No slip betwixt cup and lip!

     I tried to post the entered judgement with The Judge's reasons, but it didn't work. "Relief" doesn't begin to cover how I feel. When injustice is a part of your life for so long, it takes a while to adjust. Of course, I still can't go to California without the risk of being thrown into prison, but hey, I don't have to worry about FMEP cancelling my driver's license (which they did in the past), attaching my wages (ditto), ruining my credit (several dittos, ongoing until now, except for the couple of years that they accepted that I had paid in full before reneging and starting all over again), scooping all my GST rebates ( I was poor, remember???), sending frequent dunning letters ("you are a BAAAD person, and we will do nasty things to you until you send us every cent you have!"), and generally making me relive the horrible experience that I had with the divorce and the California legal system.
     Again, I have to thank my lawyer Jack Hittrich, for taking a big risk with my case, going to California with me to fight there (they refused to let him speak to the case and actually removed him from the court because he was a foreigner, and so had no standing in an "American" courtroom. The Judge wasn't even a real judge! She was a "master", which is a lawyer able to deal with the meaningless trivia that annoys "real" judges in their system: like ordinary peoples' lives. It so smacks of the arrogance of impunity.
     There was a lot that I was uncomfortable with, when I lived in the States. Moving to Canada in 1991 felt like coming home, even though I hadn't lived here very long, and that was as a baby. There is a different feel to Canada. Not to say that Americans are bad people, they're just people. But the culture there is so much more one of constant fear. Americans accept that, Canadians don't, yet.
     I grew up admiring the "Spirit of America." I don't see that spirit anymore. I see a beaten down, and growing, underclass; a shrinking and complacent middle class, pacified with bread and circuses (yes, that IS a Roman Empire reference); and a ravening bunch of wolves that are truly accountable to no one except each other. There are good people in all these groups, but they are powerless against the unaccountable ones.

I have been fighting the Province of BC, FMEP (family maintenance enforcement program), and others for some ten years. I went to court today and got a judgement (second one, actually, but nobody would recognize the first one from 1997???).

I won. 100%.

It was all wrong from day one, and the judge said so in no uncertain terms. He actually commended me for my tenacity, honesty, and efforts to do the right thing through the 23 years that I have struggled with this. He slammed the State of California, Alameda County District Attorney's office, for their arrogance and inflexibility, and FMEP for helping them be that way. He concluded that "reciprocal agreements" ARE in fact reciprocal, or they aren't valid in law. Thank goodness we have strong ties to British Common Law and the concept of "equity". The Americans have abandoned it, in their legal system, along with their original concepts of freedom and justice for all.

My thanks to the Judge, for actually reading and understanding what was before him in evidence. BIG thanks to Jack Hittrich, for sticking with it, and me, for all these 10 years and not just giving up the fight. He told me today that he had consulted several other lawyers that told him we'd never win. Well, we did. PPFFFFT!

PS: California, one size does NOT fit all, in laws that apply to people. You have to be able to vary according to circumstances. That is a key to the concept of Equity. 

NUMBERS: What should I have paid vs what FMEP wants to enforce

We have entered the following (or will enter, given today's events) into evidence:

Amount I earned from 1992 to 2005, when the youngest son reached majority: $172,733
Amount assessed for child support by California and enforced by FMEP: $193,203
Paid to date by me: $126,362
What I should have paid under wage adjusted guidelines: $27,996
The child support burden imposed by Cali and enforced by BC: 112% of my earned income for the period.

Is something wrong with this picture?

HEARING DATE SET!

OCTOBER 17th IS THE DAY!
Sorry to all that are following this blog for not posting more often lately.
The hearing date is set, and I think we are, as well.
We have been feeling pretty beat up by this whole incredibly drawn out process. It has sapped our energy and our resources. I am working again, to keep the wolves from the door, and we are selling our house. Would we do it again? You betcha! Is it hard on us? Brutal. But, at the end of the day, Nanc has a chance to change things for thousands of women.
There is no turning back or walking away.
We wait, and survive......

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

LEAVE GRANTED!!!

We are going to the Supreme Court of Canada!
Leave was granted today for Nanc's case to proceed. We have been expecting it for the last few weeks, hence nothing to report. It has been a tense time but now another hurdle has been passed. Jack (Nanc's lawyer) is excited about the opportunity to craft new law setting down much needed guidelines for the process of forming agreements in family law. That is really the core of Nanc's case. It is unconscionable that a stronger spouse can literally hold a gun to the other spouse's head to force him or her to sign an agreement, and then have that agreement be unassailable by legal means. That was the gist of the Appeals Court's decision, and it can not be allowed to stand!
More later, we are too excited.........

NUTSHELL - PART 2

The abuser appealed and won his appeal before 3 male judges who had little family law background. They were corporate contract lawyers. Their mantra was "if you sign it you are done, regardless". In their finding, they say some very bizare things. According to them, Nanc knew perfectly well what she was doing when she signed the documents (that she couldn't even read), She had access to a lawyer and accountants, and it isn't the abuser's fault that they were incompetent and relying on the abuser's fraudulent financial info. The appeals court dismissed the trial judge's findings of fact. Nanc has appealed to the SCC to overturn the BC Appeals Court Ruling in the interest of justice, equity, and clarity of law. We are currently awaiting leave to appeal to the SCC.

!!!WOMEN TAKE NOTE: this finding is a LEGAL precedent that means that an abusive spouse has no obligation under the law to provide accurate financial info. Banks and accountants are encouraged to deny the woman access to her own accounts and financial info.
Your mental/emotional state at the break up of the marriage is of no interest to the court, you are assumed to be equally as competent as your spouse/abuser. Abusers are not accountable for tormenting their spouses into submission.
Merely having access to professionals is sufficient to assume proper and competent legal and financial advice.

This decision should scare the hell out of every woman in Canada, and make every legal professional hang their head in shame.

IN A NUTSHELL

Several people now have asked for a simple version of what this is all about. I sat down to write a "simple" version and found that harder to do than I thought. Like life in general, it's just not a simple thing. Did my best, though.
The nutshell version is this: Nanc was in an extremely abusive relationship for 27 years. She lived in near isolation on a dairy farm, and her church and community turns a blind eye to even obvious abuse. Her 2 youngest girls removed her from the farm in 2001 in a basically catatonic state. Nanc got a bit better, still suffering what her doctor termed “one of the most severe cases of PTSD” he had ever seen and he is a specialist in PTSD, and she commenced divorce proceedings. Her abuser provided all the financial info relied upon in negotiations, and we have subsequently proved he hid large amounts of money, the full extent will never be known. Now Nanc is absolutely brilliant in matters of the heart and family, but she never finished grade 10, she was never involved in the finances of the business. Nanc was in such a highly emotional state that she found that she was unable to see what was written on documents relating to the divorce. We now understand this to be a symptom of her PTSD. Nanc signed the agreement, relying on advice from an incompetent lawyer that she could revisit the agreement’s terms within a 2 year period. I came into her life about this time and introduced her to a competent lawyer, Jack Hittrich. Nanc went to court to have the agreement overturned. She testified to the circumstances in court and the trial judge found her credible and the agreement unconscionable.

FAMILY RELATIONS ACT - NEEDED CHANGES

Nanc's lawyer, Jack Hittrich, has been practising family law for many years and has become concerned by certain deficiencies unique to family law. He is part of a working group of lawyers that have come to grips with ways to address these issues. Many of these issues were central to Nanc's experience with the justice system. This post is a preliminary report:


C.B.A. FAMILY LAW SUBSECTION SUBMISSIONS ON DISCLOSURE PRINCIPLES IN REFORMING FAMILY LAW RULES

Mr. Justice Fraser in Cunha v. Cunha [1994] B.C..No. 2573, brilliant description of “non disclosure” as “the cancer of matrimonial property litigation” is applicable to all areas of family law. Accessing reliable financial information at an early stage and with a minimum of expense and complexity should the primary objective and underlying rationale in the current review of our disclosure rules.

The current Supreme Court and Provincial Court Rules are a good start but simply do not go far enough. Very real barriers continue to exist to obtaining accurate and reliable financial information upon which informed decisions can be made. A complex, expensive, and often unpredictable court process is frequently necessary to determine income and asset information in cases of self employed individuals.

It is unfortunate that our adversarial legal system places the onus on usually the weaker spouse, who lacks the knowledge and often the financial means, to prove on a balance of probabilities that her spouse (yes, this is usually gender specific) has income at a certain level or has this or that asset and what its value is. Why force the weaker party to spend thousands and thousands of dollars on lawyers, forensic accountants and business valuators to prove income levels and business values when the party in control of the key financial information can often sit back and wait to see if his (yes, it is usually “his”) spouse will tire and hopefully give up and take a settlement which is less than fair?

The key here is to shift the burden and expense of disclosure to the spouse who controls the financial information. The traditional burden of proof on a balance of probabilities on the claiming party is deeply flawed in the area of disclosure in family law.


Why should there be a requirement to commence litigation before the disclosure rules of our courts apply? Why should the party seeking the disclosure through the court process be required to seek costs, usually at a small fraction of their real costs? Why should the non disclosing party have the opportunity to delay and then produce at the last minute knowing very well how lax courts tend to be about awarding costs?

There are a number of useful ideas in this area and they include the following:

1. There should be an automatic right to seek full financial disclosure by means of appropriate demands, without the need to start any legal action. Supreme Court Rule 60D could be amended to include pre writ disclosure demands.

2. If the demand is on a self employed individual, in addition to the usual disclosure requirements, there should be a clearly specified requirement to produce banking records, both personal and business, over a period of 2 to 3 years.

3. The forms for financial demands should clearly spell out that failure to produce by a stipulated date will automatically result in a fixed financial penalty unless the non disclosing party brings on a successful application in court to show cause why the penalty should not apply.

4. If the commencement of legal action is required for failure to comply with disclosure, special costs should normally be awarded unless the offending party can show compelling reasons to the contrary.

5. The scope of Interrogatories should be broadened to include demand for specified documents.

6. There should be the option in family cases to specify on a Demand for Lists of Documents the subject area in issue.

7. Photocopying costs and costs of accessing third party documents should be controlled as much as possible with an automatic payment out of family assets unless cause can be shown otherwise.

8. Judicial Case Conference and Family Case Conference Judges and Masters should have broad and specific powers to order extensive financial disclosure with meaningful penalty provisions in case of non compliance.



9. At any stage of the proceeding, either party should be able to bring on an application to fund the full costs of an appropriate investigation and report into financial matters with legal fees, accounting fees, and disbursements paid by the other party or from family assets.

10. Non disclosure, partial disclosure, and financial ability to bear costs, should be specified criteria in the awarding of costs to fund investigations and reports into financial matters.

11. Rule 60D should be clearly linked to Rules 32 and 32A with expanded powers for court appointed masters, registrars, special referees and experts to investigate and report on financial matters. FRA s. 15 investigations and reports into custody and access matters are well known and routinely ordered while Rules 32 and 32A are little known and rarely used to investigating and report on financial matters.

12. If there is a judicial finding of material non-disclosure, there should be specific legislative authority for judges to reverse the onus of proof on evidence and to draw appropriate adverse inferences against the non disclosing party, essentially incorporating the rationale of Cunha v. Cunha. This goes beyond the scope of procedural law and will require amendments to the FRA and possibly the Divorce Act.

The foregoing ideas are expressed in very general terms. They arise from the collective financial and emotional pain of numerous disadvantaged spouses who have a bitter taste in their mouth about the substantial procedural hurdles that they faced in the current family justice system. It is time to make the family justice system more user friendly and more just.

ALL OF WHICH IS RESPECTFULLY SUBMITTED
September , 2007

Jack Hittrich, Chair of the Law Reform Committee of the Westminster Sub Section
David Hart
Janet L. Clark

David Halkett
with input from David Dundee
and J.P. Boyd