LEAF has been granted leave to intervene!!! Here is what they have to say about the case:
Some of the issues of importance in Rick v. Brandsema for LEAF and West
Coast LEAF include:
a women's consistent disadvantage and inequitable results in family
law settlement agreements - leading to barriers of women's economic
independence and survival;
serious and unique challenges for rural farm wives;
advancing equality analysis in an area of law which has enormous
effects on women and children;
re-defining the understanding and reviewing the value processes of
negotiation-based resolutions in family law; and
women, mental illness and family law
This case offers opportunity to influence and advance family law and
thereby women's economic potential.
Showing posts with label financial disclosure. Show all posts
Showing posts with label financial disclosure. Show all posts
Friday, 13 June 2008
Friday, 29 February 2008
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......
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......
Thursday, 29 November 2007
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.........
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.........
Thursday, 4 October 2007
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.
!!!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.
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.
Thursday, 27 September 2007
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
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
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