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Feb 23

Lawyer Conduct Can Attract Judicial Criticism, Too

 Lawyer Conduct Can Attract Judicial Criticism, Too

In past blog posts I have highlighted a few court decisions in which judges have made unusually forthright comments about litigants and witnesses, specifically about their character or credibility.  

But I don’t want to leave the impression that it’s only non-lawyers who get this kind of scrutiny; lawyers are often the target of judges’ negative – and sometimes downright scathing – assessments as well.

In another blog this week I provided excerpts from the recent decision in Sri Guru Nanak Sikh Centre Brampton v. Dhadda, where the judge tactfully expressed a profound frustration with both sides of the litigation involving a Sikh temple, writing: “The plaintiff has a long sad history of conflict.  And this just has to stop.”  After levelling sharp criticism at the parties – and in particular the propensity of some of them to lie under oath – the judge turned to some of the lawyers on the case as well.  

The judge wrote:

[284]       … Especially when there are allegations of serious misconduct, care must be taken to separate facts from conclusions, and arguments from facts.  …

[285]       This is no small point in a case that seems so incendiary.  Repeat a statement over and over, with sufficient gravity of tone and self-assurance, and perhaps some people will come to believe it is true.  This should not be done from the privileged position that counsel enjoys.  

…

[287]       There is another point about the defendants’ argument.  Most of their factum does not read as if it was written by counsel.  It is replete with factual assertions that are (a) conclusory; and (b) not referenced to the record.  This creates an enormous burden for the court, and it is not appreciated.  …

[288]       A great deal of the factum can be characterized as an unbounded screed, full of generalizations and conclusions, but light on analysis and evidence.  I could not have said this without a minute review of the record, repeatedly, a far more laborious task than should have been the case.

[289]       The point here is not to scold counsel, who is extremely capable and experienced.  It is to make an advocacy point.  The tactic of leaving the factum devoid of references to the record, and punctuated by sweeping conclusions of fact, has not availed the defendants here.  …

The judge also wrote:

[295]       I cannot refrain from comment on the legal argument as well.  It really bothers the court when experienced counsel mis-state the law.  Citing principles that apply to without notice motions without acknowledging the distinction when the motion is with notice could mislead a judge not familiar with this area of the law.  Citing a Prince Edward Island statute as the law in Ontario could mislead any judge (given that the proper complete citation for the statute was not provided). Included in the defendants brief of authorities was the Court of Appeal decision in Farmers’ Mutual Insurance Company v. Pinder.  The case was not cited in the factum.  … I am sure that my legal horizons have been expanded by reading this decision, for which, surely, I must be grateful.  But it has nothing whatsoever to do with the case before me.

Similarly, in a criminal case coming from Nova Scotia called R. v. S.C., the judge was asked to review in detail whether the accused’s lawyer had properly represented his client at the criminal trial.  After receiving the expert opinions of noteworthy legal experts (including a professor) on the standards of practice expected of lawyers, the judge said:

67     I have considered the performance of counsel, mindful of the deference that I must show towards the subject counsel’s handling of this matter and the onus on the appellant.

…

69     … I agree with Professor Lockyer and counsel for the appellant, Mr. Pink, that defence counsel’s performance in numerous aspects of this defence is questionable.

70     Defence counsel says that he had developed a “theory of the case”, but there is little to show that the defence was an organized effort. …

72     I noted that Judge Prince in his oral decision described the cross-examination of the complainant as “vigorous” so that it might have seemed better at trial than the transcript suggests, however “vigorous” is not synonymous with organized and accomplished.

73     Counsel’s direct examination of his client was not successful. In the end S.C. did little more than deny the accusations.

75     Defence counsel’s argument at closing was, as Professor Lockyer suggests, disorganized and ineffective. In fact, Mr. Hirtle [the lawyer himself] acknowledged that “there are better closing arguments than I gave”.

…

102     I am satisfied that trial counsel’s incompetence that I have found in this matter is such as to create a “reasonable probability sufficient to undermine confidence in the outcome”.

103     Having so found I direct that the charges in this matter be sent back to the Provincial Court for retrial.

104     My findings as to counsel’s competence are, of course, specific to one trial and should not be taken to reflect on his general capability.

Despite these pointed illustrations, it seems that Canadian decision-makers may nonetheless be more reserved in their criticisms that some U.S. judges.  

For example:  In a U.S. abortion-rights case called Texas Medical Providers Performing Abortion Services, et al. v. David Lakey, M.D., the main question was a law forcing pregnant women to have a pre-abortion ultrasound (and to listen to the fetus’ heartbeat) was constitutional.   Various pro- and anti-abortion groups sought the court’s permission to intervene in the case, and to file their own materials in support of their various positions.  In this context, Judge Sam Sparks of the Unites States District Court for the Western District of Texas wrote:

[T]he Court is forced to conclude Allan E. Parker, Jr., the attorney whose signature appears on this motion, is anything but competent. A competent attorney would not have filed this motion in the first place; if he did, he certainly would not have attached exhibits that are both highly prejudicial and legally irrelevant; and if he foolishly did both things, he surely would not be so unprofessional as to file such exhibits unsealed. A competent attorney who did those things would be deliberately disrespecting this Court and knowingly shirking his professional responsibilities, offenses for which he would be lucky to retain his bar card, much less an intact bank balance.

For Mr. Parker’s sake, and because the Court has no time to hold a sanctions hearing –- in part because it must take time out of deciding the actual legal issues in this case to address the self-serving entreaties of attention-seekers like Mr. Parker –- the Court assumes Mr. Parker is as incompetent as he appears. Rather than sanction him, the Court simply does what Mr. Parker would have done if he was a competent professional, and seals attachment 7 to his motion.

This is all interesting reading, but what’s the bottom line here?   Simply this:  If you have a legal matter, get a good lawyer.

For the full text of the decisions, see:

R. v. S.C. [2005] N.S.J. No. 541

Sri Guru Nanak Sikh Centre Brampton v. Dhadda, 2012 ONSC 716 (CanLII)  http://canlii.ca/t/fpvk4

Texas Medical Providers Performing Abortion Services, et al. v. David Lakey M.D., Case No.A-11-CA-486-SS  http://www.austinchronicle.com/documents/sparks.parker.order.pdf

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com

 

 

Feb 22

Wednesday’s Video Clip: Transfer of Property in Ontario Separation or Divorce


In Ontario, whenever there’s a marriage breakdown, and spouses separate or divorce, if they jointly own property, then usually one spouse will release his or her interest in that property, either in return for an equalization payment or other predetermined benefit.

In this video, Rita, a law clerk with Russell Alexander Family Lawyers, explains how transfers of property in Ontario work, focusing on mortgage issues, equalization payments, and land transfer tax; and what documents and information you will be asked to bring to an appointment.

 

 

Feb 21

ABA TECHSHOW Is Coming Soon

 

Home Schedule Social Events Hotel/Travel Taste of ABA TECHSHOW

With all the obligations and responsibilities we face today, it’s hard to make time for everything – if you haven’t had a chance to register for ABA TECHSHOW while the price is low, we’ve just extended the deadline to accommodate your busy schedule.

Now through Friday, February 24, you’re eligible to register at the early bird rates – this is your last chance before the price goes up!

How to Register

• Online

• Download Form

This event brings together some of the leading experts on the technology topics affecting your legal career today and in the future. There are many exciting advances that you should be aware of – cloud computing, better accessibility for clients through mobile technologies, litigation tools, using social media to promote your services, and much more.

View all the topics and programs by downloading the complete brochure.

Why pay more? Take advantage of this discount by Friday, February 24, and get the best rate!
Don’t miss your chance to attend ABA TECHSHOW 2012, March 29-31, 2012, at the Hilton Chicago!

 

Important Links for ABA TechShow

 

Keynote Speaker = www.techshow.com/keynote

Taste of TECHSHOW: http://www2.americanbar.org/calendar/TECHSHOW/Pages/Taste.aspx

James I. Keane Memorial Award = www.techshow.com/award

Complete Schedule: http://www2.americanbar.org/calendar/TECHSHOW/Pages/CompleteSchedule.aspx

Best of ABA TECHSHOW www.techshow.com/bestofabatechshow

Register! = www.techshow.com/register

Expo Information = www.techshow.com/expo

Faculty Bios: http://www2.americanbar.org/calendar/TECHSHOW/Pages/Faculty.aspx

Contacts = www.techshow.com/contact

Event Promoters = www.techshow.com/eventpromoters

 

Feb 21

Another Ontario Judge Tells it Like He Sees it

Another Ontario Judge Tells it Like He Sees it

In past blogs, I have focused on some interesting Ontario decisions in which judges rather uncharacteristically “told it like they saw it” in terms of assessing the parties’ character or credibility.
For example, you’ll recall that in my blog on Bruni v. Bruni  http://bit.ly/lhJ15r , I highlighted some of the amusing quips by Mr. Justice Quinn in a family law matter.  And in my blog about a case called Pirbhai v. Singh (c.o.b. Sarwan Auto Sales)  http://bit.ly/l0Tt86 I excerpted passages in which that same judge was unusually forthright about his conclusion that one of the litigants was completely untrustworthy in his evidence and re-telling events.

A different judge in a recent Ontario case continues this trend.  In Sri Guru Nanak Sikh Centre Brampton v. Dhadda, Mr. Justice D.L. Corbett was asked to resolve a dispute involving two Sikh temples, which were owned by a corporation.   However, acrimony had developed between various members, directors and congregants of the temples.   Eventually – amidst allegations of financial mismanagement, theft of donations and other similar assertions – control of the both temples had been seized by a group of individuals, who purported to install a new board of directors and oust certain others from the temples’ membership rolls.

Not surprisingly, this prompted a great deal of chaos within the temples’ congregation, which was punctuated by rancorous meetings of various groups, together with continued mud-slinging across different factions. Ultimately, the corporation took the matter to court to obtain an injunction, and to have control restored to it.

Against this background, Justice D.L. Corbett wrote:

[3]           The defendants resist the injunction.  They say the plaintiff [corporation] is now run by a small clique.  They say that 1049 members have been disenfranchised illegally.  The defendants have been trying to put matters right.  They say the plaintiff has mismanaged its money.  The defendants say that donations are being stolen and something must be done.

[4]           The plaintiff has a long sad history of conflict.  And this just has to stop.  It is an embarrassment: the plaintiff is an important religious, social and cultural institution.  The conflicts have been riotous, often petty, and are concerned with issues of control, and not the high-minded principles cited as justifications for this lawless behaviour.

Before outlining the history of the legal proceedings, Justice Corbett commented generally on the behaviour of the participants, writing:

[11]      Some of the defendants have engaged in gross misconduct in the conduct of this litigation.  For them apparently, the ends justify the means.  It is offensive that some defendants should perjure themselves so blatantly in their evidence.  The ends do not justify the means.  Through their misconduct, these defendants have, in the end, only discredited themselves.

[12]      Litigation is not some childish game.  It is serious process of conflict resolution.  It is not acceptable to lie under oath or to falsify documents to try to win a lawsuit for control of a temple.
Justice Corbett then went on to examine – in great detail – the various events that led up to the usurping of control by the group of members.    After cataloguing a large number discrepancies between certain of the parties’ evidence and the established fact – including the false assertion by some members that they never received certain trespass notices – Justice Corbett wrote:

[184]       It is telling that, again, the defendants deny receiving the trespass notices.  It is clear from the record that they did. Their principled defense to these notices is that management may not bar them from attending a properly constituted meeting of members, since they, themselves, are members.  But rather than take the principled approach, they contest the notice itself.  It is so sad that these defendants, in the guise of invoking important points of principle, are prepared to tell such naked lies under oath.  The notices were served by the corporation’s solicitors, as evidenced by affidavits of service.  In addition, the notices were posted at the temple itself, and were handed out at the temple on the day of the meeting.  The on-site surveillance cameras show the defendant Dhillon walking in the hallway of the gurdwara, reading the trespass notice he had been handed.  And yet he claims under oath he did not see it.

[185]       Does the oath mean absolutely nothing to the defendants?  What conclusion do they think the court will draw about them when faced with such overwhelming evidence that they are prepared to lie so baldly under oath, and then persist in lying when the evidence is placed before them?  With great sorrow I conclude that the defendants care nothing for telling the truth or following the law.  The only explanation appears to be that, where they think their cause is just, they need not observe the basic moral tenets so fundamental in any society governed by the Rule of Law.

While Canadian judges can always be counted on to hear cases and evaluate credibility with a certain measure of objectivity, in cases like Bruni v. Bruni, Pirbhai v. Singh (c.o.b. Sarwan Auto Sales), and now Sri Guru Nanak Sikh Centre Brampton v. Dhadda, it is refreshing to see such articulated candour in judges’ realistic assessment of the litigation and litigants that come before them.

For the full text of the decision, see:

Sri Guru Nanak Sikh Centre Brampton v. Dhadda, 2012 ONSC 716 (CanLII)  http://canlii.ca/t/fpvk4

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com

 

 

Feb 20

Ice, Ice Baby: Part II

Well here are some of our pics from our fishing adventure today. No big catch but at least our car didn’t fall into the ice.

Mawell

 

 

Gull Lake, City of Kawartha Lakes, Ontario, Canada February 20, 2012

 

 

Russell, Janie, Sarah and Jessica. Gull Lake

 

 

Ice fishing huts, Gull Lake

 

 

 

 

Feb 20

It is family day in Ontario. What are your plans?

It is family day in Ontario. What are your plans?

Russell and the family will be off to Gull Lake, in the City of Kawartha Lakes, to try their luck with some ice fishing.

Read our responses or submit your own plans or comments.

Become a Fan and join the discussion here: http://www.facebook.com/RussellAlexanderFamilyLawyers

 

 

Feb 17

Friday’s Profile: Law Clerk Lindsey

We are very pleased to have Lindsey as a new member of our team.  She will be helping family clients out of our Brooklin, Ontario office.

Lindsey is a graduate of Durham College and has 5 years experience in family law. She has a great knowledge of the Family Law Rules, court filings and procedures.

Lindsey is very client focused and has a passion for assisting our clients while keeping in mind their needs. She loves to travel and spend time with her family and friends. She enjoys participating in various 5K marathons, is very active and enjoys baking in her spare time.

Feb 16

Top 5 Points About Enforcing Child and Spousal Support Payments

Top 5 Points About Enforcing Child and Spousal Support Payments

For those ex-spouses who are subject to a court order or have agreed that one of them will pay spousal or child support to the other, there are certain points about the enforcement of such orders or agreements that are noteworthy:

1. Filing and deduction is automatic.  

If the obligation to pay support arises through a court order, these are automatically filed with the Ontario government’s Family Responsibility Office (FRO).    The role of the FRO is to process child and spousal support orders and to provide enforcement support for recipients through various means.   The court will also make a “support deduction order” which is filed with the FRO, which directs the paying spouse’s employer to deduct specified support amounts from the paying spouse’s regular pay, and to send those amounts directly to the FRO.

2. Other support agreements filed voluntarily.  

In cases where the support obligation comes not from a court order but rather under a domestic contract (such as a separation agreement, cohabitation agreement, or paternity agreement), the support payments can be enforced privately, or if necessary they can still be processed through the FRO.  For this to occur, the contract must first be filed with the court, and then filed with the FRO.

3. Enforcement of support payments.  

In cases where the paying spouse has not been making the required child or spousal support payments, or has not been making them on time or in full, then the recipient spouse can take legal action to recover the money owed. Potential avenues of individual recourse include having the paying spouse’s wages or bank account garnished, seizing his or her RRSP, or registering the support order as charge or filing a writ on his or her home.  The recipient spouse can also request a hearing before a court to obtain an order for payment from the paying spouse, failing which, he or she may be sent to jail.   All of these steps can also be taken by the FRO on behalf of a recipient spouse, if the obligation to pay arises pursuant to a court order or if a domestic agreement has been filed with the FRO.

4. Additional enforcement mechanisms through the FRO.  

In addition to the list of legal remedies above, the FRO has certain other avenues of recourse and powers available to it, including:

• forcing public officials or individuals to product any records containing information about the paying spouse’s employment and financial circumstances;

• deducting at source any money owed by the federal government to the paying spouse (for example, income tax refunds and/or Employment Insurance benefits);

• suspending the paying spouse’s driver’s license;

• reporting the paying spouse’s defalcation to a credit bureau; and

• taking steps with the paying spouse’s employer to achieve court-ordered enforcement of  the support deduction order that has been imposed.

5. Withdrawing from the FRO’s assistance.  

Once a support order or domestic contract has been filed with the FRO – and provided both the paying spouse and the recipient spouse are in agreement – they can withdraw from the auspice of the FRO, by sending a formal Notice of Withdrawal.  On the other hand, if the paying spouse is delinquent in complying with the support order, then the recipient can unilaterally withdraw the support order from the FRO, by sending a signed Notice by Support Recipient of Unilateral Withdrawal. There is a fee for re-filing the support order at a later date, and there are special rules in situations where the recipient spouse is receiving social assistance and has assigned the support order to a social assistance agency.

For more information about the FRO and the role it plays in enforcing spousal and child support orders, see the FRO website at www.theFRO.ca
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at www.RussellAlexander.com

Feb 15

Ontario Custody and Access: Who’s Is Entitled To The Child?

There is a general misconception that when a couple separates, the children must automatically stay with their mother. But in Ontario, the mother and father are equally entitled to custody of the child.

Feb 14

Step-Mom’s Arguments Were Creative, But Lawsuit Against Her Step-Sons Was Likely Still Out of Time

Step-Mom’s Arguments Were Creative, But Lawsuit Against Her Step-Sons Was Likely Still Out of Time

A court decision released about a week ago illustrates the importance of bringing court actions in a timely manner — even when they involve family members!

In Laidlaw v. Laidlaw, the stepmother was prompted to sue her late husband’s sons (i.e. his children from a first marriage).   She claimed that before he died, she and her husband had paid the sons $52,000 as a down payment toward the purchase of a condominium.   Although the condominium was registered in the sons’ names, the stepmother said that the understanding was that, in exchange for the $52,000, she and the husband would live there for the rest of their lives.

Indeed, she and the husband did move in in July of 2004.  Unfortunately, the husband died a few months later.   The stepmother continued to live there after his death, but moved out in 2006 after getting into a dispute with the sons over the rent she was paying to them.

In 2006, the stepmother retained a lawyer who wrote to the sons, setting out her position and proposing that the $52,000 be returned to her.    Perhaps not surprisingly, the sons refused, claiming that the money was a gift to them from their father while he was still alive.

The stepmother did not launch her court action against the sons until January of 2011, which was more than five years later.  Unfortunately, in Ontario there is legislation that sets out limitation periods, meaning the time within which a court action must be commenced.   Specifically, the Limitations Act provides that actions such as the stepmother’s must be commenced within two years of the date that the she knew she had a claim against the sons for the $52,000.

On first blush, it appeared that the stepmother had missed the deadline.   However, she had some creative legal arguments to try to circumvent it.

For one thing, she claimed that if the sons were unwilling to repay her the $52,000, then they owed her $3,000 per month under an “expressed and/or implied” contract between them which was designed to ensure she could “maintain a proper and decent standard of living.”   She asserted that this was an implied contract to essentially reimburse her for the losses she suffered as a result of the sons refusing to repay the $52,000 and from her not being able to use the condominium.   Alternatively, she claimed there was an express and/or implied contract to support her.

More importantly, she claimed that because these so-called contractual obligations were continuing and ongoing, the 2-year limitation period was “refreshed” every month, so her claims were not statute-barred.

As a further argument, she claimed that the sons had an obligation under the “parental support” provision of the Family Law Act to support her.   (That provision obliges every child who is not a minor to provide support – in keeping with the parent’s need and the child’s ability to pay – to a parent who has cared for or provided support to that child.)

The sons brought a motion to dismiss the stepmother’s claim outright, as being “vexatious and an abuse of process”, mainly on the basis that her action was out of time and accordingly statute-barred.

The judge on the motion refused to grant that order.   Instead, he accepted the stepmother’s argument that the claim respecting the sons’ provision of liveable accommodation was ongoing or continuing, and that the limitation period was refreshed each month, so the wife’s claim was not out of time. He allowed the matter to proceed to trial.

However, the sons brought the matter back before the court, asking leave to appeal the motion judge’s ruling.   They succeeded, in that they were allowed to appeal.

First of all, the court refuted the motion judge’s finding that this was a continuing obligation on the part of the sons to pay her $3,000 a month or provide her with living accommodation.  This was not a contract for periodic payments such as payments under disability insurance or instalment payments under a loan.  Instead, the contract (if any) came to an end when the stepmother moved out of the condominium in 2006.

Nor was the court persuaded that the sons might have owed the stepmother any obligation under the parental support provisions of the Family Law Act, as the motion judge seems to have found.   After all, she had never cared for or supported them; she did not even know them when they were young (having married their father later in life, when the sons were already grown).

As such – and since there was reason to doubt the correctness of the motion judge’s order – the court granted the sons leave to appeal, which meant they could have the matter heard again (and hopefully have the stepmother’s action dismissed entirely.
For the full text of the decision, see:

Laidler v. Laider, 2012 ONSC 749   http://canlii.ca/t/fpv9z
At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com

 

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