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......
Friday, 29 February 2008
Tuesday, 4 December 2007
WHAT IF THIS HAPPENED TO YOU?
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?
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?
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
Thursday, 29 November 2007
LEAVE GRANTED WITH COSTS!!!
Here is the press release from the SCC:
http://scc.lexum.umontreal.ca/en/news_release/2007/07-11-29.3a/07-11-29.3a.html
http://scc.lexum.umontreal.ca/en/news_release/2007/07-11-29.3a/07-11-29.3a.html
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.........
Tuesday, 6 November 2007
TOCK!
canada, canadian search engine, free email, canada news
Wednesday » December 19 » 2007
Top court petitioned on divorce equality
Wife loses out because of 'access to legal advice'
Joey Thompson
The Province
Wednesday, December 05, 2007
An Abbotsford mom who claims she came up $600,000 short in a mediated separation deal with her ex-husband is hoping Canada's top court will grant her plea for pay equity.
Fifty-two-year-old Nancy Rick says she proposed the settlement pay-out to Ben Brandsema while an emotional wreck triggered by a strict, abusive upbringing and aggravated by 28 stormy years with the dairy farmer.
The mother of four, who tried to end her life while in her teens, said she was too vulnerable and confused, a result of post-traumatic-stress disorder, to see she wasn't getting her fair share. Nor was she able to detect that Brandsema hadn't disclosed the true value of the couple's many holdings, including several large properties, cattle, a milk quota, equipment, vehicles and RRSPs.
She said she was too depressed to even read, much less do the math on the 2001 split-up agreement that gave her approximately $1 million.
Indeed, a specialist in post-trauma psychiatry testified that Rick's PTSD symptoms were "among the most extreme" he had ever seen.
A trial judge in B.C. Supreme Court agreed the homemaker, who laboured on the farm alongside her husband, was troubled and that Brandsema, knowing she was mentally unstable when they began negotiating, took advantage of her.
Justice Harry Slade said Rick received only 30 per cent of the family assets instead of the 50/50 split the couple had initially planned on -- partly because Brandsema had provided misleading information about their $3-million estate after they split in 2000.
He said Brandsema owed her an additional $649,680.
But B.C.'s top court said too bad, so sad if Rick missed the boat. After all, the all-male panel noted, she had consulted lawyers, accountants and two mediators. In a 2003 decision, the Supreme Court of Canada implied that access to professional legal advice can compensate for some vulnerabilities or imbalances.
"Should the husband have been obliged to tell the wife that her proposal was not enough and that she should demand more?" top court Justice Edward Chiasson asked.
"This is not a case of mental incapacity, undue influence or duress. [They] were participating in mediation, part of that process involved the recommendation that the parties obtain legal advice. The wife had done so and did so again.
"[She] was troubled but it is clear that she knew what she was doing."
Chiasson said the lower court allowed equality to trump fairness.
But family law lawyer Jack Hittrich says the appeal court's ruling sends a disturbing, chilling message to Canadians: Even when a separating spouse has mental-health issues, even when there was misrepresentation as to assets, even when they both intended that their assets be equalized, as long as they had access to legal advice, the agreement will be binding.
"This case raises significant issues of national importance about the duties of negotiating parties in family law agreements," he states in a written petition to the nation's top court. "Without proper judicial guidance from our highest court, thousands of future couples will either be deprived of just settlements or will have to face costly and uncertain litigation."
- - -
Phone: 604-605-2119
Fax: 604-605-2099
jthompson@png.canwest.com
© The Vancouver Province 2007
Close
Copyright © 2007 CanWest Interactive, a division of CanWest MediaWorks Publications, Inc.. All rights reserved.
Wednesday » December 19 » 2007
Top court petitioned on divorce equality
Wife loses out because of 'access to legal advice'
Joey Thompson
The Province
Wednesday, December 05, 2007
An Abbotsford mom who claims she came up $600,000 short in a mediated separation deal with her ex-husband is hoping Canada's top court will grant her plea for pay equity.
Fifty-two-year-old Nancy Rick says she proposed the settlement pay-out to Ben Brandsema while an emotional wreck triggered by a strict, abusive upbringing and aggravated by 28 stormy years with the dairy farmer.
The mother of four, who tried to end her life while in her teens, said she was too vulnerable and confused, a result of post-traumatic-stress disorder, to see she wasn't getting her fair share. Nor was she able to detect that Brandsema hadn't disclosed the true value of the couple's many holdings, including several large properties, cattle, a milk quota, equipment, vehicles and RRSPs.
She said she was too depressed to even read, much less do the math on the 2001 split-up agreement that gave her approximately $1 million.
Indeed, a specialist in post-trauma psychiatry testified that Rick's PTSD symptoms were "among the most extreme" he had ever seen.
A trial judge in B.C. Supreme Court agreed the homemaker, who laboured on the farm alongside her husband, was troubled and that Brandsema, knowing she was mentally unstable when they began negotiating, took advantage of her.
Justice Harry Slade said Rick received only 30 per cent of the family assets instead of the 50/50 split the couple had initially planned on -- partly because Brandsema had provided misleading information about their $3-million estate after they split in 2000.
He said Brandsema owed her an additional $649,680.
But B.C.'s top court said too bad, so sad if Rick missed the boat. After all, the all-male panel noted, she had consulted lawyers, accountants and two mediators. In a 2003 decision, the Supreme Court of Canada implied that access to professional legal advice can compensate for some vulnerabilities or imbalances.
"Should the husband have been obliged to tell the wife that her proposal was not enough and that she should demand more?" top court Justice Edward Chiasson asked.
"This is not a case of mental incapacity, undue influence or duress. [They] were participating in mediation, part of that process involved the recommendation that the parties obtain legal advice. The wife had done so and did so again.
"[She] was troubled but it is clear that she knew what she was doing."
Chiasson said the lower court allowed equality to trump fairness.
But family law lawyer Jack Hittrich says the appeal court's ruling sends a disturbing, chilling message to Canadians: Even when a separating spouse has mental-health issues, even when there was misrepresentation as to assets, even when they both intended that their assets be equalized, as long as they had access to legal advice, the agreement will be binding.
"This case raises significant issues of national importance about the duties of negotiating parties in family law agreements," he states in a written petition to the nation's top court. "Without proper judicial guidance from our highest court, thousands of future couples will either be deprived of just settlements or will have to face costly and uncertain litigation."
- - -
Phone: 604-605-2119
Fax: 604-605-2099
jthompson@png.canwest.com
© The Vancouver Province 2007
Close
Copyright © 2007 CanWest Interactive, a division of CanWest MediaWorks Publications, Inc.. All rights reserved.
Monday, 29 October 2007
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 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.....
Thursday, 11 October 2007
THE TIME BETWEEN TICK AND TOCK
We have learned that much of life exists between the tick and tock of events. We are in such a place now. One great event has occurred, and we must wait for the inevitable tock that follows. "Tock" occurs (god willing and the creek don't rise)on next Tuesday, October 16th. I will be posting about it, but right now I don't want to throw any monkey wrenches into the clockworks (to extend the metaphor perhaps a bit too far). In the mean time, I want to share some quotes on fear that struck Nanc and I as appropriate to this time:
Eleanor Roosevelt:
You gain strength, courage, and confidence by every experience in which you really stop to look fear in the face. You must do the thing which you think you cannot do.
Marcus Aurelius:
If you are distressed by anything external, the pain is not due to the thing itself, but to your estimate of it; and this you have the power to revoke at any moment.
David Oliver-Godric:
Fear is one of the essences of what it is to be alive. Courage is to have fear but act anyway, cowardice is to have fear and fail to act. Life is about action, failing to act is the same as being dead, although even the dead act as fertilizer so perhaps it is worse.
See you Tuesday!
Eleanor Roosevelt:
You gain strength, courage, and confidence by every experience in which you really stop to look fear in the face. You must do the thing which you think you cannot do.
Marcus Aurelius:
If you are distressed by anything external, the pain is not due to the thing itself, but to your estimate of it; and this you have the power to revoke at any moment.
David Oliver-Godric:
Fear is one of the essences of what it is to be alive. Courage is to have fear but act anyway, cowardice is to have fear and fail to act. Life is about action, failing to act is the same as being dead, although even the dead act as fertilizer so perhaps it is worse.
See you Tuesday!
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.
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