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?

THERE IS A PROGRAM FOR ABUSED ANIMALS-WHAT ABOUT ABUSED PEOPLE???

IMITATION IS THE SINCEREST FORM OF FLATTERY

Nanc found out about this program run by Rescue Ink in the U.S.. It looks a lot like our Family Violence Education Initiative, with one big difference. Maybe we should get tatooed all over!?
This is not the first time that we have noticed that animals get more protection than women, children, and the elderly in our society.

The School Visitation Initiative
sign up now

In conjunction with law enforcement and animal control officials, Rescue Ink members visit elementary and middle schools, presenting a program designed to instill an appreciation of the value of animals, and to teach children how to spot and properly report instances of animal abuse and neglect. The curriculum fosters respect and consideration for animals via one-on-one interaction with positive role models, and contact with rescued animals.

The Rescue Ink members who participate in the School Visitation Initiative Program say that the experience gives them a feeling of nostalgia, and reminds them of their days attending school. We even have a member who likes to drop by the Principal's office in every school he visits. After all, he told us, it's where he spent most of his time.

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.........

Still between

Well, the time between tick and tock has become longer than we expected. Tock is now 2 weeks late, but it is still coming!
In the mean time, my big court battle has been resolved to my satisfaction. We reached an agreement in principle with the other parties and are now just working out the logistics of doing that which has never been done. Tick and tock again, but mine will resolve on December 4,5,or 6 or the agreement goes down the drain. I don't think either side wants that to happen. Watch the national news and CPAC during this period, it will be historic.
There is that old Chinese curse about living in interesting times.....

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

SCC CASE SUMMARY- WHAT IT'S ALL ABOUT

I linked to the SCC case on the first post, but the SCC just got the official summary post up, so I thought I should post it here.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.

Contracts - Validity - Remedies - Unconscionable transactions - Family law - Separation - Family assets - Separation agreements - Does mere access to legal advice fully compensate for a weakened mental state - What is the duty on a spouse, if any, to provide accurate values of assets within his or her control both in the mediation process and the finalization of the agreements - Does it matter that the mediation and the minutes arising from it refer to an equalization payment and that the final agreements makes the accuracy of a sworn financial statement a condition precedent - What constitutes res judicata where statutory rights are involved - Miglin v. Miglin, [2003] 1 S.C.R. 303, 2003 SCC 24.

The Applicant and Respondent separated after a 27 year marriage. They had five children, and they had established a dairy farm business, of which they were equal shareholders. They had acquired land, vehicles, RRSPs and real property as family assets. The wife retained a lawyer to commence divorce proceedings, but twice terminated his services. First one mediator was retained and then another, and a memorandum of agreement was drawn up providing that the husband could keep the farm and another dairy farm business, while the wife would retain a house purchased with farm funds and receive an equalization payment of $750,000. The amount was proposed by the wife before information on the value of the assets was final. There was a $100,000 lump sum payment to the wife for child support, but no provision for spousal support. Although a second lawyer advised the wife that the $750,000 amount could be low and that she should not give up spousal support, the separation agreement was signed. The parties were divorced and a consent order was entered dismissing the wife’s claims against the husband. Later the wife initiated a court action seeking rescission of the separation agreement on the basis of misrepresentation and unconscionability. She alleged misrepresentations on the value of disclosed assets and a failure to disclose some assets, and asked in the alternative for a variation pursuant to s. 65 of the the Family Relations Act, R.S.B.C. 1996, c. 128. She also brought claims for physical and sexual assaults alleged to have been committed by her husband throughout the course of their marriage.

RESPONSE! SOMEONE ELSE DOES CARE

Well, the feelers we've been putting out have - perhaps - borne fruit. We were contacted today by a national umbrella group for women's issues. I sent them our factum and further info including the text of the decision by the BC Appeals Court, both of which are too long to post here. we'll gladly email them to interested parties. Our email is:

baer1@telus.net

CONTACT DAY

Have spent the day contacting women's groups in BC and nationally. Last time I tried I must have had an old contact list, because 10 of 12 emails sent bounced. So far, no bounces and we sent about 15 out. Also tried to contact some respected feminist leaders. Hopefully one or more will see the implications and help us connect into feminist networks. Trying to create some buzz here, people need to look at this!

THIS IS THE WEEK

This is the week we launch our Supreme Court media campaign for Nanc's case. (see first post) We have some local interest, but we have to get the story out to the national media. Nanc is scared to death, based on her experience in the past, that no one does care about abused women, children, elderly, but I don't believe that. And yet, I have been pushing the Family Violence Education Initiative (see post 2) for about 4 years now, and we keep getting this "soft resistance" to it. Everyone says, "oh yes, this is so important and your idea makes sense" but nothing comes of it. No one has been willing to step up to the plate and promote the idea or raise the issue in public forae.
We have had numerous conversations about why it is so difficult for people to come to grips with this issue, and our best conclusion, and probably not the only one, is that people don't want to admit to themselves or others that it has happened to them, in their families, or to those they know. If they admit it, then it means that there is something wrong with their family. Also, If they admit there is a problem, they may have to take some action, which is typically a last resort that people have to be pushed into when things get so bad that lives are at stake. Unfortunately, that is sometimes too late.
This problem IS that pervasive in our society. Almost every single person that I have talked to over the last few years about this has had their own stories, and those that didn't probably could if they were willing. This issue is, perhaps, the last bastion of barbarism in North American society. Is that why we cling to it? Is the right to assault family members a final link to our animal selves?
Anyway, it's time to lock and load. We're going over the top.

SOLUTIONS: A FAMILY VIOLENCE EDUCATION INITIATIVE

Facts

• 200 000 women and 177 000 men reported abuse in 2000 in Canada
• The abused were children, spouses, and the elderly
• This represents about one in ten Canadians each and every year
• These are only those we know about. Abuse is severely underreported
• Many victims are unaware that what they suffer is abuse until informed by friends, relatives, or professionals. They believe “that’s just the way it is.”
• Once aware that they are in abusive relationships, victims are often advised or believe they should not report

1. to keep the family together at all costs

2. to avoid community or family knowledge of the situation

3. to protect the abuser

4. to protect their financial situation

5. to avoid retaliation by the abuser

6. because the abuser will never do it again

• Abusers almost always do it again and usually escalate their abuse over time
• Children raised in abusive families often become abusers themselves, even when they are not the direct victims of the abuse
• A large percentage of violent offences are committed by victims of abuse
• Victims frequently do not know what they can do about their situation
• Adult abusers rarely stop abusing

Needs

• Children must be taught
  1. to recognize abuse in all its forms
  2. that abuse is wrong
  3. what they can and should do about an abusive situation
  4. what a healthy relationship looks like
• A national commitment to actively address family violence
• Emphasis on stopping the cycle of violence for future generations
• Provide honest and impartial advice to victims

One Solution

A nationally mandated curriculum on family violence delivered to all Canadian children in both public and private schools. It can be delivered in an annual seminar/special assembly format by specially trained facilitators that travel from school to school. It must begin at the kindergarten level, and be targeted to the developmental level of the group. It should include dramatic enactments of healthy vs. abusive interactions so that children can recognize abuse when they see it.

Conclusion

There is no “quick fix” to the problem of family violence. Education of our children, however, does provide hope for future generations to be free from the cycle of violence.

THE LEGAL DEATH OF HOPE

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 is a greater crime against humanity to kill an abused person’s hope, than to kill their body. Death of the body ends pain and suffering, death of hope makes pain and suffering a permanent condition. We are offended by conditions in Darfur, Afghanistan, and other places where human rights are trampled by governments. We must be offended by this decision.

Ms. Rick has applied for leave to bring this matter before the Supreme Court of Canada, and the panel has been assigned to consider the application. The panel includes 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.

This letter will form the body of both a press release and a campaign for support and public action from women’s groups across Canada, and perhaps beyond. 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, while First Nations wield only some 3%. 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 can be contacted at:

baer1@telus.net

Link to SCC case info:

http://cases-dossiers.scc-csc.gc.ca/information/cms/docket_e.asp?32098