Schluger ordered a divorcing Connecticut couple, Stephen and Courtney Gallion, to exchange their Facebook and dating website passwords.
It seems that Mr. Gallion found some incriminating information about his wife while surfing the web on the computer he shared with her. Courtney Gallion had posted comments about their children and her feelings about their role in her life that her husband thought might be useful for him in his goal to obtain custody of their children.
During a deposition of Ms. Gallion, her husband’s lawyer asked her to provide passwords for her Facebook account and two dating sites she had joined: EHarmony and Match. Her lawyer initially refused to reveal the passwords but later relented.
Upon releasing the passwords, Ms. Gallion texted a close friend and asked her to change the passwords and delete some messages she had posted. That’s when the matter came before Judge Schluger as Mr. Gallion sought to prevent his wife from deleting messages and asked the judge to order the exchange of passwords.
The Court made the orders sought and directed that neither of the parties could visit the websites of the other and post messages purporting to be the other.
But it is not just divorce cases where social media can play an evidentiary role. In a case in Pennsylvania a professional racecar driver sued the owner of a motor speedway for injuries suffered during a race.
The Court ordered the plaintiff to provide his Facebook and MySpace passwords which revealed photos of a fishing trip and a jaunt to the Daytona 500 which undermined the plaintiff’s assertions of physical injury. (McMillan v. Hummingway Speedway #113-2010 CD, Pennsylvania, Sept. 9, 2010)
In another case the Court became a “friend” of the litigant so the Judge could personally review the Facebook postings, looking for relevant evidence in another personal injury case. (Offenback v. Bowman 10- CV 1789 Pennsylvania October 2011).
So, what happened to privacy? It appears that litigation trumps any expectation of privacy in our new world of social media.
Lawdiva aka Georgialee Lang

Another good post

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Sep

Even Divorce Lawyers Can’t Afford a Divorce Lawyer

Posted September 8, 2011 by LawDiva in Divorce, Family Law, Judges, Lawyers. Tagged: Family Court, in-person litigants, lay litigants, Queen's Bench, self-represented litigants, Supreme Court. 4 Comments


It should come as no surprise to anyone that most Canadians cannot afford a lawyer. In fact, lawyers often joke that if they had to pay a lawyer, they too couldn’t afford it. Nowhere is this dilemma more obvious than in family courts.

It is now commonplace to see self-represented litigants dueling with lawyers in most of our family courts in Canada. In British Columbia a parent or spouse can apply for custody and child and spousal support in the Provincial Court, which is purposely “user-friendly”. The Provincial Family Courts across Canada have successfully implemented reforms including plain-language court documents that are readily decipherable by lay litigants. The judges in Provincial Court are accustomed to hearing cases without lawyers and graciously assist those who act for themselves.

However, to obtain a divorce or property division, the only venue is each province’s Supreme Court, sometimes called “Queen’s Bench”, a most inhospitable environment for in-person litigants.

In a 2011 survey of Ontario divorce lawyers, conducted by Professor Nick Bala of Queen’s University Law School, he found that 48% of 167 responding lawyers indicated they were seeing many cases with at least one lay litigant and more cases where at some point in the litigation, neither party had counsel.

As family law becomes increasingly more complicated, despite the Canadian government’s sensible introduction of both Child Support Guidelines in 1997 and Spousal Support Advisory Guidelines in 2006, there are minefields enough for lawyers, never mind those who are forced to act as their own lawyer.

Will a lay litigant understand that in calculating their income for the payment of child support they must consider and understand complex nuances such as the possibility of the exclusion of non-recurring income; the need to include all of their capital gains income in their calculation and not just the portion they see on page two of their tax return; and their ability to deduct business expenses, union or professional dues and carrying costs? I doubt it. Not all lawyers have figured it out yet!

But affordability is not the only reason litigants refuse to retain counsel. There is another group of litigants who believe they can handle their divorce case just as well as a lawyer can. This smaller segment often become serial litigators who, because it costs them nothing, bring multiple frivolous applications, although some would say that lawyers do the same thing! Often when offered pro bono counsel, they decline.

Problems abound for all involved in the family justice system in the wake of the impact of lay litigants. Judges who must ensure that justice is both done, and seen to be done, are at the centre of the dilemma. If they provide too much help for an in-person litigant, that litigant’s spouse will see it as an unfair advantage and often, the court Rules that govern court procedures are less stringently enforced when it comes to litigants with no lawyer.

As well, litigants that pay for their own lawyer often become disenchanted with their counsel when they see their lawyer “helping” their estranged spouse who has no counsel. Lawyers are bound to treat participants in the justice system with courtesy and respect, traits that are frequently misconceived as their lawyer being “too friendly” with their opponent. Fee-paying litigants resent their lawyer telling their spouse what the law is or how the court process works.

For lawyers the problems are multiplied. They must walk a fine line in dealing with an unrepresented spouse and must ensure that all communication with an in-person litigant is documented in writing, with no exceptions. Of course, their clients are even more unhappy since it is their clients who pay the bills for the extra time and effort required to work with a lay litigant.

Lay litigants have also been known to send abusive communication to their spouse’s lawyer and from time to time, report their spouse’s lawyer to the Law Society, a complaint which can cost a lawyer hours of wasted time to respond to the often ill-founded allegations.

Is there a cure? They say that recognizing a problem is the first step to solving it. Certainly,the issue can no longer be avoided. It has taken centre stage as a result of lawyers, judges, court administrators, law professors,lawmakers, and the Canadian public decrying the slow demise of Canada’s family justice system.

Lawdiva aka Georgialee Lang

Collaborative Divorce....?

A legal phenomenon called collaborative divorce is sweeping across North America and is being sold as the answer to the age-old question: “How can we get divorced quickly, fairly and cheaply?” Family law lawyers who have embraced the doctrine of collaboration are effusive in their praise and defence of this new process for divorcing couples. There are websites galore extolling its virtues.

Many of them list a myriad of reasons why separating spouses should reject traditional family law lawyers in favour of collaborative lawyers. Very few of these sites discuss the downside or the disadvantages of collaborative family law. At least one site declares there are no disadvantages to collaborative divorce.

So, what is collaborative divorce and where did it come from? In 1990 lawyer Stuart Webb of Minnesota decried the emotional and financial devastation experienced by many of his family law clients. He wondered if divorce could be done in a kinder, gentler way and thought it could.

He devised a process where a divorcing couple would each retain a collaboratively trained lawyer and sign an agreement that provided each spouse would enter into interest-based negotiations with the assistance of their lawyers. Meetings would be scheduled where spouses and lawyers would discuss and settle all issues related to their divorce including property, custody, and child and spousal support.

To experienced family law lawyers there was nothing new about four-way settlement meetings. They had been the basis for settlement discussions for decades. But the collaborative process introduced an additional feature. The agreement signed by the spouses and their lawyers stipulated if the collaborative process was not successful, their lawyers could no longer represent them and they would be compelled to “start over” with regular family law lawyers, otherwise known as litigators.

This “court is not an option” approach is a critical component of the process, expected to compel adversarial spouses to settle, rather than face the prospects of new lawyers armed for court battle.

It all sounds wonderful and for some divorcing couples it is effective. Whether it can be said to be less expensive is another issue, because the collaborative process also provides much-needed work for underemployed counsellors, child psychologists, domestic abuse specialists and financial experts.

It has also led to the growth of professionals who call themselves divorce coaches and parenting coordinators. With the addition of one or more of these “experts”, one can easily imagine spiralling costs. In one case involving a short marriage with no children, the collaborative process cost a couple $55,000.

This is not intended as a criticism of divorce coaches or parenting coordinators, who can each play an important role, however, to suggest this parade of professionals comes cheap is disingenuous at best and outright misleading at worst.

On website, “collaborativedivorce.net” the authors point out that “No one should be in a hurry to reach issues quickly because of time constraints”. This reminds me of the unspoken philosophy behind mediation, where couples could spend years with a mediator who was apparently skilled at bringing divorcing couples to “yes”, but not in a timely fashion. In certain instances, couples could be done and divorced for the same price-tag as the marathon mediation.

This same website encourages collaborative participants to “control the meeting”. This is a disturbing admonition for a process that is intended to promote fairness, cooperation and a level playing field.

But make no mistake. Despite what you may have heard, collaborative lawyers are still out to get the best deal they can for their clients. In one respect they are like “wolves in sheep’s clothing” as they implement strategies usually reserved for “bulldog” lawyers, including the dreaded “Nothing is settled until everything is settled” and “We refuse to counter”, driving one party to negotiate against him or herself.

As for me, the jury is still out. Oh yes, I have always practiced family law collaboratively, I just didn’t adopt the tag.

Lawdiva aka Georgialee Lang

Murder is cheaper and quicker than divorce...

Boy, can I understand this.. Thank you again LawDive for your thoughts...


"Apr 23

Murder is Cheaper and Quicker than Divorce

Posted by LawDiva in Criminal Law, Divorce, Family Law. 2 Comments


Rosa Hill had a plan to spend more time with her two year-old daughter Elizabeth. A handwritten note set out the steps: “Go to mass… Go to confession… Get tasers… Target practice…”

Her google searches in furtherance of her plan, dubbed “operation custody”, were similarly telling: “How to get away with murder…How to make a silencer….”

Rosa Hill, age 35 and her mother, Mei Li, 57, faced a California jury this week for the attempted murder of Rosa’s ex-husband Eric Hill and the murder of his 91 year-old mother, Selma Hill.

Despite her accusations that her ex-husband had molested Elizabeth, a court awarded custody of the child to Mr. Hill, who lived with his mother Selma Hill.

Rosa and her mother were aghast when the custody order was made in the face of their allegations of his history of mentally instability and psychiatric hospitalizations.

After months of planning, Rosa and her mother went to the Hill home and tasered Eric Hill and his mother. Eric’s mother did not survive the attack. Her battered body was discovered by police stuffed in a trash can. Both Rosa Hill and her mother were arrested at the scene. Rosa’s father was charged as an accessory to the crimes.

An unusual one-off event? Not at all. The number of murders and murder-sucides linked to divorce disputes is frightening.

This week alone the media highlighted several of these stories including the case of Allan Schonenborn who murdered his three young children in British Columbia in a vendetta against their mother, was found not guilty by reason of insanity, and recently sought escorted passes to visit the mall and have coffee.

Cardiologist Dr. Guy Turcotte’s trial for the murder of his children, ages 5 and 3, began in Montreal this week. He and his wife, another doctor, had separated shortly before the murders and his failed suicide attempt.

And finally, a husband in Ft. Lauderdale this week was so incensed with the court’s orders that he began beating his estranged wife right in the courtroom before he was tasered by authorities.

The last word, however, goes to grandfather David White in New Zealand whose daughter was murdered by her millionaire husband, Greg Meads. This week Mr. Meads was sentenced to 11 years in prison and ordered to pay $65,000 in compensation to Mr. White, who would now raise his grandchildren. White bitterly remarked: “It’s cheaper to murder your wife than to divorce her.”

Lawdiva aka Georgialee Lang"

Why its time to elect our Judges (in Canada)

Why it’s time to elect our judges







By Georgialee Lang, canada.com April 28, 2011 8:53 AM Comments (14)





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Georgialee Lang: "The election of judges would raise the public’s awareness of the importance of the judiciary and its role in society."


Canadians like to talk about fixing the criminal justice system, but are we ready for a radical overhaul?

Are we prepared to engage in a vigorous debate about the fundamentals of our justice system, about eschewing the appointment of judges and considering an elected judiciary, in rethinking the way we do justice? A 2007 Canadian poll revealed that 63 per cent of Canadians were in favour of elected judges.

Our appointed judges are forced to wade into highly politicized issues like abortion, euthanasia, polygamy, and the decriminalization of marijuana as litigants challenge the constitutionality of such laws under the Charter of Rights and Freedoms.

Today’s judges are making decisions that should be in the domain of our elected representatives. Do we want a judge in British Columbia rewriting our 121-year-old law banning polygamy? Should an Ontario judge be responsible for the decriminalization of cannabis?

An elected bench would be democratically accountable to the public. Presently the only censure against a trial judge is the Court of Appeal or the Canadian Judicial Council, both institutions that shut out the public. If judges were elected they would undoubtedly be more sensitive to the pulse of the general public and less likely to cling to the ideology of their elite educations.

Elected judges would introduce a transparency to the now-cloistered ritual of judicial appointments, a practice that has been enshrined in Canadian legal history for too long.

The election of judges would also raise the public’s awareness of the importance of the judiciary and its role in society. Citizens who elect their judges may have more confidence in their judges, based on elevated levels of scrutiny from the public and the media. Certainly there would be a greater perception of public legitimacy.

On the other hand, critics of an elected judiciary refer to the “tyranny of the majority” and the possibility of corruption, including the merchandising of votes. A counter to this fear is the glare of the media spotlight that is clearly absent in the appointment of judges.

Japan has achieved a compromise worthy of investigation. In sweeping reforms to its criminal justice system, Japan has adopted a program of elected professional judges and lay judges.

This new model of adjudication consists of three professional full-time judges sitting with six citizen judges who participate as equals in the fact-finding and sentencing of criminals. Three back-up lay judges are also seated in case one or more of the lay judges is unable to continue. Citizen judges are chosen in a manner similar to the selection of Canadian jurors.

Japan has no jury system, so the introduction of the people’s views is an important step to lend credibility to its criminal justice system. While Canada has a tradition of jury trials, the reality is that civil jury trials have priced themselves into extinction and judges without juries hear 90 per cent of Canada’s criminal cases.

Citizen judges are only used in the most serious cases like murder, robbery and other offences that involve death or severe injury. The trials are streamlined so evidence may be heard in a much shorter time.

With extensive cooperation prior to trial between the prosecution and the defence, only the contentious issues are heard. One of the biggest complaints about criminal trials in Canada is the long delay to get them started and the enormous court time required to complete them. A political corruption trial in British Columbia that began with a raid on the legislature ended with a guilty plea after almost eight years in court. The final chapter of this saga saw the taxpayers of British Columbia saddled with the accuseds’ $6 million legal bill.

In a recent Japanese case a panel of nine judges, including six lay judges, convicted and sentenced the driver of a vehicle whose dangerous driving resulted in the death of two innocent victims.

More surprisingly, the panel also convicted the driver’s two passengers for aiding and abetting, by permitting him to drive while in a state of intoxication. The driver received 16 years in prison while the passengers received two years each, although the public prosecutor was asking for eight years.

A preliminary assessment of the effect of lay judges reveals they pronounce more severe sentences on sex offenders, grant probation periods for suspended sentences more often than professional judges alone did, and have garnered fewer appeals of their decisions.

We can create a made-in-Canada justice system to restore pride and trust in our courts.

Georgialee Lang is a Vancouver lawyer and arbitrator named in “Best Lawyers in Canada.” She blogs at lawdiva.wordpress.com. Her website is georgialeelang.com.

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