That we call ourselves a civilized society, yet we tolerate the dismissal of basic human rights for thousands of our citizens, seems to me to be the most egregious hypocrisy. Here in B.C., the situation has been compounded by the actions of the provincial government. In the mid '90s, the NDP government of the day disallowed family law issues from the legal aid system.
So, let's see, a woman, for example, gets cut off from the family assets when she flees an abusive family home. Neither the family accountant nor the family banks will give her financial information because they know that she will be destitute until some agreement is reached in the divorce process, and their client is now solely the abusive husband. She applies for legal aid to hire a lawyer that will represent her in this process, and is denied because it is a family law matter. She goes to the police about the abuse and being cut off from her assets, and is told there is insufficient proof to lay charges. Church and family turn their backs on her because of the allegations of abuse against the husband, who has been perceived as an upstanding gent. Of course, he will also be the only one of the two of them who will be able to continue to contribute financially to church and family. Nobody likes a poor person on their doorstep.
In fact, the accountant, banker, pastor, family, and police all recommend that she go to a halfway house and start getting over it and on with the rest of her life.
How will you feel when this happens to you? It is happening to thousands of people every year. Is that OK with you?
Tuesday 4 December 2007
OFF TO OTTAWA AND BRIEFING NOTES ON NANC'S CASE
We are flying to Ottawa for the next few days. The trip is first and foremost for the resolution of my case, but we will take the opportunity to circulate the following briefing notes and talk to key people about Nanc's case. I will have the spotlight for a bit starting Thursday, and I plan to use that to illuminate the dark world of family violence.
Briefing notes: Supreme Court of Canada Rick vs. Brandsema
With close to half of all marriages ending in dissolution, the increasing affluence of middle and upper middle class Canadians, and the vast majority of couples resolving their financial issues by way of agreements, the duties of spouses in the formation of family law agreements is of critical national importance.
On April 18, 2007, three male judges of the Appeals Court of British Columbia rendered a decision in the case of Rick vs. Brandsema that removes any hope for women in abusive relationships.
The effect of this decision is to say to those women that matters of conscience, justice, equality, equity, and fairness, do not apply to them. It matters not that there was a power imbalance in the relationship, lack of sophistication of the victim, proven fraud on the part of the abuser, diagnosed and treated Post Traumatic Stress, and emotional fragility clearly demonstrated in court. If an abusive spouse can withhold information, hide money, and con you into signing a patently unfair agreement, you are done and no one cares.
Apparently British common law no longer works for women in Canada. That bastion of fairness that protected the average person from bad applications of statutory law, is irrelevant now. The abusive spouse can coerce you, con you, hide things from you, use your children against you, beat you down until you are just breathing, and then: if you sign it, you are done and no one cares.
When the letter of statutory law becomes more important than the people it is meant to serve and protect, it is fatally flawed. We do not believe that it was the intent of those who drafted or enacted our laws that they be applied in such an unforgiving, inflexible, and unjust manner. We do not believe that it was the intent of legislators to deprive abused women of hope, and of their rights. The Charter of Rights, Freedoms, and Responsibilities speaks to a fundamental right to equality under the law. Does “equality” mean that an undereducated woman that has been kept in an isolated farm culture, where lack of real information or outright misinformation and tolerance of spousal abuse is the norm, stands before the court on an equal footing with her “husband”, a sophisticated wife beater that sits on numerous corporate and organizational boards? Is she equal when she signs documents that she cannot see, let alone understand? Does the Charter err in demanding equality for each man and woman vs. fairness in circumstance? We do not believe that the Charter excludes consideration of circumstances, but will leave that issue to scholars to debate. If it is true, then the Charter is fatally flawed as well.
This decision has created a legal precedent that offends every sense of conscience. It indicates a fundamental erosion of the rights that suffragettes fought for over the last hundred years, and is an erosion of our commitment to human rights in this country. Women comprise some 50% of the votes, we think there is a base for some political action here. It is time for women and men of conscience to stand united once again to demand fairness and real justice before the courts.
Ms. Rick has applied for, and been granted leave to bring this matter before the Supreme Court of Canada. The leave panel included Chief Justice Beverly Maclachlin and Justices Charron and Rothstein.
Ms. Rick feels that it is a matter of national importance and wishes to know if the appeals court ruling is, in fact, the will of the Canadian justice system. She does not believe that “no one cares.” She asks that you review this decision and, if you decide that you do care, take action to let the Supreme Court of Canada know how you feel. Please circulate this message to others who may also care. The fundamental right of fair treatment of all abused women, and men, before the law is at stake.
The issues at law:
This is an important case on the formation of family law agreements, involving the duty of disclosure, unconscionability, undue influence, the meaning of independent legal advice, and the effect of consent dismissal orders on statutory review.
The current leading SCC cases - Miglin v. Miglin and Hartshorne v. Hartshorne, did not address what would constitute review for procedural fairness. Rick v. Brandsema will give our highest court an opportunity to hopefully establish better guidelines as to the duties of parties in the formation of family law agreements.
To encourage people to settle their domestic financial affairs by way of agreements, the rules leading to the formation of these agreements have to be clear. What are the duties of separating spouses in the settlement process as to disclosure and the mental and emotional state of their spouses?
Link to SCC case info:
http://cases-dossiers.scc-csc.gc.ca/information/cms/docket_e.asp?32098
Briefing notes: Supreme Court of Canada Rick vs. Brandsema
With close to half of all marriages ending in dissolution, the increasing affluence of middle and upper middle class Canadians, and the vast majority of couples resolving their financial issues by way of agreements, the duties of spouses in the formation of family law agreements is of critical national importance.
On April 18, 2007, three male judges of the Appeals Court of British Columbia rendered a decision in the case of Rick vs. Brandsema that removes any hope for women in abusive relationships.
The effect of this decision is to say to those women that matters of conscience, justice, equality, equity, and fairness, do not apply to them. It matters not that there was a power imbalance in the relationship, lack of sophistication of the victim, proven fraud on the part of the abuser, diagnosed and treated Post Traumatic Stress, and emotional fragility clearly demonstrated in court. If an abusive spouse can withhold information, hide money, and con you into signing a patently unfair agreement, you are done and no one cares.
Apparently British common law no longer works for women in Canada. That bastion of fairness that protected the average person from bad applications of statutory law, is irrelevant now. The abusive spouse can coerce you, con you, hide things from you, use your children against you, beat you down until you are just breathing, and then: if you sign it, you are done and no one cares.
When the letter of statutory law becomes more important than the people it is meant to serve and protect, it is fatally flawed. We do not believe that it was the intent of those who drafted or enacted our laws that they be applied in such an unforgiving, inflexible, and unjust manner. We do not believe that it was the intent of legislators to deprive abused women of hope, and of their rights. The Charter of Rights, Freedoms, and Responsibilities speaks to a fundamental right to equality under the law. Does “equality” mean that an undereducated woman that has been kept in an isolated farm culture, where lack of real information or outright misinformation and tolerance of spousal abuse is the norm, stands before the court on an equal footing with her “husband”, a sophisticated wife beater that sits on numerous corporate and organizational boards? Is she equal when she signs documents that she cannot see, let alone understand? Does the Charter err in demanding equality for each man and woman vs. fairness in circumstance? We do not believe that the Charter excludes consideration of circumstances, but will leave that issue to scholars to debate. If it is true, then the Charter is fatally flawed as well.
This decision has created a legal precedent that offends every sense of conscience. It indicates a fundamental erosion of the rights that suffragettes fought for over the last hundred years, and is an erosion of our commitment to human rights in this country. Women comprise some 50% of the votes, we think there is a base for some political action here. It is time for women and men of conscience to stand united once again to demand fairness and real justice before the courts.
Ms. Rick has applied for, and been granted leave to bring this matter before the Supreme Court of Canada. The leave panel included Chief Justice Beverly Maclachlin and Justices Charron and Rothstein.
Ms. Rick feels that it is a matter of national importance and wishes to know if the appeals court ruling is, in fact, the will of the Canadian justice system. She does not believe that “no one cares.” She asks that you review this decision and, if you decide that you do care, take action to let the Supreme Court of Canada know how you feel. Please circulate this message to others who may also care. The fundamental right of fair treatment of all abused women, and men, before the law is at stake.
The issues at law:
This is an important case on the formation of family law agreements, involving the duty of disclosure, unconscionability, undue influence, the meaning of independent legal advice, and the effect of consent dismissal orders on statutory review.
The current leading SCC cases - Miglin v. Miglin and Hartshorne v. Hartshorne, did not address what would constitute review for procedural fairness. Rick v. Brandsema will give our highest court an opportunity to hopefully establish better guidelines as to the duties of parties in the formation of family law agreements.
To encourage people to settle their domestic financial affairs by way of agreements, the rules leading to the formation of these agreements have to be clear. What are the duties of separating spouses in the settlement process as to disclosure and the mental and emotional state of their spouses?
Link to SCC case info:
http://cases-dossiers.scc-csc.gc.ca/information/cms/docket_e.asp?32098
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