Court Challenges: THIS is what the Liberals want to waste Tax Dollars On

Michael Ignatieff practicing how he is going to throw YOUR tax dollars away...

Well.

A few weeks ago, a Toronto legal colleague sent a mass email to fellow collaborative lawyers seeking to encourage us to donate money to the LEAF intervention in "this important family law appeal", a copy of the LEAF letter as follows:

March 17, 2011


PLEASE SUPPORT LEAF INTERVENTION IN SCC FAMILY LAW APPEAL


Dear family law practitioner,

As you well know, family law, perhaps more than any other single area of law, has the potential to improve women’s equality or deepen women’s inequality.

Women have made significant gains in the area of family law since the mid-1980s. LEAF has been at the forefront of the development of family law to better reflect the needs and realities of women and has intervened in many of the pivotal Supreme Court of Canada family law cases.

We cannot afford to lose any of the gains made.

For this reason LEAF, in Coalition with the Disabled Women’s Network Canada (DAWN), is seeking to intervene in L.M.P. v. L.S., a Supreme Court of Canada appeal scheduled to be heard in April 2011.

If the lower Court decision is upheld, the case will represent a significant shift backwards and will:

• signal a return to the “clean break” model of support;
• introduce a new concept of material change of circumstances into Canadian law;
• potentially affect every existing Order, Consent to Judgment and negotiated separation agreement which provides for indefinite support;
• throw into question the principle established in Bracklow that ill and disabled spouses may be entitled to long term and even indefinite support;
• further deter women from seeking a variation in child support when the payor spouse’s income has increased for fear of losing their spousal support; and
• reinforce discriminatory stereotypes of persons, and in particular women, with invisible disabilities.

The case involves a disabled woman with very limited education and work experience who looked after the home and her children during her 14 year marriage. When the parties divorced, they negotiated a consent to judgment that provided, among other things, for child support and indefinite spousal support in recognition of the wife’s permanent disability. Nevertheless, four years later, when the wife sought to vary child support based on the husband’s significantly increased income, the husband successfully cross-applied to reduce and terminate spousal support (subject to any further review by the Court on application of the wife).

The husband obtained this order by arguing that the wife was in fact never really too disabled to work. He did not argue that there had been any material change in the wife’s health following divorce. In spite of the wife’s negotiated right to indefinite support and there being no evidence of material change, the Quebec Court of Appeal held that the “passage of time” combined with the wife’s failure to seek employment, constituted a material change in circumstances to justify judicial review of her ability to work and the effective termination of her support.

In addition, in reducing and ending support payments, the lower Courts did not consider the enormous barriers to remunerative and secure employment for women like the Appellant, who was disabled, had little to no education and work experience and had been out of the workforce for almost 20 years. The court also did not consider the severe consequences to the Appellant of the loss of LTD payments.

Support LEAF’s Intervention

LEAF is the only party seeking leave to intervene in this appeal. Moreover, LEAF is the only party that can present the serious detrimental implications of the case for women’s equality. Please support LEAF’s intervention in this important appeal.

LEAF’s intervener litigation is funded exclusively by private donations.

LEAF is generously supported by pro bono counsel and the hundreds of volunteer hours of expertise that are devoted to the development of our facta. However, we cannot intervene without your financial support to cover the cost of disbursements.

We need to raise $15,000 to cover the costs of the L.M.P. v. L.S. case subcommittee meetings, copying, filing fees, counsel travel costs, agency fees and other disbursements. A charitable gift of $500, $250 or $100 will ensure that LEAF is able to intervene in this important family law case. Please donate now at www.leaf.ca (click the green “Donate” button at the top right) and earmark your donation for this litigation. Tax receipts will be issued.

We are grateful for your support of LEAF’s continued advocacy for women’s substantive equality in family law. LEAF works closely with its branches and its affiliate, West Coast LEAF.

If you would like to read more, LEAF’s factum for leave to intervene and the lower court decisions can be found at http://leaf.ca/legal-issues-cases-and-law-reform/active-cases/ or feel free to contact me directly at j.birenbaum@leaf.ca or 416-595-7170 ext. 223.

Yours very truly,
Joanna Birenbaum
Director of Litigation

But, well, here is the thing.

I looked up the case of L.M.P. v. L.S and read it.

And, well...  the implication of just how hard done by the woman in this case is, in my opinion, completely misleading, and is just another example of how the decision to cancel the funding of the Court Challenges Program was the right thing to do.

To best summarize my thoughts, here is my reply to my colleague:

* (name withheld out of respect for my colleague);


With respect, I respectfully decline to contribute to the legal fees of LEAF seeking to intervene in this case.

The findings of fact of the Trial Judge, which I feel have to be given some weight – suggest that LP was not completely forthright and honest in her representations and that she had an ability to contribute to her own support but had chosen not to. Yet, the suggestion is that this case should be brought before the Supreme Court of Canada – on the pretence that a woman, and worse, a disabled woman has been the subject of unfair treatment in the judicial system. I see not one shred of evidence in the decision to suggest that the Court, in any way, treated LP unfairly or unreasonably – but I DO see some indications that LP has not fully explored her obligations under s. 17 of the Divorce Act to contribute to her own well-being.

Frankly, I do not see anything earth-shattering in impact of this decision and believe that the implication of LEAF that this somehow will “introduce a new concept of material change” into Canadian law is more than slightly inaccurate when one has regard to the case itself.  Bracklow in no manner suggested that every woman suffering any degree of disability will necessarily be entitled to support, forever, such that again, I believe the implication that this displaces the Bracklow principles is, again, less than an accurate reflection of the nature of the decision.

Family “LAW”, in fact, has become unworkable and a blight on society, in part, based upon the ever-shifting sands under the feet of litigants and their counsel – which, more than anything, has contributed to the need to find other better ways of resolving problems. To suggest that we need yet another decree from our Supreme Court of Canada to further muddy the waters to confuse and obfuscate the interests of litigants is, with all respect, a misplaced effort.

Robert G. Harvie
Huckvale Wilde Harvie MacLennan
Barristers and Solicitors

To summarize.

The woman in this case, after trial, was essentially found to be dishonest and lazy - and the Court, in my opinion, quite rightly told her the gravy train was coming to an end.

The suggestion by LEAF that the case stands for anything for than just that, is well, also misleading. My reading of the case says no more and no less than as is stated in Section 17 of the Divorce Act, namely, that:

An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Were Michael Ignatieff in power, he would without reservation reinstitute the Court Challenges Program, to empower the lazy and dishonest to pursue pointless litigation, all on the government dime.

Isn't that nice?

But don't take my word for it.  Read the decision, and then decide for yourself if, in fact, it is of dire importance that people like the woman in this case deserve financial support from others to further their cause.

If you agree with LEAF - by all means send them the $100 they are asking for.

If you don't, perhaps send the $100 to the Conservative Party of Canada to assure that these clowns NEVER receive another dime of your tax dollars.